Civil liberties and the Constitution : cases and commentaries [Ninth edition.] 9781315664576, 1315664577

Table of contents :
(cover)
Frontmatter
PREFACE
PART I: A FRAMEWORK FOR ANALYSIS
CHAPTER 1: LAW AND COURTS IN POLITICAL-SOCIAL CONTEXT
Congress, the President, and Administrative Officials
Interest Groups and the Dynamics of Civil Liberties
More on the Court: Inside the Marble Palace
The Rules of the Game and American Political Values
Selected References
CHAPTER 2: CIVIL LIBERTIES IN THE CONTEXT OF FEDERALISM
The Supreme Court, the Bill of Rights, and the Fourteenth Amendment
State Constitutions
State Judicial Selection
Conclusion
Selected References
PART II: FREEDOM OF EXPRESSION, ASSEMBLY, AND ASSOCIATION
CHAPTER 3: FREEDOM OF EXPRESSION
Development of the Constitutional Law of Speech
Core principles, Subversive Advocacy, and Clear and Present Danger
Schenck v. United States (1919)
Abrams v. United States (1919)
Gitlow v. New York (1925)
Whitney v. California (1927)
Dennis v. United States (1951)
Brandenburg v. Ohio (1969)
Public Peace and Order
Feiner v. New York (1951)
Edwards et al. v. South Carolina (1963)
Time, Place, and Manner Restrictions
Frisby v. Schultz (1988)
Overview of Current Doctrine
Symbolic Speech, Hate Speech, and Conduct That Communicates
United States v. O'Brien (1968)
Texas v. Johnson (1989)
R.A.V. v. St. Paul, Minnesota (1992)
Selected References
CHAPTER 4: FREEDOM OF EXPRESSION IN SPECIAL CONTEXTS
Obscenity; Sexually Explicit Expression; the Offensive, Indecent, Lewd, and Profane
Cohen v. California (1971)
Obscenity
Miller v. California (1973)
Paris Adult Theatre I v. Slaton (1973)
Regulating Indecent Speech
Federal Communications Commission v. Pacifica Foundation et al. (1978)
Movies and Censorship
Nude Dancing
Barnes v. Glen Theatre, Inc. (1991)
Internet
Reno v. American Civil Liberties Union (1997)
Commercial Speech and Corporate Speech
Money as Speech
Student Rights and Free Expression
Tinker v. Des Moines Independent Community School District (1969)
Morse, et al., v. Joseph Frederick (2007)
Selected References
CHAPTER 5: FREEDOM OF THE PRESS AND ASSOCIATION
Prior Restraint
New York Times v. United States [The Pentagon Papers Case] (1971)
The Various Media
Is the Press Special?
Freedom of the Press and the Judicial Process
Confidentiality of News Sources
The Press and Damage to Reputation
New York Times v. Sullivan (1964)
Freedom of Association
National Association for the Advancement of Colored People v. Alabama (1958)
Selected References
PART III: FREEDOM OF RELIGION
CHAPTER 6: THE ESTABLISHMENT CLAUSE
History and Context
Current Judicial Approaches
Religious Schools and Public Money: Parochiaid
Everson v. Board of Education (1947)
The Lemon Test and More Parochiaid
Parochiaid and Higher Education
Prayer and Religion in Public Schools
Engel et al. v. Vitale et al. (1962)
School District of Abington Township, Pennsylvania v. Schempp (1963)
Board of Education of Westside Community Lee v. Weisman (1992)
Santa Fe Independent School District v. Doe (2000)
Government-Sponsored Religious Symbols, Traditions, and Tax Exemptions
Lynch v. Donnelly (1984)
Selected References
CHAPTER 7: THE FREE EXERCISE OF RELIGION
Early Free Exercise Jurisprudence
The State, Religious Beliefs and Practices, and the Free Exercise Clause
Sherbert v. Verner (1963)
Wisconsin v. Yoder (1972)
Department of Human Resources of Oregon v. Smith (1990)
Religious Liberty and Compulsory Military Service
Welsh v. United States (1970)
Selected References
PART IV: THE RIGHT OF THE ACCUSED AND THE CRIMINAL JUSTICE SYSTEM
CHAPTER 8: THE EXCLUSIONARY RULE AND OTHER FOURTH AMENDMENT CONTROVERSIES
Fourth Amendment Problems: The Exclusionary Rule Controversy
Mapp v. Ohio (1961)
The Fourth Amendment in Retreat? Expanding Warrantless Searches
City of Indianapolis v. Edmond (2000)
Virginia v. Moore (2008)
District Attorney's Office for the Third Judicial District, et al. v. Arizona v. Gant (2009)
Selected References
CHAPTER 9: PROTECTION AGAINST COMPULSORY SELF-INCRIMINATION AND THE RIGHT TO COUNSEL
Assistance of Counsel
Gideon v. Wainwright (1963)
Strickland v. Washington (1984)
From Coerced Confessions to Miranda Warnings
Miranda v. Arizona (1966)
Developing Miranda Jurisprudence in the Warren, Burger, Rehnquist, and Roberts Courts
New York v. Quarles (1984)
Illinois v. Perkins (1990)
Vermont v. Brillon (2009)
Selected References
CHAPTER 10: OTHER CONSTITUTIONAL GUARANTEES IN THE CRIMINAL PROCESS: TRIALS, SENTENCING, AND INCARCERATION
Trials, Jury Selection, and Sentencing Problems
Batson v. Kentucky (1986)
Snyder v. Louisiana (2008)
The Death Penalty Controversy
Gregg v. Georgia (1976)
McCleskey v. Kemp (1987)
Payne v. Tennessee (1991)
Cruel and Unusual Punishment Bail and Preventive Detention
Confrontation and Cross-Examination
Prisoners' Rights
Hudson v. McMillian (1992)
Juvenile Rights
In Re Gault (1967)
Selected References
PART V: PROTECTING AGAINST BIAS: SEGREGATION AND DISCRIMINATION
CHAPTER 11: THE DEVELOPMENT AND LEGAL DEMISE OF RACIAL SEGREGATION
Slavery in the Shadow of the Constitution
The Troubled Legacy of Slavery
Constitutionalization of Racial Segregation
Plessy v. Ferguson (1896)
Public Accommodation and Housing: The Color Line
Strategies for Political Exclusion
Separate and Unequal: Public Education From Plessy to Brown
Brown v. Board of Education (I) (1954)
Brown v. Board of Education (II) (1955)
Selected References
CHAPTER 12: THE ROCKY ROAD OF SCHOOL DESEGREGATION
The Journey From Brown I: Issues of Resistance and Implementation
It's Not The Bus; It's Us: Desegregation Moves North
From Affirmative Duty to Good Faith Standard
Board of Education of Oklahoma City Public Schools v. Dowell (1991)
Parents Involved in Community Schools v. Seattle School District No. 1 et al. (2007)
Desegregation Issues in Higher Education
Selected References
CHAPTER 13: THE CONTINUING SIGNIFICANCE OF RACE: THE PREVALENCE OF BIASES AND THE AFFIRMATIVE ACTION CONTROVERSY
Brown: The Catalyst for Racial Change in the Workplace
Some Judicial Standards and Equal Protection Review
Eliminating Job Bias
Griggs v. Duke Power Co. (1971)
Affirmative Action and the Inclusion of the Excluded
Regents of the University of California v. Bakke (1978)
Grutter v. Bollinger (2003)
Ricci et al. v. Destefano et al. (2009)
But Not Next Door: The Controversy Over Racially Segregated Housing
Commentary
Selected References
CHAPTER 14: THE CONTINUING SIGNIFICANCE OF RACE: VOTING AND REPRESENTATION
Negating Black Political Participation: State Defiance of the Fifteenth Amendment
Gomillion v. Lightfoot (1960)
From the Streets to the Congress: Renewing the Fifteenth Amendment's Commitment
South Carolina v. Katzenbach (1966)
Reapportionment and Related Problems
Baker v. Carr (1962)
Shaw v. Reno (1993)
Presidential Election
Northwest Austin Municipal Utility Dist. No. 1. v. Holder (2009)
Selected References
CHAPTER 15: NATIVE AMERICANS-RACE AND CULTURE: PROMISES MADE, PROMISES BROKEN
Doctrines of Discovery and Conquest
Johnson v. McIntosh (1823)
Seven Periods of Broken Promises: The Historical Background for the Twenty-First Century
The Rights of Native Americans and Treaties: The Civil Rights of Groups (Nations)
Federal Power To Recognize and Terminate Indian Country Status
City of Sherrill v. Oneida Indian Nation of New York (2005)
Carcieri v. Salazar (2009)
Criminal Jurisdiction: Issues of Culture and Power
American Indians' Self-Government and the Constitution
American Indians and Civil Rights: The Struggle for Cultural Recognition
American Indians' Culture as a Civil Right
Selected References
PART VI: GENDER-BASED DISCRIMINATION, PRIVACY, POVERTY, AND AGE DISABILITY
CHAPTER 16: EQUAL RIGHTS FOR WOMEN AND GENDER-BASED DISCRIMINATION
Sex Discrimination and the Evolution of Judicial Policies
Bradwell v. Illinois (1872)
Frontiero v. Richardson (1973)
Rostker v. Goldberg (1981)
United States v. Virginia (1996)
Constitutional Politics: The Saga of the ERA
Selected References
CHAPTER 17: PRIVACY AND INDIVIDUAL RIGHTS IN VARIED CONTEXTS
Beyond the Fourth Amendment: Privacy as a Constitutional Right and the Abortion Controversy
Griswold v. Connecticut (1965)
Roe v. Wade (1973)
Privacy in Varied Contexts: Sexual Orientation, Sexual Harassment, The Right to Die, and So on
Privacy and Congressional Legislation
The Issue of Privacy: A Conceptual Framework
Oncale v. Sundowner Offshore Services, Inc. (1998)
Lawrence et al. v. Texas (2003)
Washington v. Glucksberg (1997)
Selected References
CHAPTER 18: THE POOR IN COURT: EXPANDING AND CONTRACTING RIGHTS
Structural Obstacles Facing the Poor
Welfare Benefits
Shapiro v. Thompson (1969)
Rita L. Saenz, Director, California Department of Social Services, et al., Poverty, Public Schools, and the Property Tax
San Antonio Independent School District v. Rodriguez (1973)
The Poor and Housing
Access to the Courts
Lawyers, Legal Services, and Rights of the Poor
The Modern Era: Limitations on Achieving Economic Justice Through the Courts and the Law
The Future of Poverty: Capacity and Limits of the Courts and the Law
Selected References
CHAPTER 19: AGE, AND DISABILITY DISCRIMINATION
Age and the Workplace: The Development of the Law
Gross v. FBL Financial Services, Inc. (2009)
Bona Fide Occupational Qualifications
Proof of Violations
O'Connor v. Consolidated Coin Caterers Corp. (1996)
Disability in the Workplace
Selected References
APPENDIX I: CONSTITUTION OF THE UNITED STATES
APPENDIX II: GLOSSARY OF TERMS AND KEY CONCEPTS
APPENDIX III: MEMBERS OF THE SUPREME COURT OF THE UNITED STATES
TABLE OF CASES

Citation preview

CIVIL LIBERTIES AND THE CONSTITUTION: CASES AND COMMENTARIES

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

NINTH EDITION

CIVIL LIBERTIES AND THE CONSTITUTION: CASES AND COMMENTARIES

Lucius J. Barker Stanford University

Twiley W. Barker, Jr. University of Illinois at Chicago

Michael W. Combs University of Nebraska at Lincoln

Kevin L. Lyles University of Illinois at Chicago

H.W. Perry, Jr. University of Texas at Austin

Longman Boston Columbus Indianapolis New York San Francisco Upper Saddle River Amsterdam Cape Town Dubai London Madrid Milan Munich Paris Montreal Toronto Delhi Mexico City Sao Paulo Sydney Hong Kong Seoul Singapore Taipei Tokyo

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Editor-in-Chief: Eric Stano Executive Editor: Reid Hester Editorial Assistant: Elizabeth Alimena Marketing Manager: Lindsey Prudhomme Production Manager: Meghan DeMaio Creative Director: Jayne Conte Cover Designer: Suzanne Behnke Cover Illustration/Photo: © Gaetano / CORBIS All Rights Reserved Full-Service Project Management/Composition: Jogender Taneja/Aptara®, Inc. Printer/Binder/Cover Printer: Courier Companies

Copyright © 2011, 1999, 1994 by Pearson Education, Inc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. Printed in the United States. Library of Congress Cataloging-in-Publication Data Civil liberties and the Constitution: cases and commentaries / Lucius J. Barker ... [et al.].—9th ed. p. cm. ISBN-13: 978-0-13-092268-7 ISBN-10: 0-13-092268-4 1. Civil rights—United States—Cases. I. Barker, Lucius Jefferson, KF4748.B2 2011 342.7308'5—dc22 2010027105

1 2 3 4 5 6 7 8 9 10—CRS—13 12 11 10

ISBN-13: 978-0-130-92268-7 ISBN-10: 0-130-92268-4

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Dedicated to the Memory of Twiley W. Barker, Jr. Brother, Colleague, Mentor, and Friend

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

CONTENTS

PREFACE

XVII

PART I A FRAMEWORK FOR ANALYSIS CHAPTER 1

1

LAW AND COURTS IN POLITICAL–SOCIAL CONTEXT

3

Congress, the President, and Administrative Officials 5 Interest Groups and the Dynamics of Civil Liberties 8 More on the Court: Inside the Marble Palace 9 The Rules of the Game and American Political Values 13 Marbury v. Madison (1803) [online]* Selected References 16 17 The Supreme Court, the Bill of Rights, and the Fourteenth Amendment State Constitutions 23 State Judicial Selection 26 Conclusion 27 Barron v. Baltimore (1833) [online]* Palko v. Connecticut (1937) [online]* Duncan v. Louisiana (1968) [online]* Selected References 27

CHAPTER 2

CIVIL LIBERTIES IN THE CONTEXT OF FEDERALISM

19

PART II FREEDOM OF EXPRESSION, ASSEMBLY, AND ASSOCIATION 32 Development of the Constitutional Law of Speech 34 Core principles, Subversive Advocacy, and Clear and Present Danger Schenck v. United States (1919) 37 Abrams v. United States (1919) 38 Gitlow v. New York (1925) 42 45 Whitney v. California (1927)

CHAPTER 3

31

FREEDOM OF EXPRESSION

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vii Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

49 Dennis v. United States (1951) Brandenburg v. Ohio (1969) 57 Public Peace and Order 61 Feiner v. New York (1951) 67 Edwards et al. v. South Carolina (1963) 71 Adderly v. State of Florida (1966) [online]* Time, Place, and Manner Restrictions 74 79 Frisby v. Schultz (1988) Overview of Current Doctrine 84 Hill v. Colorado (2000) [online]* Symbolic Speech, Hate Speech, and Conduct That Communicates United States v. O’Brien (1968) 89 92 Texas v. Johnson (1989) 98 R.A.V. v. St. Paul, Minnesota (1992) Wisconsin v. Mitchell (1993) [online]* Virginia v. Black (2003) [online]* Selected References 107

86

108 Obscenity; Sexually Explicit Expression; the Offensive, Indecent, Lewd, and Profane 108 Cohen v. California (1971) 109 Obscenity 111 Miller v. California (1973) 115 Paris Adult Theatre I v. Slaton (1973) 118 Regulating “Indecent” Speech 124 Federal Communications Commission v. Pacifica Foundation et al. (1978) 125 Movies and Censorship 132 Nude Dancing 134 Barnes v. Glen Theatre, Inc. (1991) 135 Internet 143 Reno v. American Civil Liberties Union (1997) 144 Commercial Speech and Corporate Speech 151 Money as Speech 153 Citizens United v. Federal Election Commission (2010) [online]* Student Rights and Free Expression 156 Tinker v. Des Moines Independent Community School District (1969) 157 Bethel School District No. 403 v. Fraser (1986) [online]* Hazelwood School District v. Kuhlmeier (1988) [online]* Morse, et al., v. Joseph Frederick (2007) 162 Selected References 168

CHAPTER 4

FREEDOM OF EXPRESSION IN SPECIAL CONTEXTS

CHAPTER 5

FREEDOM OF THE PRESS AND ASSOCIATION

169

Prior Restraint 170 Near v. Minnesota (1931) [online]* New York Times v. United States [The Pentagon Papers Case] (1971) The Various Media 179 Is the Press “Special”? 180 Freedom of the Press and the Judicial Process 182

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Contents Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Confidentiality of News Sources 185 Branzburg v. Hayes (1972) [online]* Nebraska Press Association v. Stuart (1976) [online]* The Press and Damage to Reputation 186 New York Times v. Sullivan (1964) 189 Freedom of Association 196 National Association for the Advancement of Colored People v. Alabama (1958) Boy Scouts of America v. Dale (2000) [online]* Selected References 201

PART III FREEDOM OF RELIGION

198

203

THE ESTABLISHMENT CLAUSE 204 History and Context 204 Current Judicial Approaches 206 Religious Schools and Public Money: Parochiaid 207 Everson v. Board of Education (1947) 209 Board of Education v. Allen (1968) [online]* The Lemon Test and More Parochiaid 213 Parochiaid and Higher Education 216 Lemon v. Kurtzman (1971) [online]* Committee for Public Education and Religious Liberty v. Nyquist (1973) [online]* Mueller v. Allen (1983) [online]* Agostini v. Felton (1997) [online]* Zelman v. Simmons-Harris et al. (2002) [online]* Prayer and Religion in Public Schools 217 218 Engel et al. v. Vitale et al. (1962) School District of Abington Township, Pennsylvania v. Schempp (1963) 223 Board of Education of Westside Community Schools v. Mergens (1990) [online]* 233 Lee v. Weisman (1992) Santa Fe Independent School District v. Doe (2000) 243 Edwards v. Aguillard (1987) [online]* Good News Club v. Milford Central High School (2001) [online]* Van Orden v. Rick Perry (2005) [online]* Government-Sponsored Religious Symbols, Traditions, and Tax Exemptions 252 Lynch v. Donnelly (1984) 253 Selected References 260

CHAPTER 6

CHAPTER 7

THE FREE EXERCISE OF RELIGION

261

Early Free Exercise Jurisprudence 261 The State, Religious Beliefs and Practices, and the Free Exercise Clause 262 Minersville School District v. Gobitis (1940) [online]* Murdock v. Pennsylvania (1943) [online]* Sherbert v. Verner (1963) 263 Wisconsin v. Yoder (1972) 268 Hobbie v. Unemployment Appeals Commission of Florida (1987) [online]* *http://www.pearsonhighered.com/barker9e

Contents Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

ix

Jimmy Swaggart Ministries v. Board of Equalization of California (1990) [online]* Department of Human Resources of Oregon v. Smith (1990) 275 City of Boerne v. Flores (1997) [online]* Religious Liberty and Compulsory Military Service 282 Welsh v. United States (1970) 284 Selected References 289

PART IV THE RIGHT OF THE ACCUSED AND THE CRIMINAL JUSTICE SYSTEM 291 CHAPTER 8

THE EXCLUSIONARY RULE AND OTHER FOURTH AMENDMENT CONTROVERSIES 295

Fourth Amendment Problems: The Exclusionary Rule Controversy 295 Mapp v. Ohio (1961) 297 The Fourth Amendment in Retreat? Expanding Warrantless Searches 301 United States v. Leon (1984) [online]* Florida v. Bostick (1991) [online]* City of Indianapolis v. Edmond (2000) 311 Kyllo v. United States (2001) [online]* Hudson v. Michigan (2006) [online]* Virginia v. Moore (2008) 318 District Attorney’s Office for the Third Judicial District, et al. v. Osborne (2008) [online]* Arizona v. Gant (2009) 323 Selected References 334 CHAPTER 9

PROTECTION AGAINST COMPULSORY SELF-INCRIMINATION AND THE RIGHT TO COUNSEL 336

Assistance of Counsel 336 339 Gideon v. Wainwright (1963) Strickland v. Washington (1984) 343 From Coerced Confessions to Miranda Warnings 349 Miranda v. Arizona (1966) 351 Developing Miranda Jurisprudence in the Warren, Burger, Rehnquist, and Roberts Courts 361 New York v. Quarles (1984) Illinois v. Perkins (1990) 367 Dickerson v. United States (2000) [online]* Wiggins v. Smith (2003) [online]* Indiana v. Edwards (2008) [online]* Vermont v. Brillon (2009) 371 Selected References 375 CHAPTER 10

OTHER CONSTITUTIONAL GUARANTEES IN THE CRIMINAL PROCESS: TRIALS, SENTENCING, AND INCARCERATION

Trials, Jury Selection, and Sentencing Problems 382 Batson v. Kentucky (1986) Georgia v. McCollum (1992) [online]* Blakely v. Washington (2004) [online]*

357

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Contents Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Kimbrough v. United States (2007) [online]* Snyder v. Louisiana (2008) 388 The Death Penalty Controversy 395 Gregg v. Georgia (1976) 401 McCleskey v. Kemp (1987) 406 Stanford v. Kentucky/Wilkins v. Missouri (1989) [online]* Calderon v. Thompson (1998) [online]* 415 Payne v. Tennessee (1991) Hill v. McDonough (2006) [online]* Kennedy v. Louisiana (2008) [online]* Cruel and Unusual Punishment Ewing v. California (2003) [online]* Bail and Preventive Detention 422 Kansas v. Hendricks (1997) [online]* Confrontation and Cross-Examination 423 Coy v. Iowa (1988) [online]* Giles v. California (2008) [online]* Prisoners’ Rights 423 Wilson v. Seiter (1991) [online]* Hudson v. McMillian (1992) 428 Johnson v. California (2005) [online]* Juvenile Rights 434 435 In Re Gault (1967) Roper v. Simmons (2005) [online]* Atkins v. Virginia (2002) [online]* Selected References 441

PART V PROTECTING AGAINST BIAS: SEGREGATION AND DISCRIMINATION CHAPTER 11

THE DEVELOPMENT AND LEGAL DEMISE OF RACIAL SEGREGATION

Slavery in the Shadow of the Constitution 446 The Troubled Legacy of Slavery 447 Dred Scott v. Sanford (1857) [online]* Civil Rights Cases of 1883 [online]* Constitutionalization of Racial Segregation 449 451 Plessy v. Ferguson (1896) Public Accommodation and Housing: The Color Line Strategies for Political Exclusion 458 Separate and Unequal: Public Education From Plessy to Brown 459 Brown v. Board of Education (I) (1954) 461 Brown v. Board of Education (II) (1955) 463 Selected References 464

443 446

456

THE ROCKY ROAD OF SCHOOL DESEGREGATION 466 The Journey From Brown I: Issues of Resistance and Implementation Cooper v. Aaron (1958) [online]* “It’s Not The Bus; It’s Us”: Desegregation Moves North 468

CHAPTER 12

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Contents Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

xi

From Affirmative Duty to Good Faith Standard 472 Milliken v. Bradley (1974) [online]* Board of Education of Oklahoma City Public Schools v. Dowell (1991) Parents Involved in Community Schools v. Seattle School District No. 1 et al. (2007) 482 Desegregation Issues in Higher Education 510 United States v. Fordice (1992) [online]* Gratz v. Bollinger (2003) [online]* Selected References 512 CHAPTER 13

THE CONTINUING SIGNIFICANCE OF RACE: THE PREVALENCE OF BIASES AND THE AFFIRMATIVE ACTION CONTROVERSY

Brown: The Catalyst for Racial Change in the Workplace 514 Some Judicial Standards and Equal Protection Review 519 Eliminating Job Bias 519 524 Griggs v. Duke Power Co. (1971) Affirmative Action and the Inclusion of the Excluded 527 Regents of the University of California v. Bakke (1978) 537 City of Richmond v. J. A. Croson Co. (1989) [online]* Adarand Constructors, Inc. v. Pena (1995) [online]* Grutter v. Bollinger (2003) 549 CBOCS West, Inc. v. Humphries (2008) [online]* Ricci et al. v. Destefano et al. (2009) 561 “But Not Next Door”: The Controversy Over Racially Segregated Housing Commentary 582 Selected References 583 CHAPTER 14

477

514

579

THE CONTINUING SIGNIFICANCE OF RACE: VOTING AND REPRESENTATION 585

Negating Black Political Participation: State Defiance of the Fifteenth Amendment 587 Gomillion v. Lightfoot (1960) 588 From the Streets to the Congress: Renewing the Fifteenth Amendment’s Commitment 591 South Carolina v. Katzenbach (1966) 597 Chisom v. Roemer (1991) [online]* Presley v. Etowah County Commission (1992) [online]* Reapportionment and Related Problems 603 Baker v. Carr (1962) 617 City of Mobile v Bolden (1980) [online]* Shaw v. Reno (1993) 621 Georgia v. Ashcroft (2003) [online]* Vieth v. Jubelirer (2004) [online]* Bartlett v. Strickland (2009) [online]* Voting Rights and the Constitution: The 2000 Presidential Election 626 Bush v. Gore (2000) [online]* Northwest Austin Municipal Utility Dist. No. 1. v. Holder (2009) Selected References 637

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Contents Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

CHAPTER 15

NATIVE AMERICANS—RACE AND CULTURE: PROMISES MADE, PROMISES BROKEN 639

Doctrines of Discovery and Conquest 640 643 Johnson v. McIntosh (1823) Cherokee Nation v. Georgia (1831) [online]* Worcester v. Georgia (1832) [online]* Seven Periods of Broken Promises: The Historical Background for the Twenty-First Century 649 The Rights of Native Americans and Treaties: The Civil Rights of Groups (Nations) 650 Federal Power To Recognize and Terminate Indian Country Status 655 Morton v. Mancari (1974) [online]* United States v. Sioux Nation (1980) [online]* Minnesota v. Mille Lacs Band of Chippewa Indians (1999) [online]* United States v. Navajo Nation (2003) [online]* City of Sherrill v. Oneida Indian Nation of New York (2005) 656 665 Carcieri v. Salazar (2009) Criminal Jurisdiction: Issues of Culture and Power 674 Ex Parte Crow Dog (1883) [online]* United States v. Kagama (1886) [online]* American Indians’ Self-Government and the Constitution 676 American Indians and Civil Rights: The Struggle for Cultural Recognition American Indians’ Culture as a Civil Right 678 Selected References 680

677

PART VI GENDER-BASED DISCRIMINATION, PRIVACY, POVERTY, AND AGE DISABILITY 683 CHAPTER 16

EQUAL RIGHTS FOR WOMEN AND GENDER-BASED DISCRIMINATION 686

Sex Discrimination and the Evolution of Judicial Policies 686 693 Bradwell v. Illinois (1872) Muller v. Oregon (1908) [online]* Reed v. Reed (1971) [online]* Frontiero v. Richardson (1973) 695 Craig v. Boren (1976) [online]* Orr v. Orr (1979) [online]* Personnel Administrator of Massachusetts v. Feeney (1979) [online]* 699 Rostker v. Goldberg (1981) Michael M. v. Superior Court of Sonoma County (1981) [online]* Mississippi University for Women v. Hogan (1982) [online]* Grove City College v. Bell (1984) [online]* United States v. Virginia (1996) 703 Miller v. Albright (1998) [online]* Constitutional Politics: The Saga of the ERA 708 Selected References 709 *http://www.pearsonhighered.com/barker9e

Contents

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

CHAPTER 17

PRIVACY AND INDIVIDUAL RIGHTS IN VARIED CONTEXTS

710

Beyond the Fourth Amendment: Privacy as a Constitutional Right and the Abortion Controversy 711 Griswold v. Connecticut (1965) 713 Roe v. Wade (1973) 717 Webster v. Reproductive Health Services (1989) [online]* Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) [online]* Stenberg v. Carhart (2000) [online]* Gonzales v. Carhart (2007) [online]* Privacy in Varied Contexts: Sexual Orientation, Sexual Harassment, The Right to Die, and So on 722 Privacy and Congressional Legislation 726 The Issue of Privacy: A Conceptual Framework 727 Bowers v. Hardwick (1986) [online]* Romer v. Evans (1996) [online]* Oncale v. Sundowner Offshore Services, Inc. (1998) 729 Lawrence et al. v. Texas (2003) 731 Boy Scouts of America v Dale (2000) [online in Chapter 5]* Cruzan v. Director, Missouri Department of Health (1990) [online]* Washington v. Glucksberg (1997) 740 Vernonia School District 47J v. Acton (1995) [online]* Selected References 746 CHAPTER 18

THE POOR IN COURT: EXPANDING AND CONTRACTING RIGHTS

748

Structural Obstacles Facing the Poor 749 Welfare Benefits 750 Shapiro v. Thompson (1969) 754 Rita L. Saenz, Director, California Department of Social Services, et al., Petitioners v. Brenda Roe and Anna Doe etc. (1999) [online]* Goldberg v. Kelly (1970) [online]* Wyman v. James (1971) [online]* Poverty, Public Schools, and the Property Tax 760 San Antonio Independent School District v. Rodriguez (1973) 761 The Poor and Housing 770 Access to the Courts 771 Lawyers, Legal Services, and Rights of the Poor 774 The Modern Era: Limitations on Achieving Economic Justice Through the Courts and the Law 775 The Future of Poverty: Capacity and Limits of the Courts and the Law 777 Selected References 780 AGE, AND DISABILITY DISCRIMINATION

782 Age and the Workplace: The Development of the Law 782 Massachusetts Board of Retirement v. Murgia (1976) [online]* Gross v. FBL Financial Services, Inc. (2009) 785

CHAPTER 19

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Contents Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Bona Fide Occupational Qualifications 791 Vance v. Bradley (1979) [online]* Gregory v. Ashcroft (1991) [online]* Proof of Violations 794 O’Connor v. Consolidated Coin Caterers Corp. (1996) 794 Disability in the Workplace 796 Southeastern Community College v. Davis (1979) [online]* School Board of Nassau County, Florida v. Arline (1987) [online]* 797 Bragdon v. Abbott (1998) Alienage [online]* Plyler v. Doe (1982) [online]* Mental Illness [online]* Heller v. Doe (1993) [online]* Selected References 806 APPENDIX I APPENDIX II

CONSTITUTION OF THE UNITED STATES

807

GLOSSARY OF TERMS AND KEY CONCEPTS

818

APPENDIX III

MEMBERS OF THE SUPREME COURT OF THE UNITED STATES

APPENDIX IV

FEDERALIST PAPER, NO.

APPENDIX V APPENDIX VI

828

78 [ONLINE]*

THE BORK CONFIRMATION BATTLE: A CASE STUDY ON JUDICIAL SELECTION [ONLINE]* THE DOWNFALL OF SEPARATE BUT EQUAL: BROWN V. BOARD OF EDUCATION [ONLINE]*

TABLE OF CASES

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Contents

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

PREFACE

INTRODUCTION This ninth edition of the landmark text Civil Liberties and the Constitution: Cases and Commentaries is designed for the twenty-first century. The pervading theme of the book is that a more thorough understanding of the past and present might help us to better prepare and work for a future that stands to realize our rights and liberties more fully. This theme is reflected in both the substance and the structure of the volume.

NEW TO THIS EDITION As in earlier editions, providing new and enriched substantive content, including the following, is a major feature of this new edition: 1. Continued attention to recurring, as well as new, variations in past and current hot-button matters: • church–state relations, • racial and sex-based discrimination, • affirmative action, • abortion, and • the death penalty. 2. Coverage of issues that have not been so salient in the recent past, but portend to be so in the future: • civil liberties and civil rights in the post-9/11 United States, • rights of Native Americans, • disability and age discrimination, • and free speech and the Internet. 3. A considerable increase in the number of cases for analysis and discussion:

• In some instances, old as well as new cases have been added to more clearly illustrate the continuous, yet changing, nature of civil liberty problems. • The addition of new materials permits a reemphasis on the need to study the role of courts and law in the overall political–social context in which they function. For example, in view of a trend toward federal devolution of powers to the states in the 1980s and 1990s, Part I now pays more attention to the current and potential role of states in the realization of our rights and liberties during the first decade of the twenty-first century.

FEATURES Also as in earlier editions, major case decisions of the Supreme Court remain the basic staple of this volume, and these cases are edited to promote a general, instead of technical and legal, understanding of the issues involved. Readers can examine significant portions, rather than snippets, of court opinions, including, where appropriate and profitable, major arguments from majority, concurring, and dissenting opinions. The structure and organization of this ninth edition offers readers a new and more user friendly format, which includes the division of the text into six major parts that embrace nineteen discrete chapters. Thus, readers are able to select particular parts or chapters on which they wish to focus in accordance with their various interests and objectives. xvii

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

As in earlier editions, each part and each chapter opens with easy-to-read commentaries that focus on relevant cases and materials. These commentaries, among other things, allow readers to discern more clearly the changes and continuity in the evolution of legal doctrines and judicial policies. They also allow readers to continuously evaluate, for example, how the substance and tone of judicial policies of the Warren, Burger, or Rehnquist Courts are now being affected by actions of the Roberts Court. Further, the commentaries are written so as to stimulate users to read and study relevant cases and materials for themselves and draw their own conclusions. Finally, the selected references that are included in the volume allow users to explore additional reading materials should they wish to do so. Overall, we trust that the substance and structure of this volume suggest that it is more than just an ordinary text. Our hope is that the book will come to be viewed as a major treatise that perceptively illuminates factors in the American political–social landscape that more or less determine the state of our civil rights and liberties at any given time. In response to the needs of instructors awaiting the release of forthcoming editions, we are pleased to provide new online supplementary materials at http:// www.pearsonhighered.com/barker9e. Here, you will find immediately accessible edited versions of “new” significant Supreme Court decisions, as well as other instructional materials (including several classic cases not presented in the ninth edition). Instructors and students may download materials from this online archive to supplement their instructional needs. We encourage both instructors and students to comment on this ninth edition of Civil Liberties and the Constitution: Cases and Commentaries and to inform us of any errors or omissions. Feel free to contact us at [email protected].

ACKNOWLEDGMENTS We remain grateful to the many who have played pivotal roles in the continued development of this volume. Their names are far too numerous to mention, but they should know that their encouragement and

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assistance remain important to us. There are some acknowledgments that we feel compelled to make. As in earlier editions, we continue to be both amazed and delighted by the many comments and suggestions that come to us from professional colleagues who use the volume. We particularly appreciate reactions in our own classes that keep us constantly alert to the interests and concerns of our primary users, the students. We also appreciate the many valuable contributions of our research assistants and secretarial staff. Special thanks and acknowledgement must be given to Heidi Lynn Lawson, now completing her Ph.D. work in political science at the University of Illinois at Chicago. Heidi helped to alleviate problems that invariably occur in attempting to coordinate the work of five different coauthors. Moreover, Heidi has been a valuable resource in all levels of researching, developing and updating this ninth edition. We also extend special appreciation to Eliana Vasquez of Stanford University, who offered exemplary secretarial support in this effort. In addition, we wish to express our appreciation to our editors and others affiliated with Prentice Hall who guided the book through to publication, especially Jogender Taneja of Aptara®, Inc., and Heather Sisan and Brian Baker of Write With, Inc. Finally, all of us owe a lasting debt of gratitude to our coauthor, the late Twiley W. Barker, Jr., Professor Emeritus of Political Science at the University of Illinois at Chicago. It is hard to overstate his importance to this volume—from the first edition to the present one. Indeed, despite failing health, he was instrumental in facilitating the completion of this ninth edition. His commitment to excellence and thoroughness, as well as his zeal in guarding our civil liberties, is unsurpassed. He epitomized the phrase “a gentleman and a scholar.” We, along with professional colleagues and countless students, will miss him greatly. The Authors

Preface

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

PART I A FRAMEWORK FOR ANALYSIS

A

BORTION, THE DEATH PENALTY, SCHOOL PRAYERS, affirmative action, school desegregation, homeland defense, the rights of persons accused of crimes, and lifestyle practices encapsulate issues that continue to evoke and engender sharp division and debate in our society and politics. The division and debate penetrate both private and public sectors and are clearly evident in our politics—in elections, state and local governments, congressional and presidential politics, the Supreme Court, and our court system. Thus, a continuing analysis of the overall political–social context remains important for students and others who are interested in a study of civil liberties. This political–social context influences and is in turn influenced by actions and policies, including those which relate to civil liberties and that emanate from elective political institutions (e.g., the president and Congress) and from nonelective governmental institutions (e.g., administrative agencies and federal courts). Actions and policies of presidential administrations, as well as of the Warren, Burger, Rehnquist, and Roberts Supreme Courts, exemplify vividly how these institutions affect our civil liberties. They also demonstrate the important interaction of law and politics in the development and enforcement of civil liberty policies. The major point here is that, given the inextricable relationships of courts, law, and politics, we should keep this overall political–social context in mind as we discuss various issues in civil liberties. This book represents a collation of the leading decisions of the Supreme Court on civil liberties. The U.S. Supreme Court plays an important role in

dealing with civil liberties and civil rights problems. Indeed, the Court exercises final authority with respect to legal interpretations of our national Constitution and federal laws. As such, its decisions are analyzed and studied with special care and attention. Although they are extremely important, decisions of the Court cannot be studied in a vacuum, particularly positions of the Court on highly controversial questions, which civil liberties and civil rights issues tend to be. Under such circumstances, Court decisions become only one consideration, albeit a very important one, in the determination of policy and practice related to given issues. Consider, for example, the celebrated decisions of the Warren Court in the 1954 school segregation cases. Certainly, public policy involving school desegregation, much less the actual practice of desegregation, cannot be discussed by a mere reading of decisions of the Court. Many other factors must be considered to determine the policy and practice of school desegregation, such as the policy positions and attitudes of the president, governors, mayors, Congress and state legislatures, city councils, school boards, school superintendents, and chiefs of police. Of course, public opinion and community attitudes must also be considered. The same or similar factors must be considered in discussing policies and practices respecting other salient civil liberty problems, such as abortion, capital punishment, obscenity and pornography, privacy, state aid to parochial schools, affirmative action, and the rights of the accused. The fact is that Court decisions on matters of great controversy, like decisions 1

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

emanating from other decision-making institutions, are seldom, if ever, final. They continue to be subject to the pressures of interests that stand to gain or lose depending on particular outcomes. In this overall context the purpose of these introductory chapters becomes apparent. Certainly we cannot fully explore in two short chapters the many factors that are involved in the definition, enforcement, and implementation of civil liberties and civil rights policies. Our hope, however, is that these chapters will serve as constant reminders that leading cases of the Supreme Court, which constitute the bulk of this volume, must be analyzed in the overall political–social context of which they are a part. This context includes considerations such as the nature, structure, and operation of our constitutional governing system, the nature and culture of American politics and society, and the impact of important developments and conditions at home and

2

abroad on civil liberties (e.g., elections, advances in science and technology, the state of the economy, and crises in domestic or foreign affairs). Clearly it is difficult to objectively measure the relative impact of these kinds of broad, often amorphous, considerations. Even so, it is clear that certain considerations do have variable impacts on particular rights and liberties that we may or may not exercise or enjoy at certain times and in certain circumstances. We will focus attention on certain factors and considerations that may help us better understand the dynamic framework in which we must assess our rights and liberties. In Chapter 1, for example, we look at the nature of law and courts and view them in the political–social context in which they function and operate. In Chapter 2, the discussion focuses directly on how our rights and liberties are affected by the nature and dynamics of federalism and the federal system.

A Framework for Analysis Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

CHAPTER 1

LAW AND COURTS IN POLITICAL–SOCIAL CONTEXT

C

OURTS AND LAW MUST BE VIEWED IN THE OVERALL

political–social context of which they are a part. Here we consider how the functioning of courts is affected by the importance that Americans attach to constitutionalism and the rule of law, and by systematic structures such as federalism and the separation of powers. We also examine the influence of interestgroup politics and public opinion, which loom as important factors in policy conflict. Finally, we discuss in this chapter how these various features and factors come into full focus in judicial selection, a clear indication of the relative role and importance of courts, especially the U.S. Supreme Court, in American politics and policy-making. Americans are legally oriented. This legal orientation is evident in our almost reverent allegiance to doing things according to law. It is this attachment to law, based on strong traditions, that allows courts and the legal profession to exercise an enormous amount of power and influence in the American political system. It is not surprising, then, that many people who are interested in bringing about changes in civil liberties have taken the judicial route in attempts to achieve their objectives. Consequently, in a general discussion of policy development, especially civil liberties policy, we must give close attention to the role of courts. The highest law in the American legal order is the Constitution. All other types of law—rules, regulations, practices, statutes, administrative orders, or customs—must conform with the Constitution. Herein lies the crucial role of courts, especially the

Supreme Court. Long ago, in Marbury v. Madison (1 Cr. 137, 1803), Chief Justice John Marshall proclaimed that it is “emphatically” the province of the judiciary to determine whether particular laws, rules, and regulations conform with the Constitution. According to Marshall, the Constitution had authorized the courts, and no other institution of government, to make such a determination. This power of judicial review has long since become firmly entrenched in our constitutional and legal fabric. Judicial review gives the courts an important and crucial role in American politics and in the determination of public policies. Nowhere is this truer than in the articulation and development of civil rights and civil liberties policy. Consider the important values embodied in the Bill of Rights. The First Amendment, for example, declares that Congress may not pass laws “respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Or consider other provisions of the Bill of Rights, such as the prohibitions against unreasonable searches and seizures, protection against self-incrimination, and other provisions safeguarding the rights of the accused. In addition, consider provisions of the Civil War amendments—the Thirteenth, Fourteenth, and Fifteenth Amendments. These amendments prohibit slavery and involuntary servitude, guarantee due process and equal protection during legal proceedings, and prohibit denial of the right to vote on account of 3

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

race, color, and previous condition of servitude. The Nineteenth Amendment prohibits abridging the right to vote on account of gender. The Twenty-Fourth Amendment forbids denial of the right to vote in national elections for failure to pay any poll tax or other tax. (Harper v. Virginia, 1966, outlawed payment of poll taxes in state elections.) The TwentySixth Amendment says that “the right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” Judicial review permits courts to determine whether these rights or guarantees have been violated in particular cases. But courts do more than exercise the power of judicial review by determining whether various acts are in accordance with the Constitution. A major part of the workload of courts consists of cases that deal with statutory interpretation. In these cases, courts are called on to interpret and apply statutes (laws and ordinances) such as those which are enacted by Congress and based on the wording of the statute and other factors, but which do not directly refer to the Constitution. In many ways, then, how judges interpret statutes can prove crucial in determining who wins or loses as a result of specific legislative enactments. For example, Title IX of the federal Education Amendments of 1972. Title 20 U.S.C. Sections 1681–1688 prohibits gender discrimination in “any education program or activity receiving federal financial assistance” and declares that failure to comply with the law could result in termination of federal assistance. But when the Supreme Court interpreted this provision of the law in its 1984 decision in Grove City College v. Bell, the Court ruled that although the college was such a “recipient,” the force of the law’s antisex discrimination provisions could be applied only to the specific program or unit receiving such financial assistance and not to the college as a whole. In short, failure to abide by antisex discrimination provisions in one such program or activity would not cause the college to lose all its funding under Title IX. Undoubtedly, this judicial interpretation of the statute severely limited the scope and effect of the statute as a tool for combating gender discrimination. As a result, Grove City elicited a storm of protests from civil rights groups and many others who saw the decision as a threat not only to federal laws banning gender discrimination but to laws that ban other forms of discrimination as well, 4

such as discrimination on the basis of race or against the handicapped. Thus, here, as in other instances, the meaning of a particular statute is nothing more or less than what the courts say it means. The Court does not necessarily have the final word in matters of statutory interpretation, though. If Congress does not like the Supreme Court’s interpretation of a statute, it may change the law to overcome the Court’s interpretation. And this is exactly what Congress did in 1988 when it passed the Civil Rights Restoration Act to overcome the effects of Grove City. Similarly, after protracted battles between President George H.W. Bush and Congress (including several leading Republicans who opposed Bush), Congress passed the Civil Rights Act of 1991. This law attempted to overcome a number of controversial Supreme Court decisions involving interpretations of affirmative action policies under several congressional statutes. The scope of the legislative enactment, however, was subsequently limited by the Court’s decision that the act did not apply to cases that were pending appeal at the time of the legislation’s enactment (Landgraf v. USI Film Products, 1994). This example shows how interactions between the Court and Congress take on a dialogic quality. In any event, the ambiguity of language found in many statutes, which might reflect compromises that were needed for their initial enactment, obviously means that “the opportunities for the exercise of judicial discretion in statutory interpretation are both frequent and wide.”1 When we combine this role of the courts in statutory interpretation with that of constitutional interpretation (judicial review),2 we begin to understand more clearly the enormous importance of courts and judges in the formulation of civil liberties policies and in the political process generally. And that importance, as the previously mentioned Civil Rights Act of 1991 indicates, suggests that the way the courts interpret statutes passed by legislative bodies is likely to play an increasing role in the battle over civil rights and civil liberties. This volume, however, is concerned mostly with cases involving judicial review—those in which courts are asked to determine the constitutionality of 1 See Murphy, Walter, and Pritchett, C. Herman. Courts, Judges, and Politics, 2nd ed. New York: Random House, 1974, p. 408. 2 Consider the role of courts in the interpretation of administrative regulations. See Shapiro, Martin, The Supreme Court and Administrative Agencies. New York: The Free Press, 1968.

A Framework for Analysis Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

statutes and various other actions. The primary focus is on rights that are guaranteed in the Bill of Rights and the Fourteenth Amendment. These constitutional provisions, of course, are very important safeguards to the rights of the excluded, the unpopular, or those who differ with the majority. As experience has shown, majorities (and sometimes minorities) do attempt to deny or abridge these freedoms and rights. Consequently, since the purpose of the Bill of Rights—and similar constitutional provisions—was to provide guarantees against majority abuse and tyranny, courts bear a special duty under our constitutional system to protect and defend such rights. Courts, after all, are supposed to make decisions according to law, not according to majority rule. The fact that federal judges, unlike officials in the elective political branches, enjoy life tenure gives them the sort of independence and detachment that they might need to withstand majority pressures and to render what might be unpopular decisions. We do not intend to suggest that courts are aloof or are not influenced by the total political context in which they function—in fact, many scholars have made persuasive arguments to the contrary. But we do suggest that courts and judges are accorded a special and unique role in the American political system that is not enjoyed by other political institutions and actors. Consider, for example, how the court struck down Congress’s abortive attempt through the Religious Freedom Restoration Act of 1993 to invade this special role and province of the court. (See City of Boerne v. Flores [1997] [online]*.) This role, of course, is enhanced and perpetuated by the norms, procedures, and traditions that provide the legal context in which courts and judges operate. In this context, courts are viewed as key protectors of civil liberties and civil rights in America. Many aspects of the judicial process lend an aura of fairness and justice to actions of the courts: the representation of parties before the court by persons who are trained in the law, the studied and sometimes prolonged deliberations of judges before arriving at decisions, and the careful intoning of legal language of the judicial process. These characteristics of the legal system symbolize the belief that judicial decisions are determined in accord with law and not with popular or majority will or whim. But neither the law nor judicial decisions are neutral. They give an advantage to certain interests and *http://www.pearsonhighered.com/barker9e

put others at a disadvantage. For some time, for example, the law (the Constitution, statutes, judicial decisions, customs, and practices) supported the interests of those who practiced racial segregation. Interpreted in this way, the law disadvantaged black Americans. As we discuss in a later chapters, the strong positions taken by the Warren Court (1953–69) did much to change the law in this area. However, in more recent times, some analysts contend that the Burger Court (1969–86), the Rehnquist Court (1986–2005) and now the Roberts Court (2005–present) have acted to narrow, evade, and slow decisional trends of the Warren Court not only in areas relating to race but in other civil liberty areas as well. It is just this sort of change, or perceived change, that vividly illustrates the dynamics of judicial decision making and its relationship to the overall political–social context. Indeed, although law and judicial decisions help to shape that context, the context itself helps to shape the law and judicial decisions. In any event, the norms, procedures, and traditions of the judicial process contribute greatly to the importance and credibility that are accorded to decisions emanating from that process.

CONGRESS, THE PRESIDENT, ADMINISTRATIVE OFFICIALS

AND

Because the courts operate as one actor in a complex political–social system, a discussion of civil liberties and civil rights policies in the United States must perforce consider more than activities and decisions of courts. We must also consider the activity of other governmental institutions such as the Congress, the president, and administrative agencies and bureaus. Certainly both the president and the Congress play important roles in the development of national civil rights and civil liberties policies. This is true if for no other reason than that our government is composed of three interdependent, rather than three independent, branches. In short, the separation of powers doctrine is more doctrine than practice. Decisions of any one branch can be influenced (or checked) by the other branches, according to built-in “checks and balances.” This is why students of civil liberties cannot focus solely on judicial decisions. Decisions of Congress, the president, and administrative officials can prove to be very important, even determinative, in certain situations. Consider, for example, the importance of congressional legislation such as the Civil Rights Act of Law and Courts in Political–Social Context

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

5

1964 and the Voting Rights Act of 1965. Presidential leadership loomed great in the passage of both laws. To be sure, Supreme Court decisions gave judicial approval to these 1964 and 1965 actions of Congress and the president. But it is not clear how far-reaching the Court’s 1954 school desegregation decision would have been had Congress and the president not passed the 1964 and 1965 legislation. However, actions of Congress and the president may also impede or restrict civil liberties. When Congress passed the Eagleton–Biden Amendment in 1977, it eliminated busing as one of the tools that the Department of Health, Education, and Welfare (now the Education Department) could use to achieve public school desegregation under the 1964 Civil Rights Act. Congress also may impede civil liberties if it acts to curb the jurisdiction of federal courts in certain areas. To be sure, such attempts have been made. But these attempts—covering such controversial issues as abortion and school prayer—have all met with failure. Of course, congressional action to remove federal court jurisdiction in highly controversial areas such as civil liberties problems would perhaps bring us full circle, since federal courts would undoubtedly be asked to determine the constitutionality of such congressional action. Adverse Court decisions also may be overcome by passing appropriate constitutional amendments, but this is a much more difficult route to negotiate. Civil liberties are affected in still other ways. For example, partisan control of the Senate Judiciary Committee will obviously influence congressional action. Consider, for example, that Republican control of the Judiciary Committee resulted in congressional inaction with regard to the treatment of President Clinton’s nominees. In early 1998, dozens of judgeships remained unfilled, in part because the Senate delayed hearings on presidential nominees. On the other hand, Democratic control of the Senate made for relatively smooth sailing for President Obama’s appointment of Justice Sonya Sotomayor to replace Justice Souter when he retired in 2009. This suggests that actions of Congress can go far toward advancing (or retarding) civil rights and liberties. It becomes important then to study Congress—its composition, powers, practices, and procedures—and how these factors can influence congressional policies generally and civil rights and liberties policies in particular. Similarly, it is important to study the president, his selection, his vast powers and authority, and his leadership, and analyze how these factors can shape 6

and influence the course of civil liberties and civil rights policy. Consider, for example, the power of the president to appoint federal judges. How this appointment power might affect civil liberties and civil rights interests was illuminated vividly in the aborted attempt of President Reagan to appoint Judge Robert Bork to the Supreme Court. It has also been highlighted by the vast opportunities given to President Carter under the Omnibus Judges Act of 1978, which created 152 new judgeships. Combined with existing vacancies, these new appointments allowed Carter to appoint an unprecedented number of blacks, Hispanics, and women to the federal bench.3 The different life experiences and legal outlooks of these judges could have profound influence on the role and character of the federal judiciary. But Ronald Reagan defeated President Carter in the 1980 election, and during his eight years in office Reagan had the opportunity to fashion further and different changes in appointments to the judiciary. These changes included the appointment of three new justices to the Supreme Court (O’Connor, Scalia, and Kennedy) and the naming of a new Chief Justice (Rehnquist). Overall, President Reagan had the opportunity to appoint about 50 percent of the judges to our federal courts. It is important, then, not to underestimate the role that presidential politics plays in the makeup of the federal judicial branch. The matter of judicial appointments to our federal courts was also raised during the 1988 Bush–Dukakis presidential election. At the time of the 1988 elections, there were three Supreme Court justices who were over age 75, making vacancies very likely to occur. That these three justices (Brennan, Marshall, and Blackmun) constituted the liberal bloc on the Court indicated that their possible replacements could bring about profound changes in our law. This fact, of course, did not go unnoticed during the presidential campaign, as both Republicans and Democrats listed the “parade of horribles” that would be visited on the Court should the opposing side win. In the end, the resignations of Justices William Brennan and Thurgood Marshall gave President Bush the opportunity to replace these two liberal justices with justices who were more in tune with his own conservative positions. This political shift was particularly noticeable in the appointment 3 See “Carter’s Efforts to Diversify the Bench . . . Leave Reagan a Tough Act to Follow,” Congressional Quarterly (Feb. 14, 1981): 300–301.

A Framework for Analysis Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

of Judge Clarence Thomas, who, although an African American like Justice Marshall, wore conservative credentials that were much more obvious than those of Justice David Souter, who replaced Brennan. Bill Clinton’s victory in 1992 tantalized liberals with the possibility that the president would appoint judges who would counterbalance the conservatives placed on the federal bench by Presidents Reagan and Bush. As in other policy areas, liberals had to settle for half a loaf. Clinton’s two appointments to the Supreme Court, Stephen Breyer and Ruth Bader Ginsburg (the second woman to be appointed to the Supreme Court), could be characterized as moderate liberals. Clinton’s appointments at the lower levels of the federal judiciary more or less fit this characterization as well. Contrary to conservatives’ claims that Clinton has stocked the bench with unreconstructed Warren Court liberals, a recent study found that while Clinton’s nominees have had more liberal voting records than the nominees of Presidents Reagan or Bush, their records most closely approximated those of Republican President Ford’s appointees rather than those of Democratic President Carter’s appointees.4 President George W. Bush’s two terms in office provided him with the opportunity to appoint two new members to the Court after the death of Chief Justice William Rehnquist in September 2005 and the retirement of Justice Sandra Day O’Connor in early 2006. Chief Justice Rehnquist had been a staunch member of the Court’s conservative bloc. His replacement, Chief Justice John Roberts, served as his clerk from 1980–81and fills a similarly conservative role on the Court, often finding allies in Justices Thomas and Scalia. When Roberts was originally nominated by President Bush, it was for the position that Justice O’Connor would vacate the following January, but when Chief Justice Rehnquist died in the interim, President Bush amended his nomination to allow Roberts to fill the more prestigious role of chief justice. After the President’s second choice, Harriet Miers, withdrew her acceptance of the nomination in the face of widespread criticism, President Bush successfully nominated Samuel Alito to the position and Alito was approved by the Senate by a narrow 58–42 victory. Replacing O’Connor, who often provided 4 Stidham, Ronald, et al., “The Voting Behavior of President Clinton’s Judicial Appointees,” 80 Judicature 16 (July–Aug. 1996).

the swing vote in cases that were decided with a 5–4 majority, Justice Alito has become a more consistent member of the conservative bloc than his predecessor. President Obama’s first nominee, Justice Sonia Sotomayor, the first Hispanic justice and the third woman to serve on the Court, began her career on the Supreme Court during the summer of 2009, following the retirement of Justice Souter and a relatively uncontroversial nomination and hearing process. Her record on the federal appellate court for the Fifth Circuit indicates that she has been a moderately liberal judge on most issues. Justice Sotomayor, began her service on the Supreme Court in August 2009 and has thus far generally fulfilled beliefs that she will be a solid member of the Court’s liberal bloc. The following year, President Obama nominated his solicitor general Elena Kagan to succeed the retiring Justice Stevens. Kagan was confirmed by the Senate in early August 2010. Her appointment to the Court marks the first time that three women will serve concurrently on the Court but is not expected to materially alter the balance of power. The general congruence between the view of nominees to the Court and the views of the appointing presidents suggests that presidents weigh carefully the type of persons they appoint. Indeed, judicial policies emanating from a Souter or Thomas are likely to differ substantially from those coming from a Brennan, Marshall, Breyer, or Ginsburg, and these differences can prove crucial in fashioning public policy, including that which relates to civil rights and liberties. Given that judges enjoy life tenure, their selection takes on heightened significance. Should presidents choose unwisely, they have no means of erasing their mistake, short of impeachment. Unwise choices are rare, though, as modern presidents have developed an apparatus for screening potential nominees that ensures that, subject to the constraint of Senate approval, presidents can usually get the judges they want. Indeed, the composition of the Court definitely affects how the Court rules. This fact is vividly illuminated by Justice Marshall in his dissent in Lloyd v. Tanner (1972), in which he protested that the Court was, in his opinion, departing from an earlier ruling (Amalgamated Food Employees v. Logan Valley, 1968). Said Marshall: “The vote in Logan Valley (1968) was 6–3, and that decision is only four years old. But I am aware that the composition of this Law and Courts in Political–Social Context

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Court has radically changed in four years.” And in a 1991 dissent (Payne v. Tennessee) suggesting how changes in judicial personnel were effecting changes in judicial policies, Marshall charged that “power, not reason, is the new currency of this Court’s decision making.” To Marshall, then, changes in Court personnel had brought with them changes in the Court’s position. Overall, who the judges are can cause not only changes in civil liberty policy but policy change in general. Consider the fact that the president appoints other key administrative officials, such as the attorney general, the directors of the CIA and the FBI, and secretaries of the various cabinet departments like Housing and Urban Development, Education, and Health and Human Services. That these officials have important influences on civil liberties and civil rights was clearly illustrated by officials of the Reagan administration, whose policy stances were certainly quite different from the policies that were supported during the Carter administration. Take, for example, the position of Attorney General William French Smith. During Reagan’s first year in office, Smith made it clear that the administration would oppose mandatory busing and racial hiring quotas, since they not only “compromised the principle of color-blindness” but had also proven “counterproductive.”5 Generally, this position was pursued during both terms of the Reagan administration. Similarly, the Reagan administration aggressively promoted actions that (1) strengthened the interests of society as a whole rather than the rights of the accused (e.g., facilitating convictions by working for exceptions to and limitations of the exclusionary rule); (2) attempted to put God “back into the public schools” through prayers, silent meditation, etc.; and (3) allowed the president to put more of “his” people into sensitive positions (e.g., through the Commission on Civil Rights). Actions and attitudes of the Reagan administration, although they vary in degree and nature, illustrate vividly how any president, his key officials, and many other appointments can influence the structure of policies and practices that determine our civil liberties and civil rights. This situation remained true during the Bush and Clinton administrations. It was evidenced by Clinton’s quick overturning (only two days after 5 See “Departure from Busing Pledged in Rights Cases,” New York Times, May 23, 1981, p. 9.

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taking office) of certain rules on abortion, such as the ban on abortion counseling in federally funded clinics, which in effect overcame a Republican-imposed rule that had been legitimated by the Supreme Court in Rust v. Sullivan.

INTEREST GROUPS AND THE DYNAMICS OF CIVIL LIBERTIES When we combine the roles of interest groups and public opinion with the roles of the president, the courts, and other participants and factors in the political process, we begin to get the feel for the dynamics that are involved in the formulation of civil liberties policy. Interest groups have long played a role in shaping such policies. Groups that promote civil liberties, such as the National Association for the Advancement of Colored People (NAACP) and the American Civil Liberties Union (ACLU), readily come to mind, but other groups that hold all sorts of views also attempt to influence civil liberties policy. When stakes are high and deeply held values are involved, as is often the case in civil liberty conflicts, there are frequently intense feelings and prolonged battles along many lines and in various arenas. Groups such as the NAACP, the ACLU, and the Jehovah’s Witnesses have a long history of attempting to protect and vindicate their rights and liberties through the courts. Many of the judicial episodes in which these groups have been participants are well chronicled. They illustrate how those who are otherwise disadvantaged in the political process have resorted to the judicial system to achieve their objectives. Indeed, the resources that are needed to do battle in the courts are markedly different from the resources that are needed to prevail in the elective political institutions. These groups have more access to courts than they do to elective forums, making their chances of achieving favorable policy outcomes greater in the courts than in the elective political institutions. Undoubtedly, a recognition of this fact has led groups such as the NAACP to hone skills and resources carefully in order to negotiate the judicial process. Numbers, popularity, and money are presumably less important in judicial combat than are skilled lawyers, reasoned arguments, and a good case. But even these limited resources are more often than not beyond the capacity of persons who need their rights vindicated. Interest groups have played and continue to play an important role in the formulation of civil liberties

A Framework for Analysis Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

policy. They provide the counsel, the money, and the psychological support that individual litigants often need to withstand the pressures and strains of fighting for unpopular causes. Without the support provided by the NAACP, for example, it is doubtful that advances made in our civil rights laws with respect to racial discrimination and segregation would have come about as readily or as peacefully. Certainly the resources that were needed for these cases were enormous: courageous litigants, skilled lawyers, expert witnesses, dedicated researchers, and an incalculable amount of fortitude and patience. The two principal techniques used by interest groups to lobby the courts are the initiation and sponsorship of test cases and the filing of amici curiae briefs (friends of the court). Test cases provide opportunities for the judiciary to define and articulate particular policies with respect to the protection of civil liberties and civil rights. An amicus brief brings information that allows the courts to overcome the constraints of the adversary system and consider the broader political–social ramifications of the legal questions presented in particular cases. Of course, as exemplified vividly by Solicitor General Charles Fried, an amicus brief may also be used to promote through the courts policy objectives of a particular administration (e.g., the Reagan administration) that the administration has not been able to achieve in other forums. 6 This fact suggests that conservative as well as liberal groups may and do resort to courts to achieve their policy goals. Groups may also seek to achieve policy objectives through the legislature and may use a variety of lobbying techniques to press their respective causes. In short, major policy conflicts in civil liberties, just as in other policy areas, are fought out in many arenas and on many fronts—in elections, Congress, and administrative agencies, as well as the courts. Groups that prevail in one arena might find their efforts frustrated in other arenas. Prevailing interests at a certain point or phase of the policy process must maintain a constant vigilance. For example, those who prevail at the policy declaration stage must be alert to the pitfalls that might be involved at the policy implementation stage. 6 See Fried, Charles. Order & Law: Arguing the Reagan Revolution—A Firsthand Account. New York: Simon & Schuster, 1991.

MORE ON THE COURT: INSIDE THE MARBLE PALACE The integral role and importance of the judiciary in American politics and policymaking compels us to take a closer look at the Supreme Court, at what happens inside the “MarblePalace.”7 We shall consider the justices—who they are, why they are important, and how they are appointed to the Court—as well as the basic workings of the Court as an institution— how it decides what cases to hear, and how it goes about the business of judicial decision making. GETTING ON THE COURT: A NOTE ON JUDICIAL SELECTION

As we have suggested, the composition of the Court greatly influences what comes out of the Court. That concept certainly was the thrust of the fierce, bitter, and divisive confirmation battle that led to the eventual defeat of President Reagan’s nominee Judge Robert Bork to the Supreme Court. Seldom has a single judicial nomination been viewed by both sides as being of such watershed proportions—whether real or perceived. The bitter attacks against Bork by the Senate Democratic majority were met head-on by the staunch defense of Bork by the Senate Republican minority, which enjoyed strong support from the White House. In Appendix I [online]*, Professor Kevin Lyles’s special case study of the Bork nomination illuminates dramatically the nature and dynamics of what might be involved in particular judicial confirmation battles. The Bork confirmation battle provides a useful predicate from which to consider the furor that erupted over President George Bush’s 1991 nomination (and eventual confirmation) of Judge Clarence Thomas to the Supreme Court.8 Organized interest groups, Congress, and the president were all vying to determine who would fill the vacancy left by retiring Justice Thurgood Marshall. These actors believed that by influencing the selection of the new justice, they would also influence future Court decisions. Their reasoning is quite simple: As with other policy-making institutions, the Court’s decisions are, in large part, a product of the views and predilections of its members. 7 Completed in 1932, the current Supreme Court building is made entirely of marble and is constructed in the Corinthian style. 8 For a most extensive discussion of the selection process, see Baum, Lawrence. The Supreme Court, 10th ed. Washington, DC: Congressional Quarterly Press, 2010, pp. 27–64. *http://www.pearsonhighered.com/barker9e

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Indeed, the debates over Supreme Court appointments are special and can generate intense, bitter, and broad controversy. The prize nature of these appointments is buttressed by the role and authority of the Court, the life tenure of Supreme Court justices, and the fact that they are not subject to the constraints imposed by the electoral and political controls on legislators and political appointees. When one of the nine Supreme Court justices retires or dies, the president has the opportunity to nominate a replacement.9 Presidents have successfully appointed 111 people to the Supreme Court, including two African Americans and four women, including one Latina, all the rest have been white men. Before making their nominations, presidents generally consult a number of people,10 including members of their own party in Congress, especially in the Senate, and their White House staff. In addition, other interested groups and persons who have the president’s ear try to influence selection. During the Reagan/George H.W.Bush/Clinton years, however, judicial selection at all levels came under increasing control of the White House.11 This trend continued during the George W. Bush and Obama administrations. In addition, of course, presidents consider a number of other factors before they decide on their judicial appointments. And although the Constitution does not require the president to weigh any particular factors,12 it is clear that party affiliation and ideology stand out as primary considerations. After the president has submitted a nomination to the Senate, the Senate Judiciary Committee takes over, holding hearings and then recommending Senate action in either support or opposition. Next, if the committee approves, the nomination is referred to the Senate floor, where it is debated and a confirmation vote is taken. On rare occasions, however, as in the case of the Bork and Thomas nominations, the 9 The president “shall nominate, and by and with the advice and consent of the Senate, shall appoint . . . judges of the Supreme Court.” U.S. Constitution, Art. II, Sec. 2. 10 For a fascinating look at presidential nominations, see Abraham, Henry J. Justices and Presidents, 3rd ed. New York: Oxford University Press, 1992. 11 For an informative analysis in this regard, see Goldman, Sheldon. “The Bush Imprint on the Judiciary: Carrying on a Tradition,” 74 Judicature 294 (April–May 1991). 12 In fact, the Constitution does not even require that a justice be an attorney, although all nominees in this century have attended accredited law schools.

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Judiciary Committee may decide to send the matter to the entire Senate without the committee’s approval. In general, the length of time spent at each of these two stages—in Senate Judiciary Committee hearings and in Senate open debate—depends on both the controversy surrounding the nomination and the relationship between the president and the Senate. The number of factors and forces attending judicial nominations makes for a dynamic process, especially when controversial nominations are involved.13 In the Thomas nomination, for example, the Senate considered a vast array of factors regarding Thomas, including his legal experience and credentials, his views on hotly contested issues such as affirmative action and abortion, his past actions as the head of the Equal Employment Opportunity Commission, and his alleged sexual harassment of a former employee. In addition, the Senate may consider issues such as the current ideological balance of the Court and the views of the justice who will be replaced, which are not unique to a particular nominee, as it did with respect to Bork and to some extent with Thomas. The Senate, however, does not consider these myriad factors in isolation; rather, individuals and groups come before the Judiciary Committee stating reasons tosupport or oppose particular nominees. During the Thomas hearings, those on both sides of the affirmative action and abortion issues expressed concerns and encouraged supporters to contact senators from their home states. In addition, a number of legal groups such as the American Bar Association and the NAACP’s Legal Defense Fund stated their support or opposition to the nomination. Legal scholars also offered testimony regarding the nominee’s qualifications. Yet of all the outside forces, perhaps none placed as much pressure on the Senate as the media, particularly television. In the end, as with most nominees, Thomas was confirmed, although by the lowest margin in this century, 52 to 48. But the general outcry following the raucous hearings led to repeated and open avowals (from inside and outside the Senate) to do something about the “process.” Predictably, however, such interest has since died down, and given the infrequency of Supreme Court appointments, the relative inertia of the political system, and the 13 For an extensive consideration of the role of the Senate in Supreme Court nominations, see Grossman, Joel B., and Wasby, Stephen L. “The Senate and Supreme Court Nominations: Some Reflections,” Duke Law Journal 563 (1972).

A Framework for Analysis Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

rapidly changing political agenda, it is unlikely that we will see any significant changes in the process. The most recent appointments to the Supreme Court include justices Sonia Sotomayor and Elena Kagan, both appointed by President Obama. Sotomayor was confirmed by the Senate in August 2009 by a vote of 68–31. Elena Kagan was confirmed by the Senate in August 2010 by a vote of 63–37 and is the Court’s 112th justice. THE SUPREME COURT IN OPERATION

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The Court, not unlike other governmental institutions in Washington, has a fairly intricate system to handle the day-to-day activities (i.e., the many cases) for which it is responsible. Since 1917, the Court has been required by law to begin its regular annual session on the first Monday in October. The regular session, now known as the October term, lasts approximately nine months. The chief justice is responsible for adjourning the Court and usually does so in late June or early July, depending on the caseload. Yet throughout the year parties ask the Court to resolve their disputes. Disputes that are in the Court’s original jurisdiction may be heard by the Court in the first instance (in other words, without having passed through any other courts first); 15 however, very few cases are filed under this jurisdiction. The bulk of the cases reaching the Court arise under its appellate jurisdiction: in these cases, the Court reviews the decisions of a lower court. Under the Judiciary Act of 1925, the Court has almost complete discretion to decide whether to hear these cases. For such a case to be reviewed, one party must ask the Court to review the case (petitioning the Court for a writ of certiorari) and at least four justices must agree to do so (granting certiorari). The Court is asked to review thousands of such cases annually. Usually, the Court agrees to give full consideration to about 100 of these cases. “Deciding to decide,” as H.W. Perry aptly describes it, therefore appears to be a most crucial stage in judicial policymaking. The dynamics of agenda formation in policy institutions such as the 14 A more detailed explanation of the Court’s operations maybe found in Witt, Elder. Congressional Quarterly’s Guide to the U.S. Supreme Court, 2nd ed. Washington, DC: CQ Press, 1990. 15 U.S. Constitution, Art. III, Sec. 2.

Court are of central concern to scholars and many others. Perry states: The need to examine the agenda-setting process is particularly relevant to the United States Supreme Court, an institution that has virtually complete discretion in setting its own agenda. When the Court hands down a decision, the impact often reaches far beyond the litigants and those similarly situated. A decision may set the agenda, or a large part of it, for political, social, and legal institutions for years to come. A seminal opinion often opens the floodgates for future litigation, legislation, and social reform. Even less than seminal decisions can be important and have widespread impact. But before the Court can render a decision, it must decide to decide. We know little about how the Court does this.16

Perry describes succinctly the basic procedure used by the Court to decide what cases to hear: “The chief justice begins discussion of the first case on the discuss list. Each justice, in order of seniority, gives his [or her] comments on the case and usually announces his [or her] vote at that time. If a case receives four votes—the ‘rule of four’—it is granted certiorari. Though formal votes are rare, if one is required, it, too, is taken in order of seniority.”17 To aid them with the heavy workload, particularly in choosing which cases to hear, each justice is assisted by several law clerks, usually four. Individual justices use their own procedures for selecting their clerks. Traditionally, most clerks are recent honor graduates of the nation’s most prestigious law schools, such as Stanford, Harvard, and Yale. Although clerks usually serve only one-year terms, their role and influence on “their justice” and judicial decision making are subject to many and varied interpretations. Perry notes that clerks are not unlike the staff of congressional offices: No staff member “controls” or “manipulates” a senator, but to deny the importance, or ignore the role staff members play in the legislative process, would be foolish. Likewise, the clerks. They cannot control their justice, and the process has checks and balances, but they play a crucial role. One clerk described the clerks’ influence this way: “[On really important cases] what the clerks have to say is really less important. Justice—had his views. . . . I 16 Perry, H.W., Jr. Deciding to Decide: Agenda Setting in the U.S. Supreme Court. Cambridge: Harvard University Press, 1991, p. 6. 17 Ibid., pp. 43–44 (footnotes omitted).

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

would tell him my constitutional views, but that is kind of preposterous. I mean, if he has been doing his job and has been on the Court that long, he damn well better have his views about what the Constitution means. . . . Now the law clerks have more influence, I would say, on the areas of law that are less socially important. Given their law review experience and usually having worked on the Court of Appeals, they may be up on some [aspect] of this law and be able to have more of an impact. . . . Every clerk thought he was going to get there and would help his justice change America. . . . But we only had the opportunity to persuade him on an opinion here or there, because he had his own views on the major stuff.”18

Overall, and regardless of their role and influence, it is clear that the justices rely a great deal on their clerks when they decide what cases to hear. Once the Court grants certiorari, the clerk of the Court schedules the case for oral argument, usually two to three months later. During the month prior to oral argument, the parties to the case and other interested parties (amici curiae) may seek and receive permission to file briefs with the Court. Such briefs broaden the base of information that the justices may use to make their decisions. In addition, during this time the justices and their clerks do further research on the issues involved. The amount of time and attention that a justice gives to a certain case is a function of both his or her interest in the case and his or her approach to decision making. After oral argument in a given case, the Court typically makes its decision in conference. Conferences are open to justices only and are held in strict secrecy. The exact procedures in the conference are not well known; however, we do know that each justice has an opportunity to speak without being interrupted and that at the end of the discussion a voice vote is taken, beginning with the senior justice and working down to the most junior justice.19 Once the justices have voted, one is assigned to write the majority opinion, or the “opinion of the court,” for the case. The chief justice, if he is in the majority, or the senior justice in the majority, assigns this responsibility. In addition, any justice may write 18 Ibid., 19

p. 70. Scholarly discussions of the voting procedure have been inconsistent, but conventional wisdom always held that voting began with the most junior justice. Perry contends, however, on the basis of his own interviews with justices and those of others, that this is simply not the case. For a discussion, refer to ibid., pp. 44–45.

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a separate opinion concurring in the judgment (agreeing with the outcome but not necessarily with the reasoning or some aspects of the majority opinion), or file a dissenting opinion. After the opinion drafts are written, they are circulated for review by all members; the justices then discuss with one another via their clerks, over the telephone, and in memos. It is possible that after opinions have circulated, particular justices will change their votes and a majority opinion will become a dissent. To prevent such mutinies, however, the majority opinion writer will attempt to make whatever changes are needed to hold on to the majority. In contrast, justices who are writing concurrences or dissents are less concerned about winning the support of other justices. Once all has been said and done, the final opinions are printed and publicly announced from the bench by their respective authors. Opinions are announced as they come down throughout the term, but typically a large number are announced in the final months of the term. As these procedures indicate, the justices are in constant contact and discussion with one another. In fact, not only do they spend a great deal of time together, but they spend very little time with anyone else. Many justices have described their lives as cloistered—most of their time is spent in the Supreme Court building, surrounded by their clerks, administrative staffs, and the other justices. Not surprisingly, then, some scholarly research suggests that the dynamics of the Court—how the members interact and relate to one another—has a significant impact on Court decisions. Consider, for example, the likely change in the Court’s dynamics when the first woman, Sandra Day O’Connor, was named to the bench. Intuitively, we would expect the Court’s dynamics and discussion to change (at least to some extent) when a newly appointed member represents a previously unrepresented group in society (such as it did after Thurgood Marshall was appointed by Lyndon Johnson). And, indeed, we have some reason to believe that the Court’s dynamics did change after O’Connor’s appointment. For example, the success rate of plaintiffs fighting for women’s rights in the 1980s was even higher than it had been in the 1970s, despite a clear conservative shift in the ideology of the Court. While we can only hypothesize that the increased success rate was due in part to the presence of Justice O’Connor, it clearly is one possible explanation,

A Framework for Analysis Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

especially given the frequency with which she wrote opinions.20 THE CHIEF JUSTICE

No discussion of the Court would be complete without a consideration of the role of the chief justice, who gains the position by presidential appointment. As with many aspects of the Court, the role and responsibilities of the chief justice are somewhat hazy. The only constitutional reference to the office is that “When the President of the United States is tried, the chief justice shall preside.”21 Indeed, originally, few people expected that the chief justice position would become a significant one, and the first three chief justices are hardly remembered today. But this changed in 1801 when John Marshall was named to the chief justiceship. His command of the office would indelibly alter its image. It was his decision in the 1803 ruling of Marbury v. Madison that is commonly understood to have begun the practice of judicial review in the United States, allowing the Supreme Court to overturn acts of Congress and the president, fundamentally shaping the nature of interactions among the three branches of government. In addition, in McCulloch v. Maryland (1819), Chief Justice Marshall established the impliedpowers doctrine, holding that Congress has powers that are implied by Article I of the Constitution, in addition to those which are explicitly listed. This holding vastly expanded the power of the federal government over state governments. Interestingly, chief justices have few tangible powers. The chief justice develops the agenda of cases that he considers worthy of discussion (the “discuss list”), although all the justices are free to add cases to it, and he leads and presides over private sessions (conferences) of the Court. Hence, the chief justice might influence the flow of the proceedings as well as the decisions in particular cases. In addition, regardless of when he is appointed, the chief justice is considered to be the most senior member of the Court and thus has the role of assigning opinions for Court majorities of which he is a part. The chief justice also presides over the Court’s public sessions and serves as chair of the Judicial Conference of the United States (a body composed of lower federal court judges that makes administrative decisions for the federal judicial system). The 20 See George, Tracey, and Epstein, Lee. “Women’s Rights Litigation in the 1980s: More of the Same?” 74 Judicature 314 (1991). 21 U.S. Constitution, Art. I, Sec. 3.

chief justice administers the oath of office to the president and the Court is labeled according to his name— for example, the Roberts Court. In general, he is the most visible of the justices. Overall, however, the authority of a chief justice is largely a product of his person. As John P. Frank explained, a chief justice: must get his real eminence not from the office but from the qualities he brings to it. He must possess the mysterious quality of leadership. In this respect the outstanding Chief was John Marshall, who for 35 years presided over a Court largely populated by justices of an opposing political party. . . . Nonetheless, Marshall dominated his Court as has no other chief justice.22

After this brief overview of life in the “Marble Palace,” let us turn our attention to several other contextual factors which shape the overall environment that influences both the Court and the nature and scope of our civil liberties.

THE RULES OF THE GAME AND AMERICAN POLITICAL VALUES Civil liberty policy actors, including all those previously discussed, must play the civil liberty policy game in keeping with certain rules and values. However, the rules of the game concerning civil liberties conflict suggest that it is difficult to resolve or settle such matters. There is constant conflict over these rules, that is, over very basic civil liberties guarantees such as the ones that are included in the Bill of Rights. The conflict occurs not only among interested publics but also within the judiciary itself, including the Supreme Court. Most of us agree with and extol the time-honored values that underlie these basic guarantees. For example, we believe in individualism: we extol the importance and intrinsic worth of each and every person. Individuals have certain rights with which no state or government should interfere. We also believe in the necessity and value of freedom. Americans tend to agree that individuals should have maximum freedom to determine their own interests as they see fit without external interference, especially from government. This maxim also applies in the realm of business and economics. Individual liberties in the economic realm (i.e., economic rights) 22 Frank, John P. MarblePalace: The Supreme Court in American Life. New York: Alfred A. Knopf, 1958, pp. 78–79.

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

are believed to be important to democracy and to the maintenance of civil liberties.23 Americans strongly believe in the sanctity of private property and more generally in the private enterprise market system. However, the result has been that a few individuals exercise important controls and influence over the operation, development, and management of important public functions24 (e.g., employment, housing) that directly affect the quality of life or lack thereof for all segments of society. The intimate relationship and importance of such functions to public needs allow these private business elites to wield great and disproportionate weight in our politics and government.25 That we have been able to live with such obvious inequities between business elites and the masses has resulted primarily from our strong support of individualism and freedom in democratic government. Simultaneously, however, we are strongly attached to the concept of equality, one of the very important rules of the game in democratic government. We believe that every person is equal under the law and all votes should count the same. The government should not treat individuals differently because of their stations in life or the circumstances of their births. All people should be equal under the law. (However, some people, the wealthy for example, do exercise or are accorded more influence in our polity than others.26) In addition, the theory of 23 Lindblom, Charles, and Woodhouse, Edward J. The Policy Making Process, 3rd ed. Englewood Cliffs, NJ: Prentice Hall, 1993, p. 9. For an interesting discussion of the relationship between economic rights and civil liberties, see McCloskey, Robert G. “Economic Due Process and The Supreme Court: An Exhumation and Reburial,” Supreme Court Review 34 (1962). For a classical liberal argument drawing the link between free markets and protection of civil liberties, see Friedman, Milton. Capitalism and Freedom. Chicago: University of Chicago Press, 1962. 24 Lindblom and Woodhouse, op. cit., pp. 90–103. 25 Ibid. See generally Chapter 9, “The Privileged Position of Business in Policy Making,” p. 71, especially pp. 72–78. 26 Ibid., Chapter 11, “Political Inequality,” especially pp. 100–102. In addition, the Supreme Court’s decision in Buckley v. Valeo (424 U.S. 1, 1976) was judicial support for the disproportionate influence of the wealthy in politics, or at least support for maintaining things as they are. In Buckley, the Court struck down as violative of freedom of political expression and association protected by the First Amendment a congressional attempt through the Federal Campaign Election Act Amendments of 1974 to limit the undue influence of money in politics by placing ceilings on campaign expenditures, on independent expenditures by individuals and groups in support of a candidate, and on the amount that candidates could spend on their campaigns from their own funds. (For additional discussion of Buckley, see Chapter 3 of this volume.)

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equality postulates that each person should enjoy an equal chance to succeed in life and to develop to his or her full potential. This idea of “equality of opportunity” is a concept that continues to be hotly debated with regard to important civil rights issues, such as school desegregation and affirmative action in university and professional school admissions policies. One aspect of the debate focuses on the propriety, necessity, and extent of government regulations and involvement in certain private sector public functions, such as requiring affirmative action in employment, in order to make “equality” a more meaningful concept. When and if government does become involved in such matters, does it not encroach upon other important values, such as individualism and freedom? On the other hand, does not ritualistic attachment to the notion of “equality of opportunity,” without serious attempts to monitor its instrumental worth or to assess the relative well-being of all Americans, allow us to ignore or obscure certain inequities that might not be due to lack of individual initiative? Might this not seriously impair the basic idea of equality? Considerations such as these bring to the surface another thorny dimension of the contemporary debate over equality, that is, whether government has an obligation to provide substantive benefits (e.g., welfare, decent and sanitary housing) to assure a minimum level of economic subsistence for all persons. Put another way, is it necessary under the equal protection clause to redress certain economic inequities in order to make equality a more meaningful concept to those who live in poverty? Given the interests and stakes that are involved, problems such as these are not likely to disappear. However, despite the intensity of the debate, there remains a broad consensus, at least in theory, that equality, individualism, and freedom are important to the maintenance of civil liberties and democratic government. But how these values are put into practice is another matter. According to political scientists Lucius Barker and Jesse McCorry, there remains: intense controversy . . . over the definition, scope, and application of these values. For one thing, in particular circumstances these values may and do collide and conflict with each other. Individualism, for example, may conflict with what many might think is necessary to safeguard the “public interest” or to promote the “general welfare.” Then again, suppose these values are

A Framework for Analysis Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

denied by government itself (and others) to particular individuals. How and to what extent should government intervene to rectify the damage that has been done? And might such intervention itself be viewed as an encroachment upon these very values, e.g., individual freedom? These questions continue to pose a dilemma for American politics and politicians.27

That these questions do pose a dilemma is borne out by the perennial conflicts that occur in various arenas, such as the Supreme Court and Congress. Data from public opinion polls and surveys also continue to illuminate the differences that many of us hold between theory and practice. Other values or concepts also are interwoven in the political–social context of civil liberties policy. Consider, for example, our belief in majority rule and minority rights, two ideas that seem contradictory. Americans feel strongly that decisions of the majority should prevail over those of any minority. The efficacy of majority rule as a way of making decisions depends as much on the acquiescence of the minority as it does on the sheer weight of numbers of the majority. Although Americans believe in both majority rule and minority rights, we have not been able to resolve the built-in tension between the two values. We must be concerned not only with the process by which decisions are made but with the content or substance of the decisions as well. The legitimacy of majority rule is very much related to its respect for minority rights. And by holding to minority rights, we do put some limits on majority rule. Another foundational tenet of our democracy is a belief in doing things “according to law”; we consistently extol the view that “ours is a government of laws, not of men.” We have a strong attachment to legalism and to the idea of written law. The chief symbol of this attachment is the written Constitution, the fundamental law. Indeed, the importance and necessity of legalism penetrate all our governmental institutions, taking the form of statutes, executive orders, and administrative rules 27 Barker, Lucius J., and McCorry, Jesse J. Black Americans and the Political System, 2nd ed. Englewood Cliffs, NJ: Prentice Hall, 1980, p. 69. For further discussion of these matters, see Barker, Lucius J., Jones, Mack H., and Tate, Katherine. African Americans and the American Political System, 4th ed. Upper Saddle River, NJ: Prentice Hall, 1999, p. 58ff.

and regulations. The idea of written legal forms extends even to our private life and organizations. Many social groups, for example, are not content unless they have written bylaws. This preoccupation with law and legalism gives importance to those who are trained in the law. It allows lawyers to exercise a role in politics and government that is far beyond their sheer numbers. It also illuminates the role and importance of courts in the formulation of public policy, including civil liberties policy. Conflict but compromise is another concept that shapes the character of our government and public policy. Americans have come to expect conflict, but they have also come to expect that conflicts can be resolved through restraint and reason. This means that contending interests must give a little and compromise their differences. Willingness to compromise ranks as one of the most important characteristics of American politics. This strong belief in managing conflict through compromise undoubtedly influences policy outcomes, including outcomes that result from civil liberties conflicts. It also leads to the related assumptions that (1) all problems can be settled and (2) the system provides mechanisms for such settlements. Moreover, most Americans believe that such conflicts can be resolved peacefully and without violence. It does not matter that violence has occurred or was even necessary in the past; the fact is that today violence and disruptive actions are no longer considered necessary to resolve differences. There is a strong belief that such differences should be resolved peacefully. “Conflict but compromise” remains the order of the day. Various structural features of the political system foster both conflict and compromise, such as federalism, separation of powers, checks and balances, bicameralism, overlapping terms of office, and elections from various constituencies. These arrangements reflect the diversity of interests in American politics, and they also tend to institutionalize and preserve prevailing rather than aspiring interests. Hence, they promote incrementalism and marginal change rather than decisive and fundamental change. Although these features have their virtues, they also have biases. The discussion of federalism that follows in chapter 2 reflects how these structural features might affect the formulation of civil liberties policy.

Law and Courts in Political–Social Context

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SELECTED REFERENCES Bailey, Michael A., and Maltzman, Forrest. “Does Legal Doctrine Matter? Unpacking Policy Preferences on the U.S. Supreme Court,” American Political Science Review, Vol. 102 (2008), 369–384. Baird, Vanessa A. “The Effect of Politically Salient Decisions on the U.S. Supreme Court’s Agenda,” Journal of Politics, Vol. 66 (2004), 755–772. Baum, Lawrence. Judges and their Audiences: A Perspective on Judicial Behavior. Princeton, NJ: PrincetonUniversity Press. 2006. Baum, Lawrence. The Supreme Court. 10 th edition, Washington, DC: CQ Press. 2010. Caldeira, Gregory A., Hojnacki, Marie, and Wright, John R. “The Lobby Activities of Organized Interests in Federal Judicial Nominations,” Journal of Politics, Vol. 62 (2000), 51–69. Epstein, Lee, and Segal, Jeffrey A. Adviceand Consent: The Politics of Judicial Appointments. New York: OxfordUniversity Press. 2005. Gibson, James L., and Caldeira, Gregory A. “Knowing the Supreme Court? A Reconsideration of Public Ignorance of the High Court,” Journal of Politics, Vol. 71 (2009), 429–441. Hettinger, Virginia A., and Zorn, Christopher. “Explaining the Incidence and Timing of Congressional Responses to the U.S. Supreme Court,” Legislative Studies Quarterly, Vol. 30, No. 1 (2005), 5–28.

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Keck, Thomas M. “Party, Policy or Duty? Why Does the Supreme Court Invalidate Federal Statutes?” American Political Science Review, Vol. 101, No. 2 (2007), 321–338. Lindquist, Stefani A., and Spill Solberg, Rorie. “Judicial Review by the Burger and Rehnquist Courts,” Political Research Quarterly, Vol. 60, No. 1 (2007), 71–90. Martin, Andrew D., Quinn, Kevin M., and Epstein, Lee. “The Median Justice on the United States Supreme Court,” North Carolina Law Review, Vol. 83 (2004–2005), 1275–1322. Neubauer, David W., and Meinhold, Stephen. Judicial Process: Law, Courts, and Politics in the United States, 5th ed. Boston: Wadsworth Publishing. 2009. Rosenberg, Gerald N. The Hollow Hope: Can Courts Bring About Social Change? Chicago: University of Chicago Press. 2008. Unah, Isaac, and Handcock, Ange-Marie. “U.S. Supreme Court Decision Making, Case Salience, and the Attitudinal Model,” Law and Policy, Vol. 28, No. 3 (2006), 295–320. Whittington, Keith E. Political Foundations of Judicial Supremacy. Princeton, NJ: PrincetonUniversity Press. 2007.

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CHAPTER 2

CIVIL LIBERTIES IN THE CONTEXT OF FEDERALISM

O

UR CIVIL LIBERTIES AND CIVIL RIGHTS ARE INTIMATELY

connected with the nature and dynamics of the federal system. The impact of federalism on the scope and nature of civil liberties and rights is enormous. Some states have shown the way in the protection and enforcement of civil liberties, with constitutions and laws that obviously reflect a healthy respect and regard for such liberties. For example, notwithstanding the 1973 Supreme Court decision in San Antonio Independent School District v. Rodriguez, in which the Court excluded the effects of variations in wealth (producing, for example, public schools of vastly different quality) from being prohibited by the Fourteenth Amendment, some state supreme courts now require “equal financing” of public schools based on provisions of their own state constitutions.1 In some cases, as Justice William Brennan suggested, increasingly restrictive policies of the Supreme Court (and of other federal institutions and agencies) might lead individuals and groups to look to state courts and agencies for relief.2 Brennan cited an example in which the California Supreme Court held “that statements taken from suspects before first giving them Miranda warning are inadmissible in California courts to impeach an accused who testi-

fies in his own defense.”3 Brennan went on to quote the California Supreme Court as follows: We . . . declare4 that [the decision to the contrary of the United States Supreme Court] is not persuasive authority in any state prosecution in California. . . . We pause . . . to reaffirm the independent nature of the California Constitution and our responsibility to separately define and protect the right of California citizens despite conflicting decisions of the United States Supreme Court interpreting the federal Constitution.5

Brennan cited other examples “where state courts have independently considered the merits of constitutional arguments and declined to follow opinions of the United States Supreme Court they find unconvincing, even where the state and federal constitutions are similarly or identically phrased.”6 “As the Supreme Court of Hawaii has observed,” continued Brennan, “while this results in a divergence of meaning between words which are the same in both federal and state constitutions, the system of federalism envisaged by the U.S. Constitution tolerates such divergence where the result is greater protection of individual rights under state law than under federal law.”7 3 Ibid., 4

1 Serrano v. Priest II, 557 P.2d 929 (1977). See “State Court Intervention in School Finance Reform,” 28 Cleveland State Law Review 325. 2 Brennan, William J., Jr. “State Constitutions and the Protection of Individual Rights,” 90 Harvard Law Review 489 (1977).

pp. 498–499. Ibid., p. 498 (reference is to Harris v. New York, 401 U.S. 222, 1971). 5 Ibid., p. 499 (reference is to People v. Disrow, 16 Cal. 3d 101, 113, 114–115; 545 P.2d, 272, 280; 127 Cal. Reptr. 360, 368, 1970). 6 Ibid., p. 500 (see note 76). 7 Ibid., p. 500 (reference is to State v. Kaluna, 55 Hawaii 361, 369 n.6; 320 P.2d, 51, 58 n.6, 1974).

17 Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Some of the most dramatic confrontations between state and national authority have occurred in disputes over problems such as these. It is hard to imagine a more dramatic confrontation than the one that occurred in early 1981 between a Louisiana state judge and a federal judge who issued conflicting orders about the school that three white girls should attend.8 The state judge not only issued an order for the girls to attend an all-white private neighborhood school (Buckeye High), he also personally escorted the girls there. However, the state judge’s order countered an earlier parishwide (county) desegregation order of a federal judge. This previous order had assigned the three girls to a predominantly black school to bring about more racial balance in public schools. The confrontation escalated when the federal judge, upon motion of the federal government, ordered the state judge not only to cease and desist but also to explain to the federal court why he should not be held in contempt. The students and school officials were caught in the middle of a tug-of-war between federal and state courts, which ultimately was won by the federal court. The story vividly illustrates the potential for conflict between federal and state authority. In another example, disputes surrounding samesex marriage have provoked conflict between state and national authority. In 1993, the Hawaii Supreme Court ruled that denying same-sex couples the right to marry violated the state constitution’s prohibition against gender discrimination.9 What gave this case nationwide significance, aside from its groundbreaking extension of a right to gay men and lesbians that heterosexuals have long taken for granted, lies in Article IV of the U.S. Constitution. This article states that “Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial proceedings of every other State.” Organizations favoring gay rights saw the Hawaii ruling, coupled with Article IV, as an opportunity to launch a nationwide movement to legalize same-sex marriage. The strategy centered around a plan whereby same-sex couples from other states would get married in Hawaii and then demand that their home states recognize their marriages. The resulting litigation

8 See, 9

e.g., Time, January 19, 1981, p. 49. Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44 (1993). Similar challenges had been raised in Kentucky, Minnesota, Pennsylvania, and Washington, but none had succeeded.

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would rely on the full faith and credit clause to invalidate state restrictions on same-sex marriage. The backlash against the Hawaii court’s ruling proceeded along two fronts. In 1996, Congress passed the Defense of Marriage Act (DOMA), which legally defined marriage for the federal government as a union between one man and one woman. Furthermore, it absolved states from any requirement to treat same-sex unions as marriages in the full legal sense, although it left individual states free to legalize same-sex marriage if they chose to do so through legislative or judicial processes. Secondly, in Hawaii, the legislature approved a referendum on which Hawaiians voted in 1998, which amended the state constitution to grant the legislature the authority to offer marriage only to oppositesex couples. As of 2009, six states (Massachusetts, Connecticut, Vermont, Maine, New Hampshire, and Iowa) recognize same-sex marriages. California briefly recognized same-sex marriages following a state supreme court ruling in May of 2008, but this right was rescinded by Proposition 8, passed by voters in November 2008. Rhode Island, New York, and the District of Columbia recognize same-sex marriages that were performed in other states but do not permit them within their borders. In contrast, forty-one states have laws or constitutional amendments mirroring DOMA that define marriage as a legal agreement between one man and one woman. In several of the states that permit same-sex marriage, the right was won through the state judicial system. For the most part, however, the issue of same-sex marriage remains a legislative issue because the U.S. Supreme Court has not ruled on a case challenging DOMA. The constitutional grounds for challenging this law would likely come from the full faith and credit clause (Article IV, Section 1) of the Constitution, which requires every state to honor the “public acts, records, and judicial proceedings of every other state.” Many constitutional scholars believe that this clause ought to invalidate the provision of DOMA that absolves states from honoring same-sex marriages performed in other states. Other possible avenues to either defend or attack DOMA include (1) federalism (the Tenth and Eleventh Amendments of the Constitution reserve for states all powers not specifically granted to the federal government or the people), (2) the equal protection clause of the Fourteenth Amendment, which has been used to secure equal rights for racial, ethnic,

A Framework for Analysis Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

religious, and gender minorities, and (3) the right of privacy, recognized by the Court since Griswold v. Connecticut in 1965 to protect sexual relationships from interference by the government. A basic question underlying many of these disputes has been the extent to which states are obliged to follow the commands of the Constitution as interpreted by the U.S. Supreme Court, not only in highly visible areas such as school desegregation but in other areas as well but in other areas as well (for example, the Second Amendment's right to bear arms in McDonald v City of Chicago, 2010). In the more general controversy over the application of the Bill of Rights to the states, as we discuss later, there is disagreement over whether states are restricted at all by the terms of the Bill of Rights. Closely related to and interwoven with these issues is the continuing controversy over the nature and scope of the restrictions imposed on the states by the Civil War amendments (the Thirteenth, Fourteenth, and Fifteenth Amendments, so named because they were all passed in the wake of the Civil War), particularly the Fourteenth Amendment. Many states, for example, notwithstanding the strictures of the First Amendment, give financial aid to parochial schools or allow prayers or other religious activities to take place in public schools. How, to what extent, and under what circumstances may states limit certain types of speech and expression and still remain consistent with the First Amendment? How, if at all, and in what ways may states draw distinctions among their inhabitants on the basis of classifications such as race, sex, age, wealth, and poverty in the formulation and enforcement of their policies and practices? To what extent are states obliged to follow procedural provisions of the Bill of Rights when they deal with persons accused of a crime? In one form or another, these questions illustrate some of the most salient civil liberties and civil rights problems that we face today. They go to the heart of the impact of federalism on our civil rights and liberties. This impact, of course, is determined by a number of institutions and officials, but since many of these questions relate to the constitutional legal boundaries of state and national authority, it is obvious that the judiciary—especially the U.S. Supreme Court—has had and continues to have a major role in determining how federalism affects our rights and liberties. We might gain a better understanding of this whole matter by surveying how the Supreme Court has dealt with such problems.

THE SUPREME COURT, THE BILL OF RIGHTS, AND THE FOURTEENTH AMENDMENT The framers of the Bill of Rights considered federal power to be the major threat to individual liberties. The injunction of the First Amendment, “Congress shall make no law . . .,” is indicative of that concern. But others viewed the Bill of Rights as restricting state power as well. This view was urged in Barron v. Baltimore (Pet. 243, 1833), but the Supreme Court rejected such a construction. Speaking for a unanimous Court, Chief Justice John Marshall: The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. . . . The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms are . . . necessarily applicable to the government created by the instrument. They are limitations of power granted in the instrument itself: not of distinct governments framed by different persons and for different purposes.

He concluded that, if his propositions were correct, the Fifth Amendment (and, by extension, the Bill of Rights) must be understood as restraining the power of the national government and not that of the states. Then came the Civil War and the enactment of the Civil War amendments. Ratified by Congress in 1866 and adopted by the states in 1868, the Fourteenth Amendment has had perhaps the most far-reaching impact of these amendments, or indeed of any amendment outside the Bill of Rights, in the development of our rights and liberties. From the very beginning, the Fourteenth Amendment has prompted fierce debate over its meaning and sparked considerable litigation, particularly over the Court’s evolving interpretation of its rights and protections. What are its provisions? Although the Fourteenth Amendment defines citizenship, most relevant for our purposes are the three clauses that provide protection against the states: privileges and immunities, due process, and equal protection. The amendment also grants Congress the power to enforce these protections through legislation. It is these constitutional clauses, particularly due process and equal protection, that have provided the basis for the modern expansion of civil rights and civil liberties. Let us consider this matter a bit further. The Fourteenth Amendment forbids the states to abridge by law any privilege or immunity of U.S. Civil Liberties in the Context of Federalism

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citizens. But what are these “privileges and immunities”? Representative John A. Bingham, an Ohio Republican who authored the amendment, believed that “the privileges and immunities of citizens of the United States . . . are chiefly defined in the first eight amendments to the Constitution. . . . These eight articles . . . were never limitations upon the power of the States, until made so by the Fourteenth Amendment.”10 But any semblance of this expansive interpretation of the privileges and immunities clause was clearly rejected by the Supreme Court in the wellknown Slaughterhouse Cases (83 U.S. 36, 1873). By a five-to-four majority, the Court’s narrow construction of the clause effectively gutted its protections. (The Court also construed the due process and equal protection clauses narrowly.) The Court drew a sharp distinction between state citizenship and national citizenship, holding that the mass of basic civil and economic rights—including the right to pursue one’s business opportunities—accrue from the privileges and immunities of state citizenship, not national citizenship. The effect of the Court’s decisions, as the four dissenters pointed out, meant that the privileges and immunities clause provided no more protection than that which existed prior to the adoption of the amendment. Indeed, the Court’s decision effectively rendered the clause meaningless, providing no independent rights or protections to individuals. Although a few attempts have been made to revive the privileges and immunities clause, most notably by Justice Hugo Black, the Court’s original interpretation in the Slaughterhouse Cases continues to prove an almost insurmountable barrier. Whether and how this provision will become an important pillar in the protection of civil rights and civil liberties remains to be seen. Unlike the privileges and immunities clause, the due process and equal protection clauses have been far from dormant. Their evolution and development have been dynamic, even stormy and controversial, and they remain so today. The due process clause prevents states from depriving any person of life, liberty, or property without “due process” of law. While this language is also used in the Fifth Amendment, it has taken on a much more expansive meaning in the Fourteenth Amendment. Ironically, however, it was primarily used at first 10 Quoted in Brant, Irving. The Bill of Rights. Indianapolis: Bobbs-Merrill Co. (1965), p. 333.

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not to protect individual rights but to protect businesses from economic regulation. Under the guise of “substantive due process,” the Court struck down Progressive Era legislation, such as minimum wage and maximum hour laws, on the grounds that it deprived individuals of their liberty to contract without due process of law. “Due process” was interpreted to be not merely a procedural protection but a requirement of substantive fairness. This doctrine dominated Court decisions in the early part of the twentieth century but began to disintegrate in the 1930s and all but disappeared in 1937, when the Court did an about-face and began to uphold President Franklin D. Roosevelt’s New Deal legislation (see West Coast Hotel v. Parrish, 1937). The year 1937 was a significant turning point for the due process clause, not only because of decisions such as West Coast Hotel, but also because the Court now began to focus on the protection of civil rights and civil liberties as one of its major functions. Indeed, the Court began to accelerate its march toward applying certain provisions of the Bill of Rights to states through the use of the due process clause of the Fourteenth Amendment. Let us backtrack and describe in somewhat more detail how this march toward incorporation came about. As we have discussed, from the very outset some people, including the author of the Fourteenth Amendment, believed that the amendment incorporated the first eight amendments of the Bill of Rights as limitations on powers of the states. But for some time the Court continued to hold to its earlier decision (Barron v. Baltimore, 1833), which held that the Bill of Rights did not protect against state action, only federal. This principle was reaffirmed in a number of cases prior to the Civil War and continued to guide the Court in decisions following the adoption of the Fourteenth Amendment in 1868. Indeed, the Court heard several cases in which counsel argued that one of the Fourteenth Amendment’s objectives was the incorporation of the Bill of Rights. But the Court steadfastly refused to interpret the Fourteenth Amendment in this way. Then, in 1925, the Court issued a historic statement in Gitlow v. New York (268 U.S. 652, 1925): For present purposes we may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgement by Congress are among the fundamental personal rights and liberties protected by the due process

A Framework for Analysis Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

clause of the Fourteenth Amendment from impairment by the States.

As such, Gitlow may be viewed as a case of major, almost revolutionary, significance in favor of those who saw the provisions of the Bill of Rights as effective limitations on the states through the Fourteenth Amendment. Two years after Gitlow, for example, the Court reversed a conviction under a Kansas criminal syndicalism act, saying that the application of the act imposed “an arbitrary and unreasonable exercise of the police power of the State . . . in violation of the due process clause of the Fourteenth Amendment” (Fiske v. Kansas, 274 U.S. 380, 1927). Four years later, in Near v. Minnesota (283 U.S. 679, 1931), the Court struck down a Minnesota statute as an abridgment of freedom of the press. Chief Justice Charles Evans Hughes asserted in the opinion for the Court that “it is no longer open to doubt that the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action.” The Court continued to erode the effect of the Barron rule, at least as far as First Amendment freedoms were concerned, when, in De Jonge v. Oregon (299 U.S. 353, 1937), it held peaceable assembly a right cognate to those of free speech and free press, and hence protected against state impairment by the due process clause of the Fourteenth Amendment. But any notion that this trend of decisions would lead to a reversal of Barron v. Baltimore and to the total incorporation of the first eight amendments into the Fourteenth Amendment was dispelled by Justice Benjamin Cardozo in a decision handed down just 11 months after De Jonge. In Palko v. Connecticut (302 U.S. 319, 1937), the Court refused to apply the double jeopardy provision of the Fifth Amendment to a state criminal prosecution. Justice Cardozo argued that only those guarantees of the first eight amendments that are “implicit in the concept of ordered liberty” are to be construed as valid restrictions on state power through the Fourteenth Amendment. In effect, he enunciated a doctrine of “selective incorporation” of specific Bill of Rights guarantees into the Fourteenth Amendment based on the test of their essentiality to his concept of “ordered liberty.” In 1940 the “selective incorporation” process resulted in the Court’s holding in Cantwell v. Connecticut (310 U.S. 296, 1940) that the free exercise of religion clause of the First Amendment is

applicable to the states. In this case, the Court struck down a state statute that allowed officials unfettered discretion in regulating religious advocacy and solicitation. Justice Owen Roberts wrote the opinion for the unanimous Court: The fundamental concept of liberty embodied in that [the Fourteenth] Amendment embraces the liberties guaranteed by the First Amendment . . . [which] declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.

This expansive interpretation of the scope of the Fourteenth Amendment was followed by an application of the establishment clause of the First Amendment to the states in Everson v. Board of Education (330 U.S. 1, 1947). In that case, the Court considered the troublesome issue of public aid to parochial schools and held that the due process clause of the Fourteenth Amendment enjoins the states from rendering such aid, just as the First Amendment restrains Congress. The most comprehensive arguments supporting the total incorporation theory were made in Adamson v. California (332 U.S. 46, 1947). The Court’s five-man majority refused to upset a state conviction in which the appellant argued that the state procedure infringed on the Fifth Amendment guarantee against compulsory self-incrimination, which was made applicable to the states through the Fourteenth Amendment. The four dissenters— Justices Hugo Black, William O. Douglas, Frank Murphy, and Wiley B. Rutledge—contended that all the specific guarantees of the first eight amendments should be read into the due process clause of the Fourteenth Amendment and made applicable to the states. Justice Black’s dissenting opinion is most often cited in support of this thesis. He maintained that the legislative history of the Fourteenth Amendment, as well as the debates in the state legislatures ratifying it, clearly revealed that the Fourteenth Amendment was designed to make the Bill of Rights applicable to the states. In effect, he took the position that the framers of the Fourteenth Amendment intended the due process clause to be a shorthand restatement of the specific guarantees of the Bill of Rights, but no more. In a concurring opinion, Justice Felix Frankfurter not only questioned Black’s reading and interpretation of history but contended that incorporation of Civil Liberties in the Context of Federalism

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

the specific guarantees of the Bill of Rights into the due process clause would impart to this clause a far more expansive meaning than was intended in some cases and a more restricted meaning than was intended in others. To him, such a construction would also do violence to the principle of federalism on which the republic was founded. As he put it: A construction which gives to due process no independent function but turns it into a summary of the specific provisions of the Bill of Rights would . . . tear up the fabric of law in the several States, and would deprive the States of the opportunity for reforms in legal process designed for extending the area of freedom. It would assume that no other abuses would reveal themselves in the course of time than those which had become manifest in 1791.

Two of Black’s fellow dissenters did not share his view of the limited protection afforded by the due process clause. It was their view that restricting the scope of the clause only to the Bill of Rights guarantees and no more, fails to include situations to which the clause should apply. Murphy contended in a separate opinion in which Rutledge joined: Occasions may arise where a proceeding falls so far short of conforming to fundamental standards of procedure as to warrant constitutional condemnation in terms of lack of due process despite the absence of a specific provision in the Bill of Rights.

In subsequent cases, Justice Black reaffirmed his total incorporation position and continued to urge a narrow, or strict, interpretation of the specific guarantees of the Bill of Rights. In Wolf v. Colorado (338 U.S. 25, 1949), for example, he concurred in the Court’s action of “selectively incorporating” the Fourth Amendment into the Fourteenth without the exclusionary rule. He contended that the rule, which holds that evidence obtained in violation of the Fourth Amendment is inadmissible in criminal prosecutions, “is not a command of the Fourth Amendment” but instead is a “judicially created” one. Justices Murphy and Rutledge were joined this time by Justice Douglas in taking issue with Black’s narrow construction of the Fourth Amendment. In their view, not only does the Fourteenth Amendment incorporate the guarantees of the Fourth, but the exclusionary rule must be construed to be embraced in the amendment if its command is to be an effective sanction against the evil to which it is directed. But in decisions interpreting a later case, Mapp v. Ohio, the Burger Court seemed more disposed to follow a 22

narrow construction and to reject the view that the exclusionary rule is a necessary corollary of the Fourth Amendment. Although the “total incorporation” theory has never gained majority support, its proponents have virtually accomplished their goal. Note the forward thrust of incorporation since 1961: • •

•

•

•

McDonald v. Chicago, extending the Second Amendment right to bear arms to the states and local governments. Mapp v. Ohio, in which the exclusionary rule was made obligatory on the states, thereby making the Fourth Amendment an effective restraint on state action Malloy v. Hogan and Benton v. Maryland, making the Fifth Amendment’s self-incrimination and double jeopardy provisions applicable to the states Gideon v. Wainwright, Pointer v. Texas, Klopfer v. North Carolina, and Duncan v. Louisiana, incorporating into the Fourteenth Amendment the Sixth Amendment guarantees of counsel, confrontation, a speedy trial, and trial by jury for serious criminal offenses, and Robinson v. California, tying to the Fourteenth Amendment the Eighth Amendment’s protection against cruel and unusual punishment.

Only a few provisions of the Bill of Rights have not been incorporated into the Fourteenth Amendment. These include the Third Amendment (which has no practical significance for the states), the grand jury indictment requirement of the Fifth Amendment, and the Eighth Amendment’s provision prohibiting excessive bail and the imposition of excessive fines. For all practical purposes, however, imposition of excessive bail and fines by a state would violate the due process clause of the Fourteenth Amendment. Consequently, and in general, the major controversy in this area is not whether specific guarantees of the Bill of Rights apply to the states, but whether judges narrowly or broadly interpret specific provisions of those guarantees as restrictions on the states. A NOTE ON EQUAL PROTECTION

The final clause of the Fourteenth Amendment forbids states to deny any person “equal protection of the laws.” This clause was intended, according to one of its fervent supporters, the Republican Senator Jacob M. Howard of Michigan, to give “to the humblest, the poorest, the most despised of the [human] race, the same rights and same protection before the

A Framework for Analysis Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

law as it gives to the most powerful, the most wealthy, or the most haughty.”11 The amendment was not actually enforced to offer that protection to such persons until well into the middle of the twentieth century. As interpreted by the Court, equal protection is a limitation on the exercise of government power which invalidates any government regulation that is “arbitrarily discriminatory.” It does not prevent laws from treating individuals differently; indeed, all laws are to some extent inherently unequal, because part of the purpose of legislation is to distinguish among individuals. Rather, the clause prevents unreasonable classifications of individuals. To aid decision making in such cases, the Court has developed three major tests or standards of review: rational basis, strict scrutiny, and intermediate scrutiny. These tests or standards, as well as litigation under equal protection, are discussed in Part V of this volume.

STATE CONSTITUTIONS Discussions of judicial politics and constitutional law tend to focus on the U.S. Supreme Court. This focus is understandable, as the Supreme Court’s position atop the national judicial hierarchy makes the Court’s decisions more consequential and more highly publicized than rulings of other courts (celebrity trials notwithstanding). This emphasis on the U.S. Supreme Court, however, has resulted in a lack of attention to state courts and state constitutional law, both of which play increasingly important roles in formulating civil liberties policy. Comparing state constitutions and judicial institutions with their federal counterparts can provide numerous insights into judicial policy making, particularly civil rights and civil liberties policy. In large measure, the level of interest in state constitutions has waxed and waned with developments in civil liberties policy and more general jurisprudential trends at the national level.12 Throughout most of American history, the guarantees in the federal Bill of Rights were held to be inapplicable to actions of state governments. State constitutions included bills of rights, but state courts did little to 11 Ibid., 12

p. 337. See Tarr, G. Alan. “Symposium: The Future of State Supreme Courts as Institutions in the Law: The New Judicial Federalism in Perspective,” 72 Notre Dame Law Review 1097, esp. 1110–1112 (May 1997).

extend constitutional protection to civil liberties. In the antebellum period (1776–1861), southern supreme courts struck down fewer than 40 state laws, and few of those laws addressed civil liberties.13 Furthermore, during the late nineteenth and early twentieth centuries, state supreme courts’ dockets were dominated by commercial cases. When the rare state constitutional case did appear, it typically addressed issues such as taxation and local governmental structure, rather than civil liberties.14 To be sure, federal courts’ dockets also featured relatively few civil liberties cases during these periods. The U.S. Supreme Court’s shift toward a civil liberties emphasis, which began in the post-World War I era and accelerated rapidly during the Warren Court, gave state courts a greater role in civil liberties policy formation, but this role was tied to enforcing federal, and not state, constitutional protections. The Fourteenth Amendment’s imposition of due process obligations on state governments established the basis on which the Bill of Rights was eventually made applicable to the states. Relying on Carolene Products Footnote Four, which signaled the Court’s willingness to scrutinize carefully any legislation that threatened to infringe on civil liberties, the Warren Court greatly sped the process of incorporating the Bill of Rights. As a result of this work, litigants could have their federal constitutional rights claims vindicated in state courts, as well as federal courts. In addition, jurisdictional adaptations at the federal level, such as the federal questions doctrine and the expansion of habeus corpus jurisdiction, enlarged the federal presence in civil liberties policy by expanding the opportunities for federal courts to review decisions of state courts. During the Warren Court, however, litigants had strong incentives to frame civil liberties claims as federal constitutional violations, rather than as state constitutional claims, and to pursue such claims in federal court. The presence of a national Supreme Court that was sympathetic to civil liberties made the federal forum more inviting to litigants. A favorable national ruling would automatically apply to all 13 Fehrenbacher, Don E. Constitutions and Constitutionalism in the Slaveholding South. Athens, GA: University of Georgia Press (1989), p. 22. 14 See Kagan, Robert A., et al. “The Business of State Supreme Courts, 1870–1970,” 30 Stanford Law Review 121 (1977); and Kagan, Robert A., et al., “The Evolution of State Supreme Courts,” 76 Michigan Law Review 961 (1978).

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fifty states, thanks to incorporation, whereas achieving the same goal in state courts would require separate litigation in each state, a far more costly and uncertain route. And certain civil liberties goals were unattainable in many state courts. Until the mid1960s, for example, dissenters from a states’ rights, prosegregationist stance were simply not going to attain positions of power on southern state courts; voters wouldn’t elect them, and governors wouldn’t appoint them. It is thus unsurprising that students of civil liberties politics focused on the federal courts, where the real action was taking place. The end of the Warren Court, however, was followed by two changes that brought state constitutional law back from scholastic purgatory. The first was the shift from the liberal Warren Court to the more centrist Burger Court, and then to the conservative Rehnquist and Roberts Courts. Although the Burger Court displayed a willingness to extend the right to privacy to the issue of abortion and to stake out new legal protections for women, it also undercut Warren Court precedents in areas such as the rights of the accused, obscenity, and freedom of the press. The Rehnquist Court showed some solicitude to First Amendment claimants, but for the most part it accelerated the Burger Court’s shift away from the Warren Court’s legacy. In its nascent years, the Roberts Court has also tended to move away from the Warren Court precedents. The lower federal courts have also assumed a more conservative posture with regard to civil liberties. As this shift occurred, state courts began to look more enticing to civil rights litigants, for the same reason that federal courts were preferred during the Warren Court, despite their more limited scope of effect. The second change, which is related to the first, has been the move to shift power from the national government to the states. Devolution gained popularity during the Reagan administration, but the process truly gathered momentum during the mid1990s, especially in the wake of the Republican landslide in the 1994 congressional elections. Assigning states more policy-making responsibilities meant that much of the battle over civil rights and liberties would shift to contests over state law, both statutory and constitutional, and that these battles would receive more attention from the legal community. It is too early to tell whether this pattern will continue given the Democratic landslides in Congress in the 2008 elections and the election of President Barack Obama. 24

During the 1980s, the U.S. Supreme Court provided an additional catalyst to the growing interest in state constitutional politics. Under the federal question doctrine, the Court is required to yield to state courts’ interpretations of the meanings of state constitutional rights. In a 1983 decision, the Court held that it lacked authority to review state court decisions that were clearly based on state law (Michigan v. Long). Absent a “plain statement” by the state court describing the “adequate and independent state ground” on which the holding was based, the Court would assume that the state court’s decision rested on its interpretation of federal law, which could be subjected to Supreme Court review. In other words, state court interpretations of rights provisions under that state’s constitution were immune from federal review, but interpretations under the U.S. Constitution might be subject to such review. These developments have had the cumulative effect of encouraging litigants to frame claims as state constitutional violations. One study found that state judges granted greater protection under state constitutional guarantees than was available under the Bill of Rights or the Fourteenth Amendment in over 300 cases from 1970 to 1986, compared with only 10 such cases from 1950 to 1969.15 Litigants, however, have opted not to limit themselves to state constitutional claims. A study analyzing all state and federal constitutional challenges to state law found that litigants in over half of the civil liberties cases presented challenges based solely on the federal Constitution, while fewer than one-sixth of cases brought only state constitutional claims.16 Furthermore, when state judges were given an opportunity to base their holdings on federal or state law, they tended to rely predominantly on federal law.17 When thinking about state constitutional law, one must account for crucial distinctions between state constitutions and the U.S. Constitution. State constitutions contain a mixture of higher law (statement 15 Collins, Ronald K. L., and Galie, Peter J. “Models of PostIncorporation Judicial Review: 1985 Survey of State Constitutional Individual Rights Decisions,” Publius: Journal of Federalism 111 (Summer 1986). 16 Emmert, Craig F., and Traut, Carol Ann. “State Supreme Courts, State Constitutions, and Judicial Policymaking,” 16 Justice System Journal 37 (1992). 17 Fino, Susan P. “Judicial Federalism and Equality Guarantees in State Supreme Courts,” Publius: Journal of Federalism 33 (Winter 1987); Esler, Michael. “State Supreme Court Commitment to State Law,” 78 Judicature 25 (1994).

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of purpose in the preamble, exposition of fundamental rights), structural design (granting powers to and imposing limits on different branches of government), and legal code. The U.S. Constitution was designed in large measure to set limits on the power of the central government. It includes some specific details, such as the requirement that presidents be at least thirty-five years old, and its structure-creating provisions still have highly significant impacts on how the national government conducts its business today. The Constitution’s greatest significance, however, lies in its status as expositor of American values, a status for which the American public has revered it. State constitutions, in contrast, more closely resemble legal codes, both in length and level of detail. The average length of a state constitution (at the time of adoption) was 19,300 words, and four states (Alabama, Louisiana, Missouri, and Oklahoma) adopted constitutions that were at least double the average length. In contrast, the U.S. Constitution is only about 4,300 words long. The average number of constitutional amendments per state is 117, while the national constitution has been amended only 26 times.18 These characteristics reflect four factors that affect state constitutional development: (1) the growth of state government in response to expanding state responsibilities; (2) the primary role played by states in addressing problems stemming from rapid technological, demographic, and economic change; (3) pressure from special interests seeking to enshrine certain protections in state constitutions; and (4) chronic popular distrust of state legislatures, resulting in extensive procedural limits designed to prevent the recurrence of past government abuses.19 In addition, while Article V of the U.S. Constitution erects high barriers to amendment, state constitutions are relatively accessible for amendment. More broadly, direct democracy plays a more significant role at the state level than at the federal level. Many states allow voters to propose amendments via the constitutional initiative, to propose and enact legislation via the statutory initiative, to pass judgment via the 18 Lutz, Donald. “Patterns in the Amending of American State Constitutions,” in G. Alan Tarr (Ed.), Constitutional Politics in the States: Contemporary Controversies and Historical Patterns. Westport, CT: Greenwood Press (1996), pp. 32–34. 19 See Sturm, Albert. Thirty Years of State Constitution-Making: 1938–1968. New York: National Municipal League (1970).

referendum on measures enacted by the legislature, and even to call constitutional conventions. Through the ballot proposition, for example, California voters can directly amend both the state constitution and the decisions of the state’s appellate courts.20 Various overlapping models have been offered to explain the dynamics of state constitutional politics and state constitutional change.21 Some scholars have argued that state constitutions reflect and respond to changes in the dominant political culture of their respective states. Because state constitutions are repositories of the values shared by political elites, variations in state political cultures should result in variations in both the form and substance of state constitutions. Others argue that state constitutional dynamics are explained better as reflections of the national political trends that were prevailing at the time of the state constitution’s adoption. A third camp treats state constitutional politics as an extension of everyday political conflict within the state. In this view, contrary to the perspective that emphasizes political culture, state constitutions are not expected to reflect any unified vision; rather, they reflect the compromises that are typical of ordinary pluralist politics. As the supreme law of the land, the U.S. Constitution takes precedence over state constitutions. Therefore, states cannot restrict civil liberties beyond the limitations that are imposed by the national government. However, states are free to extend civil liberties protections beyond what the federal government guarantees. Justice Brennan, whose resumé includes a stint as a justice on the New Jersey Supreme Court, argued strongly that the federal Bill of Rights should be treated as a floor, rather than as a ceiling.22 According to Brennan, an expanded role 20 For a discussion of how direct democracy has affected judicial politics and constitutional debates in California, see Candace McCoy, “Crime as a Boogeyman: Why Californians Changed Their Constitution to Include a ‘Victims’ Bill of Rights’ (and What It Really Did),” in Constitutional Politics in the States, pp. 128–146. 21 Much of this discussion draws upon Tarr, George Alan. “State Constitutional Politics: An Historical Perspective,” in Constitutional Politics in the States, 1996. Westport, CT: Greenwwod Press, pp. 3–24, and cites within. 22 For a discussion of Brennan’s position regarding state courts as guardians of constitutional rights, see Brennan, William J., Jr. “The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights,” 61 New York University Law Review 535–553 (October 1986).

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for state courts in enforcing civil liberties guarantees offers the benefits of experimentation and diversity that proponents of federalism often extol. At the same time, state court enforcement skirts the “countermajoritarian difficulty” surrounding judicial review by the federal courts. Because state judges are often elected or must win retention elections in order to hold their seats, they are more accountable to public opinion than are federal judges, who are appointed and life-tenured. In many instances, states have provided civil liberties protections that exceed the ones provided by the federal government. Since 1971, systems of financing public education have been struck down in seventeen states as violations of state constitutional provisions that guarantee a right to an adequate public education. State constitutions in thiry-four states include provisions related to environmental protection; these range in scope from authorizations of legislative or administrative action, to policy statements supporting a proenvironment stance, to the conferral on individuals of a right to a clean environment.23 Women’s rights have also received protection under state constitutions. At the time of the Nineteenth Amendment’s ratification, eleven western states provided for women’s suffrage. And although the proposed Equal Rights Amendment to the federal Constitution failed to be ratified by the requisite number of states, fifteen states have adopted equal rights amendments that either extended their constitutions’ equal protection clauses to refer specifically to sex or gender or that used language based on the proposed federal amendment.24 Finally, ten state constitutions guarantee a right to privacy, and others include provisions that have been read as protecting privacy. As Justice Brennan put it, “The state courts have responded with marvelous enthusiasm to many not-so-subtle invitations to fill the constitutional gaps left by the decisions of the Supreme Court majority.”25

23 Araiza, William D. “Democracy, Distrust, and the Public Trust: Process-Based Constitutional Theory, the Public Trust Doctrine, and the Search for a Substantive Environmental Value,” 45 UCLA Law Review 385, 438 (1997). 24 O’Neill, Kevin Francis. “The Road Not Taken: State Constitutions as an Alternative Source of Protection for Reproductive Rights,” 11 New York Law School Journal of Human Rights 5, 56 (1993). 25 Brennan, William J., Jr., “The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights,” 61 New York University Law Review 549 (October 1986).

26

STATE JUDICIAL SELECTION26 Unlike federal judges, who are appointed and receive life tenure, state judges are more directly accountable to the popular will. Each state relies on one of four methods of staffing its judiciary: (1) gubernatorial appointment, (2) nonpartisan election, (3) partisan election, or (4) a mixed system in which judges initially are appointed and subsequently must win retention elections to hold their seats. In twenty-three states, high court judges are elected. In sixteen states, such judges are appointed for fixed terms and subsequently must win retention elections to hold their seats. In six states, judges may be removed via recall elections.27 The divergence in methods of selection may be seen as reflective of the national political moods that were prevailing when each state adopted its constitution. After the American Revolution, the predominant method of selection was appointment.28 During the Jacksonian era, egalitarian-minded individuals distrusted judges who saw themselves as bulwarks against infringement of private property rights. This distrust manifested itself in a preference for judicial accountability to the electorate. By the start of the Civil War, twenty-four of the thirty-four states elected their judges.29 At the turn of the twentieth century, Progressive reformers distrusted rough-and-tumble democratic practice, which often created the appearance that political bosses possessed excessive control of government, including courts. This sentiment led to a variety of governmental reforms that included a shift toward appointing judges. Finally, in 1940, Missouri adopted a system, thereafter known as the Missouri Plan, that attempted to balance judicial independence and some measure of popular control. Under the Missouri Plan, the governor appoints judges from a list that is compiled by a select panel. Those judges are then subject to retention elections, in which no other candidates run and voters may give the sitting judge a “thumbs up” or “thumbs down.” Turnout tends to be 26 For a study examining the partisan, ideological, and demographic composition of state supreme courts, see Wefing, John B. “State Supreme Court Justices: Who Are They?” 32 New England Law Review 47 (Fall, 1997). 27 Council of State Governments. The Book of the States 1994–95. Lexington, KY: Author (1994), pp. 190–199. 28 See Berkson, Larry, et al. Judicial Selection in the United States: A Compendium of Provisions. Chicago: American Judicature Society (1981), p. 3. 29 Ibid., p. 8.

A Framework for Analysis Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

low in retention elections, and incumbents tend to win easily. The retention election, however, has enabled voters to remove judges who were considered to be out of step with majority sentiment. The most highly publicized example was in 1986, when California Supreme Court Justice Rose Bird and two colleagues were defeated in a retention election featuring an unusually high-profile campaign by conservatives who were upset with the judges’ liberalism, especially with their prodefendant stances and opposition to capital punishment. The method of selection has had some impact on the judicial outputs that emanate from state supreme courts. A 1995 study examining six state supreme courts found that appointed judges were more likely than elected judges to support individual rights.30 Another study found a relationship between election of judges and the judges’ support for the death penalty. More specifically, in the three states where judges are elected and have the power to override jury sentences (Alabama, Florida, and Indiana), judges have overridden life sentences in favor of the death penalty by a 2–1 margin. In contrast, in the only state where justices can override jury verdicts but are appointed (Delaware), the overrides have gone exclusively in favor of replacing death sentences with life sentences.31 In short, as with the U.S. Supreme Court, the results produced by those courts are affected by who sits on them.

CONCLUSION To understand the problems and issues associated with civil liberties, we must refer to a number of legal sources. At the national level, we must consider the 30 Pinello, Daniel R. The Impact of Judicial-Selection Method on State-Supreme-Court Policy: Innovation, Reaction, and Atrophy. Westport, CT: Greenwood Press (1995), pp. 142–143. 31 Bright, Stephen B., and Keenan, Patrick J. “Judges and the Politics of Death: Deciding between the Bill of Rights and the Next Election in Capital Cases,” 75 Boston University Law Review 759, 766, 793–794 (1995).

U.S. Constitution, including the Bill of Rights and other relevant amendments. Legislation passed by Congress, such as the Civil Rights Act of 1991, and rules and regulations issued by administrative agencies, are also important. So are relevant decisions of federal courts and actions of the president and administrative agencies. Similarly, given the nature of the federal system, we must consider various sources at the state (and local) level. Indeed, the extent to which people more or less enjoy certain liberties or rights might depend on the nature of particular state constitutions, state statutes, local ordinances, and administrative rules and regulations, as well as the ways in which these laws are interpreted and enforced by various officials. We must also consider pertinent decisions of state and local courts and actions of administrative officials. Finally, students of civil liberties must remember that policies emanating from constitutions, court decisions, and statutes are not automatically put into practice, nor do they automatically change the behavior of those for whom they were intended. For example, whether a particular policy in court decisions will meet with compliance depends on a number of factors, including the decisiveness and clarity of the court’s position; whether the policy is perceived as legitimate (within the court’s authority); congruence of the policy with the prevailing norms and mores of the community; the costs of noncompliance; and the attitudes of public officials and employees, especially those who must enforce or implement the court decision.32 The various factors and considerations summarized in this chapter and in Chapter 1 should allow us to discern more clearly the nature and dimensions of the many civil liberties problems that will be discussed in this volume.

32

Wasby, Stephen. The Supreme Court in the Federal Judicial System, 4th ed. Chicago: Nelson Hall (1993).

SELECTED REFERENCES Abraham, Henry J. The Judiciary: The Supreme Court in the Governmental Process, 10th ed. New York: New York University Press, 1996. Abrahamson, Shirley S., and Gutmann, Diane S. “The New Judicial Federalism: State Constitutions and State

Courts,” 71 Judicature 88 (1987); “Criminal Law and State Constitutions: The Emergence of State Constitutional Law,” 63 Texas Law Review 1141 (1985). Ackerman, Bruce. We the People. Cambridge, MA: Harvard University Press, 1991. Civil Liberties in the Context of Federalism

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Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction. New Haven, CT: Yale University Press. 2000. Aynes, Richard L. “Unintended Consequences of the Fourteenth Amendment and What They Tell Us about Its Interpretation,” Akron Law Review, Vol. 39 (2006), 289–321. Barnett, Randy E. “Kurt Lash’s Majoritarian Difficulty: A Response to ‘A Textual–Historical Theory of the Ninth Amendment,’” Stanford Law Review, Vol. 60, No. 4 (2008), 937. Baum, Lawrence. The Supreme Court, 10th ed. Washington, DC: Congressional Quarterly Press, 2009. Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment, 2nd ed. Indianapolis: Liberty Fund, 1997. Bickel, Alexander. The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2nd ed. New Haven, CT: Yale University Press, 1986 (1962). Biskupic, Joan. Guide to the U.S. Supreme Court, 3rd ed. Washington, DC: Congressional Quarterly, 1997. Bodenhamer, David J. and Ely, James W., Jr., Eds. The Bill of Rights in Modern America: Revised and Expanded Edition. Bloomington, IN: Indiana University Press. 2008. Caldeira, Gregory A., and Wright, John R. “Organized Interests and Agenda Setting in the U.S. Supreme Court,” 82 American Political Science Review 1109 (1988). Casper, Jonathan. “Supreme Court and National Policymaking,” 70 American Political Science Review 50 (1979). Choper, Jesse H. Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court. Chicago: University of Chicago Press, 1980. Cronin, Thomas E. Direct Democracy: The Politics of Initiative, Referendum, and Reform. Cambridge, MA: Harvard University Press, 1989. Ely, John Hart. Democracy and Distrust: A Theory of Judicial Review. Cambridge, MA: Harvard University Press, 1980. Emerson, Thomas I. “First Amendment Doctrine and the Burger Court,” 68 California Law Review 422 (1980). Epstein, Lee, and Knight, Jack. The Choices Justices Make. Washington, DC: Congressional Quarterly Press, 1998. Epstein, Lee, and Kobylka, Joseph F. The Supreme Court and Legal Change: Abortion and the Death Penalty. Chapel Hill, NC: University of North Carolina Press, 1992. Epstein, Lee, ed. Contemplating Courts. Washington, DC: Congressional Quarterly Press, 1995. Fino, Susan P. The Role of State Supreme Courts in the New Judicial Federalism. Westport, CT: Greenwood Press, 1987. 28

Gardner, James A. “The Failed Discourse of State Constitutionalism,” 90 Michigan Law Review 761 (1992). Griffin, Stephen M. American Constitutionalism: From Theory to Politics. Princeton, NJ: Princeton University Press, 1996. Hardy, David T. “Original Popular Understanding of the Fourteenth Amendment as Reflected in the Print Media of 1866–1868,” Whittier Law Review, Vol. 30 (2009), 695. Horowitz, Donald L. The Courts and Social Policy. Washington, DC: The Brookings Institution, 1977. Johnson, Charles A., and Canon, Bradley C. Judicial Policies: Implementation and Impact, 2nd ed. Washington, DC: Congressional Quarterly Press, 1999. Kahn, Paul W. “Interpretation and Authority in State Constitutionalism,” 106 Harvard Law Review 1147 (1993). Konvitz, Milton R. Fundamental Rights: History of a Constitutional Doctrine. New Brunswick, NJ: Transaction Publishers, 2001. Krislov, Samuel. “The Amicus Curiae Brief: From Friendship to Advocacy,” 72 Yale Law Journal 694 (1963). Lash, Kurt T. “A Textual–Historical Theory of the Ninth Amendment,” Stanford Law Review, Vol. 60, No. 4 (2008), 895–936. Latzer, Barry. State Constitutions and Criminal Justice. Westport, CT: Greenwood Press, 1991. Levy, Leonard W. Origins of the Bill of Rights. New Haven, CT: Yale University Press, 2001. Lindblom, Charles E. The Policy Making Process. Englewood Cliffs, NJ: Prentice Hall, 1980. Lyles, Kevin L. The Gatekeepers: Federal District Courts in the Political Process. Westport, CT: Praeger, 1998. Marceau, Justin F. “Un-Incorporating the Bill of Rights: The Tension between the Fourteenth Amendment and the Federalism Concerns that Underlie Modern Criminal Procedure Reforms,” Journal of Criminal Law and Criminology, Vol. 98, No. 4 (2008), 1231–1303. Marshall, Thomas. Public Opinion and the Supreme Court. Boston: Unwin/Hyman, 1989. McCann, Michael. Rights at Work: The Politics of Legal Mobilization. Chicago: University of Chicago Press, 1994. McCann, Michael, and Houseman, Gerald, eds. Judging the Constitution. Boston: Little, Brown, 1989. McCloskey, Robert G. The American Supreme Court, 2nd ed., revised by Sanford Levinson. Chicago, IL: University of Chicago Press, 1994 (1960). McClosky, Herbert, and Brill, Alida. Dimensions of Tolerance: What Americans Believe about Civil Liberties. New York: Russell Sage Foundation, 1983. Muñoz, Vincent Phillip. “The Original Meaning of the Establishment Clause and the Impossibility of its Incorporation,” University of Pennsylvania Journal of Constitutional Law, Vol. 8 (2006), 585.

A Framework for Analysis Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Murphy, Walter F. Elements of Judicial Strategy. Chicago: University of Chicago Press, 1964. O’Brien, David M. Storm Center: The Supreme Court in American Politics, 5th ed. New York: W. W. Norton & Co., 2000. Perry, H. W., Jr. Deciding to Decide: Agenda Setting in the U.S. Supreme Court. Cambridge, MA: Harvard University Press, 1991. Rehnquist, William H. The Supreme Court: How It Was, How It Is. New York: Morrow, 1987. Rosen, Mark D. “The Surprisingly Strong Case for Tailoring Constitutional Principles,” University of Pennsylvania Law Review, Vol. 153, No. 5 (2005), 1513–1637. Rosenberg, Gerald. The Hollow Hope. Chicago: University of Chicago Press, 1991. Rosenthal, Lawrence. “Second Amendment Plumbing After Heller: Of Standards of Scrutiny, Incorporation, Well-Regulated Militias, and Criminal Street Gangs,” The Urban Lawyer, Vol. 41, No. 1 (2009), 1–93. Schwartz, Herman. Packing the Courts: The Conservative Campaign to Rewrite the Constitution. New York: Charles Scribner’s Sons, 1988. Segal, Jeffrey A., and Spaeth, Harold J. The Supreme Court and the Attitudinal Model Revisited. New York: Cambridge University Press, 2002.

Shapiro, Martin. Freedom of Speech: The Supreme Court and Judicial Review. Englewood Cliffs, NJ: Prentice Hall, 1966, especially Chapter 1. Sullivan, John, Pierson, James, and Marcus, George E. Political Tolerance and American Democracy. Chicago: University of Chicago Press, 1982. Thomas, George C., III. “The Riddle of the Fourteenth Amendment: A Response to Professor Wildenthal,” Ohio State Law Journal, Vol. 68 (2007), 1627. Tribe, Laurence H. The Invisible Constitution. New York: Oxford University Press, 2008. Truman, David. The Governmental Process: Political Interests and Public Opinion, 2nd ed. New York: Alfred A. Knopf, 1971. Wildenthal, Bryan H. “The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment,” Ohio State Law Journal, Vol. 61, No. 3 (2000), 1051. Wildenthal, Bryan H. “The Road to Twining: Reassessing the Disincorporation of the Bill of Rights,” Ohio State Law Journal, Vol. 61, No. 4 (2000), 1457. Woodward, Bob, and Armstrong, Scott. The Brethren. New York: Simon & Schuster, 1979.

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

PART II FREEDOM OF EXPRESSION, ASSEMBLY, AND ASSOCIATION

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ART II DEALS WITH THE LIBERTIES THAT ARE

protected specifically by the First Amendment which we generally refer to as “freedom of speech, press, and association.” Even naming those liberties, however, begins the debate. Does the First Amendment protect only speech, or does it protect expression more generally? For example, does it protect an author? A pornographic filmmaker or viewer? A flag burner? A contributor to a political campaign? Who or what constitutes “the press,” and does the Constitution guarantee it freedom of expression that is greater or lesser than that guaranteed to the individual? Constitutional interpreters have long held that speech refers to something more than verbalization and have often characterized the liberty as “freedom of expression.” We use that broader term interchangeably with speech without implying that the debate is over regarding what actually constitutes constitutionally protected speech. Deciding the doctrinal context in which to place a case is also

debatable. How cases are grouped could suggest a point of view. For example, including issues that involve the Internet in the chapter on the press rather than in the chapters on expression might suggest that we believe that the Internet should be seen as “the press.” That is not our intent. The appropriate doctrinal context should, in fact, be part of the debate. That said, there must be some organizational rubric. Chapter 3 is an overview chapter that begins with the “classic” cases and ideas which helped shape our most basic understandings of the concept of freedom of speech and thought. It then examines many of the modern doctrinal controversies. Chapter 4 continues the themes of Chapter 3, looking at speech (or not, depending on one’s view) in some special contexts. Included are discussions of sexually oriented expression, rights of student expression, and the question of money as speech. Finally, Chapter 4 considers the freedom of association. Chapter 5 examines freedom of the press.

31 Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

CHAPTER 3

FREEDOM OF EXPRESSION

FEATURED CASES Schenck v. United States; Abrams v. United States; Gitlow v. New York; Whitney v. California; Dennis v. United States; Brandenburg v. Ohio; Feiner v. New York; Edwards v. South Carolina; Frisby v. Schultz; United States v. O’Brien; Texas v. Johnson; R.A.V. v. St. Paul

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VERY SCHOOL CHILD KNOWS THAT THE FIRST

Amendment guarantees freedom of speech. Few, if any, liberties guaranteed by the Constitution are better known and more widely accepted by Americans at a theoretical level than the free speech guaranty. But agreement ends when we move from the abstract to the specific. This seemingly direct and simple provision of the Constitution has been the source of some of the most inspiring and enduring rhetoric of the Supreme Court and the source of some of its most bitter political battles. The language of the Constitution is straightforward; the interpretation of the speech clause has been anything but. “Congress shall make no law . . . abridging the freedom of speech,” says the Constitution. But what constitutes speech? Is a novel speech? A movie? A burning flag? We also must define abridge. Freedom of thought and expression is at the heart of individual liberty and is a necessary condition for democratic government. Some people see this freedom as the preeminent or preferred freedom. Justice Cardozo characterized freedom of thought and speech as “the matrix, the indispensable condition of nearly every other form of freedom.” (Palko v. Connecticut, 302 U.S. 319, 327,1937). However, even this famous statement provokes debate. Should

“freedom of thought and speech” be written in the singular, as it often is, suggesting that the two are inextricably linked to form one freedom? Should speech have a preferred status when it conflicts with other provisions of the Constitution, especially provisions that themselves are guaranteed liberties, such as equal protection or a fair trial? Our parents taught us that “sticks and stones will break your bones, but words will never hurt you.” Unfortunately they were wrong. Speech can hurt, and it can cause harm. Accusations or ideas can ruin lives and start wars. It is precisely because speech can be so powerful that governments attempt to regulate it. Whether the purposes are salutary or evil, governments will inevitably overreach, hence the need for the First Amendment. Determining how it should be understood and applied, however, is no easy task. Despite the fact that the Constitution says no law, no one truly believes in an absolute freedom of speech. The most famous example of this point is Oliver Wendell Holmes’s statement that no protection would exist for falsely shouting “fire” in a theater. Limiting speech has often been justified in the name of a more important concern. Still, the United States today protects expression as a matter of law more than any other country. It may well be

32 Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

that other societies are freer in terms of societal norms and acceptance, but as a matter of law, the United States permits far fewer prohibitions and regulations of speech, even when the consequences of speech are harmful. Many liberal democracies have rejected and criticized what they see as the U.S. obsession with protecting speech at the cost of other societal interests. Given that speech can harm, what is the justification for not abridging it? Actually, there are many different justifications, and sometimes different justifications lead to different results. The most famous justification for freedom of speech comes from an analogy or metaphor. It is commonly said that we should have a “marketplace of ideas” out of which truth shall emerge. Oliver Wendell Holmes gets credit for the phrase, but the idea had been around for quite a while. In 1644, the English author John Milton wrote the following in opposition to censorship laws: [T]hough all winds of doctrine were let loose to play upon the earth, so truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and falsehood grapple; whoever knew truth put to the worse in a free and open encounter (Areopagitica).

Argument by metaphor and analogy is helpful and often necessary, but it is also always problematic. Given the prominence of the marketplace analogy, it deserves extended consideration. Americans have never believed in complete laissez-faire and wholly unfettered markets. Neither do even the most free market” economists. Some monopolies must be prevented in order to maintain a free market, and inefficiencies develop in markets that often require governmental intervention. The question in economic markets is not whether some regulation is necessary, but how much is required and what forms it should take. The phrase “free market of ideas” is often bandied about as if it resolves all questions, yet such use demonstrates a misunderstanding of the economic marketplace. That is not to say that it is a bad or unhelpful metaphor or analogy, simply that analogies are limited in what they can do and problematic when they are used indiscriminately and simplistically. Even if we accept that free markets work relatively well for economic concerns, the question remains whether the analogy is apt for the trade in ideas. The assumption is that in an open and free market of ideas, false ideas will be tested and seen

for what they are, and truth will eventually emerge the winner. Does truth emerge in such a contest? That is an empirical question. For example, does allowing hate speech really serve to expose the falsity of bigotry, or does it perpetuate it and serve to legitimize it? Does allowing the press a great degree of protection from libel really get out more truth than would be the case if libel laws were more stringent? Again, these are empirical questions, although labeling them as such does not tell us how to answer them, nor does coming up with an empirical answer necessarily justify or undermine the concept of a marketplace of ideas. The appropriate test may not be any one falsehood but whether over time more truth emerges as a result of allowing falsehoods to be expressed than if somehow falsehoods were controlled. In his famous essay “On Liberty” (1859), John Stuart Mill acknowledged that truth may not always emerge, but he nonetheless wanted a world where truth could contest falsity. He argued: If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.. . . But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error. . . . But indeed, the dictum that truth always triumphs over persecution is one of those pleasant falsehoods that people repeat until they pass into commonplace but which all experience refutes. History teems with instances of truth put down by persecution. . . . It is a piece of idle sentimentality that truth, merely as truth, has any inherent power denied to error. . . . The real advantage that truth has consists in this: When an opinion is true, it may be extinguished once, twice, or many times, but in the course of ages there will generally be found persons to rediscover it.

In sum, the marketplace metaphor is powerful, but it must be viewed in a sophisticated manner, not glibly. A different theoretical justification for free speech is that it is essential to intelligent self-government in a democratic system. Not only is free speech Freedom of Expression

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

necessary for the representative function, which includes an informed electorate, but also it serves as a checking function on government. The selfgovernment justification is not necessarily contrary to the marketplace-of-ideas notion, but the goal is different and its scope is more limited. That is, speech as it relates to politics and governing must be wide open and robust, but we need not carry the same tolerance for speech when it is not related to governing. For example, allowing the publication of a sexually explicit book may be necessary for an exchange of some ideas, but it may not be necessary for self government. The marketplace and self-government justifications are utilitarian. An argument that is quite different is that freedom of thought and expression is central to what it means to be human and free. This justification is not based on a judgment about whether free speech “works.” In addition to being a means, expression becomes an end in itself. At first glance, this might seem to be a justification that would protect a much wider range of expression than would utilitarian justifications. Not necessarily. For example, one might argue that the values of equal protection and liberty that are expressed in the Constitution are even more important to what it means to be human and free than is speech. Thus, speech that denies someone’s human dignity because of insults based on race, gender, or sexual orientation might be prohibited under such a justification. Likewise, erotic novels or comedy routines might be seen as denying human dignity. Scholars and philosophers offer these and other theoretical explanations for why speech should be free from governmental restraint, and they have debated these questions for centuries. As one reads court opinions, it is helpful to try to determine the underlying theoretical assumptions. The theory that one chooses to justify freedom of speech might dictate the results. One might note that the words speech and expression have been used interchangeably, but doing so, in fact, sidesteps important issues. Few people would argue that speech means verbalization only; most people, including the Founders, understood the speech clause (along with the press clause) to include some aspects of the written word. But from there, agreement begins to fade. Does the written word also mean the fictional novel? Does it include art? Expression comes in many forms; what makes it speech for Constitutional purposes? Is it the

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form, the content, or the purpose that matters, and should various forms receive different levels of protection? For example, do political cartoons deserve as much protection as an editorial? As a street-corner speaker? Do these forms of expression deserve protection in ways that mere art for pleasure does not? Do parodies of political figures deserve more protection than parodies of people who are not in the public eye? Today, the word “speech” in the Constitution is undoubtedly understood to mean expression in some sense, even by those who would give the amendment its most crabbed interpretation, but the extent of the protection varies. The First Amendment says “Congress shall make no law.” In 1791, Congress with its lawmaking power would have been the relevant branch to limit, but as the powers of the federal government grew, the Amendment was understood to apply to other entities of the federal government. The First Amendment was also the first provision of the Bill of Rights to be incorporated by the Fourteenth Amendment and thus made applicable to the states. Therefore, “Congress” can now effectively be read as “government.” It is important to note that the First Amendment limits only the government from abridging speech. It is not a guarantee against others limiting speech, notwithstanding every teenager’s declamation to his or her parents about First Amendment rights. The principles may apply elsewhere, but the Constitutional protection does not. So this most simple of statements in the Constitution, “Congress shall make no law . . . abridging the freedom of speech” is not so simple: It is not limited to Congress, no law does not really mean no law, abridging may mean many things, and it is not even clear what constitutes speech.

DEVELOPMENT OF THE CONSTITUTIONAL LAW OF SPEECH There were certainly great struggles in our history regarding punishment for speech, most notably those caused by the Sedition Act of 1798, but it was not until the government passed the Espionage Act of 1917 that the Supreme Court became involved in interpreting the speech clause in a significant way. The case was Schenck v. United States (1919) and the opinion was written by Oliver Wendell Holmes. Schenck was the first in a long line of cases dealing

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

with the topic of subversive advocacy. The subversive advocacy cases became the classic cases that identified many of the principles that we now consider to be at the core of the First Amendment. Ironically, the great ideals were most often found in the dissents. It took a long time before free speech prevailed. Today, we live in a very speech protective society thanks in large part to many of the ideals expressed in these cases. Even today, however, Americans hold ambivalent views about their freedoms. A number of surveys have found that large majorities of the American public believe strongly in “free speech,” “free association,” “free press,” and related First Amendment rights in the abstract. But the large majorities dwindle when these particular concepts are applied in concrete situations. Surveys reveal that the same people who believe in free speech would not allow a Nazi, Communist, Black Panther, or Klan member the right to speak, or the right to speak very freely. Protection of First Amendment freedoms has never been automatic. These rights frequently conflict with restrictive legislation, governmental regulation, and community mores. Boundaries have changed over the years, reflecting changes in public opinion, scientific and technological advances, changes in interpersonal relationships, shifts in the political realities of the country (and at times of the world), and, of course, changes in Supreme Court personnel. First Amendment rights are not exercised in a vacuum. When constitutional rights hang in the balance, sooner or later the courts—and ultimately the U.S. Supreme Court—become the arena for resolving the disputes. Judicial decisions thus become guidelines for determining which forms of expression are to receive constitutional protection. The Court has repeatedly attempted to distinguish between speech that is protected by the Constitution and speech that is not. In doing so, the Court has developed several tests or doctrines to serve as guidelines. Judges, rather than tests or doctrines, decide cases that come before them. However, focusing on a test often helps explain how the Court went about the difficult task of safeguarding First Amendment freedoms in the face of substantial societal interests, such as preservation of the government and the preservation of peace and order. The first and most famous First Amendment test to be adopted by the Court was the “clear and present danger” test. It arose in the context of subversive advocacy.

CORE PRINCIPLES, SUBVERSIVE ADVOCACY, AND CLEAR AND PRESENT DANGER FEATURED CASES Schenck v. United States; Abrams v. United States; Gitlow v. New York; Whitney v. California; Dennis v. United States; Brandenburg v. Ohio “The question in every case,” said Justice Holmes for a unanimous Court in Schenck v. United States (249 U.S. 47, 1919), “is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” In the attempt to decide what constitutes such danger, the Court began to wrestle with speech at its core—speech against the government. Democratic governments clearly have the responsibility of self-preservation. Revolutions ultimately may be desirable, but revolutions by their very nature are not governed by constitutional processes. The early subversive advocacy cases have become the classic free-speech cases. They began in World War I and continued in the years immediately following World War II, when relations between the United States and the Soviet Union deteriorated to the point of a cold war impasse. The question in these cases was not whether subversive actions can be prevented. Rather, it was whether speech advocating unlawful actions can be punished. Holmes formulated the clear-and-present-danger test. Soon, however, he came to disagree with the way that his own test was being applied to specific cases. As the subversive advocacy cases progressed, he and Louis Brandeis wrote their famous dissents. They thought that the Court found danger too easily when serious threats were not really present. Nevertheless, fear in society grew, and the government responded by punishing speech. People were found guilty of subversive advocacy and imprisoned for acts ranging from passing out antiwar leaflets to attending certain meetings. Even a Presidential candidate was imprisoned for a speech that he gave. After World War II, suspicion mounted that an international Communist conspiracy seeking world domination was being actively supported by Communists living within the United States. These suspicions were stirred into a kind of widespread public hysteria as some politicians, most notably Senator Joe

Freedom of Expression

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

McCarthy (R-WI), charged that Communists were occupying positions in government and had infiltrated the military–industrial complex. Stung by Republican charges of official lack of attention to and toleration of Communists in such vital places, the Democratic Party realized that being tagged with a “soft on Communism” label could be very damaging in the forthcoming general elections. Hence, in 1948 the Justice Department moved to enforce the Smith Act against the American Communist Party, in which eleven of the group’s leaders were indicted on charges of willfully and knowingly (1) conspiring to organize the Communist Party, a group of persons who teach and advocate the overthrow of the government by force and violence; and (2) advocating and teaching the duty and necessity of overthrowing the government by force and violence. After a marathon trial lasting nine months, the Communist leaders were found guilty as charged. Subsequently, their convictions were affirmed by both the Court of Appeals for the Second Circuit and the Supreme Court in Dennis v. United States (infra). Both courts found that the act, on its face and as applied, did not cut too deeply into constitutional guarantees. Chief Justice Fred Vinson, writing the leading opinion for the Supreme Court, purported to use the clear-andpresent-danger test, but in order to determine clear and present danger he adopted reasoning that was applied in the Court of Appeals by Judge Learned Hand. To Judge Hand, the crucial question was “whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” The Chief Justice reasoned that since the government’s very existence was at stake, the clear-and-present-danger test did not mean that the government could not act until the “putsch was about to be executed.” Knowledge of the existence of a group aiming to overthrow the government “as speedily as circumstances would permit” was deemed sufficient to justify restrictive governmental action. The dissenters sharply disagreed with Chief Justice Vinson and criticized, among other things, what they considered his tortured construction of the clear-and-present-danger test. Even those who concurred with the Court’s decision questioned the wisdom of using “clear and present danger” in a case like Dennis and suggested what they considered to be more appropriate standards by which to uphold the conviction of the Communist leaders. Smith Act prosecutions eventually came to a close. The chief protagonists, such as Joe McCarthy, 36

had died, and the Court began to make it much harder to convict. In Yates v. United States (354 U.S. 298, 1957) the Court effectively put an end to conviction for advocacy under the Smith Act. The opinion was based on statutory interpretation, but it was written in a way that warned of Constitutional difficulties. Writing for the Court, Justice Harlan said: [We reject the proposition that] mere doctrinal justification of forcible overthrow, if engaged in with the intent to accomplish overthrow is punishable [under] the Smith Act.[In trying to distinguish Yates from Dennis] [The] essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something.

Many urged abandoning clear and present danger as a test. Justices Douglas, Black, and others argued that it had so often been interpreted to restrict speech improperly that it should be buried. The modern test governing advocacy comes from a case involving the Ku Klux Klan.In Brandenburg v. Ohio, the Court asserted there must be “incitement to imminent lawless action.” The Court did not mention the clear-andpresent-danger test. Neither did it disavow it, and conceivably the new standard is seen simply as the way to assess clear and present danger. On the other hand, to have ignored the words “clear and present danger” in Brandenburg surely was not simply an oversight, so many people believe that it has been replaced by “incitement to imminent lawless action.” Like all tests, this one has its problems. What constitutes incitement? Recall the funeral oration of Caesar: “Friends, Romans, countrymen, lend me your ears; I come to bury Caesar, not to praise him.” Mark Antony’s speech serves as a classic literary example of incitement, even while it claims to do otherwise. Or assume that a boring speaker and an electrifying speaker use the exact same words. Should the protection of speech turn on the eloquence of the speaker? The intent of the speaker? The reaction of the crowd? The new test solves some problems, but it raises others. The rocky road traveled by the clear and present danger test (Cf. Landmark Communication, Inc. v. Virginia, 435 U.S. 829, 1978) illustrates the fact that judges rather than tests or doctrines decide cases. It becomes quite clear that no matter what test or doctrine is used, or even whether one is used at all, individual judges invariably weigh or balance a number of factors and interests in reaching their decisions. It may well be that social circumstances and prevailing

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

political forces set the terms of First Amendment jurisprudence. Worldwide communism is no longer seen as a threat, but it takes little imagination to see that fear of terrorism could become its modern coun-

terpart. The threats may be essentially the same or they may be fundamentally different, but there is little doubt that many of the debates thought to have been resolved in an earlier era will resurface.

SCHENCK V. UNITED STATES 249 U.S. 47 (1919) JUSTICE HOLMES delivered the opinion of the Court. This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15, 1917, by causing and attempting to cause insubordination . . . in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire, to-wit, that the defendant wilfully conspired to have printed and circulated to men who had been called and accepted for military service under the Act of May 18, 1917, a document set forth and alleged to be calculated to cause such insubordination and obstruction. The count alleges overt acts in pursuance of the conspiracy, ending in the distribution of the document set forth. The second count alleges a conspiracy to commit an offense against the United States, towit, to use the mails for the transmission of matter declared to be non-mailable by the Act of June 15, 1917. . . . The third count charges an unlawful use of the mails for the transmission of the same matter. . . . The defendants were found guilty on all the counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech, or of the press. . . . According to the testimony Schenck said he was general secretary of the Socialist party and had charge of the Socialist headquarters from which the documents were sent. . . . [No] reasonable man could doubt that the defendant Schenck was largely instrumental in sending the circulars about. . . . The document in question upon its first printed side recited the first section of the Thirteenth Amendment, said that the idea embodied in it was violated by the conscription act and that a conscript is little better than a convict. In impassioned language it intimated that conscription was despotism

in its worst form and a monstrous wrong against humanity in the interest of Wall Street’s chosen few. It said, “Do not submit to intimidation,” but in form at least confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed “Assert Your Rights.” It stated reasons for alleging that any one violated the Constitution when he refused to recognize “your right to assert your opposition to the draft,” and went on, “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.” It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such coldblooded ruthlessness deserves, &c., &c., winding up, “You must do your share to maintain, support and uphold the rights of the people of this country.” Of course the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out. The defendants do not deny that the jury might find against them on this point. But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well-known public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose. . . . We admit that in Freedom of Expression

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be

said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right. It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917 punishes conspiracies to obstruct as well as actual obstruction. If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime. . . . Judgments affirmed.

ABRAMS V. UNITED STATES 250 U.S. 616 (1919) JUSTICE CLARKE delivered the opinion of the Court. On a single indictment, containing four counts, the five plaintiffs in error, hereinafter designated the defendants, were convicted of conspiring to violate provisions of the Espionage Act of Congress (Act June 15, 1917, as amended by Act May 16, 1918). Each of the first three counts charged the defendants with conspiring, when the United States was at war with the Imperial Government of Germany, to unlawfully utter, print, write and publish: In the first count, “disloyal, scurrilous and abusive language about the form of government of the United States;” in the second count, language “intended to bring the form of government of the United States into contempt, scorn, contumely, and disrepute;” and in the third count, language “intended to incite, provoke and encourage resistance to the United States in said war.” The charge in the fourth count was that the defendants conspired “when the United States was at war with the Imperial German Government, . . . unlawfully and willfully, by utterance, writing, printing and publication to urge, incite and advocate curtailment of production of things and products, to wit, ordnance and ammunition, necessary and essential to the prosecution of the war.” The offenses were charged in the language of the act of Congress. It was charged in each count of the indictment that it was a part of the conspiracy that the defen38

dants would attempt to accomplish their unlawful purpose by printing, writing and distributing in the city of New York many copies of a leaflet or circular, printed in the English language, and of another printed in the Yiddish language. . . . All of the five defendants were born in Russia. They were intelligent, had considerable schooling, and at the time they were arrested they had lived in the United States terms varying from five to ten years, but none of them had applied for naturalization. Four of them testified as witnesses in their own behalf, and of these three frankly avowed that they were “rebels,” “revolutionists,” “anarchists,” that they did not believe in government in any form, and they declared that they had no interest whatever in the government of the United States. The fourth defendant testified that he was a “Socialist” and believed in “a proper kind of government, not capitalistic,” but in his classification the government of the United States was “capitalistic.” It was admitted on the trial that the defendants had united to print and distribute the described circulars and that 5,000 of them had been printed and distributed about the 22d day of August, 1918. . . . The circulars were distributed, some by throwing them from a window of a building where one of the defendants was employed and others secretly, in New York City. . . . On the record thus described it is argued, somewhat faintly, that the acts charged against the

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

defendants were not unlawful because within the protection of that freedom of speech and of the press which is guaranteed by the First Amendment to the Constitution of the United States, and that the entire Espionage Act is unconstitutional because in conflict with that amendment. This contention is sufficiently discussed and is definitely negatived in Schenck v. United States, 249 U.S. 47, and in Frohwerk v. United States, 249 U.S. 204. The first of the two articles attached to the indictment is conspicuously headed, “The Hypocrisy of the United States and her Allies.” After denouncing President Wilson as a hypocrite and a coward because troops were sent into Russia, it proceeds to assail our government in general, saying: “His [the President’s] shameful, cowardly silence about the intervention in Russia reveals the hypocrisy of the plutocratic gang in Washington and vicinity.” It continues: He [the President] is too much of a coward to come out openly and say: “We capitalistic nations cannot afford to have a proletarian republic in Russia.”

Among the capitalistic nations Abrams testified the United States was included. Growing more inflammatory as it proceeds, the circular culminates in: The Russian Revolution cries: “Workers of the World! Awake! Rise! Put down your enemy and mine!” Yes friends, there is only one enemy of the workers of the world and that is CAPITALISM.

This is clearly an appeal to the “workers” of this country to arise and put down by force the government of the United States which they characterize as their “hypocritical,” “cowardly” and “capitalistic” enemy. It concludes: Awake! Awake, you Workers of the World! REVOLUTIONISTS.

The second of the articles was printed in the Yiddish language and in the translation is headed, “Workers—Wake Up.” After referring to “his Majesty, Mr. Wilson, and the rest of the gang, dogs of all colors!” it continues: Workers, Russian emigrants, you who had the least belief in the honesty of our government, [which defendants admitted referred to the United States government] must now throw away all confidence, must spit in the face the false, hypocritic, military propaganda which has fooled you so relentlessly, calling forth your sympathy, your help, to the prosecution of the war.

The purpose of this obviously was to persuade the persons to whom it was addressed to turn a deaf ear to patriotic appeals in behalf of the government of the United States, and to cease to render it assistance in the prosecution of the war. It goes on: With the money which you have loaned, or are going to loan them, they will make bullets not only for the Germans, but also for the Workers Soviets of Russia. Workers in the ammunition factories, you are producing bullets, bayonets, cannon, to murder not only the Germans, but also your dearest, best, who are in Russia and are fighting for freedom.

It will not do to say, as is now argued, that the only intent of these defendants was to prevent injury to the Russian cause. Men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce. Even if their primary purpose and intent was to aid the cause of the Russian Revolution, the plan of action which they adopted necessarily involved, before it could be realized, defeat of the war program of the United States, for the obvious effect of this appeal, if it should become effective, as they hoped it might, would be to persuade persons of character such as those whom they regarded themselves as addressing, not to aid government loans and not to work in ammunition factories, where their work would produce “bullets, bayonets, cannon” and other munitions of war, the use of which would cause the “murder” of Germans and Russians. Again, the spirit becomes more bitter as it proceeds to declare that— America and her Allies have betrayed [the Workers]. Their robberish aims are clear to all men. The destruction of the Russian Revolution, that is the politics of the march to Russia. Workers, our reply to the barbaric intervention has to be a general strike! An open challenge only will let the government know that not only the Russian Worker fights for freedom, but also here in America lives the spirit of Revolution.

This is not an attempt to bring about a change of administration by candid discussion, for no matter what may have incited the outbreak on the part of the defendant anarchists, the manifest purpose of such a publication was to create an attempt to defeat the war plans of the government of the United States, by bringing upon the country the paralysis of a general strike, thereby arresting the production of all munitions and other things essential to the conduct of the war. Freedom of Expression

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This purpose is emphasized in the next paragraph, which reads:

and they shall never see the ruin of the Russian Revolution.

Do not let the government scare you with their wild punishment in prisons, hanging and shooting. We must not and will not betray the splendid fighters of Russia. Workers, up to fight.

These excerpts sufficiently show, that while the immediate occasion for this particular outbreak of lawlessness, on the part of the defendant alien anarchists, may have been resentment caused by our government sending troops into Russia . . ., yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing and if possible defeating the military plans of the government in Europe. A technical distinction may perhaps be taken between disloyal and abusive language applied to the form of our government . . . and language of like character and intended to produce like results directed against the President and Congress. . . . But it is not necessary to a decision of this case to consider whether such distinction is vital or merely formal, for the language of these circulars was obviously intended to provoke and to encourage resistance to the United States in the war, as the third count runs, and, the defendants, in terms, plainly urged and advocated a resort to a general strike of workers in ammunition factories for the purpose of curtailing the production of ordnance and munitions necessary and essential to the prosecution of the war. . . . Thus it is clear not only that some evidence but that much persuasive evidence was before the jury tending to prove that the defendants were guilty as charged in both the third and fourth counts of the indictment and under the long established rule of law hereinbefore stated the judgment of the District Court must be Affirmed.

After more of the same kind, the circular concludes: Woe unto those who will be in the way of progress. Let solidarity live!

It is signed, “The Rebels.” That the interpretation we have put upon these articles, circulated in the greatest port of our land, from which great numbers of soldiers were at the time taking ship daily, and in which great quantities of war supplies of every kind were at the time being manufactured for transportation overseas, is not only the fair interpretation of them, but that it is the meaning which their authors consciously intended should be conveyed by them to others is further shown by the additional writings found in the meeting place of the defendant group and on the person of one of them. One of these circulars is headed: “Revolutionists! Unite for Action!” After denouncing the President as “Our Kaiser” and the hypocrisy of the United States and her Allies, this article concludes: Socialists, Anarchists, Industrial Workers of the World, Socialists, Labor party men and other revolutionary organizations Unite for Action and let us save the Workers’ Republic of Russia! Know you lovers of freedom that in order to save the Russian revolution, we must keep the armies of the allied countries busy at home.

Thus was again avowed the purpose to throw the country into a state of revolution, if possible, and to thereby frustrate the military program of the government. The remaining article, after denouncing the President for what is characterized as hostility to the Russian revolution, continues: We, the toilers of America, who believe in real liberty, shall pledge ourselves, in case the United States will participate in that bloody conspiracy against Russia, to create so great a disturbance that the autocrats of America shall be compelled to keep their armies at home, and not be able to spare any for Russia.

It concludes with this definite threat of armed rebellion: If they will use arms against the Russian people to enforce their standard of order, so will we use arms, 40

JUSTICE HOLMES, joined by JUSTICE BRANDEIS, dissenting: This indictment is founded wholly upon the publication of two leaflets. . . . No argument seems to be necessary to show that these pronunciamientos in no way attack the form of government of the United States, or that they do not support either of the first two counts. What little I have to say about the third count may be postponed until I have considered the fourth. With regard to that it seems too plain to be denied that the suggestion to workers in the ammunition factories that they are producing bullets to murder their dearest, and the further advocacy of a general strike, both in the second leaflet, do urge curtailment of production of

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things necessary to the prosecution of the war within the meaning of the Act of May 16, 1918, c. 75, 40 Stat. 553, amending section 3 of the earlier Act of 1917 (Comp. St. 10212c). But to make the conduct criminal that statute requires that it should be “with intent by such curtailment to cripple or hinder the United States in the prosecution of the war.” It seems to me that no such intent is proved. I am aware of course that the word “intent” as vaguely used in ordinary legal discussion means no more than knowledge at the time of the act that the consequences said to be intended will ensue. Even less than that will satisfy the general principle of civil and criminal liability. A man may have to pay damages, may be sent to prison, at common law might be hanged, if at the time of his act he knew facts from which common experience showed that the consequences would follow, whether he individually could foresee them or not. But, when words are used exactly, a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed. It may be obvious, and obvious to the actor, that the consequence will follow, and he may be liable for it even if he regrets it, but he does not do the act with intent to produce it unless the aim to produce it is the proximate motive of the specific act, although there may be some deeper motive behind. It seems to me that this statute must be taken to use its words in a strict and accurate sense. They would be absurd in any other. A patriot might think that we were wasting money on aeroplanes, or making more cannon of a certain kind than we needed, and might advocate curtailment with success, yet even if it turned out that the curtailment hindered and was thought by other minds to have been obviously likely to hinder the United States in the prosecution of the war, no one would hold such conduct a crime. I admit that my illustration does not answer all that might be said but it is enough to show what I think and to let me pass to a more important aspect of the case. I refer to the First Amendment to the Constitution that Congress shall make no law abridging the freedom of speech. I never have seen any reason to doubt that the questions of law that alone were before this Court in the Cases of Schenck, Frohwerk, and Debs were rightly decided. I do not doubt for a moment that by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will

bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace because war opens dangers that do not exist at other times. But as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so. Publishing those opinions for the very purpose of obstructing, however, might indicate a greater danger and at any rate would have the quality of an attempt. So I assume that the second leaflet if published for the purposes alleged in the fourth count might be punishable. But it seems pretty clear to me that nothing less than that would bring these papers within the scope of this law. . . . I do not see how anyone can find the intent required by the statute in any of the defendant’s words. The second leaflet is the only one that affords even a foundation for the charge, and there, without invoking the hatred of German militarism expressed in the former one, it is evident from the beginning to the end that the only object of the paper is to help Russia and stop American intervention there against the popular government—not to impede the United States in the war that it was carrying on. To say that two phrases taken literally might import a suggestion of conduct that would have interference with the war as an indirect and probably undesired effect seems to me by no means enough to show an attempt to produce that effect. . . . In this case sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper; I will add, even if what I think the necessary intent were shown; the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are Freedom of Expression

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to be made to suffer not for what the indictment alleges but for the creed that they avow—a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here but which, although made the subject of examination at the trial, no one has a right even to consider in dealing with the charges before the Court. Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if

not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798 (Act July 14, 1798, c. 73, 1 Stat. 596), by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, ‘Congress shall make no law abridging the freedom of speech.’ Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States.

GITLOW V. NEW YORK 268 U.S. 652 (1925) JUSTICE SANFORD delivered the opinion of the Court. Benjamin Gitlow was indicted in the Supreme Court of New York, with three others, for the statutory crime of criminal anarchy. New York Penal Law, 160, 161.1. He was separately tried, convicted, and sentenced to imprisonment. . . . The contention here is that the statute, by its terms and as applied in this case, is repugnant to the due process clause of the Fourteenth Amendment. Its material provisions are: Sec. 160. Criminal Anarchy Defined. Criminal anarchy is the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head or of any of the ex42

ecutive officials of government, or by any unlawful means. The advocacy of such doctrine either by word of mouth or writing is a felony. Sec. 161. Advocacy of Criminal Anarchy. Any person who: 1. By word of mouth or writing advocates, advises or teaches the duty, necessity or propriety of overthrowing or overturning organized government by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means; or, 2. Prints, publishes, edits, issues or knowingly circulates, sells, distributes or publicly displays any book, paper, document,

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

or written or printed matter in any form, containing or advocating, advising or teaching the doctrine that organized government should be overthrown by force, violence or any unlawful means, . . . Is guilty of a felony and punishable by imprisonment or fine, or both.

The indictment was in two counts. The first charged that the defendant had advocated, advised and taught the duty, necessity and propriety of overthrowing and overturning organized government by force, violence and unlawful means, by certain writings therein set forth entitled “The Left Wing Manifesto”; the second that he had printed, published and knowingly circulated and distributed a certain paper called “The Revolutionary Age,” containing the writings set forth in the first count advocating, advising and teaching the doctrine that organized government should be overthrown by force, violence and unlawful means. The following facts were established on the trial by undisputed evidence and admissions: The defendant is a member of the Left Wing Section of the Socialist Party, a dissenting branch or faction of that party formed in opposition to its dominant policy of “moderate Socialism.” . . . There was no evidence of any effect resulting from the publication and circulation of the Manifesto. . . . [T]he Manifesto . . . condemned the dominant “moderate Socialism” for its recognition of the necessity of the democratic parliamentary state; repudiated its policy of introducing Socialism by legislative measures; and advocated, in plain and unequivocal language, the necessity of accomplishing the “Communist Revolution” by a militant and “revolutionary Socialism,” based on “the class struggle” and mobilizing the “power of the proletariat in action,” through mass industrial revolts developing into mass political strikes and “revolutionary mass action,” for the purpose of conquering and destroying the parliamentary state and establishing in its place, through a “revolutionary dictatorship of the proletariat,” the system of Communist Socialism. . . . The court, among other things, charged the jury, in substance, that they must determine what was the intent, purpose and fair meaning of the Manifesto; that its words must be taken in their ordinary meaning, as they would be understood by people whom it might reach; that a mere statement or analysis of social and economic facts and historical incidents, in the nature of an essay, accompanied by prophecy as

to the future course of events, but with no teaching, advice or advocacy of action, would not constitute the advocacy, advice or teaching of a doctrine for the overthrow of government within the meaning of the statute; that a mere statement that unlawful acts might accomplish such a purpose would be insufficient, unless there was a teaching, advising the advocacy of employing such unlawful acts for the purpose of overthrowing government; and that if the jury had a reasonable doubt that the Manifesto did teach, advocate or advise the duty, necessity or propriety of using unlawful means for the overthrowing of organized government, the defendant was entitled to an acquittal. The defendant’s counsel submitted two requests to charge which embodied in substance the statement that to constitute criminal anarchy within the meaning of the statute it was necessary that the language used or published should advocate, teach or advise the duty, necessity or propriety of doing “some definite or immediate act or acts” or force, violence or unlawfulness directed toward the overthrowing of organized government. These were denied. . . . Two other requests to charge embodied in substance the statement that to constitute guilt the language used or published must be “reasonably and ordinarily calculated to incite certain persons” to acts of force, violence or unlawfulness, with the object of overthrowing organized government. These were also denied. . . . The Court of Appeals held that the Manifesto “advocated the overthrow of this government by violence, or by unlawful means.” In one of the opinions representing the views of a majority of the court, it was said . . . As we read this Manifesto . . . we feel entirely clear that the jury were justified in rejecting the view that it was a mere academic and harmless discussion of the advantages of communism and advanced socialism and in regarding it as a justification and advocacy of action by one class which would destroy the rights of all other classes and overthrow the state itself by use of revolutionary mass strikes. It is true that there is no advocacy in specific terms of the use of . . . force or violence. There was no need to be. Some things are so commonly incident to others that they do not need to be mentioned when the underlying purpose is described. . . .

The precise question presented, and the only question which we can consider under this writ of error, then is, whether the statute, as construed and Freedom of Expression

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applied in this case, by the State courts, deprived the defendant of his liberty of expression in violation of the due process clause of the Fourteenth Amendment. The statute does not penalize the utterance or publication of abstract “doctrine” or academic discussion having no quality of incitement to any concrete action. It is not aimed against mere historical or philosophical essays. It does not restrain the advocacy of changes in the form of government by constitutional and lawful means. What it prohibits is language advocating, advising or teaching the overthrow of organized government by unlawful means. These words imply urging to action. . . . The Manifesto, plainly, is neither the statement of abstract doctrine nor, as suggested by counsel, mere prediction that industrial disturbances and revolutionary mass strikes will result spontaneously in an inevitable process of evolution in the economic system. It advocates and urges in fervent language mass action which shall progressively foment industrial disturbances and through political mass strikes and revolutionary mass action overthrow and destroy organized parliamentary government. It concludes with a call to action in these words: The proletariat revolution and the Communist reconstruction of society—the struggle for these—is now indispensable. . . . The Communist International calls the proletariat of the world to the final struggle!

This is not the expression of philosophical abstraction, the mere prediction of future events; it is the language of direct incitement. . . . For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States. . . . It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. Reasonably limited, it was said by Story . . . this freedom is an inestimable privilege in a free government; without such limitation, it might become the scourge of the republic. 44

That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question. . . . And, for yet more imperative reasons, a State may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means. . . . In Toledo Newspaper Co. v. United States, it was said: The safeguarding and fructification of free and constitutional institutions is the very basis and mainstay upon which the freedom of the press rests, and that freedom, therefore, does not and cannot be held to include the right virtually to destroy such institutions.

By enacting the present statute the State has determined, through its legislative body, that utterances advocating the overthrow of organized government by force, violence and unlawful means, are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power. . . . The State cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler’s scale. A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said that the State is acting arbitrarily or unreasonably when in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration. It cannot reasonably be required to defer the adoption of measures for its own peace and safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction; but it may, in the exercise of its judgment, suppress the threatened danger in its incipiency. . . . We cannot hold that the present statute is an arbitrary or unreasonable exercise of the police power of the State unwarrantably infringing the freedom of speech or press; and we must and do sustain its constitutionality. . . . In other words, when the legislative body has determined generally, in the constitutional exercise of its discretion, that utterances of a certain kind involve such danger of substantive evil that they may be punished, the question whether any specific utterance coming within the prohibited class is likely, in and of

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

itself, to bring about the substantive evil, is not open to consideration. It is sufficient that the statute itself be constitutional and that the use of the language comes within its prohibition. It is clear that the question in such cases is entirely different from that involved in those cases where the statute merely prohibits certain acts involving the danger of substantive evil, without any reference to language itself, and it is sought to apply its provisions to language used by the defendant for the purpose of bringing about the prohibited results. . . . And the general statement in the Schenck Case, that the “question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils,”—upon which great reliance is placed in the defendant’s argument—was manifestly intended, as shown by the context, to apply only in cases of this class, and has no application to those like the present, where the legislative body itself has previously determined the danger of substantive evil arising from utterances of a specified character. . . . Affirmed. JUSTICE HOLMES, joined by JUSTICE BRANDEIS, dissenting: Mr. Justice Brandeis and I are of opinion that this judgment should be reversed. . . . I think that the criterion sanctioned by the full Court in Schenck v. United States applies. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that [the State] has a right to prevent.

It is true that in my opinion this criterion was departed from in Abrams. . . , but the convictions that I expressed in that case are too deep for it to be possible for me as yet to believe that it . . . settled the law. If what I think the correct test is applied it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant’s views. It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way. If the publication of this document had been laid as an attempt to induce an uprising against government at once and not at some indefinite time in the future it would have presented a different question. The object would have been one with which the law might deal, subject to the doubt whether there was any danger that the publication could produce any result, or in other words, whether it was not futile and too remote from possible consequences. But the indictment alleges the publication and nothing more.

WHITNEY V. CALIFORNIA 274 U.S. 357 (1927) JUSTICE SANFORD delivered the opinion of the Court. By a criminal information filed in the Superior Court of Alameda County, California, the plaintiff in error was charged, in five counts, with violations of the Criminal Syndicalism Act of that State. She was

tried, convicted on the first count, and sentenced to imprisonment. . . . The pertinent provisions of the Criminal Syndicalism Act are: Section 1. The term “criminal syndicalism” as used in this act is hereby defined as any doctrine or Freedom of Expression

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precept advocating, teaching or aiding and abetting the commission of crime, sabotage (which word is hereby defined as meaning willful and malicious physical damage or injury to physical property), or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control or effecting any political change. Sec. 2. Any person who: . . . 4. Organizes or assists in organizing, or is or knowingly becomes a member of, any organization, society, group or assemblage of persons organized or assembled to advocate, teach or aid and abet criminal syndicalism; . . . Is guilty of a felony and punishable by imprisonment. . . .

The following facts, among many others, were established on the trial by undisputed evidence: The defendant, a resident of Oakland, in Alameda County, California, had been a member of the Local Oakland branch of the Socialist Party. This Local sent delegates to the national convention of the Socialist Party held in Chicago in 1919, which resulted in a split between the “radical” group and the old-wing Socialists. The “radicals”—to whom the Oakland delegates adhered—being ejected, went to another hall, and formed the Communist Labor Party of America. Its Constitution provided for the membership of persons subscribing to the principles of the Party and pledging themselves to be guided by its Platform, and for the formation of state organizations conforming to its Platform as the supreme declaration of the Party. In its “Platform and Program” the Party declared that it was in full harmony with “the revolutionary working class parties of all countries” and adhered to the principles of Communism laid down in the Manifesto of the Third International at Moscow, and that its purpose was “to create a unified revolutionary working class movement in America,” organizing the workers as a class, in a revolutionary class struggle to conquer the capitalist state, for the overthrow of capitalist rule, the conquest of political power and the establishment of a working class government, the Dictatorship of the Proletariat, in place of the state machinery of the capitalists, which should make and enforce the laws, reorganize society on the basis of Communism and bring about the Communist Commonwealth; advocated, as the most important means of capturing state power, the action of the masses, proceeding from the shops and factories, the use of the political machinery of the capitalist state being only secondary; the 46

organization of the workers into ‘revolutionary industrial unions’; propaganda pointing out their revolutionary nature and possibilities; and great industrial battles showing the value of the strike as a political weapon; commended the propaganda and example of the Industrial Workers of the World and their struggles and sacrifices in the class war; pledged support and co-operation to “the revolutionary industrial proletariat of America” in their struggles against the capitalist class; cited the Seattle and Winnipeg strikes and the numerous strikes all over the country “proceeding without the authority of the old reactionary Trade Union officials,” as manifestations of the new tendency; and recommended that strikes of national importance be supported and given a political character, and that propagandists and organizers be mobilized “who can not only teach, but actually help to put in practice the principles of revolutionary industrial unionism and Communism.” Shortly thereafter the Local Oakland withdrew from the Socialist Party, and sent accredited delegates, including the defendant, to a convention held in Oakland in November, 1919, for the purpose of organizing a California branch of the Communist Labor Party. The defendant, after taking out a temporary membership in the Communist Labor Party, attended this convention as a delegate and took an active part in its proceedings. She was elected a member of the Credentials Committee, and, as its chairman, made a report to the convention upon which the delegates were seated. She was also appointed a member of the Resolutions Committee, and as such signed the following resolution in reference to political action, among others proposed by the Committee: The C. L. P. of California fully recognizes the value of political action as a means of spreading communist propaganda; it insists that in proportion to the development of the economic strength of the working class, it, the working class, must also develop its political power. The C. L. P. of California proclaims and insists that the capture of political power, locally or nationally by the revolutionary working class can be of tremendous assistance to the workers in their struggle of emancipation. Therefore, we again urge the workers who are possessed of the right of franchise to cast their votes for the party which represents their immediate and final interest—the C. L. P.—at all elections, being fully convinced of the utter futility of obtaining any real measure of justice or freedom under officials elected by parties owned and controlled by the capitalist class.

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

The minutes show that this resolution, with the others proposed by the committee, was read by its chairman to the convention before the Committee on the Constitution had submitted its report. According to the recollection of the defendant, however, she herself read this resolution. Thereafter, before the report of the Committee on the Constitution had been acted upon, the defendant was elected an alternate member of the State Executive Committee. The Constitution, as finally read, was then adopted. This provided that the organization should be named the Communist Labor Party of California; that it should be “affiliated with” the Communist Labor Party of America, and subscribe to its Program, Platform and Constitution, and “through this affiliation” be “joined with the Communist International of Moscow”; and that the qualifications for membership should be those prescribed in the National Constitution. The proposed resolutions were later taken up and all adopted, except that on political action, which caused a lengthy debate, resulting in its defeat and the acceptance of the National Program in its place. After this action, the defendant, without, so far as appears, making any protest, remained in the convention until it adjourned. She later attended as an alternate member one or two meetings of the State Executive Committee in San Jose and San Francisco, and stated, on the trial, that she was then a member of the Communist Labor Party. She also testified that it was not her intention that the Communist Labor Party of California should be an instrument of terrorism or violence, and that it was not her purpose or that of the Convention to violate any known law. In the light of this preliminary statement, we now take up, in so far as they require specific consideration, the various grounds upon which it is here contended that the Syndicalism Act and its application in this case is repugnant to the due process and equal protection clauses of the Fourteenth Amendment. 1. While it is not denied that the evidence warranted the jury in finding that the defendant became a member of and assisted in organizing the Communist Labor Party of California, and that this was organized to advocate, teach, aid or abet criminal syndicalism as defined by the Act, it is urged that the Act, as here construed and applied, deprived the defendant of her liberty without due process of law in that it has made her action in attending the Oakland convention unlawful by reason of “a subsequent event brought about against

her will, by the agency of others,” with no showing of a specific intent on her part to join in the forbidden purpose of the association, and merely because, by reason of a lack of “prophetic” understanding, she failed to foresee the quality that others would give to the convention. The argument is, in effect, that the character of the state organization could not be forecast when she attended the convention; that she had no purpose of helping to create an instrument of terrorism and violence; that she “took part in formulating and presenting to the convention a resolution which, if adopted, would have committed the new organization to a legitimate policy of political reform by the use of the ballot”; that it was not until after the majority of the convention turned out to be “contrary minded, and other less temperate policies prevailed” that the convention could have taken on the character of criminal syndicalism; and that as this was done over her protest, her mere presence in the convention, however violent the opinions expressed therein, could not thereby become a crime. This contention, while advanced in the form of a constitutional objection to the Act, is in effect nothing more than an effort to review the weight of the evidence for the purpose of showing that the defendant did not join and assist in organizing the Communist Labor Party of California with a knowledge of its unlawful character and purpose. This question, which is foreclosed by the verdict of the jury—sustained by the Court of Appeal over the specific objection that it was not supported by the evidence—is one of fact merely which is not open to review in this Court, involving as it does no constitutional question whatever. And we may add that the argument entirely disregards the facts that the defendant had previously taken out a membership card in the National Party; that the resolution which she supported did not advocate the use of the ballot to the exclusion of violent and unlawful means of bringing about the desired changes in industrial and political conditions; and that, after the constitution of the California Party had been adopted, and this resolution had been voted down and the National Program accepted, she not only remained in the convention, without protest, until its close, but subsequently manifested her acquiescence by attending as an alternate member of the State Executive Committee and continuing as a member of the Communist Labor Party. . . . Affirmed. Freedom of Expression

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JUSTICE BRANDEIS, concurring: [A]lthough the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral. That the necessity which is essential to a valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the state constitutionally may seek to prevent has been settled. See Schenck v. United States. It is said to be the function of the Legislature to determine whether at a particular time and under the particular circumstances the formation of, or assembly with, a society organized to advocate criminal syndicalism constitutes a clear and present danger of substantive evil; and that by enacting the law here in question the Legislature of California determined that question in the affirmative. The Legislature must obviously decide, in the first instance, whether a danger exists which calls for a particular protective measure. But where a statute is valid only in case certain condition exist, the enactment of the statute cannot alone establish the facts which are essential to its validity. . . . This court has not yet fixed the standard by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present; and what degree of evil shall be deemed sufficiently substantial to justify resort to abridgment of free speech and assembly as the means of protection. To reach sound conclusions on these matters, we must bear in mind why a state is, ordinarily, denied the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence. Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest 48

menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law—the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of lawbreaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated. Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning

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applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it. Moreover, even imminent danger cannot justify resort to prohibition of these functions essential to effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society. A police measure may be unconstitutional merely because the remedy, although effective as means of protection, is unduly harsh or oppressive. Thus, a state might, in the exercise of its police power, make any trespass upon the land of another a crime, regardless of the results or of the intent or purpose of the trespasser. It might, also, punish an attempt, a conspiracy, or an incitement to commit the trespass. But it is hardly conceivable that this court would hold constitutional a statute which punished as a felony the mere voluntary assembly with a society formed to teach that pedestrians had the moral right to cross uninclosed, unposted, waste lands and to advocate their doing so, even if there was imminent danger that advocacy would lead to a trespass. The fact that speech is likely to result in some violence or

in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the State. Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly. Whether in 1919, when Miss Whitney did the things complained of, there was in California such clear and present danger of serious evil, might have been made the important issue in the case. She might have required that the issue be determined either by the court or the jury. She claimed below that the statute as applied to her violated the federal Constitution; but she did not claim that it was void because there was no clear and present danger of serious evil, nor did she request that the existence of these conditions of a valid measure thus restricting the rights of free speech and assembly be passed upon by the court of a jury. On the other hand, there was evidence on which the court or jury might have found that such danger existed. I am unable to assent to the suggestion in the opinion of the court that assembling with a political party, formed to advocate the desirability of a proletarian revolution by mass action at some date necessarily far in the future, is not a right within the protection of the Fourteenth Amendment. In the present case, however, there was other testimony which tended to establish the existence of a conspiracy, on the part of members of the International Workers of the World, to commit present serious crimes, and likewise to show that such a conspiracy would be furthered by the activity of the society of which Miss Whitney was a member. Under these circumstances the judgment of the State court cannot be disturbed. . . . Mr. Justice Holmes joins in this opinion.

DENNIS V. UNITED STATES 341 U.S. 494 (1951) CHIEF JUSTICE VINSON announced the judgment of the Court and an opinion. Petitioners were indicted in July 1948, for violation of the conspiracy provisions of the Smith Act, 54 Stat. 670, 671, ch. 439, 18 U.S.C. (1946 ed.) section 11,

during the period of April, 1945, to July, 1948. . . . [T]he case was set for trial on January 17, 1949 [and a] verdict of guilty as to all the petitioners was returned by the jury on October 14, 1949. The Court of Appeals affirmed the convictions. . . . We granted certiorari . . . limited to the following two questions: Freedom of Expression

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(1) Whether either section 2 or section 3 of the Smith Act, inherently or as construed and applied in the instant case, violates the First Amendment and other provisions of the Bill of Rights; (2) whether either section 2 or section 3 of the Act, inherently or as construed and applied in the instant case, violates the First and Fifth Amendments because of indefiniteness. Sections 2 and 3 of the Smith Act, 54 Stat. 670, 671, ch. 439, 18 U.S.C. (1946 ed.) sections 10, 11 (see present 18 U.S.C. Section 2385), provide as follows: Sec. 2. (a) It shall be unlawful for any person (1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of such government; (2) with the intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence; (3) to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group, or assembly of persons knowing the purposes thereof. . . . Sec. 3. It shall be unlawful for any person to attempt to commit, or to conspire to commit, any of the acts prohibited by the provision of . . . this title.

The indictment charged the petitioners with willfully and knowingly conspiring (1) to organize as the Communist Party of the United States of America a society, group and assembly of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence, and (2) knowingly and willfully to advocate and teach the duty and necessity of overthrowing and destroying the Government of the United States by force and violence. The indictment further alleged that section 2 of the Smith Act proscribes these acts and that any conspiracy to take such actions is a violation of section 3 of the Act. 50

. . . Our limited grant of the writ of certiorari has removed from our consideration any question as to the sufficiency of the evidence to support the jury’s determination that petitioners are guilty of the offense charged. Whether on this record petitioners did in fact advocate the overthrow of the Government by force and violence is not before us, and we must base any discussion of this point upon the conclusions stated in the opinion of the Court of Appeals, which treated the issue in great detail. That court held that the record in this case amply supports the necessary finding of the jury that petitioners, the leaders of the Communist Party in this country, were unwilling to work within our framework of democracy, but intended to initiate a violent revolution whenever the propitious occasion appeared. ... It will be helpful in clarifying the issues to treat next the contention that the trial judge improperly interpreted the statute by charging that the statute required an unlawful intent before the jury could convict. More specifically, he charged that the jury could not find the petitioners guilty under the indictment unless they found that petitioners had the intent “to overthrow the government by force and violence as speedily as circumstances permit.” . . . The structure and purpose of the statute demanded the inclusion of intent as an element of the crime. Congress was concerned with those who advocate and organize for the overthrow of the Government. Certainly those who recruit and combine for the purpose of advocating overthrow intend to bring about that overthrow. We hold that the statute requires as an essential element of the crime proof of the intent of those who are charged with its violation to overthrow the Government by force and violence. ... The obvious purpose of the statute is to protect existing Government, not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism. That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion. Whatever theoretical merit there may be to the argument that there is a “right” to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change. We reject any principle of governmental helplessness

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence. The question with which we are concerned here is not whether Congress has such power, but whether the means which it has employed conflict with the First and Fifth Amendments to the Constitution. One of the bases for the contention that the means which Congress has employed are invalid takes the form of an attack on the face of the statute on the grounds that by its terms it prohibits academic discussion of the merits of Marxism-Leninism, that it stifles ideas and is contrary to all concepts of a free speech and a free press. Although we do not agree that the language itself has that significance, we must bear in mind that it is the duty of the federal courts to interpret federal legislation in a manner not inconsistent with the demands of the Constitution. . . . The very language of the Smith Act negates the interpretation which petitioners would have us impose on that Act. It is directed at advocacy, not discussion. Thus, the trial judge properly charged the jury that they could not convict if they found that petitioners did “no more than pursue peaceful studies and discussions or teaching and advocacy in the realm of ideas.” He further charged that it was not unlawful “to conduct in an American college and university a course explaining the philosophical theories set forth in the books which have been placed in evidence.” Such a charge is in strict accord with the statutory language, and illustrates the meaning to be placed on those words. Congress did not intend to eradicate the free discussion of political theories, to destroy the traditional rights of Americans to discuss and evaluate ideas without fear of governmental sanction. Rather Congress was concerned with the very kind of activity in which the evidence showed these petitioners engaged. . . . ... [Here Justice Vinson examines the application of clear and present danger between Schenck and Gitlow.] ... The rule we deduce from these cases is that where an offense is specified by a statute in nonspeech or nonpress terms, a conviction relying upon speech or press as evidence of violation may be sustained only

when the speech or publication created a “clear and present danger” of attempting or accomplishing the prohibited crime, e.g., interference with enlistment. The dissents, we repeat, in emphasizing the value of speech, were addressed to the argument of the sufficiency of the evidence. . . . In this case we are squarely presented with the application of the “clear and present danger” test, and must decide what that phrase imports. We first note that many of the cases in which this Court has reversed convictions by use of this or similar tests have been based on the fact that the interest which the State was attempting to protect was itself too insubstantial to warrant restriction to speech. . . . Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected. If, then, this interest may be protected, the literal problem which is presented is what has been meant by the use of the phrase “clear and present danger” of the utterances bringing about the evil within the power of Congress to punish. Obviously, the words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required. The argument that there is no need for Government to concern itself, for Government is strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with ease needs no answer. For that is not the question. Certainly an attempt to overthrow the Government by force even though doomed from the outset because of inadequate numbers or power of the revolutionists, is a sufficient evil for Congress to prevent. The damage which such attempts create both physically and politically to a nation makes it impossible to measure the validity in terms of the probability of success, or the immediacy of a successful attempt. In the instant case the trial judge charged the jury that they could not convict unless they found that petitioners intended to overthrow the Government “as speedily as circumstances would permit.” This does not mean, and could not properly mean, that they would not strike until there was certainty of Freedom of Expression

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success. What was meant was that the revolutionists would strike when they thought the time was ripe. We must therefore reject the contention that success or probability of success is the criterion. The situation with which Justices Holmes and Brandeis were concerned in Gitlow was a comparatively isolated event, bearing little relation in their minds to any substantial threat to the safety of the community. . . . They were not confronted with any situation comparable to the instant one—the development of an apparatus designed and dedicated to the overthrow of the Government, in the context of world crisis after crisis. Chief Judge Learned Hand, writing for the majority below, interpreted the phrase as follows: “In each case [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” 183 F.2d at 212. We adopt this statement of the rule. . . . [I]t is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words. Likewise, we are in accord with the court below, which affirmed the trial court’s finding that the requisite danger existed. The mere fact that from the period 1945 to 1948 petitioners’ activities did not result in an attempt to overthrow the Government by force and violence is of course no answer to the fact that there was a group that was ready to make the attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touchand-go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score. And this analysis disposes of the contention that a conspiracy to advocate as distinguished from the advocacy itself, cannot be constitutionally restrained, because it comprises only the preparation. It is the existence of the conspiracy which creates the danger. . . . If the ingredients of the reaction are present, we cannot bind the Government to wait until the catalyst is added. Although we have concluded that the finding that there was a sufficient danger to warrant the application of the statute was justified on the merits, there 52

remains the problem of whether the trial judge’s treatment of the issue was correct. He charged the jury, in relevant part, as follows: In further construction and interpretation of the statute I charge you that it is not the abstract doctrine of overthrowing or destroying organized government by unlawful means which is denounced by this law, but the teaching and advocacy of action for the accomplishment of that purpose, by language reasonably and ordinarily calculated to incite persons to such action. Accordingly, you cannot find the defendants or any of them guilty of the crime charged unless you are satisfied beyond a reasonable doubt that they conspired to organize a society, group and assembly of persons who teach and advocate the overthrow or destruction of the Government of the United States by force and violence and to advocate and teach the duty and necessity of overthrowing or destroying the Government of the United States by force and violence, with the intent that such teaching and advocacy be of a rule or principle of action and by language reasonably and ordinarily calculated to incite persons to such action, all with the intent to cause the overthrow or destruction of the Government of the United States by force and violence as speedily as circumstances would permit.

... If you are satisfied that the evidence establishes beyond a reasonable doubt that the defendants, or any of them, are guilty of a violation of the statute, as I have interpreted it to you, I find as a matter of law that there is sufficient danger of a substantive evil that the Congress has a right to prevent to justify the application of the statute under the First Amendment of the Constitution. . . . It is thus clear that he reserved the question of the existence of the danger for his own determination, and the question becomes whether the issue is of such a nature that it should have been submitted to the jury. . . . The argument that the action of the trial court is erroneous, in declaring as a matter of law that such violation shows sufficient danger to justify the punishment despite the First Amendment, rests on the theory that a jury must decide a question of the application of the First Amendment. We do not agree. When facts are found that establish the violation of a statute, the protection against conviction afforded by the First Amendment is a matter of law. The doctrine that there must be a clear and present danger of a substantive evil that Congress has a right to prevent is a judicial rule to be applied as a matter

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

of law by the courts. The guilt is established by proof of facts. Whether the First Amendment protects the activity which constitutes the violation of the statute must depend upon a judicial determination of the scope of the First Amendment applied to the circumstances of the case. . . . The question in this case is whether the statute which the legislature has enacted may be constitutionally applied. In other words, the Court must examine judicially the application of the statute to the particular situation to ascertain if the Constitution prohibits the conviction. We hold that the statute may be applied where there is a “clear and present danger” of the substantive evil which the legislature had the right to prevent. Bearing, as it does, the marks of a “question of law,” the issue is properly one for the judge to decide. There remains to be discussed the question of vagueness whether the statute as we have interpreted it is too vague, not sufficiently advising those who would speak of the limitations upon their activity. It is urged that such vagueness contravenes the First and Fifth Amendments. This argument is particularly nonpersuasive when presented by petitioners, who, the jury found, intended to overthrow the Government as speedily as circumstances would permit. . . . We agree that the standard as defined is not a neat, mathematical formulary. Like all verbalizations it is subject to criticism on the score of indefiniteness. But petitioners themselves contend that the verbalization, “clear and present danger,” is the proper standard. We see no difference from the standpoint of vagueness, whether the standard of “clear and present danger” is one contained in haecverba within the statute, or whether it is the judicial measure of constitutional applicability. We have shown the indeterminate standard the phrase necessarily connotes. We do not think we have rendered that standard any more indefinite by our attempt to sum up the factors which are included within its scope. . . . Where there is doubt as to the intent of the defendants, the nature of their activities, or their power to bring about the evil, this Court will review the convictions with the scrupulous care demanded by our Constitution. But we are not convinced that because there may be borderline cases at some time in the future, these convictions should be reversed because of the argument that these petitioners could not know that their activities were constitutionally proscribed by the statute.

We hold that sections 2(a)(1), (2)(a)(3) and 3 of the Smith Act, do not inherently, or as construed or applied in the instant case, violate the First Amendment and other provisions of the Bill of Rights, or the First and Fifth Amendments because of indefiniteness. Petitioners intended to overthrow the Government of the United States as speedily as the circumstances would permit. Their conspiracy to organize the Communist Party and to teach and advocate the overthrow of the Government of the United States by force and violence created a “clear and present danger” of an attempt to overthrow the Government by force and violence. They were properly and constitutionally convicted for violation of the Smith Act. The judgments of conviction are Affirmed. [JUSTICE CLARK took no part in the consideration of this case.] JUSTICE FRANKFURTER, concurring in affirmance of the judgment: ... The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interests, within the confines of the judicial process, than by announcing dogmas too inflexible for the non-Euclidian problems to be solved. But how are competing interests to be assessed? Since they are not subject to quantitative ascertainment, the issue necessarily resolves itself into asking, who is to make the adjustment, who is to balance the relevant factors and ascertain which interest is in the circumstances to prevail? Full responsibility for the choice cannot be given to the courts. Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic, and social pressures. Primary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to the Congress. The nature of the power to be exercised by this Court has been delineated in decisions not charged with the emotional appeal of Freedom of Expression

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

situations such as that now before us. We are to set aside the judgment of those whose duty is to legislate only if there is no reasonable basis for it. . . . [W]e must scrupulously observe the narrow limits of judicial authority even though self-restraint is alone set over us. Above all we must remember that this Court’s power of judicial review is not “an exercise of the powers of a super-legislature.” ... It is not for us to decide how we would adjust the clash of interests which this case presents were the primary responsibility for reconciling it ours. Congress has determined that the danger created by advocacy of overthrow justifies the ensuing restriction on freedom of speech. The determination was made after due deliberation, and the seriousness of the congressional purpose is attested by the volume of legislation passed to effectuate the same ends. Can we then say that the judgment Congress exercised was denied it by the Constitution? Can we establish a constitutional doctrine which forbids the elected representatives of the people to make this choice? Can we hold that the First Amendment deprives Congress of what it deemed necessary for the Government’s protection? To make validity of legislation depend on judicial reading of events still in the womb of time a forecast, that is, of the outcome of forces at best appreciated only with knowledge of the topmost secrets of nations—is to charge the judiciary with duties beyond its equipment. . . . Our duty to abstain from confounding policy with constitutionality demands perceptive humility as well as self-restraint in not declaring unconstitutional what in a judge’s private judgment is deemed unwise and even dangerous. Even when moving strictly within the limits of constitutional adjudication, judges are concerned with issues that may be said to involve vital finalities. The too easy transition from disapproval from what is undesirable to condemnation as unconstitutional, has led some of the wisest judges to question the wisdom of our scheme in lodging such authority in courts. But it is relevant to remind that in sustaining the power of Congress in a case like this nothing irrevocable is done. The democratic process at all events is not impaired or restricted. Power and responsibility remain with the people and immediately with their representation. All the Court says is that Congress was not forbidden by the Constitution to 54

pass this enactment and that a prosecution under it may be brought against a conspiracy such as the one before us. . . . JUSTICE JACKSON, concurring: The Communist Party . . . does not seek its strength primarily in numbers. Its aim is a relatively small party whose strength is in selected, dedicated, indoctrinated, and rigidly disciplined members. From established policy it tolerates no deviation and no debate. It seeks members that are, or may be, secreted in strategic posts in transportation, communications, industry, government, and especially in labor unions where it can compel employers to accept and retain its members. It also seeks to infiltrate and control organizations of professional and other groups. Through these placements in positions of power it seeks a leverage over society that will make up in power of coercion what it lacks in power of persuasion. The Communists have no scruples against sabotage, terrorism, assassination, or mob disorder, but violence is not with them, as with the anarchists, an end in itself. The Communist Party advocates force only when prudent and profitable. Their strategy of stealth precludes premature or uncoordinated outbursts of violence, except, of course, when the blame will be placed on shoulders other than their own. They resort to violence as to truth, not as a principle but as an expedient. Force or violence, as they would resort to it, may never be necessary, because infiltration and deception may be enough. Force would be utilized by the Communist Party not to destroy Government but for its capture. ... The foregoing is enough to indicate that, either by accident or design, the Communist stratagem outwits the antianarchist pattern of statute aimed against “overthrow by force and violence” if qualified by the doctrine that only “clear and present danger” of accomplishing that result will sustain the prosecution. The “clear-and-present-danger” test was an innovation by Justice Holmes in the Schenck Case, reiterated and refined by him and Justice Brandeis in later cases, all arising before the era of World War II revealed the subtlety and efficacy of modernized revolutionary techniques used by totalitarian parties. In those cases, they were faced with convictions under so-called criminal syndicalism statutes aimed at

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

anarchists but which, loosely construed, had been applied to punish socialism, pacifism, and left-wing ideologies, the charges often resting on far-fetched inferences which, if true, would establish only technical or trivial violations. They proposed “clear and present danger” as a test for the sufficiency of evidence in particular cases. I would save it, unmodified, for application as a “rule of reason” in the kind of case for which it was devised. When the issue is criminality of a hotheaded speech on a street corner, or circulation of a few incendiary pamphlets, or parading by some zealots behind a red flag, or refusal of a handful of school children to salute our flag, it is not beyond the capacity of the judicial process to gather, comprehend, and weigh the necessary materials for decision whether it is a clear and present danger of substantive evil or a harmless letting off of steam. It is not a prophecy, for the danger in such cases has matured by the time of trial or it was never present. The test applies and has meaning where a conviction is sought to be based on a speech or writing which does not directly or explicitly advocate a crime but to which such tendency is sought to be attributed by construction or by implication from external circumstances. The formula in such cases favors freedoms that are vital to our society, and, even if sometimes applied too generously, the consequences cannot be grave. But its recent expansion has extended, in particular to Communists, unprecedented immunities. Unless we are to hold our Government captive in a judge-made verbal trap, we must approach the problem of a well-organized nation-wide conspiracy, such as I have described, as realistically as our predecessors faced the trivialities that were being prosecuted until they were checked with a rule of reason. I think reason is lacking for applying that test to this case. If we must decide that this Act and its application are constitutional only if we are convinced that petitioners’ conduct creates a “clear and present danger” of violent overthrow, we must appraise imponderables, including international and national phenomena which baffle the best informed foreign offices and our most experienced politicians. We would have to foresee and predict the effectiveness of Communist propaganda, opportunities for infiltration, whether, and when, a time will come that they consider propitious for action, and whether and how fast our existing government will deteriorate. And we would have to speculate as to whether an approaching Communist

coup would not be anticipated by a nationalistic fascist movement. No doctrine can be sound whose application requires us to make a prophecy of that sort in the guise of a legal decision. The judicial process simply is not adequate to a trial of such far-flung issues. The answers given would reflect our own political predilections and nothing more. The authors of the clear-and-present-danger test never applied it to a case like this, nor would I. If applied as it is proposed here, it means that the Communist plotting is protected during its period of incubation; its preliminary stages of organization and preparation are immune from the law; the Government can move only after imminent action is manifest, when it would, of course, be too late. ... What really is under review here is a conviction of conspiracy, after a trial for conspiracy, on an indictment charging conspiracy, brought under a statute outlawing conspiracy. With due respect to my colleagues, they seem to me to discuss anything under the sun except the law of conspiracy. One of the dissenting opinions even appears to chide me for “invoking the law of conspiracy.” As that is the case before us, it may be more amazing that its reversal can be proposed without even considering the law of conspiracy. ... I do not suggest that Congress could punish conspiracy to advocate something, the doing of which it may not punish. Advocacy or exposition of the doctrine of communal property ownership, or any political philosophy unassociated with advocacy of its imposition by force or seizure of government by unlawful means would not be reached through conspiracy prosecution. But it is not forbidden to punish its teaching of advocacy, and the end being punishable, there is no doubt of the power to punish conspiracy for the purpose. . . . JUSTICE DOUGLAS, dissenting: If there were a case where those who claimed protection under the First Amendment were teaching the techniques of sabotage, the assassination of the president, the filching of documents from public files, the planting of bombs, the art of street warfare, and the like, I would have no doubt. The freedom to speak is not absolute; the teaching of methods of terror and other seditious conduct should be beyond the Freedom of Expression

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

pale along with obscenity and immorality. This case was argued as if those were the facts. The argument imported much seditious conduct into the record. That is easy and it has popular appeal, for the activities of Communists in plotting and scheming against the free world are common knowledge. But the fact is that no such evidence was introduced at the trial. There is a statute which makes a seditious conspiracy unlawful. Petitioners, however, were not charged with a “conspiracy to overthrow” the Government. They were charged with a conspiracy to form a party and groups and assemblies of people who teach and advocate the overthrow of our Government by force or violence and with a conspiracy to advocate and teach its overthrow by force and violence. It may well be that indoctrination in the techniques of terror to destroy the Government would be indictable under either statute. But the teaching which is condemned here is of a different character. So far as the present record is concerned, what petitioners did was to organize people to teach and themselves teach the Marxist-Leninist doctrine contained chiefly in four books: Foundations of Leninism by Stalin (1924), The Communist Manifesto by Marx and Engels (1848), State and Revolution by Lenin (1917), History of the Communist Party of the Soviet Union (1939). Those books are to Soviet Communism what Mein Kampf was to Nazism. If they are understood, the ugliness of Communism is revealed, its deceit and cunning are exposed, the nature of its activities becomes apparent, and the chances of its success less likely. That is not, of course, the reason why petitioners chose these books for their classrooms. They are fervent Communists to whom these volumes are gospel. They preached the creed with the hope that some day it would be acted upon. The opinion of the Court does not outlaw these texts nor condemn them to the fire, as the Communists do literature offensive to their creed. But if the books themselves are not outlawed, if they can lawfully remain on library shelves, by what reasoning does their use in a classroom become a crime? It would not be a crime under the Act to introduce these books to a class, though that would be teaching what the creed of violent overthrow of Government is. The Act, as construed, requires the element of intent—that those who teach the creed believe in it. The crime then depends not on what is taught but on who the teacher is. That is to make freedom of speech turn not on what is said, but on 56

the intent from which it is said. Once we start down that road we enter territory dangerous to the liberties of every citizen. . . . Full and free discussion has indeed been the first article of our faith. We have founded our political system on it. It has been the safeguard of every religious, political, philosophical, economic, and racial group amongst us. We have counted on it to keep us from embracing what is cheap and false; we have trusted the common sense of our people to choose the doctrine true to our genius and to reject the rest. This has been the one single outstanding tenet that has made our institutions the symbol of freedom and equality. We have deemed it more costly to liberty to suppress a despised minority than to let them vent their spleen. We have above all else feared the political censor. We have wanted a land where our people can be exposed to all the diverse creeds and cultures of the world. There comes a time when even speech loses its constitutional immunity. Speech innocuous one year may at another time be halted in the interests of the safety of the Republic. That is the meaning of the clear-and-present-danger test. When conditions are so critical that there will be no time to avoid the evil that the speech threatens, it is time to call a halt. Otherwise, free speech which is the strength of the Nation, will be the cause of its destruction. Yet free speech is the rule, not the exception. The restraint to be constitutional must be based on more than fear, on more than passionate opposition against the speech, on more than a revolted dislike for its contents. There must be some immediate injury to society that is likely if speech is allowed. ... The nature of Communism as a force on the world scene would, of course, be relevant to the issue of clear and present danger of petitioners’ advocacy within the United States. But the primary consideration is the strength and tactical position of petitioners and their converts in this country. On that there is no evidence in the record. If we are to take judicial notice of the threat of Communists within the nation, it should not be difficult to conclude that as a political party they are of little consequence. Communists in this country have never made a respectable or serious showing in any election. I would doubt that there is a village, let alone a city or county or state, which the Communists could carry. Communism in the world scene is no bogey-man;

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

but Communists as a political faction or party in this country plainly is. Communism has been so thoroughly exposed in this country that it has been crippled as a political force. Free speech has destroyed it as an effective political party. It is inconceivable that those who went up and down this country preaching the doctrine of revolution which petitioners espouse would have any success. In days of trouble and confusion when bread lines were long, when the unemployed walked the streets, when people were starving, the advocates of a short-cut by revolution might have a chance to gain adherents. But today there are no such conditions. The country is not in despair; the people know Soviet Communism; the doctrine of Soviet revolution is exposed in all of its ugliness and the American people want none of it. How it can be said that there is a clear and present danger that this advocacy will succeed is, therefore, a mystery. Some nations less resilient than the United States, where illiteracy is high and where democratic traditions are only budding, might have to take drastic steps and jail these men for merely speaking their creed. But in America they are miserable merchants of unwanted ideas; their wares remain unsold. The fact that their ideas are abhorrent does not make them powerful. The political impotence of the Communists in this country does not, of course, dispose of the prob-

lem. Their numbers; their positions in industry and government; the extent to which they have in fact infiltrated the police, the armed services, transportation, stevedoring, power plants, munitions works, and other critical places—these facts all bear on the likelihood that their advocacy of the Soviet theory of revolution will endanger the Republic. But the record is silent on these facts. If we are to proceed on the basis of judicial notice, it is impossible for me to say that the Communists in this country are so potent or so strategically deployed that they must be suppressed for their speech. I could not so hold unless I were willing to conclude that the activities in recent years of committees of Congress, of the Attorney General, of labor unions, of state legislatures, and of Loyalty Boards were so futile as to leave the country on the edge of grave peril. To believe that petitioners and their following are placed in such positions as to endanger the Nation is to believe the incredible. It is safe to say that the followers of the creed of Soviet Communism are known to the F.B.I.; that in case of war with Russia they will be picked up overnight as were all prospective saboteurs at the commencement of World War II; that the invisible army of petitioners is the best known, the most beset, and the least thriving of any fifth column in history. Only those held by fear and panic could think otherwise.

BRANDENBURG V. OHIO 395 U.S. 444 (1969) Per Curiam. The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism statute for “advocat[ing] . . . the duty, necessity, or propriety [395 U.S. 444, 445] of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and for “voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” Ohio Rev. Code Ann. 2923.13. He was fined $1,000 and sentenced to one to 10 years’ imprisonment. The appellant challenged the constitutionality of the

criminal syndicalism statute under the First and Fourteenth Amendments to the United States Constitution, but the intermediate appellate court of Ohio affirmed his conviction without opinion. The Supreme Court of Ohio dismissed his appeal, suasponte, “for the reason that no substantial constitutional question exists herein.” It did not file an opinion or explain its conclusions. Appeal was taken to this Court, and we noted probable jurisdiction. 393 U.S. 948 (1968). We reverse. The record shows that a man, identified at trial as the appellant, telephoned an announcer-reporter on the staff of a Cincinnati television station and invited him to come to a Ku Klux Klan “rally” to be held at Freedom of Expression

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

a farm in Hamilton County. With the cooperation of the organizers, the reporter and a cameraman attended the meeting and filmed the events. Portions of the films were later broadcast on the local station and on a national network. The prosecution’s case rested on the films and on testimony identifying the appellant as the person who communicated with the reporter and who spoke at the rally. The State also introduced into evidence several articles appearing in the film, including a pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood worn by the speaker in the films. One film showed 12 hooded figures, some of whom carried firearms. They were gathered around a large wooden cross, which they burned. No one was present [395 U.S. 444, 446] other than the participants and the newsmen who made the film. Most of the words uttered during the scene were incomprehensible when the film was projected, but scattered phrases could be understood that were derogatory of Negroes and, in one instance, of Jews.Another scene on the same film showed the appellant, in Klan regalia, making a speech. The speech, in full, was as follows: is an organizers’ meeting. We have had quite a few members here today which are—we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken. We are marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you. [395 U.S. 444, 447]

The second film showed six hooded figures, one of whom, later identified as the appellant, repeated a speech very similar to that recorded on the first film. The reference to the possibility of “revengeance” was omitted, and one sentence was added: “Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.” Though some of the figures in the films carried weapons, the speaker did not. The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to 1920, identical or quite 58

similar laws were adopted by 20 States and two territories. E. Dowell, A History of Criminal Syndicalism Legislation in the United States 21 (1939). In 1927, this Court sustained the constitutionality of California’s Criminal Syndicalism Act, Cal. Penal Code 11400–11402, the text of which is quite similar to that of the laws of Ohio. Whitney v. California, 274 U.S. 357 (1927). The Court upheld the statute on the ground that, without more, “advocating” violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. Cf. Fiske v. Kansas, 274 U.S. 380 (1927). But Whitney has been thoroughly discredited by later decisions. See Dennis v. United States, 341 U.S. 494, at 507 (1951). These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we [395 U.S. 444, 448] said in Noto v. United States, 367 U.S. 290, 297–298 (1961), “the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” See also Herndon v. Lowry, 301 U.S. 242, 259–261 (1937); Bond v. Floyd, 385 U.S. 116, 134 (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control. Cf. Yates v. United States, 354 U.S. 298 (1957); De Jonge v. Oregon, 299 U.S. 353 (1937); Stromberg v. California, 283 U.S. 359 (1931). See also United States v. Robel, 389 U.S. 258 (1967); Keyishian v. Board of Regents, 385 U.S. 589 (1967); Elfbrandt v. Russell, 384 U.S. 11 (1966); Aptheker v. Secretary of State, 378 U.S. 500 (1964); Baggett v. Bullitt, 377 U.S. 360 (1964). Measured by this test, Ohio’s Criminal Syndicalism Act cannot be sustained. The Act punishes persons who “advocate or teach the duty, necessity, or propriety” of violence “as a means of accomplishing industrial or political reform”; or who publish or circulate or display any book or paper containing such advocacy; or who “justify” the commission of violent acts “with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism”; or who “voluntarily assemble” with a

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

group formed “to teach or advocate the doctrines of criminal syndicalism.” Neither the indictment nor the trial judge’s instructions to the jury in any way refined the statute’s bald definition of the crime [395 U.S. 444, 449] in terms of mere advocacy not distinguished from incitement to imminent lawless action. Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled. Reversed. JUSTICE BLACK, concurring: I agree with the views expressed by Mr. Justice Douglas in his concurring opinion in this case that the “clear and present danger” doctrine should have no place [395 U.S. 444, 450] in the interpretation of the First Amendment. I join the Court’s opinion, which, as I understand it, simply cites Dennis v. United States, 341 U.S. 494 (1951), but does not indicate any agreement on the Court’s part with the “clear and present danger” doctrine on which Dennis purported to rely. JUSTICE DOUGLAS, concurring: While I join the opinion of the Court, I desire to enter a caveat. The “clear and present danger” test was adumbrated by Mr. Justice Holmes in a case arising during World War I—a war “declared” by the Congress, not by the Chief Executive. The case was Schenck v. United States, 249 U.S. 47, 52, where the defendant was charged with attempts to cause insubordination in the military and obstruction of enlistment. The pamphlets that were distributed urged resistance to the draft, denounced conscription, and impugned the motives of those backing the war effort. The First Amendment was tendered as a defense. Mr. Justice Holmes in rejecting that defense said: The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

Frohwerk v. United States, 249 U.S. 204, also authored by Mr. Justice Holmes, involved prosecution and punishment for publication of articles very critical of the war effort in World War I. Schenck was referred to as a conviction for obstructing security “by words of persuasion.” Id., at 206. And the conviction in Frohwerk was sustained because “the circulation of the paper was [395 U.S. 444, 451] in quarters where a little breath would be enough to kindle a flame.” Id., at 209. Debs v. United States, 249 U.S. 211, was the third of the trilogy of the 1918 Term. Debs was convicted of speaking in opposition to the war where his “opposition was so expressed that its natural and intended effect would be to obstruct recruiting.” Id., at 215: . . . If that was intended and if, in all the circumstances, that would be its probable effect, it would not be protected by reason of its being part of a general program and expressions of a general and conscientious belief. Ibid.

In the 1919 Term, the Court applied the Schenck doctrine to affirm the convictions of other dissidents in World War I. Abrams v. United States, 250 U.S. 616, was one instance. Mr. Justice Holmes, with whom Mr. Justice Brandeis concurred, dissented. While adhering to Schenck, he did not think that on the facts a case for overriding the First Amendment had been made out: It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Id., at 628.

Another instance was Schaefer v. United States, 251 U.S. 466, in which Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented. A third was Pierce v. United States, 252 U.S. 239, in which again Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented. Those, then, were the World War I cases that put the gloss of “clear and present danger” on the First Amendment. Whether the war power—the greatest leveler of them all—is adequate to sustain that doctrine is debatable. [395 U.S. 444, 452] The dissents in Abrams, Schaefer, and Pierce show how easily “clear and present danger” is manipulated to crush what Brandeis called “[t]he fundamental right of free men to strive for better conditions through new legislation and new institutions” by argument and Freedom of Expression

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

discourse (Pierce v. United States, supra, at 273) even in time of war. Though I doubt if the “clear and present danger” test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace. The Court quite properly overrules Whitney v. California, 274 U.S. 357, which involved advocacy of ideas which the majority of the Court deemed unsound and dangerous. Mr. Justice Holmes, though never formally abandoning the “clear and present danger” test, moved closer to the First Amendment ideal when he said in dissent in Gitlow v. New York, 268 U.S. 652, 673: Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.

We have never been faithful to the philosophy of that dissent. [395 U.S. 444, 453] The Court in Herndon v. Lowry, 301 U.S. 242, overturned a conviction for exercising First Amendment rights to incite insurrection because of lack of evidence of incitement. Id., at 259–261. And see Hartzel v. United States, 322 U.S. 680. In Bridges v. California, 314 U.S. 252, 261–263, we approved the “clear and present danger” test in an elaborate dictum that tightened it and confined it to a narrow category. But in Dennis v. United States, 341 U.S. 494, we opened wide the door, distorting the “clear and present danger” test beyond recognition. In that case the prosecution dubbed an agreement to teach the Marxist creed a “conspiracy.” The case was submitted to a jury on a charge that the jury could not convict unless it found that the defendants “intended to overthrow the Government ‘as speedily as circumstances would permit.’” Id., at 509–511. The Court sustained convictions under that charge, construing it to mean a determination of “ ‘whether the gravity of the “evil,” discounted by its improbability, justifies such invasion of free speech as is 60

necessary to avoid the danger.’” Id., at 510, quoting from United States v. Dennis, 183 F.2d 201, 212. Out of the “clear and present danger” test came other offspring. Advocacy and teaching of forcible overthrow of government as an abstract principle is immune from prosecution. Yates v. United States, 354 U.S. 298, 318. But an “active” member, who has a guilty knowledge and intent of the aim to overthrow the Government [395 U.S. 444, 454] by violence, Noto v. United States, 367 U.S. 290, may be prosecuted. Scales v. United States, 367 U.S. 203, 228. And the power to investigate, backed by the powerful sanction of contempt, includes the power to determine which of the two categories fits the particular witness. Barenblatt v. United States, 360 U.S. 109, 130. And so the investigator roams at will through all of the beliefs of the witness, ransacking his conscience and his innermost thoughts. Judge Learned Hand, who wrote for the Court of Appeals in affirming the judgment in Dennis, coined the “not improbable” test, 183 F.2d 201, 214, which this Court adopted and which Judge Hand preferred over the “clear and present danger” test. Indeed, in his book, The Bill of Rights 59 (1958), in referring to Holmes’ creation of the “clear and present danger” test, he said, “I cannot help thinking that for once Homer nodded.” My own view is quite different. I see no place in the regime of the First Amendment for any “clear and present danger” test, whether strict and tight as some would make it, or free-wheeling as the Court in Dennis rephrased it. When one reads the opinions closely and sees when and how the “clear and present danger” test has been applied, great misgivings are aroused. First, the threats were often loud but always puny and made serious only by judges so wedded to the status quo that critical analysis made them nervous. Second, the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political trial which was part and parcel of the cold war that has eroded substantial parts of the First Amendment. Action is often a method of expression and within the protection of the First Amendment. Suppose one tears up his own copy of the Constitution in eloquent protest to a decision of this Court. May he be indicted? [395 U.S. 444, 455] Suppose one rips his own Bible to shreds to celebrate his departure from one “faith” and his embrace of atheism. May he be indicted?

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Last Term the Court held in United States v. O’Brien, 391 U.S. 367, 382, that a registrant under Selective Service who burned his draft card in protest of the war in Vietnam could be prosecuted. The First Amendment was tendered as a defense and rejected, the Court saying: The issuance of certificates indicating the registration and eligibility classification of individuals is a legitimate and substantial administrative aid in the functioning of this system. And legislation to insure the continuing availability of issued certificates serves a legitimate and substantial purpose in the system’s administration. 391 U.S., at 377–378.

But O’Brien was not prosecuted for not having his draft card available when asked for by a federal agent. He was indicted, tried, and convicted for burning the card. And this Court’s affirmance of that conviction was not, with all respect, consistent with the First Amendment. The act of praying often involves body posture and movement as well as utterances. It is nonetheless protected by the Free Exercise Clause. Picketing, as we have said on numerous occasions, is “free speech plus.” See Bakery Drivers Local v. Wohl, 315 U.S. 769, 775 (Justice Douglas, concurring); Giboney v. Empire Storage Co., 336 U.S. 490, 501; Hughes v. Superior Court, 339 U.S. 460, 465; Labor Board v. Fruit Packers, 377 U.S. 58, 77 (Justice Black, concurring), and id., at 93 (Justice Harlan, dissenting); Cox v. Louisiana, 379 U.S. 559, 578 (opinion of Justice Black); Food Employees v. Logan Plaza, 391 U.S. 308, 326 (Justice Douglas, concurring). That means that it can be regulated when it comes to the “plus” or “action” side of the protest. It can be regulated as to [395 U.S. 444, 456] the number of pickets and the place and hours (see Cox v. Louisiana, supra), because traffic and other community problems would otherwise suffer. But none of these considerations are implicated in the symbolic protest of the Vietnam war in the burning of a draft card. One’s beliefs have long been thought to be sanctuaries which government could not invade. Barenblatt is one example of the ease with which that sanctuary can be violated. The lines drawn by the Court between the criminal act of being an “active” Communist and the innocent act of being a nominal or inactive Communist mark the difference only between deep and abiding belief and casual or uncertain belief. But I think, that all matters of belief are beyond the reach of subpoenas or the probings of

investigators. That is why the invasions of privacy made by investigating committees were notoriously unconstitutional. That is the deep-seated fault in the infamous loyalty-security hearings which, since 1947 when President Truman launched them, have processed 20,000,000 men and women. Those hearings were primarily concerned with one’s thoughts, ideas, beliefs, and convictions. They were the most blatant violations of the First Amendment we have ever known. The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts. The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre. This is, however, a classic case where speech is brigaded with action. See Speiser v. Randall, 357 U.S. 513, 536–537 (Justice Douglas, concurring). They are indeed inseparable and a prosecution can be launched for the overt [395 U.S. 444, 457] acts actually caused. Apart from rare instances of that kind, speech is, I think, immune from prosecution. Certainly there is no constitutional line between advocacy of abstract ideas as in Yates and advocacy of political action as in Scales. The quality of advocacy turns on the depth of the conviction; and government has no power to invade that sanctuaryof belief and conscience.

PUBLIC PEACE AND ORDER FEATURED CASES Feiner v. New York; Edwards v. South Carolina Threats to people’s liberty arise not only from the overthrow of the government, but also when a government cannot preserve public peace and order, at least at some level. At the extremes, not preserving the peace leads to a lawless state of nature, while undue efforts to maintain the peace lead to a repressive police state. Governments seek to preserve public peace and order through laws relating to breach of the peace, disorderly conduct, unlawful assembly, and incitement to riot, among many others. The enforcement of these laws may, and sometimes does, collide with the exercise of constitutional guarantees. Governments also promulgate what have come to be known as “time, place, and manner regulations” that Freedom of Expression

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

on their face seem to be addressing more mundane issues. They are the topic of the next section. The separation of this section and the next is somewhat arbitrary. The cases in this section begin with discussions of what speech may be banned, but they also serve as the venues for the early discussion of how speech might be regulated. Conversely, seemingly innocuous time, place, and manner regulations can be used to stifle speech. Governmental restrictions on unpopular speakers, street-corner preachers, picketers, protesters, and demonstrators have produced an almost endless stream of Supreme Court cases. Two of the early cases involved Jehovah’s Witnesses. In Cantwell v. Connecticut (310 U.S. 296, 1940), a Jehovah’s Witness named Cantwell approached two men in the street, asked to play a phonograph record entitled “Enemies,” and received permission to do so. The record contained a vitriolic attack on organized religion and the Catholic Church. Coincidentally, both men were Catholics and were incensed by the contents of the record. They testified that they were tempted to strike Cantwell, but on being told be on his way, he left. There was no evidence that Cantwell was personally offensive or entered into any argument with the persons he stopped. Cantwell was charged with and convicted of inciting a breach of the peace. The Supreme Court reversed the conviction. Justice Roberts authored the majority opinion. He wrote: When clear and present danger of riot, disorder, interference with traffic upon public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious. Equally obvious is that a State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions. . . . Here we have a situation analogous to a conviction under a statute sweeping in a great variety of conduct under a general and indefinite characterization, and leaving to the executive and judicial branches too wide a discretion in its application. . . . One may, however, be guilty of the offense [breach of the peace] if he commits acts or makes false statements likely to provoke violence and disturbance of good order even though no such eventuality be intended. Decisions to this effect are many, but examination discloses that, in practically all, the provocative language which was held to amount to a breach of the peace consisted of profane, indecent, or abusive remarks directed to the person of the hearer. . . . In the realm of religious faith, and in 62

that of political belief, sharp differences arise. . . To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification . . . and even to false statement. . . . But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy. . . .

Two years later, in Chaplinsky v. New Hampshire (315 U.S. 568, 1942), another Jehovah’s Witness was convicted under a state law for calling a city marshall a “God-damned racketeer” and a “damned fascist.” The state law made it a crime for any person to address “any offensive, derisive or annoying word” to another person or to call him or her by “any offensive or derisive name.” The Supreme Court affirmed the conviction; in the majority opinion, Justice Murphy stated that “it is well understood that the right of free speech is not absolute at all times and under all circumstances.” Justice Murphy wrote: There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words, those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. . . .

One might want to begin by asking if the two situations were sufficiently different between Cantwell and Chaplinsky to justify the different outcomes. The case of Chaplinsky, however, has importance far beyond its outcome. Justice Murphy suggested that there are categories of words that receive no Constitutional protection. Relevant to this case, one such category is “fighting words.” Neither Murphy nor subsequent justices have been willing to identify precisely what these words are. Apparently they are words that when uttered directly to someone will make the hearer almost uncontrollably respond with violence. This idea might seem like a quaint notion from earlier times, but the Court still recognizes fighting words as a category of speech. That said, no conviction since Chaplinsky has ever been overturned on the basis of a fighting-words justification.

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Today, most incidences are governed by the “incitement to imminent lawless action” standard rather than a fighting-words standard. Nevertheless, the concept that there are categories of speech that lie outside the Constitution remains an important part of First Amendment law. Justice Murphy’s categories included obscenity, libel, and fighting words. In this and subsequent chapters we will examine these categories of speech on their own terms and speculate whether there are additional categories. Fighting words aside, the Court frequently has dealt with speech that provokes. One notable case is Terminiello v. Chicago (337 U.S. 1, 1947). Terminiello, a defrocked Catholic priest, was well known for his vicious attacks on Jews, blacks, Communists, and others. The case arose when he spoke in a Chicago auditorium to a crowd of about 800 people. An even larger crowd gathered outside, picketing the auditorium, throwing objects like ice picks, stones, and bottles, and attempting to storm the doors. In his speech, Terminiello condemned the conduct of the crowd outside and bitterly criticized various political, racial, and religious groups whose activities he denounced as “inimical to the welfare of the nation.” Terminiello was arrested and convicted under a breach of the peace ordinance. The Supreme Court, however, reversed the conviction on an issue that neither party brought to the Court—the trial judge’s charge to the jury. The trial judge charged the jury that “breach of the peace” includes “misbehavior” (or speech) that “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm.” Justice Douglas, who spoke for the majority, read this construction of the breach of the peace ordinance as part of the ordinance itself and binding upon the Court. Consequently, Douglas and the majority of his colleagues rested their decision on the fact that the ordinance, as construed by the trial judge in his charge to the jury, was too broad and might encompass speech that is constitutionally protected. Said Justice Douglas: . . . [A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an

idea. . . . The ordinance as construed by the trial court seriously invaded this province. It permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand.

Justice Jackson, in a dissent joined by Justices Frankfurter and Burton, sharply criticized the majority for ignoring the facts of the highly explosive situation that existed in Terminiello and for not giving sufficient weight to the importance of order in the enjoyment of liberty. According to Jackson: “The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

The problem was before the Court again a short time later in Feiner v. New York (310 U.S. 315, 1951). Given the nature of his speech and the circumstances in which it was given, Feiner was arrested and convicted under a breach of the peace statute. Eventually, his conviction was upheld by the Supreme Court, where Chief Justice Fred Vinson said that Feiner had gone beyond the “bounds of argument and persuasion” and had undertaken “incitement to riot.” Justices Black, Douglas, and Minton dissented. Black issued a particularly sharp dissent, saying that he was convinced that Feiner was convicted for his unpopular views, nothing more. The Feiner case was only a prelude to a number of cases the Court faced in the 1960s, when civil rights demonstrators and protesters took to the streets and other public places to press their causes. In Edwards v. South Carolina (372 U.S. 229, 1963), the Supreme Court reversed breach-of-peace convictions of 187 black student demonstrators who had marched in small groups to the South Carolina State House grounds to protest segregation practices. A crowd of some 200 onlookers gathered, but there was no disturbance or obstruction of any kind. Accordingly, the Court found insufficient evidence to support breach-of-peace convictions. Justice Stewart, speaking for the majority, said, “[The Constitution] does not permit a state to make criminal the peaceful expression of unpopular views.” Although Stewart attempted to distinguish Edwards from Feiner, Justice Tom Clark, in dissent, did not see any distinction. Said Clark, “We upheld a breach of the peace in a situation [in Feiner] no more Freedom of Expression

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

dangerous than found here.” Nevertheless, the Court continued to support its Edwards position in several subsequent cases. (Cf. Fields v. South Carolina, 375 U.S. 44, 1963; Henry v. Rock Hill, 376 U.S. 776, 1964; and Gregory v. City of Chicago, 394 U.S. 111, 1969.) In 1965, two cases reached the Court that arose out of the same set of facts (Cox v. Louisiana, No. 24; Cox v. Louisiana, No. 49, 379 U.S. 536, 1965). In 1961, over 2,000 students from Southern University, a predominantly black institution, converged on downtown Baton Rouge and conducted a protest rally near the Old State Capitol Building in the vicinity of the courthouse. They were protesting segregation practices generally as well as the arrest the previous day of twenty-three of their fellow students who had been picketing downtown stores that maintained segregated lunch counters. The leader of the group, an ordained Congregational minister, the Reverend B. Elton Cox, was arrested and convicted on three charges: (1) disturbing the peace under Louisiana’s breach of the peace statute, (2) obstructing public passages, and (3) picketing before a courthouse. The Supreme Court reversed convictions on all three charges. The first two charges were heard in Cox No. 24 and the third in Cox No. 49. The Court voted unanimously to reverse the breach of the peace conviction, saying that it infringed on Cox’s rights of free speech and free assembly. The Court relied on grounds similar to those in Edwards and, as in Edwards, found the situation to be a “far cry from Feiner.” The Court held that not only was there insufficient evidence to support the breach of the peace charge but also that the statute as interpreted by the Louisiana Supreme Court was unconstitutionally broad in scope. The Court next considered Cox’s conviction on the “obstructing public passages” charge and voted seven-to-two for reversal. Speaking for five members of the Court, Justice Goldberg said that “although the statute . . . on its face precludes all street assemblies and parades, it has not been so applied and enforced by the Baton Rouge authorities.” Goldberg said that “city officials who testified for the state clearly indicated that certain meetings and parades are permitted in Baton Rouge, even though they have the effect of obstructing traffic, provided prior approval is obtained.” Goldberg also found that “[t]he statute itself provides no standards for the determination of local officials as to which assemblies to permit or which to prohibit. . . .” Consequently, he 64

concluded that the practice of allowing such “unfettered discretion” in local officials in regulating the use of the streets for peaceful parades and meetings “[was] an unwarranted abridgement of the appellant’s freedom of speech and assembly. . . .” In Cox No. 49, the Court, by a five-to-four majority, also reversed the appellant’s conviction on the third charge of picketing before a courthouse. The relevant state law prohibited picketing or parading “in or near” a building housing a state court “with the intent of interfering with, obstructing, or impeding the administration of justice or with the intent of influencing any judge, juror, witness, or court officer in the discharge of his duty. . . .” Justice Goldberg again spoke for the majority. He found that the state statute was precise and well drawn and that its purpose of protecting the state’s judicial system was wholly within the legitimate interest of the state. In general, Goldberg’s opinion supported the proposition that the state had a right to forbid what the demonstrators had done. “There can be no question,” said Goldberg, “that a state has a legitimate interest in protecting its judicial system from pressures which picketing near a courthouse might create.” Despite the principled rhetoric, however, Goldberg and a majority of his colleagues reversed Cox’s conviction on the ground that: [T]he highest police officials of the city, in the presence of the Sheriff and Mayor, in effect told the demonstrators that they could meet where they did, 101 feet from the courthouse steps, but could not meet closer to the courthouse. In effect, appellant was advised that a demonstration at the place it was held would not be “near” the courthouse within the terms of the statute.

Justice Black dissented, along with Justices Clark, White, and Harlan. In his dissent, Black said that he could not “understand how the Court can justify the reversal of these convictions [in No. 49] because of a permission which testimony in the record denies was given, which could not have been authoritatively given anyway, and which even if given was soon afterward revoked.” In Brown v. Louisiana (383 U.S. 131, 1966), the demonstrations did not take place on the streets but in a public library. When five black demonstrators refused to leave, they were arrested and convicted for violating Louisiana’s breach of the peace statute, the same statute that was involved in Cox. By a fiveto-four decision, the Supreme Court reversed the convictions on the ground that there was, in fact, no

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

violation of the statute. As Justice Abe Fortas said for the majority, there was no disorder, no intent to provoke a breach of the peace, and no circumstances indicating that a breach might be occasioned by petitioners’ actions. They were merely exercising their constitutional right to protest unconstitutional segregation. However, Justice Black, joined by Justices Clark, Harlan, and Stewart, issued a strong dissent. Black said that he did not believe that the First Amendment guarantees to any person “the right to use someone else’s property, even that owned by government and dedicated to other purposes, as a stage to express dissident ideas,” especially in a library, where tranquility is of the highest priority. Black did not have to wait long for his views to gain majority support. In Adderly v. State of Florida (385 U.S. 39, 1966), the Court upheld the convictions of student demonstrators under a state trespass statute. The demonstrators, students at Florida A & M University, had marched to the jailhouse to protest segregation, including segregation in the jail. Justice Black, now speaking for the majority, emphasized the significant difference between this case and Edwards. In Edwards, the demonstrators went to the state capitol grounds, whereas in this case they went to the jail. Traditionally, state capitol grounds are open to the public, said Black, but jails, which are built for security purposes, are not. Black continued: “The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. . . . [We reject the idea that] people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please.”

Justice Douglas dissented, joined by Chief Justice Warren, Justice Brennan, and Justice Fortas. Justice Douglas argued: “The jailhouse, like an executive mansion, a legislative chamber, a courthouse, or the statehouse itself is one of the seats of government, whether it be the Tower of London, “the Bastille, or a small county jail. And when it houses political prisoners or those who many think are unjustly held, it is an obvious center for protest. . . . Those who do not control television and radio, those who cannot afford to advertise in newspapers or circulate elaborate pamphlets may have only a more limited type of access to public officials . . . We do violence to the First Amendment when we permit this ‘petition for the redress of grievances’ to be turned into a trespass action.”

Subsequent cases, especially the ones that are discussed in the next section, question whether Justice Black’s analysis in Adderly survives. It is important to pause and put the civil rights cases into historical perspective. No one doubts that governments have the responsibility of preserving the peace. Most of the civil rights demonstrations, however, were avowedly nonviolent—at least on the part of the demonstrators. Efforts to stop such protests were rarely based on fears of violence; they were simply efforts to halt the protest in the name of peace and public safety, and the justices realized that, as did most everyone else. Of course, there may be times when the threat of violence is real. Indeed, even during the Civil Rights Movement opponents learned that one way to stop protests was to violently attack the demonstrators. Should the government remove the provocateur, as it did with Mr. Feiner? Feiner suggests that it can, but in light of the cases that followed Feiner, most observers believe that Feiner is no longer good law, though it has never been specifically overturned. As Justice Black argued in the dissent in Feiner, it is the state’s responsibility to first “make all reasonable efforts to protect [the speaker].” Justice Black’s position is basically the current understanding. The reasons are obvious. The government can abridge speech with which it disagrees if it simply says that it is trying to prevent violence. Even if the government’s motives are pure, however, it is problematic to stop the speaker. It allows a version of what is known as the “heckler’s veto.” Opponents of a speaker need only threaten violence, and they in effect get to veto the speech. A number of cases that reached the Court in the 1970s and 1980s continued to focus on the scope of constitutional protections that are afforded to speechmaking and demonstrations. In the main, these cases were the outgrowth of state and local governmental actions that were designed to maintain peace and order. Although some of these actions survived constitutional challenges, others ran afoul of constitutional limitation. In Coates v. Cincinnati (402 U.S. 611, 1971), for example, a city ordinance made it a criminal offense for “three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by.” However, Justice Stewart, who spoke for the Court, found the ordinance unconstitutional on its face without reaching the merits of the case. Stewart said that “the vice of the ordinance lies Freedom of Expression

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

not alone in its violation of the due process standard of vagueness,” but in that it “also violates the constitutional rights of free assembly and association.” Injunctions Up to this point, we have been considering situations that were challenged because they were seen as violating statutes or regulations of one sort or another. The facts of a case are applied to a preexisting statute. However, courts sometimes issue injunctions to stop or prevent an activity. In theory, injunctions are a response to an immediate situation and can be appropriately tailored. But they are problematic. A person cannot be punished for violating what is found to be an unconstitutional law. A person can, however, be punished for violating a court-ordered injunction, even if in the end the injunction is found to be unconstitutional. Injunctions became a popular tool to thwart protest activities during the Civil Rights Movement. Martin Luther King, Jr. and his followers deliberately violated a state court injunction forbidding them to participate in or encourage “mass street parades or mass processions” without a permit, as required by a Birmingham city ordinance. The Supreme Court affirmed their convictions for criminal contempt (Walker v. Birmingham, 388 U.S. 307, 1967). Although Justice Stewart, who spoke for the five-to-four Court majority, admitted that both the injunction and the city ordinance raised “substantial” constitutional questions, he nevertheless maintained that the petitioners should have followed the orderly procedures of the law rather than ignoring them altogether and carrying “their battle to the streets.” “One may sympathize with the petitioners’ impatient commitment to their cause,” said Stewart, “but respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.” However, Justice Brennan, in a dissent joined by Chief Justice Warren and Justices Douglas and Fortas, bitterly assailed the majority for letting “loose a devastatingly destructive weapon [the injunction] for infringement of freedom. . . .” He added, “Convictions for contempt of court orders which invalidly abridge First Amendment freedoms must be condemned equally with convictions for violation of statutes which do the same thing.” In Carroll v. President and Commissioners of Princess Anne (393 U.S. 175, 1968) a white supremacist organization called the National States Rights Party was enjoined from resuming a rally that 66

had been held the previous night and that was characterized by Justice Abe Fortas as militantly racist and aimed primarily at blacks and Jews. It was against the resumption of the rally the second night that law enforcement officials in Princess Anne and Somerset counties, Maryland, sought and obtained a restraining order in Ex parte proceedings from the county circuit court. The order, originally issued for ten days and later extended to ten months, sought to restrain petitioners from holding rallies “which . . . tend to disturb and endanger the citizens of the County.” No notice was given to the petitioners, and apparently, as Justice Fortas observed, no effort was made to otherwise communicate with them as was “expressly contemplated under Maryland law.” In any case, the petitioners obeyed the injunction and took their battle to the courts. The Maryland Court of Appeals subsequently upheld the ten day injunction but reversed the ten-month order on the ground that “the period of time was unreasonable and that it was arbitrary to assume that a clear and present danger of civil disturbance and riot would persist for ten months.” However, Justice Fortas, speaking for the U.S. Supreme Court, brushed aside the ten-day order “because of a basic infirmity in the procedure by which it was obtained.” The Court remains wary of injunctions that restrain the exercise of First Amendment freedoms in public places. For example, in Organization for a Better Austin v. Keefe (402 U.S. 415, 1971), the Court set aside an Illinois state court injunction that barred a community organization from distributing leaflets. The leaflets alleged that respondent (a real estate broker) was engaged in “blockbusting” and “panic peddling” activities in the Austin area of Chicago. Chief Justice Burger, who spoke for a unanimous Court, observed that the Illinois court “was apparently of the view that petitioners’ purpose in distributing their literature was not to inform the public but to force respondent to sign a nonsolicitation agreement.” Burger continued, “But even if this coercive impact was intended, it does not remove the petitioner’s expressions [leaflets] from the reach of the First Amendment.” In National Socialist Party of America v. Skokie (432 U.S. 43, 1977), a narrow five-to-four majority reversed and remanded an Illinois Supreme Court decision that had denied a stay of a trial court injunction prohibiting Nazi party members from parading or marching in uniform in Skokie, a predominantly Jewish suburb of Chicago. The order

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

also prohibited Nazi party members from “distributing pamphlets or displaying any materials which incite or promote hatred against persons of Jewish faith or ancestry or hatred against persons of any faith or ancestry, race or religion.” The U.S. Supreme Court majority held that the Illinois Supreme Court by its refusal either to stay the lower court order or to grant an expedited appeal had in effect rendered a final determination as to the merits of the petitioners' claim, which denied

them their First Amendment rights. “If a State seeks to impose a restraint of this kind,” said the Court, “it must provide strict procedural safeguards . . . including immediate appellate review.” The most recent important cases involving demonstrations have involved abortion protests. Two such cases involved injunctions and the third involved a state statute. Because the rulings focus on appropriate time, place, and manner regulations, they are discussed in the next section.

FEINER V. NEW YORK 340 U.S. 315 (1951) CHIEF JUSTICE VINSON delivered the opinion of the Court. Petitioner was convicted of the offense of disorderly conduct, a misdemeanor under the New York penal laws, in the Court of Special Sessions of the City of Syracuse and was sentenced to thirty days in the county penitentiary. . . . In the review of state decisions where First Amendment rights are drawn in question, we of course make an examination of the evidence to ascertain independently whether the right has been violated. Here, the trial judge, who heard the case without a jury, rendered an oral decision at the end of the trial, setting forth his determination of the facts upon which he found the petitioner guilty. His decision indicated generally that he believed the state’s witnesses, and his summation of the testimony was used by the two New York courts on review in stating the facts. Our appraisal of the facts is, therefore, based upon the uncontroverted facts and, where controversy exists, upon that testimony which the trial judge did reasonably conclude to be true. On the evening of March 8, 1949, petitioner Irving Feiner was addressing an open-air meeting at the corner of South McBride and Harrison Streets in the City of Syracuse. At approximately 6:30 P.M., the police received a telephone complaint concerning the meeting, and two officers were detailed to investigate. One of these officers went to the scene immediately, the other arriving some twelve min-

utes later. They found a crowd of about seventy-five or eighty people, both Negro and white, filling the sidewalk and spreading out into the street. Petitioner, standing on a large wooden box on the sidewalk, was addressing the crowd through a loudspeaker system attached to an automobile. Although the purpose of his speech was to urge his listeners to attend a meeting to be held that night in the Syracuse Hotel, in its course he was making derogatory remarks concerning President Truman, the American Legion, the Mayor of Syracuse, and other local political officials. The police officers made no effort to interfere with petitioner’s speech, but were first concerned with the effect of the crowd on both pedestrian and vehicular traffic. They observed the situation from the opposite side of the street, noting that some pedestrians were forced to walk in the street to avoid the crowd. Since traffic was passing at the time, the officers attempted to get the people listening to petitioner back on the sidewalk. The crowd was restless and there was some pushing, shoving and milling around. One of the officers telephoned the police station from a nearby store, and then both policemen crossed the street and mingled with the crowd without any intention of arresting the speaker. At this time, petitioner was speaking in a “loud, high-pitched voice.” He gave the impression that he was endeavoring to arouse the Negro people against the whites, urging that they rise up in arms and fight for equal rights. The statements before such a mixed Freedom of Expression

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

audience “stirred up a little excitement.” Some of the onlookers made remarks to the police about their inability to handle the crowd and at least one threatened violence if the police did not act. There were others who appeared to be favoring petitioner’s arguments. Because of the feeling that existed in the crowd both for and against the speaker, the officers finally “stepped in to prevent it from resulting in a fight.” One of the officers approached the petitioner, not for the purpose of arresting him, but to get him to break up the crowd. He asked petitioner to get down off the box, but the latter refused to accede to his request and continued talking. The officer waited for a minute and then demanded that he cease talking. Although the officer had thus twice requested petitioner to stop over the course of several minutes, petitioner not only ignored him but continued talking. During all this time, the crowd was pressing closer around petitioner and the officer. Finally, the officer told petitioner he was under arrest and ordered him to get down from the box, reaching up to grab him. Petitioner stepped down, announcing over the microphone that “the law has arrived, and I suppose they will take over now.” In all, the officer had asked petitioner to get down off the box three times over a space of four or five minutes. Petitioner had been speaking for over a half hour. On these facts, petitioner was specifically charged with violation of 722 of the Penal Law of New York, the pertinent part of which is set out in the margin.1 The bill of particulars, demanded by petitioner and furnished by the State, gave in detail the facts upon which the prosecution relied to support the charge of disorderly conduct. Paragraph C is particularly pertinent here: “By ignoring and refusing to heed and obey reasonable police orders issued at the time and place mentioned in the Information to regulate and control said crowd and to prevent a breach or breaches of the peace and to prevent injury to pedestrians attempting to use said walk, and being forced into the highway adjacent to the place in question, and prevent injury to the public generally.” We are not faced here with blind condonation by a state court of arbitrary police action. Petitioner was accorded a full, fair trial. The trial judge heard testimony supporting and contradicting the judgment of the police officers that a clear danger of disorder was threatened. After weighing this contradictory evidence, the trial judge reached the conclusion that the police officers were justified in taking action to prevent a breach of the peace. The exercise of the police 68

officers’ proper discretionary power to prevent a breach of the peace was thus approved by the trial court and later by two courts on review. The courts below recognized petitioner’s right to hold a street meeting at this locality, to make use of loud-speaking equipment in giving his speech, and to make derogatory remarks concerning public officials and the American Legion. They found that the officers in making the arrest were motivated solely by a proper concern for the preservation of order and protection of the general welfare, and that there was no evidence which could lend color to a claim that the acts of the police were a cover for suppression of petitioner’s views and opinions. Petitioner was thus neither arrested nor convicted for the making or the content of his speech. Rather, it was the reaction which it actually engendered. The language of Cantwell v. Connecticut, 310 U.S. 296 (1940), is appropriate here. “The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious.” 310 U.S. at 308. The findings of the New York courts as to the condition of the crowd and the refusal of petitioner to obey the police requests, supported as they are by the record of this case, are persuasive that the conviction of petitioner for violation of public peace, order and authority does not exceed the bounds of proper state police action. This Court respects, as it must, the interest of the community in maintaining peace and order on its streets. Schneider v. State, 308 U.S. 147, 160 (1939); Kovacs v. Cooper, 336 U.S. 77, 82 (1949). We cannot say that the preservation of that interest here encroaches on the constitutional rights of this petitioner. We are well aware that the ordinary murmurings and objections of a hostile audience cannot be allowed to silence a speaker, and are also mindful of the possible danger of giving overzealous police officials complete discretion to break up otherwise lawful public meetings. “A State may not unduly

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

suppress free communication of views, religious or other, under the guise of conserving desirable conditions.” Cantwell v. Connecticut, supra, at 308. But we are not faced here with such a situation. It is one thing to say that the police cannot be used as an instrument for the suppression of unpopular views, and another to say that, when as here the speaker passes the bounds of argument or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace. . . . Affirmed. [JUSTICE FRANKFURTER concurred in the result.] JUSTICE BLACK, dissenting: The record before us convinces me that petitioner, a young college student, has been sentenced to the penitentiary for the unpopular views he expressed on matters of public interest while lawfully making a street-corner speech in Syracuse, New York. Today’s decision, however, indicates that we must blind ourselves to this fact because the trial judge fully accepted the testimony of the prosecution witnesses on all important points. Many times in the past this Court has said that despite findings below, we will examine the evidence for ourselves to ascertain whether federally protected rights have been denied; otherwise review here would fail of its purpose in safeguarding constitutional guarantees. Even a partial abandonment of this rule marks a dark day for civil liberties in our Nation. But still more has been lost today. Even accepting every “finding of fact” below, I think this conviction makes a mockery of the free speech guarantees of the First and Fourteenth Amendments. The end result of the affirmance here is to approve a simple and readily available technique by which cities and states can with impunity subject all speeches, political or otherwise, on streets or elsewhere, to the supervision and censorship of the local police. I will have no part or parcel in this holding which I view as a long step toward totalitarian authority. Considering only the evidence which the state courts appear to have accepted, the pertinent “facts” are: Syracuse city authorities granted a permit for O. John Rogge, a former Assistant Attorney General, to speak in a public school building on March 8, 1948 on the subject of racial discrimination and civil liberties. On March 8th, however, the authorities cancelled the permit. The Young

Progressives under whose auspices the meeting was scheduled then arranged for Mr. Rogge to speak at the Hotel Syracuse. The gathering on the street where petitioner spoke was held to protest the cancellation and to publicize the meeting at the hotel. In this connection, petitioner used derogatory but not profane language with reference to the city authorities, President Truman and the American Legion. After hearing some of these remarks, a policeman, who had been sent to the meeting by his superiors, reported to Police Headquarters by telephone. To whom he reported or what was said does not appear in the record, but after returning from the call, he and another policeman started through the crowd toward petitioner. Both officers swore they did not intend to make an arrest when they started, and the trial court accepted their statements. They also said, and the court believed, that they heard and saw “angry mutterings,” “pushing,” “shoving and milling around” and “restlessness.” Petitioner spoke in a “loud, high pitched voice.” He said that colored people “don’t have equal rights and they should rise up in arms and fight for them.” One man who heard this told the officers that if they did not take that “S . . . O . . . B . . .” off the box, he would. The officers then approached petitioner for the first time. One of them first “asked” petitioner to get off the box, but petitioner continued urging his audience to attend Rogge’s speech. The officer next “told” petitioner to get down, but he did not. The officer finally “demanded” that petitioner get down, telling him he was under arrest. Petitioner then told the crowd that “the law had arrived and would take over” and asked why he was arrested. The officer first replied that the charge was “unlawful assembly” but later changed the ground to “disorderly conduct.” The Court’s opinion apparently rests on this reasoning: The policeman, under the circumstances detailed, could reasonably conclude that serious fighting or even riot was imminent; therefore he could stop petitioner’s speech to prevent a breach of peace; accordingly, it was “disorderly conduct” for petitioner to continue speaking in disobedience of the officer’s request. As to the existence of a dangerous situation on the street corner, it seems farfetched to suggest that the “facts” show any imminent threat of riot or uncontrollable disorder. It is neither unusual nor unexpected that some people at public street meetings mutter, mill about, push, shove, or disagree, even violently, with the speaker. Freedom of Expression

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Indeed, it is rare where controversial topics are discussed that an outdoor crowd does not do some or all of these things. Nor does one isolated threat to assault the speaker forebode disorder. Especially should the danger be discounted where, as here, the person threatening was a man whose wife and two small children accompanied him and who, so far as the record shows, was never close enough to petitioner to carry out the threat. Moreover, assuming that the “facts” did indicate a critical situation, I reject the implication of the Court’s opinion that the police had no obligation to protect petitioner’s constitutional right to talk. The police of course have power to prevent breaches of the peace. But if, in the name of preserving order, they ever can interfere with a lawful public speaker, they first must make all reasonable efforts to protect him. Here the policemen did not even pretend to try to protect petitioner. According to the officers’ testimony, the crowd was restless but there is no showing of any attempt to quiet it; pedestrians were forced to walk into the street, but there was no effort to clear a path on the sidewalk; one person threatened to assault petitioner but the officers did nothing to discourage this when even a word might have sufficed. Their duty was to protect petitioner’s right to talk, even to the extent of arresting the man who threatened to interfere. Instead, they shirked that duty and acted only to suppress the right to speak. Finally, I cannot agree with the Court’s statement that petitioner’s disregard of the policeman’s unexplained request amounted to such “deliberate defiance” as would justify an arrest or conviction for disorderly conduct. On the contrary, I think that the policeman’s action was a “deliberate defiance” of ordinary official duty as well as of the constitutional right of free speech. For at least where time allows, courtesy and explanation of commands are basic elements of good official conduct in a democratic society. Here petitioner was “asked” then “told” then “commanded” to stop speaking, but a man making a lawful address is certainly not required to be silent merely because an officer directs it. Petitioner was entitled to know why he should cease doing a lawful act. Not once was he told. I understand that people in authoritarian countries must obey arbitrary orders. I had hoped that there was no such duty in the United States. In my judgment, today’s holding means that as a practical matter, minority speakers can be silenced 70

in any city. Hereafter, despite the First and Fourteenth Amendments, the policeman’s club can take heavy toll of a current administration’s public critics. Criticism of public officials will be too dangerous for all but the most courageous. This is true regardless of the fact that in two other cases decided this day, Kunz v. New York, 340 U.S. 290; Niemotko v. Maryland, 340 U.S. 268, a majority, in obedience to past decisions of this Court, provides a theoretical safeguard for freedom of speech. For whatever is thought to be guaranteed in Kunz and Niemotko is taken away by what is done here. The three cases read together mean that while previous restraints probably cannot be imposed on an unpopular speaker, the police have discretion to silence him as soon as the customary hostility to his views develops. In this case I would reverse the conviction, thereby adhering to the great principles of the First and Fourteenth Amendments as announced for this Court in 1940 by Mr. Justice Roberts: In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy. Cantwell v. Connecticut, 310 U.S. 296, 310. I regret my inability to persuade the Court not to retreat from this principle.

JUSTICE DOUGLAS, joined by Justice Minton, dissenting: A speaker may not, of course, incite a riot any more than he may incite a breach of the peace by the use of “fighting words.” See Chaplinsky v. New Hampshire, 315 U.S. 568. But this record shows no such extremes. It shows an unsympathetic audience and the threat of one man to haul the speaker from the stage. It is against that kind of threat that speakers need police protection. If they do not receive it and instead the police throw their weight on the side of those who would break up the meetings, the police become the new censors of speech. . . .

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

EDWARDS ET AL. V. SOUTH CAROLINA 372 U.S. 229, 1963 MR. JUSTICE STEWART delivered the opinion of the Court. The petitioners, 187 in number, were convicted in a magistrate’s court in Columbia, South Carolina, of the common-law crime of breach of the peace. There was no substantial conflict in the trial evidence.Late in the morning of March 2, 1961, the petitioners, high school and college students of the Negro race, met at the Zion Baptist Church in Columbia. From there, at about noon, they walked in separate groups of about 15 to the South Carolina State House grounds, an area of two city blocks open to the general public. Their purpose was “to submit a protest to the citizens of South Carolina, along with the Legislative Bodies of South Carolina, our feelings and our dissatisfaction with the present condition of discriminatory actions against Negroes, in general, and to let them know that we were dissatisfied and that we would like for the laws which prohibited Negro privileges in this State to be removed.” Already on the State House grounds when the petitioners arrived were 30 or more law enforcement officers, who had advance knowledge that the petitioners were coming. Each group of petitioners entered the grounds through a driveway and parking area known in the record as the “horseshoe.” As they entered, they were told by the law enforcement officials that “they had a right, as a citizen, to go through the State House grounds, as any other citizen has, as long as they were peaceful.” During the next half hour or 45 minutes, the petitioners, in the same small groups, walked single file or two abreast in an orderly way through the grounds, each group carrying placards bearing such messages as “I am proud to be a Negro” and “Down with segregation.” During this time a crowd of some 200 to 300 onlookers had collected in the horseshoe area and on the adjacent sidewalks. There was no evidence to suggest that these onlookers were anything but curious, and no evidence at all of any threatening remarks, hostile gestures, or offensive language on the part of any member of the crowd. The City Manager

testified that he recognized some of the onlookers, whom he did not identify, as “possible trouble makers,” but his subsequent testimony made clear that nobody among the crowd actually caused or threatened any trouble. There was no obstruction of pedestrian or vehicular traffic within the State House grounds. No vehicle was prevented from entering or leaving the horseshoe area. Although vehicular traffic at a nearby street intersection was slowed down somewhat, an officer was dispatched to keep traffic moving. There were a number of bystanders on the public sidewalks adjacent to the State House grounds, but they all moved on when asked to do so, and there was no impediment of pedestrian traffic. Police protection at the scene was at all times sufficient to meet any foreseeable possibility of disorder.0 In the situation and under the circumstances thus described, the police authorities advised the petitioners that they would be arrested if they did not disperse within 15 minutes. Instead of dispersing, the petitioners engaged in what the City Manager described as “boisterous,” “loud,” and “flamboyant” conduct, which, as his later testimony made clear, consisted of listening to a “religious harangue” by one of their leaders, and loudly singing “The Star Spangled Banner” and other patriotic and religious songs, while stamping their feet and clapping their hands. After 15 minutes had passed, the police arrested the petitioners and marched them off to jail. Upon this evidence the state trial court convicted the petitioners of breach of the peace. . . . In affirming the judgments, the Supreme Court of South Carolina said that under the law of that State the offense of breach of the peace “is not susceptible of 0

The City Manager testified: “Q. You had ample time, didn’t you, to get ample police protection, if you thought such was needed on the State House grounds, didn’t you? “A. Yes, we did. “Q. So, if there were not ample police protection there, it was the fault of those persons in charge of the Police Department, wasn’t it? “A. There was ample police protection there.”

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exact definition,” but that the “general definition of the offense” is as follows: “In general terms, a breach of the peace is a violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence . . . , it includes any violation of any law enacted to preserve peace and good order. It may consist of an act of violence or an act likely to produce violence. It is not necessary that the peace be actually broken to lay the foundation for a prosecution for this offense. If what is done is unjustifiable and unlawful, tending with sufficient directness to break the peace, no more is required. Nor is actual personal violence an essential element in the offense. . . . “By ‘peace,’ as used in the law in this connection, is meant the tranquility enjoyed by citizens of a municipality or community where good order reigns among its members, which is the natural right of all persons in political society.” The petitioners contend that there was a complete absence of any evidence of the commission of this offense, and that they were thus denied one of the most basic elements of due process of law. Whatever the merits of this contention, we need not pass upon it in the present case. The state courts have held that the petitioners’ conduct constituted breach of the peace under state law, and we may accept their decision as binding upon us to that extent. But it nevertheless remains our duty in a case such as this to make an independent examination of the whole record. And it is clear to us that in arresting, convicting, and punishing the petitioners under the circumstances disclosed by this record, South Carolina infringed the petitioners’ constitutionally protected rights of free speech, free assembly, and freedom to petition for redress of their grievances. The circumstances in this case reflect an exercise of these basic constitutional rights in their most pristine and classic form. The petitioners felt aggrieved by laws of South Carolina which allegedly “prohibited Negro privileges in this State.” They peaceably assembled at the site of the State Government and there peaceably expressed their grievances “to the citizens of South Carolina, along with the Legislative Bodies of South Carolina.” Not until they were told by police officials that they must disperse on pain of arrest did they do more. Even then, they but sang patriotic and religious songs after one of their leaders had delivered a “religious harangue.” There was no violence or threat of violence on their part, or on the part of any 72

member of the crowd watching them. Police protection was “ample.” This, therefore, was a far cry from the situation in Feiner v. New York, 340 U.S. 315, where two policemen were faced with a crowd which was “pushing, shoving and milling around,” where at least one member of the crowd “threatened violence if the police did not act,” where “the crowd was pressing closer around petitioner and the officer,” and where “the speaker passes the bounds of argument or persuasion and undertakes incitement to riot.” And the record is barren of any evidence of “fighting words.” We do not review in this case criminal convictions resulting from the evenhanded application of a precise and narrowly drawn regulatory statute evincing a legislative judgment that certain specific conduct be limited or proscribed. If, for example, the petitioners had been convicted upon evidence that they had violated a law regulating traffic, or had disobeyed a law reasonably limiting the periods during which the State House grounds were open to the public, this would be a different case. These petitioners were convicted of an offense so generalized as to be, in the words of the South Carolina Supreme Court, “not susceptible of exact definition.” And they were convicted upon evidence which showed no more than that the opinions which they were peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection. “[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech . . . is . . . protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. . . . There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups” (Terminiello v. Chicago, 337 U.S. 1, 4–5). As in the Terminiello case, the courts of South Carolina have defined a criminal offense so as to permit conviction of the petitioners if their speech “stirred people to anger,

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand.” As Chief Justice Hughes wrote in Stromberg v. California, “The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. A statute which upon its face, and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity is repugnant to the guaranty of liberty contained in the Fourteenth Amendment. . . .” For these reasons we conclude that these criminal convictions cannot stand. Reversed. MR. JUSTICE CLARK, dissenting. The convictions of the petitioners, Negro high school and college students, for breach of the peace under South Carolina law are accepted by the Court “as binding upon us to that extent” but are held violative of “petitioners’ constitutionally protected rights of free speech, free assembly, and freedom to petition for redress of their grievances.” Petitioners, of course, had a right to peaceable assembly, to espouse their cause and to petition, but in my view the manner in which they exercised those rights was by no means the passive demonstration which this Court relates; rather, as the City Manager of Columbia testified, “a dangerous situation was really building up” which South Carolina’s courts expressly found had created “an actual interference with traffic and an imminently threatened disturbance of the peace of the community.” Since the Court does not attack the state courts’ findings and accepts the convictions as “binding” to the extent that the petitioners’ conduct constituted a breach of the peace, it is difficult for me to understand its understatement of the facts and reversal of the convictions. The priceless character of First Amendment freedoms cannot be gainsaid, but it does not follow that they are absolutes immune from necessary state action reasonably designed for the protection of society. For that reason it is our duty to consider the context in which the arrests here were made. Certainly the city officials would be constitutionally prohibited from refusing petitioners access to the State House grounds merely because they disagreed with their views. But

here South Carolina’s courts have found: “There is no indication whatever in this case that the acts of the police officers were taken as a subterfuge or excuse for the suppression of the appellants’ views and opinions.” The activity continued for approximately 45 minutes, during the busy noon-hour period, while a crowd of some 300 persons congregated in front of the State House and around the area directly in front of its entrance, known as the “horseshoe,” which was used for vehicular as well as pedestrian ingress and egress. During this time there were no efforts made by the city officials to hinder the petitioners in their rights of free speech and assembly; rather, the police directed their efforts to the traffic problems resulting from petitioners’ activities. It was only after the large crowd had gathered, among which the City Manager and Chief of Police recognized potential troublemakers, and which together with the students had become massed on and around the “horseshoe” so closely that vehicular and pedestrian traffic was materially impeded, that any action against the petitioners was taken. Then the City Manager, in what both the state intermediate and Supreme Court found to be the utmost good faith, decided that danger to peace and safety was imminent. Even at this juncture no orders were issued by the City Manager for the police to break up the crowd, now about 500 persons, and no arrests were made. Instead, he approached the recognized leader of the petitioners and requested him to tell the various groups of petitioners to disperse within 15 minutes, failing which they would be arrested. Even though the City Manager might have been honestly mistaken as to the imminence of danger, this was certainly a reasonable request by the city’s top executive officer in an effort to avoid a public brawl. But the response of petitioners and their leader was defiance rather than cooperation. The leader immediately moved from group to group among the students, delivering a “harangue” which, according to testimony in the record, “aroused [them] to a fever pitch causing this boisterousness, this singing and stomping.” For the next 15 minutes the petitioners sang “I Shall Not Be Moved” and various religious songs, stamped their feet, clapped their hands, and conducted what the South Carolina Supreme Court found to be a “noisy demonstration in defiance of [the dispersal] orders.” Ultimately, the petitioners were arrested, as they apparently planned from the beginning, and convicted on evidence the sufficiency of which the Court does not challenge. The question thus seems to me whether a State is constitutionally Freedom of Expression

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prohibited from enforcing laws to prevent breach of the peace in a situation where city officials in good faith believe, and the record shows, that disorder and violence are imminent, merely because the activities constituting that breach contain claimed elements of constitutionally protected speech and assembly. To me the answer under our cases is clearly in the negative. In Cantwell v. Connecticut, this Court recognized that “when clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious.” And in Feiner v. New York, we upheld a conviction for breach of the peace in a situation no more dangerous than that found here. There the demonstration was conducted by only one person and the crowd was limited to approximately eighty, as compared with the present lineup of some 200 demonstrators and 300 onlookers. There the petitioner was “endeavoring to arouse the Negro people against the whites, urging that they rise up in arms and fight for equal rights.” Only one person—in a city having an entirely different historical background—was exhorting adults. Here 200 youthful Negro demonstrators were being aroused to a “fever pitch” before a crowd of some 300 people who undoubtedly were hostile. Perhaps their speech was not so animated but in this setting their actions, their placards reading “You may jail our bodies but not our souls” and their chanting of “I Shall Not Be Moved,” accompanied by stamping feet and clapping hands, created a much greater danger of riot and disorder. It is my belief that anyone conversant with the almost spontaneous combustion in some Southern communities in such a situation will agree that the City Manager’s action may well have averted a major catastrophe. . . . This record, then, shows no steps backward from a standard of “clear and present danger.” But to say that the police may not intervene until the riot has occurred is like keeping out the doctor until the patient dies. I cannot subscribe to such a doctrine. . . . I would affirm the convictions.

TIME, PLACE, AND MANNER RESTRICTIONS FEATURED CASE Frisby v. Schultz The street-corner speaker, the demonstrator, the distributor of handbills, the labor organizer who solicits 74

members, and the speaker with a sound amplifier— all are exercising what they consider to be their First Amendment freedoms. But sometimes these activities run counter to a state law or local ordinance that is designed to preserve peace and order or some other societal value. The crucial question then becomes how and under what conditions may the state control speech in public places. The current test was set out in United States v. Grace (461 U.S. 171, 1983).The Court declared unconstitutional a federal law prohibiting the “display of any flags, banner, or device designed or adapted to bring into public notice any party organization, or movement” in the Supreme Court building or its grounds, including public sidewalks that constitute the outer boundaries of such grounds. In ruling on this specific ordinance, the Court fashioned a general principle. It held that: the government may enforce reasonable time, place, and manner restrictions [in public forums only if] the restrictions are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.

As with all tests, the application of this test is complicated and requires understanding the history of how the Court got there. In Hague v. CIO (307 U.S. 496, 1939), Justice Owen Roberts made what has become a classic comment on the use of public streets and parks for speech making, soliciting, and assembly: Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

Although there was no majority opinion in Hague (some of the justices acted on the due process clause, others on privileges and immunities), it was generally assumed in later decisions that the public had a

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

basic constitutional right to use streets, parks, and other public places in the exercise of First Amendment freedoms, subject to reasonable state regulations, such as protecting public safety. When Alabama banned all peaceful picketing regardless of purpose, the Supreme Court declared the law to be unconstitutional as an invasion of freedom of speech. The statute swept too broadly. Speaking for the Court in Thornhill v. Alabama (310 U.S. 88, 1940), Justice Frank Murphy contended: The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period. In the circumstances of our times the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution. . . .

These early cases suggest that the First Amendment is not simply about forbidding the government from stopping an individual speaker. There is also the belief that government must accommodate speech even though it brings with it some costs to society. Still, there must be some rules to allocate public space and time for speech related activity. Public Forum An important theme in time, place, and manner, jurisprudence is the concept of the public forum. We have already encountered this concept in the discussion of streets and public parks, but a wide variety of locations are public property. Schools, post offices, airports, fairgrounds, military bases, and hospitals, to name a few, are all public places. Surely, what must be allowed on a street corner is not the same as what must be allowed inside an elementary school. To deal with this issue, the Court has devised a public forum doctrine. Recall the previous discussion in the civil rights cases about whether a library or a jailhouse must accommodate public protest. Those were closely decided cases, and as we noted earlier, there is debate about whether Justice’s Black’s opinion in Adderly has survived. The issue of regulating the public forum, however, is still with us. In Grayned v. Rockford (408 U.S. 104, 1972), the Court upheld a

city ordinance that prohibited any person “while on public or private grounds adjacent to any building in which a school or any class thereof is in session, to make noise or diversion which disturbs or tends to disturb the peace or good order of such school.” It said, “The nature of a place, the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.” The Court developed three categories to describe public property for speech purposes. It did so in Perry Education Assn. v. Perry Local Educators Assn. (460 U.S. 337, 1983).The Court upheld a labor contract, against First and Fourteenth Amendment challenges, wherein a public school district agreed to give exclusive use of the school’s internal mail system to the teachers’ union that won the right through a representational election (over a rival union) to be the official bargaining agent for the district teachers. In response to the losing union’s claims that its constitutional rights were being violated, Justice White wrote for a five-person majority that the school mail system was not a “public forum,” and hence the school district was under “no constitutional obligation per se to let any organization use the school’s mail boxes.” More importantly, he argued: The existence of a right of access to public property depends on the character of the property at issue. In places which by long tradition or by government fiat have been devoted to assembly and debate the rights of the state to limit expressive activity are sharply circumscribed. In these quintessential public forums (e.g. streets and parks) the government may not [exclude communication based on content unless it was necessary to serve a compelling state interest]. A second category “consists of public property which the state has [voluntarily] opened for use by the public as a place for expressive activity. [Although] a state is not required to indefinitely retain the open character of such facilities, as long as it does so it is bound by the same standards as apply in a traditional public forum. [A third category], [p]ublic property which is not by tradition or designation forum for public communication is governed by different standards . . . The state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s views.

Issues have arisen regarding the public nature of locations including military bases [Geer v. Spock (424 U.S. 828, 1976) held not a public forum]; public utility poles [Los Angeles v. Taxpayers for Vincent Freedom of Expression

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(466 U.S. 789, 1984) upheld ordinance prohibiting posting of political signs]; sidewalks in front of a post office [United States v. Kokinda (497 U.S. 720, 1990) upheld federal regulation prohibiting soliciting contributions on postal premises]; and a state fair [Heffron v. International Society for Krishna Consciousness (ISKCON) (452 U.S. 640, 1981) upheld prohibition of the sale or distribution of any merchandise including printed or written material except from a booth rented from the state]. Another Krishna case, International Society for Krishna Consciousness v. Lee (505 U.S. 672, 1992), arose in the context of airports. It resulted in a wide array of opinions both about the nature of airports as a public forum and what constituted reasonable governmental regulations. Four justices saw airport terminals as traditional public forums; five did not. The Court upheld a ban on solicitation but overturned a ban on the sale and distribution of literature. As was often the case, Justice O’Connor was the swing vote. Although she disagreed with Justices Kennedy, Souter, Blackmun, and Stevens that airport terminals were traditional public forums, she nonetheless agreed that the ban on the sale or distribution of literature was an unreasonable restriction unlike the restrictions on solicitation. Permits and Licensing Permit and licensing systems have been one way that state and local governments have attempted to cope with regulating the public forum. Permits, of course, can be used by government to inhibit speech, and early on challenges were posed to permit systems on constitutional grounds. For example, in Lovell v. Griffin (303 U.S. 444,1938), the Court invalidated a city ordinance that gave officials too much discretion to decide whether to permit distribution of leaflets. And the next year, in Hague (from which the Roberts quote about streets and parks is taken), the Court declared unconstitutional a Jersey City ordinance that prohibited public parades or public assemblies “in or upon the public streets, highways, public parks, or public buildings” without first securing a permit from the director of public safety. Here Jersey City, under Mayor Hague, was preventing members of the Congress of Industrial Organizations (CIO) from distributing materials and holding a meeting to discuss the National Labor Relations Act. The ordinance enabled the director of safety “to refuse a permit on his mere opinion that such refusal will prevent riots, disturbances, or disorderly assemblage.” By investing 76

such uncontrolled authority in the director of public safety, said Justice Roberts, the ordinance can “be made the instrument of arbitrary suppression of free expression of views on national affairs, for the prohibition of all speaking will undoubtedly prevent such eventualities.” In Cox v. New Hampshire (312 U.S. 529, 1941), the Court unanimously upheld convictions of Jehovah’s Witnesses who marched along downtown streets of Manchester without first securing a special permit as required by state statutes for “parades or processions” on public streets. Here the Court found that the statute, as construed by the state supreme court, provided for reasonable and nondiscriminatory regulations with respect to the use of streets. Chief Justice Charles Evans Hughes, who delivered the opinion of the Court, said that “[c]ivil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.” During the 1950s, the Court continued its close scrutiny of permit and licensing systems. In cases such as Niemotko v. Maryland (340 U.S. 268, 1959), Staub v. Baxley (355 U.S. 313, 1958), and Kunz v. New York (340 U.S. 395, 1953), it condemned licensing and permit systems that vested unfettered discretion in administrative officials as permitting a prior restraint on First Amendment freedoms. By contrast, in Poulos v. New Hampshire (345 U.S. 395, 1953) the Court upheld a city ordinance providing a permit system for “open air public meetings” on the ground that “by its construction of the ordinance the state left in the licensing officials no discretion as to granting permits, no power to discriminate, no control over speech.” In its 1988 decision in City of Lakewood v. Plain Dealer Pub. Co. (486 U.S. 750), the Court continued to question speech-related control systems that vest unbridled discretion in administrative officials (e.g., the city mayor). In Forsyth County, Georgia v. Nationalist Movement (505 U.S. 123, 1992) the Court ruled that a permit could not be required for a demonstration if government officials had discretion in setting the amount that was charged for the permit. In Forsyth County, officials could charge up to $1000 for a permit. The Court found that nothing in the law or its application “prevents the official from encouraging some views and discouraging others through the arbitrary application of the fees. The First Amendment prohibits the vesting of such unbridled discretion in a government official.” Permits and

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

licensing are not the only problem. The Court has looked askance at other regulatory systems that could substantially impede the exercise of First Amendment freedoms using much the same logic. Intrusion and Community Tranquility The government has responsibilities beyond being the gatekeeper of public spaces. We expect society to pass rules to make daily living in a community enjoyable. This expectation is obvious when it comes to sewage, zoning regulations, traffic control, and so forth. Of course, such rules can at times encroach on free speech. The classic example deals with noise control. At what point does allowing a speaker to get a message across run into the need to protect the privacy and comfort of others? In Saia v. New York (334 U.S. 558, 1948), the Court was faced with a city ordinance that forbade use of sound amplification devices except “public dissemination through radio loudspeakers of items of news and matters of public concern . . . provided that the same be done under permission obtained from the Chief of Police.” Here the appellant, a Jehovah’s Witness, was refused a new permit because complaints had been received concerning the speeches and sermons he had delivered under an earlier permit. Nevertheless, the lack of a permit did not keep the appellant from delivering speeches over a loudspeaker in a small public park that was used primarily for recreational purposes. He was subsequently tried and convicted for violating the ordinance. By a five-to-four majority, the Supreme Court held the ordinance unconstitutional on its face as a prior restraint on freedom of speech. In a subsequent case (Kovacs v. Cooper, 336 U.S. 77, 1949), however, the Court retreated and upheld a Trenton, New Jersey, loudspeaker ordinance that prohibited use of sound trucks and similar amplifying devices that emit “loud and raucous noises.” Justice Reed announced the judgment of the five-tofour majority and, in an opinion joined by Chief Justice Vinson and Justice Burton, accepted the state supreme court’s construction of the ordinance to apply only to vehicles with sound amplifiers emitting “loud and raucous noises.” Though these results seem logical on their face and nondiscriminatory, they pose deeper issues. Banning one medium of communication may give preference to one point of view over another. A wealthy person may be able to buy television or radio time, but for those with less money, the only realistic way to communicate to a

broader audience might be with a bullhorn or by door-to-door canvassing. In a more modern case, Ward v. Rock Against Racism (491 U.S. 781, 1989), the Court, by a six-to-three decision, found constitutional a New York City regulation restricting sound equipment in Central Park to the equipment that is provided by the City and operated by an independent technician. It argued that the government “has a substantial interest in protecting its citizens from unwelcome noise.” Saia and Kovacs portend the potential conflict between explicit constitutional rights such as free speech and the emerging constitutional right to privacy, or “the right to be let alone.” There have been several cases about door-to-door canvassing. An early one was Martin v. Struthers (319 U.S. 141, 1943), in which the Court struck down an ordinance prohibiting any person “to ring the door bell or otherwise summon the inmate of any residence for the purpose of distributing handbills.” In this case, Jehovah’s Witnesses were engaging in door-to-door canvassing to advertise a religious meeting. Justice Black for the Court said: We are faced with the necessity of weighing the conflicting interests of the appellant in the civil rights she claims, as well as the right of the individual householder to determine whether he is willing to receive her message, against the interest of the community which by this ordinance offers to protect the interests of all its citizens, whether particular citizens want that protection or not. In considering legislation which thus limits the dissemination of knowledge, we must [quoting form Schneider] “weigh the circumstances and appraise the substantiality of the reasons advanced in support of the regulation.” While door to door distributors of literature may be either a nuisance or a blind for criminal activities, they may also be useful members of society engaged in the dissemination of ideas in accordance with the best tradition of free discussion. The widespread use of this method of communication by many groups attests its major importance. Door to door distribution of circulars is essential to the poorly financed causes of little people. Freedom to distribute information to every citizen whenever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved . . . The city may make it an offense for any person to ring the bell of a householder who has appropriately indicated that he is unwilling to be disturbed. Freedom of Expression

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Not surprisingly, the methods have changed over the years, but the issues of free speech vs. intrusiveness continue. In one case, protestors gathered on several occasions on the public street in front of the home of a doctor who performed abortions. The town subsequently passed an ordinance that prohibited picketing “before or about” any residence. In Frisby v. Schultz (487 U.S. 474, 1988) the Court upheld the ordinance (6–3). The Court noted that: a public street does not lose its status as a traditional public forum because it runs through a residential neighborhood.” [But because it left] open ample alternative channels of communication, [and because it is] narrowly tailored to serve a significant government interest [it is Constitutional]. . . . [P]rivacy of the home is of the highest order in a free and civilized society. . . . [the] type of picketers banned by this ordinance generally do not seek to disseminate a message to the general public, but to intrude upon the target resident, and to do so in an especially offensive way. . . . [E]ven if some such picketers have a broader communicative purpose, their activity nonetheless inherently and offensively intrudes on residential privacy.

Private Property The Court has struggled with issues related to private property and the First Amendment. Government regulates private property and businesses all the time through building codes, zoning regulations, and requirements of nondiscrimination, to name a few. Even the public/private distinction gets complicated. In other areas of the law, private entities that perform public functions are subject to constitutional constraint. For example, political parties are not allowed to hold segregated primary elections (White Primary Cases). If a private action is sufficiently linked with the state, it can be seen as “state action” for purposes of the Constitution. In an earlier era, there were “company towns” where companies ran all aspects of the towns. An example was Chickasaw, Alabama. In Marsh v. Alabama (326 U.S. 501, 1946) the Supreme Court held that running a city was a public function and that it must be done in compliance with the Constitution. In a later case, Evans v. Newton (382 U.S. 296, 1966), the Court held that a city could not avoid desegregating a public park by turning it over to private control. In Amalgamated Food Employees Local 590 v. Logan Valley Plaza, Inc. (391 U.S. 308, 1968), Justice Thurgood Marshall, writing for the Court, held that the First Amendment 78

protects peaceful picketing within a privately owned shopping center “because the shopping center serves as the community business block and is freely accessible and open to the people in the area and those passing through.” Not long thereafter, however, in Lloyd Corporation v. Tanner (407 U.S. 551, 1972), Justice Byron White, for a five-to-four Court, upheld the right of a privately owned shopping center that was open to the public to prohibit the distribution of handbills on its property when the handbills are unrelated to the shopping center’s operations. The handbills advertised a meeting to protest the draft and the Vietnam War. The Court distinguished this case from Logan Valley by focusing on the “shopping center’s operations” language and not on the “community business block” phrase. In a strong defense of private property rights, Justice White reemphasized the basic principle that “the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only.” Justice Marshall dissented, joined by Justices Brennan, Douglas, and Stewart, arguing that the majority had strayed from time-honored precedents such as Marsh v. Alabama and Logan Valley. In a sharply worded observation, Marshall said: [O]ne may suspect from reading the opinion of the Court that it is Logan Valley itself that the Court finds bothersome. The vote in Logan Valley was 6–3, and that decision is only four years old. But I am aware that the composition of the Court has radically changed in four years. The fact remains that Logan Valley is binding unless it is overruled. There is no valid distinction between that case and this one. . . .

Noting the increasing reliance of governments on private enterprise, Marshall warned that “only the wealthy may find effective communication possible unless we adhere to Marsh v. Alabama and continue to hold that ‘[t]he more an owner, for his advantage, opens up his property for use by the public in general the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.’” By 1976, however, Justice Stewart apparently had changed from his position in Tanner. In Hudgens v. National Labor Relations Board (424 U.S. 507, 1976), Stewart was joined by the four Nixon appointees and spoke for the majority in upholding the private property rights of a shopping center owner against the First Amendment claims

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

of workers who were picketing one of the resident stores of the shopping mall. “[W]e make clear now,” Justice Stewart asserted, “if it was not clear before, that the rationale of Logan Valley did not survive the Court’s decision in the Lloyd case. . . . Not only did the Lloyd opinion incorporate lengthy excerpts from two of the dissenting opinions in Logan Valley. . . ,” said Stewart, “the ultimate holding in Lloyd amounted to a total rejection of the holding in Logan Valley.” Justice White, who dissented from the Logan Valley decision, concurred in the result but refused to accept the majority’s reasoning that the precedent had been overruled. In PruneYard Shopping Center v. Robins (447 U.S. 74, 1980), however, the Supreme Court upheld the authority of a state, under its own constitution, to grant individuals the right to solicit signatures for a petition in the central courtyard of a private shopping center even though owners of the center objected. Here the California Supreme Court construed its own constitution in such a way as to extend individual rights beyond those found in the U.S. Constitution. And the Supreme Court, notwithstanding its earlier rulings in Lloyd and Hudgens, supported the position of the California court.

Time, place, and manner restrictions seem like reasonable ways to protect speech while accommodating the needs of society. They can, however, be used to suppress speech, intentionally or unintentionally. Imagine a regulation that there can be no protests outside any facility that performs surgical procedures. Such a regulation might be designed solely to maintain a calm environment around medical facilities. Or its real purpose might be to restrict abortion protestors. Hill v. Colorado (infra.) confronts such issues. Or imagine a city that only allowed public protests in one park on the outskirts of the city. The intent may not be to disadvantage any particular group or viewpoint, but it might have that effect. It also might lessen the effectiveness of speech. Part of the reason for protest is to draw attention and educate. Finally, a very important component of time, place, and manner regulations has been alluded to but not fully discussed. In deciding the reasonableness of a regulation, the Court often refers to the importance of the governmental interest and the extent to which the means are tailored to achieve the interest. These issues are discussed in the next section because they are part of a broader set of concerns about how the modern Court views First Amendment analysis.

FRISBY V. SCHULTZ 487 U.S. 474 (1988) JUSTICE O’CONNOR delivered the opinion of the Court, in which CHIEF JUSTICE REHNQUIST and JUSTICES BLACKMUN, SCALIA, and KENNEDY joined. JUSTICE WHITE filed an opinion concurring in the judgment. JUSTICE BRENNAN filed a dissenting opinion, in which JUSTICE MARSHALL joined. JUSTICE STEVENS filed a dissenting opinion. JUSTICE O’CONNOR delivered the opinion of the Court. Brookfield, Wisconsin, has adopted an ordinance that completely bans picketing “before or about” any

residence. This case presents a facial First Amendment challenge to that ordinance. I Brookfield, Wisconsin, is a residential suburb of Milwaukee with a population of approximately 4,300. The appellees, Sandra C. Schultz and Robert C. Braun, are individuals strongly opposed to abortion and wish to express their views on the subject by picketing on a public street outside the Brookfield residence of a doctor who apparently performs abortions at two clinics in neighboring Freedom of Expression

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towns. Appellees and others engaged in precisely that activity, assembling outside the doctor’s home on at least six occasions between April 20, 1985, and May 20, 1985, for periods ranging from one to one and a half hours. The size of the group varied from 11 to more than 40. The picketing was generally orderly and peaceful; the town never had occasion to invoke any of its various ordinances prohibiting obstruction of the streets, loud and unnecessary noises, or disorderly conduct. Nonetheless, the picketing generated substantial controversy and numerous complaints. The Town Board therefore resolved to enact an ordinance to restrict the picketing. On May 7, 1985, the town passed an ordinance that prohibited all picketing in residential neighborhoods except for labor picketing. But after reviewing this Court’s decision in Carey v. Brown (1980), which invalidated a similar ordinance as a violation of the Equal Protection Clause, the town attorney instructed the police not to enforce the new ordinance and advised the Town Board that the ordinance’s labor picketing exception likely rendered it unconstitutional. This ordinance was repealed on May 15, 1985, and replaced with the following flat ban on all residential picketing: It is unlawful for any person to engage in picketing before or about the residence or dwelling of any individual in the Town of Brookfield.

The ordinance itself recites the primary purpose of this ban: “the protection and preservation of the home” through assurance “that members of the community enjoy in their homes and dwellings a feeling of well-being, tranquility, and privacy.” The Town Board believed that a ban was necessary because it determined that “the practice of picketing before or about residences and dwellings causes emotional disturbance and distress to the occupants . . .” [and] “has as its object the harassing of such occupants.” The ordinance also evinces a concern for public safety, noting that picketing obstructs and interferes with “the free use of public sidewalks and public ways of travel.” On May 18, 1985, appellees were informed by the town attorney that enforcement of the new, revised ordinance would begin on May 21, 1985. Faced with this threat of arrest and prosecution, appellees ceased picketing in Brookfield and filed this lawsuit in the United States District Court for the Eastern District of Wisconsin. The complaint sought 80

declaratory as well as preliminary and permanent injunctive relief on the grounds that the ordinance violated the First Amendment. . . . The District Court granted appellees’ motion for a preliminary injunction. The court concluded that the ordinance was not narrowly tailored enough to restrict protected speech in a public forum. . . . A divided panel of the United States Court of Appeals for the Seventh Circuit affirmed (1986). The Court of Appeals subsequently vacated this decision, however, and ordered a rehearing en banc (1987). After rehearing, the Court of Appeals affirmed the judgment of the District Court by an equally divided vote. . . . II The antipicketing ordinance operates at the core of the First Amendment by prohibiting appellees from engaging in picketing on an issue of public concern. Because of the importance of “uninhibited, robust, and wide-open” debate on public issues, New York Times Co. v. Sullivan (1964), we have traditionally subjected restrictions on public issue picketing to careful scrutiny. Of course, “[e]ven protected speech is not equally permissible in all places and at all times.” Cornelius v. NAACP Legal Defense & Educational Fund, Inc. (1985). To ascertain what limits, if any, may be placed on protected speech, we have often focused on the “place” of that speech, considering the nature of the forum the speaker seeks to employ. . . . Specifically, we have identified three types of fora: “the traditional public forum, the public forum created by government designation, and the nonpublic forum.” The relevant forum here may be easily identified: appellees wish to picket on the public streets of Brookfield. Ordinarily, a determination of the nature of the forum would follow automatically from this identification; we have repeatedly referred to public streets as the archetype of a traditional public forum. “[T]ime out of mind” public streets and sidewalks have been used for public assembly and debate, the hallmarks of a traditional public forum. Appellants . . . argue that the streets of Brookfield should be considered a nonpublic forum. Pointing to the physical narrowness of Brookfield’s streets as well as to their residential character, appellants contend that such streets have not by tradition or designation been held open for public communication. We reject this suggestion. Our prior holdings make clear that a public street does not lose its status

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

as a traditional public forum simply because it runs through a residential neighborhood. . . . In short, our decisions identifying public streets and sidewalks as traditional public fora are not accidental invocations of a “cliché,” but recognition that “[w]herever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public.” No particularized inquiry into the precise nature of a specific street is necessary; all public streets are held in the public trust and are properly considered traditional public fora. Accordingly, the streets of Brookfield are traditional public fora. The residential character of those streets may well inform the application of the relevant test, but it does not lead to a different test; the antipicketing ordinance must be judged against the stringent standards we have established for restrictions on speech in traditional public fora: In these quintessential public for[a], the government may not prohibit all communicative activity. For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. . . . The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. Perry.

As Perry makes clear, the appropriate level of scrutiny is initially tied to whether the statute distinguishes between prohibited and permitted speech on the basis of content. Appellees argue that despite its facial content-neutrality, the Brookfield ordinance must be read as containing an implied exception for labor picketing. The basis for appellees’ argument is their belief that an express protection of peaceful labor picketing in state law must take precedence over Brookfield’s contrary efforts. . . . [W]e accept the lower courts’ conclusion that the Brookfield ordinance is content-neutral. Accordingly, we turn to consider whether the ordinance is “narrowly tailored to serve a significant government interest” and whether it “leave[s] open ample alternative channels of communication.” Because the last question is so easily answered, we address it first. . . . [I]n our view the ordinance is readily subject to a narrowing construction that avoids constitutional difficulties. Specifically, the use of the singular form of the words “residence” and “dwelling” suggests that the ordinance is in-

tended to prohibit only picketing focused on, and taking place in front of, a particular residence. . . . Accordingly, we construe the ban to be a limited one; only focused picketing taking place solely in front of a particular residence is prohibited. So narrowed, the ordinance permits the more general dissemination of a message. As appellants explain, the limited nature of the prohibition makes it virtually self-evident that ample alternatives remain: Protestors have not been barred from the residential neighborhoods, alone or in groups, even marching. . . . They may go door-to-door to proselytize their views. They may distribute literature in this manner . . . or through the mails. They may contact residents by telephone, short of harassment.

We readily agree that the ordinance preserves ample alternative channel of communication and thus move on to inquire whether the ordinance serves a significant government interest. We find that such an interest is identified within the text of the ordinance itself: the protection of residential privacy. “The State’s interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.” Carey v. Brown. Our prior decisions have often remarked on the unique nature of the home, “the last citadel of the tired, the weary, and the sick,” and have recognized that “[p]reserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value.” One important aspect of residential privacy is protection of the unwilling listener. Although in many locations, we expect individuals simply to avoid speech they do not want to hear, the home is different. “That we are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech . . . does not mean we must be captive everywhere.” Instead, a special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability to avoid intrusions. Thus, we have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that the government may protect this freedom. . . . It remains to be considered, however, whether the Brookfield ordinance is narrowly tailored to protect only unwilling recipients of the communications. A statute is narrowly tailored if it targets and eliminates no more than the exact source of the “evil” it seeks to remedy. A complete ban can be narrowly tailored, Freedom of Expression

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but only if each activity within the proscription’s scope is an appropriately targeted evil. . . . The type of focused picketing prohibited by the Brookfield ordinance is fundamentally different from more generally directed means of communication that may not be completely banned in residential areas. . . . Here, in contrast, the picketing is narrowly directed at the household, not the public. The type of picketers banned by the Brookfield ordinance generally do not seek to disseminate a message to the general public, but to intrude upon the targeted resident, and to do so in an especially offensive way. Moreover, even if some such picketers have a broader communicative purpose, their activity nonetheless inherently and offensively intrudes on residential privacy. . . . In this case, for example, appellees subjected the doctor and his family to the presence of a relatively large group of protesters on their doorstep in an attempt to force the doctor to cease performing abortions. But the actual size of the group is irrelevant; even a solitary picket can invade residential privacy. . . . The First Amendment permits the government to prohibit offensive speech as intrusive when the “captive” audience cannot avoid the objectionable speech. The target of the focused picketing banned by the Brookfield ordinance is just such a “captive.” The resident is figuratively and perhaps literally trapped within the home, and because of the unique and subtle impact of such picketing is left with no ready means of avoiding the unwanted speech. Thus, the “evil” of targeted residential picketing, “the very presence of an unwelcome visitor at the home,” is “created by the medium of expression itself.” Accordingly, the Brookfield ordinance’s complete ban of that particular medium of expression is narrowly tailored. . . . Because picketing prohibited by the Brookfield ordinance is speech directed primarily at those who are presumptively unwilling to receive it, the State has a substantial and justifiable interest in banning it. The nature and scope of this interest make the ban narrowly tailored. The ordinance also leaves open ample alternative channels of communication and is content-neutral. Thus, largely because of its narrow scope, the facial challenge to the ordinance must fail. The contrary judgment of the Court of Appeals is Reversed. [The concurring opinion of JUSTICE WHITE is not reprinted here.] 82

JUSTICE BRENNAN, joined by JUSTICE MARSHALL, dissenting: The Court today sets out the appropriate legal tests and standards governing the question presented, and proceeds to apply most of them correctly. Regrettably, though, the Court errs in the final step of its analysis, and approves an ordinance banning significantly more speech than is necessary to achieve the government’s substantial and legitimate goal. Accordingly, I must dissent. The ordinance before us absolutely prohibits picketing “before or about” any residence in the town of Brookfield, thereby restricting a manner of speech in a traditional public forum. Consequently, as the Court correctly states, the ordinance is subject to the well-settled time, place, and manner test: the restriction must be content and viewpoint neutral, leave open ample alternative channels of communication, and be narrowly tailored to further a substantial governmental interest. Assuming one construes an ordinance as the Court does, I agree that the regulation reserves ample alternative channels of communication. I also agree with the Court that the town has a substantial interest in protecting its residents’ right to be left alone in their homes. It is, however, critical to specify the precise scope of this interest. The mere fact that speech takes place in a residential neighborhood does not automatically implicate a residential privacy interest. It is the intrusion of speech into the home or the unduly coercive nature of a particular manner of speech around the home that is subject to more exacting regulation. . . . Similarly, the government may prohibit unduly coercive conduct around the home, even though it involves expressive elements. A crowd of protesters need not be permitted virtually to imprison a person in his or her own house merely because they shout slogans or carry signs. But so long as the speech remains outside the home and does not unduly coerce the occupant, the government’s heightened interest in protecting residential privacy is not implicated. The foregoing distinction is crucial here because it directly affects the last prong of the time, place, and manner test: whether the ordinance is narrowly tailored to achieve the governmental interest. . . . Without question there are many aspects of residential picketing that, if unregulated, might easily become intrusive or unduly coercive. Indeed, some of these aspects are illustrated by this very case. As

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

the District Court found, before the ordinance took effect up to 40 sign-carrying, slogan-shouting protesters regularly converged on Dr. Victoria’s home and, in addition to protesting, warned young children not to go near the house because Dr. Victoria was a “baby killer.” Further, the throng repeatedly trespassed onto the Victoria property and at least once blocked the exits to their home. Surely it is within the government’s power to enact regulations as necessary to prevent such intrusive and coercive abuses. Thus, for example, the government could constitutionally regulate the number of residential picketers, the hours during which a residential picket may take place, or the noise level of such a picket. In short, substantial regulation is permitted to neutralize the intrusive or unduly coercive aspects of picketing around the home. But to say picketing may be substantially regulated is not to say that it may be prohibited in its entirety. Once size, time, volume, and the like have been controlled to ensure that the picket is no longer intrusive or coercive, only the speech itself remains, conveyed perhaps by a lone, silent individual, walking back and forth with a sign. Such speech, which no longer implicates the heightened governmental interest in residential privacy, is nevertheless banned by the Brookfield law. Therefore, the ordinance is not narrowly tailored. . . . A valid time, place, or manner law neutrally regulates speech only to the extent necessary to achieve a substantial governmental interest, and no further. Because the Court is unwilling to examine the Brookfield ordinance in light of the precise governmental interest at issue, it condones a law that suppresses substantially more speech than is necessary. I dissent. JUSTICE STEVENS, dissenting: “GET WELL CHARLIE—OUR TEAM NEEDS YOU.” In Brookfield, Wisconsin, it is unlawful for a fifth grader to carry such a sign in front of a residence for the period of time necessary to convey its friendly message to its intended audience. The Court’s analysis of the question whether Brookfield’s ban on picketing is constitutional begins with an acknowledgment that the ordinance “operates at the core of the First Amendment,” and that the streets of Brookfield are a “traditional public forum.” It concludes, however, that the total ban on residential picketing is “narrowly tailored” to protect

“only unwilling recipients of the communications.” The plain language of the ordinance, however, applies to communications to willing and indifferent recipients as well as to the unwilling. . . . Two characteristics of picketing—and of speech more generally—make this a difficult case. First, it is so important to recognize that, “[l]ike so many other kinds of expression, picketing is a mixture of conduct and communication.” If we put the speech element to one side, I should think it perfectly clear that the town could prohibit pedestrians from loitering in front of a residence. On the other hand, it seems equally clear that a sign carrier has a right to march past a residence—and presumably pause long enough to read his or her message—regardless of whether the reader agrees, disagrees, or is simply indifferent to the point of view being expressed. Second, it bears emphasis that: [A] communication may be offensive in two different ways. Independently of the message the speaker intends to convey, the form of his communication may be offensive—perhaps because it is too loud or too ugly in a particular setting. Other speeches, even though elegantly phrased in dulcet tones, are offensive simply because the listener disagrees with the speaker’s message. Consolidated Edison Co. v. Public Service Comm’n of New York.

Picketing is a form of speech that, by virtue of its repetition of message and often hostile repetition of message and often hostile presentation, may be disruptive of an environment irrespective of the substantial message conveyed. The picketing that gave rise to the ordinance enacted in this case was obviously intended to do more than convey a message of opposition to the character of the doctor’s practice; it was intended to cause him and his family substantial psychological distress. As the record reveals, the picketer’s message was repeatedly redelivered by a relatively large group—in essence, increasing the volume and intrusiveness of the same message with each repeated assertion. As is often the function of picketing, during the periods of protest the doctor’s home was held under a virtual siege. I do not believe that picketing for the sole purpose of imposing psychological harm on a family in the shelter of their home is constitutionally protected. I do believe, however, that the picketers have a right to communicate their opposition to abortion to the doctor, but after they have had a fair opportunity to communicate that message, I see little justification for allowing them to remain in front of his Freedom of Expression

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home and repeat it over and over again simply to harm the doctor and his family. Thus, I agree that the ordinance may be constitutionally applied to the kind of picketing that gave rise to its enactment. On the other hand, the ordinance is unquestionably “overbroad” in that it prohibits some communication that is protected by the First Amendment. The question, then, is whether to apply the overbreadth doctrine’s “strong medicine,” or to put that approach aside “and await further developments.”. . . In this case the overbreadth is unquestionably “real.” Whether or not it is “substantial” in relation to the “plainly legitimate sweep” of the ordinance is a more difficult question. My hunch is that the town will probably not enforce its ban against friendly, innocuous, or even brief unfriendly picketing, and that the Court may be right in concluding that its legitimate sweep makes its overbreadth insubstantial. But there are two countervailing considerations that are persuasive to me. The scope of the ordinance gives the town officials far too much discretion in making enforcement decisions; while we sit by and await further developments, potential picketers must act at their peril. Second, it is a simple matter for the town to amend its ordinance and to limit the ban to conduct that unreasonably interferes with the privacy of the home and does not serve a reasonable communicative purpose. Accordingly, I respectfully dissent.

OVERVIEW OF CURRENT DOCTRINE There are layers upon layers of issues related to the constitutional law of speech as it exists today. We have already discussed some issues, and others appear in the remainder of this chapter as well as in the next two. Today, however, a general methodology is used when the Court addresses a free expression issue. We pause to consider it now because it helps in understanding what we have read and what will be examined later. Content-Based, Content-Neutral, Tailoring of Means In Police Department of the City of Chicago v. Mosley (408 U.S. 92, 1972), the Court stated that “Above all else, the First Amendment means that government has no power to restrict expression because of it message, its ideas, its subject matter or its content.” When a governmental law or regulation is challenged as a violation of the First Amendment, 84

the first and most important question to be asked usually involves whether the regulation is content based or content neutral. Depending on the answer to this question, the analysis proceeds down one of two tracks. If the regulation is content based, it triggers “strict scrutiny,” which means that in order to survive, the government must show that there is a compelling interest to keep the regulation. Compelling interest is a very high standard and is rarely met. The government also must demonstrate that it is using narrowly tailored means to accomplish its purpose. Closely related to the idea of content-based vs. content-neutral regulation is viewpoint-based and viewpoint-neutral regulation. Content and viewpoint discrimination are not precisely the same thing. For example, a law banning all discussion of the Iraq war would be content discrimination; banning only speech that opposed the war would be viewpoint discrimination. Both strike at the core values of the First Amendment, and both trigger strict scrutiny. If, however, the regulation is content neutral and viewpoint neutral, analysis proceeds down a separate track. Regulations that are unrelated to the content of speech trigger an intermediate level of scrutiny. At this level of scrutiny, the government must demonstrate that an important or substantial governmental interest is being served and that the regulation is using narrowly tailored means to achieve its purpose. There must also be ample alternative channels for communication to occur. The standards for intermediate scrutiny are not nearly as difficult to meet as the standards required by strict scrutiny, but because of their effect on speech, they are considerably higher than what is required for most legislation under deferential scrutiny. Deferential scrutiny means that the Court will defer to the government as long as it shows that its regulations are rational, an easily met standard. When following the content-neutral track, the analysis can get quite complicated, but at base, it turns on the importance of the government’s interest and the tailoring of its means to fit its objectives. For example, the government has an interest in preventing litter, and it has an interest in promoting public safety. Preventing littering is not an especially important or substantial governmental interest; ensuring public safety is. But even if government has an important or substantial interest in public safety, a ban on all political protests because they might potentially endanger safety would not

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

withstand a constitutional challenge. Such a regulation would be seen as not narrowly tailored to solve the problem. Cases are often more subtle. In Clark v. Community for Creative Non-Violence (468 U.S. 288, 1984), CCNV erected a tent city in Lafayette Park across from the White House with the permission of the National Park Service. The purpose was to show the plight of the homeless. Demonstrators wanted to spend the night in the tents. The Park Service, however, had a rule that prohibited camping in such parks. The Court upheld the regulation as a reasonable time, place, and manner restriction. The opinion saw the regulation as content neutral and said that it “narrowly focuses on the Government’s substantial interest in maintaining the parks [in] an attractive and intact condition.” The Court also said that it did not prevent the demonstrators from showing “the plight of the homeless in other ways.” As previously noted, abortion-related protests have become the most important recent cases. In Madsen v. Women’s Health Center Inc. (512 U.S. 753, 1994), an injunction was issued against protestors who had blocked access to an abortion clinic and had harassed patients and doctors. The injunction prohibited demonstrations inside a 36-foot buffer zone, and it prohibited protestors from displaying images that were observable to patients in the clinic. The Court upheld the buffer zone as a reasonable regulation to permit access to the clinic and to ensure quiet around hospitals and medical clinics, but it rejected the ban on images, saying that the proper response was for the clinic “to pull its curtains.” Three years later, in Schenck v. Pro-Choice Network of Western New York (519 U.S. 357, 1997), the Supreme Court wrestled with another injunction that had been issued by a lower federal court after it had found repeated harassment. The court had created 15-foot buffer zones around entrances, driveways, and other points of access, and it also had created floating buffer zones around individuals using the facility. Writing for the Court, Chief Justice Rehnquist upheld the fixed buffer zones but rejected the floating buffer zones “because they burden more speech than is necessary to serve the relevant government interests.” He said that they prevent protestors from “communicating a message from a normal conversational distance of handing leaflets to people entering or leaving the clinics [on] the public sidewalks.” Finally, in Hill v. Colorado (530 U.S. 703, 2000), the Court upheld a state statute that prohibited

any person within 100 feet of a health-care facility to “knowingly approach” within 8 feet of another person without that person’s consent for the purpose of “passing a leaflet or handbill, to displaying a sign to, or engaging in oral protest, education, or counseling with such other person.” The Court cited Frisby and suggested that while free speech allows people the right to approach someone, the recipient has the right to decline and not be hounded. Hill in an excellent case to examine the issue of content neutrality. The statute on its face is content neutral, yet many argue that it was designed to limit abortion protesters. The neatness implied by having two tracks is illusory. Determining whether a regulation is content based or content neutral is often not easy. Moreover, how to determine the importance of the governmental interest and how to decide when the means are appropriate are complicated tasks that lie at the center of many cases. Overbreadth and Vagueness Two doctrines are frequently a part of speech analysis: overbreadth and vagueness. These doctrines can be used to determine the appropriateness of means (i.e., means that are not narrowly tailored would be overbroad), but the doctrines encompass more than just that. Laws are overbroad if they restrict too much speech, even though much of what they are restricting would be allowable. Laws are unconstitutionally vague, for example, when “men of common intelligence must necessarily guess at [their] meaning and differ as to [their] application” (Lanzetta v. New Jersey, 306 U.S. 451, 1939). Indeed, this “void for vagueness” test, as it is called, applies with special force and with “stricter standards of permissible statutory vagueness” in laws that deal with speech “because the free dissemination of ideas may be the loser” (Smith v. California, 361 U.S. 147, 1959). Such laws “chill” speech, that is, people will hold back on saying something because they are not sure whether it is allowed. Categorization An important aspect of the constitutional law of speech is categorization. Recall Justice Murphy’s opinion in Chaplinsky where he noted that certain categories of speech are considered to be outside the protection of the First Amendment. Notable examples are libel, obscenity, and fighting words. According to the Court, obscenity is not protected Freedom of Expression

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speech, but what constitutes obscenity? Libel is not protected, but when do untruths told about a public figure actually become libelous? For a long time, commercial speech was not considered to be speech for First Amendment purposes. These specific issues and others are discussed in more detail in later chapters. One thing bears mentioning here, however, because it seems contradictory to earlier comments in this section. Categorization is by definition content based. When something is banned as obscene, it is because of its content. The Court does not see this as a contradiction because such speech is considered to be outside the protection of the First Amendment. Justice Scalia, however, has recently raised issues that pose some difficulty for the idea of categorization. (R.A.V. v. St. Paul, infra.) Prior Restraint Prior restraint, that is, stopping speech before it has occurred, is particularly disfavored in American constitutional law. This is partly due to historical reasons, but there are principled arguments as to why prior restraint is a particularly odious form of censorship. The primary discussion of the issue occurs in cases involving the press and will be considered when we discuss such cases, but the concept is relevant to speech more generally.

SYMBOLIC SPEECH, HATE SPEECH, AND CONDUCT THAT COMMUNICATES FEATURED CASES United States v. O’Brien; Texas v. Johnson; R.A.V. v. St. Paul, Minnesota We return to a question with which we began this chapter: When do actions constitute speech for purposes of the First Amendment? Certain activities (e.g., door-to-door solicitation, picketing, protest marches, posting campaign signs, etc.) are so intertwined with speech or petition that they are obvious concerns of the First Amendment. But does the First Amendment offer protection to activities in which the conduct, rather than the speech itself, becomes the focal point of the communication? Think flag burning, cross burning, sit-ins, wearing armbands, and so forth. Such actions often are referred to as symbolic speech, but a better 86

description might be conduct that communicates. All conduct could be seen in some way as conveying a message. Murdering someone communicates one’s feelings about another person in a very dramatic way. But to see all conduct as protected speech is nonsensical. It also trivializes the importance of conduct that is meant specifically to convey messages. Engaging in certain activities may be the most effective best way to convey an idea. Lady Godiva certainly got noticed and got her point across. Flag burning and bra burning in the 1960s and 1970s were dramatic ways to convey political messages. Communicative conduct does receive protection from the First Amendment. Generally speaking, as long as the governmental regulation of such conduct is content and viewpoint neutral, it is governed under many of the same principles as content-neutral speech. The standards for evaluating conduct that impinges on speech are outlined in United States v. O’Brien (391 U.S. 367, 1968). Four persons stood on the steps of the South Boston Courthouse on March 13, 1966, and burned their draft cards as a way of expressing opposition to the Vietnam War. They were tried and convicted under a 1965 congressional law that made it a crime to knowingly destroy or mutilate draft cards. But burning draft cards, they argued, was “symbolic speech,” which is protected by the First Amendment. The Supreme Court disagreed. In United States v. O’Brien (391 U.S. 367, 1968), the Court by a seven-to-one vote said that it could not accept the position that an “apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” Moreover, continued Chief Justice Warren, who spoke for the majority, when “speech” and “non-speech” elements are “combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms.” The Court found that the governmental regulation as imposed by the 1965 law was sufficiently justified. Chief Justice Warren enunciated the following test: “[A] governmental regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on First Amendment freedoms is not greater than is essential to the

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

furtherance of that interest.” Justice Douglas, the lone dissenter, thought that the basic question in the case was “whether conscription is permissible in the absence of a declaration of war.” The test suggests that government can regulate conduct which communicates as long as it is furthering an important interest that is unrelated to the suppression of the message and it does so in a way that is essential to achieving its purpose. The test should sound familiar. It is almost identical to the test enunciated for content-neutral regulations that trigger intermediate scrutiny. As with all tests, the O’Brien test does not automatically decide cases. The O’Brien decision itself, however, has complicated the understanding of the test. Many commentators believe that the outcome in O’Brien does not square with its own test. The reader may come to his or her own conclusions. Subsequent symbolic speech cases, however, seem to have applied the test more rigorously. The constitutionality of punishing protesters for the desecration of the American flag has come to the Court time and again. In Street v. New York (394 U.S. 577, 1969), a case similar to O’Brien, the Court skirted the question of whether a person could be punished for burning or defacing an American flag. After learning that James Meredith had been shot in Mississippi in 1966, a Brooklyn man by the name of Street showed his anger by burning the American flag that he had always displayed on national holidays. When he was approached by a police officer, Street remarked, “We don’t need no damn flag.” He was convicted under a New York law that makes it a crime to “publicly mutilate, deface, defile or defy, trample upon or cast contempt upon either by word or act” the state or national flag. By a five-to-four majority the Court voted to set aside Street’s conviction. Justice John Marshall Harlan, delivering the Court’s opinion, emphasized the overbreadth of the statute under which Street was convicted. Harlan noted that the judge (Street was tried before a judge without a jury) did not make a distinction between the actual act of burning and the contemptuous remarks about the flag. Consequently, he held that the statute “was unconstitutionally applied [to Street] because it permitted him to be punished merely for [his] defiant or contemptuous words about the flag”—words which, Harlan contended, were constitutionally protected. Even assuming that the conviction could have been based solely on the act of burning the flag, Harlan argued that the conviction should

be reversed because a guilty verdict ensued from the indictment. The indictment charged the commission of a crime by use of words and the act of flag burning without elucidation, and it is possible that the trial judge could have considered the two acts as “intertwined, . . . [resting] the conviction on both together.” Harlan concluded that while “disrespect for our flag is to be deplored no less in these vexed times than in calmer periods of our history,” a conviction that may have been based on a form of expression that the Constitution protects cannot be sustained. For, he continued, “the right to differ as to things that touch the heart of the existing order encompass[es] the freedom to express publicly one’s opinions about our flag, including those opinions which are defiant or contemptuous.” The dissenters took sharp exception to the majority’s avoidance of the crucial constitutional issue presented in the case. To them, this case was not one in which constitutionally protected expression had been sacrificed to protect the flag; at issue was whether the deliberate act of burning the American flag is symbolic expression that is protected by the Constitution. In his dissent, Chief Justice Warren noted that the record indicated clearly that all parties focused on the “flag burning as symbolic expression” issue and so did the state appellate court. Warren argued that where a constitutional issue is presented to the Court, as this one had been, the Court has the “responsibility to confront [it] squarely and resolve it.” He warned that facing the flag burning and desecration issue was particularly pressing because the “flag has increasingly become an integral part of public protests.” (Cf. Spence v. Washington, 418 U.S. 405, 1974, where the unorthodox use of the American flag by a college student for symbolic expression is held to be protected expression. See also Wooley v. Maynard, in which the Court held that New Hampshire could not force citizens to display the state motto, “Live Free or Die,” on their license plates. 430 U.S. 705, 1977.) In 1989, a sharply divided five-to-four Court in Texas v. Johnson (491 U.S. 397) held that laws prohibiting peaceful political protesters from burning the American flag were unconstitutional under the First Amendment. Justice Brennan, speaking for a court majority that cut across ideological lines, said, “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Freedom of Expression

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Congress, in an attempt to placate the majority of Americans who were upset about the Johnson decision, passed legislation protecting the American flag in a “content-neutral” manner in the belief that the new statute would survive the Johnson test. Congress did not have long to wait, however, before the Supreme Court reacted by holding that this congressional attempt to protect the American flag did not survive a “content-neutral” standard. (See United States v. Eichman, 486 U.S. 310, 1990.) “Hate speech” often has a nexus with conduct. Cases involving cross burnings have been the context in which the topic has gotten its most thorough treatment. Before turning to the regulation of the conduct, it is important to pause and consider hate speech per se. Recall that there are certain categories of speech that the Court has deemed to lie outside the protection of the First Amendment. Many have argued that hate speech, like obscenity or libel, should be such a category. The Court has never accepted this idea. Still, efforts to punish racist and other bigoted speech are continually being enacted. It is obviously an important governmental interest, but given the modern protections of speech, especially protections that forbid speech regulation based on content, “hate speech” regulations face many difficulties surviving a First Amendment challenge. Universities in particular have struggled with ways to fight bigotry on campus. The issue is not only about stopping overt acts of bigotry. It is also about finding ways to make sure that campuses are welcoming and are not seen as hostile environments to those who frequently suffer discrimination. Many universities have attempted to enact so-called speech codes that prohibit stigmatizing persons on the basis of things such as race, sexual orientation, and even Vietnam-era veteran status. Such codes have not survived challenges in court. It is important not to confuse arguments. It is one thing to believe that government should not be in the business of deciding what speech is truth. It is another to argue that all speech is desirable and should be encouraged. Part of the justification for free speech is to learn that things are false and to not perpetuate falsity, be it flat-earth notions or pernicious ideas. Returning to the speech/conduct dilemma, the cases are difficult and pose questions that are relevant to many areas of speech doctrine. The 1992 case of R.A.V. v. St. Paul, Minnesota (505 U.S. 377) is particularly complicated to understand and subsequent 88

decisions have not cleared up much of the confusion. In R.A.V., the Supreme Court overturned a local ordinance that forbade symbols that aroused “anger, alarm, or resentment in others on the basis of race, color, creed, [or] religion.” The ordinance then enumerated certain symbols, such as a burning cross or a Nazi swastika. In the case, teenagers had burned a crudely-made cross in the yard of a black family. The Minnesota Supreme Court had narrowed the statute by interpretation so that it applied only to incitement or fighting words that were not protected by the First Amendment. Nevertheless, the Supreme Court held that the ordinance was unconstitutional. All nine justices voted to overturn the statute, but Justice Scalia wrote the majority opinion for five justices. He began by stating that it was wrong to say any speech was wholly outside the First Amendment, but he did not completely reject the notion of categorization. The categories traditionally understood to be outside the First Amendment could be prohibited completely if done properly. But he argued that even within purportedly nonprotected categories (obscenity, fighting words, libel, etc.) government generally could not make content-based distinctions. He did claim that content-based distinctions could be made “when the basis for the content discrimination consists entirely of the very reason the entire class of at issue is proscribable, [because] no significant danger of idea or viewpoint discrimination exists.” To many observers, it is hard to understand how one separates the former from the latter. Despite R.A.V., it is clear that, unlike symbolic speech or certain expressions that are indicative of hatred or bias directed toward certain groups, the Court nonetheless is willing to uphold harsher sentences for bias-motivated crimes. The controversy over how best to deal with a seeming proliferation of “hate crimes” came to the fore in Wisconsin v. Mitchell. In that case, a unanimous Court upheld enhanced penalties for crimes that were motivated by hatred based on race, religion, or similar characteristics. Mitchell tested the constitutionality of a Wisconsin hate-crimes statute that increased the maximum sentences for crimes in which the defendant “[i]ntentionally selects the person against whom the crime . . . is committed . . . because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person.” Writing for the Court, Chief Justice Rehnquist rejected Mitchell’s First Amendment claim for two

Freedom of Expression, Assembly, and Association Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

reasons. First, Rehnquist noted that sentencing judges consider various factors other than evidence concerning guilt when passing sentence. While a judge may not consider a defendant’s “abstract beliefs, however obnoxious to most people,” that judge may consider evidence of bias if such evidence is relevant to determining motive, a factor whose use in determining violations of federal and state antidiscrimination laws has been upheld by the courts. Second, in distinguishing Mitchell from R.A.V., Rehnquist argued that the Wisconsin law regulates conduct that is unprotected by the First Amendment and likely to cause significant and individual societal harm, while the St. Paul statute in R.A.V. was specifically directed at speech protected by the First Amendment. In Virginia v. Black (538 U.S. 343, 2003), the Court considered whether a Virginia statute banning cross burning when done with “an intent to intimidate a person or group of persons” violated the First Amendment. In a splintered opinion, sometimes writing for a majority and sometimes announcing the judgment of the Court, Justice O’Connor said, “We conclude that while a State, consistent with the First Amendment, may ban cross burning carried out with the intent to intimidate, the provision in the

Virginia stature treating any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional.” Virginia v. Black combined different lower court cases. In one case, some Klan members were convicted for burning a cross at a rally. In a different situation, two men burned a cross on the lawn of an African American family. Justice O’Connor writes that burning a cross is symbolic expression that cannot be banned no matter how offensive it is, unless the intent is to threaten or intimidate in such a way that constitutes a “true threat.” The case against the Klan members was overturned, and the case against the men who had burned the cross on the family’s lawn was remanded to determine whether it was a true threat. Justice Thomas dissented, in part claiming that cross burning was conduct and not speech, and that cross burning is inherently intimidating. Like a picture, conduct is sometimes worth a thousand words. As such, it draws in the First Amendment, but it certainly complicates the effort to balance free expression with the effort to maintain a decent society. The next chapter points to even more ways in which the balancing act must be performed.

UNITED STATES V. O’BRIEN 391 U.S. 367 (1968) MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. On the morning of March 31, 1966, David Paul O’Brien and three companions burned their Selective Service registration certificates on the steps of the South Boston Courthouse. A sizable crowd, including several agents of the Federal Bureau of Investigation, witnessed the event. Immediately after the burning, members of the crowd began attacking O’Brien and his companions. An FBI agent ushered O’Brien to safety inside the courthouse. For this act, O’Brien was indicted, tried, convicted, and sentenced. . . . He stated in argument to the jury that he burned the certificate publicly to influence others to adopt his antiwar beliefs, as he put

it, “so that other people would reevaluate their positions with Selective Service, with the armed forces, and reevaluate their place in the culture of today, to hopefully consider my position.” The indictment charged that he “willfully and knowingly did mutilate, destroy, and change by burning [his] Registration Certificate in violation of Title 50, App., United States Code . . . amended by Congress in 1965, (adding the words italicized): [A]n offense was committed by any person, “who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate. . . .” O’Brien argued that the 1965 Amendment prohibiting the knowing destruction or mutilation of certificates was unconstitutional because it was Freedom of Expression

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enacted to abridge free speech, and because it served no legitimate legislative purpose. . . . We hold that the 1965 Amendment is constitutional both as enacted and as applied. I When a male reaches the age of eighteen, he is required to register with a local draft board. He is assigned a Selective Service number, and within five days he is issued registration certificate. Subsequently, and based on a questionnaire completed by the registrant, he is assigned a classification denoting his eligibility for induction . . . Both the registration and classification certificates are small white cards, approximately 2 by 3 inches. The registration certificate specifies the name of the registrant, the date of registration, and the number and address of the local board with which he is registered. Also inscribed upon it are the date and place of the registrant’s birth, his residence at registration, his physical description, his signature, and his Selective Service number. The Selective Service number itself indicates his State of registration, his local board, his year of birth, and his chronological position in the local board’s classification record. The classification certificate shows the registrant’s name, Selective Service number, signature, and eligibility classification. It specifies whether he was so classified by his local board, an appeal board, or the President. It contains the address of his local board and the date the certificate was mailed. Both the registration and classification certificates bear notices that the registrant must notify his local board in writing of every change in address, physical condition, and occupational, marital, family, dependency, and military status, and of any other fact which might change his classification. Both also contain a notice that the registrant’s Selective Service number should appear on all communications to his local board. Congress demonstrated its concern that certificates issued by the Selective Service System might be abused well before the 1965 Amendment here challenged. [It banned such things as forgery, and use as false identification.] In addition, as previously mentioned, regulations of the Selective Service System required registrants to keep both their registration and classification certificates in their personal possession at all times. By the 1965 Amendment, Congress added to the provision here at issue, subjecting to criminal liability not only one who “forges, alters, or in any manner changes” but also one who “knowingly destroys, 90

[or] knowingly mutilates” a certificate . . . We note at the outset that the 1965 Amendment plainly does not abridge free speech on its face . . . It prohibits the knowing destruction of certificates issued by the Selective Service System, and there is nothing necessarily expressive about such conduct. The Amendment does not distinguish between public and private destruction, and it does not punish only destruction engaged in for the purpose of expressing views. . . . A law prohibiting destruction of Selective Service certificates no more abridges free speech on its face than a motor vehicle law prohibiting the destruction of drivers’ licenses, or a tax law prohibiting the destruction of books and records. II O’Brien first argues that the 1965 Amendment is unconstitutional as applied to him because his act of burning his registration certificate was protected “symbolic speech” within the First Amendment. His argument is that the freedom of expression includes all modes of “communication of ideas by conduct,” and that his conduct is within this definition because he did it in “demonstration against the war and against the draft.” We cannot accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O’Brien’s conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. We find that the 1965 Amendment meets all of these

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requirements, and consequently that O’Brien can be constitutionally convicted for violating it. The constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping. The power of Congress to classify and conscript manpower for military service is “beyond question.” Pursuant to this power, Congress may establish a system of registration for individuals liable for training and service, and may require such individuals within reason to cooperate in the registration system. The issuance of certificates indicating the registration and eligibility classification of individuals is a legitimate and substantial administrative aid in the functioning of this system. And to insure the continuing availability of issued certificates serves a legitimate and substantial purpose in the system’s administration. O’Brien’s argument to the contrary is necessarily premised upon his unrealistic characterization of Selective Service certificates. He essentially adopts the position that such certificates are so many pieces of paper designed to notify registrants of their registration or classification, to be retained or tossed in the wastebasket according to the convenience or taste of the registrant. Once the registrant has received notification, according to this view, there is no reason for him to retain the certificates. O’Brien notes that most of the information on a registration certificate serves no notification purpose at all; the registrant hardly needs to be his address and physical characteristics. We agree that the registration certificate contains much information of which the registrant needs no notification. This circumstance, however, does not lead to the conclusion that the certificate serves no purpose, but that, like the classification certificate, it serves purposes in addition to initial notification. Many of these purposes would be defeated by the certificates’ destruction or mutilation. Among these are: 1. The registration certificate serves as proof that the individual described thereon has registered for the draft. The classification certificate shows the eligibility classification of a named but undescribed individual. Voluntarily displaying the two certificates is an easy and painless way for a young man to dispel a question as to whether he might be delinquent in his Selective Service obligations. Correspondingly, the availability of the certificates for such display relieves the Selective Service System of the administrative burden it would otherwise have in verifying the registration and classification of all suspected delinquents. Further, since both certificates are in the nature of “receipts”

attesting that the registrant has done what the law requires, it is in the interest of the just and efficient administration of the system that they be continually available, in the event, for example, of a mix-up in the registrant’s file. Additionally, in a time of national crisis, reasonable availability to each registrant of the two small cards assures a rapid and uncomplicated means for determining his fitness for immediate induction, no matter how distant in our mobile society he may be from his local board. 2. The information supplied on the certificates facilitates communication between registrants and local boards, simplifying the system and benefiting all concerned. To begin with, each certificate bears the address of the registrant’s local board, an item unlikely to be committed to memory. Further, each card bears the registrant’s Selective Service number, and a registrant who has his number readily available so that he can communicate it to his local board when he supplies or requests information can make simpler the board’s task in locating his file. Finally, a registrant’s inquiry, particularly through a local board other than his own, concerning his eligibility status is frequently answerable simply on the basis of his classification certificate; whereas, if the certificate were not reasonably available and the registrant were uncertain of his classification, the task of answering his questions would be considerably complicated. 3. Both certificates carry continual reminders that the registrant must notify his local board of any change of address, and other specified changes in his status. The smooth functioning of the system requires that local boards be continually aware of the status and whereabouts of registrants, and the destruction of certificates deprives the system of a potentially useful notice device. 4. The regulatory scheme involving Selective Service certificates includes clearly valid prohibitions against the alteration, forgery, or similar deceptive misuse of certificates. The destruction or mutilation of certificates obviously increases the difficulty of detecting and tracing abuses such as these. Further, a mutilated certificate might itself be used for deceptive purposes. We think it also apparent that the Nation has a vital interest in having a system for raising armies that functions with maximum efficiency and is capable of easily and quickly responding to continually changing circumstances. For these reasons, the Government has a substantial interest in assuring the continuing availability of issued Selective Service certificates. Freedom of Expression

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It is equally clear that the 1965 Amendment specifically protects this substantial governmental interest. We perceive no alternative means that would more precisely and narrowly assure the continuing availability of issued Selective Service certificates than a law which prohibits their willful mutilation or destruction . . . III O’Brien finally argues that the 1965 Amendment is unconstitutional as enacted because what he calls the

“purpose” of Congress was “to suppress freedom of speech.” We reject this argument because under settled principles the purpose of Congress, as O’Brien uses that term, is not a basis for declaring this legislation unconstitutional. It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. . . . Accordingly, we vacate the judgment of the Court of Appeals, and reinstate the judgment and sentence of the District Court.

TEXAS V. JOHNSON 491 U.S. 397 (1989) JUSTICE BRENNAN delivered the opinion of the Court. After publicly burning an American flag as a means of political protest, Gregory Lee Johnson was convicted of desecrating a flag in violation of Texas law. This case presents the question whether his conviction is consistent with the First Amendment. We hold that it is not. I While the Republican National Convention was taking place in Dallas in 1984, respondent Johnson participated in a political demonstration dubbed the “Republican War Chest Tour.” . . . [T]he purpose of this event was to protest the policies of the Reagan administration and of certain Dallas-based corporations. The demonstrators marched through the Dallas streets, chanting political slogans and stopping at several corporate locations to stage “die-ins” intended to dramatize the consequences of nuclear war. On several occasions they spray painted the walls of buildings and overturned potted plants, but Johnson himself took no part in such activities. He did, however, accept an American flag handed to him by a fellow protester who had taken it from a flagpole outside one of the targeted buildings. 92

The demonstration ended in front of Dallas City Hall, where Johnson unfurled the American flag, doused it with kerosene, and set it on fire. While the flag burned, the protesters chanted, “America, the red, white and blue, we spit on you.” After the demonstrators dispersed, a witness to the flag-burning collected the flag’s remains and buried them in his backyard. No one was physically injured or threatened with injury, though several witnesses testified that they had been seriously offended by the flag burning. . . . . . . Johnson alone was charged with a crime. . . . After a trial, he was convicted, sentenced to one year in prison, and fined $2,000. The Court of Appeals for the Fifth District of Texas at Dallas affirmed, . . . but the Texas Court of Criminal Appeals reversed, holding that the State could not, consistent with the First Amendment, punish Johnson for burning the flag in these circumstances . . . [for his] conduct was symbolic speech protected by the First Amendment. . . . Because it reversed Johnson’s conviction on the ground that [the statute] was unconstitutional as applied to him, the state court did not address Johnson’s argument that the statute was, on its face, unconstitutionally vague and overbroad. We granted certiorari . . . and now affirm.

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II Johnson was convicted of flag desecration for burning the flag rather than uttering insulting words. This fact somewhat complicates our consideration of his conviction under the First Amendment. We must first determine whether Johnson’s burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment in challenging his conviction. . . . If his conduct was expressive, we next decide whether the State’s regulation is related to the suppression of free expression. . . . If the State’s regulation is not related to expression, then the less stringent standard we announced in United States v. O’Brien for regulations of noncommunicative conduct controls. . . . If it is, then we are outside of O’Brien’s test, and we must ask whether this interest justifies Johnson’s conviction under a more demanding standard. . . . A third possibility is that the State’s asserted interest is simply not implicated on these facts, and in that event the interest drops out of the picture. . . . The First Amendment literally forbids the abridgement only of “speech,” but we have long recognized that its protection does not end at the spoken or written word. While we have rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea,” . . . we have acknowledged that conduct may be “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.”. . . In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether “[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.”. . . Hence, we have recognized the expressive nature of students’ wearing of black armbands to protest American military involvement in Vietnam; . . . of a sit-in by blacks in a “whites only” area to protest segregation; . . . of the wearing of American military uniforms in a dramatic presentation criticizing American involvement in Vietnam; . . . and of picketing about a wide variety of causes. . . . Especially pertinent to this case are our decisions recognizing the communicative nature of conduct relating to flags. . . . That we have had little difficulty

identifying an expressive element in conduct relating to flags should not be surprising. The very purpose of a national flag is to serve as a symbol of our country; it is, one might say, “the one visible manifestation of 200 years of nationhood.”. . . Pregnant with expressive content, the flag as readily signifies this Nation as does the combination of letters found in “America.” We have not automatically concluded, however, that any action taken with respect to our flag is expressive. Instead, in characterizing such action for First Amendment purposes, we have considered the context in which it occurred. . . . The State of Texas conceded for purposes of its oral argument in this case that Johnson’s conduct was expressive conduct, . . . and this concession seems to us . . . prudent. . . . Johnson burned an American flag as part—indeed, as the culmination— of a political demonstration that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for President. The expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent. At his trial, Johnson explained his reasons for burning the flag as follows: “The American Flag was burned as Ronald Reagan was being renominated as President. And a more powerful statement of symbolic speech, whether you agree with it or not, couldn’t have been made at that time. It’s quite a just position [juxtaposition]. We had new patriotism and no patriotism.” In these circumstances, Johnson’s burning of the flag was conduct “sufficiently imbued with elements of communication,” . . . to implicate the First Amendment. III The Government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. . . . It may not, however, proscribe particular conduct because it has expressive elements. “[W]hat might be termed the more generalized guarantee of freedom of expression makes the communicative nature of conduct an inadequate basis for singling out that conduct for proscription. A law directed at the communicative nature of conduct must, like a law directed at speech itself, be justified by the substantial showing of need that the First Amendment requires.”. . . It is, in short, not simply the verbal or nonverbal nature of the expression, but the governmental interest Freedom of Expression

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at stake, that helps to determine whether a restriction on that expression is valid. Thus, although we have recognized that where “‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms, . . . we have limited the applicability of O’Brien’s relatively lenient standard to those cases in which “the governmental interest is unrelated to the suppression of free expression.” In stating, moreover, that O’Brien’s test “in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions,” . . . we have highlighted the requirement that the governmental interest in question be unconnected to expression in order to come under O’Brien’s less demanding rule. In order to decide whether O’Brien’s test applies here, . . . we must decide whether Texas has asserted an interest in support of Johnson’s conviction that is unrelated to the suppression of expression. If we find that an interest asserted by the State is simply not implicated on the facts before us, we need not ask whether O’Brien’s test applies. . . . The State offers two separate interests to justify this conviction: preventing breaches of the peace, and preserving the flag as a symbol of nationhood and national unity. We hold that the first interest is not implicated on this record and that the second is related to the suppression of expression. A Texas claims that its interest in preventing breaches of the peace justifies Johnson’s conviction for flag desecration. However, no disturbance of the peace actually occurred or threatened to occur because of Johnson’s burning of the flag. . . . The State’s emphasis on the protesters’ disorderly actions prior to arriving at City Hall is not only somewhat surprising given that no charges were brought on the basis of this conduct, but it also fails to show that a disturbance of the peace was a likely reaction to Johnson’s conduct. . . . The State’s position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis. Our precedents do not countenance such a presumption. . . . Nor does Johnson’s expressive conduct fall within that small class of “fighting words” that are “likely to 94

provoke the average person to retaliation, and thereby cause a breach of the peace.”. . . No reasonable onlooker would have regarded Johnson’s generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs. . . . We thus conclude that the State’s interest in maintaining order is not implicated on these facts. . . . B The State also asserts an interest in preserving the flag as a symbol of nationhood and national unity. . . . We are . . . persuaded that this interest is related to expression in the case of Johnson’s burning of the flag. The State, apparently, is concerned that such conduct will lead people to believe either that the flag does not stand for nationhood and national unity, but instead reflects other, less positive concepts, or that the concepts reflected in the flag do not in fact exist, that is, we do not enjoy unity as a Nation. These concerns blossom only when a person’s treatment of the flag communicates some message, and thus are related “to the suppression of free expression” within the meaning of O’Brien. We are thus outside of O’Brien’s test altogether. IV It remains to consider whether the State’s interest in preserving the flag as a symbol of nationhood and national unity justifies Johnson’s conviction. . . . According to the principles announced in Boos [v. Barry, 485 U.S. 312 (1988)], Johnson’s political expression was restricted because of the content of the message he conveyed. We must therefore subject the State’s asserted interest in preserving the special symbolic character of the flag to “the most exacting scrutiny.”. . . If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. . . . . . . [N]othing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it. To bring its argument outside our precedents, Texas attempts to convince us that even if its interest in preserving the flag’s symbolic role does not allow it to prohibit words or some expressive conduct critical of the flag, it does permit it to forbid the outright destruction of the flag. The State’s argument cannot depend here on the distinction between written or spoken

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words and nonverbal conduct. That distinction . . . is of no moment where the nonverbal conduct is expressive, as it is here, and where the regulation of that conduct is related to expression, as it is here. . . . Texas’ focus on the precise nature of Johnson’s expression . . . misses the point of our prior decisions: their enduring lesson, that the Government may not prohibit expression simply because it disagrees with its message, is not dependent on the particular mode in which one chooses to express an idea. If we were to hold that a State may forbid flagburning wherever it is likely to endanger the flag’s symbolic role, but allow it wherever burning a flag promotes that role—as where, for example, a person ceremoniously burns a dirty flag—we would be saying that when it comes to impairing the flag’s physical integrity, the flag itself may be used as a symbol—as a substitute for the written or spoken word or a “short cut from mind to mind”—only in one direction. We would be permitting a State to “prescribe what shall be orthodox” by saying that one may burn the flag to convey one’s attitude toward it and its referents only if one does not endanger the flag’s representation of nationhood and national unity. We never before have held that the Government may ensure that a symbol be used to express only one view of that symbol or its referents. . . . To conclude that the Government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries. Could the Government, on this theory, prohibit the burning of state flags? Of copies of the Presidential seal? Of the Constitution? In evaluating these choices under the First Amendment, how would we decide which symbols were sufficiently special to warrant this unique status? To do so, we would be forced to consult our own political preferences, and impose them on the citizenry, in the very way that the First Amendment forbids us to do. . . . There is, moreover, no indication—either in the text of the Constitution or in our cases interpreting it—that a separate juridical category exists for the American flag alone. Indeed, we would not be surprised to learn that the persons who framed our Constitution and wrote the Amendment that we now construe were not known for their reverence for the Union Jack. The First Amendment does not guarantee that other concepts virtually sacred to our Nation as a whole—such as the principle that discrimination on the basis of race is odious and destructive—will

go unquestioned in the marketplace of ideas. . . . We decline, therefore, to create for the flag an exception to the joust of principles protected by the First Amendment. . . . We are fortified in today’s conclusion by our conviction that forbidding criminal punishment for conduct such as Johnson’s will not endanger the special role played by our flag or the feelings it inspires. To paraphrase Justice Holmes, we submit that nobody can suppose that this one gesture of an unknown man will change our Nation’s attitude towards its flag. . . . We are tempted to say, in fact, that the flag’s deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength. . . . It is the Nation’s resilience, not its rigidity that Texas sees reflected in the flag—and it is that resilience that we reassert today. The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong: To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. . . . Whitney v. California (1927).

And, precisely because it is our flag that is involved, one’s response to the flag-burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one’s own, no better way to counter a flag-burner’s message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by—as one witness here did—according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents. . . . . . . The judgment of the Texas Court of Criminal Appeals is therefore Affirmed. Freedom of Expression

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JUSTICE KENNEDY, concurring: . . . I join Justice Brennan’s opinion without reservation, but with a keen sense that this case, like others before us from time to time, exacts its personal toll. This prompts me to add to our pages these few remarks. The case before us illustrates better than most that the judicial power is often difficult in its exercise. We cannot here ask another branch to share responsibility, as when the argument is made that a statute is flawed or incomplete. For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours. The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases. Our colleagues in dissent advance powerful arguments why respondent may be convicted for his expression, reminding us that among those who will be dismayed by our holding will be some who have had the singular honor of carrying the flag in battle. . . . With all respect to those views, I do not believe the Constitution gives us the right to rule as the dissenting members of the Court urge, however painful this judgment is to announce. Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt. For all the record shows, this respondent was not a philosopher and perhaps did not even possess the ability to comprehend how repellent his statements must be to the Republic itself. But whether or not he could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution. So I agree with the Court that he must go free.

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CHIEF JUSTICE REHNQUIST, joined by JUSTICES WHITE and O’CONNOR, dissenting: In holding this Texas statute unconstitutional, the Court ignores Justice Holmes’ familiar aphorism that “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921). For more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning in the way respondent Johnson did here. . . . [Here follows a lengthy review of the role of the flag in our national history.]

The American flag . . . throughout more than 200 years of history, has come to be the visible symbol of our Nation. It does not represent the views of any particular political party, and it does not represent any particular political party, and it does not represent any particular political philosophy. The flag is not simply another “idea” or “point of view” competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag. . . . Here it may . . . well be said that the public burning of the American flag by Johnson was no essential part of any exposition of ideas, and at the same time it had a tendency to incite a breach of the peace. Johnson was free to make any verbal denunciation of the flag that he wished; indeed, he was free to burn the flag in private. He could publicly burn other symbols of the Government or effigies of political leaders. He did lead a march through the streets of Dallas, and conducted a rally in front of the Dallas City Hall. He engaged in a “die-in” to protest nuclear weapons. He shouted out various slogans during the march, including: “Reagan, Mondale which will it be? Either one means World War III”; “Ronald Reagan, killer of the hour, Perfect example of U.S. power”; and “Red, white and blue, we spit on you, you stand for plunder, you will go under.”. . . For none of these acts was he arrested or prosecuted; it was only when he

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proceeded to burn publicly an American flag stolen from its rightful owner that he violated the Texas statute. . . . . . . Johnson’s public burning of the flag in this case . . . obviously did convey Johnson’s bitter dislike of his country. But his act . . . conveyed nothing that could not have been conveyed and was not conveyed just as forcefully in a dozen different ways. As with “fighting words,” so with flag burning, for purposes of the First Amendment: It is “no essential part of any exposition of ideas, and [is] of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed” by the public interest in avoiding a probable breach of the peace. The highest courts of several States have upheld state statutes prohibiting the public burning of the flag on the grounds that it is so inherently inflammatory that it may cause a breach of public order. . . . The result of the Texas statute is obviously to deny one in Johnson’s frame of mind of many means of “symbolic speech.” Far from being a case of “one picture being worth a thousand words,” flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others. . . . The Texas statute deprived Johnson of only one rather inarticulate symbolic form of protest—a form of protest that was profoundly offensive to many—and left him with a full panoply of other symbols and every conceivable form of verbal expression to express his deep disapproval of national policy. Thus, in no way can it be said that Texas is punishing him because his hearers—or any other group of people—were profoundly opposed to the message that he sought to convey. Such opposition is no proper basis for restricting speech or expression under the First Amendment. It was Johnson’s use of this particular symbol, and not the idea that he sought to convey by it or by his many other expressions, for which he was punished. . . . But the Court today will have none of this. The uniquely deep awe and respect for our flag felt by virtually all of us are bundled off under the rubric of “designated symbols” . . . that the First Amendment prohibits the government from “establishing.” But the government has not “established” this feeling; 200 years of history have done that. The government is simply recognizing as fact the profound regard for

the American flag created by that history when it enacts statutes prohibiting the disrespectful public burning of the flag. The Court concludes its opinion with a regrettably patronizing civics lecture, presumably addressed to the Members of both Houses of Congress, the members of the 50 state legislatures that enacted prohibitions against flag burning, and the troops fighting under that flag in Vietnam who objected to its being burned: “The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.” The Court’s role as the final expositor of the Constitution is well established, but its role as a platonic guardian admonishing those responsible to public opinion as if they were truant school children has no similar place in our system of government. The cry of “no taxation without representation” animated those who revolted against the English Crown to found our Nation—the idea that those who submitted to government should have some say as to what kind of laws would be passed. Surely one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people—whether it be murder, embezzlement, pollution, or flag burning. Our Constitution wisely places limits on powers of legislative majorities to act, but the declaration of such limits by this Court “is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case.”. . . Uncritical extension of constitutional protection to the burning of the flag risks the frustration of the very purpose for which organized governments are instituted. The Court decides that the American flag is just another symbol, about which not only must opinions pro and con be tolerated, but for which the most minimal public respect may not be enjoined. The government may conscript men into the Armed Forces where they must fight and perhaps die for the flag, but the government may not prohibit the public burning of the banner under which they fight. I would uphold the Texas statute as applied in this case. [The dissenting opinion of JUSTICE STEVENS is not reprinted here.]

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R.A.V. V. ST. PAUL, MINNESOTA 505 U.S. 377 (1992) JUSTICE SCALIA delivered the opinion of the Court.

I

In the predawn hours of June 21, 1990, petitioner and several other teenagers allegedly assembled a crudely-made cross by taping together broken chair legs. They then allegedly burned the cross inside the fenced yard of a black family that lived across the street from the house where petitioner was staying. Although this conduct could have been punished under any of a number of laws, one of the two provisions under which respondent city of St. Paul chose to charge petitioner (then a juvenile) was the St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn. Legis. Case 292.02 (1990), which provides:

In construing the St. Paul ordinance, we are bound by the construction given to it by the Minnesota court. Accordingly, we accept the Minnesota Supreme Court’s authoritative statement that the ordinance reaches only those expressions that constitute “fighting words” within the meaning of Chaplinsky v. New Hampshire (1942). . . . Assuming, arguendo, that all of the expression reached by the ordinance is proscribable under the “fighting words” doctrine, we nonetheless conclude that the ordinance is facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses. The First Amendment generally prevents government from proscribing speech, see, e.g., Cantwell v. Connecticut (1940), or even expressive conduct, see, e.g., Texas v. Johnson (1989), because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid. From 1791 to the present, however, our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas, which are “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky [v. New Hampshire, 1942.] We have recognized that “the freedom of speech” referred to by the First Amendment does not include a freedom to disregard these traditional limitations. Our decisions since the 1960s have narrowed the scope of the traditional categorical exceptions for defamation, and for obscenity, but a limited categorical approach has remained an important part of our First Amendment jurisprudence. We have sometimes said that these categories of expression are “not within the area of constitutionally protected speech,” or that the “protection of the First Amendment does not extend” to them. Such statements must be taken in context, however, and are no more literally true than is the occasionally repeated shorthand characterizing obscenity “as not being

Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

Petitioner moved to dismiss this count on the ground that the St. Paul ordinance was substantially overbroad and impermissibly content-based and therefore facially invalid under the First Amendment. The trial court granted this motion, but the Minnesota Supreme Court reversed. That court rejected petitioner’s overbreadth claim because, as construed in prior Minnesota cases, the modifying phrase “arouses anger, alarm or resentment in others” limits the reach of the ordinance to “conduct that itself inflicts injury or tends to incite immediate violence . . . ,” and therefore the ordinance reached only expression “that the first amendment does not protect.” The court also concluded that the ordinance was not impermissibly content-based because, in its view, “the ordinance is a narrowly tailored means toward accomplishing the compelling governmental interest in protecting the community against biasmotivated threats to public safety and order.” We granted certiorari.

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speech at all.” What they mean is that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)—not that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively proscribable content. Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government. We recently acknowledged this distinction in Ferber, where, in upholding New York’s child pornography law, we expressly recognized that there was no “question here of censoring a particular literary theme. . . .” Our cases surely do not establish the proposition that the First Amendment imposes no obstacle whatsoever to regulation of particular instances of such proscribable expression, so that the government “may regulate [them] freely.” That would mean that the city council could enact an ordinance prohibiting only those legally obscene works that contain criticism of the city government or, indeed, that do not include endorsement of the city government. Such a simplistic, all-or-nothing-at-all approach to the First Amendment protection is at odds with common sense and with our jurisprudence as well. It is not true that “fighting words” have at most a “de minimis” expressive content, or that their content is in all respects “worthless and undeserving of constitutional protection.” Sometimes they are quite expressive indeed. We have not said that they constitute “no part of the expression of ideas,” but only that they constitute “no essential part of any exposition of ideas.” The proposition that a particular instance of speech can be proscribable on the basis of one feature (e.g., obscenity) but not on the basis of another (e.g., opposition to the city government) is commonplace, and has found application in many contexts. We have long held, for example, that nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas it expresses— so that burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not. Similarly, we have upheld reasonable “time, place, or manner” restrictions, but only if they are “justified without reference to the content of the regulated speech.” Ward v. Rock

against Racism (1989). And just as the power to proscribe particular speech on the basis of a noncontent element (e.g., noise) does not entail the power to proscribe the same speech on the basis of a content element; so also, the power to proscribe it on the basis of one content element (e.g., obscenity) does not entail the power to proscribe it on the basis of other content elements. In other words, the exclusion of “fighting words” from the scope of the First Amendment simply means that, for purposes of that Amendment, the unprotected features of the words are, despite their verbal character, essentially a “nonspeech” element of communication. Fighting words are thus analogous to a noisy sound truck: Each is, as Justice Frankfurter recognized, a “mode of speech.” Niemotko v. Maryland (1951). Both convey an idea; but neither has, in and of itself, a claim upon the First Amendment. As with the sound truck, however, so also with fighting words: The government may not regulate use based on hostility—or favoritism— towards the underlying message expressed. Compare Frisby v. Schultz (1988) (upholding, against facial challenge, a content-neutral ban on targeted residential picketing) with Carey v. Brown 447 U.S. 455 (1980) (invalidating a ban on residential picketing that exempted labor picketing). The concurrences describe us as setting forth a new First Amendment principle that prohibition of constitutionally proscribable speech cannot be “underinclusiv[e],”—a First Amendment “absolutism” whereby “within a particular ‘proscribable’ category of expression, . . . a government must either proscribe all speech or no speech at all.” That easy target is of the concurrences’ own invention. In our view, the First Amendment imposes not an “underinclusiveness” limitation but a “content discrimination” limitation upon a State’s prohibition of proscribable speech. There is no problem whatever, for example, with a State’s prohibiting obscenity (and other forms of proscribable expression) only in certain media or markets, for although that prohibition would be “underinclusive,” it would not discriminate on the basis of content. See, e.g., Sable Communications, 492 U.S., at 124–126 (upholding [legislation]) which prohibits obscene telephone communications). Even the prohibition against content discrimination that we assert the First Amendment requires is not absolute. It applies differently in the context of proscribable speech than in the area of fully protected speech.

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The rationale of the general prohibition, after all, is that the content discrimination “rais[es] the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.” But content discrimination among various instances of a class of proscribable speech often does not pose this threat. When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Such a reason, having been adjudged neutral enough to support exclusion of the entire class of speech from First Amendment protection, is also neutral enough to form the basis of distinction within the class. To illustrate: A State might choose to prohibit only that obscenity which is the most patently offensive in its prurience— i.e., that which involves the most lascivious displays of sexual activity. But it may not prohibit, for example, only that obscenity which includes offensive political messages. And the Federal Government can criminalize only those threats of violence that are directed against the President,—since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President. See Watts v. United States (1969) (upholding the facial validity of [18 U.S.C. Sec.] 871 because of the “overwhelmin[g] interest in protecting the safety of [the] Chief Executive and in allowing him to perform his duties without interference from threats of physical violence”). But the Federal Government may not criminalize only those threats against the President that mention his policy on aid to inner cities. And to take a final example, a State may choose to regulate price advertising in one industry but not in others, because the risk of fraud (one of the characteristics of commercial speech that justifies depriving it of full First Amendment protection, see Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc. [1976]) is in its view greater there. Another valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular “secondary effects” of the speech, so that the regulation is “justified without reference to the content of the . . . speech[. . . .]” A State could, for example, permit all obscene live performances except those involving minors. Moreover, since words can in some circumstances violate laws 100

directed not against speech but against conduct (a law against treason, for example, is violated by telling the enemy the nation’s defense secrets), a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech. Thus, for example, sexually derogatory “fighting words,” among other words, may produce a violation of Title VII’s general prohibition against sexual discrimination in employment practices. Where the government does not target conduct on the basis of its expressive content, acts are not shielded from regulation merely because they express a discriminatory idea or philosophy. . . . II Applying these principles to the St. Paul ordinance, we conclude that, even as narrowly construed by the Minnesota Supreme Court, the ordinance is facially unconstitutional. Although the phrase in the ordinance, “arouses anger, alarm or resentment in others,” has been limited by the Minnesota Supreme Court’s construction to reach only those symbols or displays that amount to “fighting words,” the remaining unmodified terms make clear that the ordinance applies only to “fighting words” that insult, or provoke violence, “on the basis of race, color, creed, religion or gender.” Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. Those who wish to use “fighting words” in connection with other ideas—to express hostility, for example, on the basis of political affiliation, union membership, or homosexuality—are not covered. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects. In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination. Displays containing some words—odious racial epithets, for example— would be prohibited to proponents of all views. But “fighting words” that do not themselves invoke race, color, creed, religion, or gender—aspersions upon a person’s mother, for example—would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc. tolerance and equality, but could not be used by that speaker’s opponents. One could hold up a sign saying, for example, that all “anti-Catholic bigots” are misbegotten; but not that all “papists” are, for that would insult and provoke

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violence “on the basis of religion.” St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules. What we have here, it must be emphasized, is not a prohibition of fighting words that are directed at certain persons or groups (which would be facially valid if it met the requirements of the Equal Protection Clause); but rather, a prohibition of fighting words that contain (as the Minnesota Supreme Court repeatedly emphasized) messages of “biasmotivated” hatred and in particular, as applied to this case, messages “based on virulent notions of racial supremacy.” One must wholeheartedly agree with the Minnesota Supreme Court that “[i]t is the responsibility, even the obligation of diverse communities to confront such notions in whatever form they appear,” ibid., but the manner of that confrontation cannot consist of selective limitations upon speech. St. Paul’s brief asserts that a general “fighting words” law would not meet the city’s needs because only a content-specific measure can communicate to minority groups that the “group hatred” aspect of such speech “is not condoned by the majority.” The point of the First Amendment is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content. Despite the fact that the Minnesota Supreme Court and St. Paul acknowledge that the ordinance is directed at expression of group hatred, Justice Stevens suggests that this “fundamentally misreads” the ordinance. It is directed, he claims, not to speech of a particular content, but to particular “injur[ies]” that are “qualitatively different” from other injuries. This is word-play. What makes the anger, fear, sense of dishonor, etc. produced by violation of this ordinance distinct from the anger, fear, sense of dishonor, etc. produced by other fighting words is nothing other than the fact that it is caused by a distinctive idea, conveyed by a distinctive message. The First Amendment cannot be evaded that easily. It is obvious that the symbols which will arouse “anger, alarm or resentment in others on the basis of race, color, creed, religion or gender” are those symbols that communicate a message of hostility based on one of these characteristics. St. Paul concedes in its brief that the ordinance applies only to “racial, religious, or gender-specific symbols” such as “a burning cross, Nazi swastika or other instrumentality of like import.” Indeed, St. Paul argued in the Juvenile Court that “[t]he burning of a cross does

express a message and it is, in fact, the content of that message which the St. Paul Ordinance attempts to legislate.” The content-based discrimination reflected in the St. Paul ordinance comes within neither any of the specific exceptions to the First Amendment prohibition we discussed earlier, nor within a more general exception for content discrimination based on the very reasons why the particular class of speech at issue (here, fighting words) is proscribable. As explained earlier, the reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey. St. Paul has not singled out an especially offensive mode of expression—it has not, for example, selected for prohibition only those fighting words that communicate ideas in a threatening (as opposed to a merely obnoxious) manner. Rather, it has proscribed fighting words of whatever manner that communicate messages of racial, gender, or religious intolerance. Selectivity of this sort creates the possibility that the city is seeking to handicap the expression of particular ideas. That possibility would alone be enough to render the ordinance presumptively invalid, but St. Paul’s comments and concessions in this case elevate the possibility to a certainty. . . . Finally, St. Paul and its amici defend the conclusion of the Minnesota Supreme Court that, even if the ordinance regulates expression based on hostility towards its protected ideological content, this discrimination is nonetheless justified because it is narrowly tailored to serve compelling state interests. Specifically, they assert that the ordinance helps to ensure the basic human rights of members to live in peace where they wish. We do not doubt that these interests are compelling, and that the ordinance can be said to promote them. But the “danger of censorship” presented by a facially content-based statute requires that that weapon be employed only where it is “necessary to serve the asserted [compelling] interest.” The dispositive question in this case, therefore, is whether content discrimination is reasonably necessary to achieve St. Paul’s compelling interests; it plainly is not. An ordinance not limited to the favored topics, for example, would have precisely the same beneficial effect. In fact the only interest distinctively served Freedom of Expression

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by the content limitation is that of displaying the city council’s special hostility towards the particular biases thus singled out. That is precisely what the First Amendment forbids. The politicians of St. Paul are entitled to express that hostility—but not through the means of imposing unique limitations upon speakers who (however benightedly) disagree. ... Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire. The judgment of the Minnesota Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered. JUSTICE WHITE, joined by JUSTICES BLACKMUN and O’CONNOR and joined by JUSTICE STEVENS except as to Part I(A), concurring in the judgment: I agree with the majority that the judgment of the Minnesota Supreme Court should be reversed. However, our agreement ends there. This case could easily be decided within the contours of established First Amendment law by holding, as petitioner argues, that the St. Paul ordinance is fatally overbroad because it criminalizes not only unprotected expression but expression protected by the First Amendment. . . . But in the present case, the majority casts aside long established First Amendment doctrine without the benefit of briefing and adopts an untried theory. This is hardly a judicious way of proceeding, and the Court’s reasoning in reaching its result is transparently wrong. I A This Court’s decisions have plainly stated that expression falling within certain limited categories so lacks the values the First Amendment was designed to protect that the Constitution affords no protection to that expression. Chaplinsky v. New Hampshire (1942), made the point in the clearest possible terms: There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any

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Constitutional problem. . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Thus, as the majority concedes, this Court has long held certain discrete categories of expression to be proscribable on the basis of their content. For instance, the Court has held that the individual who falsely shouts “fire” in a crowded theatre may not claim the protection of the First Amendment. Schenck v. United States (1919). The Court has concluded that neither child pornography, nor obscenity, is protected by the First Amendment. New York v. Ferber (1973); Roth v. United States (1957). All of these categories are content based. But the Court has held that First Amendment does not apply to them because their expressive content is worthless or of de minimis value to society. We have not departed from this principle, emphasizing repeatedly that, “within the confines of [these] given classification[s], the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake that no process of case-by-case adjudication is required.” This categorical approach has provided a principled and narrowly focused means for distinguishing between expression that the government may regulate freely and that which it may regulate on the basis of content only upon a showing of compelling need. Today, however, the Court announces that earlier Courts did not mean their repeated statements that certain categories of expression are “not within the area of constitution protected speech.” The present Court submits that such clear statements “must be taken in context” and are not “literally true.” To the contrary, those statements meant precisely what they said: The categorical approach is a firmly entrenched part of our First Amendment jurisprudence. Indeed, the Court in Roth reviewed the guarantees of freedom of expression in effect at the time of the ratification of the Constitution and concluded, “[i]n light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance.” . . . Should the government want to criminalize certain fighting words, the Court now requires it to criminalize all fighting words. To borrow a phrase, “Such a simplistic, allor-nothing-at-all approach to the First Amendment

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protection is at odds with common sense and with our jurisprudence as well.” It is inconsistent to hold that the government may proscribe an entire category of speech because the content of that speech is evil, Ferber; but that the government may not treat a subset of that category differently without violating the First Amendment; the content of the subset is by definition worthless and undeserving protection. The majority’s observation that fighting words are “quite expressive indeed,” is no answer. Fighting words are not a means of exchanging views, rallying supporters, or registering a protest; they are directed against individuals to provoke violence or to inflict injury. Therefore, a ban on all fighting words or on a subset of the fighting words category would restrict only the social evil of hate speech, without creating the danger of driving viewpoints from the marketplace. Therefore, the Court’s insistence on inventing its brand of First Amendment underinclusiveness puzzles me. The overbreadth doctrine has the redeeming virtue of attempting to avoid the chilling of protected expression, but the Court’s new “underbreadth” creation serves no desirable function. Instead, it permits, indeed invites, the continuation of expressive conduct that in this case is evil and worthless in First Amendment terms, until the city of St. Paul cures the underbreadth by adding to its ordinance a catch-all phrase such as “and all other fighting words that may constitutionally be subject to this ordinance.” Any contribution of this holding to First Amendment jurisprudence is surely a negative one, since it necessarily signals that expressions of violence, such as the message of intimidation and racial hatred conveyed by burning a cross on someone’s lawn, are of sufficient value to outweigh the social interest in order and morality that has traditionally placed such fighting words outside the First Amendment. Indeed, by characterizing fighting words as a form of “debate,” the majority legitimates hate speech as a form of public discussion. Furthermore, the Court obscures the line between speech that could be regulated freely on the basis of content (i.e., the narrow categories of expression falling outside the First Amendment) and that which could be regulated on the basis of content only upon a showing of a compelling state interest (i.e., all remaining expression). By placing fighting words, which the Court has long held to be valueless, on at least equal constitutional footing with political dis-

course and other forms of speech that we have deemed to have the greatest social value, the majority devalues the latter category. B In a second break with precedent, the Court refuses to sustain the ordinance even though it would survive under the strict scrutiny applicable to other protected expression. Assuming, arguendo, that the St. Paul ordinance is a content-based regulation of protected expression, it nevertheless would pass First Amendment review under settled law upon a showing that the regulation “‘is necessary to serve a compelling state interest and is narrowly drawn to achieve that end.’” Simon & Schuster, Inc. v. New York Crime Victims Board (1991). St. Paul has urged that its ordinance, in the words of the majority, “helps to ensure the basic human rights of members of groups that have historically been subjected to discrimination. . . .” The Court expressly concedes that this interest is compelling and is promoted by the ordinance. Nevertheless, the Court treats strict scrutiny analysis as irrelevant to the constitutionality of the legislation. . . . Under the majority’s view, a narrowly drawn, content-based ordinance could never pass constitutional muster if the object of that legislation could be accomplished by banning a wider category of speech. This appears to be a fundamental tool of First Amendment analysis. . . . C As I see it, the Court’s theory does not work and will do nothing more than confuse the law. Its selection of this case to rewrite First Amendment law is particularly inexplicable, because the whole problem could have been avoided by deciding this case under settled First Amendment principles. II Although I disagree with the Court’s analysis, I do agree with its conclusion. The St. Paul ordinance is unconstitutional. However, I would decide the case on overbreadth grounds. . . . I agree with petitioner that the ordinance is invalid on its face. Although the ordinance as construed reaches categories of speech that are constitutionally unprotected, it also criminalizes a substantial amount of expression that—however repugnant—is shielded by the First Amendment.

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. . . In the First Amendment context, “[c]riminal statutes must be scrutinized with particular care; those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid even if they also have legitimate application.” The St. Paul antibias ordinance is such a law. Although the ordinance reaches conduct that is unprotected, it also makes criminal expressive conduct that causes only hurt feelings, offense, or resentment, and is protected by the First Amendment. The ordinance is therefore fatally overbroad and invalid on its face. III Today, the Court has disregarded two established principles of First Amendment law without providing a coherent replacement theory. Its decision is an arid, doctrinaire interpretation, driven by the frequently irresistible impulse of judges to tinker with the First Amendment. The decision is mischievous at best and will surely confuse the lower courts. I join the judgment, but not the folly of the opinion. JUSTICE BLACKMUN, concurring in the judgment: I regret what the Court has done in this case. The majority opinion signals one of two possibilities; it will serve as precedent for future cases, or it will not. Either result is disheartening. In the first instance, by deciding that a State cannot regulate speech that causes great harm unless it also regulates speech that does not (setting law and logic on their heads), the Court seems to abandon the categorical approach, and inevitably to relax the level of scrutiny applicable to content-based laws. As Justice White points out, this weakens the traditional protections of speech. If all expressive activity must be accorded the same protection, that protection will be scant. The simple reality is that the Court will never provide child pornography or cigarette advertising the level of protection customarily granted political speech. If we are forbidden from categorizing, as the Court has done here, we shall reduce protection across the board. It is sad that in its effort to reach a satisfying result in this case, the Court is willing to weaken First Amendment protections. In the second instance is the possibility that this case will not significantly alter First Amendment jurisprudence, but, instead, will be regarded as an aberration—a case where the Court manipulated doctrine to strike down an ordinance whose premise it opposed, namely, that racial threats and verbal assaults are of greater harm than other fighting words. I fear 104

that the Court has been distracted from its proper mission by the temptation to decide the issue over “politically correct speech” and “cultural diversity,” neither of which is presented here. If this is the meaning of today’s opinion, it is perhaps even more regrettable. I see no First Amendment values that are compromised by a law that prohibits hoodlums from driving minorities out of their homes by burning crosses on their lawns, but I see great harm in preventing the people of St. Paul from specifically punishing the racebased fighting words that so prejudice their community. I concur in the judgment, however, because I agree with Justice White that this particular ordinance reaches beyond fighting words to speech protected by the First Amendment. JUSTICE STEVENS, joined by JUSTICES WHITE and BLACKMUN as to Part I, concurring in the judgment: Conduct that creates special risks or causes special harms may be prohibited by special rules. Lighting a fire near an ammunition dump or a gasoline storage tank is especially dangerous; such behavior may be punished more severely than burning trash in a vacant lot. Threatening someone because of her race or religious beliefs may cause particularly severe trauma or touch off a riot, and threatening a high public official may cause substantial social disruption; such threats may be punished more severely than threats against someone based on, say, his support of a particular athletics team. There are legitimate, reasonable, and neutral justifications for such special rules. This case involves the constitutionality of one such ordinance. Because the regulated conduct has some communicative content—a message of racial, religious, or gender hostility—the ordinance raises two quite different First Amendment questions. Is the ordinance “overbroad” because it prohibits too much speech? If not, is it “underbroad” because it does not prohibit enough speech? In answering these questions, my colleagues today wrestle with two broad principles: first, that certain “categories of expression [including ‘fighting words’] are ‘not within the area of constitutionally protected speech,’” ante, and second, that “[c]ontentbased regulations [of expression] are presumptively invalid.” Although in past opinions the Court has repeated both of these maxims, it has—quite rightly— adhered to neither with the absolutism suggested by my colleagues. Thus, while I agree that the St. Paul

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ordinance is unconstitutionally overbroad for the reasons stated in Part II of Justice White’s opinion, I write separately to suggest how the allure of absolute principles has skewed the analysis of both the majority and concurring opinions. I Fifty years ago, the Court articulated a categorical approach to First Amendment jurisprudence. . . . The Court today revises this categorical approach. It is not, the Court rules, that certain “categories” of expression are “unprotected,” but rather that certain “elements” of expression are wholly “proscribable.” To the Court, an expressive act, like a chemical compound, consists of more than one element. Although the act may be regulated because it contains a proscribable element, it may not be regulated on the basis of another (nonproscribable) element it also contains. Thus, obscene antigovernment speech may be regulated because it is obscene, but not because it is antigovernment. It is this revision of the categorical approach that allows the Court to assume that the St. Paul ordinance proscribes only fighting words, while at the same time concluding that the ordinance is invalid because it imposes a content-based regulation on expressive activity. As an initial matter, the Court’s revision of the categorical approach seems to me something of an adventure in a doctrinal wonderland, for the concept of “obscene antigovernment” speech is fantastical. The category of the obscene is very narrow; to be obscene, expression must be found by the trier of fact to “appea[l] to the prurient interest, . . . depic[t] or describ[e], in a patently offensive way, sexual conduct, [and] taken as a whole, lac[k] serious literary, artistic, political or scientific value.” Miller v. California (1973) (emphasis added). “Obscene antigovernment” speech, then, is a contradiction in terms: If expression is antigovernment, it does not “lac[k] serious . . . political . . . value” and cannot be obscene. The Court attempts to bolster its argument by likening its novel analysis to that applied to restrictions on the time, place, or manner of expression or on expressive conduct. It is true that loud speech in favor of the Republican Party can be regulated because it is loud, but not because it is pro-Republican; and it is true that the public burning of the American flag can be regulated because it involves public burning and not because it involves the flag. But these

analogies are inapposite. In each of these examples, the two elements (e.g., loudness and pro-Republican orientation) can coexist; in the case of “obscene antigovernment” speech, however, the presence of one element (“obscenity”) by definition means the absence of the other. To my mind, it is unwise and unsound to craft a new doctrine based on such highly speculative hypotheticals. I am, however, even more troubled by the second step of the Court’s analysis—namely, its conclusion that the St. Paul ordinance is an unconstitutional content-based regulation of speech. Drawing on broadly worded dicta, the Court establishes a nearabsolute ban on content-based regulations of fighting words by subject matter. Thus, while the Court rejects the “all-or-nothing-at-all” nature of the categorical approach, it promptly embraces an absolutism of its own: within a particular “proscribable” category of expression, the Court holds, a government must either proscribe all speech or no speech at all. This aspect of the Court’s ruling fundamentally misunderstands the role and constitutional status of content-based regulations on speech, conflicts with the very nature of First Amendment jurisprudence, and disrupts well-settled principles of First Amendment law. Although the Court has, on occasion, declared that content-based regulations of speech are “never permitted,” Police Dept. of Chicago v. Mosley (1972), such claims are overstated. Indeed, in Mosley itself, the Court indicated that Chicago’s selective proscription of nonlabor picketing was not per se unconstitutional, but rather could be upheld if the City demonstrated that nonlabor picketing was “clearly more disruptive than [labor] picketing.” Contrary to the broad dicta in Mosley and elsewhere, our decisions demonstrate that content-based distinctions, far from being presumptively invalid, are an inevitable and indispensable aspect of a coherent understanding of the First Amendment. This is true at every level of the First Amendment law. In broadest terms, our entire First Amendment jurisprudence creates a regime based on the content of speech. The scope of the First Amendment is determined by the content of expressive activity: Although the First Amendment broadly protects “speech,” it does not protect the right to “fix prices, breach contracts, make false warranties, place bets with bookies, threaten, [or] extort.” Similarly, “the line between permissible advocacy and impermissible incitation to crime or violence depends, not Freedom of Expression

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merely on the setting which the speech occurs, but also on exactly what the speaker had to say.” Young v. American Mini Theaters, Inc. (1976). Likewise, whether speech falls within one of the categories of “unprotected” or “proscribable” expression is determined, in part, by its content. Whether a magazine is obscene, a gesture a fighting word, or a photograph child pornography is determined, in part, by its content. . . . [M]uch of our First Amendment jurisprudence is premised on the assumption that content makes a difference. . . . All of these cases involved the selective regulation of speech based on content—precisely the sort of regulation the Court invalidates today. Such selective regulations are unavoidably content based, but they are not, in my opinion, “presumptively invalid.”. . . Disregarding this vast body of case law, the Court today goes beyond even the overstatement in Mosley and applies the prohibition on content-based regulation to speech that the Court had until today considered wholly “unprotected” by the First Amendment—namely, fighting words. This new absolutism in the prohibition of content-based regulations severely contorts the fabric of settled First Amendment law. Our First Amendment decisions have created a rough hierarchy in the constitutional protection of speech. Core political speech occupies the highest, most protected position; commercial speech and nonobscene, sexually explicit speech are regarded as a sort of second-class expression; obscenity and fighting words receive the least protection of all. Assuming that the Court is correct that this last class of speech is not wholly “unprotected,” it certainly does not follow that fighting words and obscenity receive the same sort of protection afforded core political speech. Yet in ruling that proscribable speech cannot be regulated based on subject matter, the Court does just that. Perversely, this gives fighting words greater protection than is afforded commercial speech. . . . The Court today turns First Amendment law on its head: Communication that was once entirely unprotected (and that still can be wholly proscribed) is now entitled to greater protection than commercial speech—and possibly greater protection than core political speech. In sum, the central premise of the Court’s ruling—that “[c]ontent-based regulations are presump-

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tively invalid”—has simplistic appeal, but lacks support in our First Amendment jurisprudence. To make matters worse, the Court today extends this overstated claim to reach categories of hitherto unprotected speech and, in doing so, wreaks havoc in an area of settled law. . . . II Although I agree with much of Justice White’s analysis, I do not join Part I-A of his opinion because I have reservations about the “categorical approach” to the First Amendment. . . . Admittedly, the categorical approach to the First Amendment has some appeal: either expression is protected or it is not—the categories create safe harbors for governments and speakers alike. But this approach sacrifices subtlety for clarity and is, I am convinced, ultimately unsound. As an initial matter, the concept of “categories” fits poorly with the complex reality of expression. Few dividing lines in First Amendment law are straight and unwavering, and efforts at categorization inevitably give rise only to fuzzy boundaries. Our definitions of “obscenity,” and “public forum,” illustrate this all too well. The quest for doctrinal certainty through the definition of categories and subcategories is, in my opinion, destined to fail. Moreover, the categorical approach does not take seriously the importance of context. The meaning of any expression and legitimacy of its regulation can only be determined in context. Whether, for example, a picture or a sentence is obscene cannot be judged in the abstract, but rather only in the context of its setting, its use, and its audience. . . . In short, the history of the categorical approach is largely the history of narrowing the categories of unprotected speech. This evolution, I believe, indicates that the categorical approach is unworkable and the quest for absolute categories of “protected” and “unprotected” speech ultimately futile. . . . III . . . Unlike the Court, I do not believe that all content-based regulations are equally infirm and presumptively invalid; unlike Justice White, I do not believe that fighting words are wholly unprotected by the First Amendment. To the contrary, I believe our

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decisions establish a more complex and subtle analysis, one that considers the content and context of the regulated speech, and the nature and scope of the restriction on speech. . . .

Not all content-based regulations are alike; our decisions clearly recognize that some content-based restrictions raise more constitutional questions than others. . . .

SELECTED REFERENCES Emerson, Thomas I. The System of Free Expression. New York: Random House, 1970. Meiklejohn, Alexander. Free Speech and Its Relation to Self-Government. New York: Harper & Brothers, 1948. Rabban, David. Free Speech in Its Forgotten Years. Cambridge, U.K.: Cambridge University Press, 1997.

Stone, Geoffrey R. “Free Speech in the Twenty-First Century: Ten Lessons from the Twentieth Century,” Pepperdine Law Review, Vol. 36 (2009), 273.

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CHAPTER 4

FREEDOM OF EXPRESSION IN SPECIAL CONTEXTS

——-FEATURED CASES——Cohen v. California; Miller v. California; Paris Adult Theatre I v. Slayton; F.C.C. v. Pacifica; Barnes v. Glen Theatre, Inc.; Reno v. American Civil Liberties Union; Tinker v. Des Moines Independent Community School District; Morse v. Frederick

T

his chapter continues many of the themes that were raised in Chapter 3 and examines expression in some particular contexts. Casebooks must use an organizational rubric, but it is important to remember that the Supreme Court is wrestling with what freedom of speech means generally. Sometimes doctrine that evolves is unique to the context; other times, the principles and doctrine carry over to other areas of speech.

OBSCENITY; SEXUALLY EXPLICIT EXPRESSION; THE OFFENSIVE, INDECENT, LEWD, AND PROFANE In any consideration of the First Amendment, one must spend a fair amount of time reading cases about obscenity. This seems counterintuitive because in Chaplinsky, the Court said that obscenity, like fighting words and libel, was a category of speech that lay outside the protection of the First Amendment. The dilemma, of course, is to decide what is obscene. The task has led to some humorous and tedious situations involving what judges and justices must do and write about. It also has led to an oft-quoted line by Justice Potter Stewart, who proclaimed, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [hard-core pornography]; and per-

haps I could never succeed intelligibly doing so. But I know it when I see it. . . .” (Jacobellis v. Ohio, 378 U.S. 184, 1964). It was one of the more candid acknowledgments in Court history of the difficulty of enunciating legal standards. Yet, in order for the Court to remove some forms of expression from First Amendment protection while protecting others, it needed a definition of obscenity. For centuries, governments have labeled things as obscene that some people consider to be great works of literature, art, or science. One can go to any public library and find lists of books that have been banned as obscene or harmful that later have come to be regarded as classics. As Justice Harlan famously said in another context, “one man’s vulgarity is another’s lyric.” The argument, however, is not only about what is vulgar or valuable. There is a fundamental question of whether the government should ever be in the business of determining what a willing adult ought to be able to read or see. Answering this question is more complicated than it seems. People often state that government should not be in the business of determining morals. But at some level, law is almost always about morality. Laws may have other nonmoral justifications, such as not harming others, but even the concept of harm is a reflection of a moral presumption. As one example, we make moral judgments that killing is wrong, but killing

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in self-defense is morally acceptable. Even people who say that law should not be about morality often believe, when pushed, that society should have the ability to set some standards of decency. For example, most people would say that it is all right to ban public nudity or sex acts in some public places even if public health were not an issue. They would probably hold this position even about a nudist who was carrying a sign protesting “Victorian morality” and who claimed that his nudity was demonstrating that people could cope with the sight of a nude body in public. The point is not that it is illegitimate to argue that government should leave certain moral decisions to individuals; rather it is to suggest that the law/morality distinction, like the marketplace of ideas metaphor, is far more complex than it seems at first blush. In any event, all societies attempt to establish some baseline of civility and decency, but such efforts inevitably come into conflict with the notion of free thought and expression. It should be noted that words like obscenity, pornography, indecency, lewdness, and so forth, are used interchangeably. Historically, governments felt free to regulate all of these things and more in the public interest. Today, they often must be distinguished for First Amendment purposes. For example, something may be “pornographic” but not “obscene.” The latter can be banned; the former cannot. As one reads cases, however, such distinctions have not always been drawn. OFFENSIVE AND PROFANE SPEECH FEATURED CASE

Cohen v. California Profane and offensive speech were addressed at different points in the last chapter. For example, fighting words imply profane or offensive

language. Likewise, efforts to stir a crowd to anger often involve the use of profanity. Some profane or “dirty” words have a sexual origin or a sexual connotation, but their offensiveness is not solely because of their relationship to sex. They also challenge a society’s ability to maintain certain standards of decency. Paul Cohen was convicted for wearing a jacket in the Los Angeles County Courthouse that had the words “Fuck the Draft” on it. In a classic case, Cohen v. California (403 U.S. 15, 1971), his conviction was overturned. The opinion addresses many issues of free speech, and many of the ideas in this opinion have become core principles in modern First Amendment analysis. Justice Harlan, who wrote for the Court, noted that the California penal code prohibited offensive conduct, but “The only conduct which the State sought to punish is the fact of communication. Thus we deal here with a conviction resting solely upon speech . . . Though provocative, the use of the words on the jacket could not be considered ‘fighting words.’” Harlan noted that while Cohen’s “distasteful mode of expression was thrust upon unwilling or unsuspecting viewers . . . the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. . . . Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes.” Finally, he opined that “words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.”

COHEN V. CALIFORNIA 403 U.S. 15 (1971) JUSTICE HARLAN delivered the opinion of the Court. This case may seem at first blush too inconsequential to find its way into our books, but the issue it

presents is of no small constitutional significance. [403 U.S. 15, 16] Appellant Paul Robert Cohen was convicted in the Los Angeles Municipal Court of violating that Freedom of Expression in Special Contexts

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part of California Penal Code 415 which prohibits “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct. . . .” He was given thirty days’ imprisonment. The facts upon which his conviction rests are detailed in the opinion of the Court of Appeal of California, Second Appellate District, as follows: On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words ‘Fuck the Draft’ which were plainly visible. There were women and children present in the corridor. The defendant was arrested. The defendant testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft. . . .

In affirming the conviction the Court of Appeal held that “offensive conduct” means “behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace,” and that the State had proved this element because, on the facts of this case, “[i]t was certainly reasonably foreseeable that such conduct might cause others to rise up to commit a violent act against the person of the defendant or attempt to forceably remove his jacket.” . . . I In order to lay hands on the precise issue which this case involves, it is useful first to canvass various matters which this record does not present. The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only “conduct” which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon “speech. . . .” . . . Cohen was tried under a statute applicable throughout the entire State. Any attempt to support this conviction on the ground that the statute seeks to preserve an appropriately decorous atmosphere in the courthouse where Cohen was arrested must fail in the absence of any language in the statute that would have put appellant on notice that certain kinds of otherwise permissible speech or conduct would nevertheless, under California law, not be tolerated in certain places. See Edwards v. South Carolina, 372 U.S. 229, 236–237, and n. 11 (1963). Cf. Adderley v. Florida, 385 U.S. 39 (1966). . . . This Court has also held that the States are free to ban the simple use, without a demonstration of 110

additional justifying circumstances, of so-called “fighting words,” those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not “directed to the person of the hearer.” Cantwell v. Connecticut, 310 U.S. 296, 309 (1940). . . . Finally, in arguments before this Court much has been made of the claim that Cohen’s distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable exposure to appellant’s crude form of protest. Of course, the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. . . . In this regard, persons confronted with Cohen’s jacket were in a quite different posture than, say, those subjected to the raucous emissions of sound trucks blaring outside their residences. Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes. . . . II . . . For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual. Additionally, we cannot overlook the fact, because it [403 U.S. 15, 26] is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message

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sought to be communicated. Indeed, as MR. JUSTICE FRANKFURTER has said, “[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures—and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation.” Baumgartner v. United States, 322 U.S. 665, 673–674 (1944). Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. . . . Reversed. JUSTICE BLACKMUN, joined by Chief Justice Burger and Justice Black, dissenting: I dissent, and I do so for two reasons: 1. Cohen’s absurd and immature antic, in my view, was mainly conduct and little speech. See Street v. New York, 394 U.S. 576 (1969); Cox v. Louisiana, 379 U.S. 536, 555 (1965); Giboney v. Empire Storage Co., 336 U.S. 490, 502 (1949). The California Court of Appeal appears so to have described it, 1 Cal. App. 3d 94, 100, 81 Cal. Rptr. 503, 507, and I cannot characterize it otherwise. Further, the case appears to me to be well within the sphere of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), where MR. JUSTICE MURPHY, a known champion of First Amendment freedoms, wrote for a unanimous bench. As a consequence, this Court’s agonizing over First Amendment values seems misplaced and unnecessary.

OBSCENITY FEATURED CASES

Miller v. California; Paris Adult Theatre I v. Slayton Unlike the issue in Cohen, most cases dealing with the effort to balance society’s interest in decency with free speech interests have been related to sex. Obscenity cases were reported in the United States as early as 1815, but it was not until in the late 1860s that there was a concerted effort to prosecute obscenity. A movement to stop obscenity was started by a grocer named Anthony Comstock and resulted in antiobscenity legislation in most states. Most courts chose a definition of obscenity enunciated in a

British case, Regina v. Hicklin, 3 L.R-QB 360 (1868). According to the case, the “test of obscenity [is] whether the tendency of the matter [is] to deprave and corrupt those whose minds are open to such immoral influences.” Under the Hicklin test, many famous works of literature were found obscene. Obscenity was generally not regarded as something that was protected by the First Amendment. Recall Justice Murphy’s statement in Chaplinsky that “There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane . . .” The first case to bring the obscenity issue to the Supreme Court involved Edmund Wilson’s Memoirs of Hecate County. The Court split 4–4, a result that affirmed the conviction with no written opinion. It was not until 1957 that the Court directly addressed the obscenity question and held what Chaplinsky had intimated—that obscenity is unprotected by the Constitution—in companion cases Roth v. United States, (354 U.S. 476, 1957), arising under the federal obscenity statute, and Alberts v. California, (354 U.S. 476, 1957) arising under the California obscenity code. The Court sustained convictions in Roth for use of the mail to disseminate obscene matter and in Alberts for possession of obscene matter for sale by mail order. In his opinion for the Court, Justice William J. Brennan noted that “sex . . . has indisputably been a subject of absorbing interest through the ages. . . .” He emphasized that ideas with the “slightest redeeming social importance” must be accorded the full protection of the First Amendment. But since obscene matter is “utterly without redeeming social importance,” it is not protected expression. The test, said Brennan, is “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” While this test was considered an improvement over the earlier Hicklin test, which allowed material to be judged “by the effect of an isolated [passage] upon particularly susceptible persons,” in practice it opened up a Pandora’s box of questions for law enforcement officials and the lower courts. What does the term “prurient interest” mean? Who is “the average person”? What is “redeeming social importance”? Who determines “contemporary community standards,” and what is the “relevant community”? Freedom of Expression in Special Contexts

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Following Roth, the Court went through a long and difficult period of trying to define obscenity. In Manual Enterprises v. Day (370 U.S. 478, 1962), the Court narrowed the sweep of its “prurient interest” test by holding that to be judged obscene, material must not only have “prurient interest” appeal but “patent offensiveness” must also be demonstrated. Furthermore, Justice Harlan for the Court held that the two elements “must conjoin” to support a finding of obscenity. Applying this test to reverse an obscenity finding of postal authorities, Harlan contended that the magazines in question (containing photographs of nude males), while “dismally unpleasant, uncouth, and tawdry,” were not “under any permissible constitutional standard . . . beyond the pale of contemporary notions of rudimentary decency.” Jacobellis v. Ohio (378 U.S. 184, 1964) was used by Justice Brennan to expand upon the “redeeming social importance” concept. In that case, a state court obscenity conviction for an exhibition of the movie Les Amants was reversed by the Court, with Justice Brennan stressing that obscene material is that which is “utterly without redeeming social importance.” Conversely, he argued, if material “has literary or scientific or any other form of social importance [it] may not be branded as obscenity. . . .” Brennan also focused attention on the “contemporary community standards” concept. The “relevant community,” he held, must be construed in the broad sense of “society at large.” The significance of the “redeeming social importance” test was addressed in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts (383 U.S. 413, 1966). The controversial novel is sometimes known by its shorter title, Fanny Hill, and was published in England in 1748 and 1749. In the book, a prostitute reviews her life’s experiences. It was judged obscene by Massachusetts courts. The Supreme Court reversed that holding. In the opinion for the Court, Justice Brennan emphasized that although a book may have “prurient interest” appeal and is “patently offensive,” it may not be held obscene unless it is “utterly without redeeming social value.” To him, each of these criteria is to be applied independently, but material must have all three qualities to be proscribed as obscene. Hence, because the trial court found that Fanny Hill contained at least “a modicum of social value,” its obscenity finding was erroneous. A further criterion for determining obscenity was set forth in Ginzburg v. United States (383 U.S. 463, 112

1966). Frowning on the “sordid business” of commercializing sex that was engaged in by some publishers under the guise of freedom of expression, the Court affirmed a federal obscenity conviction on the basis of the publisher’s motives as revealed by his advertising and promotion methods. Conceding that the materials under “a different setting” might not be obscene, Justice Brennan, speaking for the majority, made it clear that “where the purveyor’s sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity.” Furthermore, he assumed that the prosecution could not have succeeded otherwise. The obvious difficulty with Brennan’s opinion is that it provides for the evaluation of the substantive content of a work partly on the basis of the use to which it is put. Actually, Brennan was focusing on “pandering,” and in doing so, as Justice Harlan pointed out, the conviction was affirmed upon something quite different from that on which Ginzburg was charged and tried. Harlan contended that if there is any validity in adding the “pandering” dimension to the existing obscenity tests, then the least the Court could do would be to remand the case so that Ginzburg could “have his day in court” on the “amended” charges. (Cf. Splawn v. California, 431 U.S. 595, 1977) The Court continued to recognize the need for more legislative flexibility in dealing with obscenity when it held in Ginsberg v. New York (390 U.S. 629, 1968) that what may be obscene for minors may not be for adults. Speaking for the Court, Justice Brennan accepted the state’s “variable obscenity” standard and held that government can impose stricter standards on materials sold to juveniles than on those sold to adults. “The state has an independent interest in the well-being of its youth,” said Brennan, and can constitutionally accord them “a more restricted right than that assured to adults.” The indefiniteness resulting from the “tests” to determine obscenity had the result of providing publishers, moviemakers, and others wide latitude in the treatment of sexual matters in their works. Consequently, there was a major boom in so-called smut and pornography in the late 1960s and the early 1970s. Motion pictures with “X” ratings for “Adults Only” depicted graphically a wider variety of sexual activities than they ever had before. In addition, “Adults Only” bookstores openly promoted books and magazines that many considered to be hard-core pornography, claiming that they had at least “a modicum of redeeming social value.”

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Alarmed at this trend, many Americans pointed an accusing finger at the Supreme Court as a major causal agent of this crisis in morals. President Nixon had echoed a similar view in 1970 when he rejected the recommendation of the Commission on Obscenity and Pornography that advocated unrestricted access to sexual materials by consenting adults. Others, however, saw an effort to return to the “Victorian morality” that had preceded the sexual revolution that had occurred in the 1960s. In short, there was a strong cultural divide in the United States over the issue of sex generally, as well as its depiction. As such, there were reasons for the difficulties faced by the Court beyond its inability to devise a workable test. In the 1960s and early 1970s, society had gone through a cultural revolution and mores were evolving. Members of the Court are not immune to such shifts, and like society, the justices varied in their understanding of the harms to society. That said, the difficulties with applying the legal standards were real. The Court was overwhelmed by cases claiming unconstitutional censorship. Usually, the Supreme Court visits an issue, formulates a doctrine, and leaves it to lower judges to apply it to cases. Periodically, it must revisit the issue to clarify doctrine. (An exception to this is the aftermath of Brown v. Board of Education, when lower courts were actively resisting the Supreme Court’s dictate. The Supreme Court took many such cases and summarily reversed them.) For obscenity, however, the Supreme Court was spending an inordinate amount of its own time reviewing films and books and other things to determine if they were obscene. It was having to act more like a lower court. It overturned over thirty obscenity convictions without an opinion in per curiam decisions. Even Justice Brennan, the author of Roth, grew frustrated. In a dissent in Paris Adult Theatre I v. Slayton (413 U.S. 49, 1973), he said: I am convinced that the approach initiated sixteen years ago in [Roth], and culminating in the Court’s decision today, cannot bring stability to this area of the law without jeopardizing fundamental First Amendment [values]. The vagueness of the standards in the obscenity area produces a number of separate problems [including a] lack of fair notice, [a] chill on protected expression, and [a severe] stress [on the] judicial machinery. [These concerns] persuade me that a significant change in direction is urgently required. . . .

[After a long discussion of problems, he concluded:] In short, while I cannot say that the interests of the State—apart from the question of juveniles and unconsenting adults—are trivial or nonexistent, I am compelled to conclude that these interests cannot justify the substantial damage to constitutional rights and to this Nation’s judicial machinery that inevitably results from state efforts to bar the distribution even of unprotected material to consenting adults. [I] would hold, therefore, that at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of the allegedly “obscene” contents.

The Court, however, did not follow Brennan’s inclination in this case or in another case released the same day. In 1973, the four Nixon appointees (Burger, Blackmun, Powell, and Rehnquist) were joined by Warren Court holdover Byron White in a major overhaul of obscenity law. In Miller v. California (413 U.S. 15) and four companion cases, the Court emphasized the need for more definitive standards than employed in the past. Chief Justice Burger, speaking for the Court, set forth the following test: (1) [W]hether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Careful examination of this test reveals a major modification of the “contemporary community” concept and the “redeeming social value” standard. Rejecting the “national standards” concept implicit in Justice Brennan’s “society-at-large” language in the 1964 Jacobellis case, the Chief Justice emphasized the need for standards to reflect local views. Notwithstanding the national implications of the First Amendment, he held that it was “neither realistic nor constitutionally sound” to demand “that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City.” Moreover, under the new test, the publishers of controversial works are no longer able to protect their works by arguing that they have “redeeming social Freedom of Expression in Special Contexts

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value.” Instead, the more demanding modification allows authorities to inquire whether the work, “taken as a whole, lacks serious literary, artistic, political, or scientific value.” That Miller marked a more restrictive posture of the Court with regard to the First Amendment and obscenity was underscored by the sharp dissents of Justices Douglas, Brennan, Stewart, and Marshall, all holdovers from the Warren Court. In an early application of the Miller standards, the Court reversed the obscenity conviction of a theater owner for exhibiting the motion picture Carnal Knowledge in Jenkins v. Georgia (418 U.S. 153, 1974). The film was an acclaimed movie starring Jack Nicholson, Ann Margret, and others. Justice William Rehnquist spoke for a unanimous court when he said, “our own view of the film satisfies us” that it is not obscene under the Miller standard, which requires a finding that sexual conduct is depicted in a “patently offensive way.” The Court has never really given much guidance about the meaning of “prurient interest.” In Brockett v. Spokane Arcades, Inc. (472 U.S. 491, 1985) the Court overturned a Washington obscenity law for failing to distinguish between a “normal” interest in sex and a “shameful” or “morbid” one. Prurient interest is determined by community standards, but the artistic, literary, or scientific value is determined by a national standard. (Pope v. Illinois, 481 U.S. 497, 1987). There are two exceptions to the general flow of obscenity doctrine, and one argued for exception. They involve personal possession, child pornography, and sex discrimination. Personal possession is given much lip service in opinions, but it has been so circumscribed that it is doubtful that it enjoys much meaningful protection. The child pornography exception seems to be firmly accepted by the Court. The view of pornography as sex discrimination has been an important topic in scholarship and writing, but it has made little progress as a matter of Constitutional law. POSSESSION IN THE HOME

The Court has said that mere possession of obscene matter in the home for personal use is not a crime. In Stanley v. Georgia (394 U.S. 557, 1969), a unanimous Court overturned a Georgia conviction for possession of obscene matter. Law enforcement officers had raided Stanley’s home, searching for gambling paraphernalia, and in the process had discovered and seized three reels of “stag movies” from a desk 114

drawer in the bedroom. These movies were used as evidence to support the obscenity conviction. In overturning the conviction, Justice Thurgood Marshall emphasized the constitutional right of an individual “to satisfy his intellectual and emotional needs in the privacy of his own home.” “If the First Amendment means anything,” said Marshall, “it means that a state has no business telling a man sitting alone in his own house, what books he may read or what films he may watch.” Subsequent rulings, however, severely limit this decision. In two 1971 cases—United States v. Reidel (402 U.S. 351) and United States v. Thirty-Seven Photographs (402 U.S. 363)—the Supreme Court indicated that although the Stanley holding remained viable, its extension was unlikely. Justice White’s opinion for the Court in Reidel, for example, stated: To extrapolate from Stanley’s right to have and peruse obscene material in the privacy of his own home, a First Amendment right in Reidel to sell it to him would effectively scuttle Roth, the precise result that the Stanley opinion abjured. Whatever the scope of the “right to receive” referred to in Stanley, it is not so broad as to immunize the dealings in obscenity in which Reidel engaged here—dealings which Roth held unprotected by the First Amendment.

Reidel upheld the right of Congress to prevent the mail distribution of pornography, while Thirty-Seven Photographs sustained the right of Congress to prohibit importation of obscene materials. Moreover, the trend indicated in Reidel and Thirty-Seven Photographs was continued in two 1973 decisions, United States v. Orito (413 U.S. 139) and United States v. 12,200-Ft. Reels (413 U.S. 123). In Orito, the Court held that the Stanley rationale did not go so far as to permit interstate transportation of obscene material by a passenger on a common carrier even if such material was for purely personal use. And in 12,200-Ft. Reels, the Court clarified the ThirtySeven Photographs decision by holding that Congress could prohibit importation of obscene material that was intended solely for personal use. Even the private possession of pornography (as opposed to obscenity) can be banned if it involves child pornography (Osborne v. Ohio, 495 U.S. 103, 1990). CHILD PORNOGRAPHY

As suggested by Osborne, child pornography creates a major exception to obscenity law. Even though such materials are not technically obscene, they may

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be made illegal. In New York v. Ferber (458 U.S. 787, 1982), the Court classified “child pornography as a category of material outside the protection of the First Amendment.” Stopping child pornography is considered to be so important that not only can the law prosecute purveyors of such materials, it can try to dry up the market by banning private possession. In 2002, however, the Court invalidated the Child Pornography Prevention Act of 1996, which extended prohibition to sexually explicit images that appear to be minors but that were produced without using real children. The creation of such images is done either by using adults who look like children or by computer imaging. (Ashcroft v. Free Speech Coalition, 535 U.S. 234) SEXUAL DISCRIMINATION

Criticisms of the Supreme Court being too protective of pornography are usually associated with political conservatives, particularly religious conservatives. Some of the strongest criticism, however, has come from feminist scholars, who are generally associated

with more liberal political positions. Most pornography is created by men and is made for men. When the pornography involves men and women, women are usually portrayed in a demeaning, subservient fashion, often as victims of violence, which is often portrayed as ultimately “good for the woman.” In a porn film, “no” rarely means “no.” Some scholars have argued that pornography exploits women and can result in harmful attitudes and actions. Moreover, it is claimed to be a form of sexual discrimination. Professor Catharine MacKinnon and writer Andrea Dworkin proposed an ordinance that would outlaw, among other things, depictions of women “presented as sexual objects who experience sexual pleasure in being raped . . . or who enjoy pain or humiliation . . .” Such perspectives have made little headway in First Amendment jurisprudence, especially in relation to obscenity, but there are certainly equal protection concerns that come into play that protect women from hostile working environments, which often are based on similar concerns about the treatment of women.

MILLER V. CALIFORNIA 413 U.S. 15 (1973) CHIEF JUSTICE BURGER delivered the opinion of the Court. This is one of a group of “obscenity–pornography” cases being reviewed by the Court in a reexamination of standards enunciated in earlier cases involving what JUSTICE HARLAN called “the intractable obscenity problem.” Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704 (concurring and dissenting opinion) (1968). Appellant conducted a mass mailing campaign to advertise the sale of illustrated books euphemistically called “adult” material. After a jury trial, he was convicted of violating California Penal Code . . . by knowledgeably distributing obscene matter, and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion. Appellant’s conviction was specifically based on his conduct in causing five unsolicited advertising brochures to be sent

through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained to the police. The brochures advertise four books entitled “Intercourse,” “Man–Woman,” “Sex Orgies Illustrated,” and “An Illustrated History of Pornography,” and a film entitled “Marital Intercourse.” While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed. This case involves the application of a State’s criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients who had in no way indicated any desire to receive such materials. . . . Freedom of Expression in Special Contexts

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The dissent of Justice Brennan reviews the background of the obscenity problem, but since the Court now undertakes to formulate standards more concrete than those in the past, it is useful for us to focus on two of the landmark cases in the somewhat tortured history of the Court’s obscenity decisions. In Roth v. United States, 354 U.S. 476 (1957), the Court sustained a conviction under a federal statute punishing the mailing of “obscene, lewd, lascivious or filthy . . .” materials. The key to that holding was the Court’s rejection of the claim that obscene materials were protected by the First Amendment. Five justices joined in the opinion stating: All ideas having even the slightest redeeming social importance—unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion—have full protection of the First Amendment guarantees, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.

Nine years later in Memoirs v. Massachusetts, 383 U.S. 413 (1966), the Court veered sharply away from the Roth concept and, with only three justices in the plurality opinion, articulated a new test of obscenity. The plurality held that under the Roth definition: . . . as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value. . . .

The sharpness of the break with Roth, represented by the third element of the Memoirs test . . . was further underscored when the Memoirs plurality went on to state: The Supreme Judicial Court erred in holding that a book need not be “unqualifiedly worthless before it can be deemed obscene.” A book cannot be proscribed unless it is found to be utterly without redeeming social value. (Emphasis in original.) 383 U.S., at 419.

While Roth presumed “obscenity” to be “utterly without redeeming social value,” Memoirs required that to prove obscenity it must be affirmatively established that the material is “utterly without redeeming social value.” Thus, even as they repeated the words 116

of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was “utterly without redeeming social value”—a burden virtually impossible to discharge under our criminal standards of proof. Such considerations caused JUSTICE HARLAN to wonder if the “utterly without redeeming social value” test had any meaning at all. . . . Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States’ police power. . . . We have seen “a variety of views among the members of the Court unmatched in any other course of constitutional adjudication. . . .” The case we now review was tried on the theory that the California Penal Code . . . approximately incorporates the three-stage Memoirs test. . . . But now the Memoirs test has been abandoned as unworkable by its author [Justice Brennan] and no member of the Court today supports the Memoirs formulation. . . . We acknowledge . . . the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. . . . As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value. The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the “utterly without redeeming social value” test of Memoirs v. Massachusetts; that concept has never commanded the adherence of more than three Justices at one time. If a state law that regulates obscene materials is thus limited, as written or construed, the First

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Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. . . . We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under the second part (b), of the standard announced in this opinion, supra: (a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places. At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. . . . For example, medical books for the education of physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. . . . JUSTICE BRENNAN, author of the opinions of the Court, or the plurality opinions, in Roth v. United States, Jacobellis v. Ohio, Ginzburg v. United States, Mishkin v. New York, and Memoirs v. Massachusetts has abandoned his former positions and now maintains that no formulation of this Court, the Congress, or the States can adequately distinguish obscene material unprotected by the First Amendment from protected expression. . . . Paradoxically, JUSTICE BRENNAN indicates that suppression of unprotected obscene material is permissible to avoid exposure to unconsenting adults, as in this case, and to juveniles, although he gives no indication of how the division between protected and nonprotected materials may be drawn with greater precision for these purposes than for regulation of commercial exposure to consenting adults only. Nor does he indicate where in the Constitution he finds the authority to distinguish between a willing “adult” one month past the state law age of majority and a willing “juvenile” one month younger.

Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive “hard core” sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution. . . . If the inability to define regulated materials with ultimate, god-like precision altogether removes the power of the States or the Congress to regulate, then “hard core” pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult alike, as, indeed JUSTICE DOUGLAS contends. . . . In this belief, however, JUSTICE DOUGLAS now stands alone. . . . It is certainly true that the absence, since Roth, of a single majority view of this Court as to proper standards for testing obscenity has placed a strain on both state and federal courts. But today, for the first time since Roth was decided in 1957, a majority of this Court has agreed on concrete guidelines to isolate “hard core” pornography from expression protected by the First Amendment. . . . This may not be an easy road, free from difficulty. But no amount of “fatigue” should lead us to adopt a convenient “institutional” rationale—an absolutist, “anything goes” view of the First Amendment— because it will lighten our burdens. “Such an abnegation of judicial supervision in this field would be inconsistent with our duty to uphold constitutional guarantees. . . .” Under a national Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should be, fixed, uniform national standards of precisely what appeals to the “prurient interest” or is “patently offensive.” These are essentially questions of fact, and our Nation is simply too big and diverse for this Court to reasonably expect that such standards could be articulated for all fifty States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether “the average person, applying contemporary community standards” would consider certain materials “prurient,” it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate fact-finders in criminal prosecutions, has historically permitted triers-of-fact to draw on the standards of their Freedom of Expression in Special Contexts

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community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national “community standard” would be an exercise in futility. . . . We conclude that neither the State’s alleged failure to offer evidence of “national standards,” nor the trial court’s charge that the jury consider state community standards, were constitutional errors. Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable “national standards” when attempting to determine whether certain materials are obscene as a matter of fact. . . . It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City. . . . People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity. . . .

In sum we (a) affirm the Roth holding that obscene material is not protected by the First Amendment (b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated above, without a showing that the material is “utterly without redeeming social value,” and (c) hold that obscenity is to be determined by applying “contemporary community standards,” . . . not “national standards.” The judgment of the Appellate Department of the Superior Court, Orange County, California, is vacated and the case remanded to that court for further proceedings not inconsistent with the First Amendment standards established by this opinion. . . . Vacated and remanded for further proceedings. JUSTICE BRENNAN’s views in dissent are set forth in Paris Adult Theater v. Slaton, 413 U.S. 49, decided the same day.

PARIS ADULT THEATRE I V. SLATON 413 U.S. 49 (1973) MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. Petitioners are two Atlanta, Georgia, movie theaters and their owners and managers, operating in the style of “adult” theaters. On December 28, 1970, respondents, the local state district attorney and the solicitor for the local state trial court, filed civil complaints in that court alleging that petitioners were exhibiting to the public for paid admission two allegedly obscene films, contrary to Georgia Code Ann. § 26-2101. The two films in question, “Magic Mirror” and “It All Comes Out in the End,” depict sexual conduct characterized by the Georgia Supreme Court as “hard core pornography” leaving “little to the imagination.” I It should be clear from the outset that we do not undertake to tell the States what they must do, but rather to define the area in which they may chart their own course in dealing with obscene material. This Court has consistently held that obscene material is not protected by the First Amendment. 118

II We categorically disapprove the theory, apparently adopted by the trial judge, that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only. . . . Although we have often pointedly recognized the high importance of the state interest in regulating the exposure of obscene materials to juveniles and unconsenting adults, this Court has never declared these to be the only legitimate state interests permitting regulation of obscene material. The States have a long-recognized legitimate interest in regulating the use of obscene material in local commerce and in all places of public accommodation, . . . In particular, we hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passersby. Rights and interests “other than those of the advocates are involved.” Breard v. Alexandria, 341 U.S. 622, 642 (1951). These include

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the interest of the public in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself. The Hill–Link Minority Report of the Commission on Obscenity and Pornography indicates that there is at least an arguable correlation between obscene material and crime. Quite apart from sex crimes, however, there remains one problem of large proportions aptly described by Professor Bickel: “It econcerns the tone of the society, the mode, or to use terms that have perhaps greater currency, the style and quality of life, now and in the future. A man may be entitled to read an obscene book in his room, or expose himself indecently there. . . . We should protect his privacy. But if he demands a right to obtain the books and pictures he wants in the market, and to foregather in public places— discreet, if you will, but accessible to all—with others who share his tastes, then to grant him his right is to affect the world about the rest of us, and to impinge on other privacies. Even supposing that each of us can, if he wishes, effectively avert the eye and stop the ear (which, in truth, we cannot), what is commonly read and seen and heard and done intrudes upon us all, want it or not.” 22 The Public Interest 25–26 (Winter 1971).

But, it is argued, there are no scientific data which conclusively demonstrate that exposure to obscene material adversely affects men and women or their society. It is urged on behalf of the petitioners that, absent such a demonstration, any kind of state regulation is “impermissible.” We reject this argument. It is not for us to resolve empirical uncertainties underlying state legislation, save in the exceptional case where that legislation plainly impinges upon rights protected by the Constitution itself. MR. JUSTICE BRENNAN, speaking for the Court in Ginsberg v. New York, 390 U.S. 629, 642–643 (1968), said: “We do not demand of legislatures ‘scientifically certain criteria of legislation.’ Noble State Bank v. Haskell, 219 U.S. 104, 110.” Although there is no conclusive proof of a connection between antisocial behavior and obscene material, the legislature of Georgia could quite reasonably determine that such a connection does or might exist. . . . From the beginning of civilized societies, legislators and judges have acted on various unprovable assumptions. Such assumptions underlie much lawful state regulation of commercial and business affairs. . . . If we accept the unprovable assumption that a complete education requires the reading of certain

books, see Board of Education v. Allen, 392 U.S. 236, 245 (1968), and the well nigh universal belief that good books, plays, and art lift the spirit, improve the mind, enrich the human personality, and develop character, can we then say that a state legislature may not act on the corollary assumption that commerce in obscene books, or public exhibitions focused on obscene conduct, have a tendency to exert a corrupting and debasing impact leading to antisocial behavior? “Many of these effects may be intangible and indistinct, but they are nonetheless real.” . . . The sum of experience, including that of the past two decades, affords an ample basis for legislatures to conclude that a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex. Nothing in the Constitution prohibits a State from reaching such a conclusion and acting on it legislatively simply because there is no conclusive evidence or empirical data. It is argued that individual “free will” must govern, even in activities beyond the protection of the First Amendment and other constitutional guarantees of privacy, and that government cannot legitimately impede an individual’s desire to see or acquire obscene plays, movies, and books. We do indeed base our society on certain assumptions that people have the capacity for free choice. Most exercises of individual free choice—those in politics, religion, and expression of ideas—are explicitly protected by the Constitution. Totally unlimited play for free will, however, is not allowed in our or any other society. We have just noted, for example, that neither the First Amendment nor “free will” precludes States from having “blue sky” laws to regulate what sellers of securities may write or publish about their wares. Such laws are to protect the weak, the uninformed, the unsuspecting, and the gullible from the exercise of their own volition. Nor do modern societies leave disposal of garbage and sewage up to the individual “free will,” but impose regulation to protect both public health and the appearance of public places. The States, of course, may follow such a “laissez-faire” policy and drop all controls on commercialized obscenity, if that is what they prefer, just as they can ignore consumer protection in the marketplace, but nothing in the Constitution compels the States to do so with regard to matters falling within state jurisdiction. Freedom of Expression in Special Contexts

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It is asserted, however, that standards for evaluating state commercial regulations are inapposite in the present context, as state regulation of access by consenting adults to obscene material violates the constitutionally protected right to privacy enjoyed by petitioners’ customers. This Court has, on numerous occasions, refused to hold that commercial ventures such as a motion-picture house are “private” for the purpose of civil rights litigation and civil rights statutes. Our prior decisions recognizing a right to privacy guaranteed by the Fourteenth Amendment included “only personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty.’ Nothing, however, in this Court’s decisions intimates that there is any “fundamental” privacy right “implicit in the concept of ordered liberty” to watch obscene movies in places of public accommodation. Conduct or depictions of conduct that the state police power can prohibit on a public street do not become automatically protected by the Constitution merely because the conduct is moved to a bar or a “live” theater stage, any more than a “live” performance of a man and woman locked in a sexual embrace at high noon in Times Square is protected by the Constitution because they simultaneously engage in a valid political dialogue. It is also argued that the State has no legitimate interest in “control [of] the moral content of a person’s thoughts,” Stanley v. Georgia, supra, at 565, and we need not quarrel with this. But we reject the claim that the State of Georgia is here attempting to control the minds or thoughts of those who patronize theaters. Preventing unlimited display or distribution of obscene material, which by definition lacks any serious literary, artistic, political, or scientific value as communication, Miller v. California, ante, at 24, 34, is distinct from a control of reason and the intellect. The fantasies of a drug addict are his own and beyond the reach of government, but government regulation of drug sales is not prohibited by the Constitution. Finally, petitioners argue that conduct which directly involves “consenting adults” only has, for that sole reason, a special claim to constitutional protection. Our Constitution establishes a broad range of conditions on the exercise of power by the States, but for us to say that our Constitution incorporates the proposition that conduct involving consenting adults only is always beyond state regulation, is a step we are unable to take. We have directed our holdings, not at thoughts or speech, but at depiction and description of specifically 120

defined sexual conduct that States may regulate within limits designed to prevent infringement of First Amendment rights. Vacated and remanded. MR. JUSTICE DOUGLAS, dissenting. My Brother Brennan is to be commended for seeking a new path through the thicket which the Court entered when it undertook to sustain the constitutionality of obscenity laws and to place limits on their application. I have expressed on numerous occasions my disagreement with the basic decision that held that “obscenity” was not protected by the First Amendment. I disagreed also with the definitions that evolved. Art and literature reflect tastes; and tastes, like musical appreciation, are hardly reducible to precise definitions. That is one reason I have always felt that “obscenity” was not an exception to the First Amendment. For matters of taste, like matters of belief, turn on the idiosyncrasies of individuals. They are too personal to define and too emotional and vague to apply . . . The other reason I could not bring myself to conclude that “obscenity” was not covered by the First Amendment was that prior to the adoption of our Constitution and Bill of Rights the Colonies had no law excluding “obscenity” from the regime of freedom of expression and press that then existed. . . . So I became convinced that the creation of the “obscenity” exception to the First Amendment was a legislative and judicial tour de force; that if we were to have such a regime of censorship and punishment, it should be done by constitutional amendment. People are, of course, offended by many offerings made by merchants in this area. Life in this crowded modern technological world creates many offensive statements and many offensive deeds. There is no protection against offensive ideas, only against offensive conduct. “Obscenity” at most is the expression of offensive ideas. There are regimes in the world where ideas “offensive” to the majority (or at least to those who control the majority) are suppressed. . . . I am sure I would find offensive most of the books and movies charged with being obscene. But in a life that has not been short, I have yet to be trapped into seeing or reading something that would offend me. . . . As a parent or a priest or as a teacher I would have no compunction in edging my children or wards away from the books and movies that did no more

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than excite man’s base instincts. But I never supposed that government was permitted to sit in judgment on one’s tastes or beliefs—save as they involved action within the reach of the police power of government. When man was first in the jungle he took care of himself. When he entered a societal group, controls were necessarily imposed. But our society—unlike most in the world—presupposes that freedom and liberty are in a frame of reference that makes the individual, not government, the keeper of his tastes, beliefs, and ideas. That is the philosophy of the First Amendment; and it is the article of faith that sets us apart from most nations in the world. MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, dissenting. . . . No other aspect of the First Amendment has, in recent years, demanded so substantial a commitment of our time, generated such disharmony of views, and remained so resistant to the formulation of stable and manageable standards. I am convinced that the approach initiated sixteen years ago in Roth v. United States, 354 U.S. 476 (1957), and culminating in the Court’s decision today, cannot bring stability to this area of the law without jeopardizing fundamental First Amendment values, and I have concluded that the time has come to make a significant departure from that approach. I The witnesses testified that the exterior of the theater was adorned with prominent signs reading “Adults Only,” “You Must Be twenty-one and Able to Prove It,” and “If the Nude Body Offends You, Do Not Enter.” Nothing on the outside of the theater described the films with specificity. Nor were pictures displayed on the outside of the theater to draw the attention of passersby to the contents of the films. The admission charge to the theaters was $3. The trial court heard no evidence that minors had ever entered the theater, but also heard no evidence that petitioners had enforced a systematic policy of screening out minors (apart from the posting of the notices referred to above). The decision of the Georgia Supreme Court rested squarely on its conclusion that the State could constitutionally suppress these films even if they were displayed only to persons over the age of twenty-one who were aware of the nature of their

contents and who had consented to viewing them. For the reasons set forth in this opinion, I am convinced of the invalidity of that conclusion of law, and I would therefore vacate the judgment of the Georgia Supreme Court. I have no occasion to consider the extent of state power to regulate the distribution of sexually oriented materials to juveniles or to unconsenting adults. II In Roth v. United States, 354 U.S. 476 (1957), the Court held that obscenity, although expression, falls outside the area of speech or press constitutionally protected under the First and Fourteenth Amendments against state or federal infringement. But at the same time we emphasized in Roth that “sex and obscenity are not synonymous,” and that matter which is sexually oriented but not obscene is fully protected by the Constitution. For we recognized that “sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern.” Roth rested, in other words, on what has been termed a twolevel approach to the question of obscenity. While much criticized, that approach has been endorsed by all but two members of this Court who have addressed the question since Roth. Yet our efforts to implement that approach demonstrate that agreement on the existence of something called “obscenity” is still a long and painful step from agreement on a workable definition of the term. Recognizing that “the freedoms of expression . . . are vulnerable to gravely damaging yet barely visible encroachments,” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66 (1963), we have demanded that “sensitive tools” be used to carry out the “separation of legitimate from illegitimate speech.” Speiser v. Randall, 357 U.S. 513, 525 (1958). The essence of our problem in the obscenity area is that we have been unable to provide “sensitive tools” to separate obscenity from other sexually oriented but constitutionally protected speech, so that efforts to suppress the former do not spill over into the suppression of the latter. The attempt, as the late MR. JUSTICE HARLAN observed, has only “produced a variety of views among the members of the Court unmatched in any other course of constitutional adjudication.” Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704–705 (1968) (separate opinion). Freedom of Expression in Special Contexts

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To be sure, five members of the Court did agree in Roth that obscenity could be determined by asking “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 354 U.S., at 489. But agreement on that test—achieved in the abstract and without reference to the particular material before the Court, see id., at 481 n. 8—was, to say the least, short lived. By 1967 the following views had emerged: MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS consistently maintained that government is wholly powerless to regulate any sexually oriented matter on the ground of its obscenity. See, e.g., Ginzburg v. United States, 383 U.S. 463, 476, 482 (1966) (dissenting opinions); Jacobellis v. Ohio, 378 U.S. 184, 196 (1964) (concurring opinion); Roth v. United States, supra, at 508 (dissenting opinion). MR. JUSTICE HARLAN, on the other hand, believed that the Federal Government in the exercise of its enumerated powers could control the distribution of “hard core” pornography, while the States were afforded more latitude to “[ban] any material which, taken as a whole, has been reasonably found in state judicial proceedings to treat with sex in a fundamentally offensive manner, under rationally established criteria for judging such material.” Jacobellis v. Ohio, supra, at 204 (dissenting opinion). See also, e.g., Ginzburg v. United States, supra, at 493 (dissenting opinion); A Quantity of Books v. Kansas, 378 U.S. 205, 215 (1964) (dissenting opinion joined by CLARK, J.); Roth, supra, at 496 [81] (separate opinion). MR. JUSTICE STEWART regarded “hard core” pornography as the limit of both federal and state power. See, e.g., Ginzburg v. United States, supra, at 497 (dissenting opinion); Jacobellis v. Ohio, supra, at 197 (concurring opinion). The view that, until today, enjoyed the most, but not majority, support was an interpretation of Roth (and not, as the Court suggests, a veering “sharply away from the Roth concept” and the articulation of “a new test of obscenity,” Miller v. California, ante, at 21) adopted by MR. CHIEF JUSTICE WARREN, MR. JUSTICE FORTAS, and the author of this opinion in Memoirs v. Massachusetts, 383 U.S. 413 (1966). We expressed the view that Federal or State Governments could control the distribution of material where “three elements . . . coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the 122

description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” Id., at 418. Even this formulation, however, concealed differences of opinion. In the face of this divergence of opinion the Court began the practice in Redrup v. New York, 386 U.S. 767 (1967), of per curiam reversals of convictions for the dissemination of materials that at least five members of the Court, applying their separate tests, deemed not to be obscene. III Our experience with the Roth approach has certainly taught us that the outright suppression of obscenity cannot be reconciled with the fundamental principles of the First and Fourteenth Amendments. For we have failed to formulate a standard that sharply distinguishes protected from unprotected speech, and out of necessity, we have resorted to the Redrup approach, which resolves cases as between the parties, but offers only the most obscure guidance to legislation, adjudication by other courts, and primary conduct. By disposing of cases through summary reversal or denial of certiorari we have deliberately and effectively obscured the rationale underlying the decisions. It comes as no surprise that judicial attempts to follow our lead conscientiously have often ended in hopeless confusion. Of course, the vagueness problem would be largely of our own creation if it stemmed primarily from our failure to reach a consensus on any one standard. But after sixteen years of experimentation and debate I am reluctantly forced to the conclusion that none of the available formulas, including the one announced today, can reduce the vagueness to a tolerable level while at the same time striking an acceptable balance between the protections of the First and Fourteenth Amendments, on the one hand, and on the other the asserted state interest in regulating the dissemination of certain sexually oriented materials. Any effort to draw a constitutionally acceptable boundary on state power must resort to such indefinite concepts as “prurient interest,” “patent offensiveness,” “serious literary value,” and the like. The meaning of these concepts necessarily varies with the experience, outlook, and even idiosyncrasies of the person defining them. Although we have assumed that obscenity does exist and that we “know it when [we] see it,” Jacobellis v. Ohio, supra, at 197 (STEWART, J., concurring), we are manifestly unable

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to describe it in advance except by reference to concepts so elusive that they fail to distinguish clearly between protected and unprotected speech. ... The severe problems arising from the lack of fair notice, from the chill on protected expression, and from the stress imposed on the state and federal judicial machinery persuade me that a significant change in direction is urgently required. IV 2. The alternative adopted by the Court today recognizes that a prohibition against any depiction or description of human sexual organs could not be reconciled with the guarantees of the First Amendment. But the Court does retain the view that certain sexually oriented material can be considered obscene and therefore unprotected by the First and Fourteenth Amendments. To describe that unprotected class of expression, the Court adopts a restatement of the Roth–Memoirs definition of obscenity: “[Here he restates the Miller test.] The differences between this formulation and the three-pronged Memoirs test are, for the most part, academic. The first element of the Court’s test is virtually identical to the Memoirs requirement that “the dominant theme of the material taken as a whole [must appeal] to a prurient interest in sex.” 383 U.S., at 418. Whereas the second prong of the Memoirs test demanded that the material be “patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters,” ibid., the test adopted today requires that the material describe, “in a patently offensive way, sexual conduct specifically defined by the applicable state law.” Miller v. California, ante, at 24. The third component of the Memoirs test is that the material must be “utterly without redeeming social value.” 383 U.S., at 418. The Court’s rephrasing requires that the work, taken as a whole, must be proved to lack “serious literary, artistic, political, or scientific value.” Miller, ante, at 24. In my view, the restatement leaves unresolved the very difficulties that compel our rejection of the underlying Roth approach, while at the same time contributing substantial difficulties of its own. The modification of the Memoirs test may prove sufficient to jeopardize the analytic underpinnings of the entire scheme. And today’s restatement will likely have the

effect, whether or not intended, of permitting far more sweeping suppression of sexually oriented expression, including expression that would almost surely be held protected under our current formulation. Although the Court’s restatement substantially tracks the three-part test announced in Memoirs v. Massachusetts, supra, it does purport to modify the “social value” component of the test. Instead of requiring, as did Roth and Memoirs, that state suppression be limited to materials utterly lacking in social value, the Court today permits suppression if the government can prove that the materials lack “serious literary, artistic, political or scientific value.” But the definition of “obscenity” as expression utterly lacking in social importance is the key to the conceptual basis of Roth and our subsequent opinions. The Court’s approach necessarily assumes that some works will be deemed obscene—even though they clearly have some social value— because the State was able to prove that the value, measured by some unspecified standard, was not sufficiently “serious” to warrant constitutional protection. That result is not merely inconsistent with our holding in Roth; it is nothing less than a rejection of the fundamental First Amendment premises and rationale of the Roth opinion and an invitation to widespread suppression of sexually oriented speech. Before today, the protections of the First Amendment have never been thought limited to expressions of serious literary or political value. See Gooding v. Wilson, 405 U.S. 518 [98] (1972); Cohen v. California, 403 U.S. 15, 25–26 (1971); Terminiello v. Chicago, 337 U.S. 1, 4–5 (1949). Although the Court concedes that “Roth presumed ‘obscenity’ to be ‘utterly without redeeming social importance,’” it argues that Memoirs produced “a drastically altered test that called on the prosecution to prove a negative, i.e., that the material was ‘utterly without redeeming social value’—a burden virtually impossible to discharge under our criminal standards of proof.” [note 15] One should hardly need to point out that under the third component of the Court’s test the prosecution is still required to “prove a negative” —i.e., that the material lacks serious literary, artistic, political, or scientific value. Whether it will be easier to prove that material lacks “serious” value than to prove that it lacks any value at all remains, of course, to be seen. . . . even the Court makes no argument that the reformulation will provide fairer notice to booksellers, theater owners, and the reading and viewing Freedom of Expression in Special Contexts

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public. Nor does the Court contend that the approach will provide clearer guidance to law enforcement officials or reduce the chill on protected expression. Nor, finally, does the Court suggest that the approach will mitigate to the slightest degree the institutional problems that have plagued this Court and the state and federal judiciary as a direct result of the uncertainty inherent in any definition of obscenity. V Our experience since Roth requires us not only to abandon the effort to pick out obscene materials on a case-by-case basis, but also to reconsider a fundamental postulate of Roth: that there exists a definable class of sexually oriented expression that may be totally suppressed by the Federal and State Governments. Assuming that such a class of expression does in fact exist, I am forced to conclude that the concept of “obscenity” cannot be defined with sufficient specificity and clarity to provide fair notice to persons who create and distribute sexually oriented materials, to prevent substantial erosion of protected speech as a byproduct of the attempt to suppress unprotected speech, and to avoid very costly institutional harms. Given these inevitable side effects of state efforts to suppress what is assumed to be unprotected speech, we must scrutinize with care the state interest that is asserted to justify the suppression. For in the absence of some very substantial interest in suppressing such speech, we can hardly condone the ill effects that seem to flow inevitably from the effort. . . . in Stanley we rejected as “wholly inconsistent with the philosophy of the First Amendment,” id., at 566, the notion that there is a legitimate state concern in the “control [of] the moral content of a person’s thoughts,” id., at 565, and we held that a State “cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” Id., at 566. That is not to say, of course, that a State must remain utterly indifferent to—and take no action bearing on—the morality of the community. The traditional description of state police power does embrace the regulation of morals as well as the health, safety, and general welfare of the citizenry. And much legislation—compulsory public education laws, civil rights laws, even the abolition of capital punishment—is grounded, at least in part, on a concern with the morality of the community. But the State’s interest in regulating morality by suppressing obscenity, while often asserted, remains essentially unfocused and ill defined. And, since the 124

attempt to curtail unprotected speech necessarily spills over into the area of protected speech, the effort to serve this speculative interest through the suppression of obscene material must tread heavily on rights protected by the First Amendment. In short, while I cannot say that the interests of the State—apart from the question of juveniles and unconsenting adults—are trivial or nonexistent, I am compelled to conclude that these interests cannot justify the substantial damage to constitutional rights and to this Nation’s judicial machinery that inevitably results from state efforts to bar the distribution even of unprotected material to consenting adults. I would hold, therefore, that at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly “obscene” contents. Nothing in this approach precludes those governments from taking action to serve what may be strong and legitimate interests through regulation of the manner of distribution of sexually oriented material.

REGULATING “INDECENT” SPEECH FEATURED CASE

F.C.C. v. Pacifica Some see a major shift in First Amendment jurisprudence that has emerged largely from concerns about decency. The Court has always talked loosely in terms of some speech being of high value (e.g., political speech) and other speech being of low value (e.g., cursing, pornography). But the very concept of “low-value” speech as a Constitutional matter is problematic. Government is not supposed to be in the business of determining which speech is good and which is bad, for purposes of First Amendment protection. The Court, however, has become much more willing to talk about high-value vs. low-value speech and in some cases has been willing to draw distinctions based on such a categorization. The most common form of speech to be denominated as “low value speech” is indecent speech. Unlike obscenity, indecent speech garners First Amendment protection, but the rules do not seem to be the same. Perhaps the most notable case to make such a distinction is Federal Communications Commission v. Pacifica (483 U.S. 726, 1978). The case is complicated because it involves a radio broadcast, and it has long

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been held that the broadcast media may be regulated in the public interest. With Pacifica, the Court arguably began to see decency as a value that could be given more weight as a governmental interest. The case involved a daytime broadcast of George Carlin’s “Filthy Words” comedy routine, which involved several words Carlin claims “that you are not supposed to say.” The words were repeated over and over with a lot of satiric commentary. The decision in Pacifica allows the Federal Communications Commission (FCC) to take into account the “indecency” of the words in regulating the broadcast.

However, in the 1989 “dial-a-porn” case (Sable Communications v. Federal Communications Commission, 492 U.S 115), the Court unanimously held that a federal law banning commercial telephone messages that are “indecent” but not “obscene” is unconstitutional under the First Amendment. Simultaneously, the Court by a sixto-three vote upheld that portion of the law banning “obscene” telephone messages. Just as in the legislation, however, the Court did nothing to define the difference between “indecency” and “obscenity.”

FEDERAL COMMUNICATIONS COMMISSION V. PACIFICA FOUNDATION ET AL. 438 U.S. 726 (1978) MR. JUSTICE STEVENS delivered the opinion of the Court (Parts I, II, III, and IV-C) and an opinion in which THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST joined (Parts IV-A and IV-B). This case requires that we decide whether the Federal Communications Commission has any power to regulate a radio broadcast that is indecent but not obscene. A satiric humorist named George Carlin recorded a 12-minute monologue entitled “Filthy Words” before a live audience in a California theater. He began by referring to his thoughts about “the words you couldn’t say on the public, ah, airwaves, um, the ones you definitely wouldn’t say, ever.” He proceeded to list those words and repeat them over and over again in a variety of colloquialisms. The transcript of the recording, indicates frequent laughter from the audience. At about 2 o’clock in the afternoon on Tuesday, October 30, 1973, a New York radio station, owned by respondent Pacifica Foundation, broadcast the “Filthy Words” monologue. A few weeks later a man, who stated that he had heard the broadcast while driving with his young son, wrote a letter complaining to the Commission. He stated that, although he could perhaps understand the “record’s being sold for private use, I certainly cannot understand the broadcast of same over the air that, supposedly, you control.”

The complaint was forwarded to the station for comment. In its response, Pacifica explained that the monologue had been played during a program about contemporary society’s attitude toward language and that, immediately before its broadcast, listeners had been advised that it included “sensitive language which might be regarded as offensive to some.” Pacifica characterized George Carlin as “a significant social satirist” who “like Twain and Sahl before him, examines the language of ordinary people. . . . Carlin is not mouthing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words.” Pacifica stated that it was not aware of any other complaints about the broadcast. On February 21, 1975, the Commission issued a declaratory order granting the complaint and holding that Pacifica “could have been the subject of administrative sanctions.” The Commission did not impose formal sanctions, but it did state that the order would be “associated with the station’s license file, and in the event that subsequent complaints are received, the Commission will then decide whether it should utilize any of the available sanctions it has been granted by Congress.” In its memorandum opinion the Commission stated that it intended to “clarify the standards which will be utilized in considering” the growing number of complaints about indecent speech on the Freedom of Expression in Special Contexts

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airwaves. Advancing several reasons for treating broadcast speech differently from other forms of expression, the Commission found a power to regulate indecent broadcasting in two statutes: 18 U. S. C. § 1464 (1976 ed.), which forbids the use of “any obscene, indecent, or profane language by means of radio communications,” and 47 U. S. C. § 303 (g), which requires the Commission to “encourage the larger and more effective use of radio in the public interest.” The Commission characterized the language used in the Carlin monologue as “patently offensive,” though not necessarily obscene, and expressed the opinion that it should be regulated by principles analogous to those found in the law of nuisance where the “law generally speaks to channeling behavior more than actually prohibiting it. . . . [The] concept of ‘indecent’ is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.” 56 F. C. C. 2d, at 98. Applying these considerations to the language used in the monologue as broadcast by respondent, the Commission concluded that certain words depicted sexual and excretory activities in a patently offensive manner, noted that they “were broadcast at a time when children were undoubtedly in the audience (i.e., in the early afternoon).” In summary, the Commission stated: “We therefore hold that the language as broadcast was indecent and prohibited by 18 U. S. C. [§] 1464.” Ibid. After the order issued, the Commission was asked to clarify its opinion . . . [T]he Commission issued another opinion in which it pointed out that it “never intended to place an absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it.” 59 F. C. C. 2d 892 (1976). The focus of our review must be on the Commission’s determination that the Carlin monologue was indecent as broadcast. We conclude, therefore, that § 326 does not limit the Commission’s authority to impose sanctions on licensees who engage in obscene, indecent, or profane broadcasting. [Omitted is a long discussion of the Federal Communications Commission’s ability to regulate in 126

this case without its actions being viewed as censorship in violation of a statute.] III The only other statutory question presented by this case is whether the afternoon broadcast of the “Filthy Words” monologue was indecent within the meaning of § 1464. The Commission identified several words that referred to excretory or sexual activities or organs, stated that the repetitive, deliberate use of those words in an afternoon broadcast when children are in the audience was patently offensive, and held that the broadcast was indecent. Pacifica takes issue with the Commission’s definition of indecency, but does not dispute the Commission’s preliminary determination that each of the components of its definition was present. Specifically, Pacifica does not quarrel with the conclusion that this afternoon broadcast was patently offensive. Pacifica’s claim that the broadcast was not indecent within the meaning of the statute rests entirely on the absence of prurient appeal. The plain language of the statute does not support Pacifica’s argument. The words “obscene, indecent, or profane” are written in the disjunctive, implying that each has a separate meaning. Prurient appeal is an element of the obscene, but the normal definition of “indecent” merely refers to nonconformance with accepted standards of morality. [I]t is well settled that the First Amendment has a special meaning in the broadcasting context. See, e. g., FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775; Red Lion Broadcasting Co. v. FCC, 395 U.S. 367; Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94.

It is true that the Commission’s order may lead some broadcasters to censor themselves. At most, however, the Commission’s definition of indecency will deter only the broadcasting of patently offensive references to excretory and sexual organs and activities.While some of these references may be protected, they surely lie at the periphery of First Amendment concern. When the issue is narrowed to the facts of this case, the question is whether the First Amendment denies government any power to restrict the public broadcast of indecent language in any circumstances. For if the government has any such power, this was an appropriate occasion for its exercise.

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The words of the Carlin monologue are unquestionably “speech” within the meaning of the First Amendment. It is equally clear that the Commission’s objections to the broadcast were based in part on its content. The order must therefore fall if, as Pacifica argues, the First Amendment prohibits all governmental regulation that depends on the content of speech. Our past cases demonstrate, however, that no such absolute rule is mandated by the Constitution. The classic exposition of the proposition that both the content and the context of speech are critical elements of First Amendment analysis is MR. JUSTICE HOLMES’ statement for the Court in Schenck v. United States, 249 U.S. 47, 52: “We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . .” The question in this case is whether a broadcast of patently offensive words dealing with sex and excretion may be regulated because of its content. Obscene materials have been denied the protection of the First Amendment because their content is so offensive to contemporary moral standards. Roth v. United States, 354 U.S. 476. But the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas. If there were any reason to believe that the Commission’s characterization of the Carlin monologue as offensive could be traced to its political content—or even to the fact that it satirized contemporary attitudes about four-letter words protection might be required. But that is simply not this case. These words offend for the same reasons that obscenity offends.23 Their place in the hierarchy of First Amendment values was aptly sketched by MR. JUSTICE MURPHY when he said: “[Such] utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire, 315 U.S., at 572. Although these words ordinarily lack literary, political, or scientific value, they are not entirely outside the protection of the First Amendment. Some

uses of even the most offensive words are unquestionably protected. See, e.g., Hess v. Indiana, 414 U.S. 105. Indeed, we may assume, arguendo, that this monologue would be protected in other contexts. Nonetheless, the constitutional protection accorded to a communication containing such patently offensive sexual and excretory language need not be the same in every context. C We have long recognized that each medium of expression presents special First Amendment problems. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502–503. And of all forms of communication, it is broadcasting that has received the most limited First Amendment protection. Thus, although other speakers cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an action would serve “the public interest, convenience, and necessity.” Similarly, although the First Amendment protects newspaper publishers from being required to print the replies of those whom they criticize, Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, it affords no such protection to broadcasters; on the contrary, they must give free time to the victims of their criticism. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367. The reasons for these distinctions are complex, but two have relevance to the present case. First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder. Rowan v. Post Office Dept., 397 U.S. 728. Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place. Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen’s written message might have been incomprehensible to a first grader, Pacifica’s broadcast could Freedom of Expression in Special Contexts

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have enlarged a child’s vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. We held in Ginsberg v. New York, 390 U.S. 629, that the government’s interest in the “well-being of its youth” and in supporting “parents’ claim to authority in their own household” justified the regulation of otherwise protected expression. The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting. It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction or, indeed, that this broadcast would justify a criminal prosecution. The Commission’s decision rested entirely on a nuisance rationale under which context is allimportant. The concept requires consideration of a host of variables. The time of day was emphasized by the Commission. The content of the program in which the language is used will also affect the composition of the audience, and differences between radio, television, and perhaps closed-circuit transmissions, may also be relevant. As MR. JUSTICE SUTHERLAND wrote, a “nuisance may be merely a right thing in the wrong place—like a pig in the parlor instead of the barnyard.” Euclid v. Ambler Realty Co., 272 U.S. 365, 388. We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene. The judgment of the Court of Appeals is reversed. It is so ordered. MR. JUSTICE POWELL, with whom MR. JUSTICE BLACKMUN joins, concurring in part and concurring in the judgment. I join Parts I, and C of MR. JUSTICE STEVENS’ opinion. The Court today reviews only the Commission’s holding that Carlin’s monologue was indecent “as broadcast” at two o’clock in the afternoon, and not the broad sweep of the Commission’s opinion. I also agree with much that is said in Part IV of MR. JUSTICE STEVENS’ opinion, and with its conclusion 128

that the Commission’s holding in this case does not violate the First Amendment. Because I do not subscribe to all that is said in Part IV, however, I state my views separately. I It is conceded that the monologue at issue here is not obscene in the constitutional sense. I do not think Carlin, consistently with the First Amendment, could be punished for delivering the same monologue to a live audience composed of adults who, knowing what to expect, chose to attend his performance. But it also is true that the language employed is, to most people, vulgar and offensive. It was chosen specifically for this quality, and it was repeated over and over as a sort of verbal shock treatment. The Commission did not err in characterizing the narrow category of language used here as “patently offensive” to most people regardless of age. The Court has recognized society’s right to “adopt more stringent controls on communicative materials available to youths than on those available to adults.” Erznoznik v. Jacksonville, 422 U.S. 205, 212 (1975); see also, e.g., Miller v. California, 413 U.S. 15, 36 n. 17 (1973); Ginsberg v. New York, 390 U.S. 629, 636–641 (1968); Jacobellis v. Ohio, 378 U.S. 184, 195 (1964) (opinion of BRENNAN, J.). This recognition stems in large part from the fact that “a child . . . is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees.” Ginsberg v. New York, supra, at 649–650 (STEWART, J., concurring in result). Thus, children may not be able to protect themselves from speech which, although shocking to most adults, generally may be avoided by the unwilling through the exercise of choice. At the same time, such speech may have a deeper and more lasting negative effect on a child than on an adult. For these reasons, society may prevent the general dissemination of such speech to children, leaving to parents the decision as to what speech of this kind their children shall hear and repeat: “[Constitutional] interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.” Prince v. Massachusetts, [321 U. S. 158, 166 (1944)]. The Commission properly held that the speech from which society may attempt to shield its children is not limited to that which appeals to the

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youthful prurient interest. The language involved in this case is as potentially degrading and harmful to children as representations of many erotic acts. In most instances, the dissemination of this kind of speech to children may be limited without also limiting willing adults’ access to it. Sellers of printed and recorded matter and exhibitors of motion pictures and live performances may be required to shut their doors to children, but such a requirement has no effect on adults’ access. The difficulty is that such a physical separation of the audience cannot be accomplished in the broadcast media. During most of the broadcast hours, both adults and unsupervised children are likely to be in the broadcast audience, and the broadcaster cannot reach willing adults without also reaching children. A second difference, not without relevance, is that broadcasting—unlike most other forms of communication—comes directly into the home, the one place where people ordinarily have the right not to be assaulted by uninvited and offensive sights and sounds. Erznoznik v. Jacksonville, supra, at 209; Cohen v. California, 403 U.S., at 21; Rowan v. Post Office Dept., 397 U.S. 728 (1970). Although the First Amendment may require unwilling adults to absorb the first blow of offensive but protected speech when they are in public before they turn away, see, e.g., Erznoznik, supra, at 210–211, but cf. Rosenfeld v. New Jersey, 408 U.S. 901, 903–909 (1972) (POWELL, J., dissenting), a different order of values obtains in the home. “That we are often ‘captives’ outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere.” Rowan v. Post Office Dept., supra, at 738. It is said that this ruling will have the effect of “[reducing] the adult population . . . to [hearing] only what is fit for children.” Butler v. Michigan, 352 U.S. 380, 383 (1957). This argument is not without force. The Commission certainly should consider it as it develops standards in this area. But it is not sufficiently strong to leave the Commission powerless to act in circumstances such as those in this case. The Commission’s holding does not prevent willing adults from purchasing Carlin’s record, from attending his performances, or, indeed, from reading the transcript reprinted as an appendix to the Court’s opinion. On its face, it does not prevent respondent Pacifica Foundation from broadcasting the monologue during late evening hours when fewer children are likely to be in the audience, nor from broadcasting

discussions of the contemporary use of language at any time during the day. The Commission’s holding, and certainly the Court’s holding today, does not speak to cases involving the isolated use of a potentially offensive word in the course of a radio broadcast, as distinguished from the verbal shock treatment administered by respondent here. The Commission’s order did not violate respondent’s First Amendment rights. II I do not join Part IV-B, however, because I do not subscribe to the theory that the Justices of this Court are free generally to decide on the basis of its content which speech protected by the First Amendment is most “valuable” and hence deserving of the most protection, and which is less “valuable” and hence deserving of less protection. In my view, the result in this case does not turn on whether Carlin’s monologue, viewed as a whole, or the words that constitute it, have more or less “value” than a candidate’s campaign speech. This is a judgment for each person to make, not one for the judges to impose upon him.4 MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, dissenting. I agree with MR. JUSTICE STEWART that, under Hamling v. United States, 418 U.S. 87 (1974), and United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973), the word “indecent” in 18 U.S.C. § 1464 (1976 ed.) must be construed to prohibit only obscene speech. I would, therefore, normally refrain from expressing my views on any constitutional issues implicated in this case. However, I find the Court’s misapplication of fundamental First Amendment principles so patent, and its attempt to impose its notions of propriety on the whole of the American people so misguided, that I am unable to remain silent. I For the second time in two years, see Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), the Court refuses to embrace the notion, completely antithetical to basic First Amendment values, that the degree of protection the First Amendment affords protected speech varies with the social value ascribed to that speech by five Members of this Court. Yet despite the Court’s refusal to create a sliding scale of First Amendment protection calibrated to this Court’’ Freedom of Expression in Special Contexts

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perception of the worth of a communication’s content, and despite our unanimous agreement that the Carlin monologue is protected speech, a majority of the Court1 nevertheless finds that, on the facts of this case, the FCC is not constitutionally barred from imposing sanctions on Pacifica for its airing of the Carlin monologue. This majority apparently believes that the FCC’s disapproval of Pacifica’s afternoon broadcast of Carlin’s “Dirty Words” recording is a permissible time, place, and manner regulation. Kovacs v. Cooper, 336 U.S. 77 (1949). Both the opinion of my Brother STEVENS and the opinion of my Brother POWELL rely principally on two factors in reaching this conclusion: (1) the capacity of a radio broadcast to intrude into the unwilling listener’s home, and (2) the presence of children in the listening audience. A Without question, the privacy interests of an individual in his home are substantial and deserving of significant protection. In finding these interests sufficient to justify the content regulation of protected speech, however, the Court commits two errors. First, it misconceives the nature of the privacy interests involved where an individual voluntarily chooses to admit radio communications into his home. Second, it ignores the constitutionally protected interests of both those who wish to transmit and those who desire to receive broadcasts that many—including the FCC and this Court—might find offensive. “The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.” Cohen v. California, supra, at 21. I am in wholehearted agreement with my Brethren that an individual’s right “to be let alone” when engaged in private activity within the confines of his own home is encompassed within the “substantial privacy interests” to which MR. JUSTICE HARLAN referred in Cohen, and is entitled to the greatest solicitude. Stanley v. Georgia, 394 U.S. 557 (1969). However, I believe that an individual’s actions in switching on and listening to communications transmitted over the public airways and directed to the public at large do not implicate fundamental privacy interests, even when engaged in within the home. .... 130

for unlike other intrusive modes of communication, such as sound trucks, “[the] radio can be turned off,” Lehman v. Shaker Heights, 418 U.S. 298, 302 (1974) —and with a minimum of effort. As Chief Judge Bazelon aptly observed below, “having elected to receive public air waves, the scanner who stumbles onto an offensive program is in the same position as the unsuspecting passers-by in Cohen and Erznoznik [v. Jacksonville, 422 U.S. 205 (1975)]; he can avert his attention by changing channels or turning off the set.” 181 U.S. App. D.C. 132, 149, 556 F.2d 9, 26 (1977). Whatever the minimal discomfort suffered by a listener who inadvertently tunes into a program he finds offensive during the brief interval before he can simply extend his arm and switch stations or flick the “off” button, it is surely worth the candle to preserve the broadcaster’s right to send, and the right of those interested to receive, a message entitled to full First Amendment protection. To reach a contrary balance, as does the Court, is clearly to follow MR. JUSTICE STEVENS’ reliance on animal metaphors, ante, at 750–751, “to burn the house to roast the pig.” Butler v. Michigan, 352 U.S. 380, 383 (1957). The Court’s balance, of necessity, fails to accord proper weight to the interests of listeners who wish to hear broadcasts the FCC deems offensive. It permits majoritarian tastes completely to preclude a protected message from entering the homes of a receptive, unoffended minority. B Most parents will undoubtedly find understandable as well as commendable the Court’s sympathy with the FCC’s desire to prevent offensive broadcasts from reaching the ears of unsupervised children. Unfortunately, the facial appeal of this justification for radio censorship masks its constitutional insufficiency. Although the government unquestionably has a special interest in the well-being of children and consequently “can adopt more stringent controls on communicative materials available to youths than on those available to adults,” Erznoznik v. Jacksonville, 422 U.S. 205, 212 (1975); see Paris Adult Theatre I v. Slaton, 413 U.S. 49, 106–107 (1973) (BRENNAN, J., dissenting), the Court has accounted for this societal interest by adopting a “variable obscenity” standard that permits the prurient appeal of material available to children to be assessed in terms of the sexual interests of minors. Ginsberg v. New York, 390 U.S. 629 (1968). Nevertheless, we have made it abundantly clear that “under any test of

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obscenity as to minors . . . to be obscene ‘such expression must be, in some significant way, erotic.’” 422 U.S., at 213 n. 10, quoting Cohen v. California, 403 U.S., at 20. Because the Carlin monologue is obviously not an erotic appeal to the prurient interests of children, the Court, for the first time, allows the government to prevent minors from gaining access to materials that are not obscene, and are therefore protected, as to them.It thus ignores our recent admonition that “[speech] that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” 422 U.S., at 213–214. The Court’s refusal to follow its own pronouncements is especially lamentable since it has the anomalous subsidiary effect, at least in the radio context at issue here, of making completely unavailable to adults material which may not constitutionally be kept even from children. This result violates in spades the principle of Butler v. Michigan, supra. Butler involved a challenge to a Michigan statute that forbade the publication, sale, or distribution of printed material “tending to incite minors to violent or depraved or immoral acts, manifestly tending to the corruption of the morals of youth.” 352 U.S., at 381. Nevertheless, this Court found the statute unconstitutional. Speaking for the Court, MR. JUSTICE FRANKFURTER reasoned: “The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children. It thereby arbitrarily curtails one of those liberties of the individual, now enshrined in the Due Process Clause of the Fourteenth Amendment, that history has attested as the indispensable conditions for the maintenance and progress of a free society.” 352 U.S., at 383–384. In concluding that the presence of children in the listening audience provides an adequate basis for the FCC to impose sanctions for Pacifica’s broadcast of the Carlin monologue, the opinions of my Brother POWELL, ante, at 757–758, and my Brother STEVENS, ante, at 749–750, both stress the timehonored right of a parent to raise his child as he sees fit—a right this Court has consistently been vigilant to protect. See Wisconsin v. Yoder, 406 U.S. 205 (1972); Pierce v. Society of Sisters, 268 U.S. 510 (1925). Yet this principle supports a result directly contrary to that reached by the Court. Yoder and Pierce hold that parents, not the government, have the right to make certain decisions regarding the up-

bringing of their children. As surprising as it may be to individual Members of this Court, some parents may actually find Mr. Carlin’s unabashed attitude towards the seven “dirty words” healthy, and deem it desirable to expose their children to the manner in which Mr. Carlin defuses the taboo surrounding the words. Such parents may constitute a minority of the American public, but the absence of great numbers willing to exercise the right to raise their children in this fashion does not alter the right’s nature or its existence. Only the Court’s regrettable decision does that. C As demonstrated above, neither of the factors relied on by both the opinion of my Brother POWELL and the opinion of my Brother STEVENS—the intrusive nature of radio and the presence of children in the listening audience—can, when taken on its own terms, support the FCC’s disapproval of the Carlin monologue. These two asserted justifications are further plagued by a common failing: the lack of principled limits on their use as a basis for FCC censorship. No such limits come readily to mind, and neither of the opinions constituting the Court serve to clarify the extent to which the FCC may assert the privacy and children-in-the-audience rationales as justification for expunging from the airways protected communications the Commission finds offensive. Taken to their logical extreme, these rationales would support the cleansing of public radio of any “four-letter words” whatsoever, regardless of their context. The rationales could justify the banning from radio of a myriad of literary works, novels, poems, and plays by the likes of Shakespeare, Joyce, Hemingway, Ben Jonson, Henry Fielding, Robert Burns, and Chaucer; they could support the suppression of a good deal of political speech, such as the Nixon tapes; and they could even provide the basis for imposing sanctions for the broadcast of certain portions of the Bible. My Brother STEVENS, in reaching a result apologetically described as narrow, ante, at 750, takes comfort in his observation that “[a] requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication,” ante, at 743 n. 18, and finds solace in his conviction that “[there] are few, if any, thoughts that cannot be expressed by the use of less offensive language.” Ibid. The idea that the content of a message and its potential impact on any who might Freedom of Expression in Special Contexts

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receive it can be divorced from the words that are the vehicle for its expression is transparently fallacious. A given word may have a unique capacity to capsule an idea, evoke an emotion, or conjure up an image. My Brother STEVENS also finds relevant to his First Amendment analysis the fact that “[adults] who feel the need may purchase tapes and records or go to theaters and nightclubs to hear [the tabooed] words.” Ante, at 750 n. 28. My Brother POWELL agrees: “The Commission’s holding does not prevent willing adults from purchasing Carlin’s record, from attending his performances, or, indeed, from reading the transcript reprinted as an appendix to the Court’s opinion.” Ante, at 760. The opinions of my Brethren display both a sad insensitivity to the fact that these alternatives involve the expenditure of money, time, and effort that many of those wishing to hear Mr. Carlin’s message may not be able to afford, and a naive innocence of the reality that in many cases, the medium may well be the message. III It is quite evident that I find the Court’s attempt to unstitch the warp and woof of First Amendment law in an effort to reshape its fabric to cover the patently wrong result the Court reaches in this case dangerous as well as lamentable. Yet there runs throughout the opinions of my Brothers POWELL and STEVENS another vein I find equally disturbing: a depressing inability to appreciate that in our land of cultural pluralism, there are many who think, act, and talk differently from the Members of this Court, and who do not share their fragile sensibilities. It is only an acute ethnocentric myopia that enables the Court to approve the censorship of communications solely because of the words they contain. The words that the Court and the Commission find so unpalatable may be the stuff of everyday conversations in some, if not many, of the innumerable subcultures that compose this Nation. ... In this context, the Court’s decision may be seen for what, in the broader perspective, it really is: another of the dominant culture’s inevitable efforts to force those groups who do not share its mores to conform to its way of thinking, acting, and speaking. See Moore v. East Cleveland, 431 U.S. 494, 506–511 (1977) (BRENNAN, J., concurring).

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There are specific venues that deal with sex and decency that deserve separate treatment, notably: legitimate movies, adult theatres live entertainment, and the Internet.

MOVIES AND CENSORSHIP Historically, movies had to be submitted to review boards, after which they were “licensed.” This practice has effectively disappeared because of modern doctrines about licensing, obscenity, prior restraint, and so forth. However, it is worth reviewing a bit of the history because it demonstrates the evolution of ideas about government regulation, particularly related to decency. Motion pictures, unlike books and other printed matter, were long considered entertainment and not a medium for the communication of ideas that were protected by the First Amendment. Justice Joseph McKenna stated the principle in Mutual Film Corporation v. Industrial Commission of Ohio (236 U.S. 230, 1915) when he said that the production and exhibition of motion pictures is “a business, pure and simple,” and is not “to be regarded . . . as part of the press of the country, or as organs of public opinion.” As such, and recognizing the medium’s “capacity for evil,” the Court approved state censorship of motion pictures. By 1948, however, a change in the judicial attitude on the subject was indicated in the antitrust case of United States v. Paramount Pictures, Inc. (331 U.S. 131, 1948), when Justice Douglas remarked, “We have no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment.” Four years later, in Burstyn v. Wilson (343 U.S. 495, 1952), the controversy over New York’s banning of the Italian film The Miracle put the constitutional issue squarely before the Court. The Court struck down the New York ban and in so doing overruled the Mutual precedent. “There can be no longer any doubt,” said the Court, “that motion pictures are a significant medium for the communication of ideas.” However, because the New York statute contained vague and meaningless standards, the Court found it unnecessary to rule whether censorship would be valid under a narrowly drawn statute that was directed at obscene films. The Court reemphasized the need for definitive standards in clearly drawn statutes in Kingsley International Pictures v. Regents of State University

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of New York (360 U.S. 684, 1959). In his opinion for the Court, Justice Potter Stewart said that the manner in which the state court construed the movie licensing statute “struck at the very heart of constitutionally protected liberty.” The state court had sustained a ban on the movie Lady Chatterly’s Lover because it advocated the unorthodox idea that adultery may be proper behavior under certain circumstances. While Justice Stewart was careful to indicate that this case was not an occasion to consider the scope of state power to censor movies, two concurring justices—Black and Douglas—did feel that it was such an occasion. They expressed the view that prior censorship of motion pictures was just as offensive to the First and Fourteenth Amendments as is prior censorship of newspapers and books. A full examination of the extent of state movie censorship authority came two years later in Times Film Corporation v. City of Chicago (365 U.S. 43, 1961). The case questioned the constitutionality of the Chicago movie censorship ordinance, which required that motion pictures be submitted to a censorship agency before exhibition. No issue of standards was raised. The distributor applied for a permit and paid the license fee, but he refused to submit the film Don Juan for screening by the censors. He urged on the Court an absolute privilege against prior restraint, thereby challenging the basic authority of the censor. A closely divided Court (five to four) rejected that claim and held that motion picture censorship per se was not necessarily unconstitutional. Justice Tom Clark’s majority opinion recognized the motion picture medium’s “capacity for evil” as a relevant factor “in determining the permissible scope of community control.” Consequently, he argued, since the Court had held in Burstyn that motion pictures were not “necessarily subject to the precise rules governing any other particular method of expression,” states should not be limited in the selection of the remedy they considered to be most effective to deal with the problem. In exercising such authority, however, Justice Clark warned against regulations that allowed censors unfettered discretion. Chief Justice Earl Warren, writing the major dissent (in which Justices Black, Douglas, and Brennan joined), contended that the majority’s action amounted to approval of unlimited motion picture censorship by an administrative agency and could also subject other media—newspapers, books, television, radio—to the same type of unlimited censorship.

Four years later, in Freedman v. Maryland (380 U.S. 51, 1965), the Court restricted its Times Film ruling and outlined certain specific and permissible constitutional standards that must be included in laws calling for prior submission of all films to a review board. They provide that (1) the burden of proving that the film is unprotected expression must rest on the censor, (2) only a procedure requiring a judicial determination suffices to impose a valid final restraint, and (3) any restraint imposed in advance of a final judicial determination on the merits of the case must be limited to the preservation of the status quo for the shortest fixed period that is compatible with sound judicial resolution. These standards were reaffirmed in Teitel Film Corporation v. Cusak (390 U.S. 139, 1968), in which the Court invalidated the Chicago motion picture censorship ordinance because of the lengthy administration licensing process (fifty to seventy-five days) that was required before initiation of judicial proceedings. In Interstate Circuit, Inc. v. Dallas (390 U.S. 676, 1968), the Court held void for vagueness a city ordinance that empowered a board to ban from exhibition for persons under sixteen years of age motion pictures in which the portrayal of brutality and sex would tend to incite crime and encourage sexual promiscuity among youth. Justice Thurgood Marshall, who wrote the Court’s opinion, pointed out that the inclusion of such undefined terms as “sacrilegious” and “sexual promiscuity” rendered the ordinance fatally defective. Such loose language, said Marshall, left the censors free to apply their own mores in regulating the film fare of others.

ZONING AND SECONDARY EFFECTS Cities engage in zoning all the time. As discussed in the previous chapter, zoning is often seen as a content neutral, time-place-and-manner restriction. Can cities zone or implement regulations that target adult entertainment businesses, adult bookstores, and especially adult theaters in ways that avoid problems with content-based discrimination as discussed in Chapter 3? By definition, the city must look at the content in order to label it “adult.” Restrictive zoning ordinances were at issue in Young v. American Mini Theatres, Inc. (427 U.S. 50, 1976). In this case Detroit attempted to restrict or “zone out” commercial establishments in certain neighborhoods, in this instance, an adult movie

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house. Justice Stevens, for the five-to-four majority, stated that the city’s interests in planning and regulating the use of commercial property to avoid deterioration of neighborhoods were sufficient to outweigh the theater operator’s claims that the restrictions acted as a prior restraint upon expression protected by the First Amendment. In the 1986 case of City of Renton v. Playtime Theatres (495 U.S. 41), the Court reinforced American Mini Theatres and upheld a city ordinance prohibiting any “adult motion picture theater” from locating “within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or within one mile of any school.” Although the ordinance facially discriminated against adult theaters, Justice Rehnquist, who spoke for the seven-to-two Court majority, found that the ordinance was a content-neutral regulation in that it could be “justified without reference to the content of the regulated speech.” The major concern of the city, as Rehnquist saw it, was not an attempt to suppress messages of particular films shown in such theaters, but rather to prevent the “secondary effects” of adult theaters, such as a decrease in retail trade, decline in property values, increase in crime, and overall urban decay. The use of this secondaryeffects approach to find the ordinance content-neutral represented a departure from American Mini Theatres and was strongly criticized by the dissenters (Justices Brennan and Marshall), who saw such secondary effects as a pretext for banning films based on content.

NUDE DANCING FEATURED CASE

Barnes v. Glen Theatre, Inc. The parameters of other modes of expression, such as nude dancing, pose important First Amendment questions. Recall the discussion in Chapter 3 about conduct vs. speech. Is nude dancing simply conduct that is done for profit, or is it a form of artistic expression? In Schad et al. v. Borough of Mount Ephraim, 452 U.S. 61, 1981, the Court suggested that nude dancing “is not without its First Amendment protections.” After considering several other cases that involved regulating bars and liquor in locations where nude dancing occurred, the

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Court took the case of Barnes v. Glen Theatre, Inc., 501 U.S. 560, 1991. Due to the nature of the plurality opinion, the Court may have only clouded the picture. The Court upheld Indiana’s public indecency statute, which prohibited totally nude dancing. The statute required that the dancers wear pasties and a G-string. Chief Justice Rehnquist, writing for a three-person plurality, said, “Nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.” Applying the O’Brien test from the jurisprudence on symbolic speech to analyze whether an “important or substantial” governmental interest existed, the chief justice held that Indiana had just such an important and substantial interest in promoting public morality and that the statute was narrowly tailored to further that governmental interest. In contrast, Justice Scalia wrote a concurring opinion arguing that the statute should not be subjected to First Amendment scrutiny at all. He argued that the statute was not directed at expressive conduct because it regulated public nudity, not dancing. In this respect, there was no reason for the Court to get involved in the business of assessing governmental interests. In dissent, Justice White rejected the argument that expressive conduct was not being regulated and concluded that the statute should be subject to the highest level of First Amendment scrutiny. Barnes, however, did not resolve the issue. In 2000, the Court considered the case of City of Erie v. Pap’s A.M., 529 U.S. 277. This time Justice O’Connor wrote for a four-person plurality. The city had banned public nudity, though the target appeared to be closing such establishments. The Court upheld the ban, but O’Connor’s opinion used the secondaryeffects rationale that was proffered in Renton. The dissents by Justices Stevens and Souter highly criticized this use of the secondary-effects test and suggested that there was no proof that nude dancing had led to increases in crime or any other problematic secondary effects. Many critics have argued that the secondaryeffects rationale is a way around many First Amendment safeguards. It allows government to claim that it is not regulating speech at all, and therefore it does not face many of the requirements for narrow tailoring and other such safeguards.

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BARNES V. GLEN THEATRE, INC. 501 U.S. 560 (1991) CHIEF JUSTICE REHNQUIST announced the judgment of the Court and delivered an opinion. Respondents are two establishments in South Bend, Indiana, that wish to provide totally nude dancing as entertainment, and individual dancers who are employed at these establishments. They claim that the First Amendment’s guarantee of freedom of expression prevents the State of Indiana from enforcing its public indecency law to prevent this form of dancing. We reject their claim. ... Respondent Glen Theatre, Inc., is an Indiana corporation with a place of business in South Bend. Its primary business is supplying so-called adult entertainment through written and printed materials, movie showings, and live entertainment at an enclosed “bookstore.” The live entertainment at the “bookstore” consists of nude and seminude performances and showings of the female body through glass panels. Customers sit in a booth and insert coins into a timing mechanism that permits them to observe the live nude and seminude dancers for a period of time. One of Glen Theatre’s dancers, Gayle Ann Marie Sutro, has danced, modeled, and acted professionally for more than fifteen years, and in addition to her performances at the Glen Theatre, can be seen in a pornographic movie at a nearby theater. Respondents sued in the United States District Court for the Northern District of Indiana to enjoin the enforcement of the Indiana public indecency statute (1988), asserting that its prohibition against complete nudity in public places violated the First Amendment. The District Court originally granted respondents’ prayer for an injunction, finding that the statute was facially overbroad. The Court of Appeals for the Seventh Circuit reversed, deciding that previous litigation with respect to the statute in the Supreme Court of Indiana and this Court precluded the possibility of such a challenge, and remanded to the District Court in order for the

plaintiffs to pursue their claim that the statute violated the First Amendment as applied to their dancing. On remand, the District Court concluded that “the type of dancing these plaintiffs wish to perform is not expressive activity protected by the Constitution of the United States,” and rendered judgment in favor of the defendants. The case was again appealed to the Seventh Circuit, and a panel of that court reversed the District Court, holding that the nude dancing involved here was expressive conduct protected by the First Amendment. The Court of Appeals then heard the case en banc, and the court rendered a series of comprehensive and thoughtful opinions. The majority concluded that nonobscene nude dancing performed for entertainment is expression protected by the First Amendment, and that the public indecency statute was an improper infringement of that expressive activity because its purpose was to prevent the message of eroticism and sexuality conveyed by the dancers. We granted certiorari, and now hold that the Indiana statutory requirement that the dancers in the establishments involved in this case must wear pasties and a G-string does not violate the First Amendment. Several of our cases contain language suggesting that nude dancing of the kind involved here is expressive conduct protected by the First Amendment. In Doran v. Salem Inn, Inc. (1975), we said: “[A]lthough the customary ‘barroom’ type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue (1972) that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances.” In Schad v. Borough of Mount Ephraim, we said that “[f]urthermore, as the state courts in this case recognized, nude dancing is not without its First Amendment protections from official regulation.” These statements support the conclusion of the Court of Appeals that nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of

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the First Amendment, though we view it as only marginally so. This, of course, does not end our inquiry. We must determine the level of protection to be afforded to the expressive conduct at issue, and must determine whether the Indiana statute is an impermissible infringement of that protected activity. Indiana, of course, has not banned nude dancing as such, but has proscribed public nudity across the board. The Supreme Court of Indiana has construed the Indiana statute to preclude nudity in what are essentially places of public accommodation such as the Glen Theatre and the Kitty Kat Lounge. In such places, respondents point out, minors are excluded and there are no non-consenting viewers. Respondents contend that while the state may license establishment such as the ones involved here, and limit the geographical area in which they do business, it may not in any way limit the performance of the dances within them without violating the First Amendment. The petitioner contends, on the other hand, that Indiana’s restriction on nude dancing is a valid “time, place or manner” restriction under cases such as Clark v. Community for Creative Non-Violence (1984). The “time, place, or manner” test was developed for evaluating restrictions on expression taking place on public property which had been dedicated as a “public forum,” Ward v. Rock against Racism (1989), although we have on at least one occasion applied it to conduct occurring on private property. See Renton v. Playtime Theatres, Inc. (1986). In Clark we observed that this test has been interpreted to embody much the same standards as those set forth in United States v. O’Brien (1968), and we turn, therefore, to the rule enunciated in O’Brien. O’Brien burned his draft card on the steps of the South Boston courthouse in the presence of a sizable crowd, and was convicted of violating a statute that prohibited the knowing destruction or mutilation of such a card. He claimed that his conviction was contrary to the First Amendment because his act was a “symbolic speech”—expressive conduct. The court rejected his contention that symbolic speech is entitled to full First Amendment protection, saying: [E]ven on the assumption that the alleged communicative element in O’Brien’s conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when “speech” and “nonspeech” elements are combined in the same course 136

of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Applying the four-part O’Brien test enunciated above, we find that Indiana’s public indecency statute is justified despite its incidental limitations on some expressive activity. The public indecency statute is clearly within the constitutional power of the State and furthers substantial governmental interests. It is impossible to discern, other than from the text of the statute, exactly what governmental interest the Indiana legislators had in mind when they enacted this statute, for Indiana does not record legislative history, and the state’s highest court has not shed additional light on the statute’s purpose. Nonetheless, the statute’s purpose of protecting societal order and morality is clear from its text and history. Public indecency statutes of this sort are of ancient origin, and presently exist in at least forty-seven States. . . . Public indecency statutes such as the one before us reflect moral disapproval of people appearing in the nude among strangers in public places. This public indecency statute follows a long line of earlier Indiana statutes banning all public nudity. The history of Indiana’s public indecency statute shows that it predates barroom nude dancing and was enacted as a general prohibition. ... This and other public indecency statutes were designed to protect morals and public order. The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals, and we have upheld such a basis for legislation. In Paris Adult Theatre I v. Slaton (1973), we said: In deciding Roth [v. United States (1957)], this Court implicitly accepted that a legislature could

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legitimately act on such a conclusion to protect “the social interest in order and morality.” [Id.], at 485. (Emphasis omitted.) And in Bowers v. Hardwick (1986), we said: The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.

Thus, the public indecency statute furthers a substantial government interest in protecting order and morality. This interest is unrelated to the suppression of free expression. Some may view restricting nudity on moral grounds as necessarily related to expression. We disagree. It can be argued, of course, that almost limitless types of conduct—including appearing in the nude in public—are “expressive,” and in one sense of the word this is true. People who go about in the nude in public may be expressing something about themselves by so doing. But the court rejected this expansive notion of “expressive conduct” in O’Brien saying: We cannot accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea. 391 U.S. at 376. And in Dallas v. Stanglin, we further observed: It is possible to find some kernel of expression in almost every activity a person undertakes—for example, walking down the street or meeting one’s friends at a shopping mall—but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. We think the activity of these dance-hall patrons coming together to engage in recreational dancing—is not protected by the First Amendment.

Respondents contend that even though prohibiting nudity in public generally may not be related to suppressing expression, prohibiting the performance of nude dancing is related to expression because the state seeks to prevent its erotic message. Therefore, they reason that the application of the Indiana statute to the nude dancing in this case violates the First Amendment, because it fails the third part of the O’Brien test, viz.: the governmental interest must be unrelated to the suppression of free expression. But we do not think that when Indiana applies its statute to the nude dancing in these nightclubs it is proscribing nudity because of the erotic message conveyed by the dancers. Presumably numerous other

erotic performances are presented at these establishments and similar clubs without any interference from the state, so long as the performers wear a scant amount of clothing. Likewise, the requirement that the dancers don pasties and a G-string does not deprive the dance of whatever erotic message it conveys; it simply makes the message slightly less graphic. The perceived evil that Indiana seeks to address is not erotic dancing, but public nudity. The appearance of people of all shapes, sizes and ages in the nude at a beach, for example, would convey little if any erotic message, yet the state still seeks to prevent it. Public nudity is the evil the state seeks to prevent, whether or not it is combined with expressive activity. This conclusion is buttressed by a reference to the facts of O’Brien. An act of Congress provided that anyone who knowingly destroyed a selective service registration certificate committed an offense. O’Brien burned his certificate on the steps of the South Boston Courthouse to influence others to adopt his anti-war beliefs. This Court upheld his conviction, reasoning that the continued availability of issued certificates served a legitimate and substantial purpose in the administration of the selective service system. O’Brien’s deliberate destruction of his certificate frustrated this purpose and “for this non-communicative aspect of his conduct, and for nothing else, he was convicted.” It was assumed that O’Brien’s act in burning the certificate had a communicative element in it sufficient to bring into play the First Amendment, but it was for the non-communicative element that he was prosecuted. So here with the Indiana statute; while the dancing to which it was applied had a communicative element, it was not the dancing that was prohibited, but simply its being done in the nude. The fourth part of the O’Brien test requires that the incidental restriction on First Amendment freedom be no greater than is essential to the furtherance of the governmental interest. As indicated in the discussion above, the governmental interest served by the text of the prohibition is societal disapproval of nudity in public places and among strangers. The statutory prohibition is not a means to some greater end, but an end in itself. It is without cavil that the public indecency statute is “narrowly tailored”; Indiana’s requirement that the dancers wear at least pasties and a G-string is modest, and the bare minimum necessary to achieve the state’s purpose. The judgment of the Court of Appeals accordingly is Reversed. Freedom of Expression in Special Contexts

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JUSTICE SCALIA, concurring in the judgment: I agree that the judgment of the Court of Appeals must be reversed. In my view, however, the challenged regulation must be upheld, not because it survives some lower level of First Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at expression, it is not subject to First-Amendment scrutiny at all. I Indiana’s public indecency statute provides: (a) A person who knowingly or intentionally, in a public place: (1) engages in sexual intercourse; (2) engages in deviate sexual conduct; (3) appears in a state of nudity; or (4) fondles the genitals of himself or another person; commits public indecency, a Class A misdemeanor. (b) “Nudity” means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state. Ind. Code Sec. 35-45-4-1 (1988). On its face, this law is not directed at expression in particular. As Judge Easterbrook put it in his dissent: “Indiana does not regulate dancing. It regulates public nudity. . . . Almost the entire domain of Indiana’s statute is unrelated to expression, unless we view nude beaches and topless hot dog vendors as speech.” (EASTERBROOK, J., dissenting). The intent to convey a “message of eroticism” (or any other message) is not a necessary element of the statutory offense of public indecency; nor does one commit that statutory offense by conveying the most explicit “message of eroticism,” so long as he does not commit any of the four specified acts in the process. Indiana’s statute is in the line of a long tradition of laws against public nudity, which have never been thought to run afoul of traditional understanding of “the freedom of speech.” Public indecency— including public nudity—has long been an offense at common law. Indiana’s first public nudity statute (1831), predated by many years the appearance of nude barroom dancing. It was general in scope, directed at all public nudity, and not just at public nude expression; and all succeeding statutes, down to the present one, have been the same. ... 138

The dissent confidently asserts . . . that the purpose of restricting nudity in public places in general is to protect nonconsenting parties from offense; and argues that since only consenting, admission-paying patrons see respondents dance, that purpose cannot apply and the only remaining purpose must relate to the communicative elements of the performance. Perhaps the dissenters believe that “offense to others” ought to be the only reason for restricting nudity in public places generally, but there is no basis for thinking that our society has ever shared that Thoreauvian “you-may-do-what-you-like-so-long-as-it-does-notinjure-someone-else” beau ideal—much less for thinking that it was written into the Constitution. The purpose of Indiana’s nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another, even if there were not an offended innocent in the crowd. Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, “contra bonos mores,” i.e., immoral. In American society, such prohibitions have included, for example, sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy. While there may be great diversity of view on whether various of these prohibitions should exist (though I have found few ready to abandon, in principle, all of them) there is no doubt that, absent specific constitutional protection for the conduct involved, the Constitution does not prohibit them simply because they regulate “morality.” See Bowers v. Hardwick, 478 U.S. 186, 196 (1986) (upholding prohibition of private homosexual sodomy enacted solely on “the presumed belief of a majority of the electorate in [the jurisdiction] that homosexual sodomy is immoral and unacceptable”). . . . The purpose of the Indiana statute, as both its text and the manner of its enforcement demonstrate, is to enforce the traditional moral belief that people should not expose their private parts indiscriminately, regardless of whether those who see them are disedified. Since that is so, the dissent has no basis for positing that, where only thoroughly edified adults are present, the purpose must be repression of communication. ... II Since the Indiana regulation is a general law not specifically targeted at expressive conduct, its

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application to such conduct does not in my view implicate the First Amendment. ... This is not to say that the First Amendment affords no protection to expressive conduct. Where the government prohibits conduct precisely because of its communicative attributes, we hold the regulation unconstitutional. See, e.g., United States v. Eichman, 496 U.S. 310 (1990) (burning flag); Texas v. Johnson, 491 U.S. 397 (1989) (same); Spence v. Washington, 418 U.S. 405 (1974) (defacing flag); Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) (wearing black arm bands); Brown v. Louisiana, 383 U.S. 131 (1966) (participating in silent sit-in); Stromberg v. California, 283 U.S. 359 (1931) (flying a red flag). In each of the foregoing cases, we explicitly found that suppressing communication was the object of the regulation of conduct. Where that has not been the case, however—where suppression of communicative use of the conduct was merely the incidental effect of forbidding the conduct for other reasons— we have allowed the regulation to stand. O’Brien, 391 U.S., at 377 (law banning destruction of draft card upheld in application against cardburning to protest war); FTC v. Superior Court Trial Lawyers Assn., 493 U.S. 411 (1990) (Sherman Act upheld in application against restraint of trade to protest low pay); cf. United States v. Albertini, 472 U.S. 675, 678–688 (1985) (rule barring petitioner from military base upheld in application against entrance on base to protest war); Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (rule barring sleeping in parks upheld in application against persons engaging in such conduct to dramatize plight of homeless). ... III While I do not think the plurality’s conclusions differ greatly from my own, I cannot entirely endorse its reasoning. The plurality purports to apply to this general law, insofar as it regulates this allegedly expressive conduct, an intermediate level of First Amendment scrutiny: the government interest in the regulation must be “important or substantial.” As I have indicated, I do not believe such a heightened standard exists. I think we should avoid wherever possible, moreover, a method of analysis that

requires judicial assessment of the “importance” of government interest—and especially of government interests in various aspects of morality. Neither of the cases that the plurality cites to support the “importance” of the State’s interest here is in point. Paris Adult Theatre I v. Slaton and Bowers v. Hardwick did uphold laws prohibiting private conduct based on concerns of decency and morality; but neither opinion held that those concerns were particularly “important” or “substantial,” or amounted to anything more than a rational basis for regulation. Slaton involved an exhibition which, since it was obscene and at least to some extent public, was unprotected by the First Amendment; the State’s prohibition could therefore be invalidated only if it had no rational basis. We found that the State’s “right . . . to maintain a decent society” provided a “legitimate” basis for regulation—even as to obscene material viewed by consenting adults. In Bowers, we held that since homosexual behavior is not a fundamental right, a Georgia law prohibiting private homosexual intercourse needed only a rational basis in order to comply with the Due Process Clause. Moral opposition to homosexuality, we said, provided that rational basis. I would uphold the Indiana statute on precisely the same ground: moral opposition to nudity supplies a rational basis for its prohibition, and since the First Amendment has no application to this case no more than that is needed. ... Indiana may constitutionally enforce its prohibition of public nudity even against those who choose to use public nudity as a means of communication. The State is regulating conduct, not expression, and those who choose to employ conduct as a means of expression must make sure that the conduct they select is not generally forbidden. For these reasons, I agree that the judgment should be reversed. JUSTICE SOUTER, concurring in the judgment: Not all dancing is entitled to First Amendment protection as expressive activity. ... Although such performance dancing is inherently expressive, nudity per se is not. It is a condition, not an activity, and the voluntary assumption of that condition, without more, apparently expresses nothing beyond the view that the condition is somehow Freedom of Expression in Special Contexts

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appropriate to the circumstances. But every voluntary act implies some such idea, and the implication is thus so common and minimal that calling all voluntary activity expressive would reduce the concept of expression to the point of the meaningless. A search for some expression beyond the minimal in the choice to go nude will often yield nothing: a person may choose nudity, for example, for maximum sunbathing. But when nudity is combined with expressive activity, its stimulative and attractive value certainly can enhance the force of expression, and a dancer’s acts in going from clothed to nude, as in a strip-tease, are integrated into the dance and its expressive function. Thus I agree with the plurality and the dissent that an interest in freely engaging in the nude dancing at issue here is subject to a degree of First Amendment protection. I also agree with the plurality that the appropriate analysis to determine the actual protection required by the First Amendment is the four-part enquiry described in United States v. O’Brien, for judging the limits of appropriate state action burdening expressive acts as distinct from pure speech or representation. I nonetheless write separately to rest my concurrence in the judgment, not on the possible sufficiency of society’s moral views to justify the limitations at issue, but on the State’s substantial interest in combating the secondary effects of adult entertainment establishments of the sort typified by respondents’ establishments. It is, of course, true that this justification has not been articulated by Indiana’s legislature or by its courts. As the plurality observes, “Indiana does not record legislative history, and the state’s highest court has not shed additional light on the statute’s purpose.” While it is certainly sound in such circumstances to infer general purposes “of protecting societal order and morality . . . from [the statute’s] text and history,” I think that we need not so limit ourselves in identifying the justification for the legislation at issue here, and may legitimately consider petitioners’ assertion that the statute is applied to nude dancing because such dancing “encourag[es] prostitution, increas[es] sexual assaults, and attract[s] other criminal activity.” Brief for Petitioners 37. This asserted justification for the statute may not be ignored merely because it is unclear to what extent this purpose motivated the Indiana Legislature in enacting the statute. Our appropriate focus is not an empirical enquiry into the actual intent of the 140

enacting legislature, but rather the existence or not of a current governmental interest in the service of which the challenged application of the statute may be constitutional. Cf. McGowan v. Maryland, 366 U.S. 420 (1961). At least as to the regulation of expressive conduct, “[w]e decline to void [a statute] essentially on the ground that it is unwise legislation which [the legislature] had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a ‘wiser’ speech about it.” O’Brien. In my view, the interest asserted by petitioners in preventing prostitution, sexual assault, and other criminal activity, although presumably not a justification for all applications of the statute, is sufficient under O’Brien to justify the State’s enforcement of the statute against the type of adult entertainment at issue here. ... JUSTICE WHITE, joined by JUSTICES MARSHALL, BLACKMUN, and STEVENS, dissenting: The first question presented to us in this case is whether nonobscene nude dancing performed as entertainment is expressive conduct protected by the First Amendment. The Court of Appeals held that it is, observing that our prior decisions permit no other conclusion. Not surprisingly, then, the Court now concedes that “nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment. . . .” This is no more than recognizing, as the Seventh Circuit observed, that dancing is an ancient art form and “inherently embodies the expression and communication of ideas and emotions.” Having arrived at the conclusion that nude dancing performed as entertainment enjoys First Amendment protection, the Court states that it must “determine the level of protection to be afforded to the expressive conduct at issue, and must determine whether the Indiana statute is an impermissible infringement of that protected activity.” For guidance, the Court turns to United States v. O’Brien (1968), which held that expressive conduct could be narrowly regulated or forbidden in pursuit of an important or substantial governmental interest that is unrelated to the content of the expression. The Court finds that the Indiana statute satisfies the O’Brien test in all respects. The Court acknowledges that it is impossible to discern the exact state interests which the Indiana

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legislature had in mind when it enacted the Indiana statute, but the Court nonetheless concludes that it is clear from the statute’s text and history that the law’s purpose is to protect “societal order and morality.” The Court goes on to conclude that Indiana’s statute “was enacted as a general prohibition,” (emphasis added), on people appearing in the nude among strangers in public places. The Court then points to cases in which we upheld legislation based on the State’s police power, and ultimately concludes that the Indiana statute “furthers a substantial government interest in protecting order and morality.” The Court also holds that the basis for banning nude dancing is unrelated to free expression and that it is narrowly drawn to serve the State’s interest. The Court’s analysis is erroneous in several respects. Both the Court and JUSTICE SCALIA in his concurring opinion overlook a fundamental and critical aspect of our cases upholding the States’ exercise of their police powers. None of the cases they rely upon, including O’Brien and Bowers v. Hardwick (1986), involved anything less than truly general proscriptions on individual conduct. In O’Brien, for example, individuals were prohibited from destroying their draft cards at any time and in any place, even in completely private places such as the home. Likewise, in Bowers, the State prohibited sodomy, regardless of where the conduct might occur, including the home, as was true in that case. The same is true of cases like Employment Division, Oregon Dept. of Human Resources v. Smith (1990), which, though not applicable here because it did not involve any claim that the peyote users were engaged in expressive activity, recognized that the State’s interests in preventing the use of illegal drugs extends even into the home. By contrast, in this case Indiana does not suggest that its statute applies to, or could be applied to, nudity wherever it occurs, including the home. We do not understand the Court or JUSTICE SCALIA to be suggesting that Indiana could constitutionally enact such an intrusive prohibition, nor do we think such a suggestion would be tenable in light of our decision in Stanley v. Georgia (1969), in which we held that States could not punish the mere possession of obscenity in the privacy of one’s own home. We are told by the Attorney General of Indiana that, in State v. Baysinger (1979), the Indiana Supreme Court held that the statute at issue here cannot and does not prohibit nudity as a part of some larger form of expression meriting protection when

the communication of ideas is involved. Petitioners also state that the evils sought to be avoided by applying the statute in this case would not obtain in the case of theatrical productions, such as Salome or Hair. Neither is there any evidence that the State has attempted to apply the statute to nudity in performances such as plays, ballets or operas. “No arrests have ever been made for nudity as part of a play or ballet.” Thus, the Indiana statute is not a general prohibition of the type we have upheld in the prior cases. As a result, the Court’s and JUSTICE SCALIA’s simple references to the State’s general interest in promoting societal order and morality is not sufficient justification for a statute which concededly reaches a significant amount of protected expressive activity. Instead, in applying the O’Brien test, we are obligated to carefully examine the reasons the State has chosen to regulate this expressive conduct in a less than general statute. In other words, when the State enacts a law which draws a line between expressive conduct which is regulated and nonexpressive conduct of the same type which is not regulated, O’Brien places the burden on the State to justify the distinctions it has made. Closer inquiry as to the purpose of the statute is surely appropriate. Legislators do not just randomly select certain conduct for proscription; they have reasons for doing so and those reasons illuminate the purpose of the law that is passed. Indeed, a law may have multiple purposes. The purpose of forbidding people from appearing nude in parks, beaches, hot dog stands, and like public places is to protect others from offense. But that could not possibly be the purpose of preventing nude dancing in theaters and barrooms since the viewers are exclusively consenting adults who pay money to see these dances. The purpose of the proscription in these contexts is to protect the viewers from what the State believes is the harmful message that nude dancing communicates. This is why Clark v. Community for Creative Non-Violence (1984), is of no help to the State: “In Clark . . . the damage to the parks was the same whether the sleepers were camping out for fun, were in fact homeless, or wished by sleeping in the park to make a symbolic statement on behalf of the homeless.” (POSNER, J., concurring). That cannot be said in this case: the perceived damage to the public interest caused by appearing nude on the streets or in the parks, as I have said, is not what the State seeks to avoid in preventing nude dancing in theaters and taverns. There the perceived Freedom of Expression in Special Contexts

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harm is the communicative aspect of the erotic dance. As the State now tells us, and as JUSTICE SOUTER agrees, the State’s goal in applying what it describes as its “content-neutral” statute to the nude dancing in this case is “deterrence of prostitution, sexual assaults, criminal activity, degradation of women, and other activities which break down family structure.” The attainment of these goals, however, depends on preventing an expressive activity. The Court nevertheless holds that the third requirement of the O’Brien test, that the governmental interest be unrelated to the suppression of free expression, is satisfied because in applying the statute to nude dancing, the State is not “proscribing nudity because of the erotic message conveyed by the dancers.” The Court suggests that this is so because the State does not ban dancing that sends an erotic message; it is only nude erotic dancing that is forbidden. The perceived evil is not erotic dancing but public nudity, which may be prohibited despite any incidental impact on expressive activity. This analysis is transparently erroneous. In arriving at its conclusion, the Court concedes that nude dancing conveys an erotic message and concedes that the message would be muted if the dancers wore pasties and G-strings. Indeed, the emotional or erotic impact of the dance is intensified by the nudity of the performers. As Judge Posner argues in his thoughtful concurring opinion in the Court of Appeals, the nudity of the dancer is an integral part of the emotions and thought that a nude dancing performance evokes. The sight of a fully clothed, or even a partially clothed, dancer generally will have a far different impact on a spectator than that of a nude dancer, even if the same dance is performed. The nudity is itself an expressive component of the dance, not merely incidental “conduct.” We have previously pointed out that “‘[n]udity alone’ does not place otherwise protected material outside the mantle of the First Amendment.” Schad v. Mt. Ephraim (1981). This being the case, it cannot be that the statutory prohibition is unrelated to expressive conduct. Since the State permits the dancers to perform if they wear pasties and G-strings but forbids nude dancing, it is precisely because of the distinctive, expressive content of the nude dancing performances at issue in this case that the State seeks to apply the statutory prohibition. It is only because nude dancing performances may generate emotions and feelings of eroticism and sensuality among the spectators that the State seeks to regulate such expressive activity, apparently on 142

the assumption that creating or emphasizing such thoughts and ideas in the minds of the spectators may lead to increased prostitution and the degradation of women. But generating thoughts, ideas, and emotions is the essence of communication. The nudity element of nude dancing performances cannot be neatly pigeonholed as mere “conduct” independent of any expressive component of the dance. That fact dictates the level of First Amendment protection to be accorded the performances at issue here. In Texas v. Johnson (1989), the Court observed: “Whether Johnson’s treatment of the flag violated Texas law thus depended on the likely communicative impact of his expressive conduct. . . . We must therefore subject the State’s asserted interest in preserving the special symbolic character of the flag to ‘the most exacting scrutiny.’ Boos v. Barry [(1980)].” Content-based restriction “will be upheld only if narrowly drawn to accomplish a compelling governmental interest.” United States v. Grace (1983); Sable Communications of California, Inc. v. FCC (1989). Nothing could be clearer from our cases. That the performances in the Kitty Kat Lounge may not be high art, to say the least, and may not appeal to the Court, is hardly an excuse for distorting and ignoring settled doctrine. The Court’s assessment of the artistic merits of nude dancing performances should not be the determining factor in deciding this case. In the words of JUSTICE HARLAN, “it is largely because governmental officials cannot make principled decisions in this area that the Constitution leaves matters of taste and style so largely to the individual.” Cohen v. California (1971). “[W]hile the entertainment afforded by a nude ballet at Lincoln Center to those who can pay the price may differ vastly in content (as viewed by judges) or in quality (as viewed by critics), it may not differ in substance from the dance viewed by the person who . . . wants some ‘entertainment’ with his beer or shot of rye.” The Court and JUSTICE SOUTER do not go beyond saying that the state interests asserted here are important and substantial. But even if there were compelling interests, the Indiana statute is not narrowly drawn. If the State is genuinely concerned with prostitution and associated evils, as JUSTICE SOUTER seems to think, or the type of conduct that was occurring in California v. LaRue (1972), it can adopt restrictions that do not interfere with the expressiveness of nonobscene nude dancing performances. For instance, the State could perhaps require that, while

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performing, nude performers remain at all times a certain minimum distance from spectators, that nude entertainment be limited to certain hours, or even that establishments providing such entertainment be dispersed throughout the city. Cf. Renton v. Playtime Theatres, Inc. (1986). Likewise, the State clearly has the authority to criminalize prostitution and obscene behavior. Banning an entire category of expressive activity, however, generally does not satisfy the narrow tailoring requirement of strict First Amendment scrutiny. See Frisby v. Schultz (1988). Furthermore, if nude dancing in barrooms, as compared with other establishments, is the most worrisome problem, the State could invoke its Twenty-first Amendment powers and impose appropriate regulation. As I see it, our cases require us to affirm absent a compelling state interest supporting the statute. Neither the Court nor the State suggest that the statute could withstand scrutiny under that standard. JUSTICE SCALIA’s views are similar to those of the Court and suffer from the same defects. The Justice asserts that a general law barring specified conduct does not implicate the First Amendment unless the purpose of the law is to suppress the expressive quality of the forbidden conduct, and that, absent such purpose, First Amendment protections are not triggered simply because the incidental effect of the law is to proscribe conduct that is unquestionably expressive. The application of the Justice’s proposition to this case is simple to state: The statute at issue is a general law banning nude appearances in public places, including barrooms and theaters. There is no showing that the purpose of this general law was to regulate expressive conduct; hence, the First Amendment is irrelevant and nude dancing in theaters and barrooms may be forbidden, irrespective of the expressiveness of the dancing. As I have pointed out, however, the premise for the Justice’s position—that the statute is a general law of the type our cases contemplate—is nonexistent in this case. Reference to JUSTICE SCALIA’s own hypothetical makes this clear. We agree with JUSTICE SCALIA that the Indiana statute would not permit 60,000 consenting Hoosiers to expose themselves to each other in the Hoosierdome. No one can doubt, however, that those same 60,000 Hoosiers would be perfectly free to drive to their respective homes all across Indiana and, once there, to parade around, cavort, and revel in the nude for hours in front of

relatives and friends. It is difficult to see why the State’s interest in morality is any less in that situation, especially if, as JUSTICE SCALIA seems to suggest, nudity is inherently evil, but clearly the statute does not reach such activity. As we pointed out earlier, the State’s failure to enact a truly general proscription requires closer scrutiny of the reasons for the distinctions the State has drawn. As explained previously, the purpose of applying the law to the nude dancing performances in respondents’ establishments is to prevent their customers from being exposed to the distinctive communicative aspects of nude dancing. That being the case, JUSTICE SCALIA’s observation is fully applicable here: “Where a government prohibits conduct precisely because of its communicative attributes, we hold the regulation unconstitutional.” The O’Brien decision does not help JUSTICE SCALIA. Indeed, his position, like the Court’s, would eviscerate the O’Brien test. Employment Division, Oregon Dept. of Human Resources v. Smith (1990), is likewise not on point. The Indiana law, as applied to nude dancing, targets the expressive activity itself; in Indiana nudity in a dancing performance is a crime because of the message such dancing communicates. In Smith, the use of drugs was not criminal because the use was part of or occurred within the course of an otherwise protected religious ceremony, but because a general law made it so and was supported by the same interests in the religious context as in others. Accordingly, I would affirm the judgment of the Court of Appeals, and dissent from this Court’s judgment.

INTERNET FEATURED CASE

Reno v. American Civil Liberties Union In the Tony-Award–winning play Avenue Q, there is a song entitled “The Internet Is for Porn.” That may be a bit of an overstatement, but there can be no doubt that pornography accounts for a huge amount of traffic on the Internet. Not surprisingly, there have been many efforts to regulate pornography and obscenity on the Internet. There are many issues. One prominent one is whether pornography on the Internet is more analogous to pornography on broadcast media or pornography in print media. The former allows far more regulation than the latter. Is Pacifica and the Freedom of Expression in Special Contexts

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radio the appropriate analogy, or is the situation more akin to seeking out an adult theater? Regarding tests for obscenity, what are the relevant community standards? Would it be the community of the viewer, the producer, or the Internet provider? Is viewing obscenity in the privacy of one’s home protected? If so, can government nonetheless shut down the suppliers? In Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the Court examined the Communications Decency Act of 1996. It had several provisions, but many of them banned the transmission of obscene or indecent material that would likely be accessible to a minor. The Court declared that the banning of indecent material (as opposed to obscene material) was unconstitutional. In response, Congress passed the Child Online Protection Act

which tried to protect children from exposure to sexual materials. Much of the act was directed at operators of commercial websites. The Court accepted the government’s goal of protecting children as a compelling interest, but it thought that it had not used means that were sufficiently narrowly tailored. (Ashcroft v. American Civil Liberties Union, 542 U.S. 656) In U.S. v. American Library Association 539 U.S. 194 (2003), the Court upheld a requirement that libraries receiving federal funds had to install filters to block sexually explicit materials. The Internet raises all sorts of new issues for the First Amendment that are just beginning to be answered, but as with so many things related to the First Amendment, it is sex that is shaping much of the debate.

RENO V. AMERICAN CIVIL LIBERTIES UNION 117 S. Ct. 2329 (1997) JUSTICE STEVENS delivered the opinion of the Court. At issue is the constitutionality of two statutory provisions enacted to protect minors from “indecent” and “patently offensive” communications on the Internet. Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three judge District Court that the statute abridges “the freedom of speech” protected by the First Amendment. The District Court made extensive findings of fact, most of which were based on a detailed stipulation prepared by the parties. See 929 F. Supp. 824, 830–849 (ED Pa. 1996). The findings describe the character and the dimensions of the Internet, the availability of sexually explicit material in that medium, and the problems confronting age verification for recipients of Internet communications. Because those findings provide the underpinnings for the legal issues, we begin with a summary of the undisputed facts. The Internet . . . The Internet is “a unique and wholly new medium of worldwide human communication.” 144

The Internet has experienced “extraordinary growth.” The number of “host” computers—those that store information and relay communications— increased from about 300 in 1981 to approximately 9,400,000 by the time of the trial in 1996. Roughly 60 percent of these hosts are located in the United States. About 40 million people used the Internet at the time of trial, a number that is expected to mushroom to 200 million by 1999. Individuals can obtain access to the Internet from many different sources, generally hosts themselves or entities with a host affiliation. Most colleges and universities provide access for their students and faculty; many corporations provide their employees with access through an office network; many communities and local libraries provide free access; and an increasing number of storefront “computer coffee shops” provide access for a small hourly fee. Several major national “online services” such as America Online, CompuServe, the Microsoft Network, and Prodigy offer access to their own extensive proprietary networks as well as a link to the much larger resources of the Internet. These commercial online services had almost 12 million individual subscribers at the time of trial.

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Anyone with access to the Internet may take advantage of a wide variety of communication and information retrieval methods. These methods are constantly evolving and difficult to categorize precisely. But, as presently constituted, those most relevant to this case are electronic mail (“e mail”), automatic mailing list services (“mail exploders,” sometimes referred to as “listservs”), “newsgroups,” “chat rooms,” and the “World Wide Web.” All of these methods can be used to transmit text; most can transmit sound, pictures, and moving video images. Taken together, these tools constitute a unique medium—known to its users as “cyberspace”— located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet. . . . The Web is thus comparable, from the readers’ viewpoint, to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services. From the publishers’ point of view, it constitutes a vast platform from which to address and hear from a world wide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can “publish” information. Publishers include government agencies, educational institutions, commercial entities, advocacy groups, and individuals. Publishers may either make their material available to the entire pool of Internet users, or confine access to a selected group, such as those willing to pay for the privilege. “No single organization controls any membership in the Web, nor is there any centralized point from which individual Web sites or services can be blocked from the Web.” Sexually Explicit Material Sexually explicit material on the Internet includes text, pictures, and chat and “extends from the modestly titillating to the hardest core.” These files are created, named, and posted in the same manner as material that is not sexually explicit, and may be accessed either deliberately or unintentionally during the course of an imprecise search. “Once a provider posts its content on the Internet, it cannot prevent that content from entering any community.” . . . Some of the communications over the Internet that originate in foreign countries are also sexually explicit. Though such material is widely available, users seldom encounter such content accidentally. “A

document’s title or a description of the document will usually appear before the document itself . . . and in many cases the user will receive detailed information about a site’s content before he or she need take the step to access the document. Almost all sexually explicit images are preceded by warnings as to the content.” For that reason, the “odds are slim” that a user would enter a sexually explicit site by accident. Unlike communications received by radio or television, “the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. A child requires some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended.” Systems have been developed to help parents control the material that may be available on a home computer with Internet access. A system may either limit a computer’s access to an approved list of sources that have been identified as containing no adult material, it may block designated inappropriate sites, or it may attempt to block messages containing identifiable objectionable features. “Although parental control software currently can screen for certain suggestive words or for known sexually explicit sites, it cannot now screen for sexually explicit images.” Nevertheless, the evidence indicates that “a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children will soon be available.” Age Verification The problem of age verification differs for different uses of the Internet. The District Court categorically determined that there “is no effective way to determine the identity or the age of a user who is accessing material through e mail, mail exploders, newsgroups or chat rooms.” . . . Moreover, even if it were technologically feasible to block minors’ access to newsgroups and chat rooms containing discussions of art, politics or other subjects that potentially elicit “indecent” or “patently offensive” contributions, it would not be possible to block their access to that material and “still allow them access to the remaining content, even if the overwhelming majority of that content was not indecent.” . . . The Telecommunications Act of 1996, Pub. L. 104–104, 110 Stat. 56, was an unusually important legislative enactment. As stated on the first of its 103 pages, its primary purpose was to reduce regulation Freedom of Expression in Special Contexts

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and encourage “the rapid deployment of new telecommunications technologies.” The major components of the statute have nothing to do with the Internet; they were designed to promote competition in the local telephone service market, the multichannel video market, and the market for over the air broadcasting. . . . Title V—known as the “Communications Decency Act of 1996” (CDA)—contains provisions that were either added in executive committee after the hearings were concluded or as amendments offered during floor debate on the legislation. An amendment offered in the Senate was the source of the two statutory provisions challenged in this case. They are informally described as the “indecent transmission” provision and the “patently offensive display” provision. The first, 47 U.S. C. A. § 223(a) (Supp. 1997), prohibits the knowing transmission of obscene or indecent messages to any recipient under eighteen years of age. It provides in pertinent part: (a) Whoever— (1) in interstate or foreign communications— ... (B) by means of a telecommunications device knowingly— (i) makes, creates, or solicits, and (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under eighteen years of age, regardless of whether the maker of such communication placed the call or initiated the communication; ... (2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined under Title 18, or imprisoned not more than two years, or both. The second provision, § 223(d), prohibits the knowing sending or displaying of patently offensive messages in a manner that is available to a person under eighteen years of age. It provides: (d) Whoever— (1) in interstate or foreign communications knowingly— (A) uses an interactive computer service to send to a specific person or persons under eighteen years of age, or 146

(B) uses any interactive computer service to display in a manner available to a person under eighteen years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or (2) knowingly permits any telecommunications facility under such person’s control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined under Title 18, or imprisoned not more than two years, or both.

The breadth of these prohibitions is qualified by two affirmative defenses. See § 223(e)(5). One covers those who take “good faith, reasonable, effective, and appropriate actions” to restrict access by minors to the prohibited communications. § 223(e)(5)(A). The other covers those who restrict access to covered material by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number or code. § 223(e)(5)(B). . . . [T]he Government contends that the CAD is plainly constitutional under three of our prior decisions: (1) Ginsberg v. New York, 390 U.S. 629 (1968); (2) FCC v. Pacifica Foundation, 438 U.S. 726 (1978); and (3) Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). A close look at these cases, however, raises—rather than relieves—doubts concerning the constitutionality of the CDA. In Ginsberg, we upheld the constitutionality of a New York statute that prohibited selling to minors under seventeen years of age material that was considered obscene as to them even if not obscene as to adults. We rejected the defendant’s broad submission that “the scope of the constitutional freedom of expression secured to a citizen to read or see material concerned with sex cannot be made to depend on whether the citizen is an adult or a minor.” 390 U.S., at 636. In rejecting that contention, we relied not only on the State’s independent interest in the well being of its youth, but also on our consistent recognition of the principle that “the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.” In four important respects, the statute upheld in Ginsberg was narrower than the CDA. First, we noted in Ginsberg that “the prohibition against sales to minors does not bar parents who so

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desire from purchasing the magazines for their children.” Id., at 639. Under the CDA, by contrast, neither the parents’ consent—nor even their participation— in the communication would avoid the application of the statute. Second, the New York statute applied only to commercial transactions, id., at 647, whereas the CDA contains no such limitation. Third, the New York statute cabined its definition of material that is harmful to minors with the requirement that it be “utterly without redeeming social importance for minors.” Id., at 646. The CDA fails to provide us with any definition of the term “indecent” as used in § 223(a)(1) and, importantly, omits any requirement that the “patently offensive” material covered by § 223(d) lack serious literary, artistic, political, or scientific value. Fourth, the New York statute defined a minor as a person under the age of seventeen, whereas the CDA, in applying to all those under eighteen years, includes an additional year of those nearest majority. In Pacifica, we upheld a declaratory order of the Federal Communications Commission, holding that the broadcast of a recording of a 12-minute monologue entitled “Filthy Words” that had previously been delivered to a live audience “could have been the subject of administrative sanctions.” 438 U.S., at 730 (internal quotations omitted). The Commission had found that the repetitive use of certain words referring to excretory or sexual activities or organs “in an afternoon broadcast when children are in the audience was patently offensive” and concluded that the monologue was indecent “as broadcast.” Id., at 735. . . . After rejecting respondent’s statutory arguments, we confronted its two constitutional arguments: (1) that the Commission’s construction of its authority to ban indecent speech was so broad that its order had to be set aside even if the broadcast at issue was unprotected; and (2) that since the recording was not obscene, the First Amendment forbade any abridgement of the right to broadcast it on the radio. In the portion of the lead opinion not joined by JUSTICES POWELL and BLACKMUN, the plurality stated that the First Amendment does not prohibit all governmental regulation that depends on the content of speech. Id., at 742–743. Accordingly, the availability of constitutional protection for a vulgar and offensive monologue that was not obscene depended on the context of the broadcast. Id., at 744–748. Relying on the premise that “of all forms of communication” broadcasting had received the most limited First

Amendment protection, id., at 748–749, the Court concluded that the ease with which children may obtain access to broadcasts, “coupled with the concerns recognized in Ginsberg,” justified special treatment of indecent broadcasting. Id., at 749–750. As with the New York statute at issue in Ginsberg, there are significant differences between the order upheld in Pacifica and the CDA. First, the order in Pacifica, issued by an agency that had been regulating radio stations for decades, targeted a specific broadcast that represented a rather dramatic departure from traditional program content in order to designate when—rather than whether—it would be permissible to air such a program in that particular medium. The CDA’s broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with the unique characteristics of the Internet. . . . Finally, the Commission’s order applied to a medium which as a matter of history had “received the most limited First Amendment protection,” id., at 748, in large part because warnings could not adequately protect the listener from unexpected program content. The Internet, however, has no comparable history. Moreover, the District Court found that the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material. In Renton, we upheld a zoning ordinance that kept adult movie theaters out of residential neighborhoods. The ordinance was aimed, not at the content of the films shown in the theaters, but rather at the “secondary effects”—such as crime and deteriorating property values—that these theaters fostered: “‘It is th[e] secondary effect which these zoning ordinances attempt to avoid, not the dissemination of “offensive” speech.’” 475 U.S., at 49 (quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, n. 34 (1976)). According to the Government, the CDA is constitutional because it constitutes a sort of “cyberzoning” on the Internet. But the CDA applies broadly to the entire universe of cyberspace. And the purpose of the CDA is to protect children from the primary effects of “indecent” and “patently offensive” speech, rather than any “secondary” effect of such speech. Thus, the CDA is a content based blanket restriction on speech, and, as such, cannot be “properly analyzed as a form of time, place, and manner regulation.” 475 U.S., at 46. See also Boos v. Barry, 485 U.S. 312, 321 (1988) (“Regulations that focus on the direct impact of speech on its audience” Freedom of Expression in Special Contexts

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are not properly analyzed under Renton); Forsyth County v. Nationalist Movement, 505 U.S. 123, 134 (1992) (“Listeners’ reaction to speech is not a content neutral basis for regulation”). These precedents, then, surely do not require us to uphold the CDA and are fully consistent with the application of the most stringent review of its provisions. In Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975), we observed that “[e]ach medium of expression . . . may present its own problems.” Thus, some of our cases have recognized special justifications for regulation of the broadcast media that are not applicable to other speakers, see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969); FCC v. Pacifica Foundation, 438 U.S. 726 (1978). In these cases, the Court relied on the history of extensive government regulation of the broadcast medium, see, e.g., Red Lion, 395 U.S., at 399–400; the scarcity of available frequencies at its inception, see, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 637–638 (1994); and its “invasive” nature, see Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 128 (1989). Those factors are not present in cyberspace. Neither before nor after the enactment of the CDA have the vast democratic fora of the Internet been subject to the type of government supervision and regulation that has attended the broadcast industry. Moreover, the Internet is not as “invasive” as radio or television. The District Court specifically found that “[c]ommunications over the Internet do not ‘invade’ an individual’s home or appear on one’s computer screen unbidden. Users seldom encounter content ‘by accident.’” 929 F. Supp., at 844 (finding 88). It also found that “[a]lmost all sexually explicit images are preceded by warnings as to the content,” and cited testimony that “‘odds are slim’ that a user would come across a sexually explicit sight by accident.” Ibid. We distinguished Pacifica in Sable, 492 U.S., at 128, on just this basis. In Sable, a company engaged in the business of offering sexually oriented prerecorded telephone messages (popularly known as “dial a porn”) challenged the constitutionality of an amendment to the Communications Act that imposed a blanket prohibition on indecent as well as obscene interstate commercial telephone messages. We held that the statute was constitutional insofar as it applied to obscene messages but invalid as applied to indecent messages. In attempting to justify the 148

complete ban and criminalization of indecent commercial telephone messages, the Government relied on Pacifica, arguing that the ban was necessary to prevent children from gaining access to such messages. We agreed that “there is a compelling interest in protecting the physical and psychological well being of minors” which extended to shielding them from indecent messages that are not obscene by adult standards, 492 U.S., at 126, but distinguished our “emphatically narrow holding” in Pacifica because it did not involve a complete ban and because it involved a different medium of communication, id., at 127. We explained that “the dial it medium requires the listener to take affirmative steps to receive the communication.” Id., at 127–128. “Placing a telephone call,” we continued, “is not the same as turning on a radio and being taken by surprise by an indecent message.” Id., at 128. Finally, unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a “scarce” expressive commodity. It provides relatively unlimited, low cost capacity for communication of all kinds. . . . Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for purposes of the First Amendment. For instance, each of the two parts of the CDA uses a different linguistic form. The first uses the word “indecent,” 47 U.S.C.A. § 223(a) (Supp. 1997), while the second speaks of material that “in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs,” § 223(d). Given the absence of a definition of either term, this difference in language will provoke uncertainty among speakers about how the two standards relate to each other and just what they mean. Could a speaker confidently assume that a serious discussion about birth control practices, homosexuality, the First Amendment issues raised by the Appendix to our Pacifica opinion, or the consequences of prison rape would not violate the CDA? This uncertainty undermines the likelihood that the CDA has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials. The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a content based regulation of speech. The vagueness of such a

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regulation raises special First Amendment concerns because of its obvious chilling effect on free speech. See, e.g., Gentile v. State Bar of Nev., 501 U.S. 1030, 1048–1051 (1991). Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators with penalties including up to two years in prison for each act of violation. The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images. See, e.g., Dombrowski v. Pfister, 380 U.S. 479, 494 (1965). As a practical matter, this increased deterrent effect, coupled with the “risk of discriminatory enforcement” of vague regulations, poses greater First Amendment concerns than those implicated by the civil regulation reviewed in Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. (1996). The Government argues that the statute is no more vague than the obscenity standard this Court established in Miller v. California, 413 U.S. 15 (1973). But that is not so. In Miller, this Court reviewed a criminal conviction against a commercial vendor who mailed brochures containing pictures of sexually explicit activities to individuals who had not requested such materials. Id., at 18. Having struggled for some time to establish a definition of obscenity, we set forth in Miller the test for obscenity that controls to this day: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Id., at 24 (internal quotation marks and citations omitted).

Because the CDA’s “patently offensive” standard (and, we assume arguendo, its synonymous “indecent” standard) is one part of the three prong Miller test, the Government reasons, it cannot be unconstitutionally vague. The Government’s assertion is incorrect as a matter of fact. The second prong of the Miller test—the purportedly analogous standard—contains a critical requirement that is omitted from the CDA: that the proscribed material be “specifically defined by the applicable state law.” This requirement reduces the vagueness inherent in the open ended term “patently offensive” as used in the CDA. Moreover, the Miller

definition is limited to “sexual conduct,” whereas the CDA extends also to include (1) “excretory activities” as well as (2) “organs” of both a sexual and excretory nature. The Government’s reasoning is also flawed. Just because a definition including three limitations is not vague, it does not follow that one of those limitations, standing by itself, is not vague. Each of Miller’s additional two prongs—(1) that, taken as a whole, the material appeal to the “prurient” interest, and (2) that it “lac[k] serious literary, artistic, political, or scientific value”—critically limits the uncertain sweep of the obscenity definition. The second requirement is particularly important because, unlike the “patently offensive” and “prurient interest” criteria, it is not judged by contemporary community standards. See Pope v. Illinois, 481 U.S. 497, 500 (1987). This “societal value” requirement, absent in the CDA, allows appellate courts to impose some limitations and regularity on the definition by setting, as a matter of law, a national floor for socially redeeming value. The Government’s contention that courts will be able to give such legal limitations to the CDA’s standards is belied by Miller’s own rationale for having juries determine whether material is “patently offensive” according to community standards: that such questions are essentially ones of fact. In contrast to Miller and our other previous cases, the CDA thus presents a greater threat of censoring speech that, in fact, falls outside the statute’s scope. Given the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger provides further reason for insisting that the statute not be overly broad. The CDA’s burden on protected speech cannot be justified if it could be avoided by a more carefully drafted statute. We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve. . . . In arguing that the CDA does not so diminish adult communication, the Government relies on the Freedom of Expression in Special Contexts

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incorrect factual premise that prohibiting a transmission whenever it is known that one of its recipients is a minor would not interfere with adult to adult communication. The findings of the District Court make clear that this premise is untenable. . . . The District Court found that at the time of trial existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults. The Court found no effective way to determine the age of a user who is accessing material through e mail, mail exploders, newsgroups, or chat rooms. 929 F. Supp., at 845 (findings 90–94). As a practical matter, the Court also found that it would be prohibitively expensive for noncommercial—as well as some commercial—speakers who have Web sites to verify that their users are adults. Id., at 845–848 (findings 95–116). These limitations must inevitably curtail a significant amount of adult communication on the Internet. By contrast, the District Court found that “[d]espite its limitations, currently available user based software suggests that a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children will soon be widely available.” Id., at 842 (finding 73) (emphases added). The breadth of the CDA’s coverage is wholly unprecedented. . . . It may also extend to discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalogue of the Carnegie Library. . . . Similarly, a parent who sent his seventeen year old college freshman information on birth control via e mail could be incarcerated even though neither he, his child, nor anyone in their home community, found the material “indecent” or “patently offensive,” if the college town’s community thought otherwise. . . . As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship. For the foregoing reasons, the judgment of the district court is affirmed. It is so ordered. 150

JUSTICE O’CONNOR, joined by CHIEF JUSTICE REHNQUIST, concurring in the judgment in part and dissenting in part: I write separately to explain why I view the Communications Decency Act of 1996 (CDA) as little more than an attempt by Congress to create “adult zones” on the Internet. Our precedent indicates that the creation of such zones can be constitutionally sound. Despite the soundness of its purpose, however, portions of the CDA are unconstitutional because they stray from the blueprint our prior cases have developed for constructing a “zoning law” that passes constitutional muster. Appellees bring a facial challenge to three provisions of the CDA. The first, which the Court describes as the “indecency transmission” provision, makes it a crime to knowingly transmit an obscene or indecent message or image to a person the sender knows is under 18 years old. 47 U.S.C.A. § 223(a)(1)(B) (May 1996 Supp.). What the Court classifies as a single “‘patently offensive display’” provision, see ante, at 11, is in reality two separate provisions. The first of these makes it a crime to knowingly send a patently offensive message or image to a specific person under the age of eighteen (“specific person” provision). § 223(d)(1)(A). The second criminalizes the display of patently offensive messages or images “in a[ny] manner available” to minors (“display” provision). § 223(d)(1)(B). None of these provisions purports to keep indecent (or patently offensive) material away from adults, who have a First Amendment right to obtain this speech. Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989) (“Sexual expression which is indecent but not obscene is protected by the First Amendment”). Thus, the undeniable purpose of the CDA is to segregate indecent material on the Internet into certain areas that minors cannot access. See S. Conf. Rep. No. 104–230, p. 189 (1996) (CDA imposes “access restrictions . . . to protect minors from exposure to indecent material”). The creation of “adult zones” is by no means a novel concept. States have long denied minors access to certain establishments frequented by adults. States have also denied minors access to speech deemed to be “harmful to minors.” The Court has previously sustained such zoning laws, but only if they respect the First Amendment rights of adults and minors. That is to say, a zoning law is valid if (i) it does not unduly restrict adult access to the material; and (ii) minors have no First Amendment right to read or

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view the banned material. As applied to the Internet as it exists in 1997, the “display” provision and some applications of the “indecency transmission” and “specific person” provisions fail to adhere to the first of these limiting principles by restricting adults’ access to protected materials in certain circumstances. Unlike the Court, however, I would invalidate the provisions only in those circumstances. . . . The electronic world is fundamentally different. Because it is no more than the interconnection of electronic pathways, cyberspace allows speakers and listeners to mask their identities. Cyberspace undeniably reflects some form of geography; chat rooms and Web sites, for example, exist at fixed “locations” on the Internet. Since users can transmit and receive messages on the Internet without revealing anything about their identities or ages, see Lessig, supra, at 901, however, it is not currently possible to exclude persons from accessing certain messages on the basis of their identity. . . . Although the prospects for the eventual zoning of the Internet appear promising, I agree with the Court that we must evaluate the constitutionality of the CDA as it applies to the Internet as it exists today. Ante, at 36. Given the present state of cyberspace, I agree with the Court that the “display” provision cannot pass muster. Until gateway technology is available throughout cyberspace, and it is not in 1997, a speaker cannot be reasonably assured that the speech he displays will reach only adults because

it is impossible to confine speech to an “adult zone.” Thus, the only way for a speaker to avoid liability under the CDA is to refrain completely from using indecent speech. But this forced silence impinges on the First Amendment right of adults to make and obtain this speech and, for all intents and purposes, “reduce[s] the adult population [on the Internet] to reading only what is fit for children.” Butler, 352 U.S., at 383. As a result, the “display” provision cannot withstand scrutiny. Accord, Sable Communications, 492 U.S., at 126–131; Bolger v. Youngs Drug Products Corp., 463 U.S., at 73–75. The “indecency transmission” and “specific person” provisions present a closer issue, for they are not unconstitutional in all of their applications. . . . Thus, the constitutionality of the CDA as a zoning law hinges on the extent to which it substantially interferes with the First Amendment rights of adults. Because the rights of adults are infringed only by the “display” provision and by the “indecency transmission” and “specific person” provisions as applied to communications involving more than one adult, I would invalidate the CDA only to that extent. Insofar as the “indecency transmission” and “specific person” provisions prohibit the use of indecent speech in communications between an adult and one or more minors, however, they can and should be sustained. The Court reaches a contrary conclusion, and from that holding I respectfully dissent.

COMMERCIAL SPEECH AND CORPORATE SPEECH

and ultimately convicted under a Virginia statute that prohibited all advertising or other dissemination of information having the effect of encouraging an abortion. The Supreme Court of Virginia ruled that because the speech was commercial in nature it was not protected by rights covering noncommercial speech. Moreover, the state court noted that Virginia had a particularly strong interest in regulating speech that might affect the health of its citizens. In the case of Bigelow v. Virginia (421 U.S. 809, 1975), a sevento-two Court majority held that speech cannot be denied constitutional protection solely because of its commercial form or because it relates to commercial activity. The Court said, “the fact that the particular advertisement in appellant’s newspaper had commercial aspects or reflected the advertiser’s commercial interest did not negate all First Amendment guarantees.” Noting the criteria of the “public interest”

For a long time, commercial speech was not protected by the First Amendment. In Valentine v. Chrestensen (316 U.S. 52, 1942), a case that involved a city ordinance that banned the distribution of handbills or other advertising matter on city streets, the Court held that “the Constitution imposes no restraint on government as respects purely commercial advertising.” It reaffirmed this position in 1951 in Breard v. Alexandria, in which it upheld a ban on door-to-door salesmen. But in 1975, things changed. Jeffrey Bigelow, managing editor of a Virginia newspaper, published an advertisement for a New York abortion referral service, stating, “Abortions are now legal in New York. . . . There is no residency requirement. . . .” Bigelow was charged

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content of the advertisement and the legality of the underlying commercial activity, Justice Blackmun concluded for the majority that Bigelow possessed a strong claim for protection. Moreover, the defendant’s status as a member of the press “augmented” the strength of the speech interest. The Court went on to say that it was an error for the Virginia court to conclude that “advertising, as such, was entitled to no First Amendment protection.” The Court recognized the state’s particular interest in the health care of its citizenry but concluded that Virginia could not “bar a citizen of another State from disseminating information about an activity that is legal in that State.” In the following term, the Court decided Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (425 U.S. 748, 1976). In this case the Court ruled that pharmacists could not be constitutionally restricted from advertising prices of prescription drugs. Rules to regulate “time, place, and manner” of the advertisements, or to prohibit “false or misleading” or “deceptive” advertisements would be acceptable. Justice Blackmun made a case for the importance or commercial speech: Those whom the suppression of prescription drug price information hit the hardest are the poor, the sick, and particularly the aged . . .When drug prices vary as strikingly as they do, information as to who is charging what becomes more than a convenience. It could mean the alleviation of physical pain or the enjoyment of basic necessities. Generalizing, society also may have a strong interest in the free flow of commercial information. . . . So long as we preserve a predominantly free enterprise economy, the allocation of our resources in large measure will be made through numerous private economic decisions. It is a matter of the public interest that those decisions, in the aggregate, be intelligent and well informed. To this end, the free flow of commercial information is indispensable. . . . it is also indispensable to the formation of intelligent opinions as to how that system ought to be regulated or altered.

The Court noted that the government may have other important interests that justify regulation. In this case and subsequent cases it has said that false and deceptive advertising is not protected nor is the advertising of illegal activities. A decision of the Supreme Court in 1980 (Central Hudson Gas and Electric Corporation v. Public Service Commission, 447 U.S. 557) established the basic tests for regulation of commercial speech. 152

Justice Powell, who spoke for the Court in Central Hudson, stated that the Constitution “accords a lesser protection to commercial speech than to other constitutionally guaranteed forms of expression,” but that such speech should receive protection. He proffered the following test: . . . At the outset we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

The Court’s application of its test has, at times, been confusing. Generally, protection for commercial speech has been greatly enhanced, but the Court has also recognized government interests that outweigh the right to advertise. For example, in a 1986 ruling (Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico), the Court upheld a Puerto Rican law that forbids advertisements that invite Puerto Rican citizens to gamble legally in casinos because of its substantial interest in discouraging gambling. Yet in Greater New Orleans Broadcasting Association, Inc. v. United States (527 U.S. 173, 1999) it overturned a federal law that prohibited casinos from advertising. In 44 Liquormart, Inc. v. Rhode Island (517 U.S. 484, 1996), the Court refused to let stand a state law that prohibited price advertising of alcoholic beverages when the government argued that it had a substantial interest in promoting temperance. One can certainly distinguish these cases, but one can also claim inconsistency. An issue of particular importance in explaining the outcomes seems to be how narrowly tailored the means of regulation are to achieve the government’s purpose. As one examines the ever-increasing number of cases involving commercial speech, it is interesting to see the extent to which the Court takes seriously the government’s asserted interest and how it evaluates the tailoring of the means. As the information explosion continues, especially via the Internet, and as questionable marketing practices proliferate as they have recently, new issues will arise. The question is whether these issues are old wine in new bottles (if so, legal principles will need little modification), or whether everything

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is going to be fundamentally different. Will even the concept of what is commercial change? What about First Amendment protection for commercial entities that are seeking to engage in political speech? In Consolidated Edison Company of New York, Inc. v. Public Service Commission of New York (447 U.S. 530, 1980), the Court found invalid a New York Public Service Commission order that prohibited public utility companies from including in monthly bills inserts discussing controversial issues of public policy. Justice Powell, who spoke for the Court majority, found the prohibition order to be a direct infringement on freedom of speech protected by the First and Fourteenth Amendments. Powell warned of the First Amendment’s hostility to such content-based regulations, which in effect allow government the choice of selecting permissible subjects for public debate. Nor did he find that the prohibition order met any of the requirements in which government regulation of speech is constitutionally permissible. In Pacific Gas and Electric Co. v. Public Utilities Commission of California (475 U.S. 1, 1986), the Court also protected corporate free-speech rights, but in this instance the Court held that corporate interests have a right not to associate with speech with which they disagree. For some time, Pacific Gas had included a newsletter in its monthly billing envelopes. A public interest consumer group asked the Public Utilities Commission to forbid Pacific Gas from using its billing envelopes to distribute the newsletter, which contained political editorials. The Public Utilities Commission responded by ordering Pacific Gas to allow the consumer group access to “extra space” so as to include in the billing envelopes a greater variety of views. It was this order that the Court overturned. In a plurality opinion for four members of the Court, Justice Powell indicated that the First Amendment protects not only the right to speak but also the right of individuals not to associate with speech with which they disagree. There have been other cases dealing with corporate speech. The first important case in this area was First National Bank of Boston v. Bellotti (435 U.S. 765, 1978), which dealt with contributions to a political campaign. It and other such cases are discussed in the next section, because the regulation of contributions and expenditures in political campaigns are regulated by complex campaign financing laws that apply to individuals and corporations.

MONEY AS SPEECH In a democracy, there are few goals more important than assuring that elections are free and fair. Not only is it important for elections and government officials to be free from corruption, but the people must perceive that elections are fair and that government officials are not for sale. Simple enough, except that another central tenet of democracy is that there must be a robust exchange of ideas in order to govern well and for people to choose their representatives. Money is necessary for the exchange of ideas and for election to office. Money also can be a source of real and perceived corruption. Obviously, regulating money in politics has First Amendment implications. There is a long-standing concern that money in politics, especially in elections, can pose problems. The federal and state governments have long had laws banning things that are actually corrupting, such as bribery, as well as laws to avoid the perception of corruption. Why worry about appearances if there is not actually corruption? Think about the following. In many states, judges are elected. If one party in a case has been a large contributor to a judge’s campaign and the opposing party has not, or has contributed to the judge’s opponent, it might raise concerns about impartial justice regardless of whether the judge was actually influenced by the contribution. Worries about money are not limited to corruption or perceptions of corruption. As the costs of elections have skyrocketed, other potential problems have arisen. Politicians in many races now must raise extraordinary amounts of money, so much so that many claim that they must spend more time fund-raising than doing their job. Elections have become so expensive that if a candidate does not have the money, he or she often cannot get out a message. The issue of regulating money in elections has been with us for centuries, but it took on a new level of importance in the 1970s and has been a very contentious constitutional issue since. In response to scandals revealed during the Watergate hearings, including public disclosures of illegal campaign contributions in the 1972 presidential election, Congress passed the Campaign Finance Law of 1974. The legislation placed limits on campaign contributions and expenditures, called for public disclosure of the names of contributors to political campaigns, and provided for matching federal grants to finance presidential primary campaigns, national party conventions, and Freedom of Expression in Special Contexts

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presidential elections. It also set up a Federal Election Commission (FEC) that had authority to implement the new statute. Soon after its passage, Senator James Buckley (R., NY) and former Senator Eugene McCarthy (D., MN), a third-party candidate in the 1976 elections, charged that the law gave favored status to the two major political parties to the detriment of candidates from third or minor parties. Subsequently, they challenged the constitutionality of the statute, which eventuated in the Supreme Court decision in Buckley v. Valeo (424 U.S. 1, 1976). The Court upheld some provisions of the law and voided others. For example, the Court upheld provisions that placed limits on campaign contributions, despite arguments that such provisions violated free speech guarantees of the First Amendment. The Court reasoned that: “the contribution provisions, along with those covering disclosure, are appropriate legislative weapons against the reality or appearance of improper influence stemming from the dependence of candidates on large campaign contributions, and the ceilings imposed accordingly serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion.”

But the Court found that ceilings on campaign expenditures—independent expenditures by individuals and groups—, and on the amount that candidates themselves could spend on their campaigns from their personal funds were clear violations of the First Amendment. These provisions, said the Court, “place substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in protected political expression, restrictions that the First Amendment cannot tolerate.” The Court distinguished the First Amendment implications of campaign spending and contributions by arguing that: “expenditure ceilings impose significantly more severe restrictions on protected freedom of political expression and association than do its limitations on financial contributions.” . . .“a restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached . . . This is because virtually every means of communicating in today’s mass society requires the expenditure of money.” 154

At the same time, the Court found that “a limitation upon the amount that any one person or group may contribute to a candidate or political committee entails only a marginal restriction upon the contributor’s ability to engage in free communication. . . . [The limits do not] infringe upon the contributor’s freedom to discuss candidates and issues.” In response to another defense of the statute, the Court did not find persuasive the asserted interest of “equalizing the relative ability of individuals and groups to influence the outcome of elections.” Said the Court: “[T]he concept that the government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment, which was designed to ‘secure the widest possible dissemination of information from diverse and antagonistic sources’ and to ‘assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people’.”

In a related decision in 1985 (Federal Election Commission v. National Conservative Political Action Committee, 470 U.S. 480), the Court in a seven-to-two ruling declared unconstitutional provisions of the Presidential Campaign Funds Act that placed a $1000 limit on the amount that political committees could spend on behalf of a candidate. The Court found crucial the determination that the expenditures in this case “were ‘independent’ in that they were not made at the request of or in coordination with the official Reagan election campaign committee or any of its agents.” Justice Rehnquist, who spoke for the Court, said that “there can be no doubt that the expenditures at issue . . . produce speech at the core of the First Amendment.” To allow the “protection of views” while forbidding the expenditures of more than $1000 to present them, he reasoned, “is much like allowing a speaker in a public hall to express his views while denying him the use of an amplifying system.” Many decisions have followed Buckley, but in essence they have upheld the major reasoning in the opinion, especially as it relates to distinctions between expenditures and contributions. The Buckley opinion has been criticized from all directions. Many people argue that the distinction between contributions vs. expenditures is indefensible. If money can be effectively equated to speech, then why should the contributor be denied a full exercise of her speech rights? If the state has an interest in maintaining the integrity of elections, in fact and in appearance, expenditures as well as contributions

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can pose problems. This is especially true when the expenditure is by persons or groups other than the candidate. Though such expenditures are supposed to be independent, they might obligate candidates in the same way that contributions do. And then there are those who believe that the cost of elections and requirements of fund-raising are corroding the very foundations of how our system is supposed to work. The matter of corporate spending and influence has been a particular area of concern, especially given the vast concentration of wealth of some corporations. President Theodore Roosevelt in his annual message to Congress in 1905 urged that “All contributions by corporations to any political committee or for any political purpose should be forbidden by law.” Campaign finance laws have restricted corporations more than individuals, and while such restrictions have often been upheld, there have been exceptions. In First National Bank of Boston v. Bellotti (435 U.S. 765, 1978), a Massachusetts law that prohibited corporate spending to influence voting in state referenda elections was found to violate the First Amendment. In its opinion, the Court noted that the First Amendment makes no distinction among speakers in the context of referendum campaigns, and consequently, government could not restrict corporate speech in such contexts. But the Court did suggest that since corporate spending in candidate elections could pose greater threats of corruption, it might as a result be appropriate to allow greater regulation of corporate speech. Rightly or wrongly decided, Buckley and its progeny have made it very difficult to pass meaningful campaign finance reform. One major effort at campaign finance did pass Congress, The Bipartisan Campaign Finance Reform Act of 2002, more commonly known as McCain–Feingold. It was directed mainly at addressing loopholes that had arisen with regard to soft money and issue advertisements. Soft money is money that is raised and spent by political parties. It was not limited originally, so it became a way for contributors to get around contribution limits. Issue advertisements were also seen as a way around regulation. Expenditures on advertisements for candidates had all sorts of requirements, but issue advertisements did not. Advertisements began appearing that were clearly presented on behalf of a candidate, but so long as they did not specifically endorse a candidate, they avoided much regulation. McCain–Feingold addressed these loopholes in various ways, and the Supreme Court upheld the key provisions in

McConnell v. Federal Election Commission (540 U.S. 93, 2003). However, this case and the most meaningful parts of McCain–Feingold were short-lived. Much of what was upheld in McConnell was overturned in Citizens United v. FEC _______(2010). Citizens United removed most restrictions on corporate and union expenditures except for disclosure requirements. The Opinion of the Court provoked a strong dissent and also provoked much discussion off the Court. Opponents decry the opinion and claim that it open the floodgates for money to enter the political system, especially from corporations. They reject the claim that corporations have the same First Amendment rights as individuals. Moreover, they argue that there are compelling concerns about the integrity of elections that justify some speech regulation. Proponents argue that the case has finally removed untenable restrictions on corporate speech that cannot be squared with the First Amendment. Moreover, they claim that the decision allows more speech into the marketplace of ideas. They also point out that many powerful unions joined with corporations to oppose the law. A particularly interesting example of the public discussion generated by this case occurred at President Obama’s 2010 State of the Union Address. Several Supreme Court Justices usually attend State of the Union speeches and are seated near the front. Despite very partisan responses from the members of Congress, the justices normally do not clap or show emotion that is related to substantive issues. The practice symbolizes their impartiality. Likewise, any criticism of the Supreme Court or one of its decisions is rare and usually indirect. For example, Presidents may criticize things such as “activist” judges, or implicitly criticize a ruling such as Roe v. Wade, but they rarely directly criticize the Supreme Court in that setting. President Obama, however, took brief but direct aim at Citizens United. In addition to stating a general criticism, he suggested that for the first time foreign corporations would now be free to try to influence American elections. Justice Samuel Alito was seen by television cameras as shaking his head and mouthing the words “not true.” The actual wording of the opinion does not resolve the disagreement between President Obama and Justice Alito. Much of the logic of the opinion would support the president’s reading, but the Court did not foreclose treating foreign corporations differently. Nevertheless, it was quite a moment. The effects of Citizen United remain to be seen. Few doubt that it will increase the amount of money in Freedom of Expression in Special Contexts

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politics. Whom that will favor is less predictable. Some argue that it is a slam-dunk victory for business interests. Though many unions supported the decision, given the declining strength of unions, most people see it as much more a victory for corporate interests. But corporate interests and business interests are not always the same. Some believe that corporations will use their power to seek regulations that will benefit them, often at the expense of small businesses. The opinion has left Congress greatly restrained on what it can regulate, but some believe that Congress could enhance disclosure requirements in ways that might discourage corporations from using their monetary muscle in areas that do not affect them directly. In any event, this case is an excellent reminder that law and politics are inevitably intertwined.

STUDENT RIGHTS AND FREE EXPRESSION FEATURED CASES

Tinker v. Des Moines Independent Community School District; Morse v. Frederick “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” So said Justice Fortas in Tinker v. Des Moines Independent Community School District (393 U.S. 503, 1969). But the extent of Constitutional protections for students has been a contentious one. The issue has often arisen under search and seizure, due process, and, of course, the First Amendment. The debate focuses on the authority and responsibilities of public schools to carry out the schools’ educational mission against charges that such authority unconstitutionally intrudes upon the self-expression rights of students. This debate was dramatically brought before the Court in Tinker. Here public school officials, under the claim of maintaining orderly processes and decorum, suspended students who wore black armbands to express opposition to U.S. involvement in Vietnam. Justice Fortas, speaking for the Court, viewed the black armbands as peaceful expression of political opinion and thus protected by the First Amendment. The students’ behavior did not cause disorder or disruption of school activities, observed Fortas, and “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” In any event, since school officials had permitted students in Des Moines to wear other symbols, such as political 156

campaign buttons, Fortas saw the prohibition against armbands as a method to suppress opposition to the Vietnam War. “In our system,” said Fortas, “students may not be regarded as closed-circuit recipients of only that which the state chooses to communicate.” Thus, the Court ruled that public school students are entitled to free speech guarantees of the First Amendment. However, Fortas was careful to point out that the Court’s decision pertained only to “symbolic speech” or speech itself and did not extend to protest demonstrations. Nonetheless, Justice Hugo Black issued a sharp dissent. He complained that the Court’s decision ushers in “a new revolutionary era of permissiveness in this country in which the power of school officials to control pupils is substantially weakened.” Black took judicial notice of the timing of the decision and noted that “groups of students all over the land . . . [were] running loose, conducting break-ins, sit-ins, lie-ins, and smash-ins.” Decisions like Tinker, warned Black, “subject all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest students.” Though Tinker is seen as a classic free speech case, subsequent student speech claims have not fared so well. In Bethel School District No. 403 v. Fraser (478 U.S. 675, 1986), the Court upheld disciplinary actions taken by school officials against a student (Fraser) who, in a nominating speech before a high school student assembly, “referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor.” Prior to the speech, Fraser discussed the speech with two teachers, who advised him that the speech was inappropriate and that he probably should not deliver it, since the “delivery of the speech might have ‘severe consequences.’” Subsequently, Fraser was disciplined pursuant to a school disruptive-conduct rule prohibiting “conduct which materially and substantially interferes with the educational process . . ., including the use of obscene, profane language or gestures.” In upholding the school’s disciplinary action, Chief Justice Burger stated that the inculcation of “fundamental values is necessary to the maintenance of a democratic political system [and] is truly the ‘work of the schools,’” and that “nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions.” As a result, the Court somewhat modified Tinker by suggesting that interference with the inculcation of

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“fundamental values” could itself be viewed as a material disruption of the school’s educational mission. The Court also seemed to move away from Tinker in its 1988 decision in Hazelwood School District v. Kuhlmeier (484 U.S. 260). Here the Court upheld the authority of a high school principal to stop publication of two articles in the student newspaper (Spectrum). One of the articles related stories of three pregnant Hazelwood students, and the other described reactions of students to their parents’ divorces. The newspaper was written by students in a regular journalism class wherein the teacher was required to submit page proofs to the principal for his approval prior to publication. In Morse v. Frederick (551 U.S. 393, 2007), colloquially referred to as the “Bong Hits 4 Jesus Case,” the Court in an opinion by Chief Justice Roberts continued the trend of finding that the authority of school officials outweighed speech interests of students. At a schoolsanctioned event to watch the passing of the Olympic torch, a student named Joseph Frederick unfurled a banner that said “BONG HiTS 4 JESUS.” Principal Deborah Morse made him take down the banner. He was later punished for promoting the use of drugs,

which is a violation of school regulations. Chief Justice Roberts found the principal’s actions to be constitutionally acceptable. Not only does his opinion distinguish Tinker situationally, he also suggests that some of the requirements from Tinker had been modified by subsequent cases. Tinker seemed to require that speech must provoke a “substantial disruption” in order for school officials to act, but Fraser and Kuhlmeier suggested that such a requirement was not absolute. Justice Thomas concurred in the result but thought that Tinker should be overturned. He saw no protection of free speech in public schools coming from the First Amendment. Justice Breyer concurred in part and dissented in part. He suggested dodging the First Amendment issue because resolving it in this case would be “unwise and unnecessary.” Justice Stevens, joined by Justices Souter and Ginsburg, dissented. The “special context” of schools offers a very different approach to First Amendment analysis. Compared with the decisions in some of the other special contexts discussed in this chapter that undoubtedly extend to other situations, it is unclear whether these decisions will have much effect on speech analysis outside the schools.

TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT 393 U.S. 503 (1969) JUSTICE FORTAS delivered the opinion of the Court. Petitioner John F. Tinker, fifteen years old, and petitioner Christopher Eckhardt, sixteen years old, attended high schools in Des Moines, Iowa. Petitioner Mary Beth Tinker, John’s sister, was a thirteen-yearold student in junior high school. In December 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt home. The group determined to publicize their objections to the hostilities in Vietnam and their support for a truce by wearing black armbands during the holiday season and by fasting on December 16 and New Year’s Eve. Petitioners and their parents had previously engaged in similar activities, and they decided to participate in the program.

The principals of the Des Moines schools became aware of the plan to wear armbands. On December 14, 1965, they met and adopted a policy that any student wearing an armband to school would be asked to remove it, and if he refused he would be suspended until he returned without the armband. Petitioners were aware of the regulation that the school authorities adopted. On December 16, Mary Beth and Christopher wore black armbands to their schools. John Tinker wore his armband the next day. They were all sent home and suspended from school until they would come back without their armbands. They did not return to school until after the planned period for wearing armbands had expired—that is, until after New Year’s Day. Freedom of Expression in Special Contexts

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This complaint was filed in the United States District Court by petitioners, through their fathers, under 1983 of Title 42 of the United States Code. It prayed for an injunction restraining the respondent school officials and the respondent members of the board of directors of the school district from disciplining the petitioners, and it sought nominal damages. After an evidentiary hearing the District Court dismissed the complaint. It upheld [393 U.S. 503, 505] the constitutionality of the school authorities’ action on the ground that it was reasonable in order to prevent disturbance of school discipline. 258 F. Supp. 971 (1966). The court referred to but expressly declined to follow the Fifth Circuit’s holding in a similar case that the wearing of symbols like the armbands cannot be prohibited unless it “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school.” Burnside v. Byars, 363 F.2d 744, 749 (1966). On appeal, the Court of Appeals for the Eighth Circuit considered the case en banc. The court was equally divided, and the District Court’s decision was accordingly affirmed, without opinion. 383 F.2d 988 (1967). We granted certiorari. 390 U.S. 942 (1968). I The District Court recognized that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment. See West Virginia v. Barnette, 319 U.S. 624 (1943); Stromberg v. California, 283 U.S. 359 (1931). Cf. Thornhill v. Alabama, 310 U.S. 88 (1940); Edwards v. South Carolina, 372 U.S. 229 (1963); Brown v. Louisiana, 383 U.S. 131 (1966). As we shall discuss, the wearing of armbands in the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. It was closely akin to “pure speech” [393 U.S. 503, 506] which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment. Cf. Cox v. Louisiana, 379 U.S. 536, 555 (1965); Adderley v. Florida, 385 U.S. 39 (1966). First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the 158

unmistakable holding of this Court for almost fifty years. In Meyer v. Nebraska, 262 U.S. 390 (1923), and Bartels v. Iowa, 262 U.S. 404 (1923), this Court, in opinions by MR. JUSTICE MCREYNOLDS, held that the Due Process Clause of the Fourteenth Amendment prevents States from forbidding the teaching of a foreign language to young students. Statutes to this effect, the Court held, unconstitutionally interfere with the liberty of teacher, student, and parent. . . . In West Virginia v. Barnette, supra, this Court held that under the First Amendment, the student in public school may not be compelled to salute the flag. Speaking through MR. JUSTICE JACKSON, the Court said: The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures—Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes. 319 U.S., at 637.

On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools. See Epperson v. Arkansas, supra, at 104; Meyer v. Nebraska, supra, at 402. Our problem lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities. II The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, [393 U.S. 503, 508] to hair style, or deportment. Cf. Ferrell v. Dallas Independent School District, 392 F.2d 697 (1968); Pugsley v. Sellmeyer, 158 Ark. 247, 250 S. W. 538 (1923). It does not concern aggressive, disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment rights akin to “pure speech.” The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance

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on the part of petitioners. There is here no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students. Only a few of the 18,000 students in the school system wore the black armbands. Only five students were suspended for wearing them. There is no indication that the work of the schools or any class was disrupted. Outside the classrooms, a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises. The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1 (1949); and our history says that it is this sort of hazardous freedom—this kind of openness— that is [393 U.S. 503, 509] the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society. In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” the prohibition cannot be sustained. Burnside v. Byars, supra, at 749. In the present case, the District Court made no such finding, and our independent examination of the record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of

other students. Even an official memorandum prepared after the suspension that listed the reasons for the ban on wearing the armbands made no reference to the anticipation of such disruption. [393 U.S. 503, 510] On the contrary, the action of the school authorities appears to have been based upon an urgent wish to avoid the controversy which might result from the expression, even by the silent symbol of armbands, of opposition to this Nation’s part in the conflagration in Vietnam. . . . It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. Instead, a particular symbol—black armbands worn to exhibit opposition to this Nation’s involvement [393 U.S. 503, 511] in Vietnam—was singled out for prohibition. Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible. In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are “persons” under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. . . . In Meyer v. Nebraska, supra, at 402, MR. JUSTICE MCREYNOLDS expressed this Nation’s repudiation of the principle that a State might so conduct its schools as to “foster a homogeneous people.” He said: In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by Freedom of Expression in Special Contexts

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men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a [393 U.S. 503, 512] State without doing violence to both letter and spirit of the Constitution.

This principle has been repeated by this Court on numerous occasions during the intervening years. In Keyishian v. Board of Regents, 385 U.S. 589, 603, MR. JUSTICE BRENNAN, speaking for the Court, said: The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ Shelton v. Tucker, [364 U.S. 479,] at 487. The classroom is peculiarly the ‘marketplace of ideas.’ The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.

The principle of these cases is not confined to the supervised and ordained discussion which takes place in the classroom. The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. This is not only an inevitable part of the process of attending school; it is also an important part of the educational process. A student’s rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on [393 U.S. 503, 513] the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without “materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school” and without colliding with the rights of others. Burnside v. Byars, supra, at 749. But conduct by the student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. Cf. Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (C.A. 5th Cir. 1966). ... As we have discussed, the record does not demonstrate any facts which might reasonably 160

have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them. They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression. We express no opinion as to the form of relief which should be granted, this being a matter for the lower courts to determine. We reverse and remand for further proceedings consistent with this opinion. Reversed and remanded. JUSTICE STEWART, concurring: Although I agree with much of what is said in the Court’s opinion, and with its judgment in this case [393 U.S. 503, 515], I cannot share the Court’s uncritical assumption that, school discipline aside, the First Amendment rights of children are coextensive with those of adults. Indeed, I had thought the Court decided otherwise just last Term in Ginsberg v. New York, 390 U.S. 629. I continue to hold the view I expressed in that case: “[A] State may permissibly determine that, at least in some precisely delineated areas, a child—like someone in a captive audience—is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees.” Id., at 649–650 (concurring in result). Cf. Prince v. Massachusetts, 321 U.S. 158. JUSTICE WHITE, concurring: While I join the Court’s opinion, I deem it appropriate to note . . . that the Court continues to recognize a distinction between communicating by words and communicating by acts or conduct which sufficiently impinges on some valid state interest. . . .

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JUSTICE BLACK, dissenting: The Court’s holding in this case ushers in what I deem to be an entirely new era in which the power to control pupils by the elected “officials of state supported public schools . . .” in the United States is in ultimate effect transferred to the Supreme Court. . . . As I read the Court’s opinion it relies upon the following grounds for holding unconstitutional the judgment of the Des Moines school officials and the two courts below. First, the Court concludes that the wearing of armbands is “symbolic speech” which is “akin to ‘pure speech’” and therefore protected by the First and Fourteenth Amendments. Secondly, the Court decides that the public schools are an appropriate place to exercise “symbolic speech” as long as normal school functions [393 U.S. 503, 517] are not “unreasonably” disrupted. Finally, the Court arrogates to itself, rather than to the State’s elected officials charged with running the schools, the decision as to which school disciplinary regulations are “reasonable.” Assuming that the Court is correct in holding that the conduct of wearing armbands for the purpose of conveying political ideas is protected by the First Amendment, cf., e.g., Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949), the crucial remaining questions are whether students and teachers may use the schools at their whim as a platform for the exercise of free speech— “symbolic” or “pure”— and whether the courts will allocate to themselves the function of deciding how the pupils’ school day will be spent. While I have always believed that under the First and Fourteenth Amendments neither the State nor the Federal Government has any authority to regulate or censor the content of speech, I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases. This Court has already rejected such a notion. In Cox v. Louisiana, 379 U.S. 536, 554 (1965), for example, the Court clearly stated that the rights of free speech and assembly “do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time.” . . . [D]etailed testimony by some . . . shows their armbands caused comments, warnings by other students, the poking of fun at them, and a warning by an older football player that other, nonprotesting students had better let them alone. There is also evidence that a teacher of mathematics had his les-

son period practically “wrecked” chiefly by disputes with Mary Beth Tinker, who wore her armband for her “demonstration.” [393 U.S. 503, 518] Even a casual reading of the record shows that this armband did divert students’ minds from their regular lessons. . . . While the absence of obscene remarks or boisterous and loud disorder perhaps justifies the Court’s statement that the few armband students did not actually “disrupt” the classwork, I think the record overwhelmingly shows that the armbands did exactly what the elected school officials and principals foresaw they would, that is, took the students’ minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam war. And I repeat that if the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary. . . . . . . [M]embers of this Court, like all other citizens, know, without being told, that the disputes over the wisdom of the Vietnam war have disrupted and divided this country as few other issues ever have. Of course students, like other people, cannot concentrate on lesser issues when black armbands are being ostentatiously displayed in their presence to call attention to the wounded and dead of the war, some of the wounded and the dead being their friends and neighbors. It was, of course, to distract the attention of other students that some students insisted up to the very point of their own suspension from school that they were determined to sit in school with their symbolic armbands. . . . JUSTICE HARLAN, dissenting: I certainly agree that state public school authorities in the discharge of their responsibilities are not wholly exempt from the requirements of the Fourteenth Amendment respecting the freedoms of expression and association. At the same time I am reluctant to believe that there is any disagreement between the majority and myself on the proposition that school officials should be accorded the widest authority in maintaining discipline and good order in their institutions. To translate that proposition into a workable constitutional rule, I would, in cases like this, cast upon those complaining the burden of showing that a

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particular school measure was motivated by other than legitimate school concerns—for example, a desire to prohibit the expression of an unpopular point of view, while permitting expression of the dominant opinion.

Finding nothing in this record which impugns the good faith of respondents in promulgating the armband regulation, I would affirm the judgment below. [393 U.S. 503, 527]

MORSE, ET AL. V. JOSEPH FREDERICK 551 U.S. 393 (2007) CHIEF JUSTICE ROBERTS delivered the opinion of the Court. At a school-sanctioned and school-supervised event, a high school principal saw some of her students unfurl a large banner conveying a message she reasonably regarded as promoting illegal drug use. Consistent with established school policy prohibiting such messages at school events, the principal directed the students to take down the banner. One student—among those who had brought the banner to the event—refused to do so. The principal confiscated the banner and later suspended the student. The Ninth Circuit held that the principal’s actions violated the First Amendment, and that the student could sue the principal for damages. Our cases make clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969). At the same time, we have held that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings,” Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), and that the rights of students “must be ‘applied in light of the special characteristics of the school environment,’” Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 266, (1988) Consistent with these principles, we hold that schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. We conclude that the school officials in this case did not violate the First Amendment by confiscating the pro-drug banner and suspending the student responsible for it. 162

I On January 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska, on its way to the winter games in Salt Lake City, Utah. The torchbearers were to proceed along a street in front of Juneau–Douglas High School (JDHS) while school was in session. Petitioner Deborah Morse, the school principal, decided to permit staff and students to participate in the Torch Relay as an approved social event or class trip. Students were allowed to leave class to observe the relay from either side of the street. Teachers and administrative officials monitored the students’ actions. Respondent Joseph Frederick, a JDHS senior, was late to school that day. When he arrived, he joined his friends (all but one of whom were JDHS students) across the street from the school to watch the event. Not all the students waited patiently. Some became rambunctious, throwing plastic cola bottles and snowballs and scuffling with their classmates. As the torchbearers and camera crews passed by, Frederick and his friends unfurled a 14-foot banner bearing the phrase “BONG HiTS 4 JESUS.” The large banner was easily readable by the students on the other side of the street. Principal Morse immediately crossed the street and demanded that the banner be taken down. Everyone but Frederick complied. Morse confiscated the banner and told Frederick to report to her office, where she suspended him for ten days. Morse later explained that she told Frederick to take the banner down because she thought it encouraged illegal drug use, in violation of established school policy. Juneau School Board Policy No. 5520 states: “The Board specifically prohibits any assembly or public expression that . . . advocates the use of

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substances that are illegal to minors. . . .” In addition, Juneau School Board Policy No. 5850 subjects “[p]upils who participate in approved social events and class trips” to the same student conduct rules that apply during the regular school program. Frederick administratively appealed his suspension, but the Juneau School District Superintendent upheld it, limiting it to time served (eight days). In a memorandum setting forth his reasons, the superintendent determined that Frederick had displayed his banner “in the midst of his fellow students, during school hours, at a school-sanctioned activity.” He further explained that Frederick “was not disciplined because the principal of the school ‘disagreed’ with his message, but because his speech appeared to advocate the use of illegal drugs.” Id., at 61a. The Ninth Circuit reversed. Deciding that Frederick acted during a “school-authorized activit[y],” and “proceed[ing] on the basis that the banner expressed a positive sentiment about marijuana use,” the court nonetheless found a violation of Frederick’s First Amendment rights because the school punished Frederick without demonstrating that his speech gave rise to a “risk of substantial disruption.” 439 F.3d 1114, 1118, 1121–1123 (2006). The court further concluded that Frederick’s right to display his banner was so “clearly established” that a reasonable principal in Morse’s position would have understood that her actions were unconstitutional, and that Morse was therefore not entitled to qualified immunity. Id., at 1123–1125. II At the outset, we reject Frederick’s argument that this is not a school speech case. The event occurred during normal school hours. It was sanctioned by Principal Morse “as an approved social event or class trip,” App. 22–23, and the school district’s rules expressly provide that pupils in “approved social events and class trips are subject to district rules for student conduct,” App. to Pet. for Cert. 58a. Teachers and administrators were interspersed among the students and charged with supervising them. The high school band and cheerleaders performed. Frederick, standing among other JDHS students across the street from the school, directed his banner toward the school, making it plainly visible to most students. Under these circumstances, we agree with the superintendent that Frederick cannot “stand in the midst of his fellow students, during

school hours, at a school-sanctioned activity and claim he is not at school.” There is some uncertainty at the outer boundaries as to when courts should apply school-speech precedents, see Porter v. Ascension Parish School Bd., 393 F.3d 608, 615, n. 22 (CA5 2004), but not on these facts. III The message on Frederick’s banner is cryptic. It is no doubt offensive to some, perhaps amusing to others. To still others, it probably means nothing at all. Frederick himself claimed “that the words were just nonsense meant to attract television cameras.” 439 F.3d at 1117–1118. But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one. As Morse later explained in a declaration, when she saw the sign, she thought that “the reference to a ‘bong hit’ would be widely understood by high school students and others as referring to smoking marijuana.” App. 24. She further believed that “display of the banner would be construed by students, District personnel, parents and others witnessing the display of the banner, as advocating or promoting illegal drug use”—in violation of school policy. Id., at 25; see ibid. (“I told Frederick and the other members of his group to put the banner down because I felt that it violated the [school] policy against displaying . . . material that advertises or promotes use of illegal drugs”). The dissent mentions Frederick’s “credible and uncontradicted explanation for the message—he just wanted to get on television.” Post, at ____, 168 L. Ed. 2d, at 325. But that is a description of Frederick’s motive for displaying the banner; it is not an interpretation of what the banner says. The way Frederick was going to fulfill his ambition of appearing on television was by unfurling a pro-drug banner at a school event, in the presence of teachers and fellow students. Elsewhere in its opinion, the dissent emphasizes the importance of political speech and the need to foster “national debate about a serious issue,” as if to suggest that the banner is political speech. But not even Frederick argues that the banner conveys any sort of political or religious message. Contrary to the dissent’s suggestion, this is plainly not a case about political debate over the criminalization of drug use or possession. Freedom of Expression in Special Contexts

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IV The question thus becomes whether a principal may, consistent with the First Amendment, restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use. We hold that she may. In Tinker, this Court made clear that “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students.” 393 U.S., at 506, 89 S. Ct. 733, 21 L. Ed. 2d 731. Tinker held that student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school.” Id., at 513, 89 S. Ct. 733, 21 L. Ed. 2d 731. The essential facts of Tinker are quite stark, implicating concerns at the heart of the First Amendment. The students sought to engage in political speech, using the armbands to express their “disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them.” Id., at 514, 89 S. Ct. 733, 21 L. Ed. 2d 731. Political speech, of course, is “at the core of what the First Amendment is designed to protect.” Virginia v. Black, 538 U.S. 343, 365, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003) [***21]. The only interest the Court discerned underlying the school’s actions was the “mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,” or “an urgent wish to avoid the controversy which might result from the expression.” Tinker, 393 U.S., at 509, 510, 89 S. Ct. 733, 21 L. Ed. 2d 731. That interest was not enough to justify banning “a silent, passive expression of opinion, unaccompanied by any disorder or disturbance.” Id., at 508, 89 S. Ct. 733, 21 L. Ed. 2d 731 For present purposes, it is enough to distill from Fraser two basic principles. First, Fraser’s holding demonstrates that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Drawing on the principles applied in our student speech cases, we have held in the Fourth Amendment context that “[w]hile schoolchildren do not shed their constitutional rights when they enter the schoolhouse, Fourth Amendment rights . . . are different in public schools than elsewhere; the ‘reasonableness’ inquiry cannot disregard the schools’ custodial and tutelary responsibility for children” 164

(quoting Vernonia, 515 U.S., at 656, 115 S. Ct. 2386, 132 L. Ed. 2d 564; citation and some internal quotation marks omitted). Even more to the point, these cases also recognize that deterring drug use by schoolchildren is an “important—indeed, perhaps compelling” interest. JUSTICE THOMAS, concurring. The Court today decides that a public school may prohibit speech advocating illegal [*2630] drug use. I agree and therefore join its opinion in full. I write separately to state my view that the standard set forth in [***34] Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, (1969), is without basis in the Constitution. I In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools. *** I join the Court’s opinion because it erodes Tinker’s hold in the realm of student speech, even though it does so by adding to the patchwork of exceptions to the Tinker standard. I think the better approach is to dispense with Tinker altogether, and given the opportunity, I would do so. JUSTICE ALITO, with whom JUSTICE KENNEDY joins, concurring. I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” JUSTICE BREYER, concurring in the judgment in part and dissenting in part. This Court need not and should not decide this difficult First Amendment issue on the merits. Rather, I believe that it should simply hold that qualified immunity bars the student’s claim for monetary damages and say no more.

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I Resolving the First Amendment question presented in this case is, in my view, unwise and unnecessary. In part that is because the question focuses upon specific content narrowly defined: May a school board punish students for speech that advocates drug use and, if so, when? At the same time, the underlying facts suggest that Principal Morse acted as she did not simply because of the specific content and viewpoint of Joseph Frederick’s speech but also because of the surrounding context and manner in which Frederick expressed his views. To say that school officials might reasonably prohibit students during school-related events from unfurling 14-foot banners (with any kind of irrelevant or inappropriate message) designed to attract attention from television cameras seems unlikely to undermine basic First Amendment [***63] principles. But to hold, as the Court does, that “schools may take steps to safeguard those entrusted to their [*2639] care from speech that can reasonably be regarded as encouraging illegal drug use” (and that “schools” may “restrict student expression that they reasonably regard as promoting illegal drug use”) is quite a different matter. Legal principles must treat like instances alike. Those principles do not permit treating “drug use” separately without a satisfying explanation of why drug use is sui generis. Although the dissent avoids some of the majority’s pitfalls, I fear that, if adopted as law, it would risk significant interference with reasonable school efforts to maintain discipline. What is a principal to do when a student unfurls a 14-foot banner (carrying an irrelevant or inappropriate message) during a school-related event in an effort to capture the attention of television cameras? Nothing? In my view, a principal or a teacher might reasonably view Frederick’s conduct, in this setting, as simply beyond the pale. And a school official, knowing that adolescents often test the outer boundaries of acceptable behavior, may believe it is important (for the offending student and his classmates) to establish when a student has gone too far. Neither can I simply say that Morse may have taken the right action (confiscating Frederick’s banner) but for the wrong reason (“drug speech”). Teachers are neither lawyers nor police officers; and the law should not demand that they fully understand the intricacies of our First Amendment jurisprudence. As

the majority rightly points out, the circumstances here called for a quick decision. See ante, at ____, 168 L. Ed. 2d, at 304 (noting that “Morse had to decide to act—or not act—on the spot”). But this consideration is better understood in terms of qualified immunity than of the First Amendment. Given the high probability that Frederick’s request for an injunction will not require a court to resolve the constitutional issue, see Ashwander, 297 U.S., at 347, 56 S. Ct. 466, 80 L. Ed. 688 (BRANDEIS, J., concurring), I would decide only the qualified immunity question and remand the rest of the case for an initial consideration. JUSTICE STEVENS, with whom JUSTICE SOUTER and JUSTICE GINSBURG join, dissenting. A significant fact barely mentioned by the Court sheds a revelatory light on the motives of both the students and the principal of Juneau–Douglas High School (JDHS). On January 24, 2002, the Olympic Torch Relay gave those Alaska residents a rare chance to appear on national television. As Joseph Frederick repeatedly explained, he did not address the curious message—“BONG HiTS 4 JESUS”— to his fellow students. He just wanted to get the camera crews’ attention. Moreover, concern about a nationwide evaluation of the conduct of the JDHS student body would have justified the principal’s decision to remove an attention-grabbing 14foot banner, even if it had merely proclaimed “Glaciers Melt!” I agree with the Court that the principal should not be held liable for pulling down Frederick’s banner. I would hold, however, that the school’s interest in protecting its students from exposure to speech “reasonably regarded as promoting illegal drug use,” cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs. The First Amendment demands more, indeed, much more. The Court holds otherwise only after laboring to establish two uncontroversial propositions: first, that the constitutional rights of students in school settings are not coextensive with the rights of adults, and second, that deterring drug use by schoolchildren is a valid and terribly important interest. As to the first, I take the Court’s point that the message on Frederick’s banner is not necessarily protected Freedom of Expression in Special Contexts

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speech, even though it unquestionably would have been had the banner been unfurled elsewhere. As to the second, I am willing to assume that the Court is correct that the pressing need to deter drug use supports JDHS rule prohibiting willful conduct that expressly “advocates the use of substances that are illegal to minors.” App. to Pet. for Cert. 53a. But it is a gross non sequitur to draw from these two unremarkable propositions the remarkable conclusion that the school may suppress student speech that was never meant to persuade anyone to do anything. In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amendment in upholding—indeed, lauding—a school’s decision to punish Frederick for expressing a view with which it disagreed. I Two cardinal First Amendment principles animate both the Court’s opinion in Tinker and JUSTICE HARLAN’s dissent. First, censorship based on the content of speech, particularly censorship that depends on the viewpoint of the speaker, is subject to the most rigorous burden of justification:. . . . Second, punishing someone for advocating illegal conduct is constitutional only when the advocacy is likely to provoke the harm that the government seeks to avoid. See Brandenburg v. Ohio, 395 U.S. 444, 449, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969) (per curiam) (distinguishing “mere advocacy” [**321] of illegal conduct from “incitement to imminent lawless action”). However necessary it may be to modify those principles in the school setting, Tinker affirmed their continuing vitality. Yet today the Court fashions a test that trivializes the two cardinal principles upon which Tinker rests. (“[S]chools [may] restrict student expression that they reasonably regard as promoting illegal drug use”). The Court’s test invites stark viewpoint discrimination. In this case, for example, the principal has unabashedly acknowledged that she disciplined Frederick because she disagreed with the pro-drug viewpoint she ascribed to the message on the banner, viewpoint, incidentally, that Frederick has disavowed, the Court’s holding in this case strikes at 166

“the heart of the First Amendment” because it upholds a punishment meted out on the basis of a listener’s disagreement with her understanding (or, more likely, misunderstanding) of the speaker’s view. “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989). It is also perfectly clear that “promoting illegal drug use,” comes nowhere close to proscribable “incitement to imminent lawless action.” Brandenburg, 395 U.S., at 449. Encouraging drug use might well increase the likelihood that a listener will try an illegal drug, but that hardly justifies censorship:. . . . II The Court rejects outright these twin foundations of Tinker because, in its view, the unusual importance of protecting children from the scourge of drugs supports a ban on all speech in the school environment that promotes drug use. Whether or not such a rule is sensible as a matter of policy, carving out pro-drug speech for uniquely harsh treatment finds no support in our case law and is inimical to the values protected by the First Amendment. I will nevertheless assume for the sake of argument that the school’s concededly powerful interest in protecting its students adequately supports its restriction on “any assembly or public expression that . . . advocates the use of substances that are illegal to minors. . . .” Given that the relationship between schools and students “is custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults,” it might well be appropriate to tolerate some targeted viewpoint discrimination in this unique setting. And while conventional speech may be restricted only when likely to “incit[e] imminent lawless action,” it is possible that our rigid imminence requirement ought to be relaxed at schools. But it is one thing to restrict speech that advocates drug use. It is another thing entirely to prohibit an obscure message with a drug theme that a third party subjectively—and not very reasonably— thinks is tantamount to express advocacy. Therefore, just as we insisted in Tinker that the school establish some likely connection between the armbands and their feared consequences, so too

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JDHS must show that Frederick’s supposed advocacy stands a meaningful chance of making otherwise-abstemious students try marijuana. But instead of demanding that the school make such a showing, the Court punts. Figuring out just how it punts is tricky. On occasion, the Court suggests it is deferring to the principal’s “reasonable” judgment that Frederick’s sign qualified as drug advocacy. At other times, the Court seems to say that it thinks the banner’s message constitutes express advocacy.4 Either way, its approach is indefensible. To the extent the Court defers to the principal’s ostensibly reasonable judgment, it abdicates its constitutional responsibility. The beliefs of third parties, reasonable or otherwise, have never dictated which messages amount to proscribable advocacy. Such a peculiar doctrine is alien to our case law. In Abrams v. United States, 250 U.S. 616, 40 S. Ct. 17, 63 L. Ed. 1173 (1919), this Court affirmed the conviction of a group of Russian “rebels, revolutionists, [and] anarchists,” id., at 617–618, 40 S. Ct. 17, 63 L. Ed. 1173 (internal quotation marks omitted), on the ground that the leaflets they distributed were thought to “incite, provoke, and encourage resistance to the United States,” id., at 617, 40 S. Ct. 17, 63 L. Ed. 1173 (internal quotation marks omitted). Yet JUSTICE HOLMES’ dissent—which has emphatically carried the day—never inquired into the reasonableness of the United States’ judgment that the leaflets would likely undermine the war effort. The dissent instead ridiculed that judgment: “nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.” In Thomas v. Collins, 323 U.S. 516, 65 S. Ct. 315, 89 L. Ed. 430 (1945) (opinion for the Court by RUTLEDGE, J.), we overturned the conviction of a union organizer who violated a restraining order prohibiting him from exhorting workers. In so doing, we held that the distinction between advocacy and incitement could not depend on how one of those workers might have understood the organizer’s speech. That would “pu[t] the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.” (“[I]n cases raising First Amendment issues we have repeatedly held that an appellate court has an obligation to make an independent examination of the whole record in order to

make sure that the judgment does not constitute a forbidden intrusion on the field of free expression.” To the extent the Court independently finds that “BONG HiTS 4 JESUS” objectively amounts to the advocacy of illegal drug use—in other words, that it can most reasonably be interpreted as such—that conclusion practically refutes itself. This is a nonsense message, not advocacy. The Court’s feeble effort to divine its hidden meaning is strong evidence of that (positing that the banner might mean, alternatively, “‘[Take] bong hits,’” “‘bong hits [are a good thing],’” or “‘[we take] bong hits’”). Frederick’s credible and uncontradicted explanation for the message—he just wanted to get on television—is also relevant because a speaker who does not intend to persuade his audience can hardly be said to be advocating anything. But most importantly, it takes real imagination to read a “cryptic” message (the Court’s characterization, not mine, see ante., at 6) with a slanting drug reference as an incitement to drug use. Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible. That the Court believes such a silly message can be proscribed as advocacy underscores the novelty of its position, and suggests that the principle it articulates has no stopping point. Among other things, the Court’s ham-handed, categorical approach is deaf to the constitutional imperative to permit unfettered debate, even among high-school students, about the wisdom of the war on drugs or of legalizing marijuana for medicinal use. If Frederick’s stupid reference to marijuana can in the Court’s view justify censorship, then high school students everywhere could be forgiven for zipping their mouths about drugs at school lest some “reasonable” observer censor and then punish them for promoting drugs. III Although this case began with a silly, nonsensical banner, it ends with the Court inventing out of whole cloth a special First Amendment rule permitting the censorship of any student speech that mentions drugs, at least so long as someone could perceive that speech to contain a latent pro-drug message. Freedom of Expression in Special Contexts

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The Vietnam War is remembered today as an unpopular war. During its early stages, however, “the dominant opinion” that JUSTICE HARLAN mentioned in his Tinker dissent regarded opposition to the war as unpatriotic, if not treason. That dominant opinion strongly supported the prosecution of several of those who demonstrated in Grant Park during the 1968 Democratic Convention in Chicago, and the vilification of vocal opponents of the war like Julian Bond, cf. Bond v. Floyd, 385 U.S. 116, (1966). In 1965, when the Des Moines students wore their armbands, the school district’s fear that they might “start an

argument or cause a disturbance” was well founded. Given that context, there is special force to the Court’s insistence that “our Constitution says we must take that risk; and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.” As we now know, the then-dominant opinion about the Vietnam War was not etched in stone. I respectfully dissent.

SELECTED REFERENCES MacKinnon, Catharine. Only Words Cambridge, MA: Harvard University Press, 1996. Schauer, Frederick. “Speech and ‘Speech’—Obscenity and ‘Obscenity’: An Exercise in the Interpretation of Constitutional Language,” Georgetown Law Journal, Vol. 67 (1979), 899.

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Strossen, Nadine. Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights. New York: New York University Press, 2000. Wright, J. Skelly. “Politics and the Constitution: Is Money Speech?” Yale Law Journal, Vol. 85 (1976), 1001.

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CHAPTER

5

FREEDOM OF THE PRESS AND ASSOCIATION

FEATURED CASES New York Times v. United States [The Pentagon Papers Case]; New York Times v. Sullivan; National Association for the Advancement of Colored People v. Alabama

T

HE FIRST AMENDMENT UNAMBIGUOUSLY COMMANDS

that “Congress shall make no law . . . abridging the freedom of the press.” (Incorporation via the Fourteenth Amendment extends the command to the states.) But, as with the speech clause, unambiguous words have not commanded unambiguous understandings of what the press clause means. Who or what constitutes “the press”? Certainly the press includes the New York Times, but does it include the person who photocopies something and then distributes it? Does it include someone or some organization that disseminates something over the airwaves? Over the Internet? As with speech, what does it mean to “abridge”? Issues involving freedom of the press have always been difficult, but they have become even more complicated as advances in media technology have occurred. The advances are not solely changes from eighteenth to twenty-first century America. New advances happen almost daily, and some of them seem to undermine premises underlying earlier interpretations by the Court. Even if we decide what freedom of the press means today, pursuit of this goal can sometimes collide with other rights and interests. Consider the attempts of certain governmental officials to withhold information from the press or to prevent it from publishing

information on the grounds that such divulgence might endanger “national security.” National security certainly is a legitimate and substantial interest, but often it is invoked simply to cover up unwise or illegal actions. Collisions occur not only with hard-to-define interests such as national security, but also with specific constitutional guarantees. Consider the defendant who feels that widespread pretrial publicity will prejudice his or her right to a fair trial. Or consider a situation in which reporters are asked to divulge their news sources when such information could be important in the prevention or prosecution of criminal activity or in the exoneration of an innocent person. Ironically, the power of the media is so extensive today that it can threaten liberties perhaps as much as the government can. At least the government is democratically elected; the media are often major corporations with no democratic accountability. Corporations usually are expected to serve their stockholders’ interests, and it is only a sense of ethics and professional responsibility that mitigates financial pressures. Are the ethics of good journalism still sufficient safeguards in an era in which tabloid journalism runs rampant and even the “respected” media seem consumed by the need to scoop competitors? An Orwellian nightmare today might as easily come from the press as from the 169

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government. Many people’s reputations have been ruined by the publication of untrue stories or articles that are replete with innuendo. Jobs are lost, marriages ruined, privacy invaded, and lives shattered. Retractions by the press rarely serve to restore reputations. At the same time, the government’s ability to endanger civil liberties has also increased, and perhaps only a powerful press can ensure that we have an informed citizenry and can prevent the government from getting away with improprieties. Though much of what the press does today may be Orwellian, the nightmare in its worst form is when the government controls the media and wields the power of both institutions. It is of no small note that one of the first things authoritarian governments do is try to control the press.

PRIOR RESTRAINT FEATURED CASE

New York Times v. United States [The Pentagon Papers Case] Perhaps the most fundamental belief of the Founders related to freedom of the press was that the government should not be allowed to exercise prior restraint

over publications (censor them in advance). There was and is much debate over when someone may be punished for having published something. There has been far less disagreement over whether the government should be proscribed from prohibiting in advance the publication of material or deciding who has the right to publish. The strong opposition to prior restraint came from English history and experiences of the colonists. Prior to 1694, authors in England had to be licensed to publish, and not surprisingly, this tool was used by the crown to control many things, not the least of which was political opposition. This practice fell into disfavor in England and in the colonies. Some people have argued that prohibition of prior restraint is all that should be guaranteed by the press clause, although most commentators today believe that it stands for more. Antagonism toward prior restraint is so strong that even when the countervailing claim is national security, there is little tolerance for the practice. History certainly accounts for much of this attitude. One might ask, however, whether there are other reasons that justify such a strong presumption. Two of the classic cases discussing prior restraint are Near v. Minnesota and New York Times v. United States [The Pentagon Papers Case].

NEW YORK TIMES V. UNITED STATES [THE PENTAGON PAPERS CASE] 403 U.S. 713 (1971) Per Curiam. We granted certiorari in these cases in which the United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled “History of U.S. Decision-Making Process on Viet Nam Policy.” . . . “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see also Near v. Minnesota, 283 U.S. 697 (1931). The Government “thus carries a heavy burden of showing justification for the imposition of such a restraint.” Organization for a Better Austin v. Keefe, 402 U.S. 170

415, 419 (1971). The District Court for the Southern District of New York in the New York Times case and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit in the Washington Post case held that the Government had not met that burden. We agree. The judgment of the Court of Appeals for the District of Columbia Circuit is therefore affirmed. The order of the Court of Appeals for the Second Circuit is reversed and the case is remanded with directions to enter a judgment affirming the judgment of the District Court for the Southern District of New York. The stays entered June 25, 1971, by the Court are vacated. The judgments shall issue forthwith. So ordered.

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JUSTICE BLACK, joined by JUSTICE DOUGLAS, concurring: I adhere to the view that the Government’s case against the Washington Post should have been dismissed and that the injunction against the New York Times should have been vacated without oral argument when the cases were first presented to this Court. I believe that every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment. Furthermore, after oral argument, I agree completely that we must affirm the judgment of the Court of Appeals for the District of Columbia Circuit and reverse the judgment of the Court of Appeals for the Second Circuit for the reasons stated by my Brothers Douglas and Brennan. In my view it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment. Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country. In seeking injunctions against these newspapers and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. They especially feared that the new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”

The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people’s freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: “Congress shall make no law . . . abridging the freedom . . . of the press. . . .” Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints. In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do. . . . To find that the President has “inherent power” to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make “secure.” No one can read the history of the adoption of the First Freedom of the Press and Association

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Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time. The word “security” is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged. . . . JUSTICE DOUGLAS, joined by JUSTICE BLACK, concurring: . . . I believe it necessary to express my views more fully. . . . The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powersthat-be. See T. Emerson, The System of Freedom of Expression, c. V (1970); Z. Chafee, Free Speech in the United States, c. XIII (1941). The present cases will, I think, go down in history as the most dramatic illustration of that principle. A debate of large proportions goes on in the Nation over our posture in Vietnam. That debate antedated the disclosure of the contents of the present documents. The latter are highly relevant to the debate in progress. Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions there should be “uninhibited, robust, and wide-open” debate. New York Times v. Sullivan, 376 U.S. 254, 269–270. . . . JUSTICE BRENNAN, concurring: I I write separately in these cases only to emphasize what should be apparent: that our judgments in the present cases may not be taken to indicate the propriety, 172

in the future, of issuing temporary stays and restraining orders to block the publication of material sought to be suppressed by the Government. . . . To begin with, there has now been ample time for reflection and judgment; whatever values there may be in the preservation of novel questions for appellate review may not support any restraints in the future. More important, the First Amendment stands as an absolute bar to the imposition of judicial restraints in circumstances of the kind presented by these cases. II The error that has pervaded these cases from the outset was the granting of any injunctive relief whatsoever, interim or otherwise. The entire thrust of the Government’s claim throughout these cases has been that publication of the material sought to be enjoined “could,” or “might,” or “may” prejudice the national interest in various ways. But the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences may result. Our cases, it is true, have indicated that there is a single, extremely narrow class of cases in which the First Amendment’s ban on prior judicial restraint may be overridden. Our cases have thus far indicated that such cases may arise only when the Nation “is at war,” Schenck v. United States, 249 U.S. 47, 52 (1919), during which times “[n]o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.” Near v. Minnesota, 283 U.S. 697, 716 (1931). Even if the present world situation were assumed to be tantamount to a time of war, or if the power of presently available armaments would justify even in peacetime the suppression of information that would set in motion a nuclear holocaust, in neither of these actions has the Government presented or even alleged that publication of items from or based upon the material at issue would cause the happening of an event of that nature. . . . JUSTICE STEWART, joined by JUSTICE WHITE, concurring: In the governmental structure created by our Constitution, the Executive is endowed with enormous power in the two related areas of national defense and international relations. This power, largely unchecked by the Legislative and Judicial branches,

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has been pressed to the very hilt since the advent of the nuclear missile age. For better or for worse, the simple fact is that a President of the United States possesses vastly greater constitutional independence in these two vital areas of power than does, say, a prime minister of a country with a parliamentary form of government. In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry—in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For without an informed and free press there cannot be an enlightened people. Yet it is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy. Other nations can hardly deal with this Nation in an atmosphere of mutual trust unless they can be assured that their confidences will be kept. And within our own executive departments, the development of considered and intelligent international policies would be impossible if those charged with their formulation could not communicate with each other freely, frankly, and in confidence. In the area of basic national defense the frequent need for absolute secrecy is, of course, self-evident. I think there can be but one answer to this dilemma, if dilemma it be. The responsibility must be where the power is. If the Constitution gives the Executive a large degree of unshared power in the conduct of foreign affairs and the maintenance of our national defense, then under the Constitution the Executive must have the largely unshared duty to determine and preserve the degree of internal security necessary to exercise that power successfully. It is an awesome responsibility, requiring judgment and wisdom of a high order. I should suppose that moral, political, and practical considerations would dictate that a very first principle of that wisdom would be an insistence upon avoiding secrecy for its own sake. For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion. I should suppose, in short, that the

hallmark of a truly effective internal security system would be the maximum possible disclosure, recognizing that secrecy can best be preserved only when credibility is truly maintained. But be that as it may, it is clear to me that it is the constitutional duty of the Executive—as a matter of sovereign prerogative and not as a matter of law as the courts know law— through the promulgation and enforcement of executive regulations, to protect the confidentiality necessary to carry out its responsibilities in the fields of international relations and national defense. This is not to say that Congress and the courts have no role to play. Undoubtedly Congress has the power to enact specific and appropriate criminal laws to protect government property and preserve government secrets. Congress has passed such laws, and several of them are of very colorable relevance to the apparent circumstances of these cases. And if a criminal prosecution is instituted, it will be the responsibility of the courts to decide the applicability of the criminal law under which the charge is brought. Moreover, if Congress should pass a specific law authorizing civil proceedings in this field, the courts would likewise have the duty to decide the constitutionality of such a law as well as its applicability to the facts proved. But in the cases before us we are asked neither to construe specific regulations nor to apply specific laws. We are asked, instead, to perform a function that the Constitution gave to the Executive, not the Judiciary. We are asked, quite simply, to prevent the publication by two newspapers of material that the Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people. That being so, there can under the First Amendment be but one judicial resolution of the issues before us. I join the judgments of the Court. JUSTICE WHITE, joined by JUSTICE STEWART, concurring: I concur in today’s judgments, but only because of the concededly extraordinary protection against prior restraints enjoyed by the press under our constitutional system. I do not say that in no circumstances would the First Amendment permit an injunction against publishing information about government plans or Freedom of the Press and Association

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operations. Nor, after examining the materials the Government characterizes as the most sensitive and destructive, can I deny that revelation of these documents will do substantial damage to public interests. Indeed, I am confident that their disclosure will have that result. But I nevertheless agree that the United States has not satisfied the very heavy burden that it must meet to warrant an injunction against publication in these cases, at least in the absence of express and appropriately limited congressional authorization for prior restraints in circumstances such as these. The Government’s position is simply stated: The responsibility of the Executive for the conduct of the foreign affairs and for the security of the Nation is so basic that the President is entitled to an injunction against publication of a newspaper story whenever he can convince a court that the information to be revealed threatens “grave and irreparable” injury to the public interest; and the injunction should issue whether or not the material to be published is classified, whether or not publication would be lawful under relevant criminal statutes enacted by Congress, and regardless of the circumstances by which the newspaper came into possession of the information. At least in the absence of legislation by Congress, based on its own investigations and findings, I am quite unable to agree that the inherent powers of the Executive and the courts reach so far as to authorize remedies having such sweeping potential for inhibiting publications by the press. . . . What is more, terminating the ban on publication of the relatively few sensitive documents the Government now seeks to suppress does not mean that the law either requires or invites newspapers or others to publish them or that they will be immune from criminal action if they do. Prior restraints require an unusually heavy justification under the First Amendment; but failure by the Government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication. That the Government mistakenly chose to proceed by injunction does not mean that it could not successfully proceed in another way. . . . The Criminal Code contains numerous provisions potentially relevant to these cases. Section 7975 makes it a crime to publish certain photographs or drawings of military installations. Section 798, also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems or communication intelligence activities of the United 174

States as well as any information obtained from communication intelligence operations. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint. The same would be true under those sections of the Criminal Code casting a wider net to protect the national defense. Section 793(e) makes it a criminal act for any unauthorized possessor of a document “relating to the national defense” either (1) willfully to communicate or cause to be communicated that document to any person not entitled to receive it or (2) willfully to retain the document and fail to deliver it to an officer of the United States entitled to receive it. . . . It is thus clear that Congress has addressed itself to the problems of protecting the security of the country and the national defense from unauthorized disclosure of potentially damaging information. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585–586 (1952); see also id., at 593–628 (FRANKFURTER, J., concurring). It has not, however, authorized the injunctive remedy against threatened publication. It has apparently been satisfied to rely on criminal sanctions and their deterrent effect on the responsible as well as the irresponsible press. I am not, of course, saying that either of these newspapers has yet committed a crime or that either would commit a crime if it published all the material now in its possession. That matter must await resolution in the context of a criminal proceeding if one is instituted by the United States. In that event, the issue of guilt or innocence would be determined by procedures and standards quite different from those that have purported to govern these injunctive proceedings. JUSTICE MARSHALL, concurring: The Government contends that the only issue in these cases is whether in a suit by the United States, “the First Amendment bars a court from prohibiting a newspaper from publishing material whose disclosure would pose a ‘grave and immediate danger to the security of the United States.’” With all due respect, I believe the ultimate issue in these cases is even more basic than the one posed by the Solicitor General. The issue is whether this Court or the Congress has the power to make law.

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In these cases there is no problem concerning the President’s power to classify information as “secret” or “top secret.” Congress has specifically recognized Presidential authority, which has been formally exercised in Exec. Order 10501 (1953), to classify documents and information. See, e.g., 18 U.S.C. 798; 50 U.S.C. 783. Nor is there any issue here regarding the President’s power as Chief Executive and Commander in Chief to protect national security by disciplining employees who disclose information and by taking precautions to prevent leaks. The problem here is whether in these particular cases the Executive Branch has authority to invoke the equity jurisdiction of the courts to protect what it believes to be the national interest. See In re Debs, 158 U.S. 564, 584 (1895). The Government argues that in addition to the inherent power of any government to protect itself, the President’s power to conduct foreign affairs and his position as Commander in Chief give him authority to impose censorship on the press to protect his ability to deal effectively with foreign nations and to conduct the military affairs of the country. Of course, it is beyond cavil that the President has broad powers by virtue of his primary responsibility for the conduct of our foreign affairs and his position as Commander in Chief. . . . It would, however, be utterly inconsistent with the concept of separation of powers for this Court to use its power of contempt to prevent behavior that Congress has specifically declined to prohibit. There would be a similar damage to the basic concept of these co-equal branches of Government if when the Executive Branch has adequate authority granted by Congress to protect “national security” it can choose instead to invoke the contempt power of a court to enjoin the threatened conduct. . . . It may be more convenient for the Executive Branch if it need only convince a judge to prohibit conduct rather than ask the Congress to pass a law, and it may be more convenient to enforce a contempt order than to seek a criminal conviction in a jury trial. Moreover, it may be considered politically wise to get a court to share the responsibility for arresting those who the Executive Branch has probable cause to believe are violating the law. But convenience and political considerations of the moment do not justify a basic departure from the principles of our system of government. In these cases we are not faced with a situation where Congress has failed to provide the Executive with broad power to protect the Nation from disclosure of damaging state secrets. Congress has on

several occasions given extensive consideration to the problem of protecting the military and strategic secrets of the United States. This consideration has resulted in the enactment of statutes making it a crime to receive, disclose, communicate, withhold, and publish certain documents, photographs, instruments, appliances, and information. . . . The Solicitor General does not even mention in his brief whether the Government considers that there is probable cause to believe a crime has been committed or whether there is a conspiracy to commit future crimes. . . . CHIEF JUSTICE BURGER, dissenting: So clear are the constitutional limitations on prior restraint against expression, that from the time of Near v. Minnesota, 283 U.S. 697 (1931), until recently in Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), we have had little occasion to be concerned with cases involving prior restraints against news reporting on matters of public interest. There is, therefore, little variation among the members of the Court in terms of resistance to prior restraints against publication. Adherence to this basic constitutional principle, however, does not make these cases simple. In these cases, the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government and specifically the effective exercise of certain constitutional powers of the Executive. Only those who view the First Amendment as an absolute in all circumstances—a view I respect, but reject—can find such cases as these to be simple or easy. These cases are not simple for another and more immediate reason. We do not know the facts of the cases. No District Judge knew all the facts. No Court of Appeals judge knew all the facts. No member of this Court knows all the facts. Why are we in this posture, in which only those judges to whom the First Amendment is absolute and permits of no restraint in any circumstances or for any reason, are really in a position to act? I suggest we are in this posture because these cases have been conducted in unseemly haste. JUSTICE HARLAN covers the chronology of events demonstrating the hectic pressures under which these cases have been processed and I need not restate them. The prompt setting of these cases reflects our universal abhorrence of prior restraint. Freedom of the Press and Association

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But prompt judicial action does not mean unjudicial haste. Here, moreover, the frenetic haste is due in large part to the manner in which the Times proceeded from the date it obtained the purloined documents. It seems reasonably clear now that the haste precluded reasonable and deliberate judicial treatment of these cases and was not warranted. The precipitate action of this Court aborting trials not yet completed is not the kind of judicial conduct that ought to attend the disposition of a great issue. The newspapers make a derivative claim under the First Amendment; they denominate this right as the public “right to know”; by implication, the Times asserts a sole trusteeship of that right by virtue of its journalistic “scoop.” The right is asserted as an absolute. Of course, the First Amendment right itself is not an absolute, as JUSTICE HOLMES so long ago pointed out in his aphorism concerning the right to shout “fire” in a crowded theater if there was no fire. There are other exceptions, some of which Chief JUSTICE HUGHES mentioned by way of example in Near v. Minnesota. There are no doubt other exceptions no one has had occasion to describe or discuss. Conceivably such exceptions may be lurking in these cases and would have been flushed had they been properly considered in the trial courts, free from unwarranted deadlines and frenetic pressures. An issue of this importance should be tried and heard in a judicial atmosphere conducive to thoughtful, reflective deliberation, especially when haste, in terms of hours, is unwarranted in light of the long period the Times, by its own choice, deferred publication. It is not disputed that the Times has had unauthorized possession of the documents for three to four months, during which it has had its expert analysts studying them, presumably digesting them and preparing the material for publication. During all of this time, the Times, presumably in its capacity as trustee of the public’s “right to know,” has held up publication for purposes it considered proper and thus public knowledge was delayed. No doubt this was for a good reason; the analysis of 7,000 pages of complex material drawn from a vastly greater volume of material would inevitably take time and the writing of good news stories takes time. But why should the United States Government, from whom this information was illegally acquired by someone, along with all the counsel, trial judges, and appellate judges be placed under needless pressure? After

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these months of deferral, the alleged “right to know” has somehow and suddenly become a right that must be vindicated instanter. Would it have been unreasonable, since the newspaper could anticipate the Government’s objections to release of secret material, to give the Government an opportunity to review the entire collection and determine whether agreement could be reached on publication? Stolen or not, if security was not in fact jeopardized, much of the material could no doubt have been declassified, since it spans a period ending in 1968. With such an approach—one that great newspapers have in the past practiced and stated editorially to be the duty of an honorable press—the newspapers and Government might well have narrowed the area of disagreement as to what was and was not publishable, leaving the remainder to be resolved in orderly litigation, if necessary. To me it is hardly believable that a newspaper long regarded as a great institution in American life would fail to perform one of the basic and simple duties of every citizen with respect to the discovery or possession of stolen property or secret government documents. That duty, I had thought—perhaps naively— was to report forthwith, to responsible public officers. This duty rests on taxi drivers, Justices, and the New York Times. The course followed by the Times, whether so calculated or not, removed any possibility of orderly litigation of the issues. If the action of the judges up to now has been correct, that result is sheer happenstance. Our grant of the writ of certiorari before final judgment in the Times case aborted the trial in the District Court before it had made a complete record pursuant to the mandate of the Court of Appeals for the Second Circuit. The consequence of all this melancholy series of events is that we literally do not know what we are acting on. As I see it, we have been forced to deal with litigation concerning rights of great magnitude without an adequate record, and surely without time for adequate treatment either in the prior proceedings or in this Court. It is interesting to note that counsel on both sides, in oral argument before this Court, were frequently unable to respond to questions on factual points. Not surprisingly they pointed out that they had been working literally “around the clock” and simply were unable to review the documents that give rise to these cases and were not familiar with them. This Court is in no better posture. I agree generally with JUSTICE HARLAN and JUSTICE BLACKMUN but I am not prepared to reach the merits. . . .

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We all crave speedier judicial processes but when judges are pressured as in these cases the result is a parody of the judicial function. JUSTICE HARLAN, joined by CHIEF JUSTICE BURGER and JUSTICE BLACKMUN, dissenting: With all respect, I consider that the Court has been almost irresponsibly feverish in dealing with these cases. Both the Court of Appeals for the Second Circuit and the Court of Appeals for the District of Columbia Circuit rendered judgment on June 23. The New York Times’ petition for certiorari, its motion for accelerated consideration thereof, and its application for interim relief were filed in this Court on June 24 at about 11 A.M. The application of the United States for interim relief in the Post case was also filed here on June 24 at about 7:15 P.M. This Court’s order setting a hearing before us on June 26 at 11 A.M., a course which I joined only to avoid the possibility of even more peremptory action by the Court, was issued less than 24 hours before. The record in the Post case was filed with the Clerk shortly before 1 P.M . on June 25; the record in the Times case did not arrive until 7 or 8 o’clock that same night. The briefs of the parties were received less than two hours before argument on June 26. This frenzied train of events took place in the name of the presumption against prior restraints created by the First Amendment. Due regard for the extraordinarily important and difficult questions involved in these litigations should have led the Court to shun such a precipitate timetable. In order to decide the merits of these cases properly, some or all of the following questions should have been faced: 1. Whether the Attorney General is authorized to bring these suits in the name of the United States. Compare In re Debs, 158 U.S. 564 (1895), with Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). This question involves as well the construction and validity of a singularly opaque statute—the Espionage Act, 18 U.S.C. 793 (e). 2. Whether the First Amendment permits the federal courts to enjoin publication of stories which would present a serious threat to national security. See Near v. Minnesota, 283 U.S. 697, 716 (1931) (dictum).

3. Whether the threat to publish highly secret documents is of itself a sufficient implication of national security to justify an injunction on the theory that regardless of the contents of the documents harm enough results simply from the demonstration of such a breach of secrecy. 4. Whether the unauthorized disclosure of any of these particular documents would seriously impair the national security. 5. What weight should be given to the opinion of high officers in the Executive Branch of the Government with respect to questions 3 and 4. 6. Whether the newspapers are entitled to retain and use the documents notwithstanding the seemingly uncontested facts that the documents, or the originals of which they are duplicates, were purloined from the Government’s possession and that the newspapers received them with knowledge that they had been feloniously acquired. Cf. Liberty Lobby, Inc. v. Pearson, 129 U.S. App. D.C. 74, 390 F.2d 489 (1967, amended 1968). 7. Whether the threatened harm to the national security or the Government’s possessory interest in the documents justifies the issuance of an injunction against publication in light of— a. The strong First Amendment policy against prior restraints on publication; b. The doctrine against enjoining conduct in violation of criminal statutes; and c. The extent to which the materials at issue have apparently already been otherwise disseminated. These are difficult questions of fact, of law, and of judgment; the potential consequences of erroneous decision are enormous. The time which has been available to us, to the lower courts, and to the parties has been wholly inadequate for giving these cases the kind of consideration they deserve. It is a reflection on the stability of the judicial process that these great issues—as important as any that have arisen during my time on the Court—should have been decided under the pressures engendered by the torrent of publicity that has attended these litigations from their inception. Forced as I am to reach the merits of these cases, I dissent from the opinion and judgments of the Court. . . . The power to evaluate the “pernicious influence” of premature disclosure is not . . . lodged in the Executive alone. I agree that, in performance of its duty to protect the values of the First Amendment

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against political pressures, the judiciary must review the initial Executive determination to the point of satisfying itself that the subject matter of the dispute does lie within the proper compass of the President’s foreign relations power. Constitutional considerations forbid “a complete abandonment of judicial control.” Cf. United States v. Reynolds, 345 U.S. 1, 8 (1953). Moreover, the judiciary may properly insist that the determination that disclosure of the subject matter would irreparably impair the national security be made by the head of the Executive Department concerned—here the Secretary of State or the Secretary of Defense—after actual personal consideration by that officer. This safeguard is required in the analogous area of executive claims of privilege for secrets of state. See id., at 8 and n. 20; Duncan v. Cammell, Laird & Co., 1942. A. C. 624, 638 (House of Lords). But in my judgment the judiciary may not properly go beyond these two inquiries and redetermine for itself the probable impact of disclosure on the national security. “[T]he very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.” Chicago & Southern Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948) (Jackson, J.). . . . JUSTICE BLACKMUN, dissenting: I join MR. JUSTICE HARLAN in his dissent. I also am in substantial accord with much that JUSTICE WHITE says, by way of admonition, in the latter part of his opinion. The First Amendment, after all, is only one part of an entire Constitution. Article II of the great document vests in the Executive Branch primary power over the conduct of foreign affairs and places in that branch the responsibility for the Nation’s safety. Each provision of the Constitution is important, and I cannot subscribe to a doctrine of unlimited 178

absolutism for the First Amendment at the cost of downgrading other provisions. First Amendment absolutism has never commanded a majority of this Court. See, for example, Near v. Minnesota, 283 U.S. 697, 708 (1931), and Schenck v. United States, 249 U.S. 47, 52 (1919). What is needed here is a weighing, upon properly developed standards, of the broad right of the press to print and of the very narrow right of the Government to prevent. Such standards are not yet developed. . . . It may well be that if these cases were allowed to develop as they should be developed, and to be tried as lawyers should try them and as courts should hear them, free of pressure and panic and sensationalism, other light would be shed on the situation and contrary considerations, for me, might prevail. But that is not the present posture of the litigation. The Court, however, decides the cases today the other way. I therefore add one final comment. I strongly urge, and sincerely hope, that these two newspapers will be fully aware of their ultimate responsibilities to the United States of America. Judge Wilkey, dissenting in the District of Columbia case, after a review of only the affidavits before his court (the basic papers had not then been made available by either party), concluded that there were a number of examples of documents that, if in the possession of the Post, and if published, “could clearly result in great harm to the nation,” and he defined “harm” to mean “the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate. . . .” I, for one, have now been able to give at least some cursory study not only to the affidavits, but to the material itself. I regret to say that from this examination I fear that Judge Wilkey’s statements have possible foundation. I therefore share his concern. I hope that damage has not already been done. If, however, damage has been done, and if, with the Court’s action today, these newspapers proceed to publish the critical documents and there results therefrom “the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate,” to which list I might add the factors of prolongation of the war and of further delay in the freeing of United States prisoners, then the Nation’s people will know where the responsibility for these sad consequences rests.

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THE VARIOUS MEDIA When this nation was founded, “the press” obviously referred to printed matter. Early on, the Court distinguished print media from broadcast media. As doctrine has evolved, the government has virtually no say over print media. The broadcast media have been another story. The main justification for this distinction has been that the broadcast bands are a scarce public good; therefore, the government must be in the business of allocating that resource. When it determines what person or corporation has the right to broadcast on a certain band, the government inevitably favors one set of ideas over another. As such, it has a responsibility to regulate for the public good, which it does through the Federal Communications Commission (FCC). In order to get their licenses renewed, broadcasters must abide by regulations. One regulation is that they must “prove” that they are serving the public in exchange for the granting of this valuable resource. Proof of serving the public good comes in various ways. A broadcaster can serve the public good by running public service announcements, granting time for political debates, and maintaining standards of decency, as well as in other ways. It is important not to confuse debates that have gone on within the FCC over what should be regulated with the issue of whether regulations are constitutional. For example, the FCC may determine that in order to qualify as serving the public interest a radio station must grant an equal time provision to opposing views, or that programs appearing on prime-time television must uphold a certain standard of dress or language. But the FCC may well change its policies, and sometimes FCC commissioners express their own thoughts about what the Constitution requires. Such statements do not make it so. Over the last twenty years, the FCC has changed many of its requirements, and debates within the FCC have been particularly contentious— some arguing for more regulation, some for less. An infamous “wardrobe malfunction” at the 2004 Superbowl halftime show helped reignite calls for tighter regulation, but the debates were already occurring. Though the broadcast media are regulated, it does not mean that they are completely unprotected by the First Amendment. Efforts to regulate the press have often come about under “access” laws. Early on, the FCC instituted a “fairness doctrine” that imposed “on radio and television broadcasters the requirement that

discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage.” It also gave individuals who had been attacked the right to reply. In Red Lion Broadcasting Co. v. FCC (395 U.S. 367, 1969), we get a clear statement about why the broadcast media are considered unique and why the fairness doctrine was constitutional. Writing for the Court, Justice White said: Although broadcasting is clearly a medium affected by a First Amendment interest, differences in the characteristics of new media justify differences in the First Amendment standards applied to them. When there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or publish . . . . . . as far as the First Amendment is concerned those who are licensed stand no better than those to whom licenses are refused. A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. . . . [The] people as a whole retain their interest in free speech by radio and their collective right to have the medium functions consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount . . . [We cannot] say that it is inconsistent with the First Amendment goal of producing an informed public capable of conducting its own affairs to require a broadcaster to permit answers to personal attacks . . . or to require that the political opponents of those endorsed by the station be given a chance to communicate with the public. Otherwise, station owners and a few networks would have unfettered power to make time available only to the highest bidders . . .and to permit on the air only those with whom they agreed. There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all. . . .

In 1987, the FCC repealed the fairness doctrine, but not because it was unconstitutional in the eyes of the Supreme Court. In the case of newspapers, however, access laws met a different fate. In Miami Herald Publishing Co. v. Tornillo (418 U.S. 241, 1974), the Court struck down a Florida “right-to-reply” statute. The statute required “that if a candidate for [political] office is Freedom of the Press and Association

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assailed regarding his personal character or official record by any newspaper, the candidate has the right to demand that the newspaper print, free of cost to the candidate, any reply the candidate may make to the newspaper’s charges. The reply must appear in as conspicuous a place and in the same kind of type as the charges which prompted the reply, provided it does not take up more space than the charges.” Writing for a unanimous Court, Chief Justice Burger described this statute as a violation of freedom of the press because of its “intrusion into the functions of editors in choosing what materials they wish to print” and choosing what issues and public officials they wish to feature. Chief Justice Burger concluded that such governmental regulation of editorial control and judgment is inconsistent with the First Amendment’s guarantee of a free press. One criticism of the dual standard is that although in theory anyone can start a newspaper or magazine, the reality is something else in a world of large corporate print media companies. Others have claimed that the distinction is premised on the fact that the different media do not compete effectively with one another, which is not true. (See Powe, “Or of the [Broadcast] Press,” 55 Tex L. Rev. 39, 1976). Broadcast regulations have run into First Amendment problems, especially when they are seen as dealing with editorial judgment. For example, in 1984, the Court struck down a law banning editorials on public broadcasting stations (FCC v. League of Women Voters of California, 486 U.S. 364). Another important broadcast case, FCC v. Pacifica, was discussed in the previous chapter. Although the regulations were upheld, the dissenting justices protested strongly. Even the majority opinion acknowledged potential First Amendment problems but thought that such problems did not apply to that particular case. The advent of cable has also changed things somewhat, particularly in that it mitigates the broadband scarcity argument. Two cases are particularly noteworthy. The Federal Cable Act required that cable companies carry local broadcast stations, a rule to which cable companies objected. In Turner Broadcast System, Inc. v. FCC (512 U.S. 622, 1994) and Turner Broadcast System Inc., v. FCC (520 U.S. 180, 1997) (also known as Turner II), the Court unanimously agreed that cable should not be governed by the same standards as regular broadcasts. Justices disagreed sharply, however on other aspects of the cases. The plurality said that the regulations should be evaluated under intermediate scrutiny 180

because there was no content discrimination, but Justice O’Connor in Turner II felt that there was potential content discrimination that required a higher level of scrutiny. Disagreements continue about the proper standards to be used when dealing with cable, as evidenced in Denver Area Educational Telecommunications Consortium, Inc. v. FCC (518 U.S. 727, 1996). Finally, there is the Internet. Well, maybe not finally. Who knows what other media will emerge? Can the Internet be properly viewed as a press medium? Increasingly, the traditional press is not the main source of information for people. The Internet, however, uses both traditional press sources and writings by freelance journalists or bloggers. Do bloggers count as journalists who can seek Constitutional protection as members of the press? (Some of these issues were discussed in the previous chapter; also, see Reno v. ACLU.) Such complexities make some of the discussion that follows even more interesting because we must determine who exactly qualifies as the press and thus merits First Amendment protection.

IS THE PRESS “SPECIAL”? There are many issues at many levels about the meaning of freedom of the press, but perhaps the main issue is whether the press is special or whether its rights are simply coextensive with expression rights that have come to be guaranteed by the speech clause. That is, some people argue that the only rights of expression that are guaranteed to the press are the rights that are guaranteed to everyone under the speech clause—no more, no less. Others argue that the separate constitutional clause for the press justifies special constitutional protection. For example, should reporters be treated differently from ordinary citizens with regard to being compelled to testify at a grand jury, even though it might compromise the promises of confidentiality they have made to their sources? If the government decides that the public may be denied access to certain places, say, a maximum security prison, does that mean that the press can be excluded to the same degree? Separating the rights of the press from general rights of expression can cut both ways. It could serve either to strengthen or dilute the protections of the press. Eisenhower appointee Justice Potter Stewart was the primary proponent on the Court of a special

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status for the press. In a speech at the Yale Law School reprinted in the Hastings Law Journal, he said: [T]he . . . guarantee is, in essence, a structural provision of the Constitution. Most of the other provisions in the Bill of Rights protect specific liberties or specific rights of individuals: freedom of speech, freedom of worship, the right to counsel, the privilege against compulsory self-incrimination, to name a few. In contrast, the Free Press Clause extends protection to an institution. The publishing business is, in short, the only organized private business that is given explicit constitutional protection. The basic understanding is essential, I think, to avoid an elementary error of constitutional law. It is tempting to suggest that freedom of the press means only that newspaper publishers are guaranteed freedom of expression. They are guaranteed that freedom, to be sure, but so are we all, because of the Free Speech Clause. If the Free Press guarantee meant no more than freedom of expression, it would be a constitutional redundancy. Between 1776 and the drafting of our Constitution, many of the state constitutions contained clauses protecting freedom of the press while at the same time recognizing no general freedom of speech. By including both guarantees in the First Amendment, the Founders quite clearly recognized the distinction between the two. It is also a mistake to suppose that the only purpose of the constitutional guarantee of a free press is to insure that a newspaper will serve as a neutral forum for debate, a “market place of ideas,” a kind of Hyde Park corner for the community. . . . The primary purpose of the constitutional guarantee of a free press was . . . to create a fourth institution outside the Government as an additional check on the three official branches. . . . The relevant metaphor, I think, is the metaphor of the Fourth Estate. What Thomas Carlyle wrote about the British Government a century ago has a curiously contemporary ring: Burke said there are Three Estates in Parliament; but, in the Reporters’ Gallery yonder, there sat a Fourth Estate more important far than they all. It is not a figure of speech or witty saying; it is a literal fact—very momentous to us in these times. For centuries before our Revolution, the press in England had been licensed, censored, and bedeviled by prosecutions for seditious libel. The British Crown knew that a free press was not just a neutral vehicle for the balanced discussion of diverse ideas. Instead, the free press meant organized, expert scrutiny of government. The press was a conspiracy of the intellect, with the courage of numbers. This formidable check on official power was what the

British Crown had feared—and what the American Founders decided to risk. It is this constitutional understanding, I think, that provides the unifying principle underlying the Supreme Court’s recent decisions dealing with the organized press.

Other justices have rejected Justice Stewart’s views. A response to Justice Stewart’s thesis was given by Chief Justice Warren Burger in a case involving national banking associations and business corporations that wanted to spend money to publicize their views opposing a referendum proposal (First National Bank of Boston v. Bellotti, 435 U.S. 765, 1978.) Chief Justice Burger said: The Court has not yet squarely resolved whether the Press Clause confers upon the “institutional press” any freedom from government restraint not enjoyed by all others. . . . First, although certainty on this point is not possible, the history of the Clause does not suggest that the authors contemplated a “special” or “institutional” privilege. See Lange, “The Speech and Press Clauses,” 23 UCLA L. Rev. 77, 88–99 (1975). . . . Indeed most pre-First Amendment commentators “who employed the term ‘freedom of speech’ with great frequency, used it synonymously with freedom of the press.” L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 174 (1960). Those interpreting the Press Clause as extending protection only to, or creating a special role for, the “institutional press” must either (a) assert such an intention on the part of the Framers for which no supporting evidence is available . . .;(b) argue that events after 1791 somehow operated to “constitutionalize” this interpretation . . .; or (c) candidly acknowledging the absence of historical support, suggest that the intent of the Framers is not important today. . . . To conclude that the Framers did not intend to limit the freedom of the press to one select group is not necessarily to suggest that the Press Clause is redundant. The Speech Clause standing alone may be viewed as a protection of the liberty to express ideas and beliefs, while the Press Clause [435 U.S. 765, 800] focuses specifically on the liberty to disseminate expression broadly and “comprehends every sort of publication which affords a vehicle of information and opinion.” Lovell v. Griffin, 303 U.S. 444, 452 (1938). Yet there is no fundamental distinction between expression and dissemination. The liberty encompassed by the Press Clause, although complementary to and a natural extension of Speech Clause liberty, merited special mention Freedom of the Press and Association

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simply because it had been more often the object of official restraints. Soon after the invention of the printing press, English and continental monarchs, fearful of the power implicit in its use and the threat to Establishment thought and order—political and religious—devised restraints, such as licensing, censors, indices of prohibited books, and prosecutions for seditious libel, which generally [435 U.S. 765, 801] were unknown in the pre-printing press era. Official restrictions were the official response to the new, disquieting idea that this invention would provide a means for mass communication. The second fundamental difficulty with interpreting the Press Clause as conferring special status on a limited group is one of definition. See Lange, supra, at 100–107. The very task of including some entities within the “institutional press” while excluding others, whether undertaken by legislature, court, or administrative agency, is reminiscent of the abhorred licensing system of Tudor and Stuart England—a system the First Amendment was intended to ban from this country . . . Freedom of the press is a “fundamental personal right” which “is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.” . . . The informative function asserted by representatives of the organized press . . . is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow [435 U.S. 765, 802] of information to the public. . . . Branzburg v. Hayes, 408 U.S. 665, 704–705 (1972), quoting Lovell v. Griffin, supra, at 450, 452. . . . Because the First Amendment was meant to guarantee freedom to express and communicate ideas, I can see no difference between the right of those who seek to disseminate ideas by way of a newspaper and those who give lectures or speeches and seek to enlarge the audience by publication and wide dissemination. “[T]he purpose of the Constitution was not to erect the press into a privileged institution but to protect all persons in their right to print what they will as well as to utter it. ‘ . . . the liberty of the press is no greater and no less . . .’ than the liberty of every citizen of the Republic.” Pennekamp v. Florida, 328 U.S. 331, 364 (1946) (FRANKFURTER, J., concurring). In short, the First Amendment does not “belong” to any definable category of persons or entities: It belongs to all who exercise its freedoms.

The debate continues. Sometimes the press receives special treatment; other times it does not. 182

The Court has held that the press is not exempt from laws of general applicability (Cohen v. Cowles Media Co., 501 U.S. 663, 1991). For example, laws regulating collective bargaining apply to pressrelated businesses just as they do to any other business. On the other hand, the Court has a long-standing skepticism of tax schemes that seem targeted at the press. For as we all know from another context, “the power to tax is the power to destroy.” One relevant case involved a tax on advertisements in publications that had a circulation of more than 20,000 copies a week (Grosjean v. American Press Co., 297 U.S. 233, 1936). The tax was probably an effort by Louisiana governor Huey Long to punish papers that had opposed him. In 1983, the Court declared that a tax on print and ink was unconstitutional in Minneapolis Star v. Commissioner of Revenue, 460 U.S. 575.

FREEDOM OF THE PRESS AND THE JUDICIAL PROCESS FEATURED CASE

Nebraska Press Association v. Stuart The area in which the Court has most directly wrestled with the concept of whether the press deserves special constitutional protection is regarding judicial processes. Such cases pit the press clause against other specific constitutional guarantees. They also address indirectly the concept that was broached in Chapter 3 of whether First Amendment rights are preferred freedoms. As such, these cases deserve consideration for reasons beyond the particular issues at hand. FAIR TRIAL V. FREE PRESS

One of the most controversial issues to reach the Court during the 1960s involved the conflicting constitutional claims of an accused person to a fair trial, free from prejudicial publicity, and of a “free press” to gather and report news about a criminal case. To balance these interests, for example, the Court in one case emphasized that the maintenance of an atmosphere free from inflamed public opinion is essential to the selection of an unbiased jury. Thus, in Irwin v. Dowd (366 U.S. 717, 1961) the Court, for the first time, reversed a state conviction solely on the ground of prejudicial pretrial publicity. Justice Tom Clark’s opinion for the Court cited the “pattern of deep and

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bitter prejudice” permeating the community, which was reflected in the “voir dire examination of the majority of the jurors.” He further noted that eight of the twelve jurors had expressed the belief that the petitioner was guilty. Consequently, he concluded that the jurors’ sincere assurances of fairness and impartiality could be given little weight in meeting the constitutional requirement of impartiality, particularly when a life was at stake. Five years later, in Sheppard v. Maxwell (384 U.S. 333, 1966), the Court reversed a state murder conviction because of prejudicial publicity both before and during the trial. Referring to the “Roman holiday” atmosphere created by “circulation-conscious editors catering to the insatiable interest of the American public in the bizarre,” Justice Tom Clark contended that the public had been so inflamed and prejudiced that a fair trial before an impartial jury was impossible. He condemned the trial court for permitting the trial to take place in a “carnival atmosphere” and for its failure to take the necessary precautions to insulate the jury. The use of television presented the Court with another dimension of the fair trial–free press issue. In Rideau v. Louisiana (373 U.S. 723, 1963), the Court reversed a murder conviction in which the defendant’s confession was presented on live television and then replayed on two other occasions. Noting that the station’s viewing range covered the entire area from which jurors were drawn, the Court held that refusal of the defendant’s request for a change of venue was a denial of due process. Televising of the actual trial was at issue in Estes v. Texas (381 U.S. 532, 1965). The case presented an appeal of the conviction of Texas financier Billie Sol Estes for swindling. Under Texas law, the televising of court proceedings was left to the discretion of the trial judge. A motion to prohibit televising the trial was rejected (the hearing on the motion was itself televised) and it proceeded under limited video coverage. In a five-to-four decision, the Court reversed the conviction and emphasized the right of the accused to have his day in court free from the distractions that are inherent in telecasting. Justice Clark, again speaking for the majority, said that “the chief function of our judicial machinery is to ascertain the truth” and that the use of television injects a factor that is irrelevant toward that end. Furthermore, he noted that television has an infectious impact on the participants in a trial. The jury, “nerve center of the factfinding process,” is subjected to considerable

distraction. The testimony of witnesses is often impaired. If the trial is being conducted before an elective judge, the political capital to be gained from such exposure may impair his or her effectiveness. Finally, the defendant may suffer from “a form of mental harassment resembling a police lineup or the third degree.” In the major dissent, Justice Potter Stewart thought that the introduction of television into the courtroom was an unwise policy but that in the case at hand, considering the “limited use of the medium,” the defendant’s constitutional rights were not impaired. Stewart expressed great concern about the “intimation” in the majority and concurring opinions that “there are limits upon the public’s right to know what goes on in the courts” and the implicit limitations on First Amendment guarantees. In Nebraska Press Association v. Stuart (427 U.S. 539, 1976), the Court once again confronted the long-standing conflict between the First Amendment’s guarantee of a free press and the Sixth Amendment’s right to a fair trial. The defendant, Erwin Charles Simants, was charged with the 1975 mass murder of six people in a small Nebraska town. To protect the defendant from prejudicial publicity, the Lincoln County District Court entered an order restraining the publication or broadcast of accounts of “confessions or admissions made by the accused or facts ‘strongly implicative’ of the accused” in the widely reported murder. The order applied to all pretrial events, including a public preliminary hearing, until a jury could be impaneled. The Nebraska Press Association challenged the gag order and carried the issue to the state supreme court. The Nebraska Supreme Court upheld the order in the interest of the defendant but modified the “absolutist position” of the district court. The modified order prohibited the reporting of “the existence and nature of any confessions or admissions” made to law enforcement officials or any third party except members of the press and also prohibited the reporting of any other information “strongly implicative of the accused.” However, a unanimous Supreme Court found the order to be unconstitutionally vague and ruled that it was an unacceptable prior restraint on speech. A general question raised by Nebraska Press Association (and other cases) has to do with journalists’ right of access to public records and public facilities. That question continues to be raised in Freedom of the Press and Association

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various contexts. For example, in an invasion-ofprivacy suit the Court set aside an award for damages against a television station that aired the name of a rape victim (Cox Broadcasting Co. v. Conn, 420 U.S. 469, 1975). Here the Court reasoned that because the name of the victim was already a part of public trial records, the media could not be prevented from reporting it to the public. However, two 1978 Court decisions blunted efforts of the press to gather and report information. In Houchins v. KQED, 438 U.S. 1 (1978), by a vote of four-tothree [Justices Brennan and Marshall did not participate], the Court reversed a lower court decision that enjoined Sheriff Houchins from denying KQED news personnel reasonable access to the county jail, including a portion of the jail where a prisoner’s suicide had reportedly occurred. Although there was no majority opinion to support the Court’s position, the opinion of Chief Justice Burger commanded the support of three members. In that opinion, Chief Justice Burger, joined by Justices White and Rehnquist, concluded that neither the First nor Fourteenth Amendment provides a right of access to government information or sources of information within the government’s control. Burger said that the “news media have no constitutional right of access to the county jail, over and above that of other persons, to interview inmates and make sound recordings, films, and photographs, for publication and broadcasting by newspapers, radio, and television.” In Nixon v. Warner Communications, Inc. (435 U.S. 589, 1978), television networks and others appealed a district court order that networks could not make copies of tapes introduced at the Watergate criminal trial of the defendants, at least until appeals from convictions obtained in the criminal trial were decided. In a five-to-four ruling, the Court said that release of the tapes is not required by First Amendment guarantees of freedom of press nor by the Sixth Amendment guarantee of a public trial. Rather, the Court majority held that through the Presidential Recordings Act Congress had created an administrative procedure for the processing and releasing of materials to the public, including the tapes at issue. The Court stated that “the guarantee of a public trial confers no special benefit on the press nor does it require that the trial . . . be broadcast live or on tape to the public, but such guarantee is satisfied by the opportunity of the public and the press to attend the trial to report what they have observed.” 184

In Gannett v. DePasquale (443 U.S. 368, 1979), the Court once again failed to expand access rights of the press. Here a newspaper brought suit to vacate and prohibit enforcement of trial court orders that excluded the public and press from a pretrial suppression hearing in a murder prosecution. The New York Court of Appeals upheld the exclusion orders, and the Supreme Court affirmed the ruling. In an opinion by Justice Stewart, the Court said that “members of the public have no constitutional right under the Sixth and Fourteenth Amendments to attend criminal trials” and that the exclusion orders, which were designed to ensure the defendant’s right to a fair trial, did not violate any First and Fourteenth Amendment right of the press to attend criminal trials. By 1980, however, the Court seemed to have modified the stance it had taken in Gannett. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), by a seven-to-one vote, the Court reversed a trial court order barring press and public from a murder trial. Although there was no majority opinion, several opinions filed by the justices seem to reflect the view that the right of the press and public to attend criminal trials is constitutionally based in the guarantees and protections of the First Amendment. The Court followed its Richmond principles in Chandler v. Florida (449 U.S. 560, 1981), in which it permitted television coverage of court trials. Similarly, in Globe Newspaper Co. v. Superior Ct. (457 U.S. 596, 1982), it found that a Massachusetts law violated the First Amendment. The law had required the exclusion of the press and the public from the courtroom during testimony of a minor who allegedly has been the victim of a sex offense. The Court also followed Richmond in its 1984 decision in Press–Enterprise Co. v. Superior Ct. (104 S. Ct. 819). In an opinion by Chief Justice Burger, the Court said that the press could not be excluded from the voir dire examination of prospective jurors in a criminal trial, in the instant case involving charges of rape and murder of a teenage girl. In CNN v. Noriega (111 S. Ct. 451, 1990), despite prior restraint charges, the Court, without oral argument, refused to lift a restraining order that barred Cable News Network from disclosing information that was secured from tape recordings of conversations between Manuel Noriega and his attorney. Justices Marshall and O’Connor dissented in Noriega, charging that the decision “could not be

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reconciled with the teachings” of leading cases such as Near, Nebraska Press Association v. Stuart, and New York Times v. Sullivan. CONFIDENTIALITY OF NEWS SOURCES

Rights that are protected under the freedom of the press have also come into conflict with other interests. At times, for example, the interest in protecting the confidentiality of news sources to maintain a continued supply of information has collided with the needs and interests of law enforcement. And as we will discuss later, interesting questions are also raised when the value of confidentiality to nonmedia persons conflicts with freedom of the press itself. Beginning in the 1960s, a number of groups not only vocally expressed their opposition to policies of the government and to the political system generally, but also demonstrated their opposition through illegal, obstructive actions. On occasion, the groups granted reporters access to their meetings, provided that their confidentiality was assured. But when a news story in the morning paper gives law enforcement officials reason to believe that security may be compromised (e.g., civil disorder is likely to occur) or criminal activity may be involved, can reporters be compelled to reveal their sources pursuant to certain governmental investigations or grand jury inquiries? That question was presented to the Court in Branzburg v. Hayes, In re Pappas, and United States v. Caldwell (408 U.S. 665), decided together in 1972. In all three cases, reporters attempted to avoid testifying before grand juries. In Branzburg, a Kentucky reporter who had written several major articles on drug trafficking sought to avoid being required to name the persons whom he had seen in possession of marijuana and hashish. In Pappas, a Massachusetts television reporter sought to have a grand jury summons quashed that required him to report on activities he had observed while in a Black Panther Party headquarters. And in Caldwell, the government appealed a Court of Appeals decision which held that a New York Times reporter was not in contempt for refusing to appear before a federal grand jury to discuss certain interviews that he had had with Black Panther Party members. In another five-to-four decision, in which the four Nixon appointees were joined by Justice White, the Supreme Court held that reporters were like other citizens and had no privilege to refuse a grand jury summons nor to avoid answering questions about their information or sources. In his majority opinion, Justice White rejected the claims made by the

reporters that, in order to override their First Amendment guarantees, a compelling need for the information in their possession must be demonstrated because of its relevance to a crime and because it is unavailable from other sources. White said, “The heart of the claim is that the burden on news gathering resulting from compelling reporters to disclose confidential information outweighs any public interest in obtaining the information.” Rejecting the claim, White proceeded to discuss testimonial privilege for reporters, saying that none existed at common law and that none exists by federal statute. He declined to establish such a privilege in these cases. “On the records now before us,” said White, “we perceive no basis for holding that the public interest in law enforcement in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering which is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.” Justice Stewart, joined by Justices Brennan and Marshall, issued a strong dissent. Stewart charged that the “Court’s crabbed view of the First Amendment reflects a disturbing insensitivity to the critical role of an independent press in our society. . . .” As a result of Branzburg, many states have enacted press shield laws that provide varying levels of protection to reporters to enable them to guard their sources, but the immunity is not complete, and it does not exist in all states. A 1978 Court decision is seen by some people as further subordinating the First Amendment rights of the press to the needs of law enforcement. In Zurcher v. Stanford Daily (436 U.S. 547, 1978), law enforcement officials obtained a search warrant after a judge found probable cause that the editors of the Stanford Daily (a student newspaper) possessed notes and photo negatives that could identify demonstrators who had assaulted the police. The newspaper brought action against the law enforcement officials, claiming that it had experienced a deprivation of constitutional rights under the Fourth and First Amendments. But a Supreme Court majority, led by Justice White, could find no constitutional violation. With regard to the Fourth Amendment, the Court said that “the critical element in a reasonable search is not that the property owner is suspected of crime but that there is reasonable cause to believe that the things to be searched for and seized are located on the property to which entry is sought.” Moreover, the Court held that, properly Freedom of the Press and Association

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administered, the preconditions for a search warrant (probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness), “which must be applied with particular exactitude when First Amendment interests would be endangered by the search, are adequate safeguards against the interference with the press’s ability to gather, analyze, and disseminate news that respondents claim would ensue from use of warrants for third-party searches of newspaper offices.” In the aftermath of this decision, Congress passed the Privacy Protection Act of 1980 (42 U.S.C., 2000). Rather than simply obtaining search warrants, both state and federal law enforcement officials must use subpoena procedures to get documents from persons who work in the communications industry. But what happens when the value of confidentiality to nonmedia persons collides with the rights of freedom of the press in news reporting? In a 1991 case (Cohen v. Cowles Media Co., 501 U.S. 663), the Supreme Court held that the First Amendment did not bar a suit for damages based on the breach of a promise of confidentiality made by a reporter to his news source. Here a supporter of an Independent–Republican candidate for the governorship of Minnesota gave false information about the Democratic rival to some newspapers after receiving a promise of confidentiality. Two newspapers ran editorials exposing “dirty tricks” that were based on the information, despite the promise of confidentiality that the reporters had made to the news source involved. The source, who was subsequently fired from his place of employment, sued and received compensatory and punitive damages arising out of the breach of promise of confidentiality. The Supreme Court held that the First Amendment’s protection of freedom of the press does not exempt the press from laws of general applicability, such as state contract law, that only incidentally affect First Amendment values.

THE PRESS AND DAMAGE TO REPUTATION FEATURED CASE

New York Times v. Sullivan In his opinion in Near v. Minnesota, Chief Justice Charles Evans Hughes emphasized the need for “a vigilant and courageous press” to focus attention on the malfeasance and corruption of unfaithful public officials. In that same opinion, which prohibited 186

prior restraint, the Court took solace in the fact that libel laws would serve to punish and thereby restrain press abuses. When does comment on official conduct lose its character as constitutionally protected expression and become subject to the sanctions of state libel laws? The Supreme Court supplied the answer in the 1964 landmark case New York Times v. Sullivan. The Supreme Court reversed a $500,000 judgment against the New York Times Publishing Company, which had been awarded to a local public official by an Alabama court. Paradoxically, the allegedly defamatory publication did not deal with the traditional subjects on which there has been criticism of official conduct, such as alliances with criminal elements and malfeasance in office. Instead, the publication was an editorial advertisement on the civil rights movement in the South. In setting aside the judgment, the Supreme Court both applied the brakes to southern public officials who tried to stifle criticism of their conduct in actions involving race relations and dramatically changed the concept of libel. In modern times, truth is always a defense against libel. That is, one cannot claim defamation by libel or slander if what is at issue is true. The advertisement in this case, however, contained some inaccuracies, and Sullivan alleged injury to his reputation as a public official. His complaint did not carry the day. Justice William J. Brennan, who wrote the opinion of the Court, noted that the case must be considered “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasant sharp attacks . . . on public officials.” With this principle in mind, Brennan held that the crucial question is whether the advertisement forfeited its status as constitutionally protected expression because it contained some false statements and allegedly defamed the respondent. Advancing the proposition that “erroneous statement is inevitable in free debate and . . . must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive,’ ” he concluded that “neither factual error nor defamatory content” nor “the combination of the two elements” can justify removal of “the constitutional shield from criticism of official conduct . . . unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

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Justice Hugo Black’s concurring opinion, supported by Justice William O. Douglas, set forth the absolutist position that the Times and the sponsors of the ad had an “unconditional constitutional right to publish . . . their criticisms of the Montgomery agencies and officials.” Later that year, the Court extended its New York Times rule to limit state power to impose criminal sanctions for criticism of the official conduct of public officials. In Garrison v. Louisiana (379 U.S. 64, 1964), a unanimous Court reversed the conviction of District Attorney Jim Garrison of Orleans Parish, Louisiana, for criminal defamation based on his criticism of the official conduct of judges of the parish’s Criminal District Court. In an opinion that was supported by five members of the Court, Justice Brennan rejected the contention that because “criminal libel laws serve distinct interests from those secured by civil libel laws” they should not be subject to the limitations laid down in the New York Times case. He wrote, “[t]he New York Times rule is not rendered inapplicable merely because an official’s private reputation, as well as his public reputation, is harmed. . . . [A]nything which might touch an official’s fitness for office is relevant.” He concluded that “even where the utterance is false, the great principles of the Constitution . . . preclude attaching adverse consequences to any except the knowing or reckless falsehood.” Justice Brennan noted that “actual malice” is very difficult to prove. It is a higher standard than “negligence.” In addition to meeting the criteria, it must be proved by the plaintiff with “clear and convincing evidence” and with a “preponderance of the evidence” which is a higher standard than in typical civil cases. The effect of New York Times v. Sullivan is that it is very difficult for public officials to be successful in a suit for libel. Again, the underlying justification is that the threat of lawsuits would chill speech. The New York Times may well be able to sustain financial losses, but small town newspapers could easily be put out of business by lawsuits. A vigorous press needs some “breathing space” when it comes to the discussion of politics. Also the Court believed that those in political power had venues in which they could fight back to tell their side of the story. Whereas a “public figure” or “public official” must meet the “actual malice” standard, a 1979 decision gave plaintiffs grounds in which to probe for evidence. In Herbert v. Lando (441 U.S. 153), the Court held that the “First Amendment does not bar

plaintiff from inquiring into editorial process and state of mind of those responsible for publication.” As might be expected, the Court now had to determine who was a public official for purposes of libel. The Court has never clarified this completely, but in Rosenblatt v. Baer (383 U.S. 75, 1966), the Court reversed a state libel judgment against a newspaper columnist for using defamatory falsehoods in commentary about the performance of a supervisor of a county recreation area. The Court said that public officials are “at the very least . . . those among the hierarchy of government employees who have , or appear to the public to have substantial responsibility for the control of governmental affairs.” Justice Brennan held that since the position of “supervisor of the Belknap County Recreation Area” was embraced within the term “public official” as construed in New York Times, the instructions to the jury (which permitted the jury to find that negligent misstatement of fact would abrogate the commentary’s privileged status) were defective. In the companion cases of Curtis Publishing Co. v. Butts and Associated Press v. Walker (388 U.S. 130, 1967), the Court considered whether its ruling in New York Times extended to libel actions brought by “public figures” who are “involved in issues in which the public has a justified and important interest.” The Butts case involved a federal district court libel judgment of $460,000 against the Curtis Publishing Company for publication of an article in The Saturday Evening Post in which Wally Butts, longtime football coach and athletic director of the University of Georgia, was accused of plotting to fix a football game between his school and the University of Alabama. The Walker case was an appeal from a state court libel judgment of $500,000 against the Associated Press for publication of news stories describing the role of retired Major General Edwin A. Walker in the campus disorders accompanying the enrollment of James Meredith at the University of Mississippi. There was no majority opinion in either case, but a majority of justices did agree that public figures could not receive compensation for defamation unless actual malice were proved. The New York Times doctrine was further expanded in a 1971 decision—Rosenbloom v. Metromedia, Inc. (403 U.S. 29)—that involved a libel suit brought by a private individual against a radio broadcasting corporation. Rosenbloom, a distributor of nudist magazines, was arrested for possession of obscene literature. One of Metromedia’s radio stations Freedom of the Press and Association

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ran reports concerning Rosenbloom’s subsequent suit alleging that the magazines he distributed were not obscene. The broadcast described Rosenbloom and the publisher of the magazines that were involved as being “girlie-book peddlers” and playing roles in the “smut literature racket.” Rosenbloom initiated the libel suit against Metromedia after being acquitted of criminal obscenity charges. The Court held that the New York Times standard applied to libel suits brought by private individuals as well as to suits brought by public officials or public figures as long as the subject of the suit was a matter of “public or general concern.” The Court’s decision in the case indicated that there was no evidence to support the contention that Metromedia’s descriptions of Rosenbloom, even if they were defamatory, were made with knowledge of their falsity or with a reckless disregard for the truth. Justice Brennan’s opinion, in which Chief Justice Burger and Justice Blackmun joined, explained that: [d]rawing a distinction between “public” and “private” figures makes no sense in terms of the First Amendment guarantees. The New York Times standard was applied to libel of a public official or public figure to give effect to the Amendment’s function to encourage ventilation of public issues, not because the public official has any less interest in protecting his reputation than an individual in private life. . . . If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not ‘voluntarily’ choose to become involved.”

Justice Brennan’s view was never accepted by a majority and was expressly rejected later. In a dissent, Justice Harlan contended that “special considerations” compel us to use a different test when public officials or public figures rather than purely private individuals are the plaintiffs. Justice Marshall, usually an ally of Justice Brennan, wrote a dissent that was critical of Brennan’s “public or general concern” test, arguing that it “threatens society’s interest in protecting private individuals from being thrust into the public eye by the distorting light of defamation” since “all human events are arguably within the area of public or general concern.” Three years later, in Gertz v. Robert Welch, Inc. (418 U.S. 323, 1974), the Court eliminated some of the confusion fostered by the five separate opinions in Rosenbloom when it held that the New York Times v. Sullivan rule was not applicable in determining media liability for alleged defamation of private 188

persons. Gertz was a prominent Chicago attorney who was defamed in a publication by the John Birch Society. The Court held that private individuals, in contrast with public figures, did not have to prove “actual malice” to recover damages in libel actions. In his opinion for the Court, Justice Lewis Powell noted the greater access of public officials and public figures to the media for counteracting false statements. He felt that a private individual is much “more vulnerable to injury and [hence] the state’s interest in protecting him is correspondingly greater.” Consequently, states should be accorded “substantial latitude” in fashioning legal remedies for such relief. Though Powell did not clarify exactly who should be considered a public figure, he said, “for the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classified as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issue involved.” In dissent, Chief Justice Burger complained about the Court’s departure from the orderly development of the law of defamation since the decision in New York Times v. Sullivan. He indicated his preference for the development of law as it had existed up to that point with respect to private persons, rather than embarking on “a new doctrinal theory which has no jurisprudential ancestry.” Justice Douglas’s dissent echoed his familiar theme that the First Amendment prohibits such laws absolutely. Early in 1976, the Court applied the new Gertz rule in Time v. Firestone (424 U.S. 448). Time magazine had erred in a published account about the divorce of Russell A. Firestone, Jr., the tire fortune heir. Although Mr. Firestone had charged his wife with “extreme cruelty and adultery,” the presiding judge did not specify these charges as the grounds on which he granted the divorce. The Time article did specify these charges as the grounds that were accepted by the trial court, and, when the magazine refused Mrs. Firestone’s request to retract the statement, she filed a libel suit. After losing a $100,000 damage judgment, Time appealed, arguing that because she was a public figure, Mrs. Firestone would have to prove malicious intent on the part of the magazine under the New York Times rule. Speaking for the five-to-three majority, Justice Rehnquist opined that Mrs. Firestone “did not assume any role of especial prominence in the affairs

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of society . . . and she did not thrust herself to the forefront of any public controversy in order to influence the resolution of the issues involved in it.” In short, she was deemed not to be a public figure, and according to the Gertz decision, needed only to prove negligence in order to recover damages from the publication. Because no fault was proven in state court, the case was remanded. Similarly, in a 1979 decision (Wolston v. Reader’s Digest Association, Inc., 443 U.S. 157), an eight-toone Court majority stated that Wolston, who had been convicted for a relatively minor infraction years before, was not a public figure within the meaning of its defamation cases and therefore “was not required by the First Amendment to meet the ‘actual malice’ standard of New York Times v. Sullivan.” Wolston had been convicted for not appearing before a grand jury many years before an article that described him as a Soviet agent appeared in Reader’s Digest. In Dun & Broadstreet v. Greenmoss Builders (472 U.S. 749, 1985), the Court held that not even the lesser standards of Gertz had to be applied to libel defendants if their speech was unrelated to matters of public concern. Here a credit reporting agency (Dun & Bradstreet) passed on to five subscribers an unsubstantiated and inaccurate report that Greenmoss Builders had filed for bankruptcy. Although Dun & Bradstreet attempted to overcome the error by sending a corrective notice, Greenmoss nonetheless filed a defamation suit and was awarded damages. Justice Powell spoke for a five-to-four Court majority and held that in addition to drawing a public/private figure distinction, Gertz should also be viewed as distinguishing between matters of public and private concern, the latter commanding a lesser First Amendment protection and thus according more

consideration to state libel laws. Indeed, the Court held that even absent a showing of actual malice, the First Amendment does not prevent a private person from receiving awards for presumed and punitive damages if the defamatory statements do not focus on matters of public concern (Cf. Masson v. New Yorker Magazine, Inc., 111 S. Ct. 2419, 1991). The tort of defamation, which includes libel and slander, is the most common issue for the press, but there is also a tort of intentional infliction of emotional distress. In Hustler Magazine v. Falwell (485 U.S. 46, 1988), the Court held that the New York Times v. Sullivan applied. Jerry Falwell, a conservative evangelical preacher who was famous for his role in religion and politics—particularly his founding of the Moral Majority and founding of Liberty University—was portrayed in an ad parody. A series of ads with double entendre about the “first time” portrayed him in a cartoon having his first sexual experience with his mother in an outhouse. The ad was published alongside a disclaimer that said it should not be taken seriously. Chief Justice Rehnquist, writing for the Court in a unanimous decision, said, “a bad motive may be deemed controlling for purposes of tort liability in other areas of the law [but] we think the First Amendment prohibits such a result in the area of public debate about public figures. Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be subject to damage awards. . . .The art of the cartoonist is often not reasoned or evenhanded, but slashing and onesided.” The publication of the Falwell cartoon was of little consequence, but that is not always the case. In 2005, cartoons that portrayed the prophet Mohammed in ways that were offensive to Muslims sparked massive riots in many European countries.

NEW YORK TIMES V. SULLIVAN 376 U.S. 254 (1964) JUSTICE BRENNAN delivered the opinion of the Court. We are required for the first time in this case to determine the extent to which the constitutional protections for speech and press limit a state’s power to

award damages in a libel action brought by a public official against critics of his official conduct. Respondent L. B. Sullivan is one of the three elected Commissioners of the City of Montgomery, Alabama. He testified that he was “Commissioner of Public Affairs and the duties are supervision of the Freedom of the Press and Association

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Police Department, Fire Department, Department of Cemetery and Department of Scales.” He brought this civil libel action against the four individual petitioners, who are Negroes and Alabama clergymen, and against petitioner, the New York Times Company . . . which publishes the New York Times. . . . A jury in the Circuit Court of Montgomery County awarded him damages of $500,000, the full amount claimed, against all the petitioners, and the Supreme Court of Alabama affirmed. Respondent’s complaint alleged that he had been libeled by statements in a full-page advertisement that was carried in the New York Times on March 29, 1960. Entitled “Heed Their Rising Voices,” the advertisement began by stating that “As the whole world knows by now, thousands of Southern Negro students are engaged in widespread nonviolent demonstrations in positive affirmation of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.” It went on to charge that “in their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom. . . .” Succeeding paragraphs purported to illustrate the “wave of terror” by describing certain alleged events. The text concluded with an appeal for funds for three purposes: support of the student movement, “the struggle for the right-to-vote,” and the legal defense of Dr. Martin Luther King, Jr., leader of the movement, against a perjury indictment then pending in Montgomery. The text appeared over the names of 64 persons, many widely known for their activities in public affairs, religion, trade unions, and the performing arts. Below these names, and under a line reading “We in the South who are struggling daily for dignity and freedom warmly endorse this appeal,” appeared the names of the four individual petitioners and of 16 other persons, all but two of whom were identified as clergymen in various Southern cities. The advertisement was signed at the bottom of the page by the “Committee to Defend Martin Luther King and Struggle for Freedom in the South,” and the officers of the Committee were listed. Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth were the basis of respondent’s claim of libel. They read as follows: Third Paragraph In Montgomery, Alabama, after students sang “My Country, ‘Tis of Thee” on the State Capitol steps, 190

their leaders were expelled from school, and truckloads of police armed with shotguns and teargas ringed the Alabama State College Campus. When the entire student body protested to state authorities by refusing to reregister, their dining hall was padlocked in an attempt to starve them into submission. Sixth Paragraph Again and again the Southern violators have answered Dr. King’s peaceful protests with intimidation and violence. They have bombed his home almost killing his wife and child. They have assaulted his person. They have arrested him seven times for “speeding,” “loitering” and similar “offenses.” And now they have charged him with “perjury”—a felony under which they would imprison him for ten years. . . . Although neither of these statements mentions respondent by name, he contended that the word “police” in the third paragraph referred to him as the Montgomery Commissioner who supervised the Police Department, so that he was being accused of “ringing” the campus with police. He further claimed that the paragraph would be read as imputing to the police, and hence to him, the padlocking of the dining hall in order to starve the students into submission. As to the sixth paragraph, he contended that since arrests are ordinarily made by the police, the statement “They have arrested [Dr. King] seven times” would be read as referring to him; he further contended that the “They” who did the arresting would be equated with the “They” who committed the other described acts and with the “Southern violators.” Thus, he argued, the paragraph would be read as accusing the Montgomery police, and hence him, of answering Dr. King’s protests with “intimidation and violence,” bombing his home, assaulting his person, and charging him with perjury. Respondent and six other Montgomery residents testified that they read some or all of the statements as referring to him in his capacity as Commissioner. It is uncontroverted that some of the statements contained in the two paragraphs were not accurate descriptions of events which occurred in Montgomery. Although Negro students staged a demonstration on the State Capitol steps, they sang the National Anthem and not “My Country, ‘Tis of Thee.” Although nine students were expelled by the State Board of Education, this was not for leading the demonstration at the Capitol, but for demanding service at a lunch counter in the Montgomery

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County Courthouse on another day. Not the entire student body, but most of it, had protested the expulsion, not by refusing to register, but by boycotting classes on a single day; virtually all the students did register for the ensuing semester. The campus dining hall was not padlocked on any occasion, and the only students who may have been barred from eating there were the few who had neither signed a preregistration application nor requested temporary meal tickets. Although the police were deployed near the campus in large numbers on three occasions, they did not at any time “ring” the campus, and they were not called to the campus in connection with the demonstration on the State Capitol steps, as the third paragraph implied. Dr. King had not been arrested seven times, but only four; and although he claimed to have been assaulted some years earlier in connection with his arrest for loitering outside a courtroom, one of the officers who made the arrest denied that there was such an assault. On the premise that the charges in the sixth paragraph could be read as referring to him, respondent was allowed to prove that he had not participated in the events described. Although Dr. King’s home had in fact been bombed twice when his wife and child were there, both of these occasions antedated respondent’s tenure as Commissioner, and the police were not only not implicated in the bombings, but had made every effort to apprehend those who were. Three of Dr. King’s four arrests took place before respondent became Commissioner. Although Dr. King had in fact been indicted (he was subsequently acquitted) on two counts of perjury, each of which carried a possible five-year sentence, respondent had nothing to do with procuring the indictment. Respondent made no effort to prove that he suffered actual pecuniary loss as a result of the alleged libel. One of his witnesses, a former employer, testified that if he had believed the statements, he doubted whether he “would want to be associated with anybody who would be a party to such things as are stated in that ad,” and that he would not reemploy respondent if he believed “that he allowed the Police Department to do the things that the paper said he did.” But neither this witness nor any of the others testified that he had actually believed the statements in their supported reference to respondent. The cost of the advertisement was approximately $4800, and it was published by the Times upon an order from a New York advertising agency acting for

the signatory Committee. The agency submitted the advertisement with a letter from A. Philip Randolph, Chairman of the Committee, certifying that the persons whose names appeared on the advertisement had given their permission. Mr. Randolph was known to the Times’ Advertising Acceptability Department as a responsible person, and in accepting the letter as sufficient proof of authorization it followed its established practice. There was testimony that the copy of the advertisement which accompanied the letter listed only the sixty-four names appearing under the text, and that the statement “We in the South . . . warmly endorse this appeal” and the list of names thereunder, which included those of the individual petitioners, were subsequently added when the first proof of the advertisement was received. Each of the individual petitioners testified that he had not authorized the use of his name, and that he had been unaware of its use until receipt of respondent’s demand for a retraction. The manager of the Advertising Acceptability Department testified that he had approved the advertisement for publication because he knew nothing to cause him to believe that anything in it was false, and because it bore the endorsement of “a number of people who are well known and whose reputation” he “had no reason to question.” Neither he nor anyone else at the Times made an effort to confirm the accuracy of the advertisement, either by checking it against recent Times news stories relating to some of the described events or by some other means. Alabama law denies a public officer recovery of punitive damages in a libel action brought on account of a publication concerning his official conduct unless he first makes a written demand for a public retraction and the defendant fails or refuses to comply. Respondent served such a demand upon each of the petitioners. None of the individual petitioners responded to the demand, primarily because each took the position that he had not authorized the use of his name on the advertisement and therefore had not published the statements that respondent alleged to have libeled him. The Times did not publish a retraction in response to the demand, but wrote respondent a letter stating, among other things, that “we . . . are somewhat puzzled as to how you think the statements in any way reflect on you,” and “you might, if you desire, let us know in what respect you claim that the statements in the advertisement reflect on you.” Respondent filed this suit a few days later without answering the letter. The Times did, however, Freedom of the Press and Association

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subsequently publish a retraction of the advertisement upon the demand of Governor John Patterson of Alabama, who asserted that the publication charged him with “grave misconduct and . . . improper actions and omissions as Governor of Alabama and ExOfficio Chairman of the State Board of Education in Alabama.” When asked to explain why there had been a retraction for the Governor but not for respondent, the Secretary of the Times testified: “We did that because we didn’t want anything that was published by the Times to be a reflection on the State of Alabama and the Governor was, as far as we could see, the embodiment of the State of Alabama and the proper representative of the State and, furthermore, we had by that time learned more of the actual facts which the ad purported to recite and, finally, the ad did refer to the action of the State authorities and the Board of Education presumably of which the Governor is ex-officio, chairman. . . .” On the other hand, he testified that he did not think that “any of the language in there referred to Mr. Sullivan.” The trial judge submitted the case to the jury under instructions that the statements in the advertisement were “libelous per se” and were not privileged, so that petitioners might be held liable if the jury found that they had published the advertisement and that the statements were made “of and concerning” respondent. The jury was instructed that, because the statements were libelous per se, “the law . . . implies legal injury from the bare fact of publication itself,” “falsity and malice are presumed,” “general damages need not be alleged or proved but are presumed,” and “punitive damages may be awarded by the jury even though the amount of actual damages is neither found nor shown.” An award of punitive damages as distinguished from “general” damages, which are compensatory in nature—apparently requires proof of actual malice under Alabama law, and the judge charged that “mere negligence or carelessness is not evidence of actual malice or malice in fact, and does not justify an award of exemplary or punitive damages.” He refused to charge, however, that the jury must be “convinced” of malice, in the sense of “actual intent” to harm or “gross negligence and recklessness,” to make such an award, and he also refused to require that a verdict for respondent differentiate between compensatory and punitive damages. The judge rejected petitioners’ contention that his rulings abridged the freedoms of speech and of the press that are guaranteed by the First and Fourteenth Amendments. 192

In affirming the judgment, the Supreme Court of Alabama sustained the trial judge’s rulings and instructions in all respects. . . . . . . We reverse the judgment. We hold that the rule of law applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom of speech and of the press that are required by the First and Fourteenth Amendments in a libel action brought by a public official against critics of his official conduct. We further hold that under the proper safeguards the evidence presented in this case is constitutionally insufficient to support the judgment for respondent. We may dispose at the outset of two grounds asserted to insulate the judgment of the Alabama courts from constitutional scrutiny. The first is the proposition relied on by the State Supreme Court— that “The Fourteenth Amendment is directed against State action and not private action.” That proposition has no application to this case. Although this is a civil lawsuit between private parties, the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press. It matters not that the law has been applied in a civil action and that it is common law only, though supplemented by statute. . . . The second contention is that the constitutional guarantees of freedom of speech and of the press are inapplicable here, at least so far as the Times is concerned, because the allegedly libelous statements were published as part of a paid, “commercial” advertisement. The argument relies on Valentine v. Chrestensen, 316 U.S. 52, where the Court held that a city ordinance forbidding street distribution of commercial and business advertising matter did not abridge the First Amendment freedoms, even as applied to a handbill having a commercial message on one side but a protest against certain official action on the other. The reliance is wholly misplaced. . . . The publication here was not a “commercial” advertisement in the sense in which the word was used in Chrestensen. It communicated information, expressed opinion, recited grievances, protested claimed abuses, and sought financial support on behalf of a movement whose existence and objectives are matters of the highest public interest and concern. That the Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold. Any other conclusion would discourage newspapers from

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carrying “editorial advertisements” of this type, and so might shut off an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities. Under Alabama law as applied in this case, a publication is “libelous per se” if the words “tend to injure a person . . . in his reputation” or to “bring [him] into public contempt”; the trial court stated that the standard was met if the words are such as to injure him in his public office, or impute misconduct to him in his office, or want of official integrity, or want of fidelity to a public trust. . . . The jury must find that the words were published “of and concerning” the plaintiff, but where the plaintiff is a public official his place in the governmental hierarchy is sufficient evidence to support a finding that his reputation has been affected by statements that reflect upon the agency of which he is in charge. Once “libel per se” has been established, the defendant has no defense as to stated facts unless he can persuade the jury that they were true in all their particulars. His privilege of “fair comment” for expressions of opinion depends on the truth of the facts upon which the comment is based. Unless he can discharge the burden of proving truth, general damages are presumed, and may be awarded without proof of pecuniary injury. A showing of actual malice is apparently a prerequisite to recovery of punitive damages, and the defendant may in any event forestall these by a retraction meeting the statutory requirements. Good motives and belief in truth do not negate an inference of malice, but are relevant only in mitigation of punitive damages if the jury chooses to accord them weight. The question before us is whether this rule of liability, as applied to an action brought by a public official against critics of his official conduct, abridges the freedom of speech and of the press that is guaranteed by the First and Fourteenth Amendments. . . . . . . [W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of

some of its factual statements and by its alleged defamation of respondent. . . . Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth, whether administrated by judges, juries, or administrative officials and especially not one that puts the burden of proving truth on the speaker. The constitutional protection does not turn upon “the truth, popularity, or social utility of the ideas and beliefs which are offered.” NAACP v. Button, 371 U.S. 415, 445. . . . . . . [E]rroneous statement is inevitable in free debate, and . . . it must be protected if the freedoms of expression are to have the “breathing space” that they “need . . . to survive,” NAACP v. Button. . . . . . . Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations. If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate. This is the lesson to be drawn from the great controversy over the Sedition Act of 1798, 1 Stat. 596, which first crystallized a national awareness of the central meaning of the First Amendment. . . . What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute. Alabama, for example, has a criminal libel law which subjects to prosecution “any person who speaks, writes, or prints of and concerning another any accusation falsely and maliciously importing the commission by such person of a felony, or any other indictable offense involving moral turpitude,” and which allows as punishment upon conviction a fine not exceeding $500 and a prison sentence of six months. Alabama Code, Tit. 14, § 350. Presumably a person charged with violation of this statute enjoys ordinary criminal-law safeguards such as the requirement of an indictment and of proof beyond a reasonable doubt. These safeguards are not available to the defendant in a civil action. The judgment awarded in this case without the need for any proof of actual pecuniary loss—was one thousand times greater than the maximum fine provided by the Alabama criminal statute, and one hundred times Freedom of the Press and Association

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greater than that provided by the Sedition Act. And since there is no double-jeopardy limitation applicable to civil lawsuits, this is not the only judgment that may be awarded against petitioners for the same publication. Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive. Plainly the Alabama law of civil libel is “a form of regulation that creates hazards to protected freedoms markedly greater than those that attend reliance upon the criminal law.” The state rule of law is not saved by its allowance of the defense of truth. A defense for erroneous statements honestly made is no less essential here than was the requirement of proof of guilty knowledge which, in Smith v. California, 361 U.S. 147, we held indispensable to a valid conviction of a bookseller for possessing obscene writings for sale. . . . A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions and to do so on pain of libel judgments virtually unlimited in amount leads to a comparable “self-censorship.” Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deferred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars. Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which “steer far wider of the unlawful zone.” The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments. The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice”—that is, with knowledge that it was false or with reckless disregard of whether it was false or not. . . . We hold today that the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct. Since this is such an action, the rule 194

requiring proof of actual malice is applicable. While Alabama law apparently requires proof of actual malice for an award of punitive damages, where general damages are concerned malice is “presumed.” Such a presumption is inconsistent with the federal rule. . . . Since the trial judge did not instruct the jury to differentiate between general and punitive damages, it may be that the verdict was wholly an award of one or the other. But it is impossible to know, in view of the general verdict returned. Because of this uncertainty, the judgment must be reversed and the case remanded. . . . Applying these standards, we consider that the proof presented to show actual malice lacks the convincing clarity which the constitutional standard demands, and hence that it would not constitutionally sustain the judgment for respondent under the proper rule of law. The case of the individual petitioners requires little discussion. Even assuming that they could constitutionally be found to have authorized the use of their names on the advertisement, there was no evidence whatever that they were aware of any erroneous statements or were in any way reckless in that regard. The judgment against them is thus without constitutional support. As to the Times, we similarly conclude that the facts do not support a finding of actual malice. The statement by the Times’ Secretary that, apart from the padlocking allegation, he thought the advertisement was “substantially correct,” affords no constitutional warrant for the Alabama Supreme Court’s conclusion that it was a “cavalier ignoring of the falsity of the advertisement [from which], the jury could not have but been impressed with the bad faith of the Times, and its maliciousness inferable therefrom.” The statement does not indicate malice at the time of the publication; even if the advertisement was not “substantially correct although respondent’s own proofs tend to show that it was—that opinion was at least a reasonable one, and there was no evidence to impeach the witness’s good faith in holding it. The Times’ failure to retract upon respondent’s demand, although it later retracted upon the demand of Governor Patterson, is likewise not adequate evidence of malice for constitutional purposes. Whether or not a failure to retract may ever constitute such evidence, there are two reasons why it does not here. First, the letter written by the Times reflected a reasonable doubt on its part as to whether the advertisement could reasonably be taken to refer to respondent at all. Second, it was not a final refusal, since it asked for an explanation on

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this point—a request that respondent chose to ignore. Nor does the retraction upon the demand of the Governor supply the necessary proof. It may be doubted that a failure to retract which is not itself evidence of malice can retroactively become such by virtue of a retraction subsequently made to another party. But in any event, that did not happen here, since the explanation given by the Times’ Secretary for the distinction drawn between respondent and the Governor was a reasonable one, the good faith of which was not impeached. Finally, there is evidence that the Times published the advertisement without checking its accuracy against the news stories in the Times’ own files. The mere presence of the stories in the files does not, of course, establish that the Times “knew” the advertisement was false, since the state of mind required for actual malice would have to be brought home to the persons in the Times’ organization having responsibility for the publication of the advertisement. With respect to the failure of those persons to make the check, the record shows that they relied upon their knowledge of the good reputation of many of those whose names were listed as sponsors of the advertisement, and upon the letter from A. Philip Randolph, known to them as a responsible individual, certifying that the use of the names was authorized. There was testimony that the persons handling the advertisement saw nothing in it that would render it unacceptable under the Times’ policy of rejecting advertisements containing “attacks of a personal character”; their failure to reject it on this ground was not unreasonable. We think the evidence against the Times supports at most a finding of negligence in failing to discover the misstatements, and is constitutionally insufficient to show the recklessness that is required for a finding of actual malice. . . . There is no legal alchemy by which a State may thus create the cause of action that would otherwise be denied for a publication which, as respondent himself said of the advertisement, “reflects not only on me but on the other Commissioners of the community.” Raising as it does the possibility that a good-faith critic of government will be penalized for his criticism, the proposition relied on by the Alabama courts strikes at the very center of the constitutionally protected area of free expression. We hold that such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations. . . .

The judgment of the Supreme Court of Alabama is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion. Reversed and remanded. JUSTICE BLACK, joined by JUSTICE DOUGLAS, concurring: . . . I base my vote to reverse on the belief that the First and Fourteenth Amendments not merely “delimit” a State’s power to award damages to “a public official against critics of his official conduct” but completely prohibit a State from exercising such a power. . . . Unlike the Court . . . I vote to reverse exclusively on the ground that the Times and the individual defendants had an absolute, unconditional constitutional right to publish in the Times advertisement their criticisms of the Montgomery agencies and officials. I do not base my vote to reverse on any failure to prove that these individual defendants signed the advertisement or that their criticism of the Police Department was aimed at the respondent Sullivan, who was then the Montgomery City Commissioner having supervision of the city’s police; for present purposes I assume these things were proved. Nor is my reason for reversal the size of the half-million-dollar judgment. The half-million-dollar verdict does give dramatic proof, however, that state libel laws threaten the very existence of an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials. The factual background of this case emphasizes the imminence and enormity of that threat. One of the acute and highly emotional issues in this country arises out of efforts of many people, even including some public officials, to continue statecommanded segregation of races in the public schools and other public places, despite our several holdings, that such a state practice is forbidden by the Fourteenth Amendment. Montgomery is one of the localities in which widespread hostility to desegregation has been manifested. This hostility has sometimes extended itself to persons who favor desegregation, particularly to so-called “outside agitators,” a term which can be made to fit papers like the Times. . . . The scarcity of testimony to show that Commissioner Sullivan suffered any actual damages at all suggests that these feelings of hostility had at least as much to do with rendition of this Freedom of the Press and Association

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half-million-dollar verdict as did an appraisal of damages. Viewed realistically, this record lends support to an inference that instead of being damaged Commissioner Sullivan’s political, social, and financial prestige has likely been enhanced by the Times’ publication. Moreover, a second half-million-dollar libel verdict against the Times based on the same advertisement has already been awarded to another Commissioner. There a jury again gave the full amount claimed. There is no reason to believe that there are not more such huge verdicts lurking just around the corner for the Times or any other newspaper or broadcaster which might dare to criticize public officials. In fact, briefs before us show that in Alabama there are now pending eleven libel suits by local and state officials against the Times seeking $5,600,000, and five such suits against the Columbia Broadcasting System seeking $1,700,000. Moreover, this technique for harassing and punishing a free press now that it has been shown to be possible is by no means limited to cases with racial overtones: it can be used in other fields where public feelings may make local as well as out-of-state newspapers easy prey for libel verdict seekers. In my opinion the Federal Constitution has dealt with this deadly danger to the press in the only way possible without leaving the free press open to destruction by granting the press an absolute immunity for criticism of the way public officials do their public duty. Stopgap measures like those the Court adopts are

in my judgment not enough. This record certainly does not indicate that any different verdict would have been rendered here whatever the Court had charged the jury about “malice,” “truth,” “good motives,” “justifiable ends,” or any other legal formulas which in theory would protect the press. Nor does the record indicate that any of these legalistic words would have caused the courts below to set aside or to reduce the half-million-dollar verdict in any amount. . . . We would . . . more faithfully interpret the First Amendment by holding that at the very least it leaves the people and the press free to criticize officials and discuss public affairs with impunity. This Nation of ours elects many of its important officials; so do the States, the municipalities, the counties, and even many precincts. These officials are responsible to the people for the way they perform their duties. . . . [F]reedom to discuss public affairs and public officials is unquestionably . . . the kind of speech the First Amendment was primarily designed to keep within the area of free discussion. To punish the exercise of this right to discuss public affairs or to penalize it through libel judgments is to abridge or shut off discussion of the very kind most needed. This Nation, I suspect, can live in peace without libel suits based on public discussions of public affairs and public officials. But I doubt that a country can live in freedom where its people can be made to suffer physically or financially for criticizing their government, its actions, or its officials. . . .

FREEDOM OF ASSOCIATION FEATURED CASE

National Association for the Advancement of Colored People v. Alabama The Constitutional “right of the people peaceably to assemble,” along with other rights to expression found in the First Amendment, have evolved into what is referred to as the right of association. Though the right is not specifically listed, the Court has held that “freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the liberty assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech” (National Association for the Advancement of Colored People v. Alabama 196

354 U.S. 449, 1958). Opponents of groups ranging from socialists to civil rights organizations have tried to intimidate adherents by virtue of their association with groups related to the cause. As we have already seen in Chapter 3, during the time of the “Red Scare,” simple association with people or groups could lead to public blacklisting. The infamous hearings by Senator Joseph McCarthy that discredited people by innuendo because of the others with whom they associated was one of the dark chapters for civil liberties in this country. And it did

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

not stop with blacklisting. Some associations were criminalized during the 1950s. The abuse of association did not end in the 1950s, however. Segregationists abused the right of association in their efforts to thwart social justice. One of their methods was to try to compel civil rights organizations to disclose their membership lists. In DeJonge v. Oregon (299 U.S. 353, 1937) the Supreme Court made it clear that the “right of peaceable assembly is a right cognate to those of free speech and free press and equally fundamental.” DeJonge was indicted for violating the state criminal syndicalism law. He was convicted of helping to conduct a meeting called under the auspices of the Communist Party. The fact that nothing unlawful took place at the meeting was immaterial, since the indictment was not concerned with specific conduct at the meeting in question but rather with the fact that it was associated with the Communist Party. The Supreme Court reversed the conviction, saying that “peaceable assembly for lawful discussion cannot be made a crime.” Chief Justice Hughes, in his strongly worded opinion for the Court, hit hard at the “broad reach” of the statute and said that “the question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purposes; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects.” The right of assembly of DeJonge was greatly bolstered in 1958 when the Court, in National Association for the Advancement of Colored People v. Alabama, clearly recognized that the First Amendment protected freedom of association. Here the Court overturned Alabama’s attempt to compel the NAACP to disclose its membership list. Speaking for a unanimous Court, Justice Harlan said that the NAACP had conclusively shown that, in the past, revealing the identity of rank-and-file members had resulted in “economic reprisals, loss of employment, threat of physical coercion, and other manifestations of public hostility.” Under such circumstances, the Court thought, compelled disclosure of membership would be likely to affect adversely the petitioner’s freedom of association. Similarly, in 1982, the Court struck down Mississippi’s attempt to impose civil liability on the NAACP as a deprivation of the group’s free association rights to promote its objectives through a boy-

cott of local businesses (NAACP v. Claiborne, 458 U.S. 886, 1982). Following National Association for the Advancement of Colored People v. Alabama, the Court declared in Shelton v. Tucker (364 U.S. 479, 1960) that an Arkansas statute was unconstitutional on the ground that it violated the “associational freedom” of the First Amendment. The statute required every teacher, “as a condition of employment in a state supported school or college, to file annually an affidavit listing without limitation every organization to which he has belonged or regularly contributed within the preceding five years.” Unlike the situation in the NAACP case, the Court acknowledged that Arkansas had a legitimate interest to inquire into the fitness and competence of its teachers. Nevertheless, the Court thought the statute went “far beyond what might be justified in the exercise of the state’s legitimate inquiry” and thus greatly interfered with associational freedom. The Court also addressed associational rights in the context of partisan and electoral politics. For example, in the Chicago case of Elrod v. Burns (427 U.S. 347, 1976), the Court placed “free association” roadblocks against the firing of employees on the basis of traditional party patronage politics, indicating that such “patronage dismissals severely restrict political belief and association.” The Court suggested that less “restrictive means” could be found to promote the “vital need for government efficiency and effectiveness.” Similarly, the Court has struck down particular laws that imposed certain requirements and limitations on minors or third parties. In Brown v. Socialist Workers (459 U.S. 87, 1982), the Court held that the disclosure provisions of an Ohio Campaign Expense Reporting Law “could not constitutionally be applied to the Socialist Workers Party, since the First Amendment prohibits a state from compelling disclosure by minor political parties that would subject those persons identified to a reasonable probability of threats, harassment, or reprisals.” And in Anderson v. Calabrezze (456 U.S. 960, 1983), the Court held that an Ohio statute requiring independent candidates for president to file a statement of candidacy and nomination petition in March in order to appear on the general election ballot in November violated the voting and associational rights of supporters of independent candidates. Issues become even more complicated when associational rights conflict with other rights, especially Freedom of the Press and Association

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rights that guarantee against discrimination. In Roberts v. U.S. Jaycees (104 S. Ct. 3244), the Court upheld Minnesota’s Human Rights statute that was interpreted to forbid the United States Junior Chamber (Jaycees) from denying women full membership in that organization. The Court majority held, among other things, that the statute did not transgress “constitutional freedom of association asserted by members of a private organization.” Subsequently, the Court relied heavily on Roberts and Board of Directors of Rotary International v. Rotary Club (107 S. Ct. 1940, 1987) to uphold a New York law prohibiting discrimination in certain private clubs on the basis of race, sex, or similar grounds (New York State Club Association, Inc. v. City of New York, 487 U.S. 101, 1988). The Court

stated that on its face, the New York law “does not affect ‘in any significant’ way the ability of individuals to form associations that will advocate public or private viewpoints.” When the issue has turned to claimed discrimination against homosexuals, however, the Court has been less solicitous of discrimination claims and more favorable toward association claims. The notable cases are Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (515 U.S. 557, 1995), and Boy Scouts of America v. Dale (530 U.S. 640, 2000). The association cases are discussed more fully in the excerpt of Boy Scouts infra. The crucial distinction that the Court draws between cases such as Roberts and Boy Scouts is the effect on an association’s expressive activity.

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE V. ALABAMA 357 U.S. 449 (1958) JUSTICE HARLAN delivered the opinion of the Court. We review from the standpoint of its validity under the Federal Constitution a judgment of civil contempt entered against petitioner, the National Association for the Advancement of Colored People, in the courts of Alabama. The question presented is whether Alabama, consistently with the Due Process Clause of the Fourteenth Amendment, can compel petitioner to reveal to the State’s Attorney General the names and addresses of all its Alabama members and agents, with regard to their positions or functions in the Association. The judgment of contempt was based upon petitioner’s refusal to comply fully with a court order requiring in part the production of membership lists. Petitioner’s claim is that the order, in the circumstances shown by this record, violated rights assured to petitioner and its members under the Constitution. Alabama has a statute similar to those of many other States which requires a foreign corporation, except as exempted, to qualify before doing business by filing its corporate charter with the Secretary of State. . . . The statute imposes a fine on a corporation transacting intrastate business 198

before qualifying and provides for criminal prosecution of officers of such a corporation. . . . The National Association for the Advancement of Colored People is a non-profit membership corporation organized under the laws of New York. Its purposes, fostered on a nationwide basis, are those indicated by its name, and it operates through chartered affiliates which are independent unincorporated associations, with membership therein equivalent to membership in petitioner. The first Alabama affiliates were chartered in 1918. Since that time the aims of the Association have been advanced through activities of its affiliates, and in 1951 the Association itself opened a regional office in Alabama, at which it employed two supervisory persons and one clerical worker. The Association has never complied with the qualification statute, from which it considered itself exempt. In 1956 the Attorney General of Alabama brought an equity suit in the State Circuit Court, Montgomery County, to enjoin the Association from conducting further activities within, and to oust it from, the State. Among other things the bill in equity alleged that the Association had opened a

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regional office and had organized various affiliates in Alabama; had recruited members and solicited contributions within the State; had given financial support and furnished legal assistance to Negro students seeking admission to the state university; and had supported a Negro boycott of the bus lines in Montgomery to compel the seating of passengers without regard to race. The bill recited that the Association, by continuing to do business in Alabama without complying with the qualification statute, was “ . . . causing irreparable injury to the property and civil rights of the residents and citizens of the State of Alabama for which criminal prosecution and civil actions of law afford no adequate relief. . . .” On the day the complaint was filed, the Circuit Court issued Ex parte an order restraining the Association, pendrate lite, from engaging in further activities within the State and forbidding it to take any steps to qualify itself to do business therein. Petitioner demurred to the allegations of the bill and moved to dissolve the restraining order. It contended that its activities did not subject it to the qualification requirements of the statute and that in any event what the State sought to accomplish by its suit would violate rights to freedom of speech and assembly guaranteed under the Fourteenth Amendment to the Constitution of the United States. Before the date set for a hearing on this motion, the State moved for the production of a large number of the Association’s records and papers, including bank statements, leases, deeds, and records containing the names and addresses of all Alabama “members” and “agents” of the Association. It alleged that all such documents were necessary for adequate preparation for the hearing, in view of petitioner’s denial of the conduct of intrastate business within the meaning of the qualification statute. Over petitioner’s objections, the court ordered the production of a substantial part of the requested records, including the membership lists, and postponed the hearing on the restraining order to a date later than the time ordered for production. Thereafter petitioner filed its answer to the bill in equity. It admitted its Alabama activities substantially as alleged in the complaint and that it had not qualified to do business in the State. Although still disclaiming the statute’s application to it, petitioner offered to qualify if the bar from qualification made part of the restraining order were lifted, and it submitted with the answer an executed set of

the forms required by the statute. However petitioner did not comply with the production order, and for this failure was adjudged in civil contempt and fined $10,000. The contempt judgment provided that the fine would be subject to reduction or remission if compliance were forthcoming within five days but otherwise would be increased to $100,000. At the end of the five-day period petitioner produced substantially all the data called for by the production order except its membership lists, as to which it contended that Alabama could not constitutionally compel disclosure, and moved to modify or vacate the contempt judgment, or stay its execution pending appellate review. This motion was denied. While a similar stay application, which was later denied, was pending before the Supreme Court of Alabama, the Circuit Court made a further order adjudging petitioner in continuing contempt and increasing the fine already imposed to $100,000. Under Alabama law . . . the effect of the contempt adjudication was to foreclose petitioner from obtaining a hearing on the merits of the underlying ouster action, or from taking any steps to dissolve the temporary restraining order which had been issued Ex parte, until it purged itself of contempt. . . . The State Supreme Court thereafter twice dismissed petitions for certiorari to review this final contempt judgment. ... The Association both urges that it is constitutionally entitled to resist official inquiry into its membership lists, and that it may assert, on behalf of its members, a right personal to them to be protected from compelled disclosure by the State of their affiliation with the Association as revealed by the membership lists. We think that petitioner argues more appropriately the rights of its members, and that its nexus with them is sufficient to permit that it act as their representative before this Court. In so concluding, we reject respondent’s argument that the Association lacks standing to assert here constitutional rights pertaining to the members, who are not of course parties to the litigation. To limit the breadth of issues which must be dealt with in particular litigation, this Court has generally insisted that parties rely only on constitutional rights which are personal to themselves. . . . This rule is related to the broader doctrine that constitutional Freedom of the Press and Association

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adjudication should where possible be avoided. . . . The principle is not disrespected where constitutional rights of persons who are not immediately before the Court could not be effectively vindicated except through an appropriate representative before the Court. . . . If petitioner’s rank-and-file members are constitutionally entitled to withhold their connection with the Association despite the production order, it is manifest that this right is properly assertible by the Association. To require that it be claimed by the members themselves would result in nullification of the right at the very moment of its assertion. Petitioner is the appropriate party to assert these rights, because it and its members are in every practical sense identical. The Association, which provides in its constitution that “[a]ny person who is in accordance with [its] principles and policies . . .” may become a member, is but the medium through which its individual members seek to make more effective the expression of their own views. The reasonable likelihood that the Association itself through diminished financial support and membership may be adversely affected if production is compelled is a further factor pointing towards our holding that petitioner has standing to complain of the production order on behalf of its members. . . . We thus reach petitioner’s claim that the production order in the state litigation trespasses upon fundamental freedoms protected by the Due Process Clause of the Fourteenth Amendment. Petitioner argues that in view of the facts and circumstances shown in the record, the effect of compelled disclosure of the membership lists will be to abridge the rights of its rank-and-file members to engage in lawful association in support of their common beliefs. It contends that governmental action, which although not directly suppressing association, nevertheless carries this consequence, can be justified only upon some overriding valid interest of the State. Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. . . . It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. . . . 200

Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom is subject to the closest scrutiny. ... It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. When referring to the varied forms of governmental action which might interfere with freedom of assembly, it said in American Communications Assn. v. Douds (339 U.S. 402): “A requirement that adherents of particular religious faiths or political parties wear identifying armbands, for example, is obviously of this nature.” Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs. . . . We think that the production order, in the respects here drawn in question, must be regarded as entailing the likelihood of a substantial restraint upon the exercise by petitioner’s members of their right to freedom of association. Petitioner has made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of petitioner’s Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure. It is not sufficient to answer, as the State does here, that whatever repressive effect compulsory disclosure of names of petitioner’s members may have upon par-

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ticipation by Alabama citizens in petitioner’s activities follows not from state action but from private community pressures. The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold. We turn to the final question whether Alabama has demonstrated an interest in obtaining the disclosures it seeks from petitioner which is sufficient to justify the deterrent effect which we have concluded these disclosures may well have on the free exercise by petitioner’s members of their constitutionally protected right of association. . . . It is important to bear in mind that petitioner asserts no right to absolute immunity from state investigation, and no right to disregard Alabama’s laws. As shown by its substantial compliance with the production order, petitioner does not deny Alabama’s right to obtain from it such information as the State desires concerning the purposes of the Association and its activities within the State. Petitioner has not objected to divulging the identity of its members who are employed by or hold official positions with it. It has urged the rights solely of its ordinary rank-and-file members. This is therefore not analogous to a case involving the interest of a State in protecting its citizens in their dealings with paid solicitors or agents of foreign corporations by requiring identification. ... . . . [W]e think it apparent that New York ex. rel. Bryant v. Zimmerman, 278 U.S. 63 . . . cannot be relied on in support of the State’s position, for that case involved markedly different considerations in terms of the interest of the State in obtaining disclosure. There, this Court upheld as applied to a member of a local chapter Ku Klux Klan, a New York

statute requiring any unincorporated association which demanded an oath as a condition of membership to file with state officials copies of its “ . . . constitution, by-laws, rules, regulations, and oath of membership, together with a roster of its membership and a list of its officers for the current year.” NY Laws 1923, ch. 664, sections 53, 56. In its opinion, the Court took care to emphasize the nature of the organization which New York sought to regulate. The decision was based on the particular character of the Klan’s activities, involving acts of unlawful intimidation and violence, which the Court assumed was before the state legislature when it enacted the statute, and of which the Court itself took judicial notice. Furthermore the situation before us is significantly different from that in Bryant, because the organization there had made no effort to comply with any of the requirements of New York’s statute but rather had refused to furnish the State with any information as to its local activities. We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment. And we conclude that Alabama has fallen short of showing a controlling justification for the deterrent effect on the free enjoyment of the right to associate which disclosure of membership lists is likely to have. Accordingly, the judgment of civil contempt and the $100,000 fine which resulted from petitioner’s refusal to comply with the production order in this respect must fall. ... Reversed.

SELECTED REFERENCES Anderson, David. “The Origins of the Press Clause,” UCLA Law Review, Vol. 30 (1983), 455. Blasi, Vincent. “The Checking Value in First Amendment Theory,” Law and Social Inquiry, Vol. 2 (1977), 521. Kalven, Harry. “The New York Times Case: A Note on ‘The Central Meaning of the First Amendment,’” Supreme Court Review (1964), 1.

Karst, Kenneth. “The Freedom of Intimate Association,” Yale Law Journal, Vol. 89 (1980), 624. Powe, Lucas A. “Red Lion and Pacifica: Are They Relics?” Pepperdine Law Review, Vol. 36 (2009), 445.

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

PART III FREEDOM OF RELIGION

R

ELIGION. THERE IS PROBABLY NO WORD OR

concept in the world that evokes more passion. For many, it is the central focus in their lives that gives them meaning, hope, inspiration, values, and a moral code that often makes them better people and the world a better place. Religion is also the source of wars, sectarianism, repression, and hate. It is precisely because religion is such a source of passion that every society must come to terms with the role that religion plays in that society. This was an issue for our Founders and remains one for us today. Religion is the very first thing mentioned in the Bill of Rights: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The two clauses have come to be known respectively as the “establishment clause”

and the “free exercise clause.” A chapter is devoted to each one. The division makes obvious sense at one level, but not at another. The debate in constitutional law is often about how furthering one clause offends the other. Laws, regulations or actions that promote the free exercise of religion often seem to violate the establishment clause. And efforts to prevent establishment are seen as inhibiting the free exercise of religion. A classic example showing this tension is prayer in schools. If the Constitution allows prayer in public schools, is it promoting religion, thereby violating the establishment clause? If it prohibits prayer in schools, is it preventing some people from freely exercising their religion? Are the clauses inherently contradictory, inherently complementary, or both?

203 Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

CHAPTER

6

THE ESTABLISHMENT CLAUSE

FEATURED CASES Everson v. Board of Education; Engel v. Vitale; School District of Abington Township, Pennsylvania v. Schempp; Lee v. Weisman; Santa Fe Independent School District v. Doe; Lynch v. Donnelly

HISTORY AND CONTEXT The Founders of our country knew the importance and power of religion, and as with so many issues, they were shaped by their English heritage and European history. The intersection of religion and politics had not been a happy one in Europe or in England. Everyone, at least all educated people, knew the history of the Inquisition. The Protestant Reformation produced about two centuries of conflict in Europe. One such conflict, between the Holy Roman Emperor and Lutheran Princes in what today would be mostly in Germany, was resolved by The Peace of Augsburg in 1555. It allowed some principalities to be governed by Protestants and some by Catholics. The agreement established the principle cuius regio, eius religio (“whose the rule, his the religion”). No place better exemplified this principle than the country that was most relevant to the Founders of America, England. As in the rest of Europe, struggles between Protestants and Catholics shaped a good part of English history. Any student of history or any tourist to Great Britain knows that there were Protestant kings and Catholic kings. Though the story of Henry

VIII is well known, the struggles preceded his reign and continued after it was over. The Thirty Years War (1618–1648) was mostly a Protestant–Catholic war. Conflicts among Protestants were not far behind. Disagreements among Anglicans, Puritans, and Presbyterians were an important factor that caused the English Civil War. After the Glorious Revolution ended any hope that a Catholic king would take the throne, the Church of England became firmly entrenched. The Church of England established by law that government controlled the doctrines, structure, and personnel of the state church. It mandated public financial support, among other requirements. The Act of Toleration in 1689 guaranteed some rights to “nonconformist” Protestants, though not to all, but they were not exempt from requirements like financial support of the Church of England. This was the history that shaped our Founders. Many American colonists had left England because of religious persecution. The story of the Pilgrims and other stories that we learn in elementary school usually do not tell the full tale. To be sure, many people from religious minorities in England and other parts of Europe fled to America in

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hopes of a new religious freedom. But often as not, once they arrived in America they proceeded to instill their own versions of “one way to the kingdom,” including persecution of outsiders. When our nation was founded, religious battles within America were wholly among Protestant sects. Catholicism and other religions played virtually no role. New England was the site of many struggles. As one example, Henry Dunster, the first President of Harvard, was forced to resign and leave Cambridge when he refused to have his youngest child baptized because he did not believe in infant baptism. Quakers faced far worse fates in Massachusetts, including imprisonment. Many of the colonies had established religions, that is, an official religion, just as in England. People often had to pay taxes to support the official church, and sometimes their attendance at services was required. Several states retained established churches after the American Revolution. Generally speaking, Anglicanism (formerly the Church of England) was established in the South and in a few other places like metropolitan New York, whereas forms of Congregationalism and Puritanism were established in New England. After the Revolution, debates about establishment flourished and were highly contentious. Some people sought to “disestablish” churches and others were “antidisestablishmentarians.” Interestingly, the Revolutionary firebrand Patrick Henry, who strongly opposed British rule and was particularly opposed to central authority, was one of the main proponents of an established church in Virginia. He vigorously campaigned for an Assessment Bill in Virginia to pay the clergy and other church costs. Two notable opponents of this bill were Thomas Jefferson and James Madison. It was in opposition to this bill that Madison wrote his famous “Memorial and Remonstrance Against Religious Assessments” (1785). We have little historical record of the debates surrounding the First Amendment. Most people agree that there was a clear desire not to have an established national church—recall that the Bill of Rights applied only to the federal government until after the Civil War. The debate about establishment was taking place in the states, and at the time the First Amendment would not have an effect on state establishments. Antiestablishment, of course, ultimately won in the states, but it occurs at various times and in various ways. It is important to understand this history for several reasons. One reason is to appreciate that when

this country was founded there were profoundly conflicting views about establishment. Moreover, even among the Founders who were antiestablishment, the arguments varied. Interestingly, one can see these various strains in modern opinions. For example, today there are those who believe that the problem of establishment is essentially one of favoring one religion over another. They feel that if the government is nonpreferential or equal in its support of different religions, then there is no problem. But many antiestablishmentarians in 1791 would have disagreed. Some of them believed in a strict separation; neutrality was not enough. Baptists especially were of this mindset. They thought that laws which required them to contribute money, even to their own church, as opposed to the official church, were wrong. Such laws interfered with their personal relationship with God. Jefferson’s letter to the Danbury Baptist Association in a different context reflects a notion of strict separation. In that letter he penned his famous line that when adopting the First Amendment, the American people built “a wall of separation between church and state.” Antiestablishmentarians also held different opinions about why establishment was dangerous. Professor Larry Tribe and others have suggested that there were basically three distinct schools of thought. People like Roger Williams, who helped begin the colony of Rhode Island, worried that government would corrupt religion, Jefferson worried that religion would corrupt government and secular society, and Madison thought that a multiplicity of sects brought the benefits of a multiplicity of factions that he had famously argued for in Federalist #10. In short, as one reads cases about establishment (or religion generally), one needs to be aware that appeals to history or the intent of the Founders are particularly problematic. We have little information about the debates in Congress that produced the First Amendment, and we do know that there was a wide variety of beliefs about establishment. Understanding modern cases also requires us to have some familiarity with our history after the founding of America. During the eighteenth century, religious conflicts in America were largely among Protestants. And though it was not always the case, the debate tended to pit established churches (e.g. Congregationalists, Anglicans), against evangelicals (e.g., Baptists, Methodists, Presbyterians). Conflicts in the nineteenth and early twentieth centuries, however, tended to be Protestant vs. Catholic. Beginning in the mid-1800s, a large wave of Catholic The Establishment Clause

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immigrants, especially Irish Catholics, entered an America that was overwhelmingly Protestant. In some cities there were anti-Catholic riots where people were killed and churches were even burned. The Know Nothing political party was largely inspired by anti-Catholic fervor. With the turn of the century, another wave of immigration increased the presence of Catholicism in this country. The late twentieth and early twenty-first century conflicts have largely been between the religious and the secular, although sometimes the division falls along religious lines. The religious split is often among traditional, or mainline, or modernist believers vs. evangelicals, or conservatives, or fundamentalists, or orthodox believers. Conservative Protestants these days may be more aligned with conservative Catholics than with members of their own denomination. The very labels are subjects of debate both within faiths and within society. As an example, in one denomination, one group labels itself as moderate, while its opponents label it as liberal. The term evangelical has been used in the press and by scholars largely to convey politically conservative believers, but that does not necessarily match the concept of evangelical theology. Like so many labels, these names have become shorthand descriptions that reveal generally what is being talked about, regardless of whether the label is a fair description or categorization. To add to the confusion, huge battles are raging within some denominations over their core beliefs—battles that sometimes lead to schisms. It is also worth noting that over time denominations have changed their positions on issues, which sometimes leads to confusion for scholars who are trying to understand cases from a different era. For example, some of the denominations that were traditionally in favor of strict separation of church and state, often as a result of their history of having been a minority or lacking political power, are now modern-day leaders in efforts to reduce separation. This is particularly true in the case of school prayer and religion in schools. Despite all the struggles, there has never been a serious attempt to establish a national religion for the United States. But there have been and continue to be many cases involving actions by the government that are seen to violate the establishment clause. The previous sentence was carefully written. If the italicized part had read to violate the wall of separation between church and state, to enhance a particular religion, or to unduly entangle the state with religion, each of these phrases would likely convey a 206

different perspective on what the Amendment means. People colloquially say that the Constitution requires separation of church and state. But justices’ choice of words often portrays their personal philosophy about establishment. So to say that an action violates the separation of church and state might be seen as approaching a Jeffersonian view of strict separation. Some people argue, however, that the establishment clause should not be seen as a call for separation of church and state, simply as a command for government neutrality among religions or between religion and no religion. In any event, the debate, at least in the Court, has not been about making Methodism, Catholicism, or even Christianity the national religion. The question of establishment arises about things such as school prayer, funding students who attend religious schools, or putting up Christmas decorations in public parks.

CURRENT JUDICIAL APPROACHES The current Court is quite divided in its establishment clause jurisprudence. This chapter will make it clear that it is sometimes difficult to ascertain exactly what the current position of the Court is. Lines are drawn distinguishing among situations that seem quite similar. The Court has overturned precedents that were in place for a considerable amount of time and yet has not overturned others that seem like they should have been overturned given the logic. Finally, even though the primary test that is used by the Court for establishment cases—the Lemon test —has been roundly criticized by justices from different perspectives, a majority has not yet formed to bury the test. Ostensibly the Lemon test has been modified, but even that is debatable. Nevertheless, amidst all this confusion, it seems that three contending approaches have emerged for the evaluation of establishment—all of which have problems. The first approach is strict separation. Jefferson’s “wall of separation” metaphor best exemplifies the idea. To the extent possible, government and religion should be cordoned off from one another. Efforts to assure an impregnable wall, however, may hinder the free exercise of religion. The second approach is referred to as neutrality. The idea is that government should be neutral toward religion and should neither do things to endorse it nor do things to inhibit it. But determining endorsement is often difficult. For example, is allowing a Christmas display on public property endorsing religion,

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thereby violating neutrality? Or does denying such a display inhibit religion? The final approach is often referred to as accommodation. The idea is that religion is an important part of American life and it should be accommodated as much as possible and face no special burdens. Even adherents of this most nonwall-like approach, however, draw the line at coercion. For example, accommodating a teacher-led prayer in the classroom is seen as coercing young students to pray. Like endorsement, coercion is a contentious concept. Is a student-led prayer over the stadium speaker at a football game coercive? Does denying it tread upon free exercise? Schools have played a central role in the evolution of establishment clause doctrine. In some ways, that is to be expected. Part of a school’s responsibility is to inculcate values in youth. Acceptable values may include the importance of education, civic responsibility, or democratic decision making, but schools have also sought to inculcate moral or religious values. Today it is clear that inculcation of religious values by public schools is not allowable under the Constitution, but it was not always so. It is important to remember that a widespread public school system did not develop until the nineteenth century. Prior to the 1830s, most schools were private and most were religiously based. Moreover, nineteenth and early twentieth century public schools, or “common schools” as they were often called, were certainly not the secular entities that they are today. The day’s lessons included daily Bible reading, hymn singing, and prayer. The schools were thoroughly Protestant. They used the King James Bible, which was not accepted by the Catholic Church; Catholics used the Douay Bible. Bible reading without mediation also was contrary to Catholic teaching. Catholics eventually wanted to educate their children in their own schools. There was some effort to prevent this move, often based on conspiracy theories about what Catholic children would be taught. In addition, there was strong Protestant resistance to any public funding of Catholic schools. By the 1960s, however, some things had changed. With John Kennedy’s election as the first Catholic President, some of the anti-Catholic fervor began to dissipate. Parochial schools had increasingly become an important component of educating the poor. The Catholic Church felt that it needed help in this effort. President Lyndon Johnson’s concept of a Great Society encouraged interest in funding education for the poor,

and although many Protestants still opposed funding for parochial schools, there was also a cross-cutting trend, especially among liberals, to find ways to aid poor students. The history of the development of public schools and the Protestant–Catholic struggle is long and complicated, but it helps to know that history as one reads the early cases. Indeed, after the Supreme Court entered the fray, another history began. It was a long and winding road, and many of the issues remain with us today. Working through the cases on funding of parochial schools, sometimes known as parochiaid, can be confusing, especially given some changes in doctrine. The cases remain important, however, because it is in those cases that many of the theories about establishment clause jurisprudence were developed.

RELIGIOUS SCHOOLS AND PUBLIC MONEY: PAROCHIAID FEATURED CASE

Everson v. Board of Education Justice Hugo Black launched the first Supreme Court inquiry on the scope and meaning of “an establishment of religion” in 1947 when he authored the Court’s opinion in Everson v. Board of Education (330 U.S. 1). In 1941, New Jersey enacted legislation that authorized school districts to subsidize the transportation of pupils who attended church-related schools. Under this legislation, the Ewing Township district decided to reimburse parents for money they spent to get their children to and from school on the public transit system. A taxpayer objected to this reimbursement scheme and challenged the practice as a violation of the establishment clause. Justice Black gave his understanding of the establishment clause: The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be The Establishment Clause

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called or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice-versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of Separation between church and State. . . .”

In the end, however, the Supreme Court upheld the reimbursement scheme in Everson v. Board of Education (330 U.S. 1, 1947). Justice Black, speaking for the five-to-four majority, emphasized the “child benefit,” “secular legislative purpose,” and “public welfare” aspects of the New Jersey legislation. In dissent, Justice Wiley B. Rutledge, joined by Justices Felix Frankfurter, Robert H. Jackson, and Harold Burton, warned of the efforts to use the taxing power to support parochial schools and to inject religious training and exercises into the public schools. Rutledge concluded that these two “great drives are constantly in motion to abridge, in the name of education, the complete division of religion and civil authority” that the First Amendment commands, and he concluded that neither should be supported by the Court. Just one year after Justice Wiley B. Rutledge had sounded his Everson warning about the drive to introduce religious instruction in the public schools, the Supreme Court was confronted with the issue in McCollum v. Champaign Board of Education (333 U.S. 203, 1948). The program was conducted in the Champaign, Illinois, public school system on a voluntary basis and provided religious instruction separately for Protestants, Catholics, and Jews. Instruction was the responsibility of religious authorities and took place during regular school hours and in the school classrooms. Students who were not participating in the program were required to leave their regular classrooms and pursue their school activities elsewhere in the school building; students who volunteered to participate in the program were required to attend religious classes. The public school teachers assisted in several routine matters such as distributing permission slips and keeping attendance records. This arrangement was rejected by the Court in an eight-to-one decision as a flat contravention of the establishment clause. Justice Black, whose opinion was supported by five other justices, maintained that the use of the public school classrooms to conduct religious instruction, the operation of the compulsory school attendance machinery to provide audi208

ences for the propagation of the sectarian dogma, and the close cooperation between religious and school authorities in promoting the program constituted “beyond all question a utilization of the . . . tax-supported public school system to aid religious groups to spread their faith.” Only Justice Stanley Reed dissented, contending that the framers of the establishment clause did not intend to exclude religious education from the public schools. In his analysis, he concluded that they had meant for the clause to prohibit the establishment of a state church and/or a state religion, and nothing more. The decision in McCollum met with widespread criticism, since such programs were common in communities across the country. Apparently a majority of the justices noticed the reaction because they decided to limit the McCollum ruling four years later in Zorach v. Clauson (343 U.S. 306, 1952). The only significant difference between the two programs of instruction was the location of the religious classes. In Champaign, Illinois, they were held inside the regular school classrooms. In New York, they were conducted off school property. For the 6person majority in Zorach, however, this difference was sufficient to save New York’s program from constitutional infirmity. Justice William O. Douglas, writing the majority opinion, rejected the view of rigid and absolute separation of church and state. He maintained that the First Amendment does not say that in all respects there must be a separation of church and state, for if that thesis were accepted, “the state and religion would be alien to each other— hostile, suspicious, and even unfriendly.” But he argued that our religious heritage supports such accommodation between religion and secular authorities. For the three dissenters—Justices Black, Frankfurter, and Jackson—there was no consequential difference between this program and the one that had been struck down in McCollum. Operationally, they argued, public school authorities were still delivering aid to sectarian groups by securing audiences of schoolchildren for the propagation of religious dogma. The Court appeared to move toward an accommodationist stance in Zorach without rejecting McCollum. Justice Rutledge’s warning was also reflected in the subsequent surge of legislative proposals for various forms of assistance to sectarian schools. The purchase of textbooks, for example, is a major expense for students attending private schools. As a result, sectarian interest groups made major efforts over the years to influence legislative bodies to ap-

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propriate funds for textbooks. Those advocates could point not only to the Everson precedent but to the Court’s decision in Cochran v. Louisiana State Board of Education (218 U.S. 370, 1930) for support. A Louisiana textbook aid statute was sustained against a due process challenge; but the establishment issue was not considered. Nevertheless, the “child benefit” nature of the expenditure emphasized by the Cochran case is now an essential ingredient of the secular legislative purpose dimension of the three-pronged test that the Court applies in establishment clause cases. The leading establishment clause challenge to the state provision of secular textbooks for parochial school children came in Board of Education v. Allen (392 U.S. 236, 1968). At issue was a New York statute that required local school boards to provide the free loan of textbooks to students in grades seven through twelve, including students attending parochial and other private schools. In upholding the statute, the Court reaffirmed the general welfare and secular legislative purpose doctrine of Everson. In addition, Justice Byron White, who wrote the Court’s opinion, thought that the law met the test (“the purpose and primary effect of the enactment”) enunciated in School District of Abington Township v. Schempp (discussed infra). He contended that the purpose of the legislation was to expand educational opportunity by making textbooks available free of charge. The financial benefit was to the student and the parent, not to the school. Both Justices Hugo Black and William O. Douglas, in their separate dissents, felt that the majority’s reliance on Everson was grossly misplaced. Black charged that the law “is a flat, flagrant

and open violation” of the establishment clause and warned that it would take “no prophet to foresee” that similar arguments could be used to support and uphold legislation funding parochial school construction and teachers’ salaries. Justice Douglas was troubled about the ideological bias that was possible in the selection of textbooks. He noted that the initial selection was in the hands of those who could exercise an ideological (sectarian) bias and that, whatever subsequent action the public school board took, the provision of free textbooks to private schools aggravated the church–state problem. In distinguishing this case from Everson, Douglas stressed the possible ideological bias of a textbook compared with school buses, hot lunches, and scholarships. To him, the textbook “is the chief . . . instrumentality for propagating a particular religious creed or faith.” The Johnson administration’s heightened effort to enhance the nation’s educational programs during the 1960s spurred similar efforts at the state level. Some of the state efforts went beyond mere provision for “buses and books” (which was found constitutionally acceptable in Everson and Allen) to focus on a variety of educational needs, such as other instructional materials, teacher salaries, and the school’s physical plant. Recognizing the secular educational activities of sectarian schools, the statutes typically directed aid to shore up the educational efforts of those schools. Of course, attempts to give such extensive public support to church-related schools produced great tension on the line separating church and state and provided the Court with several cases through which it further clarified establishment clause law.

EVERSON V. BOARD OF EDUCATION 330 U.S. 1; 91 L. Ed. 711; 67 S. Ct. 504 (1947) JUSTICE BLACK delivered the opinion of the Court, in which CHIEF JUSTICE VINSON and JUSTICES REED, DOUGLAS, and MURPHY joined. JUSTICE JACKSON filed a dissenting opinion, in which JUSTICE FRANKFURTER joined. JUSTICE RUTLEDGE filed a dissenting opinion, in which JUSTICES FRANKFURTER, JACKSON, and BURTON joined.

JUSTICE BLACK delivered the opinion of the Court. A New Jersey statute authorizes its local school districts to make rules and contracts for the transportation of children to and from schools. The appellee, a township board of education, acting pursuant to this statute, authorized reimbursement to parents of The Establishment Clause

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money expended by them for the bus transportation of their children on regular busses operated by the public transportation system. Part of this money was for the payment of transportation of some school children in the community to Catholic parochial schools. These church schools give their students, in addition to secular education, regular religious instruction conforming to the religious tenets and modes of worship of the Catholic Faith. The superintendent of these schools is a Catholic priest. The appellant, in his capacity as a district taxpayer, filed suit in a state court challenging the right of the Board to reimburse parents of parochial school students. He contended that the statute and the resolution passed pursuant to it violated both the State and Federal Constitutions. That court held that the legislature was without power to authorize such payments under the state constitution. . . . The New Jersey Court of Errors and Appeals reversed, holding that neither the statute nor the resolution passed pursuant to it was in conflict with the State Constitution or the provisions of the Federal Constitution in issue. . . . The Case is here on appeal under 28 U.S.C. sec. 344(a). . . . The only contention here is that the state statute and the resolution, insofar as they authorize reimbursement to parents of children attending parochial schools, violate the Federal Constitution in these two aspects, which to some extent overlap. First. They authorize the State to take by taxation the private property of some and bestow it upon others, to be used for their own private purposes. This, it is alleged, violates the due process clause of the Fourteenth Amendment. Second. The statute and the resolution forced inhabitants to pay taxes to help support and maintain schools which are dedicated to, and which regularly teach, the Catholic Faith. This is alleged to be a use of state power to support church schools contrary to the prohibition of the First Amendment which the Fourteenth Amendment made applicable to the states. First. The due process argument that the state law taxes some people to help others carry out their private purposes is framed in two phases. The first phase is that a state cannot tax A to reimburse B for the cost of transporting his children to church schools. This is said to violate the due process clause because the children are sent to these church schools to satisfy the personal desires of their parents, rather than the public’s interest in the general education of all children. . . . 210

It is much too late to argue that legislation intended to facilitate the opportunity of children to get a secular education serves no public purpose. Cochran v. Louisiana State Board of Education, 281 U.S. 340: Holmes, J., in Interstate Ry. v. Massachusetts, 207 U.S. 79, 87. . . . Second. The New Jersey statute is challenged as a “law respecting an establishment of religion.” The First Amendment, as made applicable to the states by the Fourteenth, Murdock v. Pennsylvania, 319 U.S. 105, commands that a state “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of Separation between church and State. . . .” We must consider the New Jersey statute in accordance with the foregoing limitations imposed by the First Amendment. But we must not strike that state statute down if it is within the State’s constitutional power even though it approaches the verge of that power. . . . New Jersey cannot consistently with the “establishment of religion” clause of the First Amendment contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church. On the other hand, other language of the amendment commands that New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation. . . .

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Measured by these standards, we cannot say that the First Amendment prohibits New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools. It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children’s bus fares out of their own pockets when transportation to a public school would have been paid for by the State. The same possibility exists where the state requires a local transit company to provide reduced fares to school children including those attending parochial schools, or where a municipally owned transportation system undertakes to carry all school children free of charge. Moreover, statepaid policemen, detailed to protect children going to and from church schools from the very real hazards of traffic, would serve much the same purpose and accomplish much the same result as state provisions intended to guarantee free transportation of a kind which the state deems to be best for the school children’s welfare. And parents might refuse to risk their children to the serious danger of traffic accidents going to and from parochial schools, the approaches to which were not protected by the policemen. Similarly, parents might be reluctant to permit their children to attend schools which the state had cut off from such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks. Of course, cutting off church schools from these services, so separate and so indisputably marked off from the religious function, would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. That Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers: it does not require the state to be their adversary. . . . . . . The State contributes no money to the schools. It does not support them. Its legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools. The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here. Affirmed.

JUSTICE JACKSON, joined by JUSTICE FRANKFURTER, dissenting: I find myself, contrary to first impressions, unable to join in this decision. I have a sympathy, though it is not ideological, with Catholic citizens who are compelled by law to pay taxes for public schools, and also feel constrained by conscience and discipline to support other schools for their own children. Such relief to them as this case involves is not in itself a serious burden to taxpayers and I had assumed it to be as little serious in principle. Study of this case convinces me otherwise. The Court’s opinion marshals every argument in favor of state aid and puts the case in its most favorable light, but much of its reasoning confirms my conclusions that there are no good grounds upon which to support the present legislation. In fact, the undertones of the opinion, advocating complete and uncompromising separation of Church from State, seem utterly discordant with its conclusion yielding support to their commingling in educational matters. The case which irresistibly comes to mind as the most fitting precedent is that of Julia who, according to Byron’s reports, “whispering ‘I will ne’er consent.’—consented.” . . . The Township of Ewing is not furnishing transportation to the children in any form: it is not operating school busses itself or contracting for their operation; and it is not performing any public service of any kind with this taxpayer’s money. All school children are left to ride as ordinary paying passengers on the regular busses operated by the public transportation system. What the Township does, and what the taxpayer complains of, is at stated intervals to reimburse parents for the fares paid, provided the children attend either public schools or Catholic Church schools. This expenditure of tax funds has no possible effect on the child’s safety or expedition in transit. As passengers on the public busses they travel as fast and no faster, and are as safe and no safer, since their parents are reimbursed as before. In addition to thus assuming a type of service that does not exist, the Court also insists that we must close our eyes to a discrimination which does exist. The resolution which authorizes disbursement of this taxpayer’s money limits reimbursement to those who attend public schools and Catholic schools. That is the way the Act is applied to this taxpayer. The New Jersey Act in question makes the character of the school, not the needs of the children, determine the eligibility of parents for reimbursement. The Establishment Clause

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The Act permits payment for transportation to parochial schools or public schools but prohibits it to private schools operated in whole or in part for profit. Children often are sent to private schools because their parents feel that they require more individual instruction than public schools can provide, or because they are backward or defective and need special attention. If all children of the state were objects of impartial solicitude, no reason is obvious for denying transportation reimbursement to students of this class, for these often are as needy and as worthy as those who go to public or parochial schools. Refusal to reimburse those who attend such schools is understandable only in the light of a purpose to aid the schools, because the state might well abstain from aiding a profit-making private enterprise. Thus, under the Act and resolution brought to us by this case, children are classified according to the schools they attend and are to be aided if they attend private secular schools or private religious schools of other faiths. . . . It is no exaggeration to say that the whole historic conflict in temporal policy between the Catholic Church and non-Catholics comes to a focus in their respective school policies. The Roman Catholic Church, counseled by experience in many ages and many lands and with all sorts and conditions of men, takes what, from the viewpoint of its own progress and the success of its mission, is a wise estimate of the importance of education to religion. . . . I should be surprised if any Catholic would deny that the parochial school is a vital, if not the most vital part of the Roman Catholic Church. If put to the choice, that venerable institution, I should expect, would forego its whole service for mature persons before it would give up education of the young, and it would be a wise choice. Its growth and cohesion, discipline and loyalty, spring from its schools. Catholic education is the rock on which the whole structure rests, and to render tax aid to its Church school is indistinguishable to me from rendering the same aid to the Church itself. . . . [W]e cannot have it both ways. Religious teaching cannot be a private affair when the state seeks to impose regulations which infringe on it indirectly, and a public affair when it comes to taxing citizens of one faith to aid another, or those of no faith to aid all. If these principles seem harsh in prohibiting aid to Catholic education, it must not be forgotten that it is the same Constitution that alone assures Catholics the right to maintain these schools at all when 212

predominant local sentiment would forbid them. Pierce v. Society of Sisters, 268 U.S. 510. Nor should I think that those who have done so well without this aid would want to see this separation between Church and State broken down. If the state may aid these religious schools, it may therefore regulate them. . . . JUSTICE RUTLEDGE, joined by JUSTICES FRANKFURTER, JACKSON, and BURTON, dissenting: II . . . [T]oday, apart from efforts to inject religious training or exercises and sectarian issues into the public schools, the only serious surviving threat to maintaining that complete and permanent separation of religion and civil power which the First Amendment commands is through use of the taxing power to support religion, religious establishments, or establishments having a religious foundation whatever their form of special religious function. Does New Jersey’s action furnish support for religion by use of the taxing power? Certainly it does if the test remains undiluted as Jefferson and Madison made it, that money taken by taxation from one is not to be used or given to support another’s religious training or belief, or indeed one’s own. Today as then the furnishing of “contributions of money for the propagation of opinions which he disbelieves” is the forbidden exaction; and the prohibition is absolute for whatever measure brings that consequence and whatever amount may be sought or given to that end. . . . New Jersey’s action therefore exactly fits the type of exaction and the kind of evil at which Madison and Jefferson struck. Under the test they framed it cannot be said that the cost of transportation is no part of the cost of education or of the religious instruction given. That it is a substantial and a necessary element is shown most plainly by the continuing and increasing demand for the state to assume it. Nor is there pretense that it relates only to the secular instruction given in religious schools or that any attempt is or could be made toward allocating proportional shares as between the secular and the religious instruction. It is precisely because the instruction is religious and relates to a particular faith, whether one or another, that parents send their children to religious schools under the Pierce doctrine. And the very purpose of the state’s contribution is to defray the cost of conveying the pupil to the place where he will receive not simply secular, but also and primarily religious, teaching and guidance. . . .

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Finally, transportation, where it is needed, is as essential to education as any other element. Its cost is as much a part of the total expense, except at times in amount, as that of textbooks, of school lunches, or athletic equipment, of writing and other materials; indeed of all other items composing the total burden. . . . Without buildings, without equipment, without library, textbooks and other materials, and without transportation to bring teacher and pupil together in such an effective teaching environment, there can be not even the skeleton of what our times require. Hardly can it be maintained that transportation is the least essential of these items, or that it does not in fact aid, encourage, sustain and support, just as they do, the very process which is its purpose to accomplish. . . . For me, therefore, the feat is impossible to select so indispensable an item from the composite of total costs, and characterize it as not aiding, contributing to, promoting or sustaining the propagation of beliefs which it is the very end of all to bring about. . . . IV No one conscious of religious value can be unsympathetic toward the burden which our constitutional separation puts on parents who desire religious instruction mixed with security for their children. They pay taxes for others’ children’s education, at the same time the added cost of instruction for their own. Nor can one happily see benefits denied to children which others receive, because in conscience they or their parents desire for them a different kind of training others do not demand. But if those feelings should prevail, there would be an end to our historic constitutional policy and command. No more unjust or discriminatory in fact is it to deny attendants at religious schools the cost of their transportation than it is to deny them tuitions, sustenance for their teachers, or any other additional expense which others receive at public cost. Two great drives are constantly in motion to abridge, in the name of education, the complete division of religion and civil authority which our forefathers made. One is to introduce religious education and observances into the public schools. The other, to obtain public funds for the aid and support of various private religious schools. See Johnson, The Legal Status of Church-State Relationships in the United States (1934); Thayer, Religion in Public Education (1947); Note (1941)

50 Yale L.J. 917. In my opinion both avenues were closed by the Constitution. Neither should be opened by this Court. The matter is not one of quantity, to be measured by the amount of money expended. Now as in Madison’s day it is one of principle, to keep separate the separate spheres as the First Amendment drew them; to prevent the first experiment upon our liberties; and to keep the question from becoming entangled in corrosive precedents. We should not be less strict to keep strong and untarnished the one side of the shield of religious freedom than we have been of the other. The judgment should be reversed.

THE LEMON TEST AND MORE PAROCHIAID Shortly after Chief Justice Warren Burger settled in, the Court indicated its unwillingness to accommodate the lawmakers of Pennsylvania and Rhode Island in their sectarian school aid packages that went beyond textbooks to other instructional materials and teacher salaries. Under the Pennsylvania statute of 1968, the state superintendent of public instruction was authorized to purchase secular educational services from private schools and to reimburse them for teacher salaries, textbooks, and instructional materials. The Rhode Island statute, enacted a year later, provided for a 15 percent salary supplement for teachers in private schools in which the average per-pupil expenditure on secular instruction was below the average in the public schools. Speaking for the seven-to-one majority in Lemon v. Kurtzman (403 U.S. 602, 1971) (the Pennsylvania case, consolidated with Earley v. DiCenso and Robinson v. DiCenso of Rhode Island), the chief justice reviewed the Court’s establishment clause rulings over the years and articulated a threepronged test that was gleaned from those several actions. To withstand an establishment clause challenge, he asserted, the statutory program at issue must have a secular legislative purpose. In addition, its principal or primary effect must neither advance nor inhibit religion. And finally, the statutory arrangement must not foster an excessive government entanglement with religion. This formulation became popularized as the Lemon test and guided the Court’s decision making in the church–state area for the next two decades. Applying the test to the Pennsylvania and Rhode Island programs at issue, The Establishment Clause

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the chief justice pointed to the “intimate and continuing relationship(s)” between church and state in order to accomplish the statutory objectives. In a concurring opinion, Justice Douglas expressed concern about the surveillance that would be required in order to monitor the grants effectively. He further expressed great impatience with those who still have “the courage to announce that a state may . . . finance the secular part of a sectarian school’s educational program.” However, in a partial dissent, Justice Byron White found enough support in prior holdings of the Court to sustain the statutes against the establishment clause challenge. For him, state support of a “separable secular function of overriding importance” was sufficient to sustain the program’s constitutionality. The disappointment for the supporters of this form of parochiaid was mitigated somewhat when the Court on the same day upheld the federal program for aid to higher educational facilities in Tilton v. Richardson (403 U.S. 672, 1971) (infra). The Tilton ruling, when coupled with the 1970 decision sustaining the exemption from taxation of church property that was used for religious purposes (see Walz v. Tax Commission [397 U.S. 664, 1970] infra), appeared to provide a small ray of hope for those who advocated the use of public funds to shore up the steadily deteriorating finances of parochial schools. That hope was further buttressed by what was deemed to be a more sympathetic Supreme Court with the four Nixon appointees (Burger, Blackmun, Powell, and Rehnquist). Nixon had promised to give financial relief for private schools through federal tax credits for parents of children who attended those schools. That hope was crushed, however, when the Supreme Court held in 1973 that the New York legislative program which provided for private school aid through maintenance and repair grants, tuition reimbursement, and tax credits, and a Pennsylvania statute that authorized tuition reimbursements, amounted to unconstitutional aid to religious establishments. In the New York case (Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 1973), Justice Lewis F. Powell, Jr., speaking for the six-to-three majority, noted that the purpose and primary effect of the program was to “advance activities of sectarian elementary and secondary schools.” Furthermore, Justice Powell discounted the notion that parents could serve as conduits for such aid by 214

employing tuition reimbursement and tax credits. Rejecting one of the most often cited justifications for public aid to parochial schools, Justice Powell concluded: “However great our sympathy for the burdens of those who must pay public school taxes at the same time they support other schools because of the constraints of ‘conscience and discipline,’ and notwithstanding the ‘high social importance’ of the state’s purposes, neither may justify an eroding of the limitations of the Establishment Clause now firmly implanted.”

For similar reasons, the Pennsylvania tuition reimbursement program was struck down in Sloan v. Lemon (413 U.S. 825, 1973). In dissent, Chief Justice Burger, supported by Justices White and Rehnquist, emphasized the secular purpose and general welfare nature of the benefits that were embraced by the legislative programs. He argued that the Everson and Allen precedents fully supported this attempt to equalize the costs that were incurred by parents whose children attended private schools. To him, the establishment clause limitations were attenuated “when the legislation moves away from direct aid to religious institutions and takes on the character of general aid to individual families.” A Court majority continued to find state textbook aid statutes constitutionally acceptable in the decade that followed Allen. In Meek v. Pittenger (421 U.S. 349, 1975) the Court drew very fine distinctions between instructional materials and books. Secular textbooks could be lent to parochial schools, but instructional materials, such as “periodicals, photographs, maps, charts, sound recordings, and films,” could not. Justice Potter Stewart, who spoke for the Court, emphasized that the books were being loaned directly to the pupils and that there was no financial benefit to the sectarian schools which the students attended. The nontext materials, however, were forbidden because they could be used be used for religious instruction. In Wolman v. Walter (433 U.S. 229, 1977), Justice Harry Blackmun used similar reasoning in upholding the Ohio textbook provision while overturning the loan of instructional materials (housed at the school) directly to students. Wolman also upheld state provision of speech, hearing, and psychological diagnostic services at the parochial schools. Meek had struck down the provision of these therapeutic services. The justification for the distinction with Meek was that, in Wolman, contact with the students was likely to be briefer and less likely to

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have religious content. The Court proceeded to make such fine distinctions over many cases dealing with parochiaid. Similarly, the Court allowed New York to keep a statutory scheme providing public funds to reimburse sectarian schools for performing state-mandated testing and reporting services in Committee for Public Education and Religious Liberty v. Regan (444 U.S. 646, 1980). Apparently, the Court felt that the defects of the earlier program which was invalidated in Levitt v. Committee for Public Education were remedied by an auditing provision that was designed to ensure that costs were incurred only for secular services. The Court emphasized that Meek was not to be construed as barring any aid to the secular educational functions of a sectarian school. During its 1983 term, the Court continued its stance of accommodation when it approved Minnesota’s tax-deduction program for tuition, textbook, and transportation costs in Mueller v. Allen (463 U.S. 388, 1983). Unlike the various reimbursement arrangements of the past, this measure made the relief available to parents of pupils attending either public or private schools. Justice William Rehnquist’s opinion for the five-to-four majority emphasized the policy’s conformity with the Lemon test. The secular purpose enhanced by the tax deduction for educational expenses would help improve education for all children. In addition, he reasoned that the tax deduction was not primarily to advance religion but was just one of a number of tax deductions that were available to all parents who send their children to either public or parochial schools. Hence, he found the Minnesota statute neutral on its face. But in reality, the tax deduction was of primary benefit to parents who paid tuition and other fees for their children to attend parochial schools, as Justice Thurgood Marshall pointed out in dissent. Joined by Justices Brennan, Blackmun, and Stevens, he condemned the statute as a parochial school tuition subsidy “masquerading as a subsidy of general education expenses,” since parents of public school children do not, as a rule, incur the expenses covered for which a deduction could be claimed. Finally, the operation of the Minnesota statute did not present any excessive entanglement problems, since no official action was needed to ensure that the money would be used only for secular purposes. On this point, Justice Rehnquist argued that where there is no surveillance, there can be no excessive entanglement.

The Court was not so accommodating when it was presented with challenges to enrichment and other types of instructional services that were offered in the New York City and Grand Rapids, Michigan, school systems with funds derived from Title I of the federal Elementary and Secondary Education Act of 1965. Both programs were rejected by the Court because they failed the “purpose and primary effect” prong of the Lemon test. In the New York program, challenged in Aguilar v. Felton (473 U.S. 402, 1985), remedial and counseling/guidance services that were delivered with Title I funding were made available to both public and parochial school pupils. Instructional personnel were public school employees and parochial school students who enrolled in the Title I classes initially were transported from their home schools to the public school sites where the courses were delivered after the conclusion of the regular school day. But logistical problems prompted the school board to relocate the classes to the facilities that the students regularly attended. This meant that public school employees were delivering the instruction and services in parochial school buildings. In a subsequent challenge brought by several federal taxpayers, the Court held that the program as delivered breached the church–state “wall-ofseparation.” In his opinion for the 5–4 majority, Justice William J. Brennan focused on the excessiveentanglement prong of the Lemon test and noted with disapproval that the system devised to monitor religious content to prevent courses from advancing religion “would require a permanent and pervasive state presence” in the church-related schools in which the programs would be delivered. The Grand Rapids school district used the Title I funds to develop “shared time” and “community education” programs for delivery of supplemental and enrichment courses and activities for students who were regularly enrolled in parochial schools. The teachers were school district employees who offered the instruction during regular school hours in classrooms within the parochial school buildings that were leased by the school district. New York saved its program by moving the classes to vans that were located off parochial school premises. Over time the Board purchased over 100 of these mobile classrooms to deliver the Title I programs to parochial school pupils. Annual expenditures for the mobile classrooms delivery system were estimated to be as high as $15 million. The Establishment Clause

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During the decade following the Aguilar and Grand Rapids rulings, several of the newer justices questioned the Lemon test’s usefulness as a guide to establishment clause decision making. Two additional rulings signaled an increasingly favorable judicial climate for the advocates of parochiaid. In Witters v. Washington (474 U.S. 481, 1986), the Court ruled on a state vocational rehabilitation grant to a blind student to pay tuition at a Bible college. In Zobrest v. Catalina Foothills School District (509 U.S. 1, 1993), it considered provision of a public school employee to serve as a sign-language interpreter for a deaf student who attended a parochial high school. Though some thought in Zobrest that the Court would try to overturn the Lemon test, it did not. Instead, it held that public support for a parochial school deaf student’s language interpreter was constitutionally permissible. Chief Justice William Rehnquist was able to marshal a five-tofour majority behind the general government benefit theory in the category of fire and police protection. He noted that aid for interpreters was available for students in both public and parochial schools. He also emphasized that the student, not the school, was the direct beneficiary of the aid. He also cited the precedent of Witters, in which the Court had sustained a blind student’s use of public vocational funds to pay for his seminary training. But the dissenters, led by Justices Harry Blackmun and David Souter, were not so generous in their characterization of this expenditure of public funds. They contended that at a parochial school “the secular and the sectarian are inextricable intertwined” and that the interpreter played a critical role not only in delivering secular matter, but in propagating religious doctrine as well. Near the end of its 1996 term, the Court overturned its twelve-year-old Aguilar precedent in Agostini v. Felton (521 U.S. 203, 1997) allowing public school employees to deliver Title I educational programs and services at parochial school facilities. In Mitchell v. Helms (530 U.S. 793, 2000) the Court expressly overruled Meek and the part of Wolman concerning the ability of the government to give instructional equipment to parochial schools. Proponents of more public funding for education became more confident that arrangements allowing students a private (including church-related) school option would withstand establishment clause challenges. During the 1980s, both Presidents Reagan and Bush urged tax relief for parents of children who at216

tended private (mostly parochial) schools. But several attempts to get Congress to enact some form of tax-credit relief failed and the national debate on parochiaid shifted to educational vouchers. The key dimension of this education financing plan allows a qualifying student to receive a voucher for a specified amount of money that can be used for tuition at any school that the student chooses to attend. Because many students would use this money to attend parochial schools, establishment clause jurisprudence presents a formidable barrier. The Supreme Court resolved the issue in Zelman v. Simmons-Harris (536 U.S. 639, 2002). Students may use vouchers worth up to $2250 to attend any school of their parents’ choosing. Ninety-six percent of all vouchers were used in parochial schools. Writing for a 5–4 Court, Chief Justice Rehnquist found that there were no financial incentives that skewed the program toward religious schools. He found that the government aid program was neutral with respect to religion and that the money went to a broad class of citizens. The fact that they went to religious schools was a private choice. The long and confusing history of parochiaid in elementary and secondary schools demonstrates that the Court often makes very fine distinctions which are almost incomprehensible to the outside observer. One simple explanation is that it simply reflects which side could amass 5 votes on a closely divided Court. A deeper explanation lies in a profound difference among the justices about what the establishment clause prevents.

PAROCHIAID AND HIGHER EDUCATION Parochiaid has not been confined to the elementary and secondary school levels. Initiatives of both the federal and state governments have produced a number of financial support programs for institutions of higher learning, including church-related ones. But the Court has been more accommodating to proponents of using public money to finance private higher education than to proponents of such use in the lower grades. On the same day that it struck down the Pennsylvania and Rhode Island parochiaid programs for elementary and secondary schools in the Lemon and DiCenso cases, for example, the Court sustained the expenditure for private education of federal funds, some of which were targeted to support the construction of educational facilities at church-

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related colleges and universities. In Tilton v. Richardson (403 U.S. 672, 1971), funds to be funneled to such institutions through the Higher Educational Facilities Act of 1963 were deemed acceptable because the Court did not feel that the act’s enforcement provisions would produce the kind of “excessive entanglement” between the government and church-related schools that the establishment clause forbids. Chief Justice Warren Burger, speaking for Justices John M. Harlan II, Potter Stewart, and Harry A. Blackmun, noted that the Act provided for facilities that were “religiously neutral” and that the “one-shot” grants did not require the continuous surveillance that was condemned in Kurtzman and DiCenso. Furthermore, he contended that there was far less danger of religious matter permeating secular education and indoctrinating its recipients at this level than in the elementary and secondary levels. However, the Court felt that the provision limiting federal interest in the facility to a period of twenty years did not provide adequate safeguards against impermissible aid to religious establishments. Consequently, the unrestricted use of funds by religious bodies thereafter would constitute the kind of aid that the establishment clause proscribes. But, in the end, Burger held that under the doctrine of separability, this defect was not fatal to the remainder of the statute. In his dissent, Justice William O. Douglas, with whom Justices Hugo Black and Thurgood Marshall concurred, pointed to President Kennedy’s statement in March 1961, in which the president flatly asserted that there was no doubt that “the Constitution clearly prohibits aid to . . . parochial schools [as] the correct constitutional principle for this case.” Douglas had no doubt that the statute furthered education, but the aid accruing to parochial schools from it constituted a fatally defective constitutional flaw. To him, “excessive entanglements” of secular and sectarian officials and actions permeated the entire scheme. The Court used the Tilton precedent to sustain two state parochiaid higher education programs during the 1970s. The first involved a South Carolina plan for financing construction of secular facilities at churchrelated colleges by revenue bonds issued by state authority. In Hunt v. McNair (413 U.S. 734, 1973), the Court felt that since the college serviced and repaid the bonds (although at a lower rate because the interest payments were tax-free), the aid resulting from the bonds did not have the “primary effect” of advancing

the religious mission of the college. Furthermore, the Court noted that the college was similar to those in Tilton and was not “pervasively sectarian.” A more generous aid program for such institutions was authorized by a 1971 Maryland statute. Utilizing a noncategorical grant format, it authorized the payment of an annual subsidy to private institutions, including church-related ones, that met certain requirements. In recognition of First Amendment constraints, the act expressly excluded schools that award “only seminarian or theological degrees.” An amendment to the statute in 1972 proscribed use of the funds for sectarian purposes. In rejecting an establishment clause challenge to this statute, a three-judge district court found that 1) the act had a secular legislative purpose, 2) the aid did not have a primary effect of advancing religion, 3) the recipient institutions were not “pervasively sectarian,” 4) the aid in fact was extended only to “the secular side” of the schools, and 5) no “excessive entanglement” between church and state was fostered by the act. The Supreme Court affirmed this lower court holding in Roemer v. Board of Public Works of Maryland (426 U.S. 736, 1976).

PRAYER AND RELIGION IN PUBLIC SCHOOLS FEATURED CASES

Engel v. Vitale; School District of Abington Township, Pennsylvania v. Schempp; Lee v. Weisman; Santa Fe Independent School District v. Doe Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country. (New York Regents prayer) This prayer, which was adopted in 1951 by the New York Board of Regents and was used to start the day in New York schools, started a revolution in establishment clause jurisprudence, but it took a while to happen. As the Cold War heated up with the Soviet Union, President Eisenhower and others wanted to draw distinctions between the United States and the “godless Communists.” It was in this context that the words “under God” were added to the Pledge of Allegiance and prayers such as the New York Regents prayer were inserted into school curriculums. Of course, there was prayer in schools before this time. The Lord’s Prayer (the Protestant version) The Establishment Clause

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was commonly recited, and teachers, students, and others frequently led prayers in schools. What differed in this case was that the prayer was written by the state. The revolution began in 1962, and it came out of the blue. The Regents prayer was the issue in Engel v. Vitale (370 U.S. 471, 1962). School districts had an option to adopt the prayer or not, and even if a district did adopt it, the prayer was strictly voluntary for children. However, if a school board opted to include prayer in the opening ceremony, the Regents prayer was to be used. Despite the voluntary nature of recitation and the claims of the prayer’s sponsors that it was nonsectarian, the Court declared that its use was an infringement of the establishment clause. Justice Hugo Black’s opinion stressed that it was not prayer but an “officially prescribed prayer” that was being condemned. He warned that in this country it is not the business of any government to compose official prayers for any group of people. In dissent, Justice Stewart declared that he could not “see how an ‘official religion’ is established by letting those who want to say a prayer say it.” He contended that to deny use of the prayer to children who desire to recite it “is to deny them the opportunity of sharing in the spiritual heritage of our Nation.” The outpouring of criticism—from the public, newspapers, and opinion leaders—was immense. Not since Brown v. Board had a decision generated such a reaction. One newspaper headline read “Court Outlaws God,” according to Earl Warren in his memoirs. The decision was roundly criticized by many church leaders. Many Catholic publications were particularly critical, though later the

Catholic Church applauded other efforts restricting religious exercises that reflected Protestant leanings. Many mainline Protestant churches supported the decision, as did some evangelical churches that had long supported separation of church and state. Although Justice Black stressed that the Court was condemning only governmentally prescribed prayer, critics warned that the Court should be checked before it struck down other types of activities that are considered to be part of our heritage as a religious people. The emotional outburst in response to the Engel decision had hardly subsided when, just one year later, the Court “dropped the other shoe” in this twofold controversy. In companion cases arising from school districts in Pennsylvania and Maryland (School District of Abington Township, Pennsylvania v. Schempp and Murray v. Curlett, 374 U.S. 203, 1963), the Court held that public school opening exercises which used the more traditional Lord’s Prayer and Bible reading violated the establishment clause. Speaking for the Court, Justice Tom Clark set forth the “purpose and primary effect” test as a measure of constitutional permissibility of such public-sponsored activity. Clark said, “What are the purpose and primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the legislative power. . . .” In his dissent, Justice Stewart advanced the view that the free exercise of religion is the central value embodied in the First Amendment. Consequently, he argued that the Court’s action striking down the prayer exercises constituted a denial of a substantial free exercise claim of individuals who desire the exercises.

ENGEL ET AL. V. VITALE ET AL. 370 U.S. 421 (1962) MR. JUSTICE BLACK delivered the opinion of the Court. The respondent Board of Education of Union Free School District No. 9, New Hyde Park, New York, acting in its official capacity under state law, directed the School District’s principal to cause the following 218

prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.”

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This daily procedure was adopted on the recommendation of the State Board of Regents, a governmental agency created by the State Constitution to which the New York Legislature has granted broad supervisory, executive, and legislative powers over the State’s public school system. These state officials composed the prayer which they recommended and published as a part of their “Statement on Moral and Spiritual Training in the Schools,” saying: “We believe that this Statement will be subscribed to by all men and women of good will, and we call upon all of them to aid in giving life to our program.” Shortly after the practice of reciting the Regents’ prayer was adopted by the School District, the parents of ten pupils brought this action in a New York State Court insisting that use of this official prayer in the public schools was contrary to the beliefs, religions, or religious practices of both themselves and their children. Among other things, these parents challenged the constitutionality of both the state law authorizing the School District to direct the use of prayer in public schools and the School District’s regulation ordering the recitation of this particular prayer on the ground that these actions of official governmental agencies violate that part of the First Amendment of the Federal Constitution which commands that “Congress shall make no law respecting an establishment of religion”—a command which was “made applicable to the State of New York by the Fourteenth Amendment of the said Constitution.” We think that by using its public school system to encourage recitation of the Regents’ prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York’s program of daily classroom invocation of God’s blessings as prescribed in the Regents’ prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been religious, none of the respondents has denied this and the trial court expressly so found: “The religious nature of prayer was recognized by Jefferson and has been concurred in by theological writers, the United States Supreme Court and State courts and administrative officials, including New York’s Commissioner of Education. A committee of the New York Legislature has agreed. “The Board of Regents as amicus curiae, the respondents and intervenors all concede the religious nature of prayer, but seek to distinguish this prayer because it is based on our spiritual heritage . . .

The petitioners contend among other things that the state laws requiring or permitting use of the Regents’ prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs. For this reason, petitioners argue, the State’s use of the Regents’ prayer in its public school system breaches the constitutional wall of separation between Church and State. We agree with that contention since we think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government. It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America. The Book of Common Prayer, which was created under governmental direction and which was approved by Acts of Parliament in 1548 and 1549, set out in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the established, tax-supported Church of England. The controversies over the Book and what should be its content repeatedly threatened to disrupt the peace of that country as the accepted forms of prayer in the established church changed with the views of the particular ruler that happened to be in control at the time. Powerful groups representing some of the varying religious views of the people struggled among themselves to impress their particular views upon the Government and obtain amendments of the Book more suitable to their respective notions of how religious services should be conducted in order that the official religious establishment would advance their particular religious beliefs.Other groups, lacking the necessary political power to influence the Government on the matter, decided to leave England and its established church and seek freedom in America from England’s governmentally ordained and supported religion. It is an unfortunate fact of history that when some of the very groups which had most strenuously opposed the established Church of England found themselves sufficiently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the The Establishment Clause

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official religion of their respective colonies. Indeed, as late as the time of the Revolutionary War, there were established churches in at least eight of the thirteen former colonies and established religions in at least four of the other five. But the successful Revolution against English political domination was shortly followed by intense opposition to the practice of establishing religion by law. This opposition crystallized rapidly into an effective political force in Virginia where the minority religious groups such as Presbyterians, Lutherans, Quakers and Baptists had gained such strength that the adherents to the established Episcopal Church were actually a minority themselves. In 1785–1786, those opposed to the established Church, led by James Madison and Thomas Jefferson, who, though themselves not members of any of these dissenting religious groups, opposed all religious establishments by law on grounds of principle, obtained the enactment of the famous “Virginia Bill for Religious Liberty” by which all religious groups were placed on an equal footing so far as the State was concerned. Similar though less far-reaching legislation was being considered and passed in other States. By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government’s stamp of approval from each King, Queen, or Protector that came to temporary power. The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people rather than in the hands of any monarch. But this safeguard was not enough. Our Founders were no more willing to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box than they were to let these vital matters of personal conscience depend upon the succession of monarchs. The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American 220

people can say—that the people’s religions must not be subjected to the pressures of government for change each time a new political administration is elected to office. Under that Amendment’s prohibition against governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment, government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity. There can be no doubt that New York’s state prayer program officially establishes the religious beliefs embodied in the Regents’ prayer. The respondents’ argument to the contrary, which is largely based upon the contention that the Regents’ prayer is “non-denominational” and the fact that the program, as modified and approved by state courts, does not require all pupils to recite the prayer but permits those who wish to do so to remain silent or be excused from the room, ignores the essential nature of the program’s constitutional defects. Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause, of the First Amendment, both of which are operative against the States by virtue of the Fourteenth Amendment. Although these two clauses may in certain instances overlap, they forbid two quite different kinds of governmental encroachment upon religious freedom. The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not. This is not to say, of course, that laws officially prescribing a particular form of religious worship do not involve coercion of such individuals. When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The history of governmentally established religion, both

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in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. That same history showed that many people had lost their respect for any religion that had relied upon the support of government to spread its faith. The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its “unhallowed perversion” by a civil magistrate. Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand. The Founders knew that only a few years after the Book of Common Prayer became the only accepted form of religious services in the established Church of England, an Act of Uniformity was passed to compel all Englishmen to attend those services and to make it a criminal offense to conduct or attend religious gatherings of any other kind—a law which was consistently flouted by dissenting religious groups in England and which contributed to widespread persecutions of people like John Bunyan who persisted in holding “unlawful [religious] meetings . . . to the great disturbance and distraction of the good subjects of this kingdom. . . .” And they knew that similar persecutions had received the sanction of law in several of the colonies in this country soon after the establishment of official religions in those colonies. It was in large part to get completely away from this sort of systematic religious persecution that the Founders brought into being our Nation, our Constitution, and our Bill of Rights with its prohibition against any governmental establishment of religion. The New York laws officially prescribing the Regents’ prayer are inconsistent both with the purposes of the Establishment Clause and with the Establishment Clause itself. It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, of course, could be more wrong. The history of man is inseparable from the history of religion. And perhaps it is not too much to say that since the beginning of that history many people have devoutly believed that “More things are wrought by prayer than this world dreams of.” It was doubtless

largely due to men who believed this that there grew up a sentiment that caused men to leave the crosscurrents of officially established state religions and religious persecution in Europe and come to this country filled with the hope that they could find a place in which they could pray when they pleased to the God of their faith in the language they chose. And there were men of this same faith in the power of prayer who led the fight for adoption of our Constitution and also for our Bill of Rights with the very guarantees of religious freedom that forbid the sort of governmental activity which New York has attempted here. These men knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either. They knew rather that it was written to quiet well-justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men’s tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor antireligious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance. It is true that New York’s establishment of its Regents’ prayer as an officially approved religious doctrine of that State does not amount to a total establishment of one particular religious sect to the exclusion of all others—that, indeed, the governmental endorsement of that prayer seems relatively insignificant when compared to the governmental encroachments upon religion which were commonplace 200 years ago. To those who may subscribe to the view that because the Regents’ official prayer is so brief and general there can be no danger to religious freedom in its governmental establishment, however, it may be appropriate to say in the words of James Madison, the author of the First Amendment: “It is proper to take alarm at the first experiment on our liberties. . . . Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?” The Establishment Clause

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MR. JUSTICE FRANKFURTER took no part in the decision of this case. MR. JUSTICE WHITE took no part in the consideration or decision of this case. MR. JUSTICE DOUGLAS, concurring. [omitted] MR. JUSTICE STEWART, dissenting: A local school board in New York has provided that those pupils who wish to do so may join in a brief prayer at the beginning of each school day, acknowledging their dependence upon God and asking His blessing upon them and upon their parents, their teachers, and their country. The Court today decides that in permitting this brief nondenominational prayer the school board has violated the Constitution of the United States. I think this decision is wrong. The Court does not hold, nor could it, that New York has interfered with the free exercise of anybody’s religion. For the state courts have made clear that those who object to reciting the prayer must be entirely free of any compulsion to do so, including any “embarrassments and pressures.” Cf. West Virginia State Board of Education v. Barnette, 319 U.S. 624. But the Court says that in permitting school children to say this simple prayer, the New York authorities have established “an official religion.” With all respect, I think the Court has misapplied a great constitutional principle. I cannot see how an “official religion” is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation. The Court’s historical review of the quarrels over the Book of Common Prayer in England throws no light for me on the issue before us in this case. England had then and has now an established church. Equally unenlightening, I think, is the history of the early establishment and later rejection of an official church in our own States. For we deal here not with the establishment of a state church, which would, of course, be constitutionally impermissible, but with whether school children who want to begin their day by joining in prayer must be prohibited from doing so. Moreover, I think that the Court’s task, in this as in all areas of constitutional adjudication, is not responsibly aided by the uncriti222

cal invocation of metaphors like the “wall of separation,” a phrase nowhere to be found in the Constitution. What is relevant to the issue here is not the history of an established church in sixteenth century England or in eighteenth century America, but the history of the religious traditions of our people, reflected in countless practices of the institutions and officials of our government. At the opening of each day’s Session of this Court we stand, while one of our officials invokes the protection of God. Since the days of John Marshall our Crier has said, “God save the United States and this Honorable Court.”Both the Senate and the House of Representatives open their daily Sessions with prayer.Each of our Presidents, from George Washington to John F. Kennedy, has upon assuming his Office asked the protection and help of God. The Court today says that the state and federal governments are without constitutional power to prescribe any particular form of words to be recited by any group of the American people on any subject touching religion. One of the stanzas of “The StarSpangled Banner,” made our National Anthem by Act of Congress in 1931,contains these verses: “Blest with victory and peace, may the heav’n rescued land Praise the Pow’r that hath made and preserved us a nation! Then conquer we must, when our cause it is just, And this be our motto ‘In God is our Trust.’”

In 1954 Congress added a phrase to the Pledge of Allegiance to the Flag so that it now contains the words “one Nation under God, indivisible, with liberty and justice for all.” In 1952 Congress enacted legislation calling upon the President each year to proclaim a National Day of Prayer. Since 1865 the words “IN GOD WE TRUST” have been impressed on our coins. Countless similar examples could be listed, but there is no need to belabor the obvious.It was all summed up by this Court just ten years ago in a single sentence: “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313. I do not believe that this Court, or the Congress, or the President has by the actions and practices I have mentioned established an “official religion” in violation of the Constitution. And I do not believe the State of New York has done so in this case. What each has done has been to recognize and to follow the deeply entrenched and highly cherished spiritual traditions of

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our Nation—traditions which come down to us from those who almost two hundred years ago avowed their “firm Reliance on the Protection of divine

Providence” when they proclaimed the freedom and independence of this brave new world. I dissent.

SCHOOL DISTRICT OF ABINGTON TOWNSHIP, PENNSYLVANIA V. SCHEMPP 374 U.S. 203; 10 L. Ed. 2d 844; 83 S. Ct. 1560 (1963) JUSTICE CLARK delivered the opinion of the Court, in which CHIEF JUSTICE WARREN and JUSTICES BLACK, DOUGLAS, HARLAN, BRENNAN, WHITE, and GOLDBERG joined. JUSTICE DOUGLAS filed a concurring opinion. JUSTICE BRENNAN filed a concurring opinion. JUSTICE GOLDBERG filed a concurring opinion, in which JUSTICE HARLAN joined. JUSTICE STEWART filed a dissenting opinion. (Note: School District of Abington Township, Pennsylvania v. Schempp was decided with the companion case of Murray v. Curlett.) JUSTICE CLARK delivered the opinion of the Court. Once again we are called upon to consider the scope of the provision of the First Amendment to the United States Constitution which declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” These companion cases present the issues in the context of state action requiring that schools begin each day with readings from the Bible. While raising the basic questions under slightly different factual situations, the cases permit of joint treatment. In light of the history of the First Amendment and of our cases interpreting and applying its requirements, we hold that the practices at issue and the laws respecting them are unconstitutional under the Establishment Clause, as applied to the states through the Fourteenth Amendment. . . . [In] No. 142 [t]he Commonwealth of Pennsylvania by law, 24 Pa. Stat. Sec. 15–1516, as amended, . . . requires that “At least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day. Any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian.” The Schempp family, husband and wife and two of their three children,

brought suit to enjoin enforcement of the statute, contending that their rights under the Fourteenth Amendment to the Constitution of the United States are, have been, and will continue to be violated unless this statute be declared unconstitutional as violative of these provisions of the First Amendment. They sought to enjoin the appellant school district . . . from continuing to conduct such readings and recitation of the Lord’s Prayer in the public schools of the district. . . . A three-judge statutory District Court for the Eastern District of Pennsylvania held that the statute is violative of the Establishment Clause of the First Amendment as applied to the States by the Due Process Clause of the Fourteenth Amendment and directed that appropriate injunctive relief issue. . . . The appellees . . . are of the Unitarian faith . . . [and] they . . . regularly attend religious services. . . . The . . . children attend the Abington Senior High School, which is a public school operated by appellant district. On each school day at the Abington Senior High School between 8:15 and 8:30 A.M., while the pupils are attending their home rooms or advisory sections, opening exercises are conducted pursuant to the statute. The exercises are broadcast into each room in the school building through an intercommunications system and are conducted under the supervision of a teacher by students attending the school’s radio and television workshop. Selected students from this course gather each morning in the school’s workshop studio for the exercises, which include readings by one of the students of 10 verses of the Holy Bible, broadcast to each room in the building. This is followed by the recitation of the Lord’s Prayer, likewise over the intercommunications system, but also by the students in the various classrooms, who are asked to stand and join in repeating the prayer in unison. The exercises are closed with the flag salute and The Establishment Clause

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such pertinent announcements as are of interest to the students. Participation in the opening exercises, as directed by the statute, is voluntary. The student reading the verses from the Bible may select the passages and read from any version he chooses, although the only copies furnished by the school are the King James version, copies of which were circulated to each teacher by the school district. During the period in which the exercises have been conducted the King James, the Douay and the Revised Standard versions of the Bible have been used, as well as the Jewish Holy Scriptures. There are no prefatory statements, no questions asked or solicited, no comments or explanations made and no interpretations given at or during the exercises. The students and parents are advised that the student may absent himself from the classroom or, should he elect to remain, not participate in the exercises. It appears from the record that in schools not having an intercommunications system the Bible reading and the recitation of the Lord’s Prayer were conducted by the homeroom teacher, who chose the text of the verses and read them herself or had students read them in rotation or by volunteers. . . . At the first trial Edward Schempp and the children testified as to specific religious doctrines purveyed by a literal reading of the Bible “which were contrary to the religious beliefs which they held and to their familial teaching.” . . . Edward Schempp testified at the second trial that he had considered having . . . [his children] excused from attendance at the exercises but decided against it for several reasons, including his belief that the children’s relationships with their teachers and classmates would be adversely affected. ... The trial court, in striking down the practices and the statute requiring them, made specific findings of fact that the children’s attendance at Abington Senior High School is compulsory and that the practice of reading 10 verses from the Bible is also compelled by law. It also found that: The reading of the verses, even without comment, possesses a devotional and religious character and constitutes in effect a religious observance. The devotional and religious nature of the morning exercises is made all the more apparent by the fact that the Bible reading is followed immediately by a recital in unison by the pupils of the Lord’s Prayer. . . . The exercises are held in the school buildings and perforce are 224

conducted by and under the authority of the local school authorities and during school sessions. Since the statute requires the reading of the “Holy Bible,” a Christian document, the practice . . . prefers the Christian religion. . . . [The facts in] no. 119 [show that] [i]n 1905 the Board of School Commissioners of Baltimore City adopted a rule pursuant to . . . [state law which] . . . provided for the holding of opening exercises in the schools of the city, consisting primarily of the “reading, without comment, of a chapter in the Holy Bible and/or the use of the Lord’s Prayer.” The petitioners, Mrs. Madalyn Murray and her son, William J. Murray III, are both professed atheists. Following unsuccessful attempts to have the respondent school board rescind the rule, this suit was filed for mandamus to compel its rescission and cancellation. It was alleged that William was a student in a public school of the city and Mrs. Murray, his mother, was a taxpayer therein; . . . that at petitioners’ insistence the rule was amended to permit children to be excused from the exercise on request of the parent and that William had been excused pursuant thereto. . . . The respondents demurred and the trial court, recognizing that the demurrer admitted all facts well pleaded, sustained it without leave to amend. The Maryland Court of Appeals affirmed, the majority of four justices holding the exercise not in violation of the First and Fourteenth Amendments, with three justices dissenting. . . . It is true that religion has been closely identified with our history and government. . . . The fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself. This background is evidenced today in our public life through the continuance in our oaths of office from the Presidency to the Alderman of the final supplication, “So help me God.” Likewise each House of the Congress provides through the Chaplain an opening prayer, and the sessions of this Court are declared open by the crier in a short ceremony the final phrase of which invokes the grace of God. Again, there are such manifestations in our military forces, where those of our citizens who are under the restrictions of military service wish to engage in voluntary worship. Indeed, only last year an official survey of the country indicated that 64 percent of our people have church membership . . . while less than 3 percent profess no

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religion whatever. . . . It can be truly said, therefore, that today, as in the beginning, our national life reflects a religious people who, in the words of Madison are “earnestly praying, as . . . in duty bound, that the Supreme Lawgiver of the Universe . . . guide them into every measure which may be worthy of His [blessing . . .].” Almost a hundred years ago in Minor v. Board of Education of Cincinnati, Judge Alphonzo Taft, father of the revered Chief Justice, in an unpublished opinion stated the ideal of our people as to religious freedom as one of: “absolute equality before the law of all religious opinions and sects. . . . The government is neutral, and while protecting all, it prefers none, and it disparages none. . . .”

The wholesome “neutrality” of which this Court’s cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits. And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state. This the Free Exercise Clause guarantees. Thus, as we have seen, the two clauses may overlap. As we have indicated, the Establishment Clause has been directly considered by this Court eight times in the past score of years and, with only one Justice dissenting on the point, it has consistently held that the clause withdrew all legislative power respecting religious belief or the exercise thereof. The test may be stated as follows: what are the purpose and primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion. . . . The Free Exercise Clause, likewise considered many times here, withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious

liberty in the individual by prohibiting any invasions thereof by civil authority. Hence it is necessary in a free exercise case for one to show the coercive effect of the enactment as it operates against him in the practice of his religion. The distinction between the two clauses is apparent—a violation of the Free Exercise Clause is predicated on coercion while the Establishment Clause violation need not be so attended. Applying the Establishment Clause principles to the cases at bar we find that the States are requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord’s Prayer by the students in unison. These exercises are prescribed as part of the curricular activities of students who are required by law to attend school. They are held in the school buildings under the supervision and with the participation of teachers employed in those schools. None of these factors, other than compulsory school attendance, was present in the program upheld in Zorach v. Clauson. The trial court in [Schempp] has found that such an opening exercise is a religious ceremony and was intended by the State to be so. We agree with the trial court’s finding as to the religious character of the exercises. Given that finding the exercises and the law requiring them are in violation of the Establishment Clause. There is no such specific finding as to the religious character of the exercises in [Murray], and the state contends (as does the state in [Schempp]) that the program is an effort to extend its benefits to all public school children without regard to their religious belief. Included within its secular purposes, it says, are the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature. The case came up on demurrer, of course, to a petition which alleged that the uniform practice under the rule had been to read from the King James version of the Bible and that the exercise was sectarian. The short answer, therefore, is that the religious character of the exercise was admitted by the State. But even if its purpose is not strictly religious, it sought to be accomplished through readings, without comment, from the Bible. Surely the place of the Bible as an instrument of religion cannot be gainsaid, and the State’s recognition of the pervading religious character of the ceremony is evident from the rule’s specific permission of the alternative use of the Catholic Douay version as well as the recent amendment permitting nonattendance at the exercises. The Establishment Clause

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None of these factors is consistent with the contention that the Bible is here used either as an instrument for nonreligious moral consideration or as a reference for the teaching of secular subjects. The conclusion follows that in both cases the laws require religious exercises and such exercises are being conducted in direct violation of the rights of the appellees and petitioners. Nor are these required exercises mitigated by the fact that individual students may absent themselves upon parental request, for that fact furnishes no defense to a claim of unconstitutionality under the Establishment Clause. . . . Further, it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, “it is proper to take alarm at the first experiment on our liberties.” . . . It is insisted that unless these religious exercises are permitted a “religion of secularism” is established in the schools. We agree of course that the State may not establish a “religion of secularism” in the sense of affirmatively opposing or showing hostility to religion, thus “preferring those who believe in no religion over those who do believe.” . . . We do not agree, however, that this decision in any sense has that effect. In addition, it might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistent with the First Amendment. But the exercises here do not fall into those categories. . . . Finally, we cannot accept that the concept of neutrality, which does not permit a State to require a religious exercise even with the consent of the majority of those affected, collides with the majority’s right to free exercise of religion. While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs. Such a contention was effectively answered by MR. JUSTICE JACKSON for the Court in West Virginia Board of Education v. Barnette, 319 U.S. 624, 638, 63 S. Ct. 1178, 1185, 87 L. Ed. 1628 (1943): 226

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to . . . freedom of worship . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality. . . . It is so ordered. Judgment in [Schempp] affirmed: judgment in [Murray] reversed and case remanded with directions. [The concurring opinions of JUSTICES DOUGLAS and BRENNAN are not reprinted here.] JUSTICE STEWART, dissenting: I think the records in the two cases before us are so fundamentally deficient as to make impossible an informed or responsible determination of the constitutional issues presented. Specifically, I cannot agree that on these records we can say that the Establishment Clause has necessarily been violated. But I think there exist serious questions under both that provision and the Free Exercise Clause . . . which require the remand of these cases for the taking of additional evidence. . . . It is, I think, a fallacious oversimplification to regard these two provisions as establishing a single constitutional standard of “separation of church and state,” which can be mechanically applied in every case to delineate the required boundaries between government and religion. We err in the first place if we do not recognize, as a matter of history and as a matter of the imperatives of our free society, that religion and government must necessarily interact in countless ways. Secondly, the fact is that while in many contexts the Establishment Clause and the Free Exercise Clause fully complement each other, there are areas in which a doctrinaire reading of the Establishment Clause leads to irreconcilable conflict with the Free Exercise Clause.

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A single obvious example should suffice to make the point. Spending federal funds to employ chaplains for the armed forces might be said to violate the Establishment Clause. Yet a lonely soldier stationed at some faraway outpost could surely complain that a government which did not provide him the opportunity for pastoral guidance was affirmatively prohibiting the free exercise of his religion. And such examples could readily be multiplied. The short of the matter is simply that the two relevant clauses of the First Amendment cannot accurately be reflected in a sterile metaphor which by its very nature may distort rather than illumine the problems involved in a particular case. ... That the central value embodied in the First Amendment—and, more particularly, in the guarantee of “liberty” contained in the Fourteenth—is the safeguarding of an individual’s right to free exercise of his religion has been consistently recognized. . . . It is this concept of constitutional protection embodied in our decisions which makes the cases before us such difficult ones for me. For there is involved in these cases a substantial free exercise claim on the part of those who affirmatively desire to have their children’s school day open with the reading of passages from the Bible. ... It might also be argued that parents who want their children exposed to religious influences can adequately fulfill that wish off school property and outside school time. With all its surface persuasiveness, however, this argument seriously misconceives the basic constitutional justification for permitting the exercises at issue in these cases. For a compulsory state educational system so structures a child’s life that if religious exercises are held to be an impermissible activity in schools, religion is placed at an artificial and state created disadvantage. Viewed in this light, permission of such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion. And a refusal to permit religious exercises thus is seen, not as the realization of state neutrality, but rather as the establishment of a religion of secularism, or at the least, as government support of the beliefs of those who think that religious exercises should be conducted only in private. What seems to me to be of paramount importance, then, is recognition of the fact that the claim

advanced here in favor of Bible reading is sufficiently substantial to make simple reference to the constitutional phrase of “establishment of religion” as inadequate an analysis of the cases before us as the ritualistic invocation of the nonconstitutional phrase “separation of church and state.” What these cases compel, rather, is an analysis of just what the “neutrality” is which is required by the interplay of the Establishment and Free Exercise Clauses of the First Amendment, as imbedded in the Fourteenth. I have said that these provisions authorizing religious exercises are properly to be regarded as measures making possible the free exercise of religion. But it is important to stress that, strictly speaking, what is at issue here is a privilege rather than a right. In other words, the question presented is not whether exercises such as those at issue here are constitutionally compelled, but rather whether they are constitutionally invalid. And that issue, in my view, turns on the question of coercion. It is clear that the dangers of coercion involved in the holding of religious exercises in a schoolroom differ qualitatively from those presented by the use of similar exercises or affirmations in ceremonies attended by adults. Even as to children, however, the duty laid upon government in connection with religious exercises in the public schools is that of refraining from so structuring the school environment as to put any kind of pressure on a child to participate in those exercises; it is not that of providing an atmosphere in which children are kept scrupulously insulated from any awareness that some of their fellows may want to open the school day with prayer, or of the fact that there exist in our pluralistic society differences of religious belief. ... [I]t seems to me clear that certain types of exercises would present situations in which no possibility of coercion on the part of secular officials could be claimed to exist. Thus, if such exercises were held either before or after the official school day, or if the school schedule were such that participation were merely one among a number of desirable alternatives, it could hardly be contended that the exercises did anything more than to provide an opportunity for the voluntary expression of religious belief. On the other hand, a law which provided for religious exercises during the school day and which contained no excusal provision would obviously be unconstitutionally coercive upon those who did not wish to The Establishment Clause

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participate. And even under a law containing an excusal provision, if the exercises were held during the school day, and no equally desirable alternative were provided by the school authorities, the likelihood that children might be under at least some psychological compulsion to participate would be great. In a case such as the latter, however, I think we would err if we assumed such coercion in the absence of any evidence. Viewed in this light, it seems to me clear that the records in both of the cases before us are wholly inadequate to support an informed or responsible decision. Both cases involve provisions which explicitly permit any student who wishes, to be excused from participation in the exercises. There is no evidence in either case as to whether there would exist any coercion of any kind upon a student who did not want to participate. . . . . . . It is conceivable that these school boards, or even all school boards, might eventually find it impossible to administer a system of religious exercises during school hours in such a way to meet this constitutional standard—in such a way as completely to free from any kind of official coercion those who do not affirmatively want to participate. But I think we must not assume that school boards so lack the qualities of inventiveness and good will as to make impossible the achievement of the goal. I would remand both cases for further hearings. RELIGION IN SCHOOLS: THE DEBATE CONTINUES

An underlying theme in the early religion-in-school cases was a concern about the coercion of children. This concern predates Engel. In West Virginia v. Barnette (319 U.S. 624, 1943) the Court held unconstitutional a state law that required all children in the public schools to salute and pledge allegiance to the flag. Though the issue was considered to be one of freedom of speech, the logic was applicable to school prayer cases. For religious reasons, Jehovah’s Witnesses are not allowed to take such a pledge. Justice Jackson, speaking for the Court, said: [The] compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. [To] sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind. [But if] there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in poli228

tics, nationalism, religion, or other matter of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

Although it was controversial, Barnette applied to few people. The prayer cases were different. Interest groups exhibited considerable ingenuity in responding to the Court’s rulings. An interesting example was the effort undertaken by the Hicksville Long Island, New York Board of Education authorizing the use of the fourth stanza of the National Anthem as a collective recitation by students in their schoolday opening exercises. The lines, which repeatedly refer to the Deity, could substitute for the kind of prayers rejected by the Court: Blest with victory and peace, may the heaven rescued land Praise the power that hath made and preserved us as a nation Then conquer we must, when our cause is just And this be our motto, “in God is our trust.”

The state commissioner of education rejected this exercise because it had the character of an officially prescribed prayer. The practice in another New York school district (Whitestone), where prayer was emphasized in kindergarten, was to allow pupils to offer prayer in the morning and afternoon just before having the traditional midmorning snack and midafternoon nap. The morning prayer was as follows: God is great, God is good And we thank him for our food. Amen.

The afternoon pupils recited this prayer: Thank you for the flowers so sweet Thank you for the food we eat Thank you for the birds that sing Thank you God for everything.

Adhering to the court’s ruling in Engel, the school’s principal ordered the practice discontinued and the subsequent appeal of his action to the New York City Board of Education and the State Board of Regents was rejected. Thereafter, advocates of such prayers moved their efforts to the courts but were unsuccessful. The Court of Appeals for the Second Circuit had the last word when it rejected the claim that prayer was voluntary in Stein v. Oshinsky, noting that the teacher had actually taught the prayer verses to the five-year-old pupils and that, as such, it was official coercion. The Supreme Court denied certiorari (382 U.S. 957, 1965).

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Despite these initial setbacks, advocates continued to seek ways to circumvent the Court’s rulings. Their major efforts shifted to the political arena. The immediate response to the Engel and Schempp rulings in the political arena brought forth scores of proposals to amend the Constitution to permit various forms of voluntary prayer in public schools. But the aggressive efforts mounted by Representatives Frank Becker (R., NY) in the House of Representatives in 1963, followed by those of Senator Everett M. Dirksen (R., IL) in 1966 came to naught, although the Dirksen proposal fell just nine votes short of the necessary two-thirds vote in the Senate. Efforts to get prayer exercises back into the public schools either through constitutional amendment or federal court-curbing legislation during the 1970s met a similar fate. The most serious of these efforts was spearheaded by Senator Jesse Helms (R., NC) in 1979. His courtcurbing proposal would have denied jurisdiction to the Supreme Court to review cases arising under state legislation relating to voluntary prayers in public schools and public buildings. The measure passed the Senate but was killed in the House. Probably the most vigorous effort to restore voluntary prayer in the public schools was made by the Reagan administration. In a debate with Walter Mondale during the election campaign, Ronald Reagan famously claimed that “A child wants to say grace in the school cafeteria, and a court rules that they can’t do it.” The Supreme Court had never made such a ruling; voluntary prayer was fine. The Constitutional problem was with prayer led by school authorities or endorsed by the school. Nevertheless, Reagan’s comment spawned a popular perception than even voluntary prayer was banned. Construing his election as a mandate to “put God back in the public school rooms” and supported by a wide variety of conservative and religious groups, Reagan opted for the constitutional certainty of the prayer exercise. Under his lead, Republicans began to frame prayer in schools as a free-exercise issue rather than as an establishment issue. In 1984, during the second session of the 98th Congress, the president offered the following proposal to amend the Constitution:

governments from composing a prayer, as had happened in Engel v. Vitale. Senate debate on the proposal in March 1984 revealed that the arguments on the issue had not changed significantly during the twenty-two years since Engel was decided. We turn to several excerpts from the debate on the president’s proposal in the Senate on March 5 and March 6, 1984, which underscore this point. All those quoted are Republicans, but not all Republicans had bought into the Reagan approach at this time. Early on, the division on this issue, like the early abortion debates, was not along party lines:

Nothing in this Constitution shall be construed to prohibit individual or group prayer in public schools or other public institutions. No person shall be required by the United States or by any state to participate in prayer.

Senator Lowell Weicker (R., CT): School children of America enjoy—at least if the Constitution is being enforced, and it may be that it is not being enforced in some jurisdictions—do enjoy voluntary prayer—truly voluntary. In no ways are they restricted from uttering their own prayer at any time of the day in school.

In its consideration of the proposal, the Senate Judiciary Committee added a provision to prohibit

Senator Strom Thurmond (R., SC): . . . This amendment to the Constitution, as President Reagan has repeatedly emphasized, is of vital importance to the well-being of our nation. . . . In writing the establishment clause . . . our Founding Fathers wanted to prevent . . . an official state religion. At the same time they sought, through the free exercise clause, to guarantee . . . the freedom to worship God without government interference or restraint. In their wisdom, they recognized that true religious liberty precludes the Government from both forcing and preventing worship. The unfortunate constitutional interpretation which has banned voluntary prayer in our public schools runs contrary to this dual intent of the framers. They understood . . . that the general welfare of our Republic depends to a large degree on the spiritual and moral fiber of the citizenry. That fiber is, in turn, dependent upon the guidance given our young people. A ban on school prayer is, therefore, contrary to the best interests of our Nation as a whole. . . . [L]et there be no doubt about the constituency involved here. The movement to restore prayer to the public schools . . . is not an attempt by a small minority to impose their views upon an apathetic majority. Public opinion polls show strong support for a constitutional amendment. . . . I believe the latest poll showed around 80 percent of our people favored prayers in the public schools. These are not religious zealots, but average Americans who want their children and grandchildren to enjoy the same simple privilege that they had as public school students. . . .

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What is prohibited is the institutionalization of prayer in the school, and the minute you do that, it is no longer voluntary. So let us understand clearly that those who are for voluntary prayer are for the law as it now stands. What is attempted here . . . is to achieve an involuntary status for prayer in the United States. What is sought to be achieved is a state prayer. . . . This is not some academic debate on the floor of the U.S. Senate. This [debate] relates to our freedom as Americans. This relates as to whether or not each of us will be able to find our own way to God, bound in our own way, to pray in our own way, or whether we go back to the history which we had denied and allow the state to do that for us. The one is the first step, the other the last, in the career of intolerance. . . . Senator Jesse Helms (R., NC): Mr. President, it is this Senator’s strong conviction that we in the Senate today would do well to heed divine wisdom and the pleas of our children, and restore the right to pray in the schools once again. If we do, it is likely that not only will the children be closer to God but that we—including the Justices of the United States Supreme Court—will be drawn closer as well. . . . It is no mere chance coincidence that the decline in American public education has roughly paralleled the banning of school prayer by the Supreme Court in the early 1960s. Sure, there have been other factors as well, but banning prayer removed a fundamental in the educational process. . . . Mr. President, many Americans are baffled at how we got to a point in our history where both Houses of Congress start every day with a prayer delivered by a tax-paid chaplain; where presidential inaugurations always begin with an invocation; where the Supreme Court opens its sessions with the traditional “God Save the United States and this honorable Court”; where our money has “In God We Trust” printed on it; where all manner of state and local public and private meetings begin with a prayer, but their teachers in public schools may not lead their children in voluntary group prayer to start the day. . . . Senator John Danforth (R., MO): I do not stand here today to argue for one religious position or another. That is not my place. All I want to point out is that within America there are at least two positions on school prayer which are strongly held by very religious people. Some devout people, acting out their faith, ask us to amend the Constitution to permit prayer in public school. Other people, equally devout, ask us not to amend 230

the Constitution. My only point today is to explain to the Senate some religious objections to the amendment, to state that many denominations ask us not to act, and to note that their position is deeply felt and can be advanced with a plenitude of Biblical references. So . . . we have a choice to make. We can choose to do nothing, to keep the Constitution as it is, to allow personal prayer in public school, but not officially sanctioned group prayer. Or, we can choose to amend the Constitution, to weigh in on the side of those many religious people who favor the sanctioning of group prayer in public schools. . . . My own view is that in this case the best course for the Senate to follow is to do nothing. To allow a child to pursue his own religious life without the structure of school sponsored observances is as close to neutrality as we can come. To take the affirmative step of amending the Constitution is to decide that now is the time to foster one religious position against another. . . . [E]ven under the most narrow definition, establishment of religion includes an affirmative step, taken by Government to favor one religious position over another. That is what we are asked to do [by this amendment]. . . . We are asked to permit in public schools religious observances which are desirable to some and offensive to others. To vote for this amendment is to vote for the establishment of religion. That is a step we should not take. Senator Howard Baker (R., TN): We are all agreed . . . that the issue is religious liberty. Those opposed to this amendment contend that it is not the place of the state, and should not be within the power of the State, to mandate religious activity or prescribe the form or substance of that activity. Those of us who support the amendment entirely agree. But is mandating religious activity worse than prohibiting it, or are these equal offenses before the law and the Constitution? That, I believe, is the crux of the issue before us. I believe the Government has no right either to force or forbid the voluntary exercise of religion in our schools or in any other place. But the Government, through the Courts, has assumed this right for twenty years, and the Government, through the Congress, has an opportunity . . . to remedy this constitutional and historical mistake. . . .

Although the strong pressure from the president and his religious and conservative constituencies produced fifty-six votes for the amendment, that was eleven votes shy of the two-thirds majority that was required in the constitutional amendment initiation stage. But as soon as the vote was taken on March

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20, 1984, several senators indicated their intentions to push other efforts to get prayer exercises back into the public schools. As Senator Helms stated: [W]e have just begun to fight. Round 1 is over, but so long as I am in the U.S. Senate there will be many more rounds to come. . . . [T]here is more than one way to skin a cat. . . .

Condemning federal judges for imposing their personal policy views on the American public— views that he felt were hostile to both the Constitution and American traditions—Helms indicated a renewed effort to push jurisdiction-curbing legislation. Meanwhile, in June 1984, supporters in the Senate were able to attach an “equal access” rider to an education appropriation measure which guaranteed the use of school facilities to any student group that wished to discuss religious issues (and possibly to pray), just as other student groups were allowed use of school facilities for political discussion and secular activities. Although the House had narrowly rejected a similar measure prior to the Senate action, it accepted the Senate measure in conference, and the president approved it on August 11, 1984. It was not the straightforward school prayer amendment that had been vigorously pushed earlier, but many proponents accepted the Equal Access Act (20 U.S.C., Secs. 4071–4074) as a significant step toward the eventual restoration of organized prayer in the public schools. Not unexpectedly, this new act met a constitutional challenge. A group of students at Westside High School in Omaha, Nebraska, cited the act to support their request to establish a Christian club that would be accorded the same operational privileges and benefits which were available to all other recognized student clubs at the school. The students indicated that one of the club’s purposes was to provide a forum for them “to read and discuss the Bible, to have fellowship, and to pray together.” School authorities denied this request on the ground that to permit such an activity, even with the support of the Equal Access Act, would violate the establishment clause. A federal district court sustained this interpretation, but the Court of Appeals for the Eighth Circuit reversed, and the Supreme Court affirmed that ruling in Board of Education of Westside Community Schools v. Mergens (496 U.S. 226, 1990). Justice Sandra Day O’Connor’s opinion for the Court in Mergens applied the Lemon three-prong test

and found that the Equal Access Act and the proposed Christian club met the threshold requirements of each. In addition, the justice cited Widmar v. Vincent (454 U.S. 263, 1981) as authority supporting such student activity in the public secondary school context. In Widmar, which concerned student religious club activity within a university student body, the Court held that “an open-forum policy, including nondiscrimination against religious speech, would have a secular purpose.” Consequently, O’Connor did not see how permitting these kinds of studentinitiated activities could be construed as the school’s endorsement of religious activity. In Lamb’s Chapel v. Center Moriches Union Free School District (508 U.S. 384, 1993) the Court found unconstitutional the school district’s policy of excluding religious groups from using its facilities during evenings and weekends when it made those facilities available to other community groups. Likewise, in Good News Club v. Milford (533 U.S. 98, 2001) the Court ruled that an elementary school could not deny the use of its facilities after school to religious groups. Another dimension of student club religious activity at the higher education level was presented to the Court for resolution in Rosenberger v. The Rector of the University of Virginia (515 U.S. 819, 1995). Again the question was whether student groups, having official recognition by the school administration, could be denied financial support from a general student activity fund because of the religious content of their activities. Both the district court and the Court of Appeals for the Fourth Circuit agreed that school authorities were justified in denying the requested financial support because of establishment clause strictures. But they differed on viewpoint discrimination: The lower court held that denial of financial support to the student group did not constitute viewpoint discrimination, whereas the appeals court contended that funding denial was based on the views advocated by the group and as such constituted viewpoint discrimination. In the end, the lower courts agreed that the establishment issue concerns by the school administrators justified the denial of funding. The Supreme Court disagreed with the strict separationist stance of the lower courts. In his opinion for the Court reversing the court of appeals, Justice Anthony Kennedy stressed the viewpoint discrimination aspect of the institution’s action, arguing that funds were denied the student group clearly because of the religious views that the group had expressed in The Establishment Clause

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its publications, thus the denial abridged the First Amendment freedom of speech guarantee. On the establishment issue, Justice Kennedy thought that the lower courts were in error and should have been guided by the Court’s “neutrality” jurisprudence that would have sustained funding against the establishment clause attack. Although proponents of school prayer got only a “half-loaf” remedy through Congress with the Equal Access statute, they succeeded in getting some voluntary prayer arrangement proposals through state legislatures during the 1970s and 1980s. For example, legislative action in Alabama in the late 1970s and the early 1980s provided a moment of silence in all public schools for meditation and voluntary prayer. Although a sympathetic federal district court upheld the several statutes that were involved (taking the novel position that, although the statutes were religiously motivated, the state had the power to establish a state religion if it desired), the Court of Appeals reversed and the Supreme Court affirmed that reversal in Wallace v. Jaffree (472 U.S. 38, 1985). Citing Lemon, Justice John Paul Stevens emphasized the statutes’ lack of a secular legislative purpose. He noted that the legislature had made clear its promotion of religion with the 1981 voluntary prayer amendment. A review of the legislative history reveals that legislators made no attempt to camouflage their intent. In the concurring opinions, both Justices Powell and O’Connor believed that a true moment of silence statute should be upheld. Could a meditation statute that did not contain a provision authorizing voluntary prayer get by the Lemon test? Many thought that a 1982 New Jersey statute that required public school administrators to permit students to observe a moment of silence prior to the commencement of each school day “for quiet and private contemplation or introspection” was the appropriate vehicle for a definitive answer by the Supreme Court. A federal district court had held the statute unconstitutional under all three prongs of the Lemon test, while the court of appeals’ affirmance was based on the statute’s lack of a secular purpose. When the case reached the Supreme Court in Karcher v. May (484 U.S. 72, 1987), review was limited to the question of the proper standing of the appellants, and a unanimous Court dismissed the appeal because the party-appellants no longer held the position that was required to pursue the appeal beyond the decision of the appeals court. Though the Court has not ruled on a true moment of silence 232

statute, it appears that if the moment had a secular purpose its observation would be sustained. Another dimension of the school prayer controversy involves the common practice in many communities around the country of opening graduation exercises with an invocation and closing the exercises with a benediction (both in the form of prayer by a clergyman). Whether such practices in the context of the public schools are permissible under the establishment clause was presented the Court in Lee v. Weisman (505 U.S. 577, 1992). That case also presented the Court with yet another opportunity to determine what it wished to do with the Lemon test. But in the end, five justices of different persuasions (O’Connor, Kennedy, Souter, Blackmun, and Stevens) held that the school commencement invocation/ benediction ceremony was an unconstitutional departure from establishment clause jurisprudence of the last quarter of a century. Justice Anthony Kennedy’s opinion for the Court reemphasized the principle that government promotion of religious activity in the context of a public school ceremony is contrary to the strictures of the establishment clause, for in this case “persuasive coercion” of the nonconformist student was a distinct possibility. The majority agreed that, contrary to the expressions of several of the justices over the last decade, there was no need to reexamine and possibly reconfigure or discard the Lemon test. But the controversy continued. In Santa Fe Independent School District v. Doe (530 U.S. 290, 2000), the Court found student-delivered prayers at high-school football games to be unconstitutional. The high school had had a tradition of studentdelivered prayers at football games, but when the practice was challenged in litigation, the district set up a system of student elections. First, students were to vote whether or not to have invocations before games. If the vote was in favor of an invocation, a second election would be held to select the student who would deliver the invocation. The school board argued that such a system constituted private speech, but the Court rejected the argument and suggested that it was a school activity (and hence government) endorsement of religion. The intersection of speech and religion deserves some comment. As we discussed in Chapter 3, one of the key principles in free speech analysis is whether the government is drawing content-based distinctions. If it is, the statute is almost invariably found to be unconstitutional. Many people have claimed that

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efforts to ban religious speech are content-based discrimination. The Court has suggested that when what is involved is private speech, religious speech is protected, like other content-based or viewpoint-based speech. That clarification helps explains the cases such as Widmar and Rosenberger that we discussed

previously. In those instances, the government was not seen as endorsing religious speech, and to deny equal access to facilities because of the religious nature of the speech would violate the free speech clause. In the school prayer cases, the situation is seen as government endorsement of religious speech.

LEE V. WEISMAN 505 U.S. 577; 120 L. Ed. 2d 467; 112 S. Ct. 2649 (1992) JUSTICE KENNEDY delivered the opinion of the Court, in which JUSTICES BLACKMUN, STEVENS, O’CONNOR, and SOUTER joined. JUSTICE BLACKMUN filed a concurring opinion, in which JUSTICES STEVENS and O’CONNOR joined. JUSTICE SOUTER filed a concurring opinion, in which JUSTICES STEVENS and O’CONNOR joined. JUSTICE SCALIA filed a dissenting opinion, in which CHIEF JUSTICE REHNQUIST and JUSTICES WHITE and THOMAS joined. JUSTICE KENNEDY delivered the opinion of the Court. School principals in the public school system of the city of Providence, Rhode Island, are permitted to invite members of the clergy to offer invocation and benediction prayers as part of the formal graduation ceremonies for middle schools and for high schools. The question before us is whether including clerical members who offer prayers as part of the official school graduation ceremony is consistent with the Religion Clauses of the First Amendment, provisions the Fourteenth Amendment makes applicable with full force to the States and their school districts. I A Deborah Weisman graduated from Nathan Bishop Middle School, a public school in Providence, at a formal ceremony in June 1989. She was about fourteen years old. For many years it has been the policy of the Providence School Committee and the Superintendent of Schools to permit principals to invite members of the clergy to give invocations and benedictions at middle school and high school graduations. Many, but not all, of the principals elected to include prayers as part of the graduation ceremonies. Acting for himself and

his daughter, Deborah’s father, Daniel Weisman, objected to any prayers at Deborah’s middle school graduation, but to no avail. The school principal, petitioner Robert E. Lee, invited a rabbi to deliver prayers at the graduation exercises for Deborah’s class. . . . It has been the custom of Providence school officials to provide invited clergy with a pamphlet entitled “Guidelines for Civic Occasions,” prepared by the National Conference of Christians and Jews. The Guidelines recommend that public prayers at nonsectarian civic ceremonies be composed with “inclusiveness and sensitivity,” though they acknowledge that “[p]rayer of any kind may be inappropriate on some civic occasions.” The principal gave Rabbi Gutterman the pamphlet before the graduation and advised him the invocation and benediction should be nonsectarian. Rabbi Gutterman’s prayers were as follows: Invocation God of the Free, Hope of the Brave: For the legacy of America where diversity is celebrated and the rights of minorities are protected, we thank You. May these young men and women grow up to enrich it. For the liberty of America, we thank You. May these new graduates grow up to guard it. For the political process of America in which all its citizens may participate, for its court system where all may seek justice we thank You. May those we honor this morning always turn to it in trust. For the destiny of America we thank You. May the graduates of Nathan Bishop Middle School so live that they might help to share it. May our aspirations for our country and for these young people, who are our hope for the future, be richly fulfilled. Amen. The Establishment Clause

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Benediction O God, we are grateful to You for having endowed us with the capacity for learning which we have celebrated on this joyous commencement. Happy families give thanks for seeing their children achieve an important milestone. Send Your blessings upon the teachers and administrators who helped prepare them. The graduates now need strength and guidance for the future, help them to understand that we are not complete with academic knowledge alone. We must strive to fulfill what You require of us all: To do justly, to love mercy, to walk humbly. We give thanks to You, Lord, for keeping us alive, sustaining us and allowing us to reach this special, happy occasion. Amen.

. . . [A]ttendance at graduation ceremonies is voluntary. The graduating students enter as a group in a processional, subject to the direction of teachers and school officials, and sit together, apart from their families. We assume the clergy’s participation in any high school graduation exercise would be about what it was at Deborah’s middle school ceremony. There the students stood for the Pledge of Allegiance and remained standing during the Rabbi’s prayers. Even on the assumption that there was a respectful moment of silence both before and after the prayers, the Rabbi’s two presentations must not have extended much beyond a minute each, if that. We do not know whether he remained on stage during the whole ceremony, or whether the students received individual diplomas on stage, or if he helped to congratulate them. The school board (and the United States, which supports it as amicus curiae) argued that these short prayers and others like them at graduation exercises are of profound meaning to many students and parents throughout this country who consider that due respect and acknowledgement for divine guidance and for the deepest spiritual aspirations of our people ought to be expressed at an event as important in life as a graduation. We assume this to be so in addressing the difficult case now before us, for the significance of the prayers lies also at the heart of Daniel and Deborah Weisman’s case. B Deborah’s graduation was held on the premises of Nathan Bishop Middle School on June 29, 1989. Four days before the ceremony, Daniel Weisman, in his individual capacity as a Providence taxpayer and as next friend of Deborah, sought a temporary re234

straining order in the United States District Court for the District of Rhode Island to prohibit school officials from including an invocation or benediction in the graduation ceremony. The court denied the motion for lack of adequate time to consider it. Deborah and her family attended the graduation, where the prayers were recited. In July 1989, Daniel Weisman filed an amended complaint seeking a permanent injunction barring petitioners, various public officials of the Providence public schools, from inviting the clergy to deliver invocations and benedictions at future graduations. . . . . . . The District Court held that petitioners’ practice of including invocations and benedictions in public school graduations violated the Establishment Clause of the First Amendment, and it enjoined petitioners from continuing the practice. The court applied the three-part Establishment Clause test set forth in Lemon v. Kurtzman . . . [and] held that petitioners’ actions violated the second part of the test. . . . The court decided, based on its reading of our precedents, that the effects test of Lemon is violated whenever government action “creates an identification of the state with a religion, or with religion in general,” or when “the effect of the governmental action is to endorse one religion over another, or to endorse religion in general.” The court determined that the practice of including invocations and benedictions, even socalled nonsectarian ones, in public school graduations creates an identification of governmental power with religious practice, endorses religion, and violates the Establishment Clause. In so holding the court expressed the determination not to follow Stein v. Plainwell Community Schools, 822 F.2d 1406 (1987), in which the Court of Appeals for the Sixth Circuit, relying on our decision in Marsh v. Chambers, 463 U.S. 783 (1983), held that benedictions and invocations at public school graduations are not always unconstitutional. In Marsh, we upheld the constitutionality of the Nebraska State Legislature’s practice of opening each of its sessions with a prayer offered by a chaplain paid out of public funds. The District Court in this case disagreed with the Sixth Circuit’s reasoning because it believed that Marsh was a narrow decision, “limited to the unique situation of legislative prayer,” and did not have any relevance to school prayer cases. . . . [The] Court of Appeals for the First Circuit affirmed. . . .

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II These dominant facts mark and control the confines of our decision: State officials direct the performance of a formal religious exercise at promotional and graduation ceremonies for secondary schools. Even for those students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma. This case does not require us to revisit the difficult questions dividing us in recent cases, questions of the definition and full scope of the principles governing the extent of permitted accommodation by the State for the religious beliefs and practices of many of its citizens. . . . For without reference to those principles in other contexts, the controlling precedents as they relate to prayer and religious exercise in primary and secondary public schools compel the holding here that the policy of the city of Providence is an unconstitutional one. We can decide the case without reconsidering the general constitutional framework by which public schools’ efforts to accommodate religion are measured. Thus we do not accept the invitation of petitioners and amicus the United States to reconsider our decision in Lemon v. Kurtzman. The government involvement with religious activity in this case is pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school. Conducting this formal religious observance conflicts with settled rules pertaining to prayer exercises for students, and that suffices to determine the question before us. The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which “establishes a [state] religion or religious faith, or tends to do so.” The State’s involvement in the school prayers challenged today violates these central principles. That involvement is as troubling as it is undenied. A school official, the principal, decided that an invocation and a benediction should be given, this is a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur. The principal chose the

religious participant, here a rabbi, and that choice is also attributable to the State. The reason for the choice of a rabbi is not disclosed by the record, but the potential for divisiveness over the choice of a particular member of the clergy to conduct the ceremony is apparent. . . . The State’s role did not end with the decision to include a prayer and with the choice of clergyman. Principal Lee provided Rabbi Gutterman with a copy of the “Guidelines for Civic Occasions,” and advised him that his prayers should be nonsectarian. Through these means the principal directed and controlled the content of the prayer. . . . It is a cornerstone principle of our Establishment Clause jurisprudence that “it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government,” and that is what the school officials attempted to do. . . . The First Amendment’s Religious Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State. The design of the Constitution is that preservation and transmission of religious beliefs and worship is [sic] a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission. It must not be forgotten then, that while concern must be given to define the protection granted to an objector or a dissenting nonbeliever, these same Clauses exist to protect religion from government interference. . . . These concerns have particular application in the case of school officials, whose effort to monitor prayer will be perceived by the students as inducing a participation they might otherwise reject. Though the efforts of the school officials in this case to find common ground appear to have been a good-faith attempt to recognize the common aspects of religions and not the divisive ones, our precedents do not permit school officials to assist in composing prayers as an incident to a formal exercise for their students. And these same precedents caution us to measure the idea of a civic religion against the central meaning of the Religion Clauses of the First Amendment, which is that all creeds must be tolerated and none favored. The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted. The degree of school involvement here made it clear that the graduation prayers bore the imprint of The Establishment Clause

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the State and thus put school-age children who objected in an untenable position. We turn our attention now to consider the position of the students, both those who desired the prayer and she who did not. . . . The First Amendment protects speech and religion by quite different mechanisms. Speech is protected by insuring its full expression even when the government participates, for the very object of some of our most important speech is to persuade the government to adopt an idea as its own. The method for protecting freedom of worship and freedom of conscience in religious matters is quite the reverse. In religious debate or expression the government is not a prime participant, for the Framers deemed religious establishment antithetical to the freedom of all. The Free Exercise Clause embraces a freedom of conscience and worship that has close parallels in the speech provisions of the First Amendment, but the Establishment Clause is a specific prohibition on forms of state intervention in religious affairs with no precise counterpart in the speech provisions. The explanation lies in the lesson of history that was and is the inspiration for the Establishment Clause, the lesson that in the hands of government what might begin as a tolerant expression of religious views may end in a policy to indoctrinate and coerce. A state-created orthodoxy puts at grave risk that freedom of belief and conscience which are [sic] the sole assurance that religious faith is real, not imposed. The lessons of the First Amendment are as urgent in the modern world as in the eighteenth Century when it was written. One timeless lesson is that if citizens are subjected to state-sponsored religious exercises, the State disavows its own duty to guard and respect that sphere of inviolable conscience and belief which is the mark of a free people. To compromise that principle today would be to deny our own tradition and forfeit our standing to urge others to secure the protections of that tradition for themselves. . . . As we have observed before, there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in the elementary and secondary public schools. . . . The concern may not be limited to the context of schools, but it is most pronounced there. What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy. 236

We need not look beyond the circumstances of this case to see the phenomenon at work. The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. Of course, in our culture standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real. There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the Rabbi’s prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation. What matters is that, given our social conventions, a reasonable dissenter in this milieu could believe that the group exercise signified her own participation or approval of it. . . . The injury caused by the government’s action, and the reason why Daniel and Deborah Weisman object to it, is that the State, in a school setting, in effect required participation in a religious exercise. It is, we concede, a brief exercise during which the individual can concentrate on joining its message, meditate on her own religion, or let her mind wander. But the embarrassment and the intrusion of the religious exercise cannot be refuted by arguing that these prayers, and similar ones to be said in the future, are of a de minimis character. To do so would be an affront to the Rabbi who offered them and to all those for whom the prayers were an essential and profound recognition of divine authority. And for the same reason, we think that the intrusion is greater than the two minutes or so of time consumed for prayers like these. Assuming, as we must, that the prayers were offensive to the student and the parent who now object, the intrusion was both real and, in the context of a secondary school, a violation of the objectors’ rights. That the intrusion was in the course of promulgating religion that sought to be civic or

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nonsectarian rather than pertaining to one sect does not lessen the offense or isolation to the objectors. At best it narrows their number, at worst increases their sense of isolation and affront. There was a stipulation in the District Court that attendance at graduation and promotional ceremonies is voluntary. Petitioners and the United States, as amicus, made this a center point of the case, arguing that the option of not attending the graduation excuses any inducement or coercion in the ceremony itself. The argument lacks all persuasion. Law reaches past formalism. And to say a teenage student has a real choice not to attend her high school graduation is formalistic in the extreme. True, Deborah could elect not to attend commencement without renouncing her diploma; but we shall not allow the case to turn on this point. Everyone knows that in our society and in our culture high school graduation is one of life’s most significant occasions. A school rule which excuses attendance is beside the point. Attendance may not be required by official decree, yet it is apparent that a student is not free to absent herself from the graduation exercise in any real sense of the term “voluntary,” for absence would require forfeiture of those intangible benefits which would have motivated the student through youth and all her high school years. Graduation is a time for family and those closest to the student to celebrate success and express mutual wishes of gratitude and respect, all to the end of impressing upon the young person the role that it is his or her right and duty to assume in the community and all of its diverse parts. . . . The government’s argument gives insufficient recognition to the real conflict of conscience faced by the young student. The essence of the Government’s position is that with regard to a civic, social occasion of this importance it is the objector, not the majority, who must take unilateral and private action to avoid compromising religious scruples, here by electing to miss the graduation exercise. This turns conventional First Amendment analysis on its head. It is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice. To say that a student must remain apart from the ceremony at the opening invocation and closing benediction is to risk compelling conformity in an environment analogous to the classroom setting, where we have said the risk of compulsion is especially high. . . .

We do not hold that every state action implicating religion is invalid if one or a few citizens find it offensive. People may take offense at all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation. We know too that sometimes to endure social isolation or even anger may be the price of conscience or nonconformity. But, by any reading of our cases, the conformity required of the student in this case was too high an exaction to withstand the test of the Establishment Clause. The prayer exercises in this case are especially improper because the State has in every practical sense compelled attendance and participation in an explicit religious exercise at an event of singular importance to every student, one the objecting student had no real alternative to avoid. . . . Our society would be less than true to its heritage if it lacked abiding concern for the values of its young people, and we acknowledge the profound belief of adherents to many faiths that there must be a place in the student’s life for precepts of a morality higher than even the law we today enforce. We express no hostility to those aspirations, nor would our oath permit us to do so. A relentless and allpervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution. We recognize that, at graduation time and throughout the course of the educational process, there will be instances when religious persons will have some interaction with the public schools and their students. But these matters, often questions of accommodation of religion, are not before us. The sole question presented is whether a religious exercise may be conducted at a graduation ceremony in circumstances where, as we have found, young graduates who object are induced to conform. No holding by this Court suggests that a school can persuade or compel a student to participate in a religious exercise. That is being done here, and it is forbidden by the Establishment Clause of the First Amendment. For the reasons we have stated, the judgment of the Court of Appeals is Affirmed. JUSTICE BLACKMUN, joined by JUSTICES STEVENS and O’CONNOR, concurring: Nearly half a century of review and refinement of Establishment Clause jurisprudence has distilled one The Establishment Clause

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clear understanding: Government may neither promote nor affiliate itself with any religious doctrine or organization, nor may it obtrude itself in the internal affairs of any religious institution. The application of these principles to the present case mandates the decision reached today by the Court. . . . II I join the Court’s opinion today because I find nothing in it inconsistent with the essential precepts of the Establishment Clause developed in our precedents. . . . Although our precedents make clear that proof of government coercion is not necessary to prove an Establishment Clause violation, it is sufficient. Government pressure to participate in a religious activity is an obvious indication that the government is endorsing or promoting religion. But it is not enough that the government restrain from compelling religious practices: it must not engage in them either. . . . The Establishment Clause proscribes public schools from “conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred,” County of Allegheny v. ACLU, 492 U.S. 573, 593 (1989) (emphasis in original), even if the schools do not actually “impos(e) pressure upon a student to participate in a religious activity.” Bd. of Ed. of Westside Community Schools v. Mergens, 496 U.S. 226, 261 (1990). . . . . . . The Establishment Clause protects religious liberty on a grand scale; it is a social compact that guarantees for generations a democracy and a strong religious community—both essential to safeguarding religious liberty. “Our fathers seem to have been perfectly sincere in their belief that the members of the Church would be more patriotic, and the citizens of the State more religious, by keeping their respective functions entirely ‘separate.’ ” Religious Liberty, in Essays and Speeches of Jeremiah S. Black 53 (C. Black ed. 1885) (Chief Justice of the Commonwealth of Pennsylvania). The mixing of government and religion can be a threat to free government, even if no one is forced to participate. When the government puts its imprimatur on a particular religion, it conveys a message of exclusion to all those who do not adhere to the favored beliefs. A government cannot be premised on the belief that all persons are created equal when it asserts that God prefers some. Only “[a]nguish, hardship and bitter strife” result “when zealous religious groups struggl[e] with one another to obtain 238

the Government’s stamp of approval.” Engel, 370 U.S., at 429. Such a struggle can “strain a political system to the breaking point.” Walz v. Tax Commission, 397 U.S. 664, 694 (1970). When the government arrogates to itself a role in religious affairs, it abandons its obligation as guarantor of democracy. Democracy requires the nourishment of dialogue and dissent, while religious faith puts its trust in an ultimate divine authority above all human deliberation. When the government appropriates religious truth, it “transforms rational debate into theological decree.” Nuechterlein, Note, The Free Exercise Boundaries of Permissible Accommodation Under the Establishment Clause, 99 Yale L.J. 1127, 1131 (1990). Those who disagree no longer are questioning the policy judgment of the elected but the rules of a higher authority who is beyond reproach. . . . . . . [W]e have recognized that “[r]eligion flourishes in greater purity, without than with the aid of Gov[ernment].” To “make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary,” the government must not align itself with any one of them. When the government favors a particular religion or sect, the disadvantage to all others is obvious, but even the favored religion may fear being “taint[ed] . . . with a corrosive secularism.” The favored religion may be compromised as political figures reshape the religion’s beliefs for their own purposes; it may be reformed as government largesse brings government regulation. Keeping religion in the hands of private groups minimizes state intrusion on religious choice and best enables each religion to “flourish according to the zeal of its adherents and the appeal of its dogma.” It is these understandings and fears that underlie our Establishment Clause jurisprudence. We have believed that religious freedom cannot exist in the absence of a free democratic government, and that such a government cannot endure when there is fusion between religion and the political regime. We have believed that religious freedom cannot thrive in the absence of a vibrant religious community and that such a community cannot prosper when it is bound to the secular. And we have believed that these were the animating principles behind the adoption of the Establishment Clause. To that end, our cases have prohibited government endorsement of religion, its sponsorship, and active involvement in religion, whether or not citizens were coerced to conform. . . .

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

JUSTICE SOUTER, joined by JUSTICES STEVENS and O’CONNOR, concurring: I join the whole Court’s opinion, and fully agree that prayers at public school graduation ceremonies indirectly coerce religious observance. I write separately nonetheless on two issues of Establishment Clause analysis that underlie my independent resolution of this case: whether the Clause applies to governmental practices that do not favor one religion or denomination over others, and whether state coercion of religious conformity, over and above state endorsement of religious exercise or belief, is a necessary element of an Establishment Clause violation. I Forty-five years ago, this Court announced a basic principle of constitutional law from which it has not strayed: the Establishment Clause forbids not only state practices that “aid one religion . . . or prefer one religion over another,” but also those that “aid all religions.” Today we reaffirm that principle, holding that the Establishment Clause forbids statesponsored prayers in public school settings no matter how nondenominational the prayers may be. In barring the State from sponsoring generically Theistic prayers where it could not sponsor sectarian ones, we hold true to a line of precedent from which there is no adequate historical case to depart. (Emphasis added). . . . A Such is the settled law. Here, as elsewhere, we should stick to it absent some compelling reason to discard it. . . . B Some have challenged this precedent by reading the Establishment Clause to permit “nonpreferential” state promotion of religion. The challengers argue that, as originally understood by the Framers, “[t]he Establishment Clause did not require government neutrality between religion and irreligion nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion.” Wallace [v. Jaffree, 472 U.S. 38] at 106 (JUSTICE REHNQUIST, dissenting); see also R. Cord, Separation of Church and State: Historical Fact and Current Fiction (1988). While a case has been made for this position, it is not so convincing as to warrant reconsideration of our settled law; indeed, I find in the history of the

Clause’s textual development a more powerful argument supporting the Court’s jurisprudence following Everson. . . . . . . [O]n balance, history neither contradicts nor warrants reconsideration of the settled principle that the Establishment Clause forbids support for religion in general no less than support for one religion or some. C While these considerations are, for me, sufficient to reject the nonpreferentialist position, one further concern animates my judgment. In many contexts, including this one, nonpreferentialism requires some distinction between “sectarian” religious practices and those that would be, by some measure, ecumenical enough to pass Establishment Clause muster. Simply by requiring the inquiry, nonpreferentialists invite the courts to engage in comparative theology. I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible. This case is nicely in point. Since the nonpreferentiality of a prayer must be judged by its text, JUSTICE BLACKMUN pertinently observes, ante, at 2664, n. 5, that Rabbi Gutterman drew his exhortation “[t]o do justly, to love mercy, to walk humbly” straight from the King James version of Micah, ch. 6, v. 8. At some undefinable point, the similarities between a state-sponsored prayer and the sacred text of a specific religion would so closely identify the former with the latter that even a nonpreferentialist would have to concede a breach of the Establishment Clause. And even if Micah’s thought is sufficiently generic for most believers, it still embodies a straightforwardly Theistic premise, and so does the Rabbi’s prayer. Many Americans who consider themselves religious are not Theistic; some, like several of the Framers, are Deists who would question Rabbi Gutterman’s plea for divine advancement of the country’s political and moral good. Thus, a nonpreferentialist who would condemn subjecting public school graduates to, say, the Anglican liturgy would still need to explain why the government’s preference for Theistic over non-Theistic religion is constitutional. Nor does it solve the problem to say that the State should promote a “diversity” of religious views; that position would necessarily compel the government and, inevitably, the courts to make wholly inappropriate judgments about the number of religions the The Establishment Clause

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State should sponsor and the relative frequency with which it should sponsor each. In fact, the prospect would be even worse than that. As Madison observed in criticizing religious presidential proclamations, the practice of sponsoring religious messages tends, over time, “to narrow the recommendation to the standard of the predominant sect.” . . . We have not changed much since the days of Madison, and the judiciary should not willingly enter the political arena to battle the centripetal force leading from religious pluralism to official preference for the faith with the most votes. II Petitioners rest most of their argument on a theory that, whether or not the Establishment Clause permits extensive nonsectarian support for religion, it does not forbid the state to sponsor affirmations of religious beliefs that coerce neither support for religion nor participation in religious observance. I appreciate the force of some of the arguments supporting a “coercion” analysis of the Clause. . . . But we could not adopt that reading without abandoning our settled law, a course that, in my view, the text of the Clause would not readily permit. Nor does the extratextual evidence of original meaning stand so unequivocally at odds with the textual premise inherent in existing precedent that we should fundamentally reconsider our course. A Over the years, this Court has declared the invalidity of many noncoercive state laws and practices conveying a message of religious endorsement. . . . Our precedents may not always have drawn perfectly straight lines. They simply cannot, however, support the position that a showing of coercion is necessary to a successful Establishment Clause claim. B Like the provisions about “due” process and “unreasonable” searches and seizures, the constitutional language forbidding laws “respecting an establishment of religion” is not pellucid. But virtually everyone acknowledges that the Clause bans more than formal establishments of religion in the traditional sense, that is, massive state support for religion through, among other means, comprehensive schemes of taxation. . . . This much follows from the Framers’ explicit rejection of simpler provisions pro240

hibiting either the establishment of a religion or laws “establishing religion” in favor of the broader ban on laws “respecting an establishment of religion.” . . . While petitioners insist that the prohibition extends only to the “coercive” features and incidents of establishment, they cannot easily square that claim with the constitutional text. The First Amendment forbids not just laws “respecting an establishment of religion,” but also those “prohibiting the free exercise thereof.” Yet laws that coerce nonadherents to “support or participate in any religion or its exercise,” would virtually by definition violate their right to religious free exercise. . . . Thus, a literal application of the coercion test would render the Establishment Clause a virtual nullity. . . . III While the Establishment Clause’s concept of neutrality is not self-revealing, our recent cases have invested it with specific content: the state may not favor or endorse either religion generally over nonreligion or one religion over others. . . . This principle against favoritism and endorsement has become the foundation of Establishment Clause jurisprudence, ensuring that religious belief is irrelevant to every citizen’s standing in the political community. . . . Now, as in the early Republic, “religion & Govt. will both exist in greater purity, the less they are mixed together.” Letter from J. Madison to E. Livingston (10 July 1822), in 5 The Founders’ Constitution, at 106. Our aspiration to religious liberty, embodied in the First Amendment, permits no other standard. A That government must remain neutral in matters of religion does not foreclose it from ever taking religion into account. The State may “accommodate” the free exercise of religion by relieving people from generally applicable rules that interfere with their religious callings. Contrary to the views of some, such accommodation does not necessarily signify an official endorsement of religious observance over disbelief. In everyday life, we routinely accommodate religious beliefs that we do not share. A Christian inviting an Orthodox Jew to lunch might take pains to choose a kosher restaurant; an atheist in a hurry might yield the right of way to an Amish man steering a horse-drawn carriage. In so acting, we express respect for, but not endorsement of, the fundamental values of others. We act without expressing a position

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

on the theological merit of those values or of religious belief in general, and no one perceives us to have taken such a position. The government may act likewise. . . . B Whatever else may define the scope of accommodation permissible under the Establishment Clause, one requirement is clear: accommodation must lift a discernible burden on the free exercise of religion. . . . Concern for the position of religious individuals in the modern regulatory state cannot justify official solicitude for a religious practice unburdened by general rules; such gratuitous largesse would effectively favor religion over disbelief. By these lights one easily sees that, in sponsoring the graduation prayers at issue here, the State has crossed the line from permissible accommodation to unconstitutional establishment. Religious students cannot complain that omitting prayers from their graduation ceremony would, in any realistic sense, “burden” their spiritual callings. To be sure, many of them invest this rite of passage with spiritual significance, but they may express their religious feelings about it before and after the ceremony. They may even organize a privately sponsored baccalaureate if they desire the company of like-minded students. Because they accordingly have no need for the machinery of the State to affirm their beliefs, the government’s sponsorship of prayer at the graduation ceremony is most reasonably understood as an official endorsement of religion and, in this instance, of Theistic religion. One may fairly say, as one commentator has suggested, that the government brought prayer into the ceremony “precisely because some people want a symbolic affirmation that government approves and endorses their religion, and because many of the people who want this affirmation place little or no value on the costs to religious minorities.” . . . . . . When public school officials, armed with the State’s authority, convey an endorsement of religion to their students, they strike at the core of the Establishment Clause. However “ceremonial” their messages may be, they are flatly unconstitutional. JUSTICE SCALIA, joined by CHIEF JUSTICE REHNQUIST and JUSTICES WHITE and THOMAS, dissenting: Three Terms ago, I joined an opinion recognizing that the Establishment Clause must be construed in

light of the “[g]overnment policies of accommodation, acknowledgment, and support for religion [that] are an accepted part of our political and cultural heritage.” That opinion affirmed that “the meaning of the Clause is to be determined by reference to historical practices and understandings.” It said that “[a] test for implementing the protections of the Establishment Clause that, if applied with consistency, would invalidate longstanding traditions cannot be a proper reading of the Clause.” Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573, 657, 670 (1989). These views of course prevent me from joining today’s opinion, which is conspicuously bereft of any reference to history. In holding that the Establishment Clause prohibits invocations and benedictions at public-school graduation ceremonies, the Court— with nary a mention that it is doing so—lays waste a tradition that is as old as public-school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion, which promises to do for the Establishment Clause what the Durham rule did for the insanity defense. See Durham v. United States, 94 U.S. App. D.C. 228, 214 F.2d 862 (1954). Today’s opinion shows more forcefully than volumes of argumentation why our Nation’s protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people. I JUSTICE HOLMES’ aphorism that “a page of history is worth a volume of logic,” New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921), applies with particular force to our Establishment Clause jurisprudence. As we have recognized, our interpretation of the Establishment Clause should “compor[t] with what history reveals was the contemporaneous understanding of its guarantees.” “[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers.” “[H]istorical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied” to The Establishment Clause

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contemporaneous practices. Thus, “[t]he existence from the beginning of the Nation’s life of a practice, [while] not conclusive of its constitutionality . . . is a fact of considerable import in the interpretation” of the Establishment Clause. Walz v. Tax Comm’n of New York City, 397 U.S. 664, 681 (1970). . . . In addition to [the] general tradition of prayer at public ceremonies, there exists a more specific tradition of invocations and benedictions at public-school graduation exercises. By one account, the first publichigh-school graduation ceremony took place in Connecticut in July 1868—the very month, as it happens, that the Fourteenth Amendment (the vehicle by which the Establishment Clause has been applied against the States) was ratified—when 15 seniors from the Norwich Free Academy marched in their best Sunday suits and dresses into a church hall and waited through majestic music and long prayers.” . . . As the Court obliquely acknowledges in describing the “customary features” of high school graduations, and as respondents do not contest, the invocation and benediction have long been recognized to be “as traditional as any other parts of the [school] graduation program and are widely established.” . . . A The Court declares that students’ “attendance and participation in the [invocation and benediction] are in a fair and real sense obligatory.” Ibid. But what exactly is this “fair and real sense”? According to the Court, students at graduation who want “to avoid the fact or appearance of participation” in the invocation and benediction are psychologically obligated by “public pressure, as well as peer pressure, . . . to stand as a group or, at least, maintain respectful silence” during those prayers. This assertion—the very linchpin of the Court’s opinion—is almost as intriguing for what it does not say as for what it says. It does not say, for example, that students are psychologically coerced to bow their heads, place their hands in a Dürer-like prayer position, pay attention to the prayers, utter “Amen,” or in fact pray. . . . It claims only that students are psychologically coerced “to stand . . . or, at least, maintain respectful silence” (emphasis added). . . . The Court’s notion that a student who simply sits in “respectful silence” during the invocation and benediction (when all others are standing) has somehow joined—or would somehow be perceived as having joined—in the prayers is nothing short of ludicrous. We indeed live in a vulgar age. But surely “our social conventions” 242

have not coarsened to the point that anyone who does not stand on his chair and shout obscenities can reasonably be deemed to have assented to everything said in his presence. Since the Court does not dispute that students exposed to prayer at graduation ceremonies retain (despite “subtle coercive pressures”) the free will to sit, there is absolutely no basis for the Court’s decision. It is fanciful enough to say that “a reasonable dissenter,” standing head erect in a class of bowed heads, “could believe that the group exercise signified her own participation or approval of it.” It is beyond the absurd to say that she could entertain such a belief while pointedly declining to rise. . . . I also find it odd that the Court concludes that high school graduates may not be subjected to this supposed psychological coercion, yet refrains from addressing whether “mature adults” may. I had thought that the reason graduation from high school is regarded as so significant an event is that it is generally associated with transition from adolescence to young adulthood. Many graduating seniors, of course, are old enough to vote. Why, then, does the Court treat them as though they were first-graders? Will we soon have a jurisprudence that distinguishes between mature and immature adults? . . . IV Our religion-clause jurisprudence has become bedeviled (so to speak) by reliance on formulaic abstractions that are not derived from, but positively conflict with, our long-accepted constitutional traditions. Foremost among these has been the so-called Lemon test, which has received well-earned criticism from many members of this Court. . . . The Court today demonstrates the irrelevance of Lemon by essentially ignoring it, and the interment of that case may be the one happy by-product of the Court’s otherwise lamentable decision. Unfortunately, however, the Court has replaced Lemon with its psychocoercion test, which suffers the double disability of having no roots whatever in our people’s historic practice, and being as infinitely expandable as the reasons for psychotherapy itself. Another happy aspect of the case is that it is only a jurisprudential disaster and not a practical one. Given the odd basis for the Court’s decision, invocations and benedictions will be able to be given at public-school graduations next June, as they have for the past century and a half, so long as school authorities make clear that anyone who abstains from screaming in protest does not necessarily participate

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

in the prayers. All that is seemingly needed is an announcement, or perhaps a written insertion at the beginning of the graduation program, to the effect that, while all are asked to rise for the invocation and benediction, none is compelled to join in them, nor will be assumed, by rising, to have done so. That obvious fact recited, the graduates and their parents may proceed to thank God, as Americans have always done, for the blessings He has generously bestowed on them and on their country. . . . The narrow context of the present case involves a community’s celebration of one of the milestones in its young citizens’ lives, and it is a bold step for this Court to seek to banish from that occasion, and from thousands of similar celebrations throughout this land, the expression of gratitude to God that a majority of the community wishes to make. The issue before us today is not the abstract philosophical question whether the alternative of frustrating this desire of a religious majority is to be preferred over the alternative of imposing “psychological coercion,” or a feeling of exclusion, upon nonbelievers. Rather, the question is whether a mandatory choice in favor of the former has been imposed by the United States Constitution. As the age-old practices

of our people show, the answer to that question is not at all in doubt. I must add one final observation: The founders of our Republic knew the fearsome potential of sectarian religious belief to generate civil dissension and civil strife. And they also knew that nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration—no, an affection—for one another than voluntarily joining in prayer together, to the God whom they all worship and seek. Needless to say, no one should be compelled to do that, but it is a shame to deprive our public culture of the opportunity, and indeed the encouragement, for people to do it voluntarily. The Baptist or Catholic who heard and joined in the simple and inspiring prayers of Rabbi Gutterman on this official and patriotic occasion was inoculated from religious bigotry and prejudice in a manner that cannot be replicated. To deprive our society of that important unifying mechanism, in order to spare the nonbeliever what seems to me the minimal inconvenience of standing or even sitting in respectful nonparticipation, is as senseless in policy as it is unsupported in law. For the foregoing reasons, I dissent.

SANTA FE INDEPENDENT SCHOOL DISTRICT V. DOE 530 U.S. 290 (2000) JUSTICE STEVENS delivered the opinion of the Court in which JUSTICES O’CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER joined. CHIEF JUSTICE REHNQUIST filed a dissenting opinion, in which JUSTICES SCALIA and THOMAS joined. JUSTICE STEVENS delivered the opinion of the Court. Prior to 1995, the Santa Fe High School student who occupied the school’s elective office of student council chaplain delivered a prayer over the public address system before each varsity football game for the entire season. This practice, along with others, was challenged in District Court as a violation of the Establishment Clause of the First Amendment. While these proceedings were pending in the District

Court, the school district adopted a different policy that permits, but does not require, prayer initiated and led by a student at all home games. The District Court entered an order modifying that policy to permit only nonsectarian, nonproselytizing prayer. The Court of Appeals held that, even as modified by the District Court, the football prayer policy was invalid. We granted the school district’s petition for certiorari to review that holding. I The Santa Fe Independent School District (District) is a political subdivision of the State of Texas, responsible for the education of more than 4,000 students in a small community in the southern part of the State. The District includes the Santa Fe High The Establishment Clause

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School, two primary schools, an intermediate school and the junior high school. Respondents are two sets of current or former students and their respective mothers. One family is Mormon and the other is Catholic. The District Court permitted respondents (Does) to litigate anonymously to protect them from intimidation or harassment. Respondents commenced this action in April 1995 and moved for a temporary restraining order to prevent the District from violating the Establishment Clause at the imminent graduation exercises. . . . The Does alleged that the District had engaged in several proselytizing practices, such as promoting attendance at a Baptist revival meeting, encouraging membership in religious clubs, chastising children who held minority religious beliefs, and distributing Gideon Bibles on school premises. They also alleged that the District allowed students to read Christian invocations and benedictions from the stage at graduation ceremonies, and to deliver overtly Christian prayers over the public address system at home football games. [At the 1994 graduation ceremony the senior class president delivered this invocation: “Please bow your heads. Dear heavenly Father, thank you for allowing us to gather here safely tonight. We thank you for the wonderful year you have allowed us to spend together as students of Santa Fe. We thank you for our teachers who have devoted many hours to each of us. Thank you, Lord, for our parents and may each one receive the special blessing. We pray also for a blessing and guidance as each student moves forward in the future. Lord, bless this ceremony and give us all a safe journey home. In Jesus’ name we pray.”] On May 10, 1995, the District Court entered an interim order addressing a number of different issues. With respect to the impending graduation, the order provided that “non-denominational prayer” consisting of “an invocation and/or benediction” could be presented by a senior student or students selected by members of the graduating class. The text of the prayer was to be determined by the students, without scrutiny or preapproval by school officials. References to particular religious figures “such as Mohammed, Jesus, Buddha, or the like” would be permitted “as long as the general thrust of the prayer is non-proselytizing.” In response to that portion of the order, the District adopted a series of policies over several months dealing with prayer at school functions. The policies enacted in May and July for graduation 244

ceremonies provided the format for the August and October policies for football games. The May policy provided: “‘The board has chosen to permit the graduating senior class, with the advice and counsel of the senior class principal or designee, to elect by secret ballot to choose whether an invocation and benediction shall be part of the graduation exercise. If so chosen the class shall elect by secret ballot, from a list of student volunteers, students to deliver nonsectarian, nonproselytizing invocations and benedictions for the purpose of solemnizing their graduation ceremonies.’” 168 F. 3d 806, 811 (CA5 1999) The parties stipulated that after this policy was adopted, “the senior class held an election to determine whether to have an invocation and benediction at the commencement [and that the] class voted, by secret ballot, to include prayer at the high school graduation.” App. 52. In a second vote the class elected two seniors to deliver the invocation and benediction. In July, the District enacted another policy eliminating the requirement that invocations and benedictions be “nonsectarian and nonproselytising,” but also providing that if the District were to be enjoined from enforcing that policy, the May policy would automatically become effective. The August policy, which was titled “Prayer at Football Games,” was similar to the July policy for graduations. It also authorized two student elections, the first to determine whether “invocations” should be delivered, and the second to select the spokesperson to deliver them. . . . On August 31, 1995 . . . “the district’s high school students voted to determine whether a student would deliver prayer at varsity football games. . . . The students chose to allow [it]. . . . A week later, in a separate election, they selected a student to deliver the prayer at varsity football games.” The final policy (October policy) is essentially the same as the August policy, though it omits the word “prayer” from its title, and refers to “messages” and “statements” as well as “invocations.” It is the validity of that policy that is before us. The District Court did enter an order precluding enforcement of the first, open-ended policy. Relying on our decision in Lee v. Weisman, 505 U.S. 577 (1992), it held that the school’s “action must not ‘coerce anyone to support or participate in’ a religious exercise.” Applying that test, it concluded that the graduation prayers appealed “to distinctively Christian beliefs,” and that delivering a prayer “over

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

the school’s public address system prior to each football and baseball game coerces student participation in religious events.” Both parties appealed, the District contending that the enjoined portion of the October policy was permissible and the Does contending that both alternatives violated the Establishment Clause. The Court of Appeals majority agreed with the Does . . . We granted the District’s petition for certiorari, limited to the following question: “Whether petitioner’s policy permitting student-led, studentinitiated prayer at football games violates the Establishment Clause.” We conclude, as did the Court of Appeals, that it does. II . . .In Lee v. Weisman, 505 U.S. 577 (1992), we held that a prayer delivered by a rabbi at a middle school graduation ceremony violated that Clause. Although this case involves student prayer at a different type of school function, our analysis is properly guided by the principles that we endorsed in Lee. As we held in that case: “The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a [state] religion or religious faith, or tends to do so.’” Id., at 587 (quoting Lynch v. Donnelly, 465 U.S. 668, 678 (1984)). In this case the District first argues that this principle is inapplicable to its October policy because the messages are private student speech, not public speech. It reminds us that “there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.” Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U.S. 226, 250 (1990). We certainly agree with that distinction, but we are not persuaded that the pregame invocations should be regarded as “private speech.” These invocations are authorized by a government policy and take place on government property at government-sponsored school-related events. Of course, not every message delivered under such circumstances is the government’s own. We have held, for

example, that an individual’s contribution to a government-created forum was not government speech. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819. Although the District relies heavily on Rosenberger and similar cases involving such forums, it is clear that the pregame ceremony is not the type of forum discussed in those cases. The Santa Fe school officials simply do not “evince either ‘by policy or by practice,’ any intent to open the [pregame ceremony] to ‘indiscriminate use,’ . . . by the student body generally.” Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 270 (1988) (quoting Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 47 (1983)). Rather, the school allows only one student, the same student for the entire season, to give the invocation. The statement or invocation, moreover, is subject to particular regulations that confine the content and topic of the student’s message. By comparison, in Perry we rejected a claim that the school had created a limited public forum in its school mail system despite the fact that it had allowed far more speakers to address a much broader range of topics than the policy at issue here. As we concluded in Perry, “selective access does not transform government property into a public forum.” 460 U.S., at 47. Granting only one student access to the stage at a time does not, of course, necessarily preclude a finding that a school has created a limited public forum. Here, however, Santa Fe’s student election system ensures that only those messages deemed “appropriate” under the District’s policy may be delivered. That is, the majoritarian process implemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced. Recently, in Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217 (2000), we explained why student elections that determine, by majority vote, which expressive activities shall receive or not receive school benefits are constitutionally problematic: “To the extent the referendum substitutes majority determinations for viewpoint neutrality it would undermine the constitutional protection the program requires. The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views. Access to a public forum, for instance, does not depend upon majoritarian consent. That principle is controlling here.” Id., at 236. Like the student referendum for funding in Southworth, this student election does nothing to protect minority views but rather places the students The Establishment Clause

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who hold such views at the mercy of the majority. Because “fundamental rights may not be submitted to vote; they depend on the outcome of no elections,” West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943), the District’s elections are insufficient safeguards of diverse student speech. In Lee, the school district made the related argument that its policy of endorsing only “civic or nonsectarian” prayer was acceptable because it minimized the intrusion on the audience as a whole. We rejected that claim by explaining that such a majoritarian policy “does not lessen the offense or isolation to the objectors. At best it narrows their number, at worst increases their sense of isolation and affront.” 505 U.S., at 594. Similarly, while Santa Fe’s majoritarian election might ensure that most of the students are represented, it does nothing to protect the minority; indeed, it likely serves to intensify their offense. Moreover, the District has failed to divorce itself from the religious content in the invocations. It has not succeeded in doing so, either by claiming that its policy is “‘one of neutrality rather than endorsement’” or by characterizing the individual student as the “circuit-breaker” in the process. Contrary to the District’s repeated assertions that it has adopted a “hands-off” approach to the pregame invocation, the realities of the situation plainly reveal that its policy involves both perceived and actual endorsement of religion. In this case, as we found in Lee, the “degree of school involvement” makes it clear that the pregame prayers bear “the imprint of the State and thus put school-age children who objected in an untenable position.” 505 U.S., at 590. The District has attempted to disentangle itself from the religious messages by developing the twostep student election process. The text of the October policy, however, exposes the extent of the school’s entanglement. The elections take place at all only because the school “board has chosen to permit students to deliver a brief invocation and/or message” (emphasis added by Supreme Court Reporter). The elections thus “shall” be conducted “by the high school student council” and “[u]pon advice and direction of the high school principal.” The decision whether to deliver a message is first made by majority vote of the entire student body, followed by a choice of the speaker in a separate, similar majority election. Even though the particular words used by the speaker are not determined by those votes, the policy mandates that the “statement or invocation” be “consistent with the 246

goals and purposes of this policy,” which are “to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition.” In addition to involving the school in the selection of the speaker, the policy, by its terms, invites and encourages religious messages. The policy itself states that the purpose of the message is “to solemnize the event.” A religious message is the most obvious method of solemnizing an event. Moreover, the requirements that the message “promote good citizenship” and “establish the appropriate environment for competition” further narrow the types of message deemed appropriate, suggesting that a solemn, yet nonreligious, message, such as commentary on United States foreign policy, would be prohibited. Indeed, the only type of message that is expressly endorsed in the text is an “invocation”—a term that primarily describes an appeal for divine assistance. In fact, as used in the past at Santa Fe High School, an “invocation” has always entailed a focused religious message. Thus, the expressed purposes of the policy encourage the selection of a religious message, and that is precisely how the students understand the policy. The results of the elections described . . .make it clear that the students understood that the central question before them was whether prayer should be a part of the pregame ceremony. Even if the plain language of the October policy were facially neutral, “the Establishment Clause forbids a State to hide behind the application of formally neutral criteria and remain studiously oblivious to the effects of its actions.” Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S., at 777 (O’CONNOR, J., concurring in part and concurring in judgment) . . . We recognize the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as a part of various occasions so as to mark those occasions’ significance. But such religious activity in public schools, as elsewhere, must comport with the First Amendment. The actual or perceived endorsement of the message, moreover, is established by factors beyond just the text of the policy. Once the student speaker is selected and the message composed, the invocation is then delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property. The message is broadcast over the school’s public address system, which remains subject to the control of school officials. It is

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fair to assume that the pregame ceremony is clothed in the traditional indicia of school sporting events, which generally include not just the team, but also cheerleaders and band members dressed in uniforms sporting the school name and mascot. The school’s name is likely written in large print across the field and on banners and flags. The crowd will certainly include many who display the school colors and insignia on their school T-shirts, jackets, or hats and who may also be waving signs displaying the school name. It is in a setting such as this that “[t]he board has chosen to permit” the elected student to rise and give the “statement or invocation.” In this context the members of the listening audience must perceive the pregame message as a public expression of the views of the majority of the student body delivered with the approval of the school administration. In cases involving state participation in a religious activity, one of the relevant questions is “whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of prayer in public schools.” Wallace, 472 U.S., at 73, 76 (O’CONNOR, J., concurring in judgment); see also Capital Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 777 (1995) (O’CONNOR, J., concurring in part and concurring in judgment). Regardless of the listener’s support for, or objection to, the message, an objective Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school’s seal of approval. The text and history of this policy, moreover, reinforce our objective student’s perception that the prayer is, in actuality, encouraged by the school. When a governmental entity professes a secular purpose for an arguably religious policy, the government’s characterization is, of course, entitled to some deference. But it is nonetheless the duty of the courts to “distinguis[h] a sham secular purpose from a sincere one.” Wallace, 472 U.S., at 75. According to the District, the secular purposes of the policy are to “foste[r] free expression of private persons . . . as well [as to] solemniz[e] sporting events, promot[e] good sportsmanship and student safety, and establis[h] an appropriate environment for competition.” We note, however, that the District’s approval of only one specific kind of message, an “invocation,” is not necessary to further any of these purposes. Additionally, the fact that only one student is permitted to give a content-limited message suggests that this policy does little to

“foste[r] free expression.” Furthermore, regardless of whether one considers a sporting event an appropriate occasion for solemnity, the use of an invocation to foster such solemnity is impermissible when, in actuality, it constitutes prayer sponsored by the school. And it is unclear what type of message would be both appropriately “solemnizing” under the District’s policy and yet non-religious. Most striking to us is the evolution of the current policy from the long-sanctioned office of “Student Chaplain” to the candidly titled “Prayer at Football Games” regulation. This history indicates that the District intended to preserve the practice of prayer before football games. The conclusion that the District viewed the October policy simply as a continuation of the previous policies is dramatically illustrated by the fact that the school did not conduct a new election, pursuant to the current policy, to replace the results of the previous election, which occurred under the former policy. Given these observations, and in light of the school’s history of regular delivery of a student-led prayer at athletic events, it is reasonable to infer that the specific purpose of the policy was to preserve a popular “state-sponsored religious practice.” Lee, 505 U.S., at 596. School sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents “that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Lynch v. Donnelly, 465 U.S., at 688 (1984) (O’CONNOR, J., concurring). The delivery of such a message—over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer—is not properly characterized as “private” speech. III The District next argues that its football policy is distinguishable from the graduation prayer in Lee because it does not coerce students to participate in religious observances. Its argument has two parts: first, that there is no impermissible government coercion because the pregame messages are the product of student choices; and second, that there is really no coercion at all because attendance at an extracurricular event, unlike a graduation ceremony, is voluntary. The Establishment Clause

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The reasons just discussed explaining why the alleged “circuit-breaker” mechanism of the dual elections and student speaker do not turn public speech into private speech also demonstrate why these mechanisms do not insulate the school from the coercive element of the final message. In fact, this aspect of the District’s argument exposes anew the concerns that are created by the majoritarian election system. The parties’ stipulation clearly states that the issue resolved in the first election was “whether a student would deliver prayer at varsity football games,” and the controversy in this case demonstrates that the views of the students are not unanimous on that issue. One of the purposes served by the Establishment Clause is to remove debate over this kind of issue from governmental supervision or control. . . . The two student elections authorized by the policy, coupled with the debates that presumably must precede each, impermissibly invade that private sphere. The election mechanism, when considered in light of the history in which the policy in question evolved, reflects a device the District put in place that determines whether religious messages will be delivered at home football games. The mechanism encourages divisiveness along religious lines in a public school setting, a result at odds with the Establishment Clause. . . . The District further argues that attendance at the commencement ceremonies at issue in Lee “differs dramatically” from attendance at high school football games, which it contends “are of no more than passing interest to many students” and are “decidedly extracurricular,” thus dissipating any coercion. Attendance at a high school football game, unlike showing up for class, is certainly not required in order to receive a diploma. Moreover, we may assume that the District is correct in arguing that the informal pressure to attend an athletic event is not as strong as a senior’s desire to attend her own graduation ceremony. There are some students, however, such as cheerleaders, members of the band, and, of course, the team members themselves, for whom seasonal commitments mandate their attendance, sometimes for class credit. The District also minimizes the importance to many students of attending and participating in extracurricular activities as part of a complete educational experience. As we noted in Lee, “[l]aw reaches past formalism.” 505 U.S., at 595. To assert that high school students do not feel immense social 248

pressure, or have a truly genuine desire, to be involved in the extracurricular event that is American high school football is “formalistic in the extreme.” Ibid. We stressed in Lee the obvious observation that “adolescents are often susceptible to pressure from their peers towards conformity, and that the influence is strongest in matters of social convention.” Id., at 593. High school home football games are traditional gatherings of a school community; they bring together students and faculty as well as friends and family from years present and past to root for a common cause. Undoubtedly, the games are not important to some students, and they voluntarily choose not to attend. For many others, however, the choice between whether to attend these games or to risk facing a personally offensive religious ritual is in no practical sense an easy one. The Constitution, moreover, demands that the school may not force this difficult choice upon these students for “[i]t is a tenet of the First Amendment that the State cannot require one of its citizens to forfeit his or her rights and benefits as the price of resisting conformance to state-sponsored religious practice.” Id., at 596. Even if we regard every high school student’s decision to attend a home football game as purely voluntary, we are nevertheless persuaded that the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship. For “the government may no more use social pressure to enforce orthodoxy than it may use more direct means.” Id., at 594. As in Lee, “[w]hat to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.” Id., at 592. The constitutional command will not permit the District “to exact religious conformity from a student as the price” of joining her classmates at a varsity football game. The Religion Clauses of the First Amendment prevent the government from making any law respecting the establishment of religion or prohibiting the free exercise thereof. By no means do these commands impose a prohibition on all religious activity in our public schools. . . . Indeed, the common purpose of the Religion Clauses “is to secure religious liberty.” Thus, nothing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before,

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

during, or after the schoolday. But the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer. IV This case comes to us as the latest step in developing litigation brought as a challenge to institutional practices that unquestionably violated the Establishment Clause. One of those practices was the District’s long-established tradition of sanctioning student-led prayer at varsity football games. . . . Our discussion in the previous sections, demonstrates that in this case the District’s direct involvement with school prayer exceeds constitutional limits. The District, nevertheless, asks us to pretend that we do not recognize what every Santa Fe High School student understands clearly—that this policy is about prayer. The District further asks us to accept what is obviously untrue: that these messages are necessary to “solemnize” a football game and that this single-student, year-long position is essential to the protection of student speech. We refuse to turn a blind eye to the context in which this policy arose, and that context quells any doubt that this policy was implemented with the purpose of endorsing school prayer. Therefore, the simple enactment of this policy, with the purpose and perception of school endorsement of student prayer, was a constitutional violation. We need not wait for the inevitable to confirm and magnify the constitutional injury. . . . Therefore, even if no Santa Fe High School student were ever to offer a religious message, the October policy fails a facial challenge because the attempt by the District to encourage prayer is also at issue. Government efforts to endorse religion cannot evade constitutional reproach based solely on the remote possibility that those attempts may fail. This policy likewise does not survive a facial challenge because it impermissibly imposes upon the student body a majoritarian election on the issue of prayer. Through its election scheme, the District has established a governmental electoral mechanism that turns the school into a forum for religious debate. It further empowers the student body majority with the authority to subject students of minority views to constitutionally improper messages. The award of that power alone, regardless of the students’ ultimate use of it, is not acceptable. . . . [The] election mechanism established by the District

undermines the essential protection of minority viewpoints. Such a system encourages divisiveness along religious lines and threatens the imposition of coercion upon those students not desiring to participate in a religious exercise. Simply by establishing this school-related procedure, which entrusts the inherently nongovernmental subject of religion to a majoritarian vote, a constitutional violation has occurred. No further injury is required for the policy to fail a facial challenge. To properly examine this policy on its face, we “must be deemed aware of the history and context of the community and forum,” Pinette, 515 U.S., at 780 (O’CONNOR, J., concurring in part and concurring in judgment). Our examination of those circumstances above leads to the conclusion that this policy does not provide the District with the constitutional safe harbor it sought. The policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events. The judgment of the Court of Appeals is, accordingly, affirmed. It is so ordered. CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting: The Court distorts existing precedent to conclude that the school district’s student-message program is invalid on its face under the Establishment Clause. But even more disturbing than its holding is the tone of the Court’s opinion; it bristles with hostility to all things religious in public life. Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause, when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of “public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.” . . . The Court, venturing into the realm of prophesy, decides that it “need not wait for the inevitable” and invalidates the district’s policy on its face. . . . To do so, it applies the most rigid version of the oftcriticized test of Lemon v. Kurtzman, 403 U.S. 602. Lemon has had a checkered career in the decisional law of this Court. See, e.g., . . . Wallace v. Jaffree, 472 U.S. 38, 108—114 (1985) (REHNQUIST, J., dissenting) (stating that Lemon’s “three-part test The Establishment Clause

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represents a determined effort to craft a workable rule from a historically faulty doctrine; but the rule can only be as sound as the doctrine it attempts to service”; Committee for Public Ed. and Religious Liberty v. Regan, 444 U.S. 646, 671 (1980) (STEVENS, J., dissenting) (deriding “the sisyphean task of trying to patch together the blurred, indistinct, and variable barrier described in Lemon”). We have even gone so far as to state that it has never been binding on us. Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (“[W]e have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area. . . . In two cases, the Court did not even apply the Lemon ‘test’ [citing Marsh v. Chambers, 463 U.S. 783 (1983), and Larson v. Valente, 456 U.S. 228 (1982)”]). Indeed, in Lee v. Weisman, 505 U.S. 577 (1992), an opinion upon which the Court relies heavily today, we mentioned but did not feel compelled to apply the Lemon test. See also Agostini v. Felton, 521 U.S. 203, 233 (1997) (stating that Lemon’s entanglement test is merely “an aspect of the inquiry into a statute’s effect”); Hunt v. McNair, 413 U.S. 734, 741 (1973) (stating that the Lemon factors are “no more than helpful signposts”). Even if it were appropriate to apply the Lemon test here, the district’s student-message policy should not be invalidated on its face. The Court applies Lemon and holds that the “policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events.” The Court’s reliance on each of these conclusions misses the mark. First, the Court misconstrues the nature of the “majoritarian election” permitted by the policy as being an election on “prayer” and “religion.” To the contrary, the election permitted by the policy is a two-fold process whereby students vote first on whether to have a student speaker before football games at all, and second, if the students vote to have such a speaker, on who that speaker will be. It is conceivable that the election could become one in which student candidates campaign on platforms that focus on whether or not they will pray if elected. It is also conceivable that the election could lead to a Christian prayer before 90 percent of the football games. If, upon implementation, the policy operated in this fashion, we would have a record before us to review whether the policy, as applied, violated the Establishment Clause or unduly suppressed minority 250

viewpoints. But it is possible that the students might vote not to have a pregame speaker, in which case there would be no threat of a constitutional violation. It is also possible that the election would not focus on prayer, but on public speaking ability or social popularity. And if student campaigning did begin to focus on prayer, the school might decide to implement reasonable campaign restrictions. But the Court ignores these possibilities by holding that merely granting the student body the power to elect a speaker that may choose to pray, “regardless of the students’ ultimate use of it, is not acceptable.” The Court so holds despite that any speech that may occur as a result of the election process here would be private, not government, speech. The elected student, not the government, would choose what to say. Support for the Court’s holding cannot be found in any of our cases. And it essentially invalidates all student elections. A newly elected student body president, or even a newly elected prom king or queen, could use opportunities for public speaking to say prayers. Under the Court’s view, the mere grant of power to the students to vote for such offices, in light of the fear that those elected might publicly pray, violates the Establishment Clause. Second, with respect to the policy’s purpose, the Court holds that “the simple enactment of this policy, with the purpose and perception of school endorsement of student prayer, was a constitutional violation.” But the policy itself has plausible secular purposes: “[T]o solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition.” Where a governmental body “expresses a plausible secular purpose” for an enactment, “courts should generally defer to that stated intent.” Wallace, supra, at 74–75 (O’CONNOR, J., concurring in judgment); see also Mueller v. Allen, 463 U.S. 388, 394—395 (1983) (stressing this Court’s “reluctance to attribute unconstitutional motives to States, particularly when a plausible secular purpose for the State’s program may be discerned from the face of the statute”). The Court grants no deference to—and appears openly hostile toward—the policy’s stated purposes, and wastes no time in concluding that they are a sham. For example, the Court dismisses the secular purpose of solemnization by claiming that it “invites and encourages religious messages.” . . . The Court so concludes based on its rather strange view that a “religious message is the most obvious means of solemnizing an event.” But it is easy to think of solemn messages that are not religious in nature, for exam-

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

ple urging that a game be fought fairly. And sporting events often begin with a solemn rendition of our national anthem, with its concluding verse “And this be our motto: ‘In God is our trust.’” Under the Court’s logic, a public school that sponsors the singing of the national anthem before football games violates the Establishment Clause. Although the Court apparently believes that solemnizing football games is an illegitimate purpose, the voters in the school district seem to disagree. Nothing in the Establishment Clause prevents them from making this choice. The Court bases its conclusion that the true purpose of the policy is to endorse student prayer on its view of the school district’s history of Establishment Clause violations and the context in which the policy was written, that is, as “the latest step in developing litigation brought as a challenge to institutional practices that unquestionably violated the Establishment Clause.” But the context— attempted compliance with a District Court order— actually demonstrates that the school district was acting diligently to come within the governing constitutional law. The District Court ordered the school district to formulate a policy consistent with Fifth Circuit precedent, which permitted a school district to have a prayer-only policy. See Jones v. Clear Creek Independent School Dist., 977 F. 2d 963 (CA5 1992). But the school district went further than required by the District Court order and eventually settled on a policy that gave the student speaker a choice to deliver either an invocation or a message. In so doing, the school district exhibited a willingness to comply with, and exceed, Establishment Clause restrictions. Thus, the policy cannot be viewed as having a sectarian purpose. The Court also relies on our decision in Lee v. Weisman, 505 U.S. 577 (1992), to support its conclusion. In Lee, we concluded that the content of the speech at issue, a graduation prayer given by a rabbi, was “directed and controlled” by a school official. In other words, at issue in Lee was government speech. Here, by contrast, the potential speech at issue, if the policy had been allowed to proceed, would be a message or invocation selected or created by a student. That is, if there were speech at issue here, it would be private speech. The “crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect,” applies with particular force to the question of endorsement.

Had the policy been put into practice, the students may have chosen a speaker according to wholly secular criteria—like good public speaking skills or social popularity—and the student speaker may have chosen, on her own accord, to deliver a religious message. Such an application of the policy would likely pass constitutional muster. Finally, the Court seems to demand that a government policy be completely neutral as to content or be considered one that endorses religion. . . . This is undoubtedly a new requirement, as our Establishment Clause jurisprudence simply does not mandate “content neutrality.” That concept is found in our First Amendment speech cases and is used as a guide for determining when we apply strict scrutiny. For example, we look to “content neutrality” in reviewing loudness restrictions imposed on speech in public forums. . . . The Court seems to think that the fact that the policy is not content neutral somehow controls the Establishment Clause inquiry. But even our speech jurisprudence would not require that all public school actions with respect to student speech be content neutral . . . Schools do not violate the First Amendment every time they restrict student speech to certain categories. But under the Court’s view, a school policy under which the student body president is to solemnize the graduation ceremony by giving a favorable introduction to the guest speaker would be facially unconstitutional. Solemnization “invites and encourages” prayer and the policy’s content limitations prohibit the student body president from giving a solemn, yet nonreligious, message like “commentary on United States foreign policy.” The policy at issue here may be applied in an unconstitutional manner, but it will be time enough to invalidate it if that is found to be the case. I would reverse the judgment of the Court of Appeals. Curriculum Periodically during the twentieth century, policymakers in several states enacted legislation to require public schools to teach the biblical doctrine of creation. Such statutes were a response to the failed attempt to prevent the teaching of Darwin’s theory of evolution in the public schools during the 1920s. The most celebrated antievolution effort was the prosecution of John Scopes, a biology teacher in the rural town of Dayton, Tennessee, for teaching his students Darwin’s theory of evolution in violation of state law. When the Tennessee Supreme Court reversed The Establishment Clause

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Scopes’ conviction, the creationists were denied an opportunity for U.S. Supreme Court review of such statutes. Hence, the effort to expose public school students to the biblical version of creation at the expense of the theory of evolution was blunted. It did not reemerge as a major constitutional issue at the Supreme Court until the challenge to Arkansas’s antievolution statute reached the Court in Epperson v. Arkansas (393 U.S. 97) in 1968. A unanimous Court overturned the law as being motivated by a religious purpose. Justice Fortas for the Court wrote: Arkansas had adopted a law in 1928 that made it unlawful for a teacher in any state supported school or university ‘to teach the theory or doctrine that mankind ascended or descended from lower order animals, or to adopt or use in any such institution a textbook that teaches” this theory. . . .The statute was a product of the upsurge of “fundamentalist” religious fervor of the twenties . . . In the present case, there can be no doubt that Arkansas has sought to prevent its teachers from discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man. No suggestion has been made that Arkansas’ law may be justified by considerations of state policy other than the religious views of some of its citizens. It is clear that fundamentalist sectarian conviction was and is the law’s reason for existence.

Creationists, aided by a more favorable national political climate a decade later, moved to evade the Epperson ruling with the “equal time” laws. The operative provision of this policy was the requirement that where the theory of evolution is taught in the public schools, equal time must be devoted to the teaching of human creation as set forth in the book of Genesis. This so-called creation-science movement was quickly blunted, however, when a federal district court struck down the 1982 Arkansas statute, and the Supreme Court rejected a similar Louisiana law in Edwards v. Aguillard (482 U.S. 578) in 1978.

GOVERNMENT-SPONSORED RELIGIOUS SYMBOLS, TRADITIONS, AND TAX EXEMPTIONS FEATURED CASE

Lynch v. Donnelly CEREMONIAL DEISM

Coins say “In God We Trust.” Legislative sessions are opened with a prayer and legislative chambers often 252

have chaplains. The Pledge of Allegiance contains the words “under God.” Government buildings have the Ten Commandments etched in stone. Why do these things not represent government endorsement of religion? In Marsh v. Chambers (463 U.S. 783, 1983), the Court allowed the Nebraska legislature to begin each session with a prayer. The justification was largely that it was a long historical tradition, and notably, the Lemon test was not applied. Recently, controversy has arisen about the words “under God” in the Pledge of Allegiance. As we noted earlier, these words were not part of the pledge until 1954. President Eisenhower urged their inclusion in an effort to distinguish Americans from “godless communists,” and Congress complied. In a case that was dismissed for lack of standing, Justice O’Connor wrote a concurrence that said some practices could be seen as “ceremonial deism” and were permissible, but should not be seen as government endorsement of religion. She offered four criteria to justify viewing a practice as ceremonial deism: “history or ubiquity,” “absence of worship or prayer,” “absence of reference to a particular religion,” and “minimal religious content.” (Elk Grove Unified School District. v. Newdow, 124 S. Ct. 2301, 2004). Whether or not the Court ultimately picks up on Justice O’Connor’s term or accepts her criteria, it seems unlikely that many of these traditions will be ruled unconstitutional. HOLIDAY DISPLAYS

Not only has religious activity in the public school arena evoked sharp and continuous controversy, the religious symbolism manifested in Christmas displays on public property across the nation has produced controversies that have landed in the Supreme Court, requiring further clarification of its establishment clause jurisprudence. The Court’s first comprehensive statement on the issue came in Lynch v. Donnelly (465 U.S. 668) in 1984. The case involved a city-sponsored Christmas display that included a a nativity scene. It was argued that the city of Pawtucket, Rhode Island, was conveying a sectarian message in aid of Christians. The Court did not consider the nativity scene to be an infringement of the establishment clause. Chief Justice Warren Burger’s opinion for the five-to-four majority considered the crèche within the context of the total display, which included a Christmas tree, reindeer, and other decorative ornaments. He called it merely “passive art” and concluded that the challenged display met the

Freedom of Religion

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

three-pronged Lemon test. Justice William J. Brennan, in a sharp dissent supported by Justices Thurgood Marshall, Harry Blackmun, and John Paul Stevens, considered Pawtucket’s involvement in the production of the display to be an unconstitutional governmental endorsement of the Christian faith; they warned that it was a small, although dangerous, step toward the establishment of majority sectarian preferences. Five years later, in County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter (492 U.S. 573, 1989), the Court appeared to reaffirm the Lynch “cultural context” approach when it held that a crèche and a banner reading “Glory to God in the Highest” could not withstand establishment clause strictures because of the “unmistakably clear” religious message. But Justice Blackmun, who spoke for the five-to-four majority, underscored the secular context requirement in a companion case, City of Pittsburgh v. American Civil Liberties Union Greater Pittsburgh Chapter, involving a challenge to the display of a Chanukah menorah in another public building. Because the menorah stood next to a Christmas tree and a sign saluting liberty, he called the display a “recognition of cultural diversity” that

recognized the “secular status” of the holiday season. Justice Anthony Kennedy’s dissent in the crèche decision not only criticized the majority for its view of the Establishment Clause that “reflects an unjustified hostility towards religion,” but also called for a “substantial revision” of establishment clause law. Two tests would be the core of the doctrinal reformulation: whether anyone was coerced into supporting religion or participating in a religious observance and whether the government program gave direct benefits to religion in such a degree that it in fact established a state religion or religious faith. These several cases once again underscored the growing disagreement among the justices on establishment clause doctrine. The accommodationists have often construed the Lemon test narrowly or called for its reformulation or complete abandonment, supporting instead governmental latitude and flexibility to accommodate a wide range of religious activities. On the other hand, a declining bloc of strict separationist justices call for the continued application of Lemon’s three prongs as essential to enforcing the command of the establishment clause. Finally, efforts at neutrality toward religion seem to compel some of the justices some of the time.

LYNCH V. DONNELLY 465 U.S. 668; 79 L. Ed. 2d 604; 104 S. Ct. 1355 (1984) CHIEF JUSTICE BURGER delivered the opinion of the Court, in which JUSTICES WHITE, POWELL, REHNQUIST, and O’CONNOR joined. JUSTICE O’CONNOR filed a concurring opinion. JUSTICE BRENNAN filed a dissenting opinion, in which JUSTICES MARSHALL, BLACKMUN, and STEVENS joined. JUSTICE BLACKMUN filed a dissenting opinion, in which JUSTICE STEVENS joined. CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted certiorari to decide whether the Establishment Clause of the First Amendment prohibits a municipality from including a crèche, or Nativity scene, in its annual Christmas display.

Each year, in cooperation with the downtown retail merchants’ association, the City of Pawtucket, Rhode Island, erects a Christmas display as part of its observance of the Christmas holiday season. The display is situated in a park owned by a nonprofit organization and located in the heart of the shopping district. The display is essentially like those to be found in hundreds of towns or cities across the Nation—often on public grounds—during the Christmas season. The Pawtucket display comprises many of the figures and decorations traditionally associated with Christmas, including, among other things, a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of The Establishment Clause

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colored lights, a large banner that reads “SEASONS GREETINGS,” and the crèche at issue here. All components of this display are owned by the City. The crèche, which has been included in the display for forty or more years, consists of the traditional figures, including the Infant Jesus, Mary and Joseph, angels, shepherds, kings, and animals, all ranging in height from 5⬙ to 5⬘. In 1973, when the present crèche was acquired, it cost the City $1365; it now is valued at $200. The erection and dismantling of the crèche costs the City about $20 per year; nominal expenses are incurred in lighting the crèche. No money has been expended on its maintenance for the past ten years. Respondents, Pawtucket residents and individual members of the Rhode Island affiliate of the American Civil Liberties Union, and the affiliate itself, brought this action in the United States District Court for Rhode Island, challenging the City’s inclusion of the crèche in the annual display. The District Court held that the City’s inclusion of the crèche in the display violates the Establishment Clause. . . . The . . . Court found that, by including the crèche in the Christmas display, the City has “tried to endorse and promulgate religious beliefs,” 525 F. Supp., at 1173, and that “erection of the crèche has the real and substantial effect of affiliating the City with the Christian beliefs that the crèche represents.” . . . [A]lthough the court acknowledged the absence of administrative entanglement, it found that excessive entanglement has been fostered as a result of the political divisiveness of including the crèche in the celebration. Id., at 1179–1180. The City was permanently enjoined from including the crèche in the display. A divided panel of the Court of Appeals for the First Circuit affirmed. . . . [W]e reverse. ... In every Establishment Clause case, we must reconcile the inescapable tension between the objective of preventing unnecessary intrusion of either the church or the state upon the other, and the reality that, as the Court has so often noted, total separation of the two is not possible. . . . No significant segment of our society and no institution within it can exist in a vacuum or in total or absolute isolation from all the other parts, much less from government. “It has never been thought either 254

possible or desirable to enforce a regime of total separation. . . .” Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973). Nor does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any. . . . There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789. Seldom in our opinions was this more affirmatively expressed than in JUSTICE DOUGLAS’s opinion for the Court validating a program allowing release of public school students from classes to attend off-campus religious exercises. [in Zorach v. Clauson]. . . . [T]he Court asserted pointedly: We are a religious people whose institutions presuppose a Supreme Being. . . .

Our history is replete with official references to the value and invocation of divine guidance in deliberations and pronouncements of the Founding Fathers and contemporary leaders. . . . President Washington and his successors proclaimed Thanksgiving, with all its religious overtones, a day of national celebration and Congress made it a national holiday more than a century ago. . . . That holiday has not lost its theme of expressing thanks for divine aid any more than has Christmas lost its religious significance. Executive Orders and other official announcements of presidents and of the Congress have proclaimed both Christmas and Thanksgiving National Holidays in religious terms. And, by Acts of Congress, it has long been the practice that federal employees are released from duties on these National Holidays, while being paid from the same public revenues that provide the compensation of the Chaplains of the Senate and the House and the military services. . . . Thus, it is clear that Government has long recognized—indeed it has subsidized—holidays with religious significance. . . . . . . In our modern, complex society, whose traditions and constitutional underpinnings rest on and encourage diversity and pluralism in all areas, an absolutist approach in applying the Establishment Clause is simplistic and has been uniformly rejected by the Court. Rather than mechanically invalidating all governmental conduct or statutes that confer benefits or give special recognition to religion in general or to one faith—as an absolutist approach would dictate— the Court has scrutinized and challenged legislation

Freedom of Religion

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

or official conduct to determine whether, in reality, it establishes a religion or religious faith, or tends to do so. . . . Joseph Story wrote a century and a half ago: The real object of the [First] Amendment was . . . to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government. (3 Story, Commentaries on the Constitution of the United States 728, 1883. . . .) In this case, the focus of our inquiry must be on the crèche in the context of the Christmas season. . . . In Stone v. Graham for example, we invalidated a state statute requiring the posting of a copy of the Ten Commandments on public classroom walls. But the Court carefully pointed out that the commandments were posted purely as a religious admonition, not “integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like.” 449 U.S., at 42 (1980). Focus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause. The Court has invalidated legislation or governmental action on the ground that a secular purpose was lacking, but only when it has concluded there was no question that the statute or activity was motivated wholly by religious considerations. . . . Even where the benefits to religion were substantial. . . . The District Court inferred from the religious nature of the crèche that the City has no secular purpose for the display. In so doing, it rejected the City’s claim that its reasons for including the crèche are essentially the same as its reasons for sponsoring the display as a whole. The District Court plainly erred by focusing almost exclusively on the crèche. When viewed in the proper context of the Christmas Holiday season, it is apparent that, on this record, there is insufficient evidence to establish that the inclusion of the crèche is a purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious message. In a pluralistic society a variety of motives and purposes are implicated. The City, like the Congress and presidents, however, has principally taken note of a significant historical religious event long celebrated in the Western World. The crèche in the display depicts the historical origins of this traditional event long recognized as a National Holiday. . . . The narrow question is whether there is a secular purpose for Pawtucket’s display of the crèche. The display is sponsored by the City to celebrate the

Holiday and to depict the origins of that Holiday. These are legitimate secular purposes. The District Court’s inference, drawn from the religious nature of the crèche, that the City has no secular purpose was, on this record, clearly erroneous. The District Court found that the primary effect of including the crèche is to confer a substantial and impermissible benefit on religion in general and on the Christian faith in particular. Comparisons of the relative benefits to religion of different forms of governmental support are elusive and difficult to make. But to conclude that the primary effect of including the crèche is to advance religion in violation of the Establishment Clause would require that we view it as more beneficial to and more an endorsement of religion, for example, than expenditure of large sums of public money for textbooks supplied throughout the country to students attending church-sponsored schools, . . . expenditure of public funds for transportation of students to church-sponsored schools, . . . federal grants for college buildings of church-sponsored institutions of higher education combining secular and religious education, [etc.]. . . . It would also require that we view it as more of an endorsement of religion than the Sunday Closing Laws upheld in McGowan v. Maryland, . . . the releasetime program for religious training in Zorach, . . . and the legislative prayers upheld in Marsh. . . . We are unable to discern a greater aid to religion deriving from inclusion of the crèche than from these benefits and endorsements previously held not violative of the Establishment Clause. What was said about the legislative prayers in Marsh, . . . and implied about the Sunday Closing Laws in McGowan is true of the City’s inclusion of the crèche: its “reason or effect merely happens to coincide or harmonize with the tenets of some . . . religions.” See McGowan, 366 U.S., at 442. . . . The dissent asserts some observers may perceive that the City has aligned itself with the Christian faith by including a Christian symbol in its display and that this serves to advance religion. We can assume arguendo, that the display advances religion in a sense; but our precedents plainly contemplate that on occasion some advancement of religion will result from governmental action. The Court has made it abundantly clear, however, that “not every law that confers an ‘indirect,’ ‘remote,’ or ‘incidental’ benefit upon [religion] is, for that reason alone, constitutionally invalid.” . . . Here, whatever benefit to one faith or religion or to all religions, is indirect, remote and The Establishment Clause

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incidental; display of the crèche is no more an advancement or endorsement of religion than the Congressional and Executive recognition of the origins of the Holiday itself as “Christ’s Mass,” or the exhibition of literally hundreds of religious paintings in governmentally supported museums. The District Court found that there had been no administrative entanglement between religion and state resulting from the City’s ownership and use of the crèche. But it went on to hold that some political divisiveness was engendered by this litigation. Coupled with its finding of an impermissible sectarian purpose and effect, this persuaded the court that there was “excessive entanglement.” The Court of Appeals expressly declined to accept the District Court’s finding that inclusion of the crèche has caused political divisiveness along religious lines, [noting] that this Court has never held that political divisiveness alone was sufficient to invalidate government conduct. Entanglement is a question of kind and degree. In this case, however, there is no reason to disturb the District Court’s finding on the absence of administrative entanglement. There is no evidence of contact with church authorities concerning the content or design of the exhibit prior to or since Pawtucket’s purchase of the crèche. No expenditures for maintenance of the crèche have been necessary; and since the City owns the crèche, now valued at $200, the tangible material it contributes is de minimis. In many respects the display requires far less ongoing, day-to-day interaction between church and state than religious paintings in public galleries. . . . The Court of Appeals correctly observed that this Court has not held that political divisiveness alone can serve to invalidate otherwise permissible conduct. And we decline to so hold today. . . . [A]part from this litigation there is no evidence of political friction or divisiveness over the crèche in the forty-year history of Pawtucket’s Christmas celebration. The District Court stated that the inclusion of the crèche for the forty years has been “marked by no apparent dissension” and that the display has had a “calm history.” 525 F. Supp., at 1179. Curiously, it went on to hold that the political divisiveness engendered by this lawsuit was evidence of excessive entanglement. A litigant cannot, by the very act of commencing a lawsuit, however, create the appearance of divisiveness and then exploit it as evidence of entanglement. We are satisfied that the City has a secular purpose for including the crèche, that the City has not 256

impermissibly advanced religion, and that including the crèche does not create excessive entanglement between religion and government. . . . JUSTICE BRENNAN describes the crèche as a “recreation of an event that lies at the heart of Christian faith,” post, at 1377. The crèche, like a painting, is passive; admittedly it is a reminder of the origins of Christmas. Even the traditional, purely secular displays extant at Christmas, with or without a crèche, would inevitably recall the religious nature of the Holiday. The display engenders a friendly community spirit of good will in keeping with the season. The crèche may well have special meaning to those whose faith includes the celebration of religious masses, but none who sense the origins of the Christmas celebration would fail to be aware of its religious implications. That the display brings people into the central city, and serves commercial interests and benefits merchants and their employees, does not, as the dissent points out, determine the character of the display. That a prayer invoking divine guidance in Congress is preceded and followed by debate and partisan conflict over taxes, budgets, national defense, and myriad mundane subjects, for example, has never been thought to demean or taint the sacredness of the invocation. Of course the crèche is identified with one religious faith but no more so than the examples we have set out from prior cases in which we found no conflict with the Establishment Clause. . . . It would be ironic, however, if the inclusion of a single symbol of a particular historic religious event, as part of a celebration acknowledged in the Western World for 20 centuries, and in this country by the people, by the Executive Branch, by the Congress, and the courts for two centuries, would so “taint” the City’s exhibit as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol—the crèche—at the very time people are taking note of the season with Christmas hymns and carols in public schools and other public places, and while the Congress and legislatures open sessions with prayers by paid chaplains would be a stilted over-reaction contrary to our history and to our holdings. If the presence of the crèche in this display violates the Establishment Clause, a host of other forms of taking official note of Christmas, and of our religious heritage, are equally offensive to the Constitution. . . . We hold that, notwithstanding the religious significance of the crèche, the City of Pawtucket has not violated the Establishment Clause of the First

Freedom of Religion

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Amendment. Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. [The concurring opinion of JUSTICE O’CONNOR is not reprinted here.] JUSTICE BRENNAN, joined by JUSTICES MARSHALL, BLACKMUN, and STEVENS, dissenting: . . . [T]he Court reaches an essentially narrow result which turns largely upon the particular holiday context in which the City of Pawtucket’s nativity scene appeared. The Court’s decision implicitly leaves open questions concerning the constitutionality of the public display on public property of a crèche standing alone, or the public display of other distinctively religious symbols such as a cross. Despite the narrow contours of the Court’s opinion, our precedents in my view compel the holding that Pawtucket’s inclusion of a life-sized display depicting the biblical description of the birth of Christ as part of its annual Christmas celebration is unconstitutional. Nothing in the history of such practices or the setting in which the City’s crèche is presented obscures or diminishes the plain fact that Pawtucket’s action amounts to an impermissible governmental endorsement of a particular faith. Last Term, I expressed the hope that the Court’s decision in Marsh v. Chambers, . . . would prove to be only a single, aberrant departure from our settled method of analyzing Establishment Clause cases. . . . That the Court today returns to the settled analysis of our prior cases gratifies that hope. At the same time, the Court’s less than vigorous application of the Lemon test suggests that its commitment to those standards may only be superficial. After reviewing the Court’s opinion, I am convinced that this case appears hard not because the principles of decision are obscure, but because the Christmas holiday seems so familiar and agreeable. Although the Court’s reluctance to disturb a community’s chosen method of celebrating such an agreeable holiday is understandable, that cannot justify the Court’s departure from controlling precedent. In my view, Pawtucket’s maintenance and display at public expense of a symbol as distinctively sectarian as a crèche simply cannot be squared with our prior cases. And it is plainly contrary to the purposes and values of the Establishment Clause to pretend, as the Court does, that the otherwise secular setting of Pawtucket’s

nativity scene dilutes in some fashion the crèche’s singular religiosity, or that the City’s annual display reflects nothing more than an “acknowledgment” of our shared national heritage. Neither the character of the Christmas holiday itself, nor our heritage of religious expression supports this result. Indeed, our remarkable and precious religious diversity as a nation, . . . which the Establishment Clause seeks to protect, runs directly counter to today’s decision. . . . Applying the three-part [Lemon] test to Pawtucket’s crèche, I am persuaded that the City’s inclusion of the crèche in its Christmas display simply does not reflect a “clearly secular purpose.” . . . Unlike the typical case in which the record reveals some contemporaneous expression of a clear purpose to advance religion . . . here we have no explicit statement of purpose by Pawtucket’s municipal government accompanying its decision to purchase, display and maintain the crèche. Governmental purpose may nevertheless be inferred. . . . In the present case, the City claims that its purposes were exclusively secular. Pawtucket sought, according to this view, only to participate in the celebration of a national holiday and to attract people to the downtown area in order to promote pre-Christmas retail sales and to help engender the spirit of goodwill and neighborliness commonly associated with the Christmas season. . . . . . . [A]ll of Pawtucket’s valid secular objectives can be readily accomplished by other means. Plainly, the City’s interest in celebrating the holiday and in promoting both retail sales and goodwill are fully served by the elaborate display of Santa Claus, reindeer, and wishing wells that are already a part of Pawtucket’s annual Christmas display. More importantly, the nativity scene, unlike every other element of the . . . display, reflects a sectarian exclusivity that the avowed purposes of celebrating the holiday season and promoting retail commerce simply do not encompass. To be found constitutional, Pawtucket’s seasonal celebration must at least be non-denominational and not serve to promote religion. The inclusion of a distinctively religious element like the crèche, however, demonstrates that a narrower sectarian purpose lay behind the decision to include a Nativity scene. That the crèche retained this religious character for the people and municipal government of Pawtucket is suggested by the Mayor’s testimony at trial in which he stated that for him, as well as others in the City, the effort to eliminate the nativity scene from Pawtucket’s Christmas celebration “is a step toward establishing The Establishment Clause

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another religion, non-religion that it may be.” . . . Plainly the City and its leaders understood that the inclusion of the crèche in its display would serve the wholly religious purpose of “keep[ing] ‘Christ in Christmas.’” . . . From this record, therefore, it is impossible to say . . . that a wholly secular goal predominates. The “primary effect” of including a nativity scene in the City’s display is, as the District Court found, to place the government’s imprimatur of approval on the particular religious beliefs exemplified by the crèche. Those who believe in the message of the nativity receive the unique and exclusive benefit of public recognition and approval of their views. For many, the City’s decision to include the crèche as part of its extensive and costly efforts to celebrate Christmas can only mean that the prestige of the government has been conferred on the beliefs associated with the crèche, thereby providing “a significant symbolic benefit to religion. . . .” Larkin v. Grendel’s Den, Inc. . . . Finally, it is evident that Pawtucket’s inclusion of a crèche as part of its annual Christmas display does pose a significant threat of fostering “excessive entanglement.” . . . [T]he District Court found no administrative entanglement in this case, primarily because the City had been able to administer the annual display without extensive consultation with religious officials. . . . Of course, there is no reasons to disturb that finding, but it is worth noting that after today’s decision, administrative entanglements may well develop. Jews and other non-Christian groups, prompted perhaps by the Mayor’s remark that he will include a Menorah in future displays, can be expected to press government for inclusion of their symbols, and faced with such requests, government will have to become involved in accommodating the various demands. . . . More importantly, although no political divisiveness was apparent in Pawtucket prior to the filing of respondents’ lawsuit, that act, . . . unleashed powerful emotional reactions which divided the City along religious lines. . . . Of course, the Court is correct to note that we have never held that the potential for divisiveness alone is sufficient to invalidate a challenged governmental practice; we have, nevertheless, repeatedly emphasized that “too close a proximity” between religious and civil authorities . . . may represent a “warning signal” that the values embodied in the Establishment Clause are at risk. . . . Furthermore, the Court should not blind itself to the fact that because communities 258

differ in religious composition, the controversy over whether local governments may adopt religious symbols will continue to fester. In many communities, non-Christian groups can be expected to combat practices similar to Pawtucket’s; this will be so especially in areas where there are substantial nonChristian minorities. In sum, considering the District Court’s careful findings of fact under the three-part analysis called for by our prior cases, I have no difficulty concluding that Pawtucket’s display of the crèche is unconstitutional. . . . Under our constitutional scheme, the role of safeguarding our “religious heritage” and of promoting religious beliefs is reserved as the exclusive prerogative of our nation’s churches, religious institutions and spiritual leaders. Because the Framers of the Establishment Clause understood that “religion is too personal, too sacred, too holy to permit its ‘unhallowed perversion’ by civil [authorities],” Engel v. Vitale [supra], 370 U.S. at 432, 82 S. Ct., at 1267, the clause demands that government play no role in this effort. The Court today brushes aside these concerns by insisting that Pawtucket has done nothing more than include a “traditional” symbol of Christmas in its celebration of this national holiday, thereby muting the religious content of the crèche. Ante, at 1365. But the City’s action should be recognized for what it is: a coercive, though perhaps small, step toward establishing the sectarian preferences of the majority at the expense of the minority, accomplished by placing public facilities and funds in support of the religious symbolism and theological tidings that the crèche conveys. As JUSTICE FRANKFURTER, writing in McGowan v. Maryland, observed, the Establishment Clause “withdr[aws] from the sphere of legitimate legislative concern and competence a specific, but comprehensive area of human conduct: man’s belief or disbelief in the verity of some transcendental idea and man’s expression in action of that belief or disbelief.” Id., 366 U.S., at 465–466, 81 S. Ct., at 1156–1157 (separate opinion). That the Constitution sets this realm of thought and feeling apart from the pressures and antagonisms of government is one of its supreme achievements. Regrettably, the Court today tarnishes that achievement. I dissent. [The dissenting opinion of JUSTICE BLACKMUN, joined by JUSTICE STEVENS, is not reprinted here.]

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THE TEN COMMANDMENTS

In two opinions issued in the same term, the Court forbade the state of Kentucky from displaying the Ten Commandments in county Courthouse displays (McCreary County Kentucky v. ACLU, 545 U.S. 844, 2005) and it allowed Texas to do so (Van Orden v. Perry, 545 U.S. 677, 2005) on the State Capitol grounds. The court ruled differently because it determined that it was clear that the Kentucky displays were there because of their religious content. The Texas display, which was on a large monument, had been there for over forty years and was surrounded by secular displays and monuments. Actually, only Justice Breyer saw a distinction between the two situations. Four justices— Rehnquist, Scalia, Kennedy, and Thomas—would have allowed them both places. Four other justices— Stevens, O’Connor, Souter, and Ginsburg—would have forbade them at both. In some ways there is a curious outcome when one looks at the cases in this section. The Court’s rulings suggest that religious displays are OK as long as the religion is not taken too seriously or seen as too central. A crèche is OK if there is a reindeer around. Using the word God on coins or in a pledge is OK if it is just historical or ceremonial. It would seem that such a position would offend the religious and fail to assuage the secular. On the other hand, one can only imagine the outcry if the Court were to remove the words “under God” from the Pledge of Allegiance or “In God We Trust” from coins. Those are probably battles that the Court does not wish to take on. For the future, it appears that determinations in these areas will be very fact and context specific and will be hard to reconcile with the broader streams of establishment clause doctrine. TAX EXEMPTIONS

Some people consider the longstanding policy of exempting church property from public taxation to be an unconstitutional aid to religious establishments. But when the Supreme Court made a definitive pronouncement on the issue in Walz v. Tax Commission of City of New York (397 U.S. 664, 1970), it found such a policy to be in furtherance of the state’s neutrality within the meaning of the establishment clause. The goal of tax exemptions was to help nonprofit institutions that the government regarded as important to the community. Chief Justice Warren

Burger made it clear that the tax exemption “is neither the advancement nor the inhibition of religion”; rather, he contended, it is an indirect economic benefit that should be distinguished from the direct subsidy that produces the “excessive governmental entanglement” that the establishment clause prohibits. He also expressed concern about the burden on free exercise that levying a tax on nonprofit institutions would cause. In dissent, Justice William O. Douglas focused on the discrimination issue that was raised in the tax exemption policy. He discussed the nature of governmental subsidies and raised the question of whether religious bodies with their vast real estate holdings and their lucrative annual incomes should be allowed this government largess. The New York law upheld in Walz did not embrace church property used for commercial purposes. However, shortly after Walz was announced, a federal district court in Florida used it as authority to sustain a Florida tax exemption for a church parking lot that was used commercially 6 days a week. Proceeds from the parking lot were used to support the church’s religious activities and charitable projects. In Texas Monthly v. Bullock (489 U.S. 1, 1989), however, the Court held unconstitutional a Texas law that applied only to religious organizations. A strong dissent was issued by Justice Scalia. An interesting controversy over tax exemption policy and its impact on the religious clauses was presented in Bob Jones University v. United States and Goldsboro Christian Schools v. United States (461 U.S. 574, 1983). These church-related educational institutions resisted an Internal Revenue Service ruling denying them tax-exempt status because of their racially discriminatory admissions policies. The schools argued that their policies derived from their religious dogmas and that the tax exemption revocation amounted to a violation of both the free exercise and establishment clauses. But the Court rejected those claims, stating that the government’s interest in eradicating racial discrimination far outweighed any burden on free exercise that was alleged to result from the denial of a tax exemption benefit. The Court dismissed the establishment argument by simply noting that religion is not advanced merely because the tax exemption regulation happens to coincide with the tenets of religions that espouse racial intermixing. Hence the preference argument was without substance. The Establishment Clause

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SELECTED REFERENCES Eisgruber, Christopher L., and Sager, Lawrence. Religious Freedom and the Constitution. Cambridge, MA: Harvard University Press, 2007. Hamburger, Philip. Separation of Church and State. Cambridge, MA: Harvard University Press, 2002. Jefferson, Thomas. Letter to the Danbury Baptist Association, January 1, 1802. In Merrill D. Peterson, ed., Thomas Jefferson: Writings. New York: Library of America, 1994, p. 510.

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Laycock, Douglas. Religious Liberty: Overviews and History, 1. Emory University Studies in Law and Religion. Grand Rapids, MI: W. B. Eerdmans Publishing Company, 2010. Madison, James. “Memorial and Remonstrance against Religious Assessments.” In William T. Hutchinson et al., eds., 20 June 1785: The Papers of James Madison. Chicago and London: University of Chicago Press, 1962, Document 43, pp. 298–304.

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

CHAPTER 7

THE FREE EXERCISE OF RELIGION

FEATURED CASES Sherbert v. Verner; Wisconsin v. Yoder; Department of Human Resources of Oregon v. Smith; Welsh v. United States

A

S WE DISCUSSED IN THE PREVIOUS CHAPTER, MANY

people came to America so that they could practice religion as they wanted or as they felt their God required. From the very beginning, there were religions and religious practices that were disdained by others. By the time of the American Revolution, there was relatively free exercise of religion for Protestants as a matter of law. However, there were social and political limitations for those who practiced other religions. As with free speech, Constitutional protections generally are not needed for speech that is not too far outside the mainstream. Only the speech that it is difficult for society to tolerate requires Constitutional protection. The same is true for religion. It is not surprising that many of the cases brought to the Court involve religion or religious practices that are somewhat outside the mainstream. In the chapters on speech, we had frequent encounters with the Jehovah’s Witnesses. So, too, with religion.

EARLY FREE EXERCISE JURISPRUDENCE The first case involving the Supreme Court and the Free Exercise Clause was brought by a Mormon who claimed that his religion required him to have multiple wives. Polygamy, however, was against the law.

In Reynolds v. United States (98 U.S. 145, 1878), Chief Justice Waite rejected the claim, saying that “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions.” The government cannot punish or compel religious beliefs, but it can regulate actions. It was not until the 1940s, when the Jehovah’s Witnesses turned to the courts to protect their beliefs and practices, that the Court was presented with controversies that prompted it to develop a more extensive Free Exercise Clause jurisprudence. Among the most significant early rulings was Cantwell v. Connecticut (310 U.S. 296, 1940). One reason for its importance is that the Supreme Court uses it to incorporate the religion clauses and make them applicable to the states. Substantively, the Court held that the free exercise clause protects the right to express religious views and solicit funds, free from arbitrary restraints imposed by government permit and licensing requirements. In Cantwell, Jehovah’s Witnesses were convicted for violating requirements to have licenses when soliciting funds. The regulation was seen both as a violation of free exercise and free speech. Interestingly, most of the early free exercise cases involved similar situations. In two cases decided in the 1940s (Murdock v. Pennsylvania, 319 U.S. 105, 1943, and 261

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Follett v. McCormick, 321 U.S. 573, 1944), the Court rejected the imposition of license taxes on the evangelistic activities of Jehovah’s Witnesses and a local preacher. The Court struck down a local ordinance in Murdock that required people engaged in the sale of merchandise of any kind (including religious books and pamphlets) to register and pay an annual license tax. The Court took note of this “age-old form of missionary evangelism” and asserted that such “religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching in the pulpits.” Murdock was extended in the next term to strike down a similar ordinance in Follett, as the Court reaffirmed the observation it had advanced in the former case that “the power to tax the exercise of a privilege is the power to control or suppress its enjoyment.” The classic flag salute cases involved Jehovah’s Witnesses refusing to salute the flag because of their religious convictions. The Court initially rejected the free exercise claim and upheld the compulsory flag salute ceremony of the public schools (Minersville School District v. Gobitis, 310 U.S. 586, 1940). Later, that opinion was overturned in West Virginia State Board of Education v. Barnette (319 U.S. 624, 1943).

THE STATE, RELIGIOUS BELIEFS AND PRACTICES, AND THE FREE EXERCISE CLAUSE FEATURED CASES Sherbert v. Verner; Wisconsin v. Yoder; Department of Human Resources of Oregon v. Smith New controversies that emerged during the Warren Court era and beyond produced Supreme Court rulings which extended its free exercise clause jurisprudence. In an earlier era, it was quite common for businesses to be forced to close on Sundays by law. Obviously, this put people who celebrate the Sabbath on a day other than Sunday at a disadvantage. In two of the four Sunday-closing-law cases decided by the Court in 1961—Braunfeld v. Brown (366 U.S. 617) and Gallagher v. Crown Kosher Super Market (366 U.S. 617)—the Court deferred to the judgment of the legislature of Pennsylvania. It rejected the claim of several Orthodox Jewish merchants that the state law compelling them to close their businesses on Sundays effectively placed them at an economic disadvantage because their businesses were also closed on Saturdays in observance of their Sabbath. Brushing aside the merchants’ argument that this policy 262

amounted to a penalty on them for adherence to their religious tenets, Chief Justice Earl Warren held that, while the operational consequence of the statute was to make their religious beliefs and practices “more expensive,” the alleged economic injury could not be translated into a free exercise claim. When a statute regulates conduct, he argued, the imposition of an indirect burden on the exercise of religion does not necessarily render it unconstitutional. He set the constitutional limits of state regulatory power in this area as follows: [I]f the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State’s secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden. . . .

Justice William J. Brennan’s dissent, supported by Justice Potter Stewart, complained that the law forced those merchants to make what he considered to be an unconstitutional choice between their religion and economic survival. He suggested that the Court needed to adopt a different standard for review of such governmental regulations and argued that the Court should not limit its inquiry of challenged legislation in this area to substantiality and importance of interests, legitimacy of legislative purpose, and rationality. For him, the appropriate test was the one that was set forth in Barnette, in which regulations infringing on the free exercise clause could be constitutionally sustained only to prevent “grave and immediate danger to interests the State may lawfully protect.” This more stringent test advanced in Brennan’s dissent was accepted by a majority just two years later in Sherbert v. Verner (374 U.S. 398, 1963). This case actually effected a sea change in free exercise analysis. The case resulted from a ruling of the South Carolina Unemployment Compensation Commission (sustained by the state supreme court) holding that a member of the Seventh Day Adventist faith was ineligible for unemployment benefits because she was unwilling to accept jobs that required her to work on Saturdays (her day of worship). In a seven-to-two decision, the Court held that the state’s action imposed an unconstitutional burden on the free exercise of religion. Justice Brennan reiterated his opposition to the kind of choice imposed on Mrs. Sherbert by the enforcement of the state statute. In an argument that logically followed from his Braunfeld dissent, Brennan held that in order to sustain state regulation that

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places a burden on the free exercise of religion, there must be evidence of a “compelling state interest in the regulation of a subject within the State’s constitutional power to regulate.” Furthermore, he argued, in addition to showing a “compelling state interest,” the state must demonstrate that “no alternative forms of regulation would combat such abuses without infringing First Amendment rights.” In other words, Justice Brennan established a requirement of strict scrutiny like the standard that is used for content discrimination in speech or racial discrimination under equal protection. In a concurring opinion, Justice Stewart was troubled by the Court’s handling of what he termed the “double-barreled dilemma” presented by the case. First, he thought that the Court’s action sustaining the free exercise claim forced South Carolina to violate the establishment clause. He believed that this case demonstrated the need for the Court to come to grips with “the dilemma posed by the conflict between ‘the establishment and free exercise clauses.’” In addition, he was troubled by the Court’s inconsistency in this area, because he could not accept Brennan’s reasoning that distinguished this case from Braunfeld. In his dissent, Justice John Marshall Harlan was troubled by the apparent disregard of the Braunfeld precedent and the ruling’s “implications for the future.” To him, the burden imposed on Mrs. Sherbert’s free exercise of religion by the state action was too “indirect, remote, and insubstantial” to warrant rejection of the state’s regulatory action. Almost two decades later, the Court reaffirmed its Sherbert position in Thomas v. Review Board

(450 U.S. 707, 1981). There, as in Sherbert, unemployment benefits were at issue. When Thomas’ employment situation was changed, requiring him to work in a job producing armaments, he quit in deference to his religious beliefs as a Jehovah’s Witness. His subsequent application for unemployment compensation was rejected by a state agency, and he sought judicial relief under the free exercise clause. Citing Sherbert, Chief Justice Burger argued that the alleged interests that were being promoted by Indiana in denying Thomas’s claim were not “sufficiently compelling” to justify the resulting burden on the free exercise of religion by enforcing the policy. But in dissent, Justice William Rehnquist expressed his concern about the exacerbation of free exercise–establishment clause tension resulting from the decision and the continuing tendency of the majority to interpret the free exercise clause too broadly. Sherbert was reaffirmed once again in 1987 in Hobbie v. Unemployment Appeals Commission of Florida (480 U.S. 136), in which the Court reiterated that the free exercise of religion is abridged when state policy forces a claimant to choose between abandoning religious beliefs and practices in order to retain employment or adhering to religious precepts and practices and forfeiting compensatory benefits. Of particular significance was the vigorous call of the lone dissenter, Chief Justice Rehnquist, for the reexamination of First Amendment religious liberty jurisprudence as essential to more consistent rulings in this area. As seen in the following cases, the conflict expanded beyond employment issues.

SHERBERT V. VERNER 374 U.S. 398; 10 L. Ed. 2d 965; 83 S. Ct. 1790 (1963) JUSTICE BRENNAN delivered the opinion of the Court, in which CHIEF JUSTICE WARREN and JUSTICES BLACK, DOUGLAS, CLARK, and GOLDBERG joined. JUSTICE DOUGLAS filed a concurring opinion. JUSTICE STEWART filed an opinion concurring in the result. JUSTICE HARLAN filed a dissenting opinion, in which JUSTICE WHITE joined. JUSTICE BRENNAN delivered the opinion of the Court.

Appellant, a member of the Seventh-day Adventist Church, was discharged by her South Carolina employer because she would not work on Saturday, the Sabbath Day of her faith. When she was unable to obtain other employment because from conscientious scruples she would not take Saturday work, she filed a claim for unemployment compensation benefits under the South Carolina The Free Exercise of Religion

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Unemployment Compensation Act. That law provides that, to be eligible for benefits, a claimant must be “able to work and . . . available for work”; and, further, that a claimant is ineligible for benefits “if . . . he has failed, without good cause . . . to accept available suitable work when offered him by the employment office or the employer. . . .” The appellee Employment Security Commission, in administrative proceedings under the statute, found that appellant’s restriction upon her availability for Saturday work brought her within the provision disqualifying for benefits insured workers who fail, without good cause, to accept “suitable work when offered . . . by the employment office or the employer. . . .” The Commission’s finding was sustained by the Court of Common Pleas for Spartanburg County. That court’s judgment was in turn affirmed by the South Carolina Supreme Court, which rejected appellant’s contention that, as applied to her, the disqualifying provisions of the South Carolina statute abridged her right to the free exercise of her religion secured under the Free Exercise Clause of the First Amendment through the Fourteenth Amendment. . . . We turn first to the question whether the disqualification for benefits imposes any burden on the free exercise of appellant’s religion. We think it is clear that it does. In a sense the consequences of such a disqualification to religious principles and practices may be only an indirect result of welfare legislation within the State’s general competence to enact; it is true that no criminal sanctions directly compel appellant to work a six-day week. But this is only the beginning, not the end, of our inquiry. For “if the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect.” Braunfeld v. Brown (366 U.S. 607). Here not only is it apparent that appellant’s declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forego that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship. Nor may the South Carolina court’s construction of the statute be saved from constitutional infirmity 264

on the ground that unemployment compensation benefits are not appellant’s “right” but merely a “privilege.” It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege. . . . In Speiser v. Randall (357 U.S. 513), we emphasized that conditions upon public benefits cannot be sustained if they so operate, whatever their purpose, as to inhibit or deter the exercise of First Amendment freedoms. We there struck down a condition which limited the availability of a tax exemption to those members of the exempted class who affirmed their loyalty to the state government granting the exemption. While the State was surely under no obligation to afford such an exemption, we held that the imposition of such a condition upon even a gratuitous benefit inevitably deterred or discouraged the exercise of First Amendment rights of expression and thereby threatened to “produce a result which the State could not command directly.” “To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech.” Likewise, to condition the availability of benefits upon this appellant’s willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties. Significantly South Carolina expressly saves the Sunday worshipper from having to make the kind of choice which we here hold infringes the Sabbatarian’s religious liberty. When in times of “national emergency” the textile plants are authorized by the State Commissioner of Labor to operate on Sunday, “no employee shall be required to work on Sunday . . . who is conscientiously opposed to Sunday work; and if any employee should refuse to work on Sunday on account of conscientious . . . objections he or she shall not jeopardize his or her seniority by such refusal or be discriminated against in any other manner.” S.C. Code, § 64–4. No question of the disqualification of a Sunday worshipper for benefits is likely to arise, since we cannot suppose that an employer will discharge him in violation of this statute. The unconstitutionality of the disqualification of the Sabbatarian is thus compounded by the religious discrimination which South Carolina’s general statutory scheme necessarily effects. We must next consider whether some compelling state interest enforced in the eligibility provisions of the South Carolina statute justifies the substantial infringement of appellant’s First Amendment right. It is basic that no showing merely of a rational relationship

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to some colorable state interest would suffice; in this highly sensitive constitutional area, “only the gravest abuses, endangering paramount interests, give occasion for permissible limitation,” Thomas v. Collins (323 U.S. 516, 530). No such abuse or danger has been advanced in the present case. The appellees suggest no more than a possibility that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work might not only dilute the unemployment compensation fund but also hinder the scheduling by employers of necessary Saturday work. But that possibility is not apposite here because no such objection appears to have been made before the South Carolina Supreme Court, and we are unwilling to assess the importance of an asserted state interest without the views of the state court. Nor, if the contention had been made below, would the record appear to sustain it; there is no proof whatever to warrant such fears of malingering or deceit as those which the respondents now advance. For even if the possibility of spurious claims did threaten to dilute the fund and disrupt the scheduling of work, it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights. . . . In these respects, then, the state interest asserted in the present case is wholly dissimilar to the interests which were found to justify the less direct burden upon religious practices in Braunfeld v. Brown. The Court recognized that the Sunday closing law which that decision sustained undoubtedly served “to make the practice of [the Orthodox Jewish merchants’] . . . religious beliefs more expensive,” 366 U.S., at 605. But the statute was nevertheless saved by a countervailing factor which finds no equivalent in the instant case—a strong state interest in providing one uniform day of rest for all workers. That secular objective could be achieved, the Court found, only by declaring Sunday to be that day of rest. Requiring exemptions for Sabbatarians, while theoretically possible, appeared to present an administrative problem of such magnitude, or to afford the exempted class so great a competitive advantage, that such a requirement would have rendered the entire statutory scheme unworkable. In the present case no such justifications underlie the determination of the state court that appellant’s religion makes her ineligible to receive benefits. In holding as we do, plainly we are not fostering the “establishment” of the Seventh-day Adventist

religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall. . . . Nor does the recognition of the appellant’s right to unemployment benefits under the state statute serve to abridge any other person’s religious liberties. Nor do we, by our decision today, declare the existence of a constitutional right to unemployment benefits on the part of all persons whose religious convictions are the cause of their unemployment. Finally, nothing we say today constrains the States to adopt any particular form or scheme of unemployment compensation. Our holding today is only that South Carolina may not constitutionally apply the eligibility provisions so as to constrain a worker to abandon his religious convictions respecting the day of rest. This holding but reaffirms a principle that we announced a decade and a half ago, namely that no State may “exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.”. . . In view of the result we have reached under the First and Fourteenth Amendments’ guarantee of free exercise of religion, we have no occasion to consider appellant’s claim that the denial of benefits also deprived her of the equal protection of the laws in violation of the Fourteenth Amendment. The judgment of the South Carolina Supreme Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. [The concurring opinions of JUSTICES DOUGLAS and STEWART are not reprinted here.] JUSTICE HARLAN, joined by JUSTICE WHITE, dissenting: Today’s decision is disturbing both in its rejection of existing precedent and in its implications for the future. The significance of the decision can best be understood after an examination of the state law applied in this case. South Carolina’s Unemployment Compensation Law was enacted in 1936 in response to the grave The Free Exercise of Religion

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social and economic problems that arose during the depression of that period. As stated in the statute itself: Economic insecurity due to unemployment is a serious menace to health, morals and welfare of the people of this State; involuntary unemployment is therefore a subject of general interest and concern . . . ; the achievement of social security requires protection against this greatest hazard of our economic life; this can be provided by encouraging the employers to provide more stable employment and by the systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance.” § 68–38. (Emphasis added.) Thus the purpose of the legislature was to tide people over, and to avoid social and economic chaos, during periods when work was unavailable. But at the same time there was clearly no intent to provide relief for those who for purely personal reasons were or became unavailable for work. In accordance with this design, the legislature provided, in § 68–113, that “an unemployed insured worker shall be eligible to receive benefits with respect to any week only if the Commission finds that . . . he is able to work and is available for work. . . . (Emphasis added.)

The South Carolina Supreme Court has uniformly applied this law in conformity with its clearly expressed purpose. It has consistently held that one is not “available for work” if his unemployment has resulted not from the inability of industry to provide a job but rather from personal circumstances, no matter how compelling. . . . In the present case all that the state court has done is to apply these accepted principles. Since virtually all of the mills in the Spartanburg area were operating on a six-day week, the appellant was “unavailable for work,” and thus ineligible for benefits, when personal considerations prevented her from accepting employment on a full-time basis in the industry and locality in which she had worked. The fact that these personal considerations sprang from her religious convictions was wholly without relevance to the state court’s application of the law. Thus in no proper sense can it be said that the State discriminated against the appellant on the basis of her religious beliefs or that she was denied benefits because she was a Seventh-day Adventist. She was denied benefits just as any other claimant would be denied benefits who was not “available for work” for personal reasons. With this background, this Court’s decision comes into clearer focus. What the Court is holding 266

is that if the State chooses to condition unemployment compensation on the applicant’s availability for work, it is constitutionally compelled to carve out an exception—and to provide benefits—for those whose unavailability is due to their religious convictions. Such a holding has particular significance in two respects. First, despite the Court’s protestations to the contrary, the decision necessarily overrules Braunfeld v. Brown . . . which held that it did not offend the “Free Exercise” Clause of the Constitution for a State to forbid a Sabbatarian to do business on Sunday. The secular purpose of the statute before us today is even clearer than that involved in Braunfeld. And just as in Braunfeld—where exceptions to the Sunday closing laws for Sabbatarians would have been inconsistent with the purpose to achieve a uniform day of rest and would have required case-by-case inquiry into religious beliefs—so here, an exception to the rules of eligibility based on religious convictions would necessitate judicial examination of those convictions and would be at odds with the limited purpose of the statute to smooth out the economy during periods of industrial instability. . . . Second, the implications of the present decision are far more troublesome than its apparently narrow dimensions would indicate at first glance. The meaning of today’s holding, as already noted, is that the State must furnish unemployment benefits to one who is unavailable for work if the unavailability stems from the exercise of religious convictions. The State, in other words, must single out for financial assistance those whose behavior is religiously motivated, even though it denies such assistance to others whose identical behavior (in this case, inability to work on Saturdays) is not religiously motivated. It has been suggested that such singling out of religious conduct for special treatment may violate the constitutional limitations on state action. See Kurland, Of Church and State and The Supreme Court, 29 U. of Chi. L. Rev. 1. . . . My own view, however, is that at least under the circumstances of this case it would be a permissible accommodation of religion for the State, if it chose to do so, to create an exception to its eligibility requirements for persons like the appellant. The constitutional obligation of “neutrality” . . . is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation. There are too many instances in which no such course can be charted, too many areas in which the pervasive activities of the State

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justify some special provision for religion to prevent it from being submerged by an all-embracing secularism. . . . [T]here is, I believe, enough flexibility in the Constitution to permit a legislative judgment accommodating an unemployment compensation law to the exercise of religious beliefs such as appellant’s. For very much the same reasons, however, I cannot subscribe to the conclusion that the State is constitutionally compelled to carve out an exception to its general rule of eligibility in the present case. Those situations in which the Constitution may require special treatment on account of religion are, in my view, few and far between, and this view is amply supported by the course of constitutional litigation in this area. . . . For these reasons I respectfully dissent from the opinion and judgment of the Court. The rule emerging from Sherbert was that it is constitutionally permissible for the government to remove impediments to Sabbath observances to ensure that free exercise of religion is guaranteed, This rule undergirded a congressional amendment to Title VII of the 1964 Civil Rights Act in 1972 that provided statutory protection for the Sabbatarian worker which was not available to Mrs. Sherbert. Before the amendment, the title simply made it unlawful to discriminate against employees in hiring, compensation, terms of employment, and so forth because of religion. Pursuant to that statutory proscription, the Equal Employment Opportunity Commission promulgated in 1967 a regulation that obligated an employer to make reasonable accommodations to the religious needs of employees when such accommodations could be made without undue hardship on the conduct of the employer’s business (emphasis added). Thereafter, Congress included similar language in the 1972 amendments to Title VII of the Act. Most of the litigation emanating from the provision has focused on whether employers had met their obligations under the reasonable accommodations requirement. In a number of lower court cases, for example, employers were found to have offered arrangements to reasonably accommodate the religious needs of employees (usually Sabbatarians seeking work schedule adjustments to free them from work on their Sabbath, Saturday) despite the demands of uncooperative employees. However, some other courts found that the options offered by the employer did not constitute the required reasonable accommodation of employee religious

needs. In Cummins v. Parker Seal Co. (516 F.2d 544, 1975), for example, the employer attempted to show that accommodation of a Sabbatarian employee’s religious needs would cause general discontent among the other employees. This claim was rejected. Only a showing that such discontent would produce chaotic personnel problems constitutes “undue hardship.” The Supreme Court’s leading statement on the issue came in its review of Trans World Airlines, Inc. v. Hardison (432 U.S. 63, 1977). In that case, it reversed a court of appeals ruling that had rejected the airline’s offer of accommodation as inadequate. The Court noted that in order to accommodate the claimant’s religious needs, the airline would have to abrogate its neutral system of seniority, and Title VII does not require such action to accommodate religious needs. It has been suggested and has been held by a few lower courts that the reasonable accommodations requirement is an unconstitutional aid to religion. Other lower federal tribunals have rejected such a claim, and the Supreme Court apparently agreed with that position when it affirmed, without opinion, the Sixth Circuit’s Cummins ruling in 1976. But while Trans World Airlines raised the establishment issue in its certiorari petition in the Hardison case, Justice Byron White saw no need to consider it, as he noted that the conflict could be resolved on nonconstitutional grounds. A related clash of state and religious interests, although not one that involves Sabbatarians, was presented to the Court in Wisconsin v. Yoder (406 U.S. 205, 1972). The Old Order Amish religious group resisted the state’s compulsory school attendance policy as it applied to their children beyond the eighth grade. The Amish argued that not only was formal education unnecessary for the simple agrarian life to which they were committed, but compelling their children to attend high school would expose them to cultural influences that threatened to undermine their religious beliefs and practices. Recognizing some responsibility for the educational needs of their children, the Amish had sought unsuccessfully to meet the state requirements by setting up a program that was based on the Pennsylvania model of community-controlled vocational training. Under this plan, the children would be required to attend an Amish vocational school for three hours per week, where they would The Free Exercise of Religion

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be given instruction by an Amish teacher in English, mathematics, health, and social studies. The remainder of the week would be devoted to performance of farm and household duties under parental supervision. A unanimous Court (Justice

William O. Douglas dissenting only in part), with Justice Burger applying the “compelling state interest—no alternative means” test, held that the enforcement of the law against the Amish abridged their free exercise of religion.

WISCONSIN V. YODER 406 U.S. 205; 32 L. Ed. 2d 15; 92 S. Ct. 1526 (1972) CHIEF JUSTICE BURGER delivered the opinion of the Court, in which JUSTICES BRENNAN, STEWART, WHITE, MARSHALL, and BLACKMUN joined. JUSTICE STEWART filed a concurring opinion, in which JUSTICE BRENNAN joined. JUSTICE WHITE filed a concurring opinion, in which JUSTICES BRENNAN and STEWART joined. JUSTICE DOUGLAS filed an opinion dissenting in part. JUSTICES POWELL and REHNQUIST took no part in the consideration and decision of the case. CHIEF JUSTICE BURGER delivered the opinion of the Court. . . . [W]e granted the writ in this case to review a decision of the Wisconsin Supreme Court holding that respondents’ convictions for violating the State’s compulsory school attendance law were invalid under the Free Exercise Clause of the First Amendment to the United States Constitution made applicable to the States by the Fourteenth Amendment . . . [and] we affirm the judgment of the Supreme Court of Wisconsin. Respondents Jonas Yoder and Adin Yutzy are members of the Old Order Amish Religion, and respondent Wallace Miller is a member of the Conservative Amish Mennonite Church. They and their families are residents of Green County, Wisconsin. Wisconsin’s compulsory school attendance law required them to cause their children to attend public or private school until reaching age 16 but the respondents declined to send their children, ages 14 and 15, to public school after completing the eighth grade. The children were not enrolled in any private school, or within any recognized exception to the compulsory attendance law, and they are conceded to be subject to the Wisconsin statute. 268

. . . [R]espondents were charged, tried and convicted of violating the compulsory attendance law in Green County Court and were fined the sum of $5 each. . . . The trial testimony showed that respondents believed, in accordance with the tenets of Old Order Amish communities generally, that their children’s attendance at high school, public or private, was contrary to the Amish religion and way of life. They believed that by sending their children to high school, they would not only expose themselves to the danger of the censure of the church community, but, as found by the county court, endanger their own salvation and that of their children. . . . Amish . . . object to the high school and higher education generally because the values it teaches are in marked variance with Amish values and the Amish way of life; they view secondary school education as an impermissible exposure of their children to a “worldly” influence in conflict with their beliefs. The high school tends to emphasize intellectual and scientific accomplishments, selfdistinction, competitiveness, worldly success, and social life with other students. Amish society emphasizes informal learning-through-doing, a life of “goodness,” rather than a life of intellect, wisdom, rather than technical knowledge, community welfare rather than competition, and separation rather than integration with contemporary worldly society. Formal high school education beyond the eighth grade is contrary to Amish beliefs . . . because it takes [the children] away from their community, physically and emotionally, during the crucial and formative adolescent period of life. During this period, the children must acquire Amish attitudes favoring manual work and self-reliance and the specific skills needed to perform the adult role of an

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Amish farmer or housewife. They must learn to enjoy physical labor. . . . The Amish do not object to elementary education through the first eight grades as a general proposition because they agree that their children must have basic skills in the “three R’s” in order to read the Bible, to be good farmers and citizens and to be able to deal with non-Amish people when necessary in the course of daily affairs. . . . . . . The Wisconsin Circuit Court affirmed the convictions. The Wisconsin Supreme Court, however, sustained respondents’ claim under the Free Exercise Clause of the First Amendment and reversed the convictions. . . . . . . [As] Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925) . . . suggests, the values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society. . . . Thus, a State’s interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on other fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment and the traditional interest of parents with respect to the religious upbringing of their children. . . . It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause. . . . The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. We can accept it as settled, therefore, that however strong the State’s interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests. . . . We come then to the quality of the claims of the respondents concerning the alleged encroachment of Wisconsin’s compulsory school attendance statute on their rights and the rights of their children to the free exercise of the religious beliefs they and their forebears have adhered to for almost three centuries. In evaluating those claims we must be careful to determine whether the Amish religious faith and their

mode of life are . . . inseparable and interdependent. A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief. . . . Giving no weight to such secular considerations, however, we see that the record in this case abundantly supports the claim that the traditional way of life of the Amish is not merely a matter of personal preference, but one of deep religious conviction, shared by an organized group, and intimately related to daily living. That the Old Order Amish daily life and religious practice stems from their faith is shown by the fact that it is in response to their literal interpretation of the Biblical injunction from the Epistle of Paul to the Romans, “Be not conformed to this world. . . .” This command is fundamental to the Amish faith. Moreover, for the Old Order Amish, religion is not simply a matter of theocratic belief. As the expert witnesses explained, the Old Order Amish religion pervades and determines virtually their entire way of life. . . . The record shows that the respondents’ religious beliefs and attitude toward life, family, and home have remained constant—perhaps some would say static—in a period of unparalleled progress in human knowledge generally and great changes in education. The respondents freely concede, and indeed assert as an article of faith, that their religious beliefs and what we would today call “life style” has not altered in fundamentals for centuries. Their way of life in a church-oriented community, separated from the outside world and “worldly” influences, their attachment to nature and the soil, is a way inherently simple and uncomplicated, albeit difficult to preserve against the pressure to conform. Their rejection of telephones, automobiles, radios, and television, their mode of dress, of speech, their habits of manual work do indeed set them apart from much of contemporary society. . . . . . . The Amish mode of life has . . . come into conflict increasingly with requirements of contemporary society exerting a hydraulic insistence on conformity to majoritarian standards. So long as compulsory education laws were confined to eight grades of elementary basic education imparted in a nearby rural schoolhouse, with a large proportion of students of the Amish faith, the Old Order Amish had little basis to fear that school attendance would The Free Exercise of Religion

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expose their children to the worldly influence they reject. But modern compulsory secondary education in rural areas is now largely carried on in a consolidated school, often remote from the student’s home and alien to his daily home life. As the record so strongly shows, the values and programs of the modern secondary school are in sharp conflict with the fundamental mode of life mandated by the Amish religion. . . . The conclusion is inescapable that secondary schooling, by exposing Amish children to worldly influences in terms of attitudes, goals and values contrary to beliefs, and by substantially interfering with the religious development of the Amish child and his integration into the way of life of the Amish faith community at the crucial adolescent state of development, contravenes the basic religious tenets and practices of the Amish faith, both as to the parent and the child. The impact of the compulsory attendance law on respondents’ practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs. . . . Nor is the impact of the compulsory attendance law confined to grave interference with important Amish religious tenets from a subjective point of view. It carries with it precisely the kind of objective danger to the free exercise of religion which the First Amendment was designed to prevent. As the record shows, compulsory school attendance to age 16 for Amish children carries with it a very real threat of undermining the Amish community and religious practice as it exists today; they must either abandon belief and be assimilated into society at large, or be forced to migrate to some other and more tolerant region. . . . ... Wisconsin concedes that under the Religion Clauses religious beliefs are absolutely free from the State’s control, but it argues that “actions,” even though religiously grounded, are outside the protection of the First Amendment. But our decisions have rejected the idea that religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its 270

delegated powers. . . . But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control. . . . We turn, then to the State’s . . . contention that its interest in its system of compulsory education is so compelling that even the established religious practices of the Amish must give way. . . . The State advances two primary arguments in support of its system of compulsory education. It notes, as Thomas Jefferson pointed out early in our history, that some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence. Further, education prepared individuals to be self-reliant and self-sufficient participants in society. We accept these propositions. However, the evidence adduced by the Amish in this case is persuasively to the effect that an additional one or two years of formal high school for Amish children in place of their long established program of informal vocational education would do little to serve those interests. Respondents’ experts testified at trial, without challenge, that the value of all education must be assessed in terms of its capacity to prepare the child for life. It is one thing to say that compulsory education for a year or two beyond the eighth grade may be necessary when its goal is the preparation of the child for life in modern society as the majority live, but it is quite another if the goal of education be viewed as the preparation of the child for life in the separated agrarian community that is the keystone of the Amish faith. . . . The State attacks respondents’ position as one fostering “ignorance” from which the child must be protected by the State. No one can question the State’s duty to protect children from ignorance but this argument does not square with the facts disclosed in the record. Whatever their idiosyncrasies as seen by the majority, this record strongly shows that the Amish community has been a highly successful social unit within our society even if apart from the conventional “mainstream.” Its members are productive and very law-abiding members of society; they reject public welfare in any of its usual modern forms. . . . It is neither fair nor correct to suggest that the Amish are opposed to education beyond the eighth

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grade level. What this record shows is that they are opposed to conventional formal education of the type provided by a certified high school because it comes at the child’s crucial adolescent period of religious development. . . . We must not forget that in the Middle Ages important values of the civilization of the western world were preserved by members of religious orders who isolated themselves from all worldly influences against great obstacles. There can be no assumption that today’s majority is “right” and the Amish and others like them are “wrong.” A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different. The State, however, supports its interest in providing an additional one or two years of compulsory high school education to Amish children because of the possibility that some such children will choose to leave the Amish community, and that if this occurs they will be ill-equipped for life. The State argues that if Amish children leave their church they should not be in the position of making their way in the world without the education available in the one or two additional years the State requires. However, on this record, that argument is highly speculative. There is no specific evidence of the loss of Amish adherents by attrition, nor is there any showing that upon leaving the Amish community Amish children, with their practical agricultural training and habits of industry and self-reliance, would become burdens on society because of educational shortcomings. Indeed, this argument of the State appears to rest primarily on the State’s mistaken assumption, already noted, that the Amish do not provide any education for their children beyond the eighth grade, but allow them to grow in “ignorance.” To the contrary, not only do the Amish accept the necessity for formal schooling through the eighth grade level, but continue to provide what has been characterized by the undisputed testimony of expert educators as an “ideal” vocational education for their children in the adolescent years. . . . Insofar as the State’s claim rests on the view that a brief additional period of formal education is imperative to enable the Amish to participate effectively and intelligently in our democratic process, it must fail. The Amish alternative to formal secondary school education has enabled them to function effectively in their day-to-day life under self-imposed limitations on relations with the world, and to

survive and prosper in contemporary society as a separate, sharply identifiable and highly self-sufficient community for more than 200 years in this country. In itself this is strong evidence that they are capable of fulfilling the social and political responsibilities of citizenship without compelled attendance beyond the eighth grade at the price of jeopardizing their free exercise of religious belief. . . . . . . The independence and successful social functioning of the Amish community for a period approaching almost three centuries and more than 200 years in this country is strong evidence that there is at best a speculative gain, in terms of meeting the duties of citizenship, from an additional one or two years of compulsory formal education. Against this background it would require a more particularized showing from the State on this point to justify the severe interference with religious freedom such additional compulsory attendance would entail. We should also note that compulsory education and child labor laws find their historical origin in common humanitarian instincts, and that the age limits of both laws have been coordinated to achieve their related objectives. In the context of this case, such considerations, if anything, support rather than detract from respondents’ position. . . . The requirement of compulsory schooling to age 16 must therefore be viewed as aimed not merely at providing educational opportunities for children, but as an alternative to the equally undesirable consequence of unhealthful child labor displacing adult workers, or, on the other hand, forced idleness. The two kinds of statutes—compulsory school attendance and child labor laws—tend to keep children of certain ages off the labor market and in school; this in turn provides opportunity to prepare for a livelihood of a higher order than that children could perform without education and protects their health in adolescence. In these terms, Wisconsin’s interest in compelling the school attendance of Amish children to age 16 emerges as somewhat less substantial than requiring such attendance for children generally. For, while agricultural employment is not totally outside the legitimate concerns of the child labor laws, employment of children under parental guidance and on the family farm from age 14 to 16 is an ancient tradition which lies at the periphery of the objectives of such laws. There is no intimation that the Amish employment of their children on family farms is in any way deleterious to their health or that Amish parents The Free Exercise of Religion

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exploit children at tender years. Any such inference would be contrary to the record before us. Moreover, employment of Amish children on the family farm does not present the undesirable economic aspects of eliminating jobs which might otherwise be held by adults. Finally, the State, on authority of Prince v. Massachusetts, argues that a decision exempting Amish children from the State’s requirement fails to recognize the substantive right of the Amish child to a secondary education, and fails to give due regard to the power of the state as parens patrias to extend the benefit of secondary education to children regardless of the wishes of their parents. Taken at its broadest sweep, the Court’s language in Prince might be read to give support to the State’s position. However, the Court was not confronted in Prince with a situation comparable to that of the Amish as revealed in this record. . . . This case, of course, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred. The record is to the contrary, and any reliance on that theory would find no support in the evidence. Contrary to the suggestion of the dissenting opinion of JUSTICE DOUGLAS, our holding today in no degree depends on the assertion of the religious interest of the child as contrasted with that of the parents. It is the parents who are subject to prosecution here for failing to cause their children to attend school, and it is their right of free exercise, not that of their children, that must determine Wisconsin’s power to impose criminal penalties on the parent. The dissent argues that a child who expresses a desire to attend public high school in conflict with the wishes of his parents should not be prevented from doing so. There is no reason for the Court to consider that point since it is not an issue in the case. The children are not parties to this litigation. The State has at no point tried this case on the theory that respondents were preventing their children from attending school against their expressed desires, and indeed the record is to the contrary. The State’s position from the outset has been that it is empowered to apply its compulsory attendance law to Amish parents in the same manner as to other parents—that is, without regard to the wishes of the child. That is the claim we reject today. Our holding in no way determines the proper resolution of possible competing interests of parents, children, and the State in an appropriate state court 272

proceeding in which the power of the State is asserted on the theory that Amish parents are preventing their minor children from attending high school despite their expressed desires to the contrary. Recognition of the claim of the State in such a proceeding would, of course, call into question traditional concepts of parental control over the religious upbringing and education of their minor children recognized in this Court’s past decisions. It is clear that such an intrusion by a State into family decisions in the area of religious training would give rise to grave questions of religious freedom comparable to those raised here and those presented in Pierce v. Society of Sisters. On this record we neither reach nor decide those issues. The State’s argument proceeds without reliance on any actual conflict between the wishes of parents and children. It appears to rest on the potential that exemption of Amish parents from the requirements of the compulsory education law might allow some parents to act contrary to the best interests of their children by foreclosing their opportunity to make an intelligent choice between the Amish way of life and that of the outside world. The same argument could, of course, be made with respect to all church schools short of college. There is nothing in the record or in the ordinary course of human experience to suggest that non-Amish parents generally consult with children up to ages 14–16 if they are placed in a church school of the parents’ faith. Indeed it seems clear that if the State is empowered, as parens patriae, to “save” a child from himself or his Amish parents by requiring an additional two years of compulsory formal high school education, the State will in large measure influence, if not determine, the religious future of the child. Even more markedly than in Prince, therefore, this case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children. The history and culture of western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition. . . . For the reasons stated we hold, with the Supreme Court of Wisconsin, that the First and Fourteenth Amendments prevent the State from compelling respondents to cause their children to attend formal high school to age sixteen. . . .

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Nothing we hold is intended to undermine the general applicability of the State’s compulsory school attendance statutes or to limit the power of the State to promulgate reasonable standards that, while not impairing the free exercise of religion, provide for continuing agricultural vocational education under parental and church guidance by the Old Order Amish or others similarly situated. The States have had a long history of amicable and effective relationships with church-sponsored schools, and there is no basis for assuming that, in this related context, reasonable standards cannot be established concerning the content of the continuing vocational education of Amish children under parental guidance, provided always that state regulations are not inconsistent with what we have said in this opinion. Affirmed. [The concurring opinion of JUSTICE WHITE, joined by JUSTICES BRENNAN and STEWART, is not reprinted here.] JUSTICE DOUGLAS, dissenting in part: I agree with the Court that the religious scruples of the Amish are opposed to the education of their children beyond the grade schools, yet I disagree with the Court’s conclusion that the matter is within the dispensation of parents alone. The Court’s analysis assumes that the only interests at stake in the case are those of the Amish parents on the one hand, and those of the State on the other. The difficulty with this approach is that, despite the Court’s claim, the parents are seeking to vindicate not only their own free exercise claims, but also those of their highschool age children. It is argued that the right of the Amish children to religious freedom is not presented by the facts of the case, as the issue before the Court involves only the Amish parents’ religious freedom to defy a state criminal statute imposing upon them an affirmative duty to cause their children to attend high school. First, respondents’ motion to dismiss in the trial court expressly asserts, not only the religious liberty of the adults, but also that of the children, as a defense to the prosecutions. It is, of course, beyond question that the parents have standing as defendants in a criminal prosecution to assert the religious interests of their children as a defense. Although the lower courts and the majority in this Court assume an identity of interest between parent and child, it is clear that they have treated the religious interest of the child as a factor in the analysis.

Second, it is essential to reach the question to decide the case not only because the question was squarely raised in the motion to dismiss, but also because no analysis of religious liberty claims can take place in a vacuum. If the parents in this case are allowed a religious exemption, the inevitable effect is to impose the parents’ notions of religious duty upon their children. Where the child is mature enough to express potentially conflicting desires, it would be an invasion of the child’s rights to permit such an imposition without canvassing his views. As in Prince, it is an imposition resulting from this very litigation. As the child has no other effective forum, it is in this litigation that his rights should be considered. And, if an Amish child desires to attend high school, and is mature enough to have that desire respected, the State may well be able to override the parents’ religiously motivated objections. Religion is an individual experience. It is not necessary, not even appropriate, for every Amish child to express his views on the subject in a prosecution of a single adult. Crucial, however, are the views of the child whose parent is the subject of the suit. Freida Yoder has in fact testified that her own religious views are opposed to high school education. I therefore join the judgment of the Court as to respondent Jonas Yoder. But Freida Yoder’s views may not be those of Vernon Yutzy or Barbara Miller. I must dissent, therefore, as to respondents Adin Yutzy and Wallace Miller as their motion to dismiss also raised the question of their children’s religious liberty. . . . On this important and vital matter of education, I think the children should be entitled to be heard. While the parents, absent dissent, normally speak for the entire family, the education of the child is a matter on which the child will often have decided views. He may want to be a pianist or an astronaut or an oceanographer. To do so he will have to break from the Amish tradition. It is the future of the student, not the future of the parents, that is imperiled in today’s decision. If a parent keeps his child out of school beyond the grade school, then the child will be forever barred from entry into the new and amazing world of diversity that we have today. The child may decide that that is the preferred course, or he may rebel. It is the student’s judgment, not his parent’s, that is essential if we are to give full meaning to what we have said about the Bill of Rights and of the right of students to be masters of their own destiny. If he is harnessed to The Free Exercise of Religion

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the Amish way of life by those in authority over him and if his education is truncated, his entire life may be stunted and deformed. The child, therefore, should be given an opportunity to be heard before the State gives the exemption which we honor today. . . . Critics have often wondered whether the outcome would have been the same if the religion and its adherents had been more threatening than the Amish. The attempt of the Amish to extend the free exercise shield to resist payment of the employer’s share of the tax liability under FICA and FUTA was not accepted by the Court in United States v. Lee (455 U.S. 252, 1982). The Court did acknowledge the sincerity of the religious beliefs that the Amish asserted, but nevertheless concluded that the government’s interest in imposing the tax was sufficient to override the free exercise claim. A related case, Cf. Bowen v. Roy (106 S. Ct. 2147), was decided four years later in which the Court rejected the free exercise assertion of Native Americans in resisting the statutory requirement that Social Security numbers be obtained for minors as a condition for them to participate in the federal food stamp program. In his opinion, Chief Justice Burger articulated a less rigorous test than the one that was applied by the Court in Sherbert and Thomas when he asserted that “the Government meets its burden when it demonstrates that a challenged requirement for governmental benefits, neutral and uniform in its application, is a reasonable means of promoting a legitimate public interest.” One particularly difficult set of issues involves the teachings of some religions regarding medical care. Some religions resist different forms of human intervention in medical affairs, including Christian Scientists, who are doubtless sincere in such beliefs. The issues become especially difficult when the children of sincere believers fall ill. There are several cases in Constitutional law—indeed in many aspects of the law—that assert the primacy of parents over the state in raising their children. In Pierce v. Society of Sisters (268 U.S. 510, 1925), the Court ruled that a law which required parents to send their children to public schools was unconstitutional. The opinion said, “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for his additional obligations.” But the right of parents is not absolute. In Prince v. Massachusetts (321 U.S. 158, 1944) a young Jehovah’s Witness girl was being sent by her parents to solicit contributions, in violation of child labor 274

laws. The Court said, “[there is a] private realm of family life which the state cannot enter. . . . [but] the family itself is not beyond regulation in the public interest. . . . Acting to guard the general interest in youth’s wellbeing the state as parens patriae may restrict the parents’ control. . . . Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children. . . .” The Yoder, Lee, and Roy cases raised the free exercise claim in the civilian context, and the rulings in Lee and Roy accorded a greater deference to the legislative policy determination than the one that was accepted by the Court in Yoder and in Sherbert and its progeny. Likewise, in Goldman v. Weinberger (106 S. Ct. 1310, 1986), the Court deferred to military interests that were served by a uniform dress code; it rejected the free exercise claim of a Jewish military officer that he should be allowed to wear a yarmulke while he was on duty in a military health facility. Justice Rehnquist’s opinion for the Court noted that the Air Force regulation was reasonable, even-handed, and distinguished between nonmilitary apparel that is visible and that is not. In terms of free exercise jurisprudence, Justice Sandra Day O’Connor’s dissent is noteworthy. She underscored the need for the Court to “articulate and apply an appropriate standard for [application to] a free exercise claim in the military context.” Noting the Court’s long-term ambiguity in articulating an appropriate standard to evaluate free exercise claims in a civilian context, she thought an appropriate standard of review for a military context would require a showing (1) that the governmental interest at stake is of “unusual importance,” and (2) that “substantial harm” to such interest would result if the free exercise claim would prevail. Two years later, in Lyng v. Northwest Indian Cemetery Protective Association (108 S. Ct. 1319, 1988), Justice O’Connor led the majority in refusing to construe the free exercise clause expansively to protect traditional religious practices that were conducted on public lands. In that case, three Native American groups alleged that a U.S. Forest Service decision to allow timber harvesting and the construction of a new highway in a National Forest area that they had traditionally used to conduct religious rituals would have an adverse effect on their religious practices as protected by the free exercise clause. In rejecting this claim, Justice O’Connor advanced a noncoercive test that in effect held that the

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free exercise guarantee condemns only those governmental actions which would “coerce individuals into acting contrary to their religious beliefs.” The guarantee does not disallow actions (like those taken by the Forest Service in the case at hand) that merely have an “incidental effect on certain religious practices.” Then, another sea change occurred. The Court continued its restricted view of the free exercise guarantee when it considered a state’s enforcement of its criminal laws against the sacramental use of the drug peyote in Department of Human Resources of Oregon v. Smith. In that case, two members of the Native American Church were dismissed from their jobs with a private drug rehabilitation agency because they had engaged in the use of peyote in a sacramental ceremony in their church. Their subsequent application for unemployment compensation was denied because the loss of employment was attributed to “misconduct.” In explaining its action, the state commission responsible for ruling on the claims took the position that the claimants had forfeited their right to compensation by consuming peyote, which was criminal behavior under Oregon law. Although the Oregon appellate courts disagreed on free exercise grounds (citing Sherbert and its progeny), the Supreme Court upheld the commission’s

view that the state’s criminal law should override the free exercise claim in that context. In his opinion for the Court, Justice Antonin Scalia rejected the use of the Sherbert core inquiry that is usually applied in such cases, in which government is required “to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.” Instead, he argued that the determination is whether the law is one of general applicability. If it is, there is no need for strict scrutiny, unless it is determined that a religion has been specifically targeted. He said, “unless it purposely targets religious expression, a law that burdens a religious practice is fully consistent with the free exercise clause as long as a generally applicable criminal law prohibits that practice.” Justice Harry Blackmun’s dissent, in which Justices William J. Brennan and Thurgood Marshall joined, lamented the Court’s abandonment of what he thought was a “settled and inviolate principle of the Court’s First Amendment jurisprudence.” That principle stipulates that a regulatory statute that imposes burdens on the free exercise of religion can pass constitutional muster “only if the law in general, and the state’s refusal to allow a religious exemption in particular, are justified by a compelling interest that cannot be served by less restrictive means.”

DEPARTMENT OF HUMAN RESOURCES OF OREGON V. SMITH 494 U.S. 872; 108 L. Ed. 2d 876; 110 S. Ct. 1595 (1990) JUSTICE SCALIA delivered the opinion of the Court, in which CHIEF JUSTICE REHNQUIST and JUSTICES WHITE, STEVENS, and KENNEDY joined. JUSTICE O’CONNOR filed an opinion concurring in the judgment in Parts I and II, in which JUSTICES BRENNAN, MARSHALL, and BLACKMUN joined without concurring in the judgment. JUSTICE BLACKMUN filed a dissenting opinion, in which JUSTICES BRENNAN and MARSHALL joined. JUSTICE SCALIA delivered the opinion of the Court. This case requires us to decide whether the Free Exercise Clause of the First Amendment permits the State of Oregon to include religiously inspired peyote

use within the reach of its general criminal prohibition on use of that drug, and thus permits the State to deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use. I Oregon law prohibits the knowing or intentional possession of a “controlled substance” unless the substance has been prescribed by a medical practitioner. . . . Respondents Alfred Smith and Galen Black were fired from their jobs with a private drug rehabilitation organization because they ingested peyote for sacramental purposes at a ceremony of the Native The Free Exercise of Religion

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American Church, of which both are members. When respondents applied to petitioner Employment Division for unemployment compensation, they were determined to be ineligible for benefits because they had been discharged for “misconduct.” The Oregon Court of Appeals reversed that determination, holding that the denial of benefits violated respondents’ free exercise rights under the First Amendment. On appeal to the Oregon Supreme Court, petitioner argued that the denial of benefits was permissible because respondents’ consumption of peyote was a crime under Oregon law. The Oregon Supreme Court reasoned, however, that the criminality of respondents’ peyote use was irrelevant to resolution of their constitutional claim. . . . Citing our decisions in Sherbert v. Verner, and Thomas v. Review Board, Indiana Employment Security Div., the court concluded that respondents were entitled to payment of unemployment benefits. We granted certiorari. Before this Court in 1987, petitioner continued to maintain that the illegality of respondents’ peyote consumption was relevant to their constitutional claim. We agreed, concluding that “if a State has prohibited through its criminal laws certain kinds of religiously motivated conduct without violating the First Amendment, it certainly follows that it may impose the lesser burden of denying unemployment compensation benefits to persons who engage in that conduct.” We noted, however, that the Oregon Supreme Court had not decided whether respondents’ sacramental use of peyote was in fact proscribed by Oregon’s controlled substance law, and that this issue was a matter of dispute between the parties. Being “uncertain about the legality of the religious use of peyote in Oregon, we determined that it would not be appropriate for us to decide whether the practice is protected by the Federal Constitution.” Accordingly, we vacated the judgment of Oregon Supreme Court and remanded for further proceedings. On remand, the Oregon Supreme Court held that respondents’ religiously inspired use of peyote fell within the prohibition of the Oregon statute, which “makes no exception for the sacramental use” of the drug. It then considered whether that prohibition was valid under the Free Exercise Clause, and concluded that it was not [and] reaffirmed its previous ruling that the State could not deny unemployment benefits to respondents. . . . We again granted certiorari. 276

II Respondents’ claim for relief rests on our decision in Sherbert v. Verner, Thomas v. Review Board, Indiana Employment Security Div., and Hobbie v. Unemployment Appeals Commission of Florida, in which we held that a State could not condition the availability of unemployment insurance on an individual’s willingness to forego conduct required by his religion. As we observed in Smith I, however, the conduct at issue in those cases was not prohibited by law. We held that distinction to be critical, for “if Oregon does prohibit the religious use of peyote, and if that prohibition is consistent with the Federal Constitution, there is no federal right to engage in that conduct in Oregon. . . .” Now that the Oregon Supreme Court has confirmed that Oregon does prohibit the religious use of peyote, we proceed to consider whether that prohibition is permissible under the Free Exercise Clause. A The Free Exercise Clause of the First Amendment . . . often involves not only belief and profession but the performance of or abstention from physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation. It would be true, we think, though no case of ours has involved the point, that a state would be “prohibiting the free exercise [of religion]” if it sought to ban such acts or abstentions only when they are engaged in for religious belief that they display. It would doubtless be unconstitutional, for example, to ban the casting of “statues that are to be used for worship purposes,” or to prohibit bowing down before a golden calf. Respondents in the present case, however, seek to carry the meaning of “prohibiting the free exercise [of religion]” one large step further. They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons. They assert, in other words, that “prohibiting the free exercise [of religion]” includes requiring any individual to observe a generally applicable law that requires or forbids the performance of an act that his religious belief forbids or requires. As a textual matter, we do not think the words must be given that meaning. . . .

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. . . We have never held that an individual’s beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by JUSTICE FRANKFURTER in Minersville School Dist. Bd. of Educ. v. Gobitis [in 1940]: “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities. . . .” The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, see Cantwell v. Connecticut (invalidating a licensing system for religious and charitable solicitations under which the administrator had discretion to deny a license to any cause he deemed nonreligious); Murdock v. Pennsylvania, 319 U.S. 105 (1943) (invalidating a flat tax on solicitation as applied to the dissemination of religious ideas); . . . or the right of parents, acknowledged in Pierce v. Society of Sisters, 268 U.S. 510 (1925), to direct the education of their children, see [also] Wisconsin v. Yoder, 406 U.S. 205 (1972) (invalidating compulsory school-attendance laws as applied to Amish parents who refused on religious grounds to send their children to school). Some of our cases prohibiting compelled expression, decided exclusively upon free speech grounds, have also involved freedom of religion, Cf. Wooley v. Maynard, 430 U.S. 705 (1977) (invalidating compelled display of a license plate slogan that offended individual religious beliefs); West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943) (invalidating compulsory flag salute challenged by religious objectors). And it is easy to envision a case in which a challenge on freedom of association grounds would likewise be reinforced by Free Exercise Clause concerns. . . . The present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right.

Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now. There being no contention that Oregon’s drug law represents an attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one’s children in those beliefs, the rule to which we have adhered ever since Reynolds plainly controls. . . . B Respondents argue that even though exemption from generally applicable criminal laws need not automatically be extended to religiously motivated actors, at least the claim for a religious exemption must be evaluated under the balancing test set forth in Sherbert v. Verner. Under the Sherbert test, governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest. . . . We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation. Although we have sometimes purported to apply the Sherbert test in contexts other than that, we have always found the test satisfied. In recent years we have abstained from applying the Sherbert test (outside the unemployment compensation field) at all. Even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require exemptions from a generally applicable criminal law. The Sherbert test, it must be recalled, was developed in a context that lent itself to individualized governmental assessment of the reasons for the relevant conduct. As a plurality of the Court noted in Bowen v. Roy, 476 U.S. 693 (1986) a distinctive feature of unemployment compensation programs is that their eligibility criteria invite consideration of the particular circumstances behind an applicant’s unemployment: “The statutory conditions [in Sherbert and Thomas] provided that a person was not eligible for unemployment compensation benefits if, ‘without good cause,’ he had quit work or refused available work. The “good cause” standard created a mechanism for individualized exemptions. . . .” Whether or not the decisions are that limited, they at least have nothing to do with an across-the-board criminal prohibition or a particular form of conduct. The Free Exercise of Religion

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Although . . . we have sometimes used the Sherbert test to analyze free exercise challenges to such law, we have never applied the test to invalidate one. We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedent, is to hold the test inapplicable to such challenges. The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, “cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.” To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling”—permitting him, by virtue of his beliefs, “to become a law unto himself,” contradicts both constitutional tradition and common sense. . . . Nor is it possible to limit the impact of respondents’ proposal by requiring a “compelling state interest” only when the conduct prohibited is “central” to the individual’s religion. It is no more appropriate for judges to determine the “centrality” of religious beliefs before applying a “compelling interest” test in the free exercise field, than it would be for them to determine the “importance” of ideas before applying the “compelling interest” test in the free speech field. What principle of law or logic can be brought to bear to contradict a believer’s assertion that a particular act is “central” to his personal faith? Judging the centrality of different religious practices is akin to the unacceptable “business of evaluating the relative merits of differing religious claims.” As we reaffirmed only last Term, “[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretation of those creeds.” Hernandez v. Commissioner. Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim. If the “compelling interest” test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. . . . Precisely because “we are a cosmopolitan nation made up of people of almost every conceivable religious preference,” and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents 278

favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind. . . . The First Amendment’s protection of religious liberty does not require this. Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well. It is therefore not surprising that a number of States have made an exception to their drug laws for sacramental peyote use. But to say that a nondiscriminatory religious-practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts. It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs. Because respondents’ ingestion of peyote was prohibited under Oregon law, and because that prohibition is constitutional, Oregon may, consistent with the Free Exercise Clause, deny respondents unemployment compensation when their dismissal results from the use of the drug. The decision of the Oregon Supreme Court is accordingly reversed. It is so ordered. JUSTICE O’CONNOR, joined by JUSTICES BRENNAN, MARSHALL, and BLACKMUN as to Parts I and II, concurring: Although I agree with the result the Court reaches in this case, I cannot join its opinion. In my view, today’s holding dramatically departs from well-settled First Amendment jurisprudence, appears unnecessary to resolve the question presented, and is incompatible with our Nation’s fundamental commitment to individual religious liberty. . . .

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II The Court today extracts from our long history of free exercise precedents the single categorical rule that “if prohibiting the exercise of religion . . . is . . . merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” Indeed, the Court holds that where the law is a generally applicable criminal prohibition, our usual free exercise jurisprudence does not even apply. To reach this sweeping result, however, the Court must not only give a strained reading of the First Amendment but must also disregard our consistent application of free exercise doctrine to cases involving generally applicable regulations that burden religious conduct. A . . . As the Court recognizes, however, the “free exercise” of religion often, if not invariably, requires the performance of (or abstention from) certain acts. . . . Because the First Amendment does not distinguish between religious belief and religious conduct, conduct motivated by sincere religious belief, like the belief itself, must therefore be at least presumptively protected by the Free Exercise Clause. The Court today, however, interprets the Clause to permit the government to prohibit, without justification, conduct mandated by an individual’s religious beliefs, so long as that prohibition is generally applicable. But a law that prohibits certain conduct— conduct that happens to be an act of worship for someone—manifestly does prohibit that person’s free exercise of his religion. A person who is barred from engaging in religiously motivated conduct is barred from freely exercising his religion. Moreover, that person is barred from freely exercising his religion regardless of whether the law prohibits the conduct only when engaged in for religious reason, only by members of that religion, or by all persons. It is difficult to deny that a law that prohibits religiously motivated conduct, even if the law is generally applicable, does not at least implicate First Amendment concerns. The Court responds that generally applicable laws are “one large step” removed from laws aimed at specific religious practices. The First Amendment, however, does not distinguish between laws that are generally applicable and laws that target particular religious practices. Indeed, few States would be so naive as to enact a law directly prohibiting or

burdening a religious practice as such. Our free exercise cases have all concerned generally applicable laws that had the effect of significantly burdening a religious practice. If the First Amendment is to have any vitality, it ought not be construed to cover only the extreme and hypothetical situation in which a State directly targets a religious practice. As we have noted in a slightly different context, “‘[s]uch a test has no basis in precedent and relegates a serious First Amendment value to the barest level of minimum scrutiny that the Equal Protection Clause already provides’. . . .” In my view . . . the essence of a free exercise claim is relief from a burden imposed by government on religious practices or beliefs, whether the burden is imposed directly through laws that prohibit or compel specific religious practices, or indirectly through laws that, in effect, make abandonment of one’s own religion or conformity to the religious beliefs of others the price of an equal place in the civil community. . . . A State that makes criminal an individual’s religiously motivated conduct burdens that individual’s free exercise of religion in the severest manner possible, for it “results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution. . . .” I would reaffirm that principle today: a neutral criminal law prohibiting conduct that a State may legitimately regulate is, if anything, more burdensome than a neutral civil statute placing legitimate conditions on the award of a state benefit. . . . The Court today gives no convincing reason to depart from settled First Amendment jurisprudence. There is nothing talismanic about neutral laws of general applicability or general criminal prohibitions, for laws neutral toward religion can coerce a person to violate his religious conscience or intrude upon his religious duties just as effectively as laws aimed at religion. Although the Court suggests that the compelling interest test, as applied to generally applicable laws, would result in a “constitutional anomaly,” the First Amendment unequivocally makes freedom of religion, like freedom from race discrimination and freedom of speech, a “constitutional nor[m],” not an “anomaly. . . .” Finally the Court today suggests that the disfavoring of minority religions is an “unavoidable consequence” under our system of government and that accommodation of such religions must be left to the political process. In my view, however, the First Amendment was enacted precisely to protect The Free Exercise of Religion

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the right of those whose religious practices are not shared by the majority and may be viewed with hostility. The history of our free exercise doctrine amply demonstrates the harsh impact majoritarian rule has had on unpopular or emerging religious groups such as the Jehovah’s Witnesses and the Amish. Indeed, the words of JUSTICE JACKSON, in West Virginia Board of Education v. Barnette (overruling Minersville School District v. Gobitis) are apt: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. . . .

III The Court’s holding today not only misreads settled First Amendment precedent; it appears to be unnecessary to this case. I would reach the same result applying our established free exercise jurisprudence. A There is no dispute that Oregon’s criminal prohibition of peyote places a severe burden on the ability of respondents to freely exercise their religion. Peyote is a sacrament of the Native American Church and is regarded as vital to respondents’ ability to practice their religion. . . . Under Oregon law, as construed by that State’s highest court, members of the Native American Church must choose between carrying out the ritual embodying their religious beliefs and avoidance of criminal prosecution. That choice is, in my view, more than sufficient to trigger First Amendment scrutiny. There is also no dispute that Oregon has a significant interest in enforcing laws that control the possession and use of controlled substances by its citizens. . . . B Thus, the critical question in this case is whether exempting respondents from the State’s general criminal prohibition “will unduly interfere with fulfillment of the governmental interest. . . .” Although

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the question is close, I would conclude that uniform application of Oregon’s criminal prohibition is “essential to accomplish,” its overriding interest in preventing the physical harm caused by the use of a . . . controlled substance. Oregon’s criminal prohibition represents that State’s judgment that the possession and use of controlled substances, even by only one person, is inherently harmful and dangerous. Because the health effects caused by the use of controlled substances exist regardless of the motivation of the user, the use of such substances, even for religious purposes, violates the very purpose of the laws that prohibit them. . . . For these reasons, I believe that granting a selective exemption in this case would seriously impair Oregon’s compelling interest in prohibiting possession of peyote by its citizens. Under such circumstances, the Free Exercise Clause does not require the State to accommodate respondents’ religiously motivated conduct. . . . I would therefore adhere to our established free exercise jurisprudence and hold that the State in this case has a compelling interest in regulating peyote use by its citizens and that accommodating respondents’ religiously motivated conduct “will unduly interfere with fulfillment of the governmental interest.” Accordingly, I concur in the judgment of the Court. JUSTICE BLACKMUN, joined by JUSTICES BRENNAN and MARSHALL, dissenting: This Court over the years painstakingly has developed a consistent and exacting standard to test the constitutionality of a state statute that burdens the free exercise of religion. Such a statute may stand only if the law in general, and the State’s refusal to allow a religious exemption in particular, are justified by a compelling interest that cannot be served by less restrictive means. Until today, I thought this was a settled and inviolate principle of this Court’s First Amendment jurisprudence. The majority, however, perfunctorily dismisses it as a “constitutional anomaly. . . .” The Court discards leading free exercise cases such as Cantwell v. Connecticut (1940), and Wisconsin v. Yoder (1972), as “hybrid.” The Court views traditional free exercise analysis as somehow inapplicable to criminal prohibitions (as opposed to conditions on the receipt of benefits), and to state laws of general applicability (as opposed, presumably, to

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laws that expressly single out religious practices). . . . In short, it effectuates a wholesale overturning of settled law concerning the Religion Clauses of our Constitution. One hopes that the Court is aware of the consequences, and that its result is not a product of overreaction to the serious problems the country’s drug crisis has generated. . . . The State’s interest in enforcing its prohibition, in order to be sufficiently compelling to outweigh a free exercise claim, cannot be merely abstract or symbolic. The State cannot plausibly assert that unbending application of a criminal prohibition is essential to fulfill any compelling interest, if it does not, in fact, attempt to enforce that prohibition. In this case, the State actually has not evinced any concrete interest in enforcing its drug laws against religious users of peyote. Oregon has never sought to prosecute respondents, and does not claim that it has made significant enforcement efforts against other religious users of peyote. The State’s asserted interest thus amounts only to the symbolic preservation of an unenforced prohibition. But a government interest in “symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs,” cannot suffice to abrogate the constitutional rights of individuals. Similarly, this Court’s prior decisions have not allowed a government to rely on mere speculation about potential harms, but have demanded evidentiary support for a refusal to allow a religious exception. . . . In this case, the State’s justification for refusing to recognize an exception to its criminal laws for religious peyote use is entirely speculative. The State proclaims an interest in protecting the health and safety of its citizens from the dangers of unlawful drugs. It offers, however, no evidence that the religious use of peyote has ever harmed anyone. The factual findings of other courts cast doubt on the State’s assumption that religious use of peyote is harmful. . . . The fact that peyote is classified as a Schedule I controlled substance does not, by itself, show that any and all uses of peyote, in any circumstance, are inherently harmful and dangerous. The Federal Government, which created the classification of unlawful drugs from which Oregon’s drug laws are derived, apparently does not find peyote so dangerous as to preclude an exemption for religious use. . . . The carefully circumscribed ritual context in which respondents used peyote is far removed from

the irresponsible and unrestricted recreational use of unlawful drugs. The Native American Church’s internal restrictions on, and supervision of, its members’ use of peyote substantially obviate the State’s health safety concerns. . . . III Finally, although I agree with JUSTICE O’CONNOR that courts should refrain from delving into questions of whether, as a matter of religious doctrine, a particular practice is “central” to the religion, I do not think this means that the courts must turn a blind eye to the severe impact of a State’s restrictions on the adherents of a minority religion. . . . Respondents believe, and their sincerity has never been at issue, that the peyote plant embodies their deity, and eating it is an act of worship and communion. Without peyote, they could not enact the essential ritual of their religion. . . . If Oregon can constitutionally prosecute them for this act of worship, they, like the Amish, may be “forced to migrate to some other and more tolerant region.” This potentially devastating impact must be viewed in light of the federal policy—reached in reaction to many years of religious persecution and intolerance—of protecting the religious freedom of Native Americans. . . . Congress recognized that certain substances, such as peyote, “have religious significance because they are sacred, they have power, they heal, they are necessary to the cultural integrity of the tribe, and therefore, religious survival.” The American Indian Religious Freedom Act, in itself, may not create rights enforceable against government action restricting religious freedom, but this Court must scrupulously apply its free exercise analysis to the religious claims of Native Americans, however unorthodox they may be. Otherwise, both the First Amendment and the stated policy of Congress will offer to Native Americans merely an unfulfilled and hollow promise. . . . Post-Smith and R.F.R.A. After Smith, the Court struck down Hialeah, Florida’s ordinances banning animal sacrifices in Church of Lukumi Babalu Aye, Inc. v. Hialeah, Florida (113 S. Ct. 2217, 1993). Followers of the Santeria religion conduct ritual animal sacrifices, after which the animals are cooked and eaten. After The Free Exercise of Religion

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the Santerians announced that they planned to build a house of worship in Hialeah, the city adopted an ordinance banning ritual animal sacrifice. Obviously, the law was targeted at the Santerians and the Court voted unanimously to overturn it. Justice Anthony Kennedy began by affirming the new standard developed in Smith. He said, “our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.” He went on, however, to demonstrate how the law was targeted at the Santerians, a condition that then subjected it to strict scrutiny. There have been widespread objections to Justices Scalia’s Smith standard. Not only have the dissenting justices complained, but so has Congress. As a result, Congress enacted the Religious Freedom Restoration Act in 1993. The overriding purpose of the Act was to disarm government power to burden a person’s free exercise of religion. The legislation restored the “compelling interest” test that had been employed by the Court in free exercise cases since Sherbert v. Verner but that had been discarded by the majority in Smith. Under the new law, government was once again required to justify its application of generally applicable laws that place a burden of the exercise of a religion by demonstrating that it was pursuing a compelling governmental interest. The act was short lived. It was unable to survive its first constitutional test just four years after its enactment. Paradoxically, that test did not involve a specific religious belief or practice. A dispute over governmental restrictions on a religious body’s efforts to expand its sanctuary to accommodate more parishioners was the central question brought to the Supreme Court in City of Boerne v. Flores (521 U.S. 507, 1997). What began as a dispute over a city’s denial of a building permit to allow the sanctuary expansion to commence ultimately became a debate on the scope of congressional enforcement power under Section 5 of the Fourteenth Amendment. In resisting the city’s denial of the necessary building permit, church authorities argued that the city’s action conflicted with the Religious Freedom Restoration Act. The federal district court, however, rejected their claim and held that the act was unconstitutional. When the Court of Appeals for the Fifth Circuit reversed the decision, upholding the act, the 282

Supreme Court reversed, agreeing with the district court that Congress had exceeded the scope of its enforcement power under Section 5 of the Fourteenth Amendment in enacting the statute.

RELIGIOUS LIBERTY AND COMPULSORY MILITARY SERVICE FEATURED CASE Welsh v. United States A final issue in this chapter focuses on controversies over compulsory military service. Periodically during the twentieth century, some people have resisted to the call to fight in the nation’s wars by raising the protective shields of the Free Exercise and Establishment clauses of the First Amendment. The Supreme Court, however, refused to accept such claims and consistently decided the several cases that were presented to it on nonconstitutional grounds. Beginning with the Selective Draft Law Cases of 1918 (245 U.S. 366), Chief Justice Edward Douglas White said of the claims, “we pass without anything but statement the proposition that an establishment of a religion or an interference with the free exercise thereof . . . resulted from the exemption clause . . . because we think its unsoundness is too apparent to require us to do more.” Opposition to U.S. participation in the Vietnam War in the 1960s once again brought to the Court the question of whether compulsory military service infringed upon religious liberty. Both free exercise and establishment issues were raised. As draft-eligible college students lost their student deferment classification (II-S), a number of them sought the conscientious objector classification (I-O). Denials of their petitions and subsequent refusals to submit to induction precipitated prosecutorial actions that resulted in several constitutional challenges to the conscientious objector provision, Section 6(j), of the Universal Military Training and Service Act on its face and as applied. In United States v. Seeger (380 U.S. 163, 1965) and two companion cases (United States v. Jakobson and Peter v. United States), for example, the constitutionality of the clause that defines the term “religious training and belief” was at issue. Although the appeals pressed both establishment and free exercise challenges, the Court chose to side-step them. Instead, it construed the statute in its most favorable light and

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held that Congress had not intended to give preference to believers in a conventional God when it employed in Section 6(j) the term “religious training and belief . . . in relation to a Supreme Being. . . .” Justice Tom Clark’s opinion for the Court noted that with the “vast panoply of beliefs” that abound in our society, construing the phrase to embrace all religions was consistent with the long-established congressional policy “of not picking and choosing among religious beliefs.” Justice Clark provided draft boards and lower courts with some guidance for the future by proposing a test to determine whether a belief was within the statutory definition of Section 6(j): “A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption.” What the Court said in effect was that adherence to formal religious principles was no longer the sole ground for granting conscientious objector status. Congress responded to the decision in the form of a 1967 amendment to the Selective Service Law which eliminated the clause that defines “religious training and belief” in terms of an individual’s belief in relation to a Supreme Being. However, the lawmakers retained the provision that “religious training and belief” does not include political, sociological, or philosophical views and personal moral codes. Three years later, in Welsh v. United States (308 U.S. 333, 1970), the Court rendered this provision meaningless. In reversing Welsh’s conviction for refusing to submit to induction after his request for conscientious objector status had been denied, Justice Hugo Black spoke for the Court and held that “essentially political, sociological, or philosophical views or a merely personal moral code” should not be read to exclude persons who held strong beliefs about the nation’s domestic and foreign affairs. Furthermore, Black contended that Section 6(j) does not require exclusion of those whose conscientious objection is grounded to a great degree “on considerations of public policy.” Justice John M. Harlan II concurred in the result but expressed serious concern about the length to which the majority had gone in statutory construction to avoid facing the constitutional issues that were presented. He felt that the Court, in the face of compelling legislative history, had interpreted the statute to produce a policy outcome that Congress did not intend. He believed that the majority had performed this “lobotomy” to save the statute, because it was clear to him that Section 6(j)’s theistic bias abridged the establishment clause.

Justice Byron White’s dissent, in which Chief Justice Warren Burger and Justice Potter Stewart joined, supported Harlan’s attack on the Court’s “rewriting” of the statute. Since the First Amendment does not forbid the congressional policy in this area, he argued, certainly the Court should not “frustrate the legislative will.” In 1971, the Court again examined the meaning of Section 6(j) in the companion cases of Gillette v. United States and Negre v. Larsen (401 U.S. 437, 1971) and rejected the concept of “selective conscientious objection.” Petitioners argued that the statutory requirement that a person must be opposed to participation in all wars rather than to a particular war in order to be eligible for I-O status resulted in discrimination among religions, in violation of the establishment clause. Hence, even people who were acting in accordance with “religious training and belief” (such as Negre, a devout Catholic) and who were opposed to participating only in “unjust wars” could not qualify for exemption. But Justice Thurgood Marshall insisted for the Court that no religious preference was reflected in the statute; its underlying purposes were neutral and secular. As an example, Marshall noted “the hopelessness of converting a sincere conscientious objector into an effective fighting man.” Certainly, he concluded, such a pragmatic consideration has nothing to do with aiding or fostering any religious sect. Can a person who is exempted from the military service as a conscientious objector, but who meets his obligation through “alternative civilian service,” be denied educational benefits under the Veterans Readjustment Act of 1966? In Johnson v. Robinson (415 U.S. 361, 1974), an eight-to-one majority said yes. Justice William J. Brennan’s opinion for the Court emphasized that the distinction which Congress made between a veteran of military service and a conscientious objector who performed “alternative service” for purposes of receiving educational benefits was based on a rational classification scheme and did not deny the latter individual the equal protection of the laws. In rejecting Robinson’s free exercise claim, Brennan had serious doubts that the statutory exclusion of benefits from his class imposed a burden on the free exercise of religion and felt that, at most, if such a burden did result, it was only an incidental one. In his dissent, Justice William O. Douglas urged that Sherbert v. Verner should be controlling. To him, this was a simple case of the government penalizing people “for asserting their religious scruples.” The Free Exercise of Religion

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WELSH V. UNITED STATES 398 U.S. 333; 90 S. Ct. 1792; 26 L. Ed. 2d 308 (1970) JUSTICE BLACK announced the judgment of the Court and delivered an opinion, in which JUSTICES DOUGLAS, BRENNAN, and MARSHALL joined. Justice Harlan filed an opinion concurring in the result. JUSTICE WHITE filed a dissenting opinion, in which Chief Justice Burger and JUSTICE STEWART joined. JUSTICE BLACKMUN took no part in the consideration or decision of this case. JUSTICE BLACK announced the judgment of the Court and delivered an opinion. The petitioner, Elliott Ashton Welsh II, was convicted by a United States District Judge of refusing to submit to induction into the Armed Forces in violation of 50 U.S. C. App. § 462(a), and was . . . sentenced to imprisonment for three years. One of petitioner’s defenses to the prosecution was that § 6(j) of the Universal Military Training and Service Act exempted him from combat and noncombat service because he was “by reason of religious training and belief . . . conscientiously opposed to participation in war in any form.” After finding that there was no religious basis for petitioner’s conscientious objector claim, the Court of Appeals . . . affirmed the conviction. . . . We granted certiorari chiefly to review the contention that Welsh’s conviction should be set aside on the basis of this Court’s decision in United States v. Seeger (1965). . . . The controlling facts in this case are strikingly similar to those in Seeger. Both Seeger and Welsh were brought up in religious homes and attended church in their childhood, but in neither case was this church one which taught its members not to engage in war at any time for any reason. Neither Seeger nor Welsh continued his childhood religious ties into his young manhood, and neither belonged to any religious group or adhered to the teachings of any organized religion during the period of his involvement with the Selective Service System. At the time of registration for the draft, neither had yet come to accept pacifist principles. Their views on war developed only in subsequent years, but when 284

their ideas did fully mature both made application to their local draft boards for conscientious objector exemptions from military service under § 6(j) of the Universal Military Training and Service Act. That section then provided, in part: Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code.

In filling out their exemption applications both Seeger and Welsh were unable to sign the statement that, as printed in the Selective Service form, stated “I am, by reason of my religious training and belief, conscientiously opposed to participation in war in any form.” Seeger could sign only after striking the words “training and” and putting quotation marks around the word “religious.” Welsh could sign only after striking the words “my religious training and.” On those same applications, neither could definitely affirm or deny that he believed in a “Supreme Being,” both stating that they preferred to leave the question open. But both Seeger and Welsh affirmed on those applications that they held deep conscientious scruples against taking part in wars where people were killed. Both strongly believed that killing in war was wrong, unethical, and immoral, and their consciences forbade them to take part in such an evil practice. Their objection to participating in war in any form could not be said to come from a “still, small voice of conscience”; rather, for them that voice was so loud and insistent that both men preferred to go to jail rather than serve in the Armed Forces. There was never any question about the sincerity and depth of Seeger’s convictions as a conscientious objector, and the same is true of Welsh. In this regard the Court of Appeals noted, “the government concedes that

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[Welsh’s] beliefs are held with the strength of more traditional religious convictions.”. . . But in both cases the Selective Service System concluded that the beliefs of these men were in some sense insufficiently “religious” to qualify them for conscientious objector exemptions under the terms of § 6(j). Seeger’s conscientious objector claim was denied “solely because it was not based upon a ‘belief in a relation to a Supreme Being’ as required by § 6(j) of the Act” . . ., while Welsh was denied the exemption because his Appeal Board and the Department of Justice hearing officer “could find no religious basis for the registrant’s beliefs, opinions and convictions.” Both Seeger and Welsh subsequently refused to submit to induction into the military and both were convicted of that offense. In Seeger the Court was confronted, first, with the problem that § 6(j) defined “religious training and belief” in terms of a “belief in a relation to a Supreme Being . . .,” a definition that arguably gave a preference to those who believed in a conventional God as opposed to those who did not. Noting the “vast panoply of beliefs” prevalent in our country, the Court construed the congressional intent as being in “keeping with its long-established policy of not picking and choosing among religious beliefs,” and accordingly interpreted “the meaning of religious training and belief so as to embrace all religions. . . .” But, having decided that all religious conscientious objectors were entitled to the exemption, we faced the more serious problem of determining which beliefs were “religious” within the meaning of the statute. This question was particularly difficult in the case of Seeger himself. Seeger stated that his was a “belief in and devotion to goodness and virtue for their own sakes, and a religious faith in a purely ethical creed.”. . . In a letter to his draft board, he wrote: My decision arises from what I believe to be considerations of validity from the standpoint of the welfare of humanity and the preservation of the democratic values which we in the United States are struggling to maintain. I have concluded that war, from the practical standpoint, is futile and self-defeating, and that from the more important moral standpoint, it is unethical.

On the basis of these and similar assertions, the Government argued that Seeger’s conscientious objection to war was not “religious” but stemmed from “essentially political, sociological, or philosophical views or a merely personal moral code.”

In resolving the question whether Seeger and the other registrants in that case qualified for the exemption, the Court stated that “[the] task is to decide whether the beliefs professed by a registrant are sincerely held and whether they are, in his own scheme of things, religious.”. . . The Court’s principal statement of its test for determining whether a conscientious objector’s beliefs are religious within the meaning of § 6(j) was as follows: The test might be stated in these words: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition.

The Court made it clear that these sincere and meaningful beliefs that prompt the registrant’s objection to all wars need not be confined in either source or content to traditional or parochial concepts of religion. It held that § 6(j) “does not distinguish between externally and internally derived beliefs,” and also held that “intensely personal” convictions which some might find “incomprehensible” or “incorrect” come within the meaning of “religious belief” in the Act. . . . In [Welsh] the Government seeks to distinguish our holding in Seeger on basically two grounds, both of which were relied upon by the Court of Appeals in affirming Welsh’s conviction. First, it is stressed that Welsh was far more insistent and explicit than Seeger in denying that his views were religious. For example, in filling out their conscientious objector applications, Seeger put quotation marks around the word “religious,” but Welsh struck the word “religious” entirely and later characterized his beliefs as having been formed “by reading in the fields of history and sociology.” The Court of Appeals found that Welsh had “denied that his objection to war was premised on religious belief” and concluded that “the Appeal Board was entitled to take him at his word.” We think this attempt to distinguish Seeger fails for the reason that it places undue emphasis on the registrant’s interpretation of his own beliefs. The Court’s statement in Seeger that a registrant’s characterization of his own belief as “religious” should carry great weight does not imply that his declaration that his views are nonreligious should be treated similarly. When a registrant states that his objections to war are “religious,” that information is highly relevant to the question of the function his beliefs have in his life. But very few registrants are fully aware of The Free Exercise of Religion

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the broad scope of the word “religious” as used in § 6(j), and accordingly a registrant’s statement that his beliefs are nonreligious is a highly unreliable guide for those charged with administering the exemption. Welsh himself presents a case in point. Although he originally characterized his beliefs as nonreligious, he later upon reflection wrote a long and thoughtful letter to his Appeal Board in which he declared that his beliefs were “certainly religious in the ethical sense of the word.”. . . The Government also seeks to distinguish Seeger on the ground that Welsh’s views, unlike Seeger’s, were “essentially political, sociological, or philosophical views or a merely personal moral code.” As previously noted, the Government made the same argument about Seeger, and not without reason, for Seeger’s views had a substantial political dimension. In this case, Welsh’s conscientious objection to war was undeniably based in part on his perception of world politics. In a letter to his local board, he wrote: I can only act according to what I am and what I see. And I see that the military complex wastes both human and material resources, that it fosters disregard for (what I consider a paramount concern) human needs and ends; I see that the means we employ to ‘defend’ our ‘way of life’ profoundly change that way of life. I see that in our failure to recognize the political, social, and economic realities of the world, we, as a nation, fail our responsibility as a nation.

We certainly do not think that § 6(j)’s exclusion of those persons with “essentially political, sociological, or philosophical views or a merely personal moral code” should be read to exclude those who hold strong beliefs about our domestic and foreign affairs or even those whose conscientious objection to participation in all wars is founded to a substantial extent upon considerations of public policy. The two groups of registrants that obviously do fall within these exclusions from the exemption are those whose beliefs are not deeply held and those whose objection to war does not rest at all upon moral, ethical, or religious principle but instead rests solely upon considerations of policy, pragmatism, or expediency. In applying § 6(j)’s exclusion of those whose views are “essentially political, sociological, or philosophical” or of those who have a “merely personal moral code,” it should be remembered that these exclusions are definitional and do not therefore restrict the category of persons who are conscientious objectors by “religious training and belief.” Once the Selective 286

Service System has taken the first step and determined under the standards set out here and in Seeger that the registrant is a “religious” conscientious objector, it follows that his views cannot be “essentially political, sociological, or philosophical.” Nor can they be a “merely personal moral code.” The judgment is reversed. [JUSTICE BLACKMUN took no part in the consideration or decision of this case.] JUSTICE HARLAN, concurring in the result: Candor requires me to say that I joined the Court’s opinion in United States v. Seeger . . . only with the gravest misgivings as to whether it was a legitimate exercise in statutory construction, and today’s decision convinces me that in doing so I made a mistake which I should now acknowledge. In Seeger the Court construed § 6(j) of the Universal Military Training and Service Act so as to sustain a conscientious objector claim not founded on a theistic belief. . . . Today the prevailing opinion makes explicit its total elimination of the statutorily required religious content for a conscientious objector exemption. The prevailing opinion now says: “If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time” (emphasis added), he qualifies for a § 6(j) exemption. In my opinion, the liberties taken with the statute both in Seeger and today’s decision cannot be justified in the name of the familiar doctrine of construing federal statutes in a manner that will avoid possible constitutional infirmities in them. There are limits to the permissible application of that doctrine, and . . . those limits were crossed in Seeger, and even more apparently have been exceeded in the present case. I therefore find myself unable to escape facing the constitutional issue that this case squarely presents: whether § 6(j) in limiting this draft exemption to those opposed to war in general because of theistic beliefs runs afoul of the religious clauses of the First Amendment. . . . I believe it does, and on that basis I concur in the Court’s judgment reversing this conviction. . . . The issue is . . . whether Welsh’s opposition to war is founded on “religious training and belief” and hence “belief in a relation to a Supreme Being” as Congress used those words. It is of course true that certain words are more plastic in meaning than others.

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“Supreme Being” is a concept of theology and philosophy, not a technical term, and consequently may be, in some circumstances, capable of bearing a contemporary construction as notions of theology and philosophy evolve. . . . This language appears, however, in a congressional enactment; it is not a phrase of the Constitution, like “religion” or “speech,” which this Court is freer to construe in light of evolving needs and circumstances. . . . Nor is it so broad a statutory directive, like that of the Sherman Act, that we may assume that we are free to adopt and shape policies limited only by the most general statement of purpose. . . . It is Congress’ will that must here be divined. In that endeavor it is one thing to give words a meaning not necessarily envisioned by Congress so as to adapt them to circumstances also uncontemplated by the legislature in order to achieve the legislative policy. . . . [I]t is a wholly different matter to define words so as to change policy. The limits of this Court’s mandate to stretch concededly elastic congressional language are fixed in all cases by the context of its usage and legislative history, if available, that are the best guides to congressional purpose and the lengths to which Congress enacted a policy. . . . The natural reading of § 6(j), which quite evidently draws a distinction between theistic and nontheistic religions, is the only one that is consistent with the legislative history. . . . [Here follows an analysis of the legislative history of § 6(j) and lower court interpretation of Seeger.] Against this legislative history it is a remarkable feat of judicial surgery to remove, as did Seeger, the theistic requirement of § 6(j). The prevailing opinion today, however, in the name of interpreting the will of Congress, has performed a lobotomy and completely transformed the statute by reading out of it any distinction between religiously acquired beliefs and those deriving from “essentially political, sociological, or philosophical views or a merely personal moral code.”. . . Of the five pertinent definitions [in Webster’s New International Dictionary, Unabridged, 2d ed., 1934], four include the notion of either a Supreme Being or a cohesive, organized group pursuing a common spiritual purpose together. While, as the Court’s opinion in Seeger points out, these definitions do not exhaust the almost infinite and sophisticated possibilities for defining “religion,” there is strong evidence that Congress restricted, in this instance, the word to its conventional sense. . . .

When the plain thrust of a legislative enactment can only be circumvented by distortion to avert an inevitable constitutional collision, it is only by exalting form over substance that one can justify this veering off the path that has been plainly marked by the statute. Such a course betrays extreme skepticism as to constitutionality, and, in this instance, reflects a groping to preserve the conscientious objector exemption at all cost. I cannot subscribe to a wholly emasculated construction of a statute to avoid facing a latent constitutional question, in purported fidelity to the salutary doctrine of avoiding unnecessary resolution of constitutional issues, a principle to which I fully adhere. . . . It is, of course, desirable to salvage by construction legislative enactments whenever there is good reason to believe that Congress did not intend to legislate consequences that are unconstitutional, but it is not permissible, in my judgment, to take a lateral step that robs legislation of all meaning in order to avert the collision between its plainly intended purpose and the commands of the Constitution. . . . The constitutional question that must be faced in this case is whether a statute that defers to the individual’s conscience only when his views emanate from adherence to theistic religious beliefs is within the power of Congress. Congress, of course, could, entirely consistently with the requirements of the Constitution, eliminate all exemptions for conscientious objectors. Such a course would be wholly “neutral” and, in my view, would not offend the Free Exercise Clause. . . . However, having chosen to exempt, it cannot draw the line between theistic or nontheistic religious beliefs on the one hand and secular beliefs on the other. Any such distinctions are not, in my view, compatible with the Establishment Clause of the First Amendment. . . . The “radius” of this legislation is the conscientiousness with which an individual opposes war in general, yet the statute, as I think it must be construed, excludes from its “scope” individuals motivated by teachings of nontheistic religions, and individuals guided by an inner ethical voice that bespeaks secular and not “religious” reflection. It not only accords a preference to the “religious” but also disadvantages adherents of religions that do not worship a Supreme Being. The constitutional infirmity cannot be cured, moreover, even by an impermissible construction that eliminates the theistic requirement and simply draws the line between religious and nonreligious. This in my view offends The Free Exercise of Religion

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the Establishment Clause and is that kind of classification that this Court has condemned. . . . When a policy has roots so deeply embedded in history, there is a compelling reason for a court to hazard the necessary statutory repairs if they can be made within the administrative framework of the statute and without impairing other legislative goals, even though they entail, not simply eliminating an offending section, but rather building upon it. Thus I am prepared to accept the prevailing opinion’s conscientious objector test, not as a reflection of congressional statutory intent but as patchwork of judicial making that cures the defect of underinclusion in § 6(j) and can be administered by local boards in the usual course of business. Like the prevailing opinion, I also conclude that petitioner’s beliefs are held with the required intensity and consequently vote to reverse the judgment of conviction. JUSTICE WHITE, joined by CHIEF JUSTICE BURGER and JUSTICE STEWART, dissenting: Whether or not United States v. Seeger accurately reflected the intent of Congress in providing draft exemptions for religious conscientious objectors to war, I cannot join today’s construction of § 6(j) extending draft exemption to those who disclaim religious objections to war and whose views about war represent a purely personal code arising not from religious training and belief as the statute requires but from readings in philosophy, history, and sociology. Our obligation in statutory construction cases is to enforce the will of Congress, not our own; and as JUSTICE HARLAN has demonstrated, construing § 6(j) to include Welsh exempts from the draft a class of persons to whom Congress has expressly denied an exemption. For me that conclusion should end this case. Even if Welsh is quite right in asserting that exempting religious believers is an establishment of religion forbidden by the First Amendment, he nevertheless remains one of those persons whom Congress took pains not to relieve from military duty. Whether or not § 6(j) is constitutional, Welsh had no First Amendment excuse for refusing to report for induction. If it is contrary to the express will of Congress to exempt Welsh, as I think it is, then there is no warrant for saving the religious exemption and the statute by redrafting it in this Court to include Welsh and all others like him. . . . If I am wrong in thinking that Welsh cannot benefit from invalidation of § 6(j) on Establishment 288

Clause grounds, I would nevertheless affirm his conviction; for I cannot hold that Congress violated the Clause in exempting from the draft all those who oppose war by reason of religious training and belief. In exempting religious conscientious objectors, Congress was making one of two judgments, perhaps both. First, § 6(j) may represent a purely practical judgment that religious objectors, however admirable, would be of no more use in combat than many others unqualified for military service. Exemption was not extended to them to further religious belief or practice but to limit military service to those who were prepared to undertake the fighting that the armed services have to do. On this basis, the exemption has neither the primary purpose nor the effect of furthering religion. . . . Second, Congress may have granted the exemption because otherwise religious objectors would be forced into conduct that their religions forbid and because in the view of Congress to deny the exemption would violate the Free Exercise Clause or at least raise grave problems in this respect. True, this Court has more than once stated its unwillingness to construe the First Amendment, standing alone, as requiring draft exemptions for religious believers. . . . But this Court is not alone in being obliged to construe the Constitution in the course of its work; nor does it even approach having a monopoly on the wisdom and insight appropriate to the task. Legislative exemptions for those with religious convictions against war date from colonial days. . . . However this Court might construe the First Amendment, Congress has regularly steered clear of free exercise problems by granting exemptions to those who conscientiously oppose war on religious grounds. . . . On the assumption, however, that the Free Exercise Clause of the First Amendment does not by its own force require exempting devout objectors from military service, it does not follow that § 6(j) is a law respecting an establishment of religion within the meaning of the First Amendment. It is very likely that § 6(j) is a recognition by Congress of free exercise values and its view of desirable or required policy in implementing the Free Exercise Clause. That judgment is entitled to respect. . . . The Establishment Clause as construed by this Court unquestionably has independent significance; its function is not wholly auxiliary to the Free Exercise Clause. It bans some involvements of the State with religion that otherwise might be consistent with the Free Exercise Clause. But when in the

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rationally based judgment of Congress free exercise of religion calls for shielding religious objectors from compulsory combat duty, I am reluctant to frustrate the legislative will by striking down the statutory exemption because it does not also reach those to whom the Free Exercise Clause offers no protection whatsoever. I would affirm the judgment below. What Is Religion? A fundamental question has been avoided to some degree in both of the chapters on religion. What counts as religion for purposes of the religion clauses? The conscription cases address this question to some degree. Those cases focus on interpreting the requirements of statutes, but there is an underlying question of what counts as sincere religious beliefs. Those ruminations have clear Constitutional implications. In Chapter 5, we explored the question of what constitutes the press these days. The same might be asked about religion for purposes of the religion clauses. Surely not every set of beliefs constitutes a religion. Efforts are continually put forth to define people’s beliefs as religion, often to avoid paying taxes or to avoid criminal prosecution. Imagine that there is a temple dedicated to heavenly experiences where the ritual involves sexual intimacy and the belief is that monetary offerings must be paid to the priestess in order to fully appreciate the experience. Sometimes this establishment is simply known as a bordello. Claiming to be a religion surely could not help the owner avoid criminal charges. But there are cases in which the claim is not clearly fraudulent, but

in which it is not clear that the beliefs should be considered a religion either. In the establishment clause cases, it is clear that the Constitution protects nonreligious people as much as the religious ones. In other words, government cannot favor one religion over another, nor can it favor religion over nonreligion. In free exercise cases it seems that ideas such as sincerely held beliefs count for something, so religion need not necessarily involve a deity. But the Court has really not really defined religion in the way that it has defined speech. In an ever more pluralistic society, the question is sure to keep arising. We now return to the topics that we introduced at the beginning of the religion part of this book. Religion is a powerful force, sometimes for good, sometimes for evil. As this chapter is being written, horrible conflicts are being fought around the world on the basis of sectarian differences. Governments are almost always involved on one side or the other, manipulating and using religion to their benefit. Sadly, no matter when these words are being read it is likely that the same thing will be occurring somewhere in the world. Those who included the First Amendment in the Bill of Rights understood this. Although our history has its own share of strife and embarrassing episodes related to religion, surely we have been better off as a society because of the religion clauses in the Constitution. People can and do disagree about how best to protect both the religious rights of individuals and the larger society in which they live, but avoiding serious attention to the hard constitutional questions surely is not wise.

SELECTED REFERENCES Devins, Neal. “Fundamentalist Christian Educators v. State: George Washington Law Review, Vol. 60 (1992), 818. Lupu, Ira. “The Separation of Powers and the Protection of Children,” University of Chicago Law Review, Vol. 61 (1994), 1317. Marshall, William P. “In Defense of Smith and Free Exercise Revisionism,” University of Chicago Law Review, Vol. 58 (1991), 308.

McConnell, Michael. “A Response to Professor Marshall,” University of Chicago Law Review, Vol. 58 (1991), 329. McConnell, Michael. “The Origins and Historical Understanding of Free Exercise of Religion,” Harvard Law Review, Vol. 103 (1990), 1409.

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

PART IV THE RIGHTS OF THE ACCUSED AND THE CRIMINAL JUSTICE SYSTEM

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he criminal justice system is one of the best barometers by which to assess the overall nature, dynamics, and viability of American democracy and politics. Those who wish to discern more clearly how courts—including the Supreme Court—function and affect our everyday lives in very concrete contexts will profit from viewing our rights and liberties in the context of “A Framework for Analysis” provided in Part I of this volume (Chapters 1 and 2). We suggest that these and related matters become especially clear and salient in cases that deal with the rights of the accused and justice for people who are subject to the vagaries of the criminal justice system. Indeed, how best to protect persons and property from criminals and criminal activity continues to rank among the most challenging and perennial concerns of government. As crime rates explode to alarming proportions all over the nation, demands that government do more to control the problem intensify. Not only does such a phenomenon have major implications for policymakers, but it also tests the commitment of the American people to the Constitution and to a Bill of Rights that guarantees certain rights to people who are accused of crimes. The critical question, then, is how we deal with crime and criminals expeditiously and effectively while holding to the values and concepts of the Constitution and the Bill of Rights. The way in which a president exercises the constitutional power to appoint judges to our federal courts, including the Supreme Court, could prove crucial to the way that this question is approached and could even

determine its answer. The divisive nature of the politics between our two major parties clearly does not make this an easy question. Some people suggest that appointments to the federal judiciary—most visibly apparent in the choices of justices who serve on the Supreme Court—are good portents of changes and fluctuations that occur with respect to our rights and liberties in general. Such rights particularly include the rights of the accused and of other people who become embroiled in our criminal justice system. “Law-and-order” advocates and sympathizers often denounce “overly permissive” judges and courts for “coddling” criminals. These same critics denounce the Supreme Court for its expansive interpretation of specific guarantees of the Bill of Rights generally. They believe that such a view rejects time-honored police procedures and practices and that such restrictions can frustrate efforts of the law enforcement community to control and reduce criminal activity. Such criticisms were especially directed to the Supreme Court under Chief Justice Earl Warren. Warren, who was the former governor of California, was himself the major rival to General Eisenhower for the 1952 presidential election. As president, Eisenhower appointed Warren to the Court. Some critics viewed the Warren Court as favoring the “criminal forces” over the “peace forces,” thereby endangering important societal needs and interests. Certainly the Warren Court brought about revolutionary changes in criminal law during the 1960s, which did tend to strengthen the constitutional shield of those who were accused of crimes. These changes clearly disappointed President Eisenhower, who 291

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openly expressed his dissatisfaction with Chief Justice Warren. However, as we shall see, the Burger Court, particularly beginning in the mid-1970s, slowed the forward thrust of the Warren Court. Its rulings narrowed and limited several important decisions, not only in the criminal law area, but in our rights and liberties generally. That more restrictive stance was even more pronounced in the Rehnquist Court from the mid-1980s through the remainder of the century, until Rehnquist’s death in 2005. Though there are already some signals of the direction the Court will take in coming years, it generally remains to be seen how the Court will fare under the leadership of Chief Justice John G. Roberts, Jr., who was appointed by President George W. Bush. Changes in federal judgeships, which are most visible at the Supreme Court level, have long reflected changes in constitutional interpretation. This was especially salient during the 1968 presidential campaign. Criminal law decisions of the Supreme Court were frequently criticized by Republican candidate Richard Nixon. Nixon charged that such decisions were contributing to the increase of crime in our streets and in our communities. Voicing the sentiments of many law enforcement officials (and others), Nixon said that Supreme Court decisions needed to support the “peace forces” and to remove the “barbed wire of legalism” erected by the Warren Court to protect the “criminal forces.” As a result of the 1968 election, candidate Nixon became President Nixon, and several factors combined to present the new president with the opportunity to do something about the decisional trends of the Warren Court. First, Chief Justice Warren’s desire to retire in 1968 was thwarted when Associate Justice Abe Fortas (who was nominated by President Johnson to become chief justice) was himself forced to resign from the Court. Fortas was accused of being involved in certain financial arrangements that many people thought were improper. Faced with the Fortas resignation and with his own “lame duck” status, President Johnson made no further attempt to name a chief justice to replace Warren, nor did he move in time to fill the seat that was vacated by Justice Fortas. As a result, the new president, Nixon, was presented with the rare opportunity to make two nominations to the Court shortly after taking office. He appointed Warren E. Burger as the new chief justice and Harry A. Blackmun as the replacement for Fortas. In 292

Nixon’s opinion, these choices reflected the kind of “strict constructionism” that was needed to curb decisional trends in the criminal law area. But, as Justice Blackmun and other justices before and after him clearly show, appointees do not always act in a way that conforms with presidential expectations. Following these two appointments, President Nixon had a chance in his first term (in 1971) to fill two other vacancies on the Court: one to replace Justice Hugo Black, who died in office; and another to take the seat vacated by Justice John Marshall Harlan II, who retired because of poor health. These two vacancies were filled by Lewis F. Powell of Virginia and William Rehnquist of Arizona. Nixon noted that Powell and Rehnquist carried with them strong credentials that were consistent with his own “strict constructionist” views. Had President Nixon not been forced to resign because of the Watergate scandal, he would have had the opportunity to appoint a fifth justice when Justice Douglas’s failing health precipitated his retirement in 1975. Douglas’s successor, Justice John Paul Stevens, was appointed to the Court by President Ford. When Justice Potter Stewart retired at the end of the 1980 term, President Reagan nominated Arizona State Court Judge Sandra Day O’Connor, who became the first woman to serve on the Court and who Reagan apparently felt had an “acceptable” decisional stance on criminal law issues. The retirement of Chief Justice Burger in 1986 gave President Reagan the opportunity to further the criminal law interests of his conservative constituency by elevating the Court’s most consistent conservative member, Associate Justice William H. Rehnquist, to the chief justiceship. At the same time, the president nominated conservative Appeals Court Judge Antonin Scalia to the seat that had been vacated by Rehnquist. When centrist Justice Lewis Powell retired at the end of the Court’s 1986 term, Reagan was able to solidify a conservative majority in the Court. But the president’s initial attempt to fill that vacancy with the high-profile conservative appeals court judge Robert Bork was rebuffed by the Democratic-controlled Senate. And when disclosure of past marijuana use derailed the nomination of his second choice, appeals court judge Douglas Ginsburg, the president had to settle for his third choice, appeals court judge Anthony Kennedy, whose stance on criminal law issues was not as clear and certain as that of Bork and Ginsburg. But in the few cases in

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which Kennedy participated toward the end of the Court’s 1987 term, he provided the crucial fifth vote in support of the conservative position on criminal law issues. During the following decade, as the Rehnquist Court continued to construe criminal law guarantees restrictively, Justice Kennedy was consistently among the majority. During President George H. W. Bush’s one term (1989–1993), two of the liberal bloc’s staunchest members (Justices William J. Brennan and Thurgood Marshall, who had been in the forefront of the justices who applied the constitutional guarantees of the accused expansively), retired because of declining health. When Bush selected Justices David Souter and Clarence Thomas to fill those vacancies, the conservative position of the Court on criminal law issues was enhanced significantly, particularly in the case of Justice Thomas. Once more, however, presidential expectations did not align with the subsequent judicial behavior of Justice Souter, who often—though not unexpected to some—supported the “liberal wing” of the Court. President Clinton’s appointment of Justices Ruth Bader Ginsburg and Stephen G. Breyer during his first term (1993–1997) to fill the vacancies occasioned by the retirement of Justices Byron White and Harry Blackmun has had little or no impact on the Court’s conservative stance in the resolution of questions of criminal law brought to the Court by the accused. The overall stance of the Roberts Court remains uncertain. But the retirement of Justice Souter in April 2009 granted President Barack Obama an opportunity to use his appointment powers not only to shape the Supreme Court, but also, as introductory chapters in Part I of this volume show, to swing the judicial pendulum and American politics generally in a more liberal direction. President Obama’s choice, Sonia Sotomayor, began her service on the Supreme Court in August 2009 and has thus far generally fulfilled beliefs that she will be a solid member of the Court’s liberal bloc. In 2010, President Obama replaced the retiring Justice Stevens with Elena Kagan, a former clerk for Justice Marshall. Her appointment to the Court marks the first time that three women have served concurrently on the Court, but it is not expected to materially alter the balance of power. When it is viewed in broader perspective, the expansion by the Warren Court of individual rights and liberties generally coincided with and accompanied

the expansion of rights of the accused as well as our criminal justice system. Consider some prime examples. At the heart of one case was the policy of the California Department of Corrections (CDC) assigning prisoners to double cells on the basis of race in order “to prevent violence caused [between and among] racial gangs.” (Johnson v. California, 545 U.S. 162, 2005). In a rather scathing 6–2 majority opinion (in which Chief Justice Rehnquist did not participate), Justice O’Connor referred directly to the landmark school desegregation decision that was handed down by the Warren Court (Brown v. Board of Education, 347 U.S. 483, 1954). Said Justice O’Connor: We have held that ‘all racial classifications [imposed by government] . . . must be analyzed by a reviewing court under strict scrutiny . . . The CDC claims that its policy should be exempt from our categorical rule because it is ‘neutral’—that is, it neither benefits nor burdens one group or individual more than any other group or individual. . . . In other words, [the CDC argued that] strict scrutiny should not apply because all prisoners are ‘equally segregated.’ But that argument ignores our repeated command that ‘racial classifications receive close scrutiny even when they may be said to burden or benefit the races equally. . .’

Then Justice O’Connor drove the point home. “Indeed,” she said, “we rejected the notion that separate but equal can ever be equal—or ‘neutral’—fifty years ago in Brown v. Board of Education, 347 U.S. 483 (1954) and we refuse to resurrect it today.” Consider still further the decision reached by the Court in another case (Snyder v. Louisiana, 552 U.S.__, 2008). Here the Supreme Court voided Louisiana’s use of preemptory challenges to strike all blacks from a white jury that sentenced a black defendant (Snyder) to death for killing his wife’s male companion. The trial was held within a year of the acquittal of O. J. Simpson. The defense counsel objected when the prosecution in closing arguments referred to the similarity between the O. J. Simpson case and the defendant Snyder. The prosecutor told the jury that it should not let him “get away” with this crime. However, both the trial judge and the Louisiana Supreme Court said that they saw no “discriminatory intent” in the prosecutor’s remarks. But the U.S. Supreme Court disagreed. Writing for a 7–2 Supreme Court majority, Justice Samuel Alito directed attention to striking a particular black

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man (Brooks) from the jury panel. Justice Alito rejected the “non-racial” reasons that were offered by the prosecution for striking this black juror. He stated that “the implausibility of the prosecutor’s explanation is reinforced by his acceptance of white jurors who disclosed conflicting obligations that appear to have been at least as serious [as those] of Mr. Brooks.” Thus, concluded Justice Alito, “for present purposes, it is enough to recognize that a peremptory strike shown to have been motivated in substantial part by discriminatory intent could not be sustained based on any lesser showing by the prosecution.” Such cases suggest areas in which our various rights and liberties interact and interconnect with each other. And nowhere is this more visible than in the rights of the accused and those who otherwise become subject to the vagaries of the criminal justice system. Consider, for example, the demographics of the prison population and incarceration rates, sentencing guidelines, the assistance of counsel, jury selection, and the death penalty. We suggest that in many ways succeeding courts at all levels—state and federal, including the U.S. Supreme Court—are still responding, refining, or restricting particular land-

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mark decisions that were rendered by the more liberally inclined Warren Court from 1953–1969. This is particularly the case given the strong adherence of judges and justices to follow stare decisis, except for convincing and overwhelming reasons. Even so, a close reading of our essays and featured cases shows that judges and courts, including the Supreme Court, when necessary somehow find such “reasons” to distinguish or otherwise interpret particular precedents differently from the case at hand. This tendency, of course, seems enhanced by changes in membership on the court, and leads invariably to decided shifts and swings in the continuous judicial conversation. The commentaries that follow examine the revolutionary expansion of the rights of the accused by the Warren Court (1953–1969), the contraction and/or elimination of some rights by the Burger Court (1969–1986), and on balance the continuing course of restrictive interpretations and/or elimination of those rights by the Rehnquist Court (1987–2005). We must, of course, continue to monitor the developing character of the Roberts Court, which clearly stands to be shaped by any further nominations by President Obama.

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

CHAPTER 8

THE EXCLUSIONARY RULE AND OTHER FOURTH AMENDMENT CONTROVERSIES

FEATURED CASES Mapp v. Ohio; City of Indianapolis v. Edmond; Virginia v. Moore; Arizona v. Gant

FOURTH AMENDMENT PROBLEMS: THE EXCLUSIONARY RULE CONTROVERSY FEATURED CASE

Mapp v. Ohio Despite the noble profession in the Fourth Amendment that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” most people whose liberty was in conflict with state governmental authority did not initially benefit from that guarantee. The states, as primary enforcers of criminal law under our federal system, were not bound by the Fourth Amendment. State actions were governed by similar provisions in state bills of rights, but the enforcement of those guarantees was at best wavering, uncertain, and uneven. By contrast, for those whose liberty was in conflict with federal authority, the Fourth Amendment had real meaning. As far back as 1886, in Boyd v. United States (116 U.S. 616), the Court, in effect, had tied the Fourth Amendment to the Fifth Amendment’s self-incrimination provision, indicating that the two “run almost into each other.” An unreasonable

search and seizure, the Court felt, is in reality a “compulsory extortion” of evidence that could result in compulsory self-incrimination. Subsequently, the Court ruled in Weeks v. United States (232 U.S. 383, 1914) that evidence obtained in violation of the Fourth Amendment is inadmissible in federal criminal prosecutions. Some states voluntarily adopted the Weeks rule, but most did not, and when, in Wolf v. Colorado (338 U.S. 25, 1949), the Court was urged to make the rule obligatory for the states, it refused to do so. Although the Court agreed that the Fourth Amendment guarantee against unreasonable searches and seizures was enforceable against the states through the Fourteenth Amendment, it nevertheless concluded that the exclusionary rule announced in Weeks was not an essential ingredient of that guarantee. The Court emphasized that the exclusionary rule was merely a rule of evidence imposed on federal courts, and state courts were free to admit or exclude illegally seized evidence according to their own laws. Two cases that were decided during the next decade portended the demise of the Wolf rule. First, Chief Justice Earl Warren’s sharp dissent in Breithaupt v. Abram (353 U.S. 43, 1957) indicated 295

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that at least four justices were ready to overrule Wolf. The Court majority in that case upheld a conviction that was based on evidence obtained by taking a blood sample from the accused while he was unconscious in a hospital to prove intoxication. In the second action, in 1960, the Court struck down the “silver platter” doctrine in Elkins v. United States (364 U.S. 206). That doctrine had permitted the admission in federal prosecutions of evidence that was illegally obtained by state officers as long as there was no complicity. In 1961, the Wolf rule was finally laid to rest in Mapp v. Ohio (367 U.S. 643), a case that began a period of revolutionary holdings in criminal procedure by the Warren Court. The Court reversed a conviction for possession of obscene literature in which the evidence against the accused was obtained by forcible police entry without a search warrant. In his opinion for the five-man majority, Justice Tom Clark stressed the need to observe the command of the Fourth Amendment and stated that since Wolf had made this command enforceable against the states, it should no longer be permitted “to remain an empty promise.” In its first application of the Mapp rule, the Court appeared to make a mild retreat. In Ker v. California (374 U.S. 23, 1963), the Court affirmed a conviction in which the evidence was obtained without a search warrant and entry was gained using the building manager’s passkey. Justice Clark’s opinion for the majority distinguished between state’s evidence and evidence that was held inadmissible because it violated a federal statute. He noted that the evidence would have been inadmissible in a federal prosecution because a federal statute would bar it. Furthermore, he emphasized that such a prohibition had no application to a state prosecution “where admissibility is governed by constitutional standards.” Justice Clark thought that our federal system required recognition of state power to develop arrest and search and seizure rules (consistent with the Constitution) “to meet the practical demands of effective criminal investigation and law enforcement.” But if Ker implied any “soft” application of Mapp, it was quickly dispelled one year later in Aguillar v. Texas (378 U.S. 108, 1964). Here the Court reversed a narcotics conviction and in doing so made it clear that the Mapp rule must be obeyed and that no shabby subterfuges would be tolerated. In speaking for the Court, Justice Arthur Goldberg said that a determination about the constitutionality of a search warrant should begin with the rule that “the 296

informed and deliberate determinations of magistrates empowered to issue warrants . . . are to be preferred over the hurried action of officers . . . who may happen to make the arrests.” The Court explicated these principles further in Spinelli v. United States (393 U.S. 410, 1969), when it reversed a federal criminal conviction for interstate travel in aid of bookmaking. Justice Harlan’s opinion for the Court reemphasized the Court’s established propositions regarding issuance of warrants: 1. Only the probability, and not a prima facie showing of criminal activity, is the standard of probable cause. 2. Affidavits of probable cause are tested by much less rigorous standards than the standards that govern admissibility of evidence at trial. 3. In determining probable cause, issuing magistrates are not proscribed from the use of common sense. 4. Reviewing courts should accord great deference to determinations of probable cause by issuing magistrates.

The immediate response to Mapp in the law enforcement community was very negative. Generally, police officials saw the Mapp rule as judicial meddling with police procedures that made obtaining evidence of crimes much more difficult, if not impossible. The head of the Minneapolis detective bureau was quoted during a burglary wave in that city in 1962: “I’d have 20 guys in jail right now if we didn’t have to operate under present search and seizure laws.”1 Chicago Superintendent of Police Orlando W. Wilson also indicated his misgivings about the Mapp rule. Speaking to a conference of law enforcement officials, Wilson surmised that the police could probably live with the exclusionary rule because there appeared to be no alternative, but he wondered whether the public could tolerate it. “If we followed some of our court decisions literally,” said Wilson, “the public would be demanding my removal as Superintendent of Police . . . with justification.”2 1 From a Minneapolis Star news item cited in Yale Kamisar, “On the Tactics of Police-Prosecutor Oriented Critics of the Courts,” 49 Cornell Law Quarterly 436 (September 1964). 2 Orlando W. Wilson. “Police Authority in a Free Society,” 54 Journal of Criminal Law, Crime, and Police Science 173 (March 1963). For a good review of much of the criticism of the Mapp rule, see Bradley Canon, “The Exclusionary Rule in Failing Health? Some New Data and a Plea Against a Precipitous Conclusion,” 62 Kentucky Law Journal 681 (1974).

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

In addition, some scholars and observers of police behavior have found that the primary purpose of the exclusionary rule—observance of Fourth Amendment requirements by law enforcement officials (police deterrence)—was not being realized.3 Certainly such findings, and the growing public concern over the steady increase in crime, served to intensify the debate over the efficacy of the exclusionary rule in various 3 See, for example, Dallin Oaks, “Studying the Exclusionary Rule in Search and Seizure,” 37 University of Chicago Law Review 655 (1970). For an interesting perspective on the exclusionary rule controversy, see Lane V. Sunderland, “Liberals, Conservatives, and the Exclusionary Rule,” 71 Journal of Criminal Law and Criminology 343 (1980).

contexts—searches incident to an arrest, interdiction of illegal drugs, vehicular searches, and searches enabled by technology advances. Therefore, some called for the modification or abandonment of the exclusionary rule regarding whether the evidence obtained in such searches should be excluded or used. The debate continues and is reflected clearly in the introductory essays and cases decided during the period 1999–2009, as discussed in this ninth edition of this volume. As we shall see, the dynamics involved here are relevant not only to criminal law but to our rights and liberties in other issue areas as well. We begin our study of the rights of the accused and the criminal law area generally with the 1961 landmark decision of Supreme Court in Mapp v. Ohio.

MAPP V. OHIO 367 U.S. 643; 6 L. Ed. 2d 1081; 81 S. Ct. 1684 (1961) JUSTICE CLARK delivered the opinion of the Court, in which CHIEF JUSTICE WARREN and JUSTICES BLACK, DOUGLAS, and BRENNAN joined. JUSTICE BLACK filed a concurring opinion. JUSTICE HARLAN filed a dissenting opinion, in which JUSTICES FRANKFURTER and WHITTAKER joined and JUSTICE STEWART joined as to Part I, but expressed no view on the merits of the constitutional issues decided by the Court. JUSTICE CLARK delivered the opinion of the court. Appellant stands convicted of knowingly having had in her possession and under her control certain lewd and lascivious books, pictures, and photographs in violation of . . . Ohio’s Revised Code . . . . On May 23, 1957, three Cleveland police officers arrived at appellant’s residence in that city pursuant to information that “a person [was] hiding out in the home, who was wanted for questioning in connection with a recent bombing, and that there was a large amount of policy paraphernalia being hidden in the home.” Miss Mapp and her daughter by a former marriage lived on the top floor of the twofamily dwelling. Upon their arrival at that house, the officers knocked on the door and demanded entrance, but appellant, after telephoning her attorney, refused to admit them without a search warrant. They advised their headquarters of the situation and

undertook a surveillance of the house. The officers again sought entrance some three hours later when four or more additional officers arrived on the scene. When Miss Mapp did not come to the door immediately, at least one of the several doors to the house was forcibly opened and the policemen gained admittance. Meanwhile Miss Mapp’s attorney arrived, but the officers, having secured their own entry, and continuing in their defiance of the law, would permit him neither to see Miss Mapp nor to enter the house. It appears that Miss Mapp was halfway down the stairs from the upper floor to the front door when the officers, in this high-handed manner, broke into the hall. A paper, claimed to be a warrant, was held up by one of the officers. She grabbed the “warrant” and placed it in her bosom. A struggle ensued in which the officers recovered a piece of paper and as a result of which they handcuffed appellant because she had been “belligerent” in resisting their official rescue of the “warrant” from her person. Running roughshod over appellant, a policeman “grabbed her, “twisted [her] hand,” and she “yelled and pleaded with him” because “it was hurting.” Appellant, in handcuffs, was then forcibly taken upstairs to her bedroom where the officers searched a dresser, a chest of drawers, closet and some suitcases. They also looked into a photo album and through per-

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sonal papers belonging to the appellant. The search spread into the rest of the second floor including the child’s bedroom, the living room, the kitchen and a dinette. The basement of the building and a trunk found therein were also searched. The obscene materials for possession of which she was ultimately convicted were discovered in the course of that widespread search. At the trial no search warrant was produced by the prosecution, nor was the failure to produce one explained or accounted for. At best, [said the State Supreme Court,] “there is, in the record, considerable doubt as to whether there ever was any warrant for the search of defendant’s home.”. . . The Ohio Supreme Court believed a “reasonable argument” could be made that the conviction should be reversed “because the ‘methods’ employed to obtain the [evidence] . . . were such as to ‘offend “a sense of justice,” ’ but the court found determinative the fact that the evidence had not been taken “from defendant’s person by the use of brutal or offensive physical force against defendant.”. . . [Hence, it found that the conviction was valid.] The State says that even if the search were made without authority, or otherwise unreasonably, it is not prevented from using the unconstitutionally seized evidence at trial, citing Wolf v. Colorado . . . in which this Court did indeed hold “that in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure. . . .” Seventy-five years ago in Boyd v. United States, 116 U.S. 616 (1886) . . ., considering the Fourth and Fifth Amendments as running “almost into each other” on the facts before it, this Court held that the doctrines of those Amendments “apply to all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private liberty. . . . Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man’s own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation . . . [of those Amendments].” . . . The Court in the Weeks case clearly stated that use of the seized evidence involved “a denial of the constitutional rights of the accused.”. . . Thus, in the year 1914, in the Weeks case, this Court “for the first 298

time” held that “in a federal prosecution the Fourth Amendment barred the use of evidence secured through an illegal search and seizure.” (Wolf v. Colorado. . . .) This Court has ever since required of federal law officers a strict adherence to that command which this Court has held to be a clear, specific, and constitutionally required—even if judicially implied—deterrent safeguard without insistence upon which the Fourth Amendment would have been reduced to “a form of words.”. . . It meant, quite simply, that conviction by means of unlawful seizures and enforced confessions . . . should find no sanction in the judgments of the courts. . . .” There are in the cases of this Court some passing references to the Weeks rule as being one of evidence. But the plain and unequivocal language of Weeks—and its later phrase in Wolf—to the effect that the Weeks rule is of constitutional origin, remains entirely undisturbed. . . . In 1949, thirty-five years after Weeks was announced, this Court, in Wolf v. Colorado, . . . again for the first time, discussed the effect of the Fourth Amendment upon the States through the operation of the Due Process Clause of the Fourteenth Amendment. It said: [W]e have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment. Nevertheless, after declaring that the “security of one’s privacy against arbitrary intrusion by the police” is “implicit in the ‘concept of ordered liberty’ and as such enforceable against the States through the Due Process Clause,” cf. Palko v. Connecticut, 302 U.S. 319 (1937) . . ., and announcing that it “stoutly adhere[d]” to the Weeks decision, the Court decided that the Weeks exclusionary rule would not then be imposed upon the States as “an essential ingredient of the right.”. . . The Court’s reasons for not considering essential to the right of privacy, as a curb imposed upon the States by the Due Process Clause, that which decades before had been posited as part and parcel of the Fourth Amendment’s limitation upon federal encroachment of individual privacy, were bottomed on factual considerations. While they are not basically relevant to a decision that the exclusionary rule is an essential ingredient of the Fourth Amendment as the right it embodies is vouchsafed against the States by the Due Process Clause, we will consider the current validity of the factual grounds upon which Wolf was based.

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

The Court in Wolf first stated that “[t]he contrariety of views of the States” on the adoption of the exclusionary rule of Weeks was “particularly impressive” . . .; and, in this connection, that it could not “brush aside the experience of States which deem the incidence of such conduct by the police too slight to call for a deterrent remedy . . . by overriding the [States’] relevant rules of evidence.” . . . While in 1949, prior to the Wolf case, almost two-thirds of the States were opposed to the use of the exclusionary rule, now, despite the Wolf case, more than half of those since passing upon it, by their own legislative or judicial decision, have wholly or partly adopted or adhered to the Weeks rule. See Elkins v. United States, 364 U.S. 206 (1960). . . . Significantly, among those now following the rule is California which, according to its highest court, was “compelled to reach that conclusion because other remedies have completely failed to secure compliance with the constitutional provisions. . . .” The experience of California that such other remedies have been worthless and futile is buttressed by the experience of other States. The obvious futility of relegating the Fourth Amendment to the protection of other remedies has, moreover, been recognized by this Court since Wolf. . . . Likewise, time has set its face against what Wolf called the “weighty testimony” of People v. Defore, 242 N.Y. 13, 150 N.E. 585 (1962). There Justice (then Judge) Cardozo, rejecting adoption of the Weeks exclusionary rule in New York, had said that “the Federal rule as it stands is either too strict or too lax.”. . . However, the force of that reasoning has been largely vitiated by later decisions of this Court. These include the recent discarding of the “silver platter” doctrine which allowed federal judicial use of evidence seized in violation of the Constitution by state agents, Elkins v. United States, 364 U.S. 206, 111; the relaxation to the formerly strict requirements as to standing to challenge the use of evidence thus seized, so that now the procedure of exclusion, “ultimately referable to constitutional safeguards,” is available to anyone even “legitimately on [the] premises” unlawfully searched, Jones v. United States, 362 U.S. 257, 111 (1960); and, finally, the formulation of a method to prevent state use of evidence unconstitutionally seized by federal agents, Rea v. United States, 350 U.S. 214, 111 (1956). Because there can be no fixed formula, we are admittedly met with “recurring questions of the reasonableness of searches.” But less is not to be expected when dealing with a Constitution, and, at any rate, “reasonableness is in the first in-

stance for the [trial court] . . . to determine.” United States v. Rabinowitz, 339 U.S. 56, . . . (1950). It, therefore, plainly appears that the factual considerations supporting the failure of the Wolf Court to include the Weeks exclusionary rule when it recognized the enforceability of the right to privacy against the States in 1949, while not basically relevant to the constitutional consideration, could not, in any analysis, now be deemed controlling. Since the Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government. . . . Moreover, our holding that the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments is not only the logical dictate of prior cases, but it also makes very good sense. There is no war between the Constitution and common sense. Presently, a federal prosecutor may make no use of evidence illegally seized, but a State’s attorney across the street may, although he supposedly is operating under the enforceable prohibitions of the same Amendment. Thus the State, by admitting evidence unlawfully seized, serves to encourage disobedience to the Federal Constitution which it is bound to uphold. . . . There are those who say, as did JUSTICE (then Judge) CARDOZO, that under our constitutional exclusionary doctrine “the criminal is to go free because the constable has blundered.” People v. Defore, 242 N.Y. at 21. . . . In some cases this will undoubtedly be the result. But, as was said in Elkins, “there is another consideration—the imperative of judicial integrity. . . .” The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its laws, or worse, its disregard of the charter of its own existence. . . . The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest. Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its

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enjoyment. . . . The judgment of the Supreme Court of Ohio is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. JUSTICE BLACK, concurring: I am still not persuaded that the Fourth Amendment, standing alone, would be enough to bar the introduction into evidence against an accused of papers and effects seized from him in violation of its commands. For the Fourth Amendment does not itself contain any provision expressly precluding the use of such evidence, and I am extremely doubtful that such a provision could properly be inferred from nothing more than the basic command against unreasonable searches and seizures. Reflection on the problem, however, in the light of cases coming before the Court since Wolf, has led me to conclude that when the Fourth Amendment’s ban against unreasonable searches and seizures is considered together with the Fifth Amendment’s ban against compelled self-incrimination, a constitutional basis emerges which not only justifies but actually requires the exclusionary rule. . . . . . . As I understand the Court’s opinion in this case, we again reject the confusing “shock the conscience” standard of the Wolf and Rochin cases and, instead, set aside this state conviction in reliance upon the precise, intelligible and more predictable constitutional doctrine enunciated in the Boyd case. I fully agree with Justice Bradley’s opinion that the two Amendments upon which the Boyd doctrine rests are of vital importance in our constitutional scheme of liberty and that both are entitled to a liberal rather than a niggardly interpretation. The courts of the country are entitled to know with as much certainty as possible what scope they cover. The Court’s opinion, in my judgment, dissipates the doubt and uncertainty in this field of constitutional law, and I am persuaded, for this and other reasons stated, to depart from my prior views, to accept the Boyd doctrine as controlling in this state case, and to join the Court’s judgment and opinion which are in accordance with that constitutional doctrine. JUSTICE HARLAN, joined by JUSTICES FRANKFURTER and WHITTAKER, dissenting: In overruling the Wolf case the Court, in my opinion, has forgotten the sense of judicial restraint which, with due regard for stare decisis, is one element that should enter into deciding whether a past decision of this Court should be overruled. Apart from that I also believe that 300

the Wolf rule represents sounder constitutional doctrine than the new rule which now replaces it. . . . I would not impose upon the States this federal exclusionary remedy. The reasons given by the majority for now suddenly turning its back on Wolf seem to be notably unconvincing. First, it is said that “the factual grounds upon which Wolf was based” have since changed, in that more States now follow the Weeks exclusionary rule than was so at the time Wolf was decided. While that is true, a recent survey indicated that at present one half of the States still adhere to the common-law nonexclusionary rule, and one, Maryland, retains the rule as to felonies. . . . But in any case surely all this is beside the point, as the majority itself indeed seems to recognize. Our concern here, as it was in Wolf, is not with the desirability of that rule but only with the question whether the States are constitutionally free to follow it or not as they may themselves determine, and the relevance of the disparity of views among the States on this point lies simply in the fact that the judgment involved is a debatable one. Moreover, the very fact on which the majority relies, instead of lending support to what is now being done, points away from the need of replacing voluntary state action with federal compulsion. The preservation of a proper balance between state and federal responsibility in the administration of criminal justice demands patience on the part of those who might like to see things move faster among the States in this respect. Problems of criminal law enforcement vary widely from State to State. One State, in considering the totality of its legal picture, may conclude that the need for embracing the Weeks rule is pressing because other remedies are unavailable or inadequate to secure compliance with the substantive constitutional principle involved. Another, though equally solicitous of constitutional rights, may choose to pursue one purpose at a time, allowing all evidence relevant to guilt to be brought into a criminal trial, and dealing with constitutional infractions by other means. Still another may consider the exclusionary rule too rough and ready a remedy, in that it reaches only unconstitutional intrusions which eventuate in criminal prosecution of the victims. Further, a State after experimenting with the Weeks rule for a time may, because of unsatisfactory experience with it, decide to revert to a nonexclusionary rule. And so on. . . . For us the question remains, as it has always been, one of state power, not one of passing judgment on the wisdom of one state course or

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another. In my view this Court should continue to forbear from fettering the States with an adamant rule which may embarrass them in coping with their own peculiar problems in criminal law enforcement. Further, we are told that imposition of the Weeks rule on the States makes “very good sense,” in that it will promote recognition by state and federal officials of their “mutual obligation to respect the same fundamental criteria” in their approach to law enforcement, and will avoid “needless conflict between state and federal courts.” Indeed the majority now finds an incongruity in Wolf’s discriminating perception between the demands of “ordered liberty” as respects the basic right of “privacy” and the means of securing it among the States. That perception, resting both on a sensitive regard for our federal system and a sound recognition of this Court’s remoteness from particular state problems, is for me the strength of that decision. An approach which regards the issue as one of achieving procedural symmetry or of serving administrative convenience surely disfigures the boundaries of this Court’s functions in relation to the state and federal courts. Our role in promulgating the Weeks rule and its extensions . . . was quite a different one than it is here. There, in implementing the Fourth Amendment, we occupied the position of a tribunal having the ultimate responsibility for developing the standards and procedures of judicial administration within the judicial system over which it presides. Here we review state procedures whose measure is to be taken not against the specific substantive commands of the Fourth Amendment but under the flexible contours of the Due Process Clause. I do not believe that the Fourteenth Amendment empowers this Court to mould state remedies effectuating the right to freedom from “arbitrary intrusion by the police” to suit its own notions of how things should be done. . . . In conclusion, it should be noted that the majority opinion in this is in fact an opinion only for the judgment overruling Wolf, and not for the basic rationale by which four members of the majority have reached that result. For my Brother Black is unwilling to subscribe to their view that the Weeks exclusionary rule derives from the Fourth Amendment itself . . . but joins the majority opinion on the premise that its end result can be achieved by bringing the Fifth Amendment to the aid of the Fourth. . . . On that score I need only say that whatever the validity of the “Fourth-Fifth Amendment” correlation which the Boyd case . . . found, . . . we have only very recently again reiterated the long-established doctrine of this

Court that the Fifth Amendment privilege against selfincrimination is not applicable to the States. . . . I regret that I find so unwise in principle and so inexpedient in policy a decision motivated by the high purpose of increasing respect for constitutional rights. But in the last analysis I think this Court can increase respect for the Constitution only if it rigidly respects the limitations which the Constitution places upon it. . . . Memorandum of JUSTICE STEWART: I express no view as to the merits of the constitutional issue which the Court today decides. I would, however, reverse the judgment in this case because I am persuaded that the provision of the statute upon which the petitioner’s conviction was based is, in the words of JUSTICE HARLAN, not “consistent with the rights of free thought and expression. . . .”

THE FOURTH AMENDMENT IN RETREAT? EXPANDING WARRANTLESS SEARCHES FEATURED CASES

City of Indianapolis v. Edmond; Virginia v. Moore; Arizona v. Gant In Bivens v. Six Unknown Agents (403 U.S. 388, 1971), decided near the end of the Court’s 1970 term, Chief Justice Warren E. Burger’s sharp dissent portended an uncertain future for Mapp, particularly with the gradual depletion of the Warren Court “activist bloc.” The majority reaffirmed the suppression doctrine and construed the Fourth Amendment to permit actions for damages upon proof of injury resulting from the behavior of federal officers who were operating in violation of the Fourth Amendment. But Burger objected to this act of “judicial legislation” and was greatly troubled by the “high price” that the exclusionary rule “extracts from society.” Three years later, in United States v. Calandra (414 U.S. 338, 1974), the contraction of the exclusionary rule that was forecast in the Burger dissent in Bivens occurred. The case involved the use of illegally seized records, which were used to develop questions that were put to a witness in a federal grand jury investigation. A federal district court granted the motion to suppress the records, and the Court of Appeals for the Sixth Circuit, citing Weeks, affirmed. Chief Justice Burger and three other Nixon appointees (Blackmun,

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Powell, and Rehnquist) were joined by Warren Court holdover Justices Stewart and White in reversal. In the majority opinion that he authored, Justice Powell distinguished the grand jury process from a criminal trial. He stated that the grand jury process should not be hampered by “technical procedural and evidentiary rules” that apply to criminal trials. Powell tightened the reins on the exclusionary rule when he asserted that it was not “a personal constitutional right,” but a “judicially created remedy” to deter illegal searches by law enforcement officials. But such justifications did not satisfy Justices Brennan, Douglas, and Marshall. Brennan contended that in focusing on the “deterrent” purpose, the majority had submerged the central purpose of the exclusionary rule. It was designed, he argued, to assure the people “that the government would not profit from its [own] lawless behavior.” The Burger Court continued to express its displeasure with the exclusionary rule when it refused to apply it to a federal tax proceeding in United States v. Janis (428 U.S. 433, 1976). Justice Harry A. Blackmun, who spoke for the five-to-three majority (Justice Stevens did not participate), questioned the rule’s deterrence benefit. He argued that excluding the evidence that had been seized by Los Angeles police from the federal civil proceeding because it had been illegally seized did not “have a sufficient likelihood of deterring the conduct of the police so that it outweighs the societal costs imposed by the exclusion.” He argued that the judiciary should not confuse its role with those of the executive and legislative branches, which have the responsibility for supervising law enforcement. Three holdovers from the Warren Court (Brennan, Marshall, and Stewart) disagreed. Justice Brennan, in whose dissent Justice Marshall concurred, characterized the majority holding as the continuing “slow strangulation of the exclusionary rule” and reiterated his view, set forth in Calandra, that “the exclusionary rule is a necessary and inherent constitutional ingredient of the protections of the Fourth Amendment.” Justice Lewis Powell struck another blow at the exclusionary rule on the same day when the Court decided Stone v. Powell (428 U.S. 465, 1976). In rejecting federal habeas corpus relief to prisoners whose motions to suppress illegally obtained evidence were fully heard and denied by state courts, Powell questioned the exclusionary rule’s value as a conservator of the integrity of the judicial process, particularly when it was balanced against the exclusion of “highly probative evidence.” He warned that 302

the “[a]pplication of the rule . . . deflects the truth finding process, affording a windfall to the guilty which often results in the inability to convict him.” The Burger Court continued to show its apparent disdain for the exclusionary rule in several decisions in the late 1970s. Its holdings tended to balance the police misconduct deterrence rationale against societal costs in reduced prosecutions rather than accepting the rule as having a constitutional base. In two 1978 cases—United States v. Ceccolini (435 U.S. 268) and Rakas v. Illinois (439 U.S. 128)—Justice Rehnquist led the Court first in refusing to affirm lower court suppression of “live” testimony and second in affirming a state court refusal to exclude evidence seized from a car in which the defendants had been passengers when the police had not had property or possessory interest in the vehicle. Rehnquist was convinced that in the context of cases like Ceccolini and Rakas, application of the exclusionary rule exacted too high a societal cost for the minimal deterrence that exclusion of the evidence might have. In addition to Ceccolini and Rakas, two 1980 rulings appeared to further the “slow strangulation” of the exclusionary rule. First, in United States v. Salvucci (448 U.S. 83), the “automatic standing” rule announced in Jones v. United States (362 U.S. 257, 1960),4 under which those who were charged with crimes of possession could challenge the legality of a search that produced the evidence against them, was overturned in a seven-to-two decision. The district court had accepted the defendants’ claim that the warrant authorizing the search was constitutionally inadequate, and it granted a motion to suppress the evidence, which the court of appeals affirmed. But in overruling these lower court actions, Justice Rehnquist cited holdings that had eroded Jones and argued that standing to challenge the legality of the search which produced evidence against an accused person must now be supported by a showing that the person’s own Fourth 4 Here the Court recognized the dilemma facing accused persons when they are required to show that they have a property interest in the place searched, where evidence against them was seized in establishing their standing to challenge the constitutionality of the search. If they establish ownership or a possessory interest, such fact may be sufficient to convict them on a possession charge. The other horn of the dilemma is possible perjury as they attempt to establish standing. Justice Felix Frankfurter rejected such options afforded the accused, as the Court recognized that anyone legitimately on the premises where a search is conducted has “automatic standing” to challenge its legality in a suppression motion when the “fruits” of the search are proposed to be used against him or her (448 U.S. at 262–263, 1960).

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Amendment rights were violated. This, he concluded, was essential to claim the benefits of the exclusionary rule. Underscoring his “law and order” commitment, Rehnquist noted that the “automatic standing” doctrine merely served to “afford a windfall to defendants whose Fourth Amendment rights have not been violated.” The exclusion of probative evidence under such a rule was for him intolerable. In the other 1980 ruling—Rawlings v. Kentucky (448 U.S. 48)—the Court, speaking through Justice Rehnquist, rejected an attempt to invoke the exclusionary rule in a drug conviction. In that case, the petitioner pushed the “legitimate expectation of privacy” argument to establish his standing to assert a Fourth Amendment challenge to the search of his female companion’s purse in which his drugs were discovered. In such cases, Rehnquist asserted, trial courts may examine the “totality of the circumstances” to determine whether a defendant had “made” a sufficient showing that his legitimate expectations of privacy were violated in the search. He concluded that the inquiry after Rakas focuses on the simple query: “whether governmental officials violated any legitimate expectation of privacy held by [a] petitioner.”5 The Reagan administration’s persistent attacks on the exclusionary rule in the early 1980s helped to produce three major decisions that significantly narrowed the Fourth Amendment’s protective shield for the accused. First, in Illinois v. Gates (462 U.S. 213, 1983), the Court abandoned the two-pronged test emanating from Aguillar and Spinelli for assessing an informant’s tip in establishing probable cause for issuance of a search warrant and supplanted it with a “totality of circumstances” approach. The issuing magistrate’s “practical common-sense” judgment is emphasized, although he must have “a substantial basis for concluding that probable cause existed.” The flexibility of such an approach, the Court felt, would produce a much better accommodation of the competing public and private interests at issue in the search.6 The Court requested additional argument on whether there should be a “good faith” exception of the exclusionary rule, but the Court declined to rule on it because the issue had not been presented to the state courts in the earlier stages of the proceeding. 5 See also United States v. Payner (447 U.S. 727, 1980), in which the Court held that the deterrent interest is not sufficient to justify exclusion of tainted evidence of third parties. 6 The “totality of circumstances” approach was explicated further in Massachusetts v. Upton (466 U.S. 727, 1984).

But when it was appropriately presented to the Court one year later, the exception was permitted (United States v. Leon, 468 U.S. 897, and Massachusetts v. Sheppard, 468 U.S. 981). Justice Byron White’s opinion for the six-to-three majority stressed that the purpose of the rule was to deter police misconduct. White stated that when police officers act in “objectively reasonable reliance” (good faith) on a warrant that is presumed to be valid but that is subsequently found to be defective, the extreme sanction of exclusion is not required. For him, application of the exclusionary rule in the context of Leon would suppress “trustworthy” evidence at substantial costs to society. He reiterated the rule’s purpose: to deter police misconduct—not to punish the errors of issuing magistrates and judges. Some analysts did not consider the “good faith” exception a mortal blow to the exclusionary rule, but Justice William J. Brennan did. In dissent, he painstakingly reviewed the Court’s action on the rule during the last decade, characterizing that action as a “gradual but determined strangulation” of it. To him the majority had ignored the “fundamental importance” of the Fourth Amendment when it forged a cost/benefit analysis in which the “costs” of excluding evidence were “exaggerated” and the benefits were made to disappear with relative ease. But most troubling for him was the exception’s impact on future police and judicial behavior. He feared that magistrates would take less care in reviewing warrant applications and that police would not be as painstaking in providing information to support their applications for warrants. Another significant modification of the exclusionary rule was announced by the Court in Nix v. Williams (467 U.S. 431, 1984), just three weeks before the “good-faith exception” ruling. Here, a seven-to-two majority fashioned the “inevitable discovery” exception that allows admission of “tainted evidence” if the prosecution can establish that such evidence would have inevitably been discovered by lawful means.7 7 This case resulted from Williams’s second conviction for murder. His first conviction was overturned in 1977 (Brewer v. Williams, 430 U.S. 387) because incriminating statements admitted as evidence at the trial, from which other evidence was derived, were obtained by police officers contrary to the constitutional guarantee of the right to assistance of counsel. The Court upheld the trial court’s admission of evidence in the second trial that had been discovered as a result of the statements that had been held to be inadmissible in Brewer, accepting the state’s argument that the evidence would have been “inevitably discovered” through independent means of law enforcement agencies.

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Chief Justice Burger emphasized that such an “inevitable discovery” exception is consistent with the rationale of the longstanding “independent source” doctrine, where deterrence of police misconduct interests and the interests of the law enforcement community in the admission of all probative evidence of crimes are “properly balanced” by leaving police officials in essentially the same investigation position that they would have been in had there been no misconduct. But in dissent, Justice William J. Brennan pointed to the key distinction between the two exceptions—evidence sought to be admitted under the “inevitable discovery” exception could have the taint of police misconduct since it is not actually the product of an independent source. Consequently, he argued that this distinction demanded “a heightened burden of proof” before such evidence could be admitted. During President Reagan’s second term (1985–1989), Attorney General Edwin Meese was unsuccessful in his campaign to get the Court to abandon the rule altogether. Even with the elevation of staunch conservative Justice Rehnquist to chief justice in 1986 and the addition of conservatives Scalia (in 1986), Kennedy (in 1988), and Thomas (in 1991), the Court had given no indication that it was ready to take that final action. Rather, in one of its last rulings on the issue during the 1987 term—Murray v. United States (487 U.S. 533, 1988)—a narrow fourto-three majority was content to construe the “independent source” doctrine expansively and reject an attempt to suppress evidence that could well have been excluded in earlier years. The evidence for a drug-related prosecution was initially discovered upon illegal entry and was later seized on authority of a valid warrant that was issued by a magistrate; the fact of illegal entry was not disclosed by officers in their application for the warrant. In what appears to be a bow to added discretion of law enforcement officials, Justice Scalia contended for the Court that the “independent source” doctrine permits the introduction of evidence (even where there was an illegal initial entry) “obtained independently from lawful activities untainted by the initial illegality.” The crucial issue for the majority was whether the information presented to support issuance of the warrant was of “a genuinely independent source.” In short, would the warrant have been sought without the officers having seen the drugs during the illegal entry? Although Scalia took judicial notice of the fact that knowledge of the existence of drugs was acquired during the illegal entry, he noted that such knowledge was also 304

acquired from entry pursuant to the warrant. Hence, if the latter acquisition did not flow from the former, then the “independent source” doctrine preserves admission of the evidence. But the Court remanded the case to the district court to determine whether the warrant-authorized search was grounded on an independent source. The dissenters, led by Justice Thurgood Marshall, were concerned that this latest construction of the “independent source” doctrine was bound to undermine the deterrence value that has been the mainstay of the exclusionary rule. Noting that the majority had certainly strained the “independent source” doctrine in applying it to the facts of this case, Marshall bluntly asserted that the majority “loses sight of the practical moorings of the independent source exception and creates an affirmative incentive for unconstitutional searches.” Because the same team of investigators was involved in the illegal entry and the subsequent warrant-based search, he was very skeptical of the claim of “independent source.” Hence, he urged that to ensure that a search is not tainted by a “prior illegal search,” analysis should “focus . . . on ‘demonstrated historical facts capable of ready verification or impeachment.’” In the final analysis, the Murray ruling placed a greater burden on those who would invoke the exclusionary rule to suppress evidence against them in the Court’s continuous movement to loosen judicial restraints on law enforcement practices and procedures. Over the years, the warrant requirement of the Fourth Amendment has been adjusted or “loosened” by the Court to accommodate the needs of the law enforcement community in its effort to control crime in American society. To be sure, in the course of dayto-day law enforcement operations, it is often not possible or feasible for a police officer to obtain a warrant for searches and seizures before gathering evidence to prosecute criminal activity. For the most part, however, the Supreme Court has followed the basic constitutional doctrine that searches without prior approval of a “neutral and detached magistrate” are per se unreasonable under the Fourth Amendment and that any exceptions to this rule must be supported by a showing of special exigencies that make the warrantless search imperative. One such exigency that the Supreme Court has recognized over the years is the “search incident to a lawful arrest.” The Court held in Carroll v. United States (267 U.S. 132, 1925) that “[w]hen a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution.” Following that decision, the Court has accepted cases periodically that were vehicles for further explication of the doctrine. At times it adopted an expanded view of the doctrine and approved fairly extensive warrantless searches incident to arrests. This is well illustrated by decisions such as Harris v. United States (331 U.S. 145, 1947), in which the Court validated an extensive search of a four-room apartment supported only by the arrest warrant, and United States v. Rabinowitz (399 U.S. 56, 1950), where a 1.5-hour search of an office, including desks, safes, and file cabinets, was approved as incident to the arrest. In the context of these and similar cases, the Court applied a “plain view” doctrine to validate the seizure of evidence that was clearly visible in the “immediate area” of the arrest. On the other hand, the Supreme Court has at other times adopted a more limited view of the doctrine. In the 1931 and 1932 cases of Go-Bart Importing Co. v. United States (282 U.S. 344) and United States v. Lefkowitz (285 U.S. 452), for example, the Court held defective the less extensive searches of offices in which the arrest warrants were executed and the arresting officers “had an abundance of information and time to swear out a valid [search] warrant [and] failed to do so.” In Trupiano v. United States (334 U.S. 699, 1948), the Court, reaffirmed this position, asserting that “[i]t is a cardinal rule that in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable,” because “[a] search or seizure without a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right.” The Court reiterated these principles in Chimel v. California (395 U.S. 752, 1969) and took the occasion to lay to rest the principles of Harris and Rabinowitz. In his opinion for the Court, Justice Potter Stewart stressed that in order for such searches to be consistent with the Fourth Amendment, they must be limited to the arrestee’s “person and the area from within which he might have obtained either a weapon” or something that could be used as evidence against him. The Court continued to stress the limited use of warrantless searches in Vale v. Louisiana (399 U.S. 30, 1970), in which an extensive search of an arrestee’s house was held invalid because it was not limited to the “immediate vicinity” of his arrest on the front steps. The Court took a similar position in Coolidge v. New

Hampshire (403 U.S. 443, 1971), in which the search of an accused man’s automobile was rejected because it was conducted two days after his arrest, although it was accessible in his driveway when he was arrested. Apparently, concern for the sanctity of the home has continued to guide the Court in this area, particularly when residences were entered in order to effect arrests and/or conduct searches without valid warrants. For example, in Payton v. New York (445 U.S. 573, 1980), the Court struck down as a violation of the Fourth Amendment a state statute that authorized police officers without warrants to make forceful entries of residences for routine felony arrests. In Steagold v. United States (451 U.S. 204, 1981), decided one year later, the Court restricted police discretion in this area even further. In that case, the Court refused to allow an arrest warrant to justify the entry and search of a house that belonged to someone other than the person to whom the arrest warrant was directed. Similarly, in Welsh v. Wisconsin (466 U.S. 740, 1984), the Court rejected warrantless entry of residences in order to arrest persons for civil, nonjailable traffic offenses. The controversial “stop-and-frisk” police practice was another dimension of the warrantless search issue that was first considered by the Court during the Warren Court’s revolutionary actions in the criminal procedure area. Whether they are acting on the basis of statutory authorization or custom, many law enforcement agencies consider the procedure to be a valuable tool in their day-to-day battle to control criminal behavior. Although it is alleged that such practices do not conform to the “probable cause” requirement of the Fourth Amendment, the Supreme Court validated them in Terry v. Ohio (392 U.S. 1, 1968). Speaking for the eight-to-one majority, Chief Justice Earl Warren made it clear that the Court was not retreating from the warrant requirement of the Fourth Amendment but was merely applying a more practical standard in the limited search for weapons to prevent assault of the officer and others nearby. But to Justice Douglas, the lone dissenter, it was illogical to let police search people without probable cause and without a warrant, while they had to show probable cause if they applied to a magistrate for a warrant. He was troubled by the majority’s concession of authority to the police to cope with the crisis in crime. If the strictures of the Fourth Amendment needed loosening, he felt, a constitutional amendment was necessary. But by invalidating a “frisk” in Sibron v. New York (392 U.S. 40), a case decided the same day as Terry, the chief justice appeared to allay

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such fears. Warren insisted that “before a police officer places a hand on . . . a citizen in search of anything,” his actions must be supported by “constitutionally adequate reasonable grounds.” Furthermore, he emphasized, the officer must be able to point to specific facts from which he could reasonably infer that the person he stopped was armed and presented an immediate danger to him and others nearby, in order to justify a warrantless “frisk.” In the succeeding years, however, the Burger Court rulings appeared to be considerably more flexible in applying constitutional standards to the procedure. In Adams v. Williams (407 U.S. 143, 1972), for example, a “stop-and-frisk” was held to meet constitutional requirements even if there was no probable cause to effect an arrest. Justice William Rehnquist wrote in the Court’s opinion, “[t]he Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.” Furthermore, Rehnquist continued, an informant’s tip, if supported by sufficient indicia of reliability, could justify the stop-and-frisk. The three dissenters—Douglas, Brennan, and Marshall—decried this expansive interpretation of Terry and reiterated their understanding of the constitutional requirement that the procedure could be invoked only when direct observation of the police and other “well-authenticated information show ‘that criminal activity may be afoot.’(Terry).” They warned that loosening constitutional requirements for this practice could subject many innocent people to police harassment with at most “the slightest suspicion of improper conduct.” In several cases following Adams, the Burger Court majority did not consider the “protective search” limitation of Terry applicable and held valid “stop-andfrisk” type searches as “incidental to lawful custodial arrests.” (See United States v. Robinson, 414 U.S. 218, 1973; Gustafson v. Florida, 414 U.S. 260, 1973; and Michigan v. DeFillippo, 443 U.S. 31, 1979.) But in a 1980 “drug courier profile” case—Reid v. Georgia (448 U.S. 438)—the Court held that in order to justify a stop and subsequent search of a person under the Fourth Amendment, more is required than an officer’s conclusion that the person possesses the “characteristics . . . typical of persons unlawfully carrying narcotics” (Cf. United States v. Mendenhall, 466 U.S. 544, 1980). The Burger Court continued to construe Terry expansively well into the 1980s. In Michigan v. Long 306

(463 U.S. 1032, 1983), for example, a roadside stopand-frisk was approved because “roadside encounters between the police and suspects are especially hazardous,” and the suspect could obtain a weapon if he or she was allowed to reenter the vehicle before it was searched (Cf. Kolender v. Lawson, 461 U.S. 352, 1983, Justice Brennan concurring). In another case that was decided two years later—United States v. Hensley (469 U.S. 221, 1985)—a wanted flyer was the justification for an investigatory stop-and-detention. Citing the “strong government interest” in controlling criminal activity and apprehending offenders, Justice O’Connor argued that reliance on a wanted flyer to stop and detain a suspect while attempting to obtain additional information can be justified under Terry. She noted that “restraining police action until after probable cause is obtained would not only hinder the investigation but might also enable the suspect to flee and remain at large.” Another dimension of the warrantless search controversy involves the searching of automobiles. The Supreme Court concluded more than half a century ago in Carroll v. United States, supra., that it may not always be practical to obtain a warrant authorizing a search of a vehicle because the vehicle may be moved quickly out of the jurisdiction in which the warrant is sought. In his opinion for the Court, Chief Justice Taft noted that the laws of the United States recognize a difference between searching structures such as houses and offices and vehicular instruments such as automobiles and boats because of the different uses to which they may be put in criminal activity. The chief justice cautioned, however, that police do not possess the authority to indiscriminately stop people who are using the public highways and “subject them to the inconvenience and indignities of a search of their automobiles.” They must have probable cause for believing that such vehicle is being used or has been used as an instrument of criminal activity. The automobile search exception to the warrant requirement was expanded significantly under the Burger Court in the 1970s and 1980s when a majority of the justices reflected an increasing sensitivity to the “realities” of current law enforcement. In Cady v. Dombrowski (413 U.S. 433, 1973), for example, the Court held that the police had followed “sound police procedure” when they towed away a car that had been disabled in a one-car accident, stored it in a garage, and conducted a subsequent warrantless search that uncovered evidence used to support a murder conviction. (The search was undertaken to find a gun that

The Rights of the Accused and the Criminal Justice System

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

was thought to have been in possession of the driver, a Chicago policeman. Concern for public safety was accepted by the Court as sufficient justification.) Likewise, in Cardwell v. Lewis (417 U.S. 583, 1974), the four Nixon appointees were joined by Justice Byron White to uphold a warrantless examination of the exterior of an automobile. The plurality opinion of Justice Blackmun emphasized that “the search of an automobile is far less intrusive on [Fourth Amendment rights] than the search of one’s person or of a building.” Hence, there is less expectation of privacy in a car, and certainly, Blackmun contended, no privacy is infringed by taking scrapings of paint and an impression of a car’s tire while it is impounded by the police. In subsequent actions during the final decade of the twentieth century, the Court has continued to allow police officers considerable latitude in the search of automobiles when they have been stopped for an alleged traffic violation. In Whren v. United States (116 U.S. 1769, 1996), for example, a unanimous Court held that the “reasonableness” of a traffic stop does not depend on the actual motivation of the officer making the stop. The Court went on to note that the temporary detention of a motorist upon probable cause to believe that traffic violations had occurred does not violate the Fourth Amendment “even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective.” Controversial warrantless searches of automobiles by border patrol authorities who were enforcing immigration laws got the attention of the Burger Court in the mid-1970s. In Almeida Sanchez v. United States (413 U.S. 917, 1973), the Court recognized unconsented warrantless searches of vehicles by roving border patrols as constitutionally permissible. However, the Court cautioned that because such procedures “impinged so significantly on Fourth Amendment privacy interest,” there must be probable cause for the officers to believe that the occupants of the vehicle are illegal immigrants. But two years later, the Court relaxed Fourth Amendment requirements in United States v. Brignoni Ponce (422 U.S. 873, 1975). In that case, the majority felt that the practice of stopping motorists in the general vicinity of the Mexican border and inquiring as to their residence status was only a “modest” infringement on Fourth Amendment guarantees when balanced against governmental law enforcement interests. Consequently, the Court concluded that the stop need not be justified by probable cause; it sufficed

for the officer to suspect that the vehicle contained illegal aliens. In companion 1976 cases—United States v. Martin-Fuerte and Sifuentes v. United States (428 U.S. 543)—the probable cause requirements to support border patrol automobile searches were relaxed further. The Court reaffirmed the Brignoni Ponce holding and further held that motorists who were routinely stopped at permanent checkpoints could be selectively sent to secondary screening areas for more extensive questioning about their immigration status. In addition, the Court saw no constitutional bar to referrals, even if Mexican ancestry of the motorist was the prime consideration. During the same term, the Court approved a warrantless “caretaking inventory search” of an impounded automobile (South Dakota v. Opperman, 428 U.S. 364, 1976). The Court rejected a claim that the marijuana which was discovered during the search should have been suppressed at trial as “fruits of an illegal search” and emphasized the reduced expectation of privacy in an automobile compared with a home or office. Three years later, the Court appeared to backtrack somewhat when it considered the routine “spot check” practice in Delaware v. Prouse (440 U.S. 686, 1979). Justice Byron White emphasized the probable cause requirement and asserted that the state’s interest in promoting highway safety by employing the “spot check” practice does not outweigh the privacy interest of people who are randomly stopped. A decade later, in Michigan Department of State Police v. Sitz (496 U.S. 440, 1990), Chief Justice Rehnquist led the Court in a six-to-three decision in approving Michigan’s highway sobriety checkpoint program, which had been challenged as infringing the seizure protection of the Fourth Amendment. Rehnquist recognized that the checkpoint stop procedure constituted a seizure within the meaning of the Fourth Amendment but emphasized that the program was a reasonable means of advancing the state’s “grave and legitimate interest in curbing drunken driving,” considering that minimal intrusion resulted from the police practices and procedures. Justice Brennan’s dissent, in which Justice Marshall joined, focused on the probable cause requirement of the Fourth Amendment for the seizure to be reasonable. To him, the essence of the majority’s holding was that “no level of suspicion is necessary before” stopping a car to enforce a drunk driving program. In the end, he warned that the relaxation of Fourth Amendment imperatives “for the

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purpose of preventing drunken driving” could subject the public to police harassment. Although they expand the use of warrantless searches of automobiles, several decisions of the Court in the late 1970s and early 1980s evince some uncertainty in extending that exception to “containers” (such as luggage) and/or other articles that are found in the automobile being searched. For example, in United States v. Chadwick (433 U.S. 1, 1977), the Court would not allow either expansion of the automobile exception or a search incidental to a lawful arrest to justify the warrantless search of a closed footlocker that had been seized from the trunk of the suspect’s automobile. Emphasizing the “expectation of privacy” principle, Chief Justice Warren Burger took judicial notice of the absence of “exigencies” that required an immediate search “without the safeguards a judicial warrant provides.” The general principle was reaffirmed, and Chadwick was clarified in Arkansas v. Sanders (442 U.S. 753, 1979). Stressing the expectation of privacy principle and the fact that the luggage found in the vehicle was under police control with no danger of its contents being removed before the police could obtain a proper search warrant, the Court concluded that “there is no greater need for warrantless searches of luggage taken from automobiles than of luggage taken from other places.” Two years later, in Robbins v. California (453 U.S. 420, 1981), the Court (although it was only a plurality and not a majority), refused to make a distinction between containers like luggage and “flimsier” items such as “plastic bags” and “cardboard boxes” that might be discovered during the course of warrantless automobile searches. But the Court did suggest that “transparency” and “distinctive configuration” that make contents apparent could bring a warrantless search of such containers within the “plain view” exception. In a decision on the same day, however, a different configuration of justices appeared to retreat from the Chadwick–Sanders–Robbins position. In New York v. Belton (453 U.S. 454, 1981), a warrantless search of an unzippered pocket of a jacket that was uncovered in the search of an automobile was held valid as a search incident to a lawful arrest. With such justification, the Court concluded, the search of a container may be conducted whether it is open or closed. In United States v. Ross (456 U.S. 798, 1982), the Court rejected its Robbins decision and abandoned some of the reasoning supporting Sanders in expanding police discretion in container searches. The “nice distinctions” between opened and closed containers 308

could be brushed aside when officers, having probable cause to stop and subsequently search an automobile, believe that containers found therein conceal contraband. As Justice John Paul Stevens pointed out, “the scope of [a] warrantless search of [an] automobile is not defined by [the] nature of [the] container in which the contraband is secreted but rather is defined by the object of the search and places in which there is probable cause to believe that it may be found.” Following this line of reasoning and buttressed by the “plain view” doctrine, the Court in Texas v. Brown (460 U.S. 730, 1983) condoned the warrantless seizure of balloons containing drugs from the opened glove compartment of an automobile that they observed during a routine license check. The fact that the officer spotted the contraband after shifting his position and shining his flashlight into the car was considered irrelevant “to Fourth Amendment analysis.” And in 1985 in United States v. Johns (469 U.S. 478), the Court construed Ross expansively as authority for a warrantless search of several packages that were suspected to contain marijuana, which had been seized from an automobile and held in a warehouse for three days before the search. The Court rejected the court of appeals’ view that there had been ample time to obtain a search warrant. The warrantless search was extended to the sensitive setting of the public school in New Jersey v. T.L.O. (469 U.S. 325, 1985) to allow broadened discretion of school officials in their effort to combat drug use by students. The six-to-three majority recognized the Fourth Amendment rights of students but gave considerable weight to the school’s “substantial interest” in maintaining discipline in the face of mounting drug and other criminal activity in the schools. Hence, it concluded that searches by school authorities should not be subjected to the more stringent probable cause requirement demanded of other public officials. Rather, a test of “reasonableness under all circumstances” was deemed to be sufficient. However, the same Court did not think it was necessary to narrow Fourth Amendment rights in a different context—the apprehension of a fleeing unarmed felony suspect. In Tennessee v. Garner (471 U.S. 1, 1985), the Court agreed with the Court of Appeals for the Sixth Circuit that a Tennessee law which permitted police to “use all necessary means” to apprehend a fleeing felony suspect was unconstitutional because it made no distinction between an armed suspect and an unarmed one in the use of deadly force. Apprehending suspects by the use of

The Rights of the Accused and the Criminal Justice System

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

deadly force is a seizure, Justice Byron White contended, and necessarily triggers the reasonableness requirement of the Fourth Amendment. For him, such cases present competing interests, and the government’s interest in promoting effective law enforcement is insufficient to outweigh a fleeing suspect’s “fundamental interest in his own life.” Unless there is a threat to the officer and others, officers cannot use deadly force to apprehend a suspect. “A police officer,” he concluded, “may not seize an unarmed, nondangerous suspect by shooting him.” But Garner does not represent a retreat from warrantless search doctrine, as was made clear in the first term of the Rehnquist Court. In Colorado v. Bertine (479 U.S. 367, 1987), the Court reaffirmed warrantless “caretaking” searches of automobiles, and in New York v. Burger (482 U.S. 691, 1987), it approved a state statutory procedure for the warrantless inspection of certain commercial establishments. Probably the strongest reaffirmation of the warrantless search doctrine of the initial Rehnquist Court was made by Justice Sandra Day O’Connor in O’Connor v. Ortega (480 U.S. 709, 1987). In a decision that approved supervisory searches in work-related contexts, the justice held that only a standard of “reasonableness” is required of supervisors when they make warrantless searches of employees’ desks, file cabinets, and so forth. The “operational realities of the workplace” justified, for her, this supervisory method of investigating work-related employee conduct and outweighed their privacy claims.8 Certainly, Ortega has implications for the issue of mandatory employee drug testing, but O’Connor indicated that the issue would not be addressed in the Ortega context. But this and other issues such as an employee’s right to control the content of electronic mail (email) and computer disks that contain his or her own creative work will undoubtedly produce a variety of Fourth Amendment issues that will find their way to the Supreme Court during the twenty-first century. Approval of warrantless searches in the workplace was followed one year later by approval of such searches in residential garbage containers. In 8 The conflict between privacy interests and administrative searches has been considered by the Court in a number of cases over the last decades. See, for example, Frank v. Maryland (359 U.S. 360, 1959); Camara v. Municipal Court of San Francisco (387 U.S. 523, 1967); United States v. Biswell (406 U.S. 311, 1972); Marshall v. Barlow (436 U.S. 307, 1978); Michigan v. Tyler (436 U.S. 499, 1978); and Donovan v. Dewey (452 U.S. 594, 1981).

California v. Greenwood (486 U.S. 35, 1988), the justices gave the police a boost in their effort to track down drug pushers. Justice White made it clear that when a garbage bag is left along the curb of a public street for the trash collector, it becomes readily accessible to the public passersby and it is reasonable for the police to request those bags from the garbage collector. He concluded that in this context, Greenwood’s expectation of privacy claim must be rejected because society at large does not accept such claims “as objectively reasonable.”9 Just three years after Greenwood, Justice O’Connor wrote the Court’s decision to approve a Florida county’s drug interdiction practice of “working the buses,” rejecting claims that such police practices are intimidating and an unconstitutional expansion of warrantless searches in violation of the Fourth Amendment. O’Connor noted in that particular case that the passenger had given his consent to a search and that he was free to decline the request and walk away. Hence, there was no seizure in the context of the Fourth Amendment. But in dissent in this case, Florida v. Bostick (501 U.S. 429, 1991), Justice 9

Cf. United States v. Knotts (460 U.S. 276, 1983), where the Court did not consider police action to hide an electronic beeper monitoring device in materials purchased by a person for use in the production of illicit drugs in order to track him to his production facility an invasion of any lawful expectation of privacy. Recognizing as constitutionally permissible police use of “scientific and technological development” to augment their sensory faculties, Justice Rehnquist made it clear that the beeper is used to track movement on public streets and highways and that a person traveling in an automobile on such thoroughfares certainly “has no reasonable expectation of privacy.” The attempt to taint the evidence obtained under a subsequent search warrant issued after intermittent surveillance of the “drug factory” because of the warrantless use of the “beeper” in locating the facility was rejected because use of the “beeper” to track the movement of a chemical in an automobile was “neither search nor seizure” within contemplation of the Fourth Amendment. Note also the Court’s rejection of the expectation of privacy claim in California v. Ciraolo (106 U.S. 1809, 1986), where the warrantless aerial observation of an enclosed backyard within the curtilage of a home identified growing marijuana was not considered to abridge Fourth Amendment rights. The justices reasoned that aircrafts flying over private property at an altitude of 1,000 feet (as in Ciraolo) are commonplace and that there cannot be a reasonable expectancy of privacy where such property is clearly visible to the “unaided eye.” The Court extended Ciraolo to cover low-flying helicopter observances over private property three years later in Florida v. Riley (109 S. Ct. 693, 1989), where evidence used to support a conviction for growing marijuana was developed from a helicopter flying 400 feet over a greenhouse. Justice Byron White’s plurality opinion stressed the helicopter operator’s conformity with regulations governing the use of airspace.

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Thurgood Marshall sharply criticized the majority for approving what he labeled “suspicionless sweeps” conducted on interstate carriers. Quoting from a number of lower court decisions that condemned such “sweeps,” the justice maintained that such invasions of Fourth Amendment guarantees had gone too far. Greenwood and Bostick illustrate well the continuing debate about the amount of latitude that the Constitution allows law enforcement agencies in criminal investigations. In his dissent in Greenwood, Justice Brennan points to the dangers of approval of such police behavior for society at large. Noting that such a practice has potential to invade the intimate aspects of an individual’s life, Brennan thought that police rummaging through a person’s garbage without a proper search warrant was “contrary to commonly accepted notions of civilized behavior.” He concluded with this view of liberty in our society: The American society with which I am familiar “chooses to dwell in reasonable security and freedom from surveillance,” . . . and is more dedicated to individual liberty and more sensitive to intrusions on the sanctity of the home than the Court is willing to acknowledge.

And Justice Marshall, whose dissent in Bostick expressed grave concern about the impact of the majority’s decision on the Fourth Amendment guarantee, chastised his colleagues and thundered: The majority attempts to gloss over the violence that today’s decision does to the Fourth Amendment with empty admonitions, [e.g.] “if the war on drugs is to be fought,” the majority intones, “those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime.” The majority’s actions, however, speak louder than its words.

On the other hand, given society’s almost hysterical concern for control of criminal activity, the majority of the justices may well feel that the more restricted construction of the Fourth Amendment set forth in Greenwood and Bostick comes closer to society’s current notions on privacy and that they can more readily accept warrantless searches that are conducted in a variety of law enforcement contexts as we move into the twenty-first century. These strong assertions in defense of liberty from the two most senior justices at the time, however, appeared to have little or no impact on the more restrictive view of the Fourth Amendment that was held by 310

the majority of their colleagues. In the years that immediately followed the retirement of Justices Brennan and Marshall, the Court indicated that it would continue to allow law enforcement officers wide latitude in adjudicating Fourth Amendment claims of motorists who were stopped for traffic violations. In Whren v. United States (116 U.S. 1769, 1996), for example, the Court held that the “reasonableness” of a traffic stop does not depend on the actual motivation of the officer making the stop. Buttressing further societal needs, the Court emphasized that the temporary detention of a motorist upon probable cause that a traffic violation had occurred does not violate the Fourth Amendment “even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective.” One year later, in Maryland v. Wilson (519 U.S. 408, 1997), the Rehnquist Court continued to construe the Fourth Amendment protection against unreasonable searches restrictively by allowing officers who stop a vehicle for a traffic violation not only to require the driver to exit the vehicle (as approved in Pennsylvania v. Mimms, 434 U.S. 106, 1977), but to require all of the passengers to do so as well. Speaking for a 7–2 majority, Chief Justice Rehnquist took judicial notice of the increased danger to the officer who makes a traffic stop of a vehicle containing passengers. He dismissed, as a “practical matter,” the liberty interest of the passengers. As they “are already stopped,” requiring them to exit the vehicle would be only a “minimal” intrusion on them. It appears unlikely that the Court will make any major departures from current Fourth Amendment jurisprudence. Given society’s overriding concern for control of crime and criminal activity, it is not likely, even as the composition of the Court changes, that it will reverse the current trend of Fourth Amendment decisions soon. Consider, for example, the decision of the Roberts Court in Scott v. Harris (550 U.S. 372, 2007), in which the Court used video evidence to give police qualified immunity against suit for damages brought by a motorist under Section 1983, USCC. In this case, a sheriff’s deputy attempting to stop a driver in a high speed chase ran the driver’s vehicle off the side of the road. The driver was paralyzed in the accident. Speaking for an 8–1 Court majority, Justice Scalia stated that a “police officer’s attempt to terminate a high speed chase does not violate the Fourth Amendment even when it places the fleeing motorist at high risk of serious injury or

The Rights of the Accused and the Criminal Justice System

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

death.” Justice Scalia used a video as evidence in the case. The lone dissenter, Justice Stevens, argued that videotaped evidence should not be as decisive as the Court decision suggests. Rather, he thought that a jury, not “a group of elderly appellate judges” such as himself, should make that determination. Overall this decision brings to the fore what appears to be an increasing debate over the proper balance that should be struck between the individual protection of constitutional rights and liberties, and the use of advances in science and technology in the conviction or exoneration of those who are accused of crimes. Consider, for example, the use of DNA evidence in McDaniel v. Brown (558 U.S.__, 2010) and District Attorney’s Office for the Third Judicial District, et al. v. Osborne, (557 U.S.__) in 2009. The Osborne case concerned whether DNA evidence is

available as a postconviction remedy to exonerate (prove the innocence of) a prisoner who was earlier found guilty of a crime. Writing for a 5–4 Court majority, Chief Justice Roberts said the majority was “reluctant to enlist the Federal Judiciary in creating a new constitutional code for handling DNA.” The decision in effect seems to leave the matter to “political branches”—state legislatures and the Congress—to provide such a remedy. However, the decision does not seem to prevent even a convicted criminal from seeking habeas relief in federal courts. The Osborne case is available in the online supplement to this chapter. The continuing debate in these and related issues is reflected in this and other chapters. (Chapters 9 and 10 deal with the nature and functioning of our overall criminal justice system.)

CITY OF INDIANAPOLIS V. EDMOND 531 U.S. 32; 183 L. Ed. 3d. 659; 121 S. Ct. 447 (2000) JUSTICE O’CONNOR delivered the opinion of the Court, in which JUSTICES STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER joined. CHIEF JUSTICE REHNQUIST filed a dissenting opinion in which JUSTICE THOMAS joined, and in which JUSTICE SCALIA joined as to Part I. JUSTICE THOMAS filed a dissenting opinion. JUSTICE O’CONNOR delivered the opinion of the Court. In Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990), and United States v. MartinezFuerte, 428 U.S. 543 (1976), we held that brief, suspicionless seizures at highway checkpoints for the purposes of combating drunk driving and intercepting illegal immigrants were constitutional. We now consider the constitutionality of a highway checkpoint program whose primary purpose is the discovery and interdiction of illegal narcotics. I In August 1998, the city of Indianapolis began to operate vehicle checkpoints on Indianapolis roads in an effort to interdict unlawful drugs. The city conducted six such roadblocks between August

and November that year, stopping 1,161 vehicles and arresting 104 motorists. Fifty-five arrests were for drug-related crimes, while forty-nine were for offenses unrelated to drugs. Edmond v. Goldsmith, 183 F.3d 659, 661 (CA7 1999). The overall “hit rate” of the program was thus approximately nine percent. . . .At each checkpoint location, the police stop a predetermined number of vehicles. Approximately 30 officers are stationed at the checkpoint. Pursuant to written directives issued by the chief of police, at least one officer approaches the vehicle, advises the driver that he or she is being stopped briefly at a drug checkpoint, and asks the driver to produce a license and registration. The officer also looks for signs of impairment and conducts an open-view examination of the vehicle from the outside. A narcotics-detection dog walks around the outside of each stopped vehicle. The directives instruct the officers that they may conduct a search only by consent or based on the appropriate quantum of particularized suspicion. The officers must conduct each stop in the same manner until particularized suspicion develops, and the officers have no discretion to stop any vehicle out of sequence. The city agreed . . . to operate the check-

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points in such a way as to ensure that the total duration of each stop, absent reasonable suspicion or probable cause, would be five minutes or less. The affidavit of Indianapolis Police Sergeant Marshall DePew . . . provides further insight concerning the operation of the checkpoints. According to Sergeant DePew, checkpoint locations are selected weeks in advance based on such considerations as area crime statistics and traffic flow. The checkpoints are generally operated during daylight hours and are identified with lighted signs reading, “NARCOTICS CHECKPOINT ___ MILE AHEAD, NARCOTICS K-9 IN USE, BE PREPARED TO STOP.” Once a group of cars has been stopped, other traffic proceeds without interruption until all the stopped cars have been processed or diverted for further processing. Sergeant DePew also stated that the average stop for a vehicle not subject to further processing lasts two to three minutes or less. Respondents James Edmond and Joell Palmer were each stopped at a narcotics checkpoint in late September 1998. Respondents then filed a lawsuit on behalf of themselves and the class of all motorists who had been stopped or were subject to being stopped in the future at the Indianapolis drug checkpoints. Respondents claimed that the roadblocks violated the Fourth Amendment of the United States Constitution and the search and seizure provision of the Indiana Constitution. Respondents requested declaratory and injunctive relief for the class, as well as damages and attorney’s fees for themselves. Respondents then moved for a preliminary injunction. . . . The United States District Court for the Southern District of Indiana agreed to class certification and denied the motion for a preliminary injunction, holding that the checkpoint program did not violate the Fourth Amendment. A divided panel of the United States Court of Appeals for the Seventh Circuit reversed, holding that the checkpoints contravened the Fourth Amendment. The panel denied rehearing. We granted certiorari, and now affirm. II The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. While such suspicion is not an “irreducible” component of reasonableness, we have recognized only limited circumstances in 312

which the usual rule does not apply. For example, we have upheld certain regimes of suspicionless searches where the program was designed to serve “special needs, beyond the normal need for law enforcement.”. . . We have also allowed searches for certain administrative purposes without particularized suspicion of misconduct, provided that those searches are appropriately limited. . . . We have also upheld brief, suspicionless seizures of motorists at a fixed Border Patrol checkpoint designed to intercept illegal aliens, Martinez-Fuerte, supra, and at a sobriety checkpoint aimed at removing drunk drivers from the road, Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). In addition, in Delaware v. Prouse, 440 U.S. 648, 663 (1979), we suggested that a similar type of roadblock with the purpose of verifying drivers’ licenses and vehicle registrations would be permissible. In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. In Martinez-Fuerte, we entertained Fourth Amendment challenges to stops at two permanent immigration checkpoints located on major United States highways less than 100 miles from the Mexican border. We noted at the outset the particular context in which the constitutional question arose, describing in some detail the “formidable law enforcement problems” posed by the northbound tide of illegal entrants into the United States. These problems had also been the focus of several earlier cases addressing the constitutionality of other Border Patrol traffic-checking operations. [W]e found that the balance tipped in favor of the Government’s interests in policing the Nation’s borders. In so finding, we emphasized the difficulty of effectively containing illegal immigration at the border itself. We also stressed the impracticality of the particularized study of a given car to discern whether it was transporting illegal aliens, as well as the relatively modest degree of intrusion entailed by the stops. Our subsequent cases have confirmed that considerations specifically related to the need to police the border were a significant factor in our MartinezFuerte decision. For example, in United States v. Montoya de Hernandez, 473 U.S. 531 (1985), we counted Martinez-Fuerte as one of a number of Fourth Amendment cases that “reflect longstanding concern for the protection of the integrity of the border.” Although the stops in Martinez-Fuerte did not occur at the border itself, the checkpoints were lo-

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cated near the border and served a border control function made necessary by the difficulty of guarding the border’s entire length. In Sitz, we evaluated the constitutionality of a Michigan highway sobriety checkpoint program. The Sitz checkpoint involved brief suspicionless stops of motorists so that police officers could detect signs of intoxication and remove impaired drivers from the road. Motorists who exhibited signs of intoxication were diverted for a license and registration check and, if warranted, further sobriety tests. This checkpoint program was clearly aimed at reducing the immediate hazard posed by the presence of drunk drivers on the highways, and there was an obvious connection between the imperative of highway safety and the law enforcement practice at issue. The gravity of the drunk driving problem and the magnitude of the State’s interest in getting drunk drivers off the road weighed heavily in our determination that the program was constitutional. In Prouse, we invalidated a discretionary, suspicionless stop for a spot check of a motorist’s driver’s license and vehicle registration. The officer’s conduct in that case was unconstitutional primarily on account of his exercise of “standardless and unconstrained discretion.” We nonetheless acknowledged the States’ “vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed.” Accordingly, we suggested that “[q]uestioning of all oncoming traffic at roadblock-type stops” would be a lawful means of serving this interest in highway safety. We further indicated in Prouse that we considered the purposes of such a hypothetical roadblock to be distinct from a general purpose of investigating crime. The State proffered the additional interests of “the apprehension of stolen motor vehicles and of drivers under the influence of alcohol or narcotics” in its effort to justify the discretionary spot check. We attributed the entirety of the latter interest to the State’s interest in roadway safety. We also noted that the interest in apprehending stolen vehicles may be partly subsumed by the interest in roadway safety. We observed, however, that “[t]he remaining governmental interest in controlling automobile thefts is not distinguishable from the general interest in crime control.” Not only does the common thread of highway safety thus run through Sitz and Prouse, but Prouse itself reveals a difference in the Fourth

Amendment significance of highway safety interests and the general interest in crime control. III It is well established that a vehicle stop at a highway checkpoint effectuates a seizure within the meaning of the Fourth Amendment. The fact that officers walk a narcotics-detection dog around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search. See United States v. Place, 462 U.S. 696, 707 (1983). Just as in Place, an exterior sniff of an automobile does not require entry into the car and is not designed to disclose any information other than the presence or absence of narcotics. See ibid. Like the dog sniff in Place, a sniff by a dog that simply walks around a car is “much less intrusive than a typical search.” Rather, what principally distinguishes these checkpoints from those we have previously approved is their primary purpose. As petitioners concede, the Indianapolis checkpoint program unquestionably has the primary purpose of interdicting illegal narcotics. . . . [T]he parties repeatedly refer to the checkpoints as “drug checkpoints” and describe them as “being operated by the City of Indianapolis in an effort to interdict unlawful drugs in Indianapolis.” In addition, the first document attached to the parties’ stipulation is entitled “DRUG CHECKPOINT CONTACT OFFICER DIRECTIVES BY ORDER OF THE CHIEF OF POLICE.” These directives instruct officers to “[a]dvise the citizen that they are being stopped briefly at a drug checkpoint.” The second document attached to the stipulation is entitled “1998 Drug Road Blocks” and contains a statistical breakdown of information relating to the checkpoints conducted. Further, according to Sergeant DePew, the checkpoints are identified with lighted signs reading, “NARCOTICS CHECKPOINT ___ MILE AHEAD, NARCOTICS K-9 IN USE, BE PREPARED TO STOP.” Finally, both the District Court and the Court of Appeals recognized that the primary purpose of the roadblocks is the interdiction of narcotics. . . We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion. We suggested in Prouse that we would not credit the “general interest in crime control” as justification for a

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regime of suspicionless stops. Consistent with this suggestion, each of the checkpoint programs that we have approved was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety. Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth Amendment. Petitioners propose several ways in which the narcotics-detection purpose of the instant checkpoint program may instead resemble the primary purposes of the checkpoints in Sitz and Martinez-Fuerte. Petitioners state that the checkpoints in those cases had the same ultimate purpose of arresting those suspected of committing crimes. Securing the border and apprehending drunk drivers are, of course, law enforcement activities, and law enforcement officers employ arrests and criminal prosecutions in pursuit of these goals. If we were to rest the case at this high level of generality, there would be little check on the ability of the authorities to construct roadblocks for almost any conceivable law enforcement purpose. Without drawing the line at roadblocks designed primarily to serve the general interest in crime control, the Fourth Amendment would do little to prevent such intrusions from becoming a routine part of American life. Petitioners also emphasize the severe and intractable nature of the drug problem as justification for the checkpoint program. There is no doubt that traffic in illegal narcotics creates social harms of the first magnitude. The law enforcement problems that the drug trade creates likewise remain daunting and complex, particularly in light of the myriad forms of spinoff crime that it spawns. The same can be said of various other illegal activities, if only to a lesser degree. But the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose. Rather, in determining whether individualized suspicion is required, we must consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue. We are particularly reluctant to recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue their general crime control ends. Nor can the narcotics-interdiction purpose of the checkpoints be rationalized in terms of a highway safety concern similar to that present in Sitz. The detection and punishment of almost any criminal offense serves broadly the safety of the community, 314

and our streets would no doubt be safer but for the scourge of illegal drugs. Only with respect to a smaller class of offenses, however, is society confronted with the type of immediate, vehicle-bound threat to life and limb that the sobriety checkpoint in Sitz was designed to eliminate. Petitioners also liken the anticontraband agenda of the Indianapolis checkpoints to the antismuggling purpose of the checkpoints in Martinez-Fuerte. Petitioners cite this Court’s conclusion in MartinezFuerte that the flow of traffic was too heavy to permit “particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens,” and claim that this logic has even more force here. The problem with this argument is that the same logic prevails any time a vehicle is employed to conceal contraband or other evidence of a crime. This type of connection to the roadway is very different from the close connection to roadway safety that was present in Sitz and Prouse. Further, the Indianapolis checkpoints are far removed from the border context that was crucial in MartinezFuerte. While the difficulty of examining each passing car was an important factor in validating the law enforcement technique employed in MartinezFuerte, this factor alone cannot justify a regime of suspicionless searches or seizures. Rather, we must look more closely at the nature of the public interests that such a regime is designed principally to serve. The primary purpose of the Indianapolis narcotics checkpoints is in the end to advance “the general interest in crime control.” We decline to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes. We cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime. Of course, there are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control. For example, as the Court of Appeals noted, the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route. The exigencies created by these scenarios are far removed from the circumstances under which authorities might simply stop cars as a matter of course to see if there just happens to be a felon leaving

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the jurisdiction. While we do not limit the purposes that may justify a checkpoint program to any rigid set of categories, we decline to approve a program whose primary purpose is ultimately indistinguishable from the general interest in crime control. Petitioners argue that our prior cases preclude an inquiry into the purposes of the checkpoint program. For example, they cite Whren v. United States, 517 U.S. 806 (1996), and Bond v. United States, 529 U.S. 334 (2000), to support the proposition that “where the government articulates and pursues a legitimate interest for a suspicionless stop, courts should not look behind that interest to determine whether the government’s ‘primary purpose’ is valid.” These cases, however, do not control the instant situation. In Whren, we held that an individual officer’s subjective intentions are irrelevant to the Fourth Amendment validity of a traffic stop that is justified objectively by probable cause to believe that a traffic violation has occurred. We observed that our prior cases “foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.” In so holding, we expressly distinguished cases where we had addressed the validity of searches conducted in the absence of probable cause. . . . Whren therefore reinforces the principle that, while “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis,” programmatic purposes may be relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a general scheme without individualized suspicion. Accordingly, Whren does not preclude an inquiry into programmatic purpose in such contexts. . . . It likewise does not preclude an inquiry into programmatic purpose here. Last Term in Bond, we addressed the question whether a law enforcement officer violated a reasonable expectation of privacy in conducting a tactile examination of carry-on luggage in the overhead compartment of a bus. In doing so, we simply noted that the principle of Whren rendered the subjective intent of an officer irrelevant to this analysis. While, as petitioners correctly observe, the analytical rubric of Bond was not “ordinary, probable-cause Fourth Amendment analysis,” nothing in Bond suggests that we would extend the principle of Whren to all situations where individualized suspicion was lacking. Rather, subjective intent was irrelevant in Bond because the inquiry that our precedents required focused on the objective effects of the actions of an

individual officer. By contrast, our cases dealing with intrusions that occur pursuant to a general scheme absent individualized suspicion have often required an inquiry into purpose at the programmatic level. Petitioners argue that the Indianapolis checkpoint program is justified by its lawful secondary purposes of keeping impaired motorists off the road and verifying licenses and registrations. If this were the case, however, law enforcement authorities would be able to establish checkpoints for virtually any purpose so long as they also included a license or sobriety check. For this reason, we examine the available evidence to determine the primary purpose of the checkpoint program. While we recognize the challenges inherent in a purpose inquiry, courts routinely engage in this enterprise in many areas of constitutional jurisprudence as a means of sifting abusive governmental conduct from that which is lawful. As a result, a program driven by an impermissible purpose may be proscribed while a program impelled by licit purposes is permitted, even though the challenged conduct may be outwardly similar. While reasonableness under the Fourth Amendment is predominantly an objective inquiry, our special needs and administrative search cases demonstrate that purpose is often relevant when suspicionless intrusions pursuant to a general scheme are at issue. It goes without saying that our holding today does nothing to alter the constitutional status of the sobriety and border checkpoints that we approved in Sitz and Martinez-Fuerte, or of the type of traffic checkpoint that we suggested would be lawful in Prouse. The constitutionality of such checkpoint programs still depends on a balancing of the competing interests at stake and the effectiveness of the program. When law enforcement authorities pursue primarily general crime control purposes at checkpoints such as here, however, stops can only be justified by some quantum of individualized suspicion. Our holding also does not affect the validity of border searches or searches at places like airports and government buildings, where the need for such measures to ensure public safety can be particularly acute. Nor does our opinion speak to other intrusions aimed primarily at purposes beyond the general interest in crime control. Our holding also does not impair the ability of police officers to act appropriately upon information that they properly learn during a checkpoint stop justified by a lawful primary purpose, even where such action may result in the arrest

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of a motorist for an offense unrelated to that purpose. Finally, we caution that the purpose inquiry in this context is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene. Because the primary purpose of the Indianapolis checkpoint program is ultimately indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment. The judgment of the Court of Appeals is accordingly affirmed. It is so ordered. CHIEF JUSTICE REHNQUIST, with whom JUSTICE THOMAS joins, and with whom JUSTICE SCALIA joins as to Part I, dissenting: The State’s use of a drug-sniffing dog, according to the Court’s holding, annuls what is otherwise plainly constitutional under our Fourth Amendment jurisprudence: brief, standardized, discretionless, roadblock seizures of automobiles, seizures which effectively serve a weighty state interest with only minimal intrusion on the privacy of their occupants. Because these seizures serve the State’s accepted and significant interests of preventing drunken driving and checking for driver’s licenses and vehicle registrations, and because there is nothing in the record to indicate that the addition of the dog sniff lengthens these otherwise legitimate seizures, I dissent. I As it is nowhere to be found in the Court’s opinion, I begin with blackletter roadblock seizure law. “The principal protection of Fourth Amendment rights at checkpoints lies in appropriate limitations on the scope of the stop.” United States v. Martinez-Fuerte, 428 U.S. 543, 566–567 (1976). Roadblock seizures are consistent with the Fourth Amendment if they are “carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Brown v. Texas, 443 U.S. 47, 51 (1979). Specifically, the constitutionality of a seizure turns upon “a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.” We first applied these principles in MartinezFuerte, supra, which approved highway checkpoints for detecting illegal aliens. In Martinez-Fuerte, we balanced the United States’ formidable interest in 316

checking the flow of illegal immigrants against the limited “objective” and “subjective” intrusion on the motorists. The objective intrusion—the stop itself, the brief questioning of the occupants, and the visual inspection of the car—was considered “limited” because “[n]either the vehicle nor its occupants [were] searched.” Likewise, the subjective intrusion, or the fear and surprise engendered in law-abiding motorists by the nature of the stop, was found to be minimal because the “regularized manner in which [the] established checkpoints [were] operated [was] visible evidence, reassuring to law-abiding motorists, that the stops [were] duly authorized and believed to serve the public interest.” Indeed, the standardized operation of the roadblocks was viewed as markedly different from roving patrols, where the unbridled discretion of officers in the field could result in unlimited interference with motorists’ use of the highways. And although the decision in Martinez-Fuerte did not turn on the checkpoints’ effectiveness, the record in one of the consolidated cases demonstrated that illegal aliens were found in 0.12 percent of the stopped vehicles. In Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990), we upheld the State’s use of a highway sobriety checkpoint after applying the framework set out in Martinez-Fuerte, and Brown v. Texas. There, we recognized the gravity of the State’s interest in curbing drunken driving and found the objective intrusion of the approximately 25-second seizure to be “slight.” Turning to the subjective intrusion, we noted that the checkpoint was selected pursuant to guidelines and was operated by uniformed officers. Finally, we concluded that the program effectively furthered the State’s interest because the checkpoint resulted in the arrest of two drunk drivers, or 1.6 percent of the 126 drivers stopped. This case follows naturally from Martinez-Fuerte and Sitz. Petitioners acknowledge that the “primary purpose” of these roadblocks is to interdict illegal drugs, but this fact should not be controlling. Even accepting the Court’s conclusion that the checkpoints at issue in Martinez-Fuerte and Sitz were not primarily related to criminal law enforcement, the question whether a law enforcement purpose could support a roadblock seizure is not presented in this case. The District Court found that another “purpose of the checkpoints is to check driver’s licenses and vehicle registrations,” and the written directives state that the police officers are to “[l]ook for signs of impairment.” The use of roadblocks to look for signs of impairment was validated by Sitz, and the use of

The Rights of the Accused and the Criminal Justice System

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roadblocks to check for driver’s licenses and vehicle registrations was expressly recognized in Delaware v. Prouse. That the roadblocks serve these legitimate state interests cannot be seriously disputed, as the 49 people arrested for offenses unrelated to drugs can attest. And it would be speculative to conclude— given the District Court’s findings, the written directives, and the actual arrests—that petitioners would not have operated these roadblocks but for the State’s interest in interdicting drugs. Because of the valid reasons for conducting these roadblock seizures, it is constitutionally irrelevant that petitioners also hoped to interdict drugs. In Whren v. United States, 517 U.S. 806 (1996), we held that an officer’s subjective intent would not invalidate an otherwise objectively justifiable stop of an automobile. The reasonableness of an officer’s discretionary decision to stop an automobile, at issue in Whren, turns on whether there is probable cause to believe that a traffic violation has occurred. The reasonableness of highway checkpoints, at issue here, turns on whether they effectively serve a significant state interest with minimal intrusion on motorists. The stop in Whren was objectively reasonable because the police officers had witnessed traffic violations; so too the roadblocks here are objectively reasonable because they serve the substantial interests of preventing drunken driving and checking for driver’s licenses and vehicle registrations with minimal intrusion on motorists. Once the constitutional requirements for a particular seizure are satisfied, the subjective expectations of those responsible for it, be it police officers or members of a city council, are irrelevant. . . . It is the objective effect of the State’s actions on the privacy of the individual that animates the Fourth Amendment. . . . Because the objective intrusion of a valid seizure does not turn upon anyone’s subjective thoughts, neither should our constitutional analysis. With these checkpoints serving two important state interests, the remaining prongs of the Brown v. Texas balancing test are easily met. The seizure is objectively reasonable as it lasts, on average, two to three minutes and does not involve a search. The subjective intrusion is likewise limited as the checkpoints are clearly marked and operated by uniformed officers who are directed to stop every vehicle in the same manner. The only difference between this case and Sitz is the presence of the dog. We have already held, however, that a “sniff test” by a trained narcotics dog is not a “search” within the meaning of the Fourth Amendment because it

does not require physical intrusion of the object being sniffed and it does not expose anything other than the contraband items. Finally, the checkpoints’ success rate—49 arrests for offenses unrelated to drugs—only confirms the State’s legitimate interests in preventing drunken driving and ensuring the proper licensing of drivers and registration of their vehicles. These stops effectively serve the State’s legitimate interests; they are executed in a regularized and neutral manner; and they only minimally intrude upon the privacy of the motorists. They should therefore be constitutional. II The Court, unwilling to adopt the straightforward analysis that these precedents dictate, adds a new nonlaw-enforcement primary purpose test lifted from a distinct area of Fourth Amendment jurisprudence relating to the searches of homes and businesses. . . .[T]he question that the Court answers is not even posed in this case given the accepted reasons for the seizures. But more fundamentally, whatever sense a non-law-enforcement primary purpose test may make in the search setting, it is ill suited to brief roadblock seizures, where we have consistently looked at “the scope of the stop” in assessing a program’s constitutionality. We have already rejected an invitation to apply the non-law-enforcement primary purpose test that the Court now finds so indispensable. The respondents in Sitz argued that the Brown v. Texas balancing test was not the “proper method of analysis” with regards to roadblock seizures. . . . Considerations of stare decisis aside, the “perfectly plain” reason for not incorporating the “special needs” test in our roadblock seizure cases is that seizures of automobiles “deal neither with searches nor with the sanctity of private dwellings, ordinarily afforded the most stringent Fourth Amendment protection.” The “special needs” doctrine, which has been used to uphold certain suspicionless searches performed for reasons unrelated to law enforcement, is an exception to the general rule that a search must be based on individualized suspicion of wrongdoing. . . . The doctrine permits intrusions into a person’s body and home, areas afforded the greatest Fourth Amendment protection. But there were no such intrusions here. . . . The lowered expectation of privacy in one’s automobile is coupled with the limited nature of the intrusion: a brief, standardized, nonintrusive seizure. The brief seizure of an automobile can hardly be compared

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to the intrusive search of the body or the home. Thus, just as the “special needs” inquiry serves to both define and limit the permissible scope of those searches, the Brown v. Texas balancing test serves to define and limit the permissible scope of automobile seizures. Because of these extrinsic limitations upon roadblock seizures, the Court’s newfound non-lawenforcement primary purpose test is both unnecessary to secure Fourth Amendment rights and bound to produce wide-ranging litigation over the “purpose” of any given seizure. Police designing highway roadblocks can never be sure of their validity, since a jury might later determine that a forbidden purpose exists. Roadblock stops identical to the one that we upheld in Sitz ten years ago, or to the one that we upheld twenty-four years ago in MartinezFuerte, may now be challenged on the grounds that they have some concealed forbidden purpose.

Efforts to enforce the law on public highways used by millions of motorists are obviously necessary to our society. The Court’s opinion today casts a shadow over what had been assumed, on the basis of stare decisis, to be a perfectly lawful activity. Conversely, if the Indianapolis police had assigned a different purpose to their activity here, but in no way changed what was done on the ground to individual motorists, it might well be valid. The Court’s non-law-enforcement primary purpose test simply does not serve as a proxy for anything that the Fourth Amendment is, or should be, concerned about in the automobile seizure context. Petitioners’ program complies with our decisions regarding roadblock seizures of automobiles, and the addition of a dog sniff does not add to the length or the intrusion of the stop. Because such stops are consistent with the Fourth Amendment, I would reverse the decision of the Court of Appeals.

VIRGINIA V. MOORE 553 U.S. ____ (2008) JUSTICE SCALIA delivered the opinion of the Court, in which CHIEF JUSTICE ROBERTS and JUSTICES STEVENS, KENNEDY, SOUTER, THOMAS, BREYER, and ALITO joined. JUSTICE GINSBURG filed an opinion concurring in the judgment. JUSTICE SCALIA delivered the opinion of the Court. We consider whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law. I On February 20, 2003, two City of Portsmouth police officers stopped a car driven by David Lee Moore. They had heard over the police radio that a person known as “Chubs” was driving with a suspended license, and one of the officers knew Moore by that nickname. The officers determined that Moore’s license was in fact suspended, and arrested him for the misdemeanor of driving on a suspended license, which is punishable under Virginia law by a year in jail and a $2,500 fine. . . . The officers subsequently searched Moore and found that he was 318

carrying 16 grams of crack cocaine and $516 in cash.10 . . . Under state law, the officers should have issued Moore a summons instead of arresting him. Driving on a suspended license, like some other misdemeanors, is not an arrestable offense except as to those who “fail or refuse to discontinue” the violation, and those whom the officer reasonably believes to be likely to disregard a summons, or likely to harm themselves or others. . . . The intermediate appellate court found none of these circumstances applicable, and Virginia did not appeal that determination. . . . Virginia also permits arrest for driving on a suspended license in jurisdictions where “prior general approval has been granted by order of the general district court,” . . .; Virginia has never claimed 10 The arresting officers did not perform a search incident to arrest immediately upon taking Moore into custody, because each of them mistakenly believed that the other had done so. App. 54–55; see also id., at 33–34. They realized their mistake after arriving with Moore at Moore’s hotel room, which they had obtained his consent to search, and they searched his person there. . . . Moore does not contend that this delay violated the Fourth Amendment.

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such approval was in effect in the county where Moore was arrested. Moore was charged with possessing cocaine with the intent to distribute it in violation of Virginia law. He filed a pretrial motion to suppress the evidence from the arrest search. Virginia law does not, as a general matter, require suppression of evidence obtained in violation of state law. . . . Moore argued, however, that suppression was required by the Fourth Amendment. The trial court denied the motion, and after a bench trial found Moore guilty of the drug charge and sentenced him to a five-year prison term, with one year and six months of the sentence suspended. The conviction was reversed by a panel of Virginia’s intermediate court on Fourth Amendment grounds,. . ., reinstated by the intermediate court sitting en banc, . . . and finally reversed again by the Virginia Supreme Court, . . . . The Court reasoned that since the arresting officers should have issued Moore a citation under state law, and the Fourth Amendment does not permit search incident to citation, the arrest search violated the Fourth Amendment. . . . We granted certiorari. II The Fourth Amendment protects “against unreasonable searches and seizures” of (among other things) the person. In determining whether a search or seizure is unreasonable, we begin with history. We look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve. See Wyoming v. Houghton, 526 U.S. 295, 299 (1999); Wilson v. Arkansas, 514 U.S. 927, 931 (1995). We are aware of no historical indication that those who ratified the Fourth Amendment understood it as a redundant guarantee of whatever limits on search and seizure legislatures might have enacted.11 The immediate object of the Fourth Amendment was to prohibit the general warrants and writs of assistance that English judges had employed against the colonists, . . .; Payton v. New York, 445 U.S. 573, 583–584 (1980). That suggests, if anything, that founding-era citizens were skeptical of using the rules for search and seizure set by government actors as the index of reasonableness. Joseph Story, among others, saw the Fourth Amendment as “little more than the affirmance of a great constitutional doctrine of the common law,” . . ., which Story defined in opposition to statutes,

see Codification of the Common Law in The Miscellaneous Writings of Joseph Story 698, 699, 701 (W. Story ed. 1852). No early case or commentary, to our knowledge, suggested the Amendment was intended to incorporate subsequently enacted statutes. None of the early Fourth Amendment cases that scholars have identified sought to base a constitutional claim on a violation of a state or federal statute concerning arrest. See Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 613–614 (1999);12 see also T. Taylor, Two Studies in Constitutional Interpretation 44–45 (1969). Of course such a claim would not have been available against state officers, since the Fourth Amendment was a restriction only upon federal power, see Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833). But early Congresses tied the arrest authority of federal officers to state laws of arrest. See United States v. Di Re, 332 U.S. 581, 589 (1948); United States v. Watson, 423 U.S. 411, 420 (1976). Moreover, even though several state constitutions also prohibited unreasonable searches and seizures, citizens who claimed officers had violated state restrictions on arrest did not claim that the violations also ran afoul of the state constitutions. The apparent absence of such litigation is particularly striking in light of the fact that searches incident to warrantless arrests (which is to say arrests in which the officer was not insulated from private suit) were, as one commentator has put it, “taken for 11 Atwater v. Lago Vista, 532 U.S. 318 (2001), rejected the view Justice Ginsburg advances that the legality of arrests for misdemeanors involving no breach of the peace “depended on statutory authorization.” Post, at 1, n. 1 (opinion concurring in judgment). Atwater cited both of the sources on which JUSTICE GINSBURG relies for a limited view of common-law arrest authority, but it also identified and quoted numerous treatises that described common-law authority to arrest for minor misdemeanors without limitation to cases in which a statute authorized arrest. . . . Atwater noted that many statutes authorized arrest for misdemeanors other than breaches of the peace, but it concluded that the view of arrest authority as extending beyond breaches of the peace also reflected judge-made common law. . . . Particularly since Atwater considered the materials on which Justice Ginsburg relies, we see no reason to revisit the case’s conclusion. 12 Of the early cases that Davies collects, see 98 Mich. L. Rev., at 613, n. 174; id., at 614, n. 175, the lone decision to treat statutes as relevant to the Fourth Amendment’s contours simply applied the principle that statutes enacted in the years immediately before or after the Amendment was adopted shed light on what citizens at the time of the Amendment’s enactment saw as reasonable. Boyd v. United States, 116 U.S. 616, 622–623 (1886).

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granted” at the founding, Taylor, supra, at 45, as were warrantless arrests themselves, Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 764 (1994). There are a number of possible explanations of why such constitutional claims were not raised. Davies, for example, argues that actions taken in violation of state law could not qualify as state action subject to Fourth Amendment constraints. 98 Mich. L. Rev., at 660–663. Be that as it may, as Moore adduces neither case law nor commentaries to support his view that the Fourth Amendment was intended to incorporate statutes, this is “not a case in which the claimant can point to ‘a clear answer [that] existed in 1791 and has been generally adhered to by the traditions of our society ever since.’” Atwater v. Lago Vista, 532 U.S. 318, 345 (2001) (alteration in original). III A When history has not provided a conclusive answer, we have analyzed a search or seizure in light of traditional standards of reasonableness “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Houghton, 526 U.S., at 300; see also Atwater, 532 U.S., at 346. That methodology provides no support for Moore’s Fourth Amendment claim. In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable. Id., at 354; see also, e.g., Devenpeck v. Alford, 543 U.S. 146, 152 (2004); Gerstein v. Pugh, 420 U.S. 103, 111 (1975); Brinegar v. United States, 338 U.S. 160, 164, 170, 175–176 (1949). Our decisions counsel against changing this calculus when a State chooses to protect privacy beyond the level that the Fourth Amendment requires. We have treated additional protections exclusively as matters of state law. In Cooper v. California, 386 U.S. 58 (1967), we reversed a state court that had held the search of a seized vehicle to be in violation of the Fourth Amendment because state law did not explicitly authorize the search. We concluded that whether state law authorized the search was irrelevant. States, we said, remained free “to 320

impose higher standards on searches and seizures than required by the Federal Constitution,” . . ., but regardless of state rules, police could search a lawfully seized vehicle as a matter of federal constitutional law. In California v. Greenwood, 486 U.S. 35 (1988), we held that search of an individual’s garbage forbidden by California’s Constitution was not forbidden by the Fourth Amendment. “[W]hether or not a search is reasonable within the meaning of the Fourth Amendment,” we said, has never “depend[ed] on the law of the particular State in which the search occurs.” . . . . While “[i]ndividual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution,” . . ., state law did not alter the content of the Fourth Amendment. We have applied the same principle in the seizure context. Whren v. United States, 517 U.S. 806 (1996), held that police officers had acted reasonably in stopping a car, even though their action violated regulations limiting the authority of plainclothes officers in unmarked vehicles. We thought it obvious that the Fourth Amendment’s meaning did not change with local law enforcement practices—even practices set by rule. While those practices “vary from place to place and from time to time,” Fourth Amendment protections are not “so variable” and cannot “be made to turn upon such trivialities.” . . . . Some decisions earlier than these excluded evidence obtained in violation of state law, but those decisions rested on our supervisory power over the federal courts, rather than the Constitution. In Di Re, 332 U.S. 581, federal and state officers collaborated in an investigation that led to an arrest for a federal crime. The Government argued that the legality of an arrest for a federal offense was a matter of federal law. . . . We concluded, however, that since Congress had provided that arrests with warrants must be made in accordance with state law, the legality of arrests without warrants should also be judged according to state-law standards. . . . This was plainly not a rule we derived from the Constitution, however, because we repeatedly invited Congress to change it by statute—saying that state law governs the validity of a warrantless arrest “in [the] absence of an applicable federal statute,” id., at 589, and that the Di Re rule applies “except in those cases where Congress has enacted a federal rule,”. . . . Later decisions did not expand the rule of Di Re. Johnson v. United States, 333 U.S. 10 (1948), relied on Di Re to suppress evidence obtained under circumstances identical in relevant respects to those in

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that case. See 333 U.S., at 12, 15, n. 5. And Michigan v. DeFillippo, 443 U.S. 31 (1979), upheld a warrantless arrest in a case where compliance with state law was not at issue. While our opinion said that “[w]hether an officer is authorized to make an arrest ordinarily depends, in the first instance, on state law,” it also said that a warrantless arrest satisfies the Constitution so long as the officer has “probable cause to believe that the suspect has committed or is committing a crime.” Id., at 36. We need not pick and choose among the dicta: Neither Di Re nor the cases following it held that violations of state arrest law are also violations of the Fourth Amendment, and our more recent decisions, discussed above, have indicated that when States go above the Fourth Amendment minimum, the Constitution’s protections concerning search and seizure remain the same. B We are convinced that the approach of our prior cases is correct, because an arrest based on probable cause serves interests that have long been seen as sufficient to justify the seizure. Whren, supra, at 817; Atwater, supra, at 354. Arrest ensures that a suspect appears to answer charges and does not continue a crime, and it safeguards evidence and enables officers to conduct an in-custody investigation. . . . Moore argues that a State has no interest in arrest when it has a policy against arresting for certain crimes. That is not so, because arrest will still ensure a suspect’s appearance at trial, prevent him from continuing his offense, and enable officers to investigate the incident more thoroughly. State arrest restrictions are more accurately characterized as showing that the State values its interests in forgoing arrests more highly than its interests in making them,. . . . A State is free to prefer one search-andseizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional. If we concluded otherwise, we would often frustrate rather than further state policy. Virginia chooses to protect individual privacy and dignity more than the Fourth Amendment requires, but it also chooses not to attach to violations of its arrest rules the potent remedies that federal courts have applied to Fourth Amendment violations. Virginia does not, for example, ordinarily exclude from criminal trials evidence

obtained in violation of its statutes. . . . Moore would allow Virginia to accord enhanced protection against arrest only on pain of accompanying that protection with federal remedies for Fourth Amendment violations, which often include the exclusionary rule. States unwilling to lose control over the remedy would have to abandon restrictions on arrest altogether. This is an odd consequence of a provision designed to protect against searches and seizures. Even if we thought that state law changed the nature of the Commonwealth’s interests for purposes of the Fourth Amendment, we would adhere to the probable-cause standard. In determining what is reasonable under the Fourth Amendment, we have given great weight to the “essential interest in readily administrable rules.” Atwater, 532 U.S., at 347. In Atwater, we acknowledged that nuanced judgments about the need for warrantless arrest were desirable, but we nonetheless declined to limit to felonies and disturbances of the peace the Fourth Amendment rule allowing arrest based on probable cause to believe a law has been broken in the presence of the arresting officer. . . . The rule extends even to minor misdemeanors, we concluded, because of the need for a brightline constitutional standard. If the constitutionality of arrest for minor offenses turned in part on inquiries as to risk of flight and danger of repetition, officers might be deterred from making legitimate arrests. . . . We found little to justify this cost, because there was no “epidemic of unnecessary minor-offense arrests,” and hence “a dearth of horribles demanding redress.”. . . . Incorporating statelaw arrest limitations into the Constitution would produce a constitutional regime no less vague and unpredictable than the one we rejected in Atwater. The constitutional standard would be only as easy to apply as the underlying state law, and state law can be complicated indeed. The Virginia statute in this case, for example, calls on law enforcement officers to weigh just the sort of case-specific factors that Atwater said would deter legitimate arrests if made part of the constitutional inquiry. It would authorize arrest if a misdemeanor suspect fails or refuses to discontinue the unlawful act, or if the officer believes the suspect to be likely to disregard a summons. . . . Atwater specifically noted the “extremely poor judgment” displayed in arresting a local resident who would “almost certainly” have discontinued the offense and who had “no place to hide and no incentive to flee.”. . . . It nonetheless declined to

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make those considerations part of the constitutional calculus. Atwater differs from this case in only one significant respect: It considered (and rejected) federal constitutional remedies for all minor-misdemeanor arrests; Moore seeks them in only that subset of minor-misdemeanor arrests in which there is the least to be gained—that is, where the State has already acted to constrain officers’ discretion and prevent abuse. Here we confront fewer horribles than in Atwater, and less of a need for redress. Finally, linking Fourth Amendment protections to state law would cause them to “vary from place to place and from time to time,” Whren, 517 U.S., at 815. Even at the same place and time, the Fourth Amendment’s protections might vary if federal officers were not subject to the same statutory constraints as state officers. In Elkins v. United States, 364 U.S. 206, 210–212 (1960), we noted the practical difficulties posed by the “silver-platter doctrine,” which had imposed more stringent limitations on federal officers than on state police acting independent of them. It would be strange to construe a constitutional provision that did not apply to the States at all when it was adopted to now restrict state officers more than federal officers, solely because the States have passed search-and-seizure laws that are the prerogative of independent sovereigns. We conclude that warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections. IV Moore argues that even if the Constitution allowed his arrest, it did not allow the arresting officers to search him. We have recognized, however, that officers may perform searches incident to constitutionally permissible arrests in order to ensure their safety and safeguard evidence. United States v. Robinson, 414 U.S. 218 (1973). We have described this rule as covering any “lawful arrest,”. . ., with constitutional law as the reference point. That is to say, we have equated a lawful arrest with an arrest based on probable cause: “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.”. . . (emphasis added). Moore correctly notes that several important state-court decisions have defined the lawfulness of arrest in terms of compliance 322

with state law. . But it is not surprising that States have used “lawful” as shorthand for compliance with state law, while our constitutional decision in Robinson used “lawful” as shorthand for compliance with constitutional constraints. The interests justifying search are present whenever an officer makes an arrest. A search enables officers to safeguard evidence, and, most critically, to ensure their safety during “the extended exposure which follows the taking of a suspect into custody and transporting him to the police station.”. . . Officers issuing citations do not face the same danger, and we therefore held in Knowles v. Iowa, 525 U.S. 113 (1998), that they do not have the same authority to search. We cannot agree with the Virginia Supreme Court that Knowles controls here. The state officers arrested Moore, and therefore faced the risks that are “an adequate basis for treating all custodial arrests alike for purposes of search justification.” Robinson, supra, at 235. The Virginia Supreme Court may have concluded that Knowles required the exclusion of evidence seized from Moore because, under state law, the officers who arrested Moore should have issued him a citation instead. This argument might have force if the Constitution forbade Moore’s arrest, because we have sometimes excluded evidence obtained through unconstitutional methods in order to deter constitutional violations. See Wong Sun v. United States, 371 U.S. 471, 484–485, 488 (1963). But the arrest rules that the officers violated were those of state law alone, and as we have just concluded, it is not the province of the Fourth Amendment to enforce state law. That Amendment does not require the exclusion of evidence obtained from a constitutionally permissible arrest. ... We reaffirm against a novel challenge what we have signaled for more than half a century. When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety. The judgment of the Supreme Court of Virginia is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE GINSBURG, concurring in the judgment. I find in the historical record more support for Moore’s position than the Court does, ante, at 3–5. Further, our decision in United States v. Di Re, 332

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U.S. 581, 587–590 (1948), requiring suppression of evidence gained in a search incident to an unlawful arrest, seems to me pinned to the Fourth Amendment and not to our “supervisory power,” . . . And I am aware of no “long line of cases” holding that, regardless of state law, probable cause renders every warrantless arrest for crimes committed in the presence of an arresting officer “constitutionally reasonable,”. . . I agree with the Court’s conclusion and its reasoning, however, to this extent. In line with the Court’s decision in Atwater v. Lago Vista, 532 U.S. 318, 354 (2001), Virginia could have made driving on a suspended license an arrestable offense. The Commonwealth chose not to do so. Moore asks us to credit Virginia law on a police officer’s arrest authority, but only in part. He emphasizes Virginia’s classification of driving on a suspended license as a nonarrestable misdemeanor. Moore would have us ignore,

however, the limited consequences Virginia attaches to a police officer’s failure to follow the Commonwealth’s summons- only instruction. For such an infraction, the officer may be disciplined and the person arrested may bring a tort suit against the officer. But Virginia law does not demand the suppression of evidence seized by an officer who arrests when he should have issued a summons. The Fourth Amendment, today’s decision holds, does not put States to an all-or-nothing choice in this regard. A State may accord protection against arrest beyond what the Fourth Amendment requires, yet restrict the remedies available when police deny to persons they apprehend the extra protection state law orders. . . . Because I agree that the arrest and search Moore challenges violated Virginia law, but did not violate the Fourth Amendment, I join the Court’s judgment.

ARIZONA V. GANT 556 U.S. ____ (2009) JUSTICE S TEVENS delivered the opinion of the Court, in which JUSTICES SCALIA , S OUTER, T HOMAS , and GINSBURG joined. JUSTICE S CALIA filed a concurring opinion. Justice Breyer filed a dissenting opinion. JUSTICE ALITO filed a dissenting opinion in which CHIEF JUSTICE ROBERTS and JUSTICE K ENNEDY joined and in which J USTICE BREYER joined except as to Part II-E. JUSTICE STEVENS delivered the opinion of the Court. After Rodney Gant was arrested for driving with a suspended license, handcuffed, and locked in the back of a patrol car, police officers searched his car and discovered cocaine in the pocket of a jacket on the backseat. Because Gant could not have accessed his car to retrieve weapons or evidence at the time of the search, the Arizona Supreme Court held that the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement, as defined in Chimel v. California, 395 U.S. 752 (1969), and applied to vehicle searches in New York v. Belton, 453 U.S. 454 (1981), did not justify the search in this case. We agree with that conclusion.

Under Chimel, police may search incident to arrest only the space within an arrestee’s “ ‘immediate control,’ ” meaning “the area from within which he might gain possession of a weapon or destructible evidence.” . . . The safety and evidentiary justifications underlying Chimel’s reaching-distance rule determine Belton’s scope. Accordingly, we hold that Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle. Consistent with the holding in Thornton v. United States, 541 U.S. 615 (2004), and following the suggestion in Justice Scalia’s opinion concurring in the judgment in that case, . . . we also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle. I On August 25, 1999, acting on an anonymous tip that the residence at 2524 North Walnut Avenue was

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being used to sell drugs, Tucson police officers Griffith and Reed knocked on the front door and asked to speak to the owner. Gant answered the door and, after identifying himself, stated that he expected the owner to return later. The officers left the residence and conducted a records check, which revealed that Gant’s driver’s license had been suspended and there was an outstanding warrant for his arrest for driving with a suspended license. When the officers returned to the house that evening, they found a man near the back of the house and a woman in a car parked in front of it. After a third officer arrived, they arrested the man for providing a false name and the woman for possessing drug paraphernalia. Both arrestees were handcuffed and secured in separate patrol cars when Gant arrived. The officers recognized his car as it entered the driveway, and Officer Griffith confirmed that Gant was the driver by shining a flashlight into the car as it drove by him. Gant parked at the end of the driveway, got out of his car, and shut the door. Griffith, who was about 30 feet away, called to Gant, and they approached each other, meeting ten-to-twelve feet from Gant’s car. Griffith immediately arrested Gant and handcuffed him. Because the other arrestees were secured in the only patrol cars at the scene, Griffith called for backup. When two more officers arrived, they locked Gant in the backseat of their vehicle. After Gant had been handcuffed and placed in the back of a patrol car, two officers searched his car: One of them found a gun, and the other discovered a bag of cocaine in the pocket of a jacket on the backseat. Gant was charged with two offenses—possession of a narcotic drug for sale and possession of drug paraphernalia (i.e., the plastic bag in which the cocaine was found). He moved to suppress the evidence seized from his car on the ground that the warrantless search violated the Fourth Amendment. Among other things, Gant argued that Belton did not authorize the search of his vehicle because he posed no threat to the officers after he was handcuffed in the patrol car and because he was arrested for a traffic offense for which no evidence could be found in his vehicle. When asked at the suppression hearing why the search was conducted, Officer Griffith responded: “Because the law says we can do it.” . . . . The trial court rejected the State’s contention that the officers had probable cause to search Gant’s car for contraband when the search began,. . ., but it denied the motion to suppress. Relying on the fact that the police saw Gant commit the crime of driving 324

without a license and apprehended him only shortly after he exited his car, the court held that the search was permissible as a search incident to arrest. . . . A jury found Gant guilty on both drug counts, and he was sentenced to a three-year term of imprisonment. After protracted state-court proceedings, the Arizona Supreme Court concluded that the search of Gant’s car was unreasonable within the meaning of the Fourth Amendment. The court’s opinion discussed at length our decision in Belton, which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of an arrest of the vehicle’s recent occupant. . . . The court distinguished Belton as a case concerning the permissible scope of a vehicle search incident to arrest and concluded that it did not answer “the threshold question whether the police may conduct a search incident to arrest at all once the scene is secure.” . . . . Relying on our earlier decision in Chimel, the court observed that the searchincident-to-arrest exception to the warrant requirement is justified by interests in officer safety and evidence preservation. . . .. When “the justifications underlying Chimel no longer exist because the scene is secure and the arrestee is handcuffed, secured in the back of a patrol car, and under the supervision of an officer,” the court concluded, a “warrantless search of the arrestee’s car cannot be justified as necessary to protect the officers at the scene or prevent the destruction of evidence.” . . . . Accordingly, the court held that the search of Gant’s car was unreasonable. The dissenting justices would have upheld the search of Gant’s car based on their view that “the validity of a Belton search . . . clearly does not depend on the presence of the Chimel rationales in a particular case.” . . . . Although they disagreed with the majority’s view of Belton, the dissenting justices acknowledged that “[t]he bright-line rule embraced in Belton has long been criticized and probably merits reconsideration.” . . . . They thus “add[ed their] voice[s] to the others that have urged the Supreme Court to revisit Belton.” . . . . The chorus that has called for us to revisit Belton includes courts, scholars, and Members of this Court who have questioned that decision’s clarity and its fidelity to Fourth Amendment principles. We therefore granted the State’s petition for certiorari. . . . (2008). II Consistent with our precedent, our analysis begins, as it should in every case addressing the reasonable-

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ness of a warrantless search, with the basic rule that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment— subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). . . . Among the exceptions to the warrant requirement is a search incident to a lawful arrest. See Weeks v. United States, 232 U.S. 383, 392 (1914). The exception derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations. See United States v. Robinson, 414 U.S. 218, 230–234 (1973); Chimel, . . . . In Chimel, we held that a search incident to arrest may only include “the arrestee’s person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” . . . . That limitation, which continues to define the boundaries of the exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy. . . . . (noting that searches incident to arrest are reasonable “in order to remove any weapons [the arrestee] might seek to use” and “in order to prevent [the] concealment or destruction” of evidence (emphasis added)). If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-toarrest exception are absent and the rule does not apply. . . . Preston v. United States, 376. . . (1964). In Belton, we considered Chimel’s application to the automobile context. A lone police officer in that case stopped a speeding car in which Belton was one of four occupants. While asking for the driver’s license and registration, the officer smelled burnt marijuana and observed an envelope on the car floor marked “Supergold”—a name he associated with marijuana. Thus having probable cause to believe the occupants had committed a drug offense, the officer ordered them out of the vehicle, placed them under arrest, and patted them down. Without handcuffing the arrestees,13 the officer “ ‘split them up into four separate areas of the Thruway . . . so 13 The officer was unable to handcuff the occupants because he had only one set of handcuffs. See Brief for Petitioner in New York v. Belton, O. T. 1980, No. 80–328, p. 3 . . . .

they would not be in physical touching area of each other’ ” and searched the vehicle, including the pocket of a jacket on the backseat, in which he found cocaine. . . . The New York Court of Appeals found the search unconstitutional, concluding that after the occupants were arrested the vehicle and its contents were “safely within the exclusive custody and control of the police.” State v. Belton, 50 N. Y. 2d 447, . . . (1980). The State asked this Court to consider whether the exception recognized in Chimel permits an officer to search “a jacket found inside an automobile while the automobile’s four occupants, all under arrest, are standing unsecured around the vehicle.” . . . . We granted certiorari because “courts ha[d] found no workable definition of ‘the area within the immediate control of the arrestee’ when that area arguably includes the interior of an automobile.” . . . . In its brief, the State argued that the Court of Appeals erred in concluding that the jacket was under the officer’s exclusive control. Focusing on the number of arrestees and their proximity to the vehicle, the State asserted that it was reasonable for the officer to believe the arrestees could have accessed the vehicle and its contents, making the search permissible under Chimel. . . . The United States, as amicus curiae in support of the State, argued for a more permissive standard, but it maintained that any search incident to arrest must be “‘substantially contemporaneous’” with the arrest—a requirement it deemed “satisfied if the search occurs during the period in which the arrest is being consummated and before the situation has so stabilized that it could be said that the arrest was completed.” Brief for United States as Amicus Curiae in New York v. Belton, O. T. 1980, No. 80–328, p. 14. There was no suggestion by the parties or amici that Chimel authorizes a vehicle search incident to arrest when there is no realistic possibility that an arrestee could access his vehicle. After considering these arguments, we held that when an officer lawfully arrests “the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile” and any containers therein. . . .. That holding was based in large part on our assumption “that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach.’ ”. . . The Arizona Supreme Court read our decision in Belton as merely delineating “the proper scope of a

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search of the interior of an automobile” incident to an arrest,. . . . That is, when the passenger compartment is within an arrestee’s reaching distance, Belton supplies the generalization that the entire compartment and any containers therein may be reached. On that view of Belton, the state court concluded that the search of Gant’s car was unreasonable because Gant clearly could not have accessed his car at the time of the search. It also found that no other exception to the warrant requirement applied in this case. Gant now urges us to adopt the reading of Belton followed by the Arizona Supreme Court. III Despite the textual and evidentiary support for the Arizona Supreme Court’s reading of Belton, our opinion has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search. This reading may be attributable to Justice Brennan’s dissent in Belton, in which he characterized the Court’s holding as resting on the “fiction . . . that the interior of a car is always within the immediate control of an arrestee who has recently been in the car.” 453 U.S., at 466. Under the majority’s approach, he argued, “the result would presumably be the same even if [the officer] had handcuffed Belton and his companions in the patrol car” before conducting the search. . . . Since we decided Belton, Courts of Appeals have given different answers to the question whether a vehicle must be within an arrestee’s reach to justify a vehicle search incident to arrest, but J USTICE B RENNAN ’s reading of the Court’s opinion has predominated. As JUSTICE O’CONNOR observed, “lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel.” Thornton, 541 U.S., at 624 (opinion concurring in part). JUSTICE SCALIA has similarly noted that, although it is improbable that an arrestee could gain access to weapons stored in his vehicle after he has been handcuffed and secured in the backseat of a patrol car, cases allowing a search in “this precise factual scenario . . . are legion.” Id., at 628 (opinion concurring in judgment) (collecting cases). Indeed, some courts have upheld searches under Belton “even when . . . the handcuffed arrestee has already left the scene.” 541 U.S., at 628 (same). 326

Under this broad reading of Belton, a vehicle search would be authorized incident to every arrest of a recent occupant notwithstanding that in most cases the vehicle’s passenger compartment will not be within the arrestee’s reach at the time of the search. To read Belton as authorizing a vehicle search incident to every recent occupant’s arrest would thus untether the rule from the justifications underlying the Chimel exception—a result clearly incompatible with our statement in Belton that it “in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.” 453 U.S., at 460, n. 3. Accordingly, we reject this reading of Belton and hold that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.14 Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Thornton, 541 U.S., at 632 (SCALIA, J., concurring in judgment). In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. See, e.g., Atwater v. Lago Vista, 532 U.S. 318, 324 (2001); Knowles v. Iowa, 525 U.S. 113, 118 (1998). But in others, including Belton and Thornton, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein. Neither the possibility of access nor the likelihood of discovering offense-related evidence authorized the search in this case. Unlike in Belton, which involved a single officer confronted with four unsecured arrestees, the five officers in this case outnumbered the three arrestees, all of whom had been handcuffed and secured in separate patrol cars before the officers searched Gant’s car. Under those circumstances, Gant clearly was not within reaching 14 Because officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee’s vehicle remains. . . . But in such a case a search incident to arrest is reasonable under the Fourth Amendment.

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distance of his car at the time of the search. An evidentiary basis for the search was also lacking in this case. Whereas Belton and Thornton were arrested for drug offenses, Gant was arrested for driving with a suspended license—an offense for which police could not expect to find evidence in the passenger compartment of Gant’s car. . . . Because police could not reasonably have believed either that Gant could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein, the search in this case was unreasonable. IV The State does not seriously disagree with the Arizona Supreme Court’s conclusion that Gant could not have accessed his vehicle at the time of the search, but it nevertheless asks us to uphold the search of his vehicle under the broad reading of Belton discussed above. The State argues that Belton searches are reasonable regardless of the possibility of access in a given case because that expansive rule correctly balances law enforcement interests, including the interest in a bright-line rule, with an arrestee’s limited privacy interest in his vehicle. For several reasons, we reject the State’s argument. First, the State seriously undervalues the privacy interests at stake. Although we have recognized that a motorist’s privacy interest in his vehicle is less substantial than in his home, . . ., the former interest is nevertheless important and deserving of constitutional protection, . . . . It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects. At the same time as it undervalues these privacy concerns, the State exaggerates the clarity that its reading of Belton provides. Courts that have read Belton expansively are at odds regarding how close in time to the arrest and how proximate to the ar-

restee’s vehicle an officer’s first contact with the arrestee must be to bring the encounter within Belton’s purview and whether a search is reason- able when it commences or continues after the arrestee has been removed from the scene. The rule has thus generated a great deal of uncertainty, particularly for a rule touted as providing a “bright line.” . . . . Contrary to the State’s suggestion, a broad reading of Belton is also unnecessary to protect law enforcement safety and evidentiary interests. Under our view, Belton and Thornton permit an officer to conduct a vehicle search when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Other established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand. For instance, Michigan v. Long, . . . (1983), permits an officer to search a vehicle’s passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is “dangerous” and might access the vehicle to “gain immediate control of weapons.” Id., at 1049 (citing Terry v. Ohio, 392 U.S. 1, 21 (1968)). If there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross, . . . (1982), authorizes a search of any area of the vehicle in which the evidence might be found. Unlike the searches permitted by Justice Scalia’s opinion concurring in the judgment in Thornton, which we conclude today are reasonable for purposes of the Fourth Amendment, Ross allows searches for evidence relevant to offenses other than the offense of arrest, and the scope of the search authorized is broader. Finally, there may be still other circumstances in which safety or evidentiary interests would justify a search. Cf. Maryland v. Buie, 494 U.S. 325, 334 (1990) (holding that, incident to arrest, an officer may conduct a limited protective sweep of those areas of a house in which he reasonably suspects a dangerous person may be hiding). These exceptions together ensure that officers may search a vehicle when genuine safety or evidentiary concerns encountered during the arrest of a vehicle’s recent occupant justify a search. Construing Belton broadly to allow vehicle searches incident to any arrest would serve no purpose except to provide a police entitlement, and it is anathema to the Fourth Amendment to permit a warrantless search on that basis. For these reasons, we are unpersuaded by the State’s arguments that a broad reading of Belton would meaningfully

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further law enforcement interests and justify a substantial intrusion on individuals’ privacy.15 V Our dissenting colleagues argue that the doctrine of stare decisis requires adherence to a broad reading of Belton even though the justifications for searching a vehicle incident to arrest are in most cases absent.16 The doctrine of stare decisis is of course “essential to the respect accorded to the judgments of the Court and to the stability of the law,” but it does not compel us to follow a past decision when its rationale no longer withstands “careful analysis.” Lawrence v. Texas, 539 U.S. 558, 577 (2003). We have never relied on stare decisis to justify the continuance of an unconstitutional police practice. And we would be particularly loath to uphold an unconstitutional result in a case that is so easily distinguished from the decisions that arguably compel it. The safety and evidentiary interests that supported the search in Belton simply are not present in this case. Indeed, it is hard to imagine two cases that are factually more distinct, as Belton involved one officer confronted by four unsecured arrestees suspected of committing a drug offense and this case involves several officers confronted with a securely detained arrestee apprehended for driving with a suspended license. This case is also distinguishable from Thornton, in which the petitioner was arrested for a drug offense. It is thus unsurprising that Members of this Court who concurred in the judgments in Belton and Thornton also concur in the decision in this case.17 15 At least eight States have reached the same conclusion. Vermont, New Jersey, New Mexico, Nevada, Pennsylvania, New York, Oregon, and Wyoming have declined to follow a broad reading of Belton under their state constitutions. . . . And a Massachusetts statute provides that a search incident to arrest may be made only for the purposes of seizing weapons or evidence of the offense of arrest. 16 JUSTICE ALITO’s dissenting opinion also accuses us of “overrul[ing]” Belton and Thornton v. United States, 541 U.S. 615 (2004), “even though respondent Gant has not asked us to do so.” . . . . Contrary to that claim, the narrow reading of Belton we adopt today is precisely the result Gant has urged. That JUSTICE ALITO has chosen to describe this decision as overruling our earlier cases does not change the fact that the resulting rule of law is the one advocated by respondent. 17 JUSTICE STEVENS concurred in the judgment in Belton, 453 U.S., at 463, for the reasons stated in his dissenting opinion in Robbins v. California, 453 U.S. 420, 444 (1981), JUSTICE THOMAS joined the Court’s opinion in Thornton, 541 U.S. 615, and Justice SCALIA and JUSTICE GINSBURG concurred in the judgment in that case, id., at 625.

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We do not agree with the contention in JUSTICE ALITO’s dissent (hereinafter dissent) that consideration of police reliance interests requires a different result. Although it appears that the State’s reading of Belton has been widely taught in police academies and that law enforcement officers have relied on the rule in conducting vehicle searches during the past twenty-eight years,18 many of these searches were not justified by the reasons underlying the Chimel exception. Countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated as a result. The fact that the law enforcement community may view the State’s version of the Belton rule as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interest that all individuals share in having their constitutional rights fully protected. If it is clear that a practice is unlawful, individuals’ interest in its discontinuance clearly outweighs any law enforcement “entitlement” to its persistence. Cf. Mincey v. Arizona, 437 U.S. 385, 393 (1978) (“[T]he mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment”). The dissent’s reference in this regard to the reliance interests cited in Dickerson v. United States, 530 U.S. 428 (2000), is misplaced. . . . In observing that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture,” 530 U.S., at 443, the Court was referring not to police reliance on a rule requiring them to provide warnings but to the broader societal reliance on that individual right. The dissent also ignores the checkered history of the search-incident-to-arrest exception. . . . The experience of the twenty-eight years since we decided Belton has shown that the generalization underpinning the broad reading of that decision is unfounded. We now know that articles inside the passenger compartment are rarely “within ‘the area into which an arrestee might reach,’” . . ., and blind adherence to Belton’s faulty assumption would authorize myriad unconstitutional searches. The doctrine of stare decisis does not require us to approve routine constitutional violations.

18

Because a broad reading of Belton has been widely accepted, the doctrine of qualified immunity will shield officers from liability for searches conducted in reasonable reliance on that understanding.

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VI Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. The Arizona Supreme Court correctly held that this case involved an unreasonable search. Accordingly, the judgment of the State Supreme Court is affirmed. It is so ordered JUSTICE SCALIA, concurring: To determine what is an “unreasonable” search within the meaning of the Fourth Amendment, we look first to the historical practices the Framers sought to preserve; if those provide inadequate guidance, we apply traditional standards of reasonableness. See Virginia v. Moore, 553 U.S. ___, ___ (2008). . . . Since the historical scope of officers’ authority to search vehicles incident to arrest is uncertain, see Thornton v. United States,. . . (2004) (SCALIA, J., concurring in judgment), traditional standards of reasonableness govern. It is abundantly clear that those standards do not justify what I take to be the rule set forth in New York v. Belton, . . . (1981), and Thornton: that arresting officers may always search an arrestee’s vehicle in order to protect themselves from hidden weapons. When an arrest is made in connection with a roadside stop, police virtually always have a less intrusive and more effective means of ensuring their safety—and a means that is virtually always employed: ordering the arrestee away from the vehicle, patting him down in the open, handcuffing him, and placing him in the squad car. Law enforcement officers face a risk of being shot whenever they pull a car over. But that risk is at its height at the time of the initial confrontation; and it is not at all reduced by allowing a search of the stopped vehicle after the driver has been arrested and placed in the squad car. I observed in Thornton that the government had failed to provide a single instance in which a formerly restrained arrestee escaped to retrieve a weapon from his own vehicle, . . . Arizona and its amici have not remedied that significant deficiency in the present case.

It must be borne in mind that we are speaking here only of a rule automatically permitting a search when the driver or an occupant is arrested. Where no arrest is made, we have held that officers may search the car if they reasonably believe “the suspect is dangerous and . . . may gain immediate control of weapons.” Michigan v. Long, . . . (1983). In the noarrest case, the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed. The rule of Michigan v. Long is not at issue here. JUSTICE STEVENS acknowledges that an officersafety rationale cannot justify all vehicle searches incident to arrest, but asserts that that is not the rule Belton and Thornton adopted. (As described above, I read those cases differently). J USTICE STEVENS would therefore retain the application of Chimel v. California, 395 U.S. 752 (1969), in the car-search context but would apply in the future what he believes our cases held in the past: that officers making a roadside stop may search the vehicle so long as the “arrestee is within reaching distance of the passenger compartment at the time of the search.” . . . I believe that this standard fails to provide the needed guidance to arresting officers and also leaves much room for manipulation, inviting officers to leave the scene unsecured (at least where dangerous suspects are not involved) in order to conduct a vehicle search. In my view we should simply abandon the Belton-Thornton charade of officer safety and overrule those cases. I would hold that a vehicle search incident to arrest is ipso facto “reasonable” only when the object of the search is evidence of the crime for which the arrest was made, or of another crime that the officer has probable cause to believe occurred. Because respondent was arrested for driving without a license (a crime for which no evidence could be expected to be found in the vehicle), I would hold in the present case that the search was unlawful. JUSTICE ALITO insists that the Court must demand a good reason for abandoning prior precedent. That is true enough, but it seems to me ample reason that the precedent was badly reasoned and produces erroneous (in this case unconstitutional) results. See Payne v. Tennessee, . . . (1991). We should recognize Belton’s fanciful reliance upon officer safety for what it was: “a return to the broader sort of [evidence-gathering] search incident to arrest that we allowed before Chimel.” . . .

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JUSTICE ALITO argues that there is no reason to adopt a rule limiting automobile-arrest searches to those cases where the search’s object is evidence of the crime of arrest. . . . I disagree. This formulation of officers’ authority both preserves the outcomes of our prior cases and tethers the scope and rationale of the doctrine to the triggering event. Belton, by contrast, allowed searches precisely when its exigencybased rationale was least applicable: The fact of the arrest in the automobile context makes searches on exigency grounds less reasonable, not more. I also disagree with Justice Alito’s conclusory assertion that this standard will be difficult to administer in practice, . . . ; the ease of its application in this case would suggest otherwise. No other Justice, however, shares my view that application of Chimel in this context should be entirely abandoned. It seems to me unacceptable for the Court to come forth with a four-to-one-to-four opinion that leaves the governing rule uncertain. I am therefore confronted with the choice of either leaving the current understanding of Belton and Thornton in effect, or acceding to what seems to me the artificial narrowing of those cases adopted by Justice Stevens. The latter, as I have said, does not provide the degree of certainty I think desirable in this field; but the former opens the field to what I think are plainly unconstitutional searches—which is the greater evil. I therefore join the opinion of the Court. JUSTICE BREYER, dissenting: I agree with JUSTICE ALITO that New York v. Belton, 453 U.S. 454 (1981), is best read as setting forth a brightline rule that permits a warrantless search of the passenger compartment of an automobile incident to the lawful arrest of an occupant—regardless of the danger the arrested individual in fact poses. I also agree with JUSTICE STEVENS, however, that the rule can produce results divorced from its underlying Fourth Amendment rationale. Compare Belton, supra, with Chimel v. California, 395 U.S. 752, 764 (1969) (explaining that the rule allowing contemporaneous searches is justified by the need to prevent harm to a police officer or destruction of evidence of the crime). For that reason I would look for a better rule—were the question before us one of first impression. The matter, however, is not one of first impression, and that fact makes a substantial difference. The Belton rule has been followed not only by this Court in Thornton v. United States, . . . (2004), but 330

also by numerous other courts. Principles of stare decisis must apply, and those who wish this Court to change a well-established legal precedent—where, as here, there has been considerable reliance on the legal rule in question—bear a heavy burden. . . . I have not found that burden met. Nor do I believe that the other considerations ordinarily relevant when determining whether to overrule a case are satisfied. I consequently join Justice Alito’s dissenting opinion with the exception of Part II-E JUSTICE ALITO, with whom THE CHIEF JUSTICE and JUSTICE KENNEDY join, and with whom JUSTICE BREYER joins except as to Part II–E, dissenting. Twenty-eight years ago, in New York v. Belton, 453 U.S. 454, 460 (1981), this Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.”. . . Five years ago, in Thornton v. United States, 541 U.S. 615 (2004)— a case involving a situation not materially distinguishable from the situation here—the Court not only reaffirmed but extended the holding of Belton, making it applicable to recent occupants. Today’s decision effectively overrules those important decisions, even though respondent Gant has not asked us to do so. To take the place of the overruled precedents, the Court adopts a new two-part rule under which a police officer who arrests a vehicle occupant or recent occupant may search the passenger compartment if (1) the arrestee is within reaching distance of the vehicle at the time of the search or (2) the officer has reason to believe that the vehicle contains evidence of the offense of arrest. . . . The first part of this new rule may endanger arresting officers and is truly endorsed by only four Justices; J USTICE S CALIA joins solely for the purpose of avoiding a “4-to-1-to four opinion.” . . . (concurring opinion). The second part of the new rule is taken from Justice Scalia’s separate opinion in Thornton without any independent explanation of its origin or justification and is virtually certain to confuse law enforcement officers and judges for some time to come. The Court’s decision will cause the suppression of evidence gathered in many searches carried out in good-faith reliance on well-settled case law, and although the Court purports to base its analysis on the landmark decision in Chimel v. California, 395 U.S. 752 (1969), the

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Court’s reasoning undermines Chimel. I would follow Belton, and I therefore respectfully dissent. I Although the Court refuses to acknowledge that it is overruling Belton and Thornton, there can be no doubt that it does so. In Belton, an officer on the New York Thruway removed the occupants from a car and placed them under arrest but did not handcuff them. . . . The officer then searched a jacket on the car’s back seat and found drugs. . . . By a divided vote, the New York Court of Appeals held that the search of the jacket violated Chimel, in which this Court held that an arresting officer may search the area within an arrestee’s immediate control. . . . The justices of the New York Court of Appeals disagreed on the factual question whether the Belton arrestees could have gained access to the car. The majority thought that they could not have done so, . . . , but the dissent thought that this was a real possibility. . . . Viewing this disagreement about the application of the Chimel rule as illustrative of a persistent and important problem, the Belton Court concluded that “ ‘[a] single familiar standard’ ” was “ ‘essential to guide police officers’ ” who make roadside arrests. . . . The Court acknowledged that articles in the passenger compartment of a car are not always within an arrestee’s reach, but “[i]n order to establish the workable rule this category of cases requires,” the Court adopted a rule that categorically permits the search of a car’s passenger compartment incident to the lawful arrest of an occupant. . . . The precise holding in Belton could not be clearer. The Court stated unequivocally: “[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.”. . . . Despite this explicit statement, the opinion of the Court in the present case curiously suggests that Belton may reasonably be read as adopting a holding that is narrower than the one explicitly set out in the Belton opinion, namely, that an officer arresting a vehicle occupant may search the passenger compartment “when the passenger compartment is within an arrestee’s reaching distance.”. . . (emphasis in original). According to the Court, the broader reading of Belton that has gained wide acceptance “may be attributable to J USTICE B RENNAN ’s dissent.” . . .

Contrary to the Court’s suggestion, however, JUSTICE BRENNAN’s Belton dissent did not mischaracterize the Court’s holding in that case or cause that holding to be misinterpreted. As noted, the Belton Court explicitly stated precisely what it held. In Thornton, the Court recognized the scope of Belton’s holding. . . . So did JUSTICE SCALIA’s separate opinion. . . . (“In [Belton] we set forth a bright-line rule for arrests of automobile occupants, holding that . . . a search of the whole [passenger] compartment is justified in every case”). So does Justice Scalia’s opinion in the present case. . . . (Belton and Thornton held that “arresting officers may always search an arrestee’s vehicle in order to protect themselves from hidden weapons”). This “bright-line rule” has now been interred. II Because the Court has substantially overruled Belton and Thornton, the Court must explain why its departure from the usual rule of stare decisis is justified. I recognize that stare decisis is not an “inexorable command,” Payne v. Tennessee, 501 U.S. 808, 828 (1991), and applies less rigidly in constitutional cases, . . . But the Court has said that a constitutional precedent should be followed unless there is a “ ‘special justification’ ” for its abandonment. Dickerson v. United States, 530 U.S. 428, 443 (2000). Relevant factors identified in prior cases include whether the precedent has engendered reliance, . . . whether there has been an important change in circumstances in the outside world, . . . , and whether the decision was badly reasoned. . . . These factors weigh in favor of retaining the rule established in Belton. A Reliance. While reliance is most important in “cases involving property and contract rights,” Payne, supra, at 828, the Court has recognized that reliance by law enforcement officers is also entitled to weight. In Dickerson, the Court held that principles of stare decisis “weigh[ed]” heavily against overruling Miranda v. Arizona, 384 U.S. 436 (1966), because the Miranda rule had become “embedded in routine police practice.” 530 U.S., at 443. If there was reliance in Dickerson, there certainly is substantial reliance here. The Belton rule has been taught to police officers for more than a quarter century. Many searches—almost certainly including more than a few that figure in cases now on appeal— were conducted in scrupulous reliance on that

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precedent. It is likely that, on the very day when this opinion is announced, numerous vehicle searches will be conducted in good faith by police officers who were taught the Belton rule. The opinion of the Court recognizes that “Belton has been widely taught in police academies and that law enforcement officers have relied on the rule in conducting vehicle searches during the past twenty-eight years.” . . . But for the Court, this seemingly counts for nothing. The Court states that “[w]e have never relied on stare decisis to justify the continuance of an unconstitutional police practice,” . . . , but of course the Court routinely relies on decisions sustaining the constitutionality of police practices without doing what the Court has done here—sua sponte considering whether those decisions should be overruled. And the Court cites no authority for the proposition that stare decisis may be disregarded or provides only lesser protection when the precedent that is challenged is one that sustained the constitutionality of a law enforcement practice. The Court also errs in arguing that the reliance interest that was given heavy weight in Dickerson was not “police reliance on a rule requiring them to provide warnings but to the broader societal reliance on that individual right.”. . . The Dickerson opinion makes no reference to “societal reliance,” and petitioner in that case contended that there had been reliance on Miranda because, among other things, “[f]or nearly thirty-five years, Miranda’s requirements ha[d] shaped law enforcement training [and] police conduct.” See Brief for Petitioner in Dickerson v. United States, O. T. . . . p. 33. B Changed circumstances. Abandonment of the Belton rule cannot be justified on the ground that the dangers surrounding the arrest of a vehicle occupant are different today than they were twenty-eight years ago. The Court claims that “[w]e now know that articles inside the passenger compartment are rarely ‘within “the area into which an arrestee might reach,’ ” . . . , but surely it was well known in 1981 that a person who is taken from a vehicle, handcuffed, and placed in the back of a patrol car is unlikely to make it back into his own car to retrieve a weapon or destroy evidence. C Workability. The Belton rule has not proved to be unworkable. On the contrary, the rule was adopted for 332

the express purpose of providing a test that would be relatively easy for police officers and judges to apply. The Court correctly notes that even the Belton rule is not perfectly clear in all situations. Specifically, it is sometimes debatable whether a search is or is not contemporaneous with an arrest, . . ., but that problem is small in comparison with the problems that the Court’s new two-part rule will produce. The first part of the Court’s new rule—which permits the search of a vehicle’s passenger compartment if it is within an arrestee’s reach at the time of the search—reintroduces the same sort of case-by-case, fact-specific decisionmaking that the Belton rule was adopted to avoid. As the situation in Belton illustrated, there are cases in which it is unclear whether an arrestee could retrieve a weapon or evidence in the passenger compartment of a car. Even more serious problems will also result from the second part of the Court’s new rule, which requires officers making roadside arrests to determine whether there is reason to believe that the vehicle contains evidence of the crime of arrest. What this rule permits in a variety of situations is entirely unclear. D Consistency with later cases. The Belton bright-line rule has not been undermined by subsequent cases. On the contrary, that rule was reaffirmed and extended just five years ago in Thornton. E Bad reasoning. The Court is harshly critical of Belton’s reasoning, but the problem that the Court perceives cannot be remedied simply by overruling Belton. Belton represented only a modest—and quite defensible—extension of Chimel, as I understand that decision. Prior to Chimel, the Court’s precedents permitted an arresting officer to search the area within an arrestee’s “possession” and “control” for the purpose of gathering evidence. . . . Based on this “abstract doctrine,”. . ., the Court had sustained searches that extended far beyond an arrestee’s grabbing area. See United States v. Rabinowitz, 339 U.S. 56 (1950) (search of entire office); Harris v. United States, 331 U.S. 145 (1947) (search of entire apartment). The Chimel Court, in an opinion written by Justice Stewart, overruled these cases. Concluding that there are only two justifications for a warrantless

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search incident to arrest—officer safety and the preservation of evidence—the Court stated that such a search must be confined to “the arrestee’s person” and “the area from within which he might gain possession of a weapon or destructible evidence.”. . . . Unfortunately, Chimel did not say whether “the area from within which [an arrestee] might gain possession of a weapon or destructible evidence” is to be measured at the time of the arrest or at the time of the search, but unless the Chimel rule was meant to be a specialty rule, applicable to only a few unusual cases, the Court must have intended for this area to be measured at the time of arrest. This is so because the Court can hardly have failed to appreciate the following two facts. First, in the great majority of cases, an officer making an arrest is able to handcuff the arrestee and remove him to a secure place before conducting a search incident to the arrest. . . . Second, because it is safer for an arresting officer to secure an arrestee before searching, it is likely that this is what arresting officers do in the great majority of cases. (And it appears, not surprisingly, that this is in fact the prevailing practice.19) Thus, if the area within an arrestee’s reach were assessed, not at the time of arrest, but at the time of the search, the Chimel rule would rarely come into play. Moreover, if the applicability of the Chimel rule turned on whether an arresting officer chooses to secure an arrestee prior to conducting a search, rather than searching first and securing the arrestee later, the rule would “create a perverse incentive for an arresting officer to prolong the period during which the arrestee is kept in an area where he could pose a danger to the officer.” United States v. Abdul-Saboor, 85 F. 3d 664, 669 (CADC 1996). If this is the law, the D. C. Circuit observed, “the law would truly be, as Mr. Bumble said, ‘a ass.’ ” Ibid. See also United States v. Tejada, 524 F. 3d 809, 812 (CA7 2008) (“[I]f the police could lawfully have searched the defendant’s grabbing radius at the moment of arrest, he has no legitimate complaint if, the better to protect themselves from him, they first put him outside that radius”). I do not think that this is what the Chimel Court intended. Handcuffs were in use in 1969. The ability of arresting officers to secure arrestees before conducting a search—and their incentive to do so—are 19 See Moskovitz, A Rule in Search of a Reason: An Empirical Reexamination of Chimel and Belton, 2002 Wis. L. Rev. 657, 665.

facts that can hardly have escaped the Court’s attention. I therefore believe that the Chimel Court intended that its new rule apply in cases in which the arrestee is handcuffed before the search is conducted. The Belton Court, in my view, proceeded on the basis of this interpretation of Chimel. Again speaking through Justice Stewart, the Belton Court reasoned that articles in the passenger compartment of a car are “generally, even if not inevitably” within an arrestee’s reach. . . . This is undoubtedly true at the time of the arrest of a person who is seated in a car but plainly not true when the person has been removed from the car and placed in handcuffs. Accordingly, the Belton Court must have proceeded on the assumption that the Chimel rule was to be applied at the time of arrest. And that is why the Belton Court was able to say that its decision “in no way alter[ed] the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.” . . . . Viewing Chimel as having focused on the time of arrest, Belton’s only new step was to eliminate the need to decide on a case-by-case basis whether a particular person seated in a car actually could have reached the part of the passenger compartment where a weapon or evidence was hidden. For this reason, if we are going to reexamine Belton, we should also reexamine the reasoning in Chimel on which Belton rests. F The Court, however, does not reexamine Chimel and thus leaves the law relating to searches incident to arrest in a confused and unstable state. The first part of the Court’s new two-part rule—which permits an arresting officer to search the area within an arrestee’s reach at the time of the search—applies, at least for now, only to vehicle occupants and recent occupants, but there is no logical reason why the same rule should not apply to all arrestees. The second part of the Court’s new rule, which the Court takes uncritically from JUSTICE SCALIA’s separate opinion in Thornton, raises doctrinal and practical problems that the Court makes no effort to address. Why, for example, is the standard for this type of evidencegathering search “reason to believe” rather than probable cause? And why is this type of search restricted to evidence of the offense of arrest? It is true that an arrestee’s vehicle is probably more likely to contain evidence of the crime of arrest than

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of some other crime, but if reason-to-believe is the governing standard for an evidencegathering search incident to arrest, it is not easy to see why an officer should not be able to search when the officer has reason to believe that the vehicle in question possesses evidence of a crime other than the crime of arrest. Nor is it easy to see why an evidence-gathering search incident to arrest should be restricted to the passenger compartment. The Belton rule was limited in this way because the passenger compartment was considered to be the area that vehicle occupants can generally reach, . . . but since the second part of the new rule is not based on officer safety or the preser-

vation of evidence, the ground for this limitation is obscure. III Respondent in this case has not asked us to overrule Belton, much less Chimel. Respondent’s argument rests entirely on an interpretation of Belton that is plainly incorrect, an interpretation that disregards Belton’s explicit delineation of its holding. I would therefore leave any reexamination of our prior precedents for another day, if such a reexamination is to be undertaken at all. In this case, I would simply apply Belton and reverse the judgment below.

SELECTED REFERENCES Alschuler, Albert W. “Studying the Exclusionary Rule: An Empirical Classic,” University of Chicago Law Review, Vol. 75, No. 4 (2008), 1365–1384. Bradley, Craig M., “Court Sniffs at Dog-Search Concerns,” 2005 Trial 62. Caldwell, Harry N., and Carole A. Chase. “The Unruly Exclusionary Rule: Heeding Justice Blackmun’s Call to Examine the Rule in Light of Changing Judicial Understanding About Its Effects Outside the Courtroom,” 78 Marquette Law Review 45 (Fall 1994). Colb, Sherry F. “A World without Privacy: Why Property Does Not Define the Limits of the Right Against Unreasonable Searches and Seizures,” Michigan Law Review, Vol. 102, No. 5 (2004), 889–903. Davis, Angela J. “Race, Cops, and Traffic Stops,” 51 University of Miami Law Review 425 (January 1997). Decker, John, et al. “Curbing Aggressive Police Tactics During Routine Traffic Stops in Illinois,” 36 Loyola U. Law Chicago Law Journal 819 (2005). Hodge, Matthew J. “The Fourth Amendment and Privacy Issues on the ‘New’ Internet: Facebook.com and MySpace.com,” Southern Illinois University Law Journal, Vol. 31 (2006), 95. Israel, Jerrold. “Criminal Procedure, the Burger Court, and the Legacy of the Warren Court,” 75 Michigan Law Review 1319 (June 1979). Jordan, David Alan. “Decrypting the Fourth Amendment: Warrantless NSA Surveillance and the Enhanced Expectation of Privacy Provided by Encrypted Voice over Internet Protocol,” Boston College Law Review, Vol. 47 (2006), 505. Julie, Richard S. “High-Tech Surveillance Tools and the Fourth Amendment: Reasonable Expectations of Privacy in the Technological Age,” American Criminal Law Review, Vol. 37, No. 1 (2000), 127. 334

Kennedy Kelly, Arianna. “The Costs of the Fourth Amendment: Home Searches and Takings Law,” Mississippi College Law Review, Vol. 28, No. 1 (2008), 1. Kerr, Orin S. “The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution,” Michigan Law Review, Vol. 102, No. 5 (2004), 801–888. Kessler, David K. “Free to Leave? An Empirical Look at the Fourth Amendment’s Seizure Standard,” Journal of Criminal Law and Criminology, Vol. 99, No. 1 (2009), 51–88. LaFave, Wayne R. “The ‘Routine Traffic Stop’ from Start to Finish: Too Much ‘Routine,’ Not Enough Fourth Amendment.” Michigan Law Review, Vol. 102, No. 8 (2004), 1843–1905. Levit, Janet K. “Pretrial Traffic Stops: U.S. v. Whren and the Death of Terry v. Ohio,” 28 Loyola University of Chicago Law Journal 145 (Fall 1996). Long, Carolyn N. Mapp v. Ohio: Guarding Against Unreasonable Searches and Seizures. Lawrence, KS: University Press of Kansas, 2006. Machado Zotti, Priscilla. Injustice for All: Mapp vs. Ohio and the Fourth Amendment. New York: Peter Lang Publishing, 205. Mayer, Albert. “The Weeks Exclusionary Rule: A Bizarre and Senseless Impediment to Judicial Integrity,” 62 New York State Bar Journal 53 (October 1990). McInnis, Thomas N. The Evolution of the Fourth Amendment. Lanham, MD: Lexington Books, 2009. Moskovitz, Myron. “A Rule in Search of a Reason: An Empirical Examination of Chimel and Belton, 2002 Wisconsin Law Review 657. Nardulli, Peter. “The Societal Costs of the Exclusionary Rule Revisited,” 1987 University of Illinois Law Review 223 (1987).

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Norvell, Blake Covington, “The Constitution And The NSA Warrantless Wiretapping Program: A Fourth Amendment Violation? II Yale Journal of Law and Technology 228 (2008–2009, Fall Issue). Roehnert, Henrick A. “Warrantless Administrative Searches of the Person without Probable Cause or Particularized Suspicion: New Contours of the Fourth Amendment,” 21 New Mexico Law Review 389 (Spring 1991). Seizure Standard,” 99 Journal of Criminal Law and Criminology 51 (2009). Steinberg, David E. “The Uses and Misuses of Fourth Amendment History,” University of Pennsylvania

Journal of Constitutional Law, Vol. 10 (2008) 581–606. Turner, Jennifer K. “A ‘Capricious, Even Perverse Policy’: Random, Suspicionless Drug Testing Policies in High Schools and the Fourth Amendment,” Missouri Law Review, Vol. 72 (2007), 931. White, Elisa M. “Good Faith, Big Brother, and You: The U.S. Supreme Court’s Latest Good Faith Exception to the Fourth Amendment Exclusionary Rule,” 18 University of Arkansas at Little Rock Law Review 533 (Spring 1996).

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CHAPTER 9

PROTECTION AGAINST COMPULSORY SELFINCRIMINATION AND THE RIGHT TO COUNSEL

FEATURED CASES Gideon v. Wainwright; Strickland v. Washington; Miranda v. Arizona; New York v. Quarles; Illinois v. Perkins; Vermont v. Brillon

ASSISTANCE OF COUNSEL FEATURED CASES

Gideon v. Wainwright; Strickland v. Washington A basic tenet of American jurisprudence is that a person charged with a criminal offense should have his or her day in court. Therefore, the framers of the Bill of Rights included in the Sixth Amendment a provision that guarantees to the accused “in all criminal prosecutions” the right to receive the assistance of counsel for his or her defense. Pursuant to that provision, congressional action and judicial decisions secured the right in federal prosecutions. (See Johnson v. Zerbst, 304 U.S. 458, 1938.) But as a result of the doctrine that was enunciated in Barron v. Baltimore, supra, the states were left free to determine their own rules on counsel. Almost a century after Barron was decided, the due process clause of the Fourteenth Amendment began to be invoked as a limitation on the states with respect to the counsel guarantee. In 1932, the Court decided Powell v. Alabama (287 U.S. 45), the first of the celebrated Scottsboro cases (a group of four cases involving nine black defendants in Scottsboro, 336

Alabama, who were all convicted of raping two white women on a train), in which it held that the manner in which counsel was provided offended the due process of the Fourteenth Amendment.1 Noting the casual and callous manner in which the assignment of counsel was handled, Justice George Sutherland made it clear that the assistance of counsel was a fundamental ingredient of a fair trial. In reaching its decision, the Court took judicial notice of the youth of the defendants, their illiteracy, the public hostility, their incommunicado imprisonment while awaiting trial, and above all, the capital nature of the crime with which they were charged. Subsequently, Justice Sutherland’s opinion was construed to indicate that the assistance of counsel was required in capital cases to fulfill the due process guarantee of the Fourteenth Amendment. The Betts v. Brady decision (310 U.S. 495, 1942), which followed ten years later, established 1 The trial judge appointed all the members of the local bar to serve as counsel for “the purpose of arraignment,” but when the trial began six days later, no member of the local bar appeared to represent the defendants. Finally, responsibility for defense was reluctantly undertaken by one member of the local bar.

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the “special circumstances” rule to guide trial courts as they determined the essentiality of assistance of counsel to a fair trial. Rejecting the “incorporation” argument, the Court did recognize that in some circumstances refusal to observe the counsel guarantee could result in a deprivation of due process. After some two decades of uncertainties in the case-by-case approach that was adopted in Betts, the Court abandoned it in Gideon v. Wainwright (372 U.S. 335, 1963). Justice Hugo Black’s opinion for the Court made it clear that the counsel guarantee of the Sixth Amendment was obligatory for the states. Black indicated that the Court, in reality, was merely returning to the principles enunciated in Powell v. Alabama. The Court left a major question unanswered in Gideon but considered it the following year in the well-publicized case of Escobedo v. Illinois (378 U.S. 478, 1964). At issue was the stage in the criminal process at which the suspect is entitled to the counsel guarantee. Escobedo’s repeated requests to consult his lawyer were denied while the police interrogated him. The statements he made during the interrogation were used to support a murder conviction. But, focusing on the denials of his requests to consult counsel, the Court overturned the conviction. Justice Arthur Goldberg’s opinion for the majority stressed the need for counsel when the police action shifts from the investigatory to the accusatory stage, that is, when the focus is on the accused and the purpose of interrogation is to elicit a confession. In subsequent cases, the Court extended the counsel guarantee to the traditional line-up procedure that is employed in identification of suspects. In United States v. Wade (338 U.S. 218, 1967), the Court ruled that not only is counsel required at this “critical stage” of a criminal proceeding, but the prosecution is required to notify counsel of the impending lineup. On the same day, the Court held that the requirement was applicable to state criminal proceedings in Gilbert v. California (388 U.S. 263). The guarantee in federal cases was negated, however, when Congress included in the Omnibus Crime Control Act of 1968 a provision that permitted the admission of testimony in criminal prosecutions of people identifying a suspect even if the suspect had no counsel when identification took place in a police line-up. Four years later, in Kirby v. Illinois (406 U.S. 682, 1972), the four Nixon appointees were joined by Justice Potter Stewart to greatly narrow line-up procedures employed in state criminal prosecutions. For

them, the “critical stage” had not yet been reached at a police station line-up which was held prior to indictment or formal charge. Speaking for all the majority except Justice Powell, Justice Stewart argued that long-standing judicial precedents clearly established that the “right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against an accused.” He concluded that only when “a defendant finds himself faced with the prosecutorial forces of organized society, and is immersed in the intricacies of substantive and procedural criminal law,” is the “critical stage” reached at which the command of the Sixth Amendment must be observed. A subsequent attempt to expand the “critical stage” concept to photographic identification sessions was rejected by the Court in United States v. Ash (413 U.S. 300, 1973). The commencement of formal adversarial criminal proceedings, Justice Harry Blackmun emphasized, is essential to a determination of the “critical stage.” Initially, lower courts charted divergent courses in determining whether Gideon extended to nonfelonious criminal prosecutions (Cf. In Application of Stevenson, 458 P.2d 414, 1969; Blake v. Municipal Court, 41 Cal. Rptr. 771, 1966; and James v. Headley, 5th Cir. 410 F.2d 325, 1969). The Supreme Court considered the issue fully in Argersinger v. Hamlin (407 U.S. 25, 1972). In reversing a concealed weapons conviction of an indigent defendant who was not provided counsel and who was sentenced to ninety days in jail, the Court emphasized that the Constitution proscribes imprisonment for any offense—petty, misdemeanor, or felony—unless the defendant is represented by counsel at his or her trial. Speaking for the Court, Justice William O. Douglas contended that in many instances the legal and constitutional issues and questions in a petty or misdemeanor case are just as complex as they are in a more serious felony. But Douglas tempered the requirement somewhat by indicating that this counsel rule applied only to cases in which imprisonment may be imposed and would not apply to the general “run of misdemeanors.” Subsequently, however, the Burger Court refused to expand this actual imprisonment standard because it was feared that an extension would lead to unnecessary confusion and would generate substantial costs for the states. In Scott v. Illinois (440 U.S. 367, 1979), for example, the Court refused to overturn a conviction in which an indigent defendant, without

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counsel, was convicted on a $50 shoplifting charge. In affirming the state’s denial of counsel, Justice Rehnquist emphasized for the Court that Argersinger does not require counsel when imprisonment is merely authorized. Rather, he held, the constitutional standard only prohibits imprisonment of a defendant when assistance of counsel is not provided. Hence, a statute (like the one under which Scott was convicted) that authorizes imprisonment and/or fine does not automatically trigger a guarantee of counsel. Gideon has also been construed to require the provision of counsel at various stages of the appellate process. Earlier, in Griffin v. Illinois (351 U.S. 12, 1956), the Court had ruled that states are obligated to provide indigents with the necessary trial transcripts to appeal a noncapital conviction. The Court found no distinction between this kind of disability inflicted on the poor and the right to defense at trial. This line of reasoning was apparent when, on the same day that it decided Gideon, the Court held in Douglas v. California (372 U.S. 353, 1963) that the right to counsel extends to the first appeal from a criminal conviction in which appeal is granted as a matter of right under state law. The Burger Court, however, rejected attempts to extend Douglas beyond the first appeal where it is a matter of right. In Ross v. Moffit (417 U.S. 356, 1974), discretionary appeals and applications for Supreme Court review were held to be beyond the requirements of due process. What is the extent of the duty of court-appointed counsel to pursue a first appeal from a conviction? The Court considered the issue in Anders v. California (386 U.S. 738, 1967) four years after it decided Douglas. There, court-appointed counsel for an appeal of a felony conviction reviewed the trial court record, consulted with the petitioner, and concluded that the appeal was without merit. Counsel advised the court by letter of the findings and indicated that the petitioner desired to file a brief on his own behalf. At the same time, the petitioner’s request to appoint another lawyer to handle his appeal was denied. He then proceeded to file his own brief pro se, but the state court of appeals affirmed his conviction. His attempts to have his case reopened via a writ of habeas corpus were rejected by both the state district court of appeals and the state supreme court. The United States Supreme Court, however, reversed, as Justice Tom Clark condemned the rather cavalier manner in which appointed counsel was permitted to dismiss his client’s interest. He pointed to 338

the pro se brief of the petitioner as evidence of the disadvantage that was suffered by a petitioner under the procedure permitted by California. In that brief, the petitioner had failed to list as a possible error the comment of both judge and prosecutor on his failure to testify at his trial. Such comment procedures had been outlawed in Griffin v. California (380 U.S. 609, 1965). Clark concluded that “[t]he constitutional requirement of . . . fair process can only be attained where counsel acts in the role of an active advocate” on behalf of his client and certainly the “no merit letter” and the subsequent actions that it triggered did “not reach that dignity.” Counsel, Clark emphasized, is required to “support his client’s appeal to the best of his ability” (Cf. Evitts v. Lucey, 469 U.S. 387, 1985, in which the Court held that the promise of Douglas of a criminal defendant’s entitlement to counsel on the first appeal as of right would be a “futile gesture unless it comprehended the right to effective assistance of counsel”). But the Court indicated that this does not preclude counsel withdrawal from “wholly frivolous” cases. In pursuing such a course, counsel must submit to the court, with his request to withdraw, a brief that points out any issues that could “arguably support appeal.” Merit of the appeal is then determined by the court after its examination of those issues. Sixteen years later, in further explication of Anders, the Court made it clear in Jones v. Barnes (463 U.S. 745, 1983) that the indigent defendant does not have a constitutional right to compel his appointed counsel to pursue issues that the counsel considers, in his professional opinion, unworthy. In the decade following Gideon, an extensive volume of case law developed in state and lower federal courts that dealt with the effectiveness of counsel.2 When lack of knowledge of the relevant law or inadequate preparation produced glaring errors in the defense of accused persons, courts set aside convictions. (See People v. Ibarra, 386 P.2d 487, 1968, in which the California Supreme Court cited ineffective counsel as a major contributor to making the trial a “farce or a sham.”) Generally, however, the Supreme Court left the resolution of this problem to the lower courts and denied certiorari. But in 1970, in McMann v. Richardson (397 U.S. 759), the Supreme 2 For an excellent review of this problem, see Joel J. Finer, “Ineffective Assistance of Counsel,” 58 Cornell Law Review 1077 (July 1973); and Robert A. Harper, Jr., “Effective Assistance of Counsel—Evolution of the Standard,” 58 Florida Bar Journal 58 (January 1984).

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Court recognized the effectiveness of counsel as essential to the Sixth Amendment guarantee. The principle was underscored in subsequent cases in which it held that government procedural actions had impaired “the ability of counsel to make independent decisions about how to conduct the defense.” (See, for example, Brooks v. Tennessee, 406 U.S. 605, 1972; Herring v. New York, 422 U.S. 853, 1975; and Geders v. United States, 425 U.S. 80, 1976.) The Court’s most significant holding on the issue came in 1984 in the case of Strickland v. Washington (446 U.S. 668), which set forth the proper standards for determining the ineffectiveness of counsel. Speaking for the Court, Justice O’Connor emphasized an “objective standard of reasonableness” and stated that “the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” In short, the standards require of the claimant the heavy burden of showing that the outcome would have been different but for the ineffectiveness of his counsel. (Cf. United States v. Cronic, 466 U.S. 648, 1984, in which Justice Stevens held that a claim of ineffective counsel must be supported by reference to specific errors committed by defense counsel.) On a related issue, the Court has refused to dilute the counsel guarantee with the use of joint representation by a single counsel. In his opinion for the Court in Holloway v. Arkansas (435 U.S. 475, 1978), Chief Justice Burger made it clear that when counsel is compelled to undertake concurrent representation of defendants who have conflicting interests over

timely objections, making it problematic to give effective assistance to both, the Sixth Amendment guarantee is abridged. See Cuyler v. Sullivan (446 U.S. 335, 1980), in which the Court delineated further the standards for multiple representation. And so goes the history of the Supreme Court in cases dealing issues of major political and social import. Once again, our discussion thus far suggests that, just as in other areas, landmark decisions of the Warren Court—here Gideon v. Wainwright (1963)— continue to spark conversation and conflict as the Court attempts to define and elucidate the parameters of its decisions. What constitutes effective representation of counsel according to Gideon, for example? Consider the Court’s 7–2 vote in Wiggins v. Smith (539 U.S. 510, 2003), which held that when the counsel for the defendants failed to investigate their client’s life background so as to present mitigating evidence in the client’s capital sentencing procedures, such failure constituted ineffective representation of counsel. Another aspect of the representation of counsel guarantee was discussed by the court in Indiana v. Edwards (554 U.S. ___), decided by the Court in 2008. In that case the Court considered the extent and circumstances in which the matter of “self representation” satisfies or does not satisfy the Sixth Amendment guarantee. Later, in a 2009 decision (Vermont v. Brillon, 556 U.S. ___), the Court attempted to point out what the Sixth Amendment means in its guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy trial.” The Edward decision can be found in the online supplement to this chapter, and the Brillon decision is reprinted below.

GIDEON V. WAINWRIGHT 372 U.S. 335; 9 L. Ed. 2d 799; 83 S. Ct. 792 (1963) JUSTICE BLACK delivered the opinion of the Court and filed an opinion, in which C HIEF J USTICE WARREN and JUSTICES DOUGLAS, CLARK, HARLAN, BRENNAN, STEWART, WHITE, and GOLDBERG joined. JUSTICE CLARK concurred in the result and filed a separate opinion. J USTICE H ARLAN concurred in the result.

JUSTICE BLACK delivered the opinion of the Court. Petitioner was charged in a Florida state court with having broken and entered a pool room with intent to commit a misdemeanor. This offense is a felony under Florida law. Appearing in court without funds and without a lawyer, petitioner asked the court to

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appoint counsel for him, whereupon the following colloquy took place: The Court: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case. The Defendant: The United States Supreme Court says I am entitled to be represented by Counsel.

Put to trial before a jury, Gideon conducted his defense about as well as could be expected from a layman. He made an opening statement to the jury, cross-examined the State’s witnesses, presented witnesses in his own defense, declined to testify himself, and made a short argument “emphasizing his innocence to the charge contained in the Information filed in this case.” The jury returned a verdict of guilty, and petitioner was sentenced to serve five years in the state prison. Later, petitioner filed in the Florida Supreme Court this habeas corpus petition attacking his conviction and sentence on the ground that the trial court’s refusal to appoint counsel for him denied him rights “guaranteed by the Constitution and the Bill of Rights by the United States Government.” . . . [T]he State Supreme Court, “upon consideration thereof” but without an opinion, denied all relief. . . . [W]e granted certiorari . . . and requested both sides to discuss in their briefs and oral arguments the following: “Should this Court’s holding in Betts v. Brady (316 U.S. 455, 1942) be reconsidered?” The facts upon which Betts claimed that he had been unconstitutionally denied the right to have counsel appointed to assist him are strikingly like the facts upon which Gideon here bases his federal constitutional claim. Betts was indicted for robbery in a Maryland state court. In arraignment, he told the trial judge of his lack of funds to hire a lawyer and asked the court to appoint one for him. Betts was advised that it was not the practice in that county to appoint counsel for indigent defendants except in murder and rape cases. He then pleaded not guilty, had witnesses summoned, cross-examined the State’s witnesses, examined his own, and chose not to testify himself. He was found guilty by the judge, sitting without a jury, and sentenced to eight years in prison. Like Gideon, Betts sought release by habeas corpus, alleging that he had been denied the right to assistance of counsel in violation of the Fourteenth 340

Amendment. Betts was denied any relief, and on review this Court affirmed. It was held that a refusal to appoint counsel for an indigent defendant charged with a felony did not necessarily violate the Due Process Clause of the Fourteenth Amendment, which for reasons given the Court deemed to be the only applicable federal constitutional provision. The Court said: Asserting denial [of due process] is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial. (316 U.S., at 462).

Treating due process as “a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights,” the Court held that refusal to appoint counsel under the particular facts and circumstances in the Betts case was not so “offensive to the common and fundamental ideas of fairness” as to amount to a denial of due process. Since the facts and circumstances of the two cases are so nearly indistinguishable, we think the Betts v. Brady holding if left standing would require us to reject Gideon’s claim that the Constitution guarantees him the assistance of counsel. Upon full reconsideration we conclude that Betts v. Brady should be overruled. The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” We have construed this to mean that in federal courts counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived. (Johnson v. Zerbst, 304 U.S. 458, 1958.) Betts argued that this right is extended to indigent defendants in state courts by the Fourteenth Amendment. In response the Court stated that, while the Sixth Amendment laid down “no rule for the conduct of the states, the question recurs whether the constraint laid by the amendment upon the national courts expresses a rule so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the states by the Fourteenth Amendment.” (316 U.S., at 463.) In order to decide whether the Sixth Amendment’s guarantee of counsel is of this fundamental nature, the Court in Betts set out and considered “relevant data on the subject . . . afforded by constitutional and statutory provisions subsisting in the colonies and the states

The Rights of the Accused and the Criminal Justice System

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

prior to the inclusion of the Bill of Rights in the national Constitution, and in the constitutional, legislative, and judicial history of the states to the present.” (316 U.S., 471.) It was for this reason the Betts Court refused to accept the contention that the Sixth Amendment’s guarantee of counsel for indigent federal defendants was extended to, or, in the words of that court, “made obligatory upon the states by the Fourteenth Amendment.” Plainly, had the Court concluded that appointment of counsel for an indigent criminal defendant was “a fundamental right, essential to a fair trial,” it would have held that the Fourteenth Amendment requires appointment of counsel in a state court, just as the Sixth Amendment requires in a federal court. We think the Court in Betts had ample precedent for acknowledging that those guarantees of the Bill of Rights which are fundamental safeguards of liberty immune from federal abridgement are equally protected against state invasion by the Due Process Clause of the Fourteenth Amendment. This same principle was recognized, explained, and applied in Powell v. Alabama, 287 U.S. 45 (1932), a case upholding the right of counsel, where the Court held that despite sweeping language to the contrary in Hurtado v. California, 110 U.S. 516 (1884), the Fourteenth Amendment “embraced” those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,” even though they had been “specifically dealt with in another part of the federal Constitution” (287 U.S., at 67). In many cases other than Powell and Betts, this Court has looked to the fundamental nature of the original Bill of Rights guarantees to decide whether the Fourteenth Amendment makes them obligatory on the states. Explicitly recognized to be of this “fundamental nature” and therefore made immune from state invasion by the Fourteenth, or some part of it, are the First Amendment’s freedoms of speech, press, religion, assembly, association, and petition for redress of grievances. For the same reason, though not always in precisely the same terminology, the Court has made obligatory on the States the Fifth Amendment’s command that private property shall not be taken for public use without just compensation, the Fourth Amendment’s prohibition of unreasonable searches and seizures, and the Eighth’s ban on cruel and unusual punishment. On the other hand, this Court in Palko v. Connecticut, 302 U.S. 319 (1937), refused to hold that the Fourteenth

Amendment made the double jeopardy provision of the Fifth Amendment obligatory on the States. Insofar as refusing, however, the Court, speaking through JUSTICE CARDOZO, was careful to emphasize that “immunities that are valid against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states” and that guarantees “in their origin . . . effective against the federal government alone” had by prior cases “been taken over from the earlier articles of the Federal Bill of Rights and brought within the Fourteenth Amendment by a process of absorption.” (302 U.S. at 324–325, 326.) We accept Betts v. Brady’s assumption, based as it was on our prior cases, that a provision of the Bill of Rights which is “fundamental and essential to a fair trial” is made obligatory upon the states by the Fourteenth Amendment. We think the Court in Betts was wrong, however, in concluding that the Sixth Amendment’s guarantee of counsel is not one of these fundamental rights. Ten years before Betts v. Brady, this Court, after full consideration of all historical data examined in Betts, had unequivocally declared that “the right to the aid of counsel is of this fundamental character.” Powell v. Alabama, 287 U.S. 45, 68 (1932). While the Court at the close of its Powell opinion did by its language, as it frequently does, limit its holding to the particular facts and circumstances of that case, its conclusions about the fundamental nature of the right to counsel are unmistakable. Several years later, in 1936, the Court reemphasized what it has said about the fundamental nature of the right to counsel in this language: We concluded that certain fundamental rights, safeguarded by the first eight amendments against federal action, were also safeguarded against state action by the due process clause of the Fourteenth Amendment, and among them the fundamental right of the accused to the aid of counsel in a criminal prosecution. Grosjean v. American Press Co., 297 U.S. 233, 243–244 (1936).

And again in 1938 this Court said: [The assistance of counsel] is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. . . . The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will “still be done,” Johnson v. Zerbst, 304 U.S. 458, 462 (1938). . . .

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In the light of these and many other prior decisions of this Court, it is not surprising that the Betts Court, when faced with the contention that “one charged with crime, who is unable to obtain counsel, must be furnished counsel by the state,” conceded that “expressions in the opinions of this court lend color to the argument . . .” 316 U.S., at 462–463. The fact is that in deciding as it did—that “appointment of counsel is not a fundamental right, essential to a fair trial”—the Court in Betts v. Brady made an abrupt break with its own well-considered precedents. In returning to these old precedents, sounder we believe than the new, we but restore constitutional principles established to achieve a fair system of justice. Not only these precedents but also reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few, indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of a widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. A defendant’s need for a lawyer is nowhere better stated than in the moving words of Justice Sutherland in Powell v. Alabama: The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the 342

indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence, 287 U.S., at 68–69.

The Court in Betts v. Brady departed from the sound wisdom upon which the Court’s holding in Powell v. Alabama rested. Florida, supported by two other States, asked that Betts v. Brady be left intact. Twenty-two States, as friends of the Court, argue that Betts was “an anachronism when handed down” and that it should now be overruled. We agree. The Judgment is reversed and the cause is remanded to the Supreme Court of Florida for further action not inconsistent with this opinion. JUSTICE CLARK, concurring: I must conclude . . . that the Constitution makes no distinction between capital and noncapital cases. The Fourteenth Amendment requires due process of law for the deprival of “liberty” just as for deprival of “life,” and there cannot constitutionally be a difference in the sanction involved. How can the Fourteenth Amendment tolerate a procedure which it condemns in capital cases on the ground that deprival of liberty may be less onerous than deprival of life—a value judgment not universally accepted—or that only the latter deprival is irrevocable? I can find no acceptable rationalization for such a result, and I therefore concur in the judgment of the Court. JUSTICE HARLAN, concurring: I agree that Betts v. Brady should be overruled, but consider it entitled to a more respectful burial than has been accorded, at least on the part of those of us who were not on the Court when that case was decided. I cannot subscribe to the view that Betts v. Brady represented “an abrupt break with its own wellconsidered precedents.” . . . The principles declared in Powell and Betts . . . had a troubled journey throughout the years that have followed first the one case and then the other. Even by the time of the Betts decision, dictum in at least one of the Court’s opinions

The Rights of the Accused and the Criminal Justice System

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

had indicated that there was an absolute right to the services of counsel in the trial of state capital cases. “Such dicta continued to appear in subsequent decisions,” and any lingering doubts were finally eliminated by the holding of Hamilton v. Alabama, 368 U.S. 52, 1961. In noncapital cases, the “special circumstances” rule has continued to exist in form while its substance has been substantially and steadily eroded. . . . The Court has come to recognize, in other words, that the mere existence of a serious criminal charge constituted in itself special circumstances requiring the services of counsel at trial. In truth the Betts v. Brady rule is no longer a reality. This evolution, however, appears not to have been fully recognized by many state courts, in this instance charged with the front-line responsibility for the enforcement of constitutional rights. . . . To continue a rule which is honored by this Court only with lip service is not a healthy thing and in the long run will do disservice to the federal system. The special circumstances rule has been formally abandoned in capital cases, and the time has now come when it should be abandoned in noncapital cases, at least as to offenses which, as the one involved here, carry the possibility of a substantial

prison sentence. (Whether the rule should extend to all criminal cases need not be decided.) This indeed does no more than to make explicit something that has long since been foreshadowed in our decisions. In agreeing with the Court that the right to counsel in a case such as this should now be expressly recognized as a fundamental right embraced in the Fourteenth Amendment, I wish to make a further observation. When we hold a right or immunity, valid against the Federal Government, to be “implicit in the concept of ordered liberty” and thus valid against the States, I do not read our past decisions to suggest that by so holding, we automatically carry over an entire body of federal law and apply it in full sweep to the States. Any such concept would disregard the frequently wide disparity between the legitimate interests of the States and of the Federal Government, the divergent problems that they face, and the significantly different consequences of their actions. . . . In what is done today I do not understand the Court to depart from the principles laid down in Palko v. Connecticut . . . or to embrace the concept that the Fourteenth Amendment “incorporates” the Sixth Amendment as such. On these premises I join in the judgment of the Court.

STRICKLAND V. WASHINGTON 466 U.S. 668; 80 L. Ed. 2d 674; 104 S. Ct 2052 (1984) JUSTICE O’CONNOR delivered the opinion of the Court and filed an opinion, in which CHIEF JUSTICE BURGER and JUSTICES WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS joined. JUSTICE BRENNAN filed an opinion concurring in part and dissenting in part. JUSTICE MARSHALL filed a dissenting opinion. JUSTICE O’CONNOR delivered the opinion of the Court. This case requires us to consider the proper standards for judging a criminal defendant’s contention that the Constitution requires a conviction or death sentence to be set aside because counsel’s assistance at the trial or sentencing was ineffective.

I A During a 10-day period in September 1976, respondent planned and committed three groups of crimes, which included three brutal stabbing murders, torture, kidnapping, severe assaults, attempted murders, attempted extortion, and theft. After his two accomplices were arrested, respondent surrendered to police and voluntarily gave a lengthy statement confessing to the third of the criminal episodes. The State of Florida indicted respondent for kidnapping and murder and appointed an experienced criminal lawyer to represent him.

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Counsel actively pursued pretrial motions and discovery. He cut his efforts short, however, and he experienced a sense of hopelessness about the case when he learned that, against his specific advice, respondent had also confessed to the first two murders. By the date set for trial, respondent was subject to indictment for three counts of first-degree murder and multiple counts of robbery, kidnapping for ransom, breaking and entering and assault, attempted murder, and conspiracy to commit robbery. Respondent waived his right to a jury trial, again acting against counsel’s advice, and pleaded guilty to all charges, including the three capital murder charges. In the plea colloquy, respondent told the trial judge that, although he had committed a string of burglaries, he had no significant prior criminal record and that at the time of his criminal spree he was under extreme stress caused by his inability to support his family. He also stated, however, that he accepted responsibility for the crimes. The trial judge told respondent that he had “a great deal of respect for people who are willing to step forward and admit their responsibility” but that he was making no statement at all about his likely sentencing decision. Counsel advised respondent to invoke his right under Florida law to an advisory jury at his capital sentencing hearing. Respondent rejected the advice and waived the right. He chose instead to be sentenced by the trial judge without a jury recommendation. In preparing for the sentencing hearing, counsel spoke with respondent about his background. He also spoke on the telephone with respondent’s wife and mother, though he did not follow up on the one unsuccessful effort to meet with them. He did not otherwise seek out character witnesses for respondent. Nor did he request a psychiatric examination, since his conversations with his client gave no indication that respondent had psychological problems. Counsel decided not to present and hence not to look further for evidence concerning respondent’s character and emotional state. That decision reflected trial counsel’s sense of hopelessness about overcoming the evidentiary effect of respondent’s confessions to the gruesome crimes, it also reflected the judgment that it was advisable to rely on the plea colloquy for evidence about respondent’s background and about his claim of emotional stress. The plea colloquy communicated sufficient information about these subjects, and by forgoing the opportunity to present new evidence on these subjects, counsel prevented the State from cross-examining respon344

dent on his claim and from putting on psychiatric evidence of its own. Counsel also excluded from the sentencing hearing other evidence he thought was potentially damaging. He successfully moved to exclude respondent’s “rap sheet.” Because he judged that a presentence report might prove more detrimental than helpful, as it would have included respondent’s criminal history and thereby would have undermined the claim of no significant history of criminal activity, he did not request that one be prepared. At the sentencing hearing, counsel’s strategy was based primarily on the trial judge’s remarks at the plea colloquy as well as on his reputation as a sentencing judge who thought it important for a convicted defendant to own up to his crime. Counsel argued that respondent’s remorse and acceptance of responsibility justified sparing him from the death penalty. Counsel also argued that respondent had no history of criminal activity and that respondent committed the crimes under extreme mental or emotional disturbance, thus coming within the statutory list of mitigating circumstances. He further argued that respondent should be spared death because he had surrendered, confessed, and offered to testify against a codefendant, and because respondent was fundamentally a good person who had briefly gone badly wrong in extremely stressful circumstances. The State put on evidence and witnesses largely for the purpose of describing the details of the crimes. Counsel did not cross-examine the medical experts who testified about the manner of death of respondent’s victims. The trial judge found several aggravating circumstances with respect to each of the three murders. He found that all three murders were especially heinous, atrocious, and cruel, all involving repeated stabbings. All three murders were committed in the course of at least one other dangerous and violent felony, and since all involved robbery, the murders were for pecuniary gain. All three murders were committed to avoid arrest for the accompanying crimes and to hinder law enforcement. In the course of one of the murders, respondent knowingly subjected numerous persons to a grave risk of death by deliberately stabbing and shooting the murder victim’s sisters-in-law, who sustained severe—in one case, ultimately fatal—injuries. With respect to mitigating circumstances, the trial judge made the same findings for all three capital murders. First, although there was no admitted

The Rights of the Accused and the Criminal Justice System

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

evidence of prior convictions, respondent had stated that he had engaged in a course of stealing. In any case, even if respondent had no significant history of criminal activity, the aggravating circumstances “would still clearly far outweigh” that mitigating factor. Second, the judge found that, during all three crimes, respondent was not suffering from extreme mental or emotional disturbance and could appreciate the criminality of his acts. Third, none of the victims was a participant in, or consented to, respondent’s conduct. Fourth, respondent’s participation in the crimes was neither minor nor the result of duress or domination by an accomplice. Finally, respondent’s age (26) could not be considered a factor in mitigation, especially when viewed in light of respondent’s planning of the crimes and disposition of the proceeds of the various accompanying thefts. In short, the trial judge found numerous aggravating circumstances and no (or a single comparatively insignificant) mitigating circumstance. . . . He therefore sentenced respondent to death on each of the three counts of murder and to prison terms for the other crimes. The Florida Supreme Court upheld the convictions and sentences on direct appeal. B Respondent subsequently sought collateral relief in state court on numerous grounds, among them that counsel had rendered ineffective assistance at the sentencing proceeding. Respondent challenged counsel’s assistance in six respects. He asserted that counsel was ineffective because he failed to move for a continuance to prepare for sentencing, to request a psychiatric report, to investigate and present character witnesses, to seek a presentence investigation report, to present meaningful arguments to the sentencing judge, and to investigate the medical examiner’s reports or cross-examine the medical experts. In support of the claim, respondent submitted 14 affidavits from friends, neighbors, and relatives stating that they would have testified if asked to do so. He also submitted one psychiatric report and one psychological report stating that respondent, though not under the influence of extreme mental or emotional disturbance, was “chronically frustrated and depressed because of his economic dilemma” at the time of his crimes. The trial court denied relief without an evidentiary hearing, finding that the record evidence conclusively showed that the ineffectiveness claim was meritless. . . .

Applying the standard for ineffectiveness claims articulated by the Florida Supreme Court in Knight v. State, 394 So. 2d 997 (1981), the trial court concluded that respondent had not shown that counsel’s assistance reflected any substantial and serious deficiency measurably below that of competent counsel that was likely to have affected the outcome of the sentencing proceeding. The court specifically found: “[A]s a matter of law, the record affirmatively demonstrates beyond any doubt that even if [counsel] had done each of the . . . things [that respondent alleged counsel had failed to do] at the time of sentencing, there is not even the remotest chance that the outcome would have been any different. The plain fact is that the aggravating circumstances proved in this case were completely overwhelming. . . .” The Florida Supreme Court affirmed the denial of relief. . . . C Respondent next filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Florida. He advanced numerous grounds for relief, among them ineffective assistance of counsel based on the same errors, except for the failure to move for a continuance, as those he had identified in state court. The District Court held an evidentiary hearing to inquire into trial counsel’s efforts to investigate and to present mitigating circumstances. Respondent offered the affidavits and reports he had submitted in the state collateral proceedings; he also called his trial counsel to testify. The State of Florida, over respondent’s objection, called the trial judge to testify. The District Court disputed none of the state court factual findings concerning trial counsel’s assistance and made findings of its own that are consistent with the state court findings. The account of trial counsel’s actions and decisions given above reflects the combined findings. On the legal issue of ineffectiveness, the District Court concluded that, although trial counsel made errors in judgment in failing to investigate nonstatutory mitigating evidence further than he did, no prejudice to respondent’s sentence resulted from any such error in judgment. Relying in part on the trial judge’s testimony but also on the same factors that led the state courts to find no prejudice, the District Court concluded that “there does not appear to be likelihood, or even a significant possibility” that any errors of trial counsel had affected

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the outcome of the sentencing proceeding and . . . accordingly denied the petition for a writ of habeas corpus. On appeal, a panel of the United States Court of Appeals for the Fifth Circuit affirmed in part, vacated in part, and remanded with instructions to apply to the particular facts the framework for analyzing ineffectiveness claim that it developed in its opinion. The panel decision was itself vacated when Unit B of the former Fifth Circuit, now the Eleventh Circuit decided to rehear the case en banc. The full Court of Appeals developed its own framework for analyzing ineffective assistance claims and reversed the judgment of the District Court and remanded the case for new fact-finding under the newly announced standards. . . . . . . The Court of Appeals stated that the Sixth Amendment right to assistance of counsel accorded criminal defendants a right to “counsel reasonably likely to render and rendering reasonably effective assistance given the totality of the circumstances.” The court remarked in passing that no special standard applies in capital cases such as the one before it: the punishment that a defendant faces is merely one of the circumstances to be considered in determining whether counsel was reasonably effective. The court then addressed respondent’s contention that his trial counsel’s assistance was not reasonably effective because counsel breached his duty to investigate nonstatutory mitigating circumstances. The court agreed that the Sixth Amendment imposes on counsel a duty to investigate, because reasonably effective assistance must be based on professional decisions and informed legal choices can be made only after investigation of options. The court observed that counsel’s investigatory decisions must be assessed in light of the information known at the time of the decisions, not in hindsight, and that “[t]he amount of pretrial investigation that is reasonable defies precise measurement.” Nevertheless, putting guilty-plea cases to one side, the court attempted to classify cases presenting issues concerning the scope of the duty to investigate before proceeding to trial. If there is only one plausible line of defense, the court concluded, counsel must conduct a “reasonably substantial investigation” into that line of defense, since there can be no strategic choice that renders such an investigation unnecessary. . . . If there is more than one plausible line of defense, the court held, counsel should ideally investigate 346

each line substantially before making a strategic choice about which lines to rely on at trial. If counsel conducts such substantial investigations, the strategic choices made as a result “will seldom if ever” be found wanting. . . . If counsel does not conduct a substantial investigation into each of several plausible lines of defense, assistance may nonetheless be effective. Counsel may not exclude certain lines of defense for other than strategic reasons. Limitations of time and money, however, may force early strategic choices, often based solely on conversations with the defendant and a review of the prosecutions’ evidence. Those strategic choices about which lines of defense to pursue are owed deference commensurate with the reasonableness of the professional judgments on which they are based. Thus, “when counsel’s assumptions are reasonable given the totality of the circumstances and when counsel’s strategy represents a reasonable choice based upon those assumptions, counsel need not investigate lines of defense that he has chosen not to employ at trial.” Among the factors relevant to deciding whether particular strategic choices are reasonable are the experience of the attorney, the inconsistency of unpursued lines of defense, and the potential for prejudice from taking an unpursued line of defense. . . . [T]he Court of Appeals [next] turned its attention to the question of the prejudice to the defense that must be shown before counsel’s errors justify reversal of the judgment. The court observed that only in cases of outright denial of counsel, of affirmative government interference in the representation process, or of inherently prejudicial conflicts of interest had this Court said that no special showing of prejudice need be made. For cases of deficient performance by counsel, where the Government is not directly responsible for the deficiencies and where evidence of deficiency may be more accessible to the defendant than to the prosecution, the defendant must show that counsel’s errors “resulted in actual and substantial disadvantage to the course of his defense.” This standard, the Court of Appeals reasoned, is compatible with the “cause and prejudice” standard for overcoming procedural defaults in federal collateral proceedings and discourages insubstantial claims by requiring more than a showing, which could virtually always be made, of some conceivable adverse effect on the defense from counsel’s errors. The specified showing of prejudice would result in reversal

The Rights of the Accused and the Criminal Justice System

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

of the judgment, the court concluded, unless the prosecution showed that the constitutionally deficient performance was, in light of all the evidence, harmless beyond a reasonable doubt. . . . The Court of Appeals thus laid down the tests to be applied in the Eleventh Circuit in challenges to convictions on the ground of ineffectiveness of counsel. . . . . . . [W]e granted certiorari to consider the standards by which to judge a contention that the Constitution requires that a criminal judgment be overturned because of the actual ineffective assistance of counsel. . . . II . . . The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair. For that reason, the Court has recognized that “the right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 711, n. 14 (1970). Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make decisions about how to conduct the defense. . . . Counsel, however, can also deprive a defendant of the right to effective assistance simply by failing to render “adequate legal assistance.” Cuyler v. Sullivan, 446 U.S., at 344. The Court has not elaborated on the meaning of the constitutional requirement of effective assistance. . . . In giving meaning to the requirement, however, we must take its purpose—to ensure a fair trial—as the guide. The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. . . . III A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not function-

ing as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. A As all the Federal Courts of Appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance. The Court indirectly recognized as much when it stated in McMann v. Richardson, 397 U.S., at 770, 771, that a guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not “a reasonably competent attorney” and the advice was not “within the range of competence demanded of attorneys in criminal cases.” See also Cuyler v. Sullivan, supra, 446 U.S., at 344, 100 S. Ct., at 1716. When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. More specific guidelines are not appropriate. The Sixth Amendment refers simply to “counsel,” not specifying particular requirements of effective assistance. It relies instead on the legal profession’s maintenance of standards sufficient to justify the law’s presumption that counsel will fulfill the role in the adversary process that the Amendment envisions. The proper measure of attorney performance remains simply reasonableness under prevailing professional norms. . . . Prevailing norms of practice as reflected in American Bar Association standards and the like . . . are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions. . . . [T]he purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation,

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although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial. Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” . . . The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel’s unsuccessful defense. Counsel’s performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client. . . . IV . . . Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated do not establish mechanical rules. Although those principles should guide the process of decision, the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results. 348

To the extent that this has already been the guiding inquiry in the lower courts, the standards articulated today do not require reconsideration of ineffectiveness claims rejected under different standards. . . . In particular, the minor differences in the lower courts’ precise formulations of the performance standard are insignificant: the different formulations are mere variations of the overarching reasonableness standard. . . . V . . . Application of the governing principles is not difficult in this case. The facts . . . make clear that the conduct of respondent’s counsel at and before respondent’s sentencing proceeding cannot be found unreasonable. They also make clear that, even assuming the challenged conduct of counsel was unreasonable, respondent suffered insufficient prejudice to warrant setting aside his death sentence. With respect to the performance component, the record shows that respondent’s counsel made a strategic choice to argue for the extreme emotional distress mitigating circumstance and to rely as fully as possible on respondent’s acceptance of responsibility for his crimes. Although counsel understandably felt hopeless about respondent’s prospects, nothing in the record indicates . . . that counsel’s sense of hopelessness distorted his professional judgment. Counsel’s strategy choice was well within the range of professionally reasonable judgments, and the decision not to seek more character or psychological evidence than was already in hand was likewise reasonable. . . . Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Here there is a double failure. More generally, respondent has made no showing that the justice of his sentence was rendered unreliable by a breakdown in the adversary process caused by deficiencies in counsel’s assistance. Respondent’s sentencing proceeding was not fundamentally unfair. We conclude, therefore, that the District Court properly declined to issue a writ of habeas corpus. The judgment of the Court of Appeals is accordingly Reversed. [The opinion of JUSTICE BRENNAN, concurring in part and dissenting in part, is not reprinted here.]

The Rights of the Accused and the Criminal Justice System

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

FROM COERCED CONFESSIONS TO MIRANDA WARNINGS FEATURED CASE

Miranda v. Arizona During the second half of the twentieth century, the courts were presented with many criminal cases that sought answers to a wide variety of questions which emerged from the clause in the Fifth Amendment that protects a person from being “compelled in any criminal case to be a witness against himself.” The self-incrimination claims of witnesses that were invoked in a variety of legislative and administrative hearings produced wide public interest in the clause as relentless investigators confronted many apprehensive and reluctant witnesses. But much of the clause’s jurisprudence has resulted from the procedures and actions of law enforcement agencies and officers who were enforcing criminal laws. Indeed, the encounters between the “cop-on-the-beat” and the criminal suspect, and the confrontations in the investigation room in the police station, have put the guarantee to some of its most stringent tests. During the first half of the twentieth century, interrogation practices of a number of police agencies to obtain confessions from criminal suspects were subjected to examination under the self-incrimination clause. In cases such as Brown v. Mississippi (297 U.S. 278, 1936) and Chambers v. Florida (309 U.S. 277, 1940), the Supreme Court condemned the so-called “third-degree” practices that were routinely employed to obtain confessions from the accused and made it clear that confessions obtained by physical coercion were inadmissible as evidence to support criminal convictions. Likewise, the Court held inadmissible confessions that were elicited by mental pressures and psychological ploys and trickery (see Spano v. New York, 360 U.S. 315, 1959). With both physical and psychological coercion barred in eliciting confessions, the debate shifted to the appropriate test for “voluntariness” of confessions. The totality of circumstances became the standard, making it considerably more difficult for a confession to stand up in court. In Haynes v. Washington (373 U.S. 503, 1963), for example, the Court held that a confession was involuntarily extracted because the accused was subjected to lengthy incommunicado questioning and was not allowed to call his family until after he had made a confession. The Court condemned what it characterized as a

general “atmosphere of substantial coercion and inducement created by statements and actions of state authorities” in which the confession was obtained. The long line of coerced confession cases and the more stringent requirements that were applied to determine voluntariness of confessions were logical developments which led to the imposition of the selfincrimination provision of the Fifth Amendment on the states in Malloy v. Hogan (378 U.S. 1, 1964). Justice William J. Brennan noted the shift to the federal standard in many of the state cases that followed Twining (Twining v. New Jersey, 211 U.S. 78, 1908) and Adamson (Adamson v. California, 332 U.S. 46, 1947), and concluded that such a “shift reflects recognition that the American system of criminal prosecution is accusatory, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay.” Some of the Court’s actions that immediately followed Malloy underscored the significance of the self-incrimination guarantee when they were applied to a number of then current criminal and administrative procedures. On the same day that it announced its Malloy ruling, the Court decided the related issue of whether one jurisdiction in our federal system (a state) may compel a suspect to answer questions that may be used to prosecute him or her in another jurisdiction (the federal government) after the suspect has been granted immunity from prosecution under the laws of the first jurisdiction. In Murphy v. Waterfront Commission of New York Harbor (378 U.S. 52, 1964), the Court foreclosed this possibility and declared that “in light of the history, policies and purposes of the privilege against self-incrimination . . . [the privilege] protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state law as well as federal law.” And in Griffin v. California (380 U.S. 609, 1965), the Court cited Malloy as authority to strike down the “comment” rule (on the failure of the defendant to testify at his trial) that had been approved almost sixty years earlier in Twining and reaffirmed in Adamson. But the Court was not so generous when it was asked to discard another precedent on the authority of Malloy and its earlier decision in Mapp v. Ohio. In Schmerber v. California (384 U.S. 755, 1966), the Court was asked to reverse a conviction in which evidence of intoxication was obtained from a blood sample taken from the injured petitioner (at the direction of the police and over his objection) while he

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was in the emergency room of a hospital. The Court rejected the petitioner’s claim that the action abridged the privilege against self-incrimination. Justice William J. Brennan’s opinion for the majority stressed that the privilege covered only evidence of a testimonial and communicative nature. He concluded that the withdrawal of blood under the circumstances did not involve the type of compulsion that was condemned by the Constitution. This holding was extended seventeen years later in South Dakota v. Neville (459 U.S. 553, 1983). A state statute allowed a person who was suspected of drunk driving to refuse a blood-alcohol test, but the Court permitted such refusal to be admitted as evidence against the suspect at trial. Justice Sandra Day O’Connor made it clear that a refusal to submit to the test after an officer has requested it and submission of that fact to the court is not a coercive act that infringes the guarantee against compulsory selfincrimination.3 Three years after deciding Gideon and two years after Malloy, the Court combined those “doublebarreled” guarantees to people accused of crimes in order to place very strict restrictions on custodial interrogation practices of state law enforcement officers in the landmark case of Miranda v. Arizona. Over two decades earlier, the Court had curbed federal officials when, in McNabb v. United States (318 U.S. 332, 1943), it construed federal rules of criminal procedure to require that persons arrested for federal crimes be taken before a U.S. Commissioner “without unnecessary delay” for a hearing. In that hearing, the arresting officer would have to show that probable cause existed for the arrest and the accused would be informed of his or her rights. That sanction was enforced by excluding evidence which was obtained “in default of the 3 Cf. Winston v. Lee (470 U.S. 753, 1985), in which the Court unanimously affirmed a ruling of the Court of Appeals for the Fourth Circuit that had rejected prosecutorial efforts to forcibly extract a bullet from the chest of a robbery suspect for evidentiary use. Unlike the “minor intrusion” occasioned by the compulsory blood test in the drunk-driving allegation in the Schmerber case, Justice Brennan contended that the compulsory surgical procedure sought in Winston constituted a “major intrusion” (and a dangerous one) into an individual’s body that had serious privacy and security implications. Because of that, and the state’s failure to demonstrate a compelling need for the bullet as evidence, Brennan concluded that the individual’s interest outweighed that of the state. He indicated that his preference in such cases was a proper weighing of the competing interests of the individual and the state rather than the application of a specific rule.

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statutory obligation.” The Court reaffirmed that rule in Mallory v. United States (354 U.S. 449, 1957); this, together with stricter standards governing the determination of “voluntariness” of confessions and the Gideon and Malloy decisions obligating the states to abide by the Sixth Amendment requirement of counsel and the Fifth Amendment strictures on compulsory self-incrimination, respectively, inevitably led the Court to its holding in Miranda. In that five-to-four ruling, the Court, speaking through Chief Justice Earl Warren, made it clear that the prosecution may not use a statement against the accused which was elicited during custodial interrogation “unless it demonstrates the use of effective safeguards to secure” his or her constitutional rights, and those safeguards must be made known to the accused. Interrogation may proceed only if the accused “voluntarily, knowingly, and intelligently” waives the rights to which he or she is entitled. In an extensive dissenting opinion, Justice John Marshall Harlan II noted that “the thrust of the new rules” was to eliminate “pressures” applied to the suspect and as such would most likely discourage any confessions. He doubted that such a “utopian” aim could be realized and renewed his call for judicial restraint on such issues of “pure policy.” The Court clearly was not oblivious to the sweeping impact that such rulings could have on the administration of state criminal law. Consequently, it held in Johnson v. New Jersey (384 U.S. 719, 1966), decided one week later, that both Escobedo and Miranda would be limited to a prospective application. In fact, the Court ruled that the new standards announced in Escobedo and Miranda would apply only to cases that began after those two cases were announced. Thus, the Court was even more restrictive there than in its earlier prospective application of Mapp and Griffin, where the new standards applied to cases that were still pending on direct appeal. The landmark Miranda decision of the Warren Court, not unlike some of its other decisions, spurred a wave of litigation that is ongoing. As we shall see, however, court decisions attempting to clarify the meaning and reach of Miranda are grounded on the central importance of the basic “right to counsel” that the Sixth Amendment guarantees to those who are accused or otherwise entangled in the criminal justice system. Miranda and its progeny attempt to apply this basic right to practical everyday occurrences. Thus, after exploring this

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

guarantee in varied contexts, we step back so that our readers might better understand why those who framed the Sixth Amendment believed the “right to counsel” had basic fundamental importance to the free and open society that was envisioned in American constitutional democracy.

To be sure, the edited cases in this volume—though they are of key importance—represent only a sampling of the cases that have been decided by the Supreme Court since the last publication of this volume in 1999. Some of those cases have been posted on our website http://www.pearsonhighered.com/barker9e.

MIRANDA V. ARIZONA 384 U.S. 436; 16 L. Ed. 2d 694; 86 S. Ct. 1602 (1966) CHIEF JUSTICE WARREN delivered the opinion of the Court. Justice Clark filed an opinion concurring in the result in No. 584 and dissenting in Nos. 759, 760, and 761. Justice Harlan filed a dissenting opinion, in which JUSTICES STEWART and WHITE joined. JUSTICE WHITE filed a dissenting opinion, in which JUSTICES HARLAN and STEWART joined. (Note: The Miranda v. Arizona opinion applies to the companion cases of Vignera v. New York, Westover v. United States, and California v. Stewart.) CHIEF JUSTICE WARREN delivered the opinion of the Court. The cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself. We dealt with certain phases of this problem recently in Escobedo v. State of Illinois. . . . . . . We granted certiorari in these cases . . . in order further to explore some facets of the problems, thus exposed, of applying the privilege against selfincrimination to in-custody interrogation, and to give concrete constitutional guidelines for law enforcement agencies and courts to follow. We start here, as we did in Escobedo, with the premise that our holding is not an innovation in our

jurisprudence, but is an application of principles long recognized and applied in other settings. We have undertaken a thorough re-examination of the Escobedo decision and the principles it announced, and we re-affirm it. ... Our holding will be spelled out with some specificity in the pages which follow, but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of any attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be

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interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. The constitutional issue we decided in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody and deprived of his freedom of action. In each, the defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. In none of these cases was the defendant given a full and effective warning of his rights at the outset of the interrogation process. In all the cases, the questioning elicited oral admissions, and in three of them, signed statements as well which were admitted at their trials. They all thus share salient features—incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warning of constitutional rights. An understanding of the nature and setting of this in-custody interrogation is essential to our decisions today. The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado. From extensive factual studies undertaken in the early 1930s, including the famous Wickersham Report to Congress by a Presidential Commission, it is clear that police violence and the “third degree” flourished at that time. In a series of cases decided by this Court long after these studies, the police resorted to physical brutality—beating, hanging, whipping— and to sustained and protracted questioning incommunicado in order to extort confessions. The 1961 Commission on Civil Rights found much evidence to indicate that “some policemen still resort to physical force to obtain confessions.” . . . The use of physical brutality and violence is not, unfortunately, relegated to the past or to any part of the country. . . . The examples given above are undoubtedly the exception now, but they are sufficiently widespread to be the object of concern. Unless a proper limitation upon custodial interrogation is achieved—there can be no assurance that practices of this nature will be eradicated in the foreseeable future. . . . [Here CHIEF JUSTICE WARREN reviewed some of the current literature which sets forth modern techniques of in-custody interrogation.] 352

The question in these cases is whether the privilege is fully applicable during a period of custodial interrogation. . . . We are satisfied that all the principles embodied in the privilege apply to informal compulsion exerted by law-enforcement officers during in-custody questioning. An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery. . . . Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed from being compelled to incriminate themselves. . . . In order to combat [inherently compelling] pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights, and the exercise of those rights must be fully honored. . . . At the outset, if a person in custody is to be subjected to interrogation he must first be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege the warning is needed simply to make them aware of it—the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere. It is not just the subnormal or woefully ignorant who succumb to an interrogator’s imprecations, whether implied or expressly stated, that the interrogation will continue until a confession is obtained or that silence in the face of accusation is itself damning and will bode ill when presented to a jury. Further, the warning will show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it. . . . The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system—that he is not in the presence of persons acting solely in his interest. The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation cannot itself suffice to that end among those who most require knowledge of their rights. A mere warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain silent without more “will benefit only the recidivist and the professional.” Brief for the National District Attorneys Association as amicus curiae, p. 14. Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. . . . Thus, the need for counsel to protect Fifth Amendment privilege comprehends not merely a right to consult prior to questioning, but also to have counsel present during any questioning if the defendant so desires. The presence of counsel at the interrogation may serve several significant subsidiary functions as well. If the accused decides to talk to his interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. With a lawyer present, the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police and that the statement is rightly reported by the prosecution at trial. . . . An individual need not make a preinterrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given. The accused who does not know his rights and therefore

does not make a request may be the person who most needs counsel. . . . Accordingly, we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. . . . If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney. The financial ability of the individual has no relationship to the scope of the rights involved here. The privilege against self-incrimination secured by the Constitution applies to all individuals. The need for counsel in order to protect the privilege exists for the indigent as well as the affluent. In fact, were we to limit these constitutional rights to those who can retain an attorney, our decision today would be of little significance. . . . While authorities are not required to relieve the accused of his poverty, they have the obligation not to take advantage of indigence in the administration of justice. . . . In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. . . . Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privileges; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and

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he indicates that he wants one before speaking to police, they must respect his decision to remain silent. This does not mean, as some have suggested, that each police station must have a “station house lawyer” present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. . . . If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. . . . In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warning and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment, and their admissibility is not affected by our holding today. To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given and such 354

opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him. [Here CHIEF JUSTICE WARREN examines the argument that society’s need for interrogation outweighs the privileges.] ... Because of the nature of the problem and because of its recurrent significance in numerous cases, we have to this point discussed the relationship of the Fifth Amendment privilege to police interrogation without specific concentration on the facts of the cases before us. We turn now to these facts to consider the application to these cases of the constitutional principles discussed above. In each instance, we have concluded that statements were obtained from the defendant under circumstances that did not meet constitutional standards for protection of the privilege. NO. 759 Miranda v. Arizona On March 13, 1963, petitioner, Ernesto Miranda, was arrested at his home and taken in custody to a Phoenix police station. He was there identified by the complaining witness. The police then took him to Interrogation Room No. 2 of the detective bureau. There he was questioned by two police officers. The officers admitted at trial that Miranda was not advised that he had a right to have an attorney present. Two hours later, the officers emerged from the interrogation room with a written confession signed by Miranda. . . . At his trial before a jury, the written confession was admitted into evidence over the objection of defense counsel. . . . Miranda was found guilty of kidnapping and rape. . . . On appeal, the Supreme Court of Arizona . . . affirmed the conviction. . . . We reverse. From the testimony of the officers and by the admission of respondent, it is clear that Miranda was not in any way apprised of his right to consult with an attorney and to have one present during the interrogation, nor was his right not to be compelled to incriminate himself effectively protected in any other manner. Without these warnings

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

the statements were inadmissible. The mere fact that he signed a statement which contained a typed-in clause stating that he had full knowledge of his legal rights does not approach the knowing and intelligent waiver required to relinquish constitutional rights. . . . NO. 760 Vignera v. New York Petitioner, Michael Vignera, was picked up by New York police on October 14, 1960, in connection with the robbery three days earlier of a Brooklyn dress shop. . . . [A] detective questioned Vignera with respect to the robbery. Vignera orally admitted the robbery to the detective. The detective was asked on cross-examination at trial by defense counsel whether Vignera was warned of his right to counsel before being interrogated. The prosecution objected to the question, and the trial judge sustained the objection. Thus, the defense was precluded from making any showing that warnings had not been given. . . . At Vignera’s trial on a charge of first degree robbery, [a] detective testified as to the oral confession. . . . At the conclusion of the testimony, the trial judge charged the jury in part as follows: The law doesn’t say that the confession is void or invalidated because the police officer didn’t advise the defendant as to his rights. Did you hear what I said? I am telling you what the law of the State of New York is.

Vignera was found guilty of first degree robbery. . . . The conviction was affirmed without opinion by the Appellate Division, Second Department . . . and by the Court of Appeals, also without opinion. . . . We reverse. . . . Vignera . . . was not effectively apprised of his Fifth Amendment privilege or of his right to have counsel present, and his statements are inadmissible. NO. 761 Westover v. United States At approximately 9:45 P.M. on March 20, 1963, petitioner . . . was arrested by local police in Kansas City as a suspect in two Kansas City robberies. A report was also received from the FBI that he was wanted on a felony charge in California. The local authorities took him to a police station and placed him in a line-up on the local charges, and at about 11:45 P.M. he was booked. Kansas City police interrogated Westover on the night of his arrest. He

denied any knowledge of criminal activities. The next day local officers interrogated him again throughout the morning. Shortly before noon they informed the FBI that they were through interrogating Westover and that the FBI could proceed to interrogate him. There is nothing in the record to indicate that Westover was ever given any warning as to his rights by local police. . . . After two or two and one-half hours, Westover signed separate confessions to each of these two robberies which had been prepared by one of the agents during this interrogation. . . . Westover was tried by a jury in federal court and convicted of the California robberies. His statements were introduced at trial. . . . On appeal, the conviction was affirmed by the Court of Appeals for the Ninth Circuit. . . . We reverse. On the facts of this case we cannot find that Westover knowingly and intelligently waived his right to remain silent and his right to consult with proper counsel prior to the time he made the statement. . . . NO. 584 California v. Stewart . . . At the time of Stewart’s arrest, police also arrested Stewart’s wife and three other persons who were visiting him. These four were jailed along with Stewart and were interrogated. Stewart was taken to the University Station of the Los Angeles Police Department where he was placed in a cell. During the next five days, police interrogated Stewart on nine different occasions. Except during the first interrogation session, when he was confronted with an accusing witness, Stewart was isolated with his interrogators. During the ninth interrogation session, Stewart admitted that he had robbed the deceased and stated that he had not meant to hurt her. Police then brought Stewart before a magistrate for the first time. Since there was no evidence to connect them with any crime, the police then released the other four persons arrested with him. Nothing in the record specifically indicates whether Stewart was or was not advised of his right to remain silent or his right to counsel. . . . . . . At his trial, transcripts of the first interrogation and the confession at the last interrogation were introduced in evidence. The jury found Stewart guilty of robbery and first degree murder and fixed

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the penalty as death. On appeal, the Supreme Court of California reversed. . . . It held that under this Court’s decision in Escobedo, Stewart should have been advised of his right to remain silent and of his right to counsel and that it would not presume in the face of a silent record that the police advised Stewart of his rights. We affirm. In dealing with custodial interrogation, we will not presume that a defendant has been effectively apprised of his rights and that his privilege against self-incrimination has been adequately safeguarded on a record that does not show that any warnings have been given or that any effective alternative has been employed. . . . Therefore, in accordance with the foregoing, the judgments [below] . . . are reversed. It is so ordered. [JUSTICE CLARK’s opinion, dissenting in Nos. 759, 760, and 761 and concurring in the result in No. 584, is not reprinted here.] JUSTICE HARLAN, joined by JUSTICES STEWART and WHITE, dissenting: I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be only time can tell. But the basic flaws in the Court’s justification seem to me readily apparent now once all sides of the problem are considered. ... While the fine points of this scheme [the majority’s requirement of warnings in interrogation] are far less clear than the Court admits, the tenor is quite apparent. The new rules are not designed to guard against police brutality or other unmistakably banned forms of coercion. Those who use third-degree tactics and deny them in court are equally able and destined to lie as skillfully about warnings and waivers. Rather, the thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all. The aim in short is toward “voluntariness” in a utopian sense, or to view it from a different angle, voluntariness with a vengeance. To incorporate this notion into the Constitution requires a strained reading of history and precedent and a disregard of the very pragmatic concerns that 356

alone may on occasion justify such strains. I believe that reasoned examination will show that the Due Process Clauses provide an adequate tool for coping with confessions and that, even if the Fifth Amendment privilege against self-incrimination be invoked, its precedents taken as a whole do not sustain the present rules. Viewed as a choice based on pure policy, these new rules prove to be a highly debatable if not one-sided appraisal of the competing interests imposed over widespread objection, at the very time when judicial restraint is most called for by the circumstances. . . . The Court’s new rules aim to offset . . . minor pressures and disadvantages intrinsic to any kind of police interrogation. . . . The rules work for reliability in confessions almost only in the Pickwickian sense that they can prevent some from being given at all. . . . What the Court largely ignores is that its rules impair, if they will not eventually serve wholly to frustrate, an instrument of law enforcement that has long and quite reasonably been thought worth the price paid for it. There can be little doubt that the Court’s new code would markedly decrease the number of confessions. To warn the suspect that he may remain silent and remind him that his confession may be used in court are minor obstructions. To require also an express waiver by the suspect and an end to questioning whenever he demurs must heavily handicap questioning. And to suggest or provide counsel for the suspect simply invites the end of the interrogation. . . . How much harm this decision will inflict on law enforcement cannot fairly be predicted with accuracy. Evidence on the role of confessions is notoriously incomplete. . . . We do know that some crimes cannot be solved without confessions, that ample expert testimony attests to their importance in crime control, and that the Court is taking a real risk with society’s welfare in imposing its new regime on the country. The social costs of crime are too great to call the new rules anything but a hazardous experimentation. While passing over the costs and risks of its experiment, the Court portrayed the evils of normal police questioning in terms which I think are exaggerated. Albeit stringently confined by the due process standards, interrogation is no doubt often inconvenient and unpleasant for the suspect. However, it is not less so for a man to be arrested and jailed, to have his house searched, or to stand trial in court, yet all this may properly happen to the most innocent given

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probable cause, a warrant, or an indictment. Society has always paid a stiff price for law and order, and peaceful interrogation is not one of the dark moments of the law. ... In closing this necessarily truncated discussion of policy considerations attending the new confession rules, some reference must be made to their ironic untimeliness. There is now in progress in this country a massive reexamination of criminal law enforcement procedures on a scale never before witnessed. . . . It is no secret that concern has been expressed lest long-range and lasting reforms be frustrated by this Court’s too rapid departure from existing constitutional standards. Despite the Court’s disclaimer, the practical effect of the decision made today must inevitably be to handicap seriously sound efforts at reform. . . . . . . I would adhere to the due process test and reject the new requirements inaugurated by the Court. On this premise my disposition of each of these cases can be stated briefly. In two of the three cases coming from state courts, Miranda v. Arizona (No. 759) and Vignera v. New York (No. 760), the confessions were held admissible and no other errors worth comment are alleged by petitioners. I would affirm in these two cases. The other state case is California v. Stewart (No. 584), where the state supreme court held the confession inadmissible and reversed the conviction. In that case I would dismiss the writ of certiorari on the ground that no final judgment is before us. . . . If the merits of the decision in Stewart be reached, then I believe it should be reversed and the case remanded so the state supreme court may pass on the other claims available to respondent. In the federal case, Westover v. United States (No. 761) . . . [i]t is urged that the confession was . . . inadmissible because [it was] not voluntary even measured by due process standards and because federal-state cooperation brought the McNabb-Mallory rule into play under Anderson v. United States, 318 U.S. 350, 1943. . . . However, the facts alleged fall well short of coercion in my view, and I believe the involvement of federal agents in petitioner’s arrest and detention by the State too slight to invoke Anderson. . . . I would therefore affirm Westover’s conviction. In conclusion: Nothing in the letter or the spirit of the Constitution or in the precedents squares with the

heavy-handed and one-sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities. The foray which the Court takes today brings to mind the wise and farsighted words of Justice Jackson in Douglas v. City of Jeanette, 319 U.S. 157, 1943. . . . (separate opinion): “This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.” . . . [The dissenting opinion of JUSTICE WHITE, joined by JUSTICES HARLAN and STEWART, is not reprinted here.]

DEVELOPING MIRANDA JURISPRUDENCE IN THE WARREN, BURGER, REHNQUIST, AND ROBERTS COURTS FEATURED CASES

New York v. Quarles; Illinois v. Perkins; Vermont v. Brillon Almost immediately, extensive and sharp criticism was directed at the Court for its Miranda ruling. Law enforcement officials complained of having their hands tied and of having needless interference in their primary concern for apprehending criminal suspects and solving crimes. Legislators and “law and order” proponents condemned the Court for “straitjacketing” the police and “coddling” criminals with the Miranda requirements. To them, such a decision was particularly appalling during an era of alarming increases in major crimes. Dissenting justices continued to criticize the rule, and in cases that were decided shortly after Miranda, they voiced strong objections to what they viewed as extensions of the rules. In Mathis v. United States (391 U.S. 1, 1968), for example, the Court held that Miranda warnings were required in a case in which the defendant, while incarcerated in a state jail on another charge, was “routinely” questioned by Internal Revenue Service agents, and his statements were used to support a conviction for filing false tax claims. Justice Byron White complained of this subtle extension of Miranda and issued a call to abandon it. He continued to complain against the ruling as a “constitutional strait-jacket on law enforcement” when the Court, in Orozco v. Texas (394 U.S. 324, 1969), ruled one year later that the required warnings should not

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be restricted to in-custody interrogation but were required even for a questioning that took place, for example, in the defendant’s bedroom at 4:00 A.M. He noted that extending the rule to cover such noncoercive interrogation actually “draws the strait-jacket even tighter.” Congressional action provided the first formal retreat from the requirements of the controversial ruling in a provision on the Omnibus Crime Control and Safe Streets Act in 1968. Title II of that act provided that any statements and/or confessions made within six hours after arrest while a suspect was in custody and had not been informed of his or her rights were admissible in federal prosecutions. The thrust of the provision was to restrict the requirements that were advanced in McNabb, Mallory, and Miranda in federal prosecutions. When Chief Justice Warren Burger replaced Chief Justice Earl Warren in 1969 and Justice Harry Blackmun replaced Justice Abe Fortas in 1970, they immediately joined Justices Byron White, John Marshall Harlan II, and Potter Stewart in opposition to the expansion of the Miranda rule. These five justices constituted the majority in Harris v. New York (401 U.S. 222, 1971), a case that indicated the beginning of a contracting trend for Miranda. Led by Chief Justice Burger, the Court held that the prosecution is not precluded from using statements that admittedly do not meet the Miranda test as an impeachment tool in attacking the credibility of the trial testimony given by an accused person. The chief justice construed Miranda as proscribing use of the “warningless” statements only in the prosecution’s “case in chief.” Miranda’s erosion continued in several rulings of the Court’s 1973, 1974, and 1975 terms. First, in Michigan v. Tucker (417 U.S. 433, 1974), the Court held that failure to inform a suspect of his right to appointed counsel before interrogating him (an incident that took place a few months before Miranda was announced) was only a harmless error in the total circumstances of the case.4 Then, one year later, in Oregon v. Haas (420 U.S. 714, 1975), the Court reaffirmed Harris v. New York, supra, and allowed the use of a suspect’s statements for impeachment purposes, even though the statements were made be4

The Court has considered the issue of counsel under Miranda in a number of cases. See, for example, Edwards v. Arizona (451 U.S. 477, 1981), Michigan v. Jackson (475 U.S. 625, 1986), Minnick v. Mississippi (498 U.S. 146, 1990), and McNeil v. Wisconsin (501 U.S. 171, 1991).

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fore the arrival of the counsel that he had requested prior to making any statements. And the following year, in Michigan v. Mosley (423 U.S. 96, 1976), the Court did not construe Miranda as invoking “a per se proscription of indefinite duration on any further questionings . . . on any subject.” That ruling approved an interrogation process in which a suspect had initially used the shield of Miranda to remain silent, but several hours later, in a different room was administered the Miranda rights again and proceeded to respond to questions about a different crime. The Court continued to contract the ruling by refusing to extend it to grand jury proceedings in United States v. Mandujano (425 U.S. 564), also decided in 1976. In the context of that case, not even Justices Brennan and Marshall objected as Chief Justice Burger emphasized the difference between such proceedings and the criminal trial.5 The Burger Court also construed the in-custody dimension of the Miranda warnings to enhance interrogation efforts of law enforcement officials. In Beckwith v. United States (425 U.S. 319, 1976), for example, the Court held that a noncustodial interview of a person in his home by Internal Revenue Service agents, during which he made statements that were subsequently used against him in a tax fraud prosecution, was not the equivalent of the incustody interrogation that triggers Miranda warnings. Chief Justice Burger noted that although the investigation was focused on the defendant in the sense that his tax liability was under scrutiny, there was no need for Miranda warnings at that stage because the agents did not take him into custody or deprive him of his freedom in “any significant way.” In Oregon v. Mathiason (425 U.S. 492, 1977), a defendant “voluntarily” appeared at a police station after having been requested to do so in a telephone conversation. During his discussion of a crime with the police, he made a verbal confession, although he was not under arrest and had not been advised of his Miranda rights. He was convicted on the basis of that confession. The Oregon Supreme Court reversed the conviction because the defendant had not received Miranda warnings prior to the police station “interview.” But the United States Supreme 5 See also Fare v. Michael C. (482 U.S. 707, 1979), in which the Court refused to equate a request to talk with a probation officer with a Miranda request to see a lawyer; and Minnesota v. Murphy (104 S. Ct. 1136, 1984), in which the Court refused to extend the Miranda requirement to interviews with probation officers.

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Court overturned that reversal because the defendant was not in custody at the time of his verbal confession, nor had he been “deprived of his freedom of action in any significant way.” The Court noted that even after the defendant made an oral confession that subsequently was taped, he was allowed to leave the police station without hindrance. In a similar vein, the Court held that a suspect’s written statement is not essential in establishing proof of explicit waiver of counsel under Miranda (North Carolina v. Butler, 441 U.S. 369, 1979). In 1980, Chief Justice Warren Burger expressed the view in Rhode Island v. Innis (446 U.S. 291) that the meaning of Miranda had become “reasonably clear” and that law enforcement officials had adjusted their practices to its strictures without suffering major hindrance to their work. Consequently he saw no need to “overrule,” “disparage,” or “extend” it. The Court adhered to that approach when it refused to extend Miranda to cover interviews with probation officers. Thus, it was somewhat surprising that just four years after Innis, the Court adopted a “public-safety exception” to Miranda in New York v. Quarles (467 U.S. 649, 1984). Speaking for the fiveman majority, Justice William Rehnquist indicated that “prophylactic rules” outlined in Miranda could be bypassed when overriding considerations of public safety required it. Applying a cost–benefit analysis, Rehnquist asserted that giving Miranda warnings within the context of a case could prove too expensive because they could delay immediate recovery of a dangerous weapon—in that case, a gun discarded by the suspect. But in a rare dissent from her colleagues, Justice Sandra Day O’Connor expressed concern that the exception would “unnecessarily blur the edges” of Miranda and lessen the clarity that had been developed since Miranda was first decided. Characterizing the “prophylactic rules” set forth in Miranda as one of the strengths of the decision, she warned that the “core virtue of Miranda” (clear guidance to police and courts in conducting custodial investigations) could be eviscerated, because law enforcement officers could freely ignore the rules by citing a “public safety exception.” But O’Connor limited her opposition to admission of the suspect’s statements and agreed with the majority’s admission of the gun as evidence; it was her view that the source of Miranda—the self-incrimination provision of the Fifth Amendment—does not prohibit compelling surrender of nontestimonial evidence.

Notwithstanding her concern about exceptions that would “unnecessarily blur the edges” of Miranda, Justice O’Connor wrote the Court’s opinion one year later in Oregon v. Elstad (470 U.S. 298, 1985), which permits greater police discretion in the initial application of Miranda warnings. The case involved a suspect’s self-incriminating response to a police inquiry in the initial stage of a burglary investigation, before Miranda warnings were given, and his subsequent confession at the station house after Miranda warnings had been given and waived. Overturning an Oregon appeals court ruling that threw out both the initial statement (as a flat violation of Miranda) and the confession (as “fruit of the poisonous tree”), O’Connor emphasized the voluntariness of the initial statement and said that although it was technically a violation of Miranda, it did not preclude the suspect’s subsequent confession after he had received and waived the Miranda warnings. Justice O’Connor wrote another opinion for the Court during the following term, in Moran v. Burbine (475 U.S. 412, 1986). That case concerned the manner in which police obtained a waiver of Miranda rights from a suspect. The police failed to inform the suspect that his counsel had attempted to contact him before he agreed to talk to them. O’Connor did not believe that knowledge of that fact was essential to the suspect’s ability to “knowingly and intelligently” waive his Miranda rights. She advised against extending the reach of Miranda to situations in which police are less than forthright in their dealings with suspects and concluded that: [W]hile a rule requiring that the police inform a suspect of an attorney’s efforts to reach him might add marginally to Miranda’s goal of dispelling the compulsion inherent in custodial interrogation, overriding practical considerations—particularly the case and clarity of Miranda’s application—counsel against adoption of the rule. Moreover, such a rule would work a substantial and inappropriate shift in the subtle balance struck in Miranda between society’s legitimate law enforcement interests and the protection of the accused’s Fifth Amendment rights.

The “overriding practical consideration” appeared to be crucial in the Court’s refusal to strike down alleged police deception in Colorado v. Spring (479 U.S. 564, 1987) the following year. Speaking for the seven-to-two majority, Justice Lewis Powell reiterated Justice O’Connor’s position in the Burbine case that failure of the police to tell the subject

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certain information was not essential to his decision about waiving his Miranda rights. (In Spring, the police did not inform the suspect of all the crimes about which he might be questioned.) In addition, the majority in the same term refused to construe Miranda expansively to allow a limited invocation of the Miranda counsel guarantee with respect to written statements to proscribe verbal statements of the accused who had voluntarily participated in the oral dimension of the interrogation. In Connecticut v. Barrett (479 U.S. 573, 1987), the suspect proclaimed that he would not sign anything, but then he agreed to talk with the police about the criminal activity being investigated. Chief Justice Rehnquist considered Barrett’s decision to talk with the police to be a valid waiver of his right to remain silent, noting that Miranda only guarantees a suspect the choice between “speech and silence.” That the Rehnquist Court would continue to limit the Miranda shield in criminal prosecutions is reflected in two cases that were decided by the Court in 1990 and 1991. First, in Illinois v. Perkins (496 U.S. 292, 1990), in an eight-to-one ruling the Court refused to suppress the testimony of an undercover law enforcement agent who had obtained incriminating information while sharing a cell with the accused. Justice Anthony Kennedy, whose opinion was joined by six of the justices (even Justice Brennan concurred in the judgment with a separate opinion, leaving Justice Marshall as the lone dissenter), rejected the argument of the respondent that the “cellmate undercover agent” was constitutionally required to give the Miranda warnings before eliciting statements from him because the agent was working as a law enforcement officer. The critical factor for the justices was the noncoercive context in which the respondent’s statements were made. Kennedy took judicial notice of the fact that the suspect was speaking “freely to someone that he believed to be a fellow inmate.” Underscoring this point, he asserted that “Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect’s misplaced trust in one he supposes to be a fellow prisoner.” In dissent, Justice Thurgood Marshall was concerned that this “cellmate” exception “allows police officers intentionally to take advantage of suspects unaware of their constitutional rights.” For him, the inmate’s conversations with the “undercover cellmate” had all of the trappings of the in-custody interrogation that Miranda addresses, and he was con360

cerned about the proliferation of policies that evade Miranda as the result of the Court’s decision. A year later, in Arizona v. Fulminante (499 U.S. 279, 1991), a complex case in which the justices split significantly on the several key issues that were presented, the justices seemed to indicate their uncertainty about how far to restrict Miranda in the future. A majority of the justices (Rehnquist, O’Connor, Scalia, Kennedy, and Souter) found that the harmless error analysis was appropriate for cases like Fulminante, in which such analysis could allow the admission of a coerced confession if there is sufficient evidence (independently obtained) to support a conviction. But a different majority (White, Marshall, Blackmun, Stevens, and Scalia) threw out the confession, saying that it was coerced and was “not harmless beyond a reasonable doubt.” During the same term, the Fulminante majority was joined by Justice Byron White in rejecting an inferential application of Miranda by a defendant who was attempting to suppress his incriminating statements. In McNeil v. Wisconsin (501 U.S. 171, 1991), Justice Scalia stressed in his opinion for the Court that the defendant’s assertion of the counsel guarantee of the Sixth Amendment does not imply the invocation of Miranda Fifth Amendment rights. Taking such a step, he asserted, would be unwise policy that would impede effective law enforcement. In dissent, Justice Stevens, with whom Justices Marshall and Blackmun joined, complained that the decision’s new “offense-specific” limitation of the scope of the relationship between counsel and client would lead to confusion in the law and thereby would “undermine the protections that undergird our adversarial system of justice.” Furthermore, Stevens could not overlook the symbolic impact of the decision. It is an ominous decision, he asserted, that “reflects a preference for an inquisitional system that regards the defense lawyer as an impediment rather than a servant to the cause of justice.” Since McNeil, the Court, while making clarifications in its Miranda jurisprudence, has insisted on great deference to law enforcement authorities. In Davis v. United States (512 U.S. 452, 1994), for example, the Court made it clear that when a suspect makes an ambiguous reference to counsel in an interrogation setting, police need not stop the questioning. Justice O’Connor noted that although it may be good practice for interrogating officers to help a suspect clarify his request for counsel in the Miranda warning context, officers are not required to ask such clarifying

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questions. In Thompson v. Keohane (516 U.S. 99, 1995), the Court considered state court in-custody determinations for invocation of Miranda warnings and refused to accord such state-court rulings a “statutory presumption of correctness” in federal court habeas reviews. Note also Stansbury v. California (511 U.S. 318, 1994), in which the Court clarified further its jurisprudence on the meaning of “in-custody” for the application of Miranda warnings. A unanimous Court, in a per curiam opinion, insisted that during the determination of whether a suspect is in custody for Miranda purposes, assessment of the “objective circumstances” of the interrogation should prevail over the “subjective views” of either interrogating officers or the person being questioned. Going forward, the Court will most likely continue to make only slight refinements in its Miranda jurisprudence. The majority of the justices will probably heed Justice O’Connor’s counsel in her partial dissent in Quarles. That dissent warned against crafting exceptions that “unnecessarily blur the edges of the clear line . . . established” by the Court in its application of the Miranda requirements since 1966 and make those requirements “more difficult to understand.” However, even slight refinements that demonstrate some deference for Justice O’Connor’s warning may

still result in the restricted scope of Miranda. In Illinois v. Perkins (496 U.S. 292, 1990), for example, a strong 7–1 majority, with an eighth justice concurring in the result—Justice Brennan—held “that an undercover law enforcement officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking the questions that may elicit an incriminating response. The statements at issue in this case were voluntary, and there is no federal obstacle to their admissibility at trial.” But Justice Thurgood Marshall filed a strong dissent not only in Perkins but in the earlier 1984 New York v. Quarles case which is printed in this chapter. In Perkins, Justice Marshall charged that “[t]he Court’s adoption of the ‘undercover agent’ exception to the Miranda rule thus is necessarily also the adoption of a substantial loophole in our jurisprudence protecting suspects’ Fifth Amendment rights.” (See Perkins, Ibid.) It seems clear, however, that conflicting interpretations of Miranda will continue for some time to come. This trend was reflected in subsequent decisions of the Court, including Dickerson v. United States (2000), Wiggins v. Smith (2003), Indiana v. Edwards (2008), and Vermont v. Brillon (2009). The first three can be found in the online supplement for this text, while Vermont v. Brillon is reproduced below.

NEW YORK V. QUARLES 467 U.S. 649; 81 L. Ed. 2d 550; 104 S. Ct. 2626 (1984) JUSTICE REHNQUIST delivered the opinion of the Court. JUSTICE O’CONNOR filed an opinion concurring in part in the judgment and dissenting in part. JUSTICE MARSHALL filed a dissenting opinion, in which JUSTICES BRENNAN and STEVENS joined. JUSTICE REHNQUIST delivered the opinion of the Court. Respondent Benjamin Quarles was charged . . . with criminal possession of a weapon. The trial court suppressed the gun in question, and a statement made by respondent, because the statement was obtained by police before they read respondent his Miranda rights. That ruling was affirmed on appeal through the New York Court of Appeals. We

granted certiorari, . . . and we now reverse. We conclude that under the circumstances involved in this case, overriding considerations of public safety justify the officer’s failure to provide Miranda warnings before he asked questions devoted to locating the abandoned weapon. On September 11, 1980, at approximately 12:30 A . M ., Officer Frank Kraft and Officer Sal Scarring were on road patrol in Queens, New York, when a young woman approached their car. She told them that she had just been raped by a black male, approximately six feet tall, who was wearing a black jacket with the name “Big Ben” printed in yellow letters on the back . . . [and] that the man had just entered an A & P supermarket located nearby and that the man was carrying a gun.

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The officers drove the woman to the supermarket, and Officer Kraft entered the store while Officer Scarring radioed for assistance. Officer Kraft quickly spotted respondent, who matched the description given by the woman, approaching a check-out counter. Apparently upon seeing the officer, respondent turned and ran toward the rear of the store, and Officer Kraft pursued him with a drawn gun. When respondent turned the corner at the end of an aisle, Officer Kraft lost sight of him for several seconds, and upon regaining sight of respondent, ordered him to stop and put his hands over his head. Although more than three other officers had arrived on the scene by that time, Officer Kraft was the first to reach respondent. He frisked him and discovered that he was wearing a shoulder holster which was then empty. After handcuffing him, Officer Kraft asked him where the gun was. Respondent nodded in the direction of some empty cartons and responded, “The gun is over there.” Officer Kraft thereafter retrieved a loaded .38 caliber revolver from one of the cartons, formally placed respondent under arrest, and read him his Miranda rights from a printed card. Respondent indicated that he would be willing to answer questions without an attorney present. Officer Kraft then asked respondent if he owned the gun and where he had purchased it. Respondent answered that he did own it and that he had purchased it in Miami, Florida. In subsequent prosecution of respondent for criminal possession of a weapon, the judge excluded the statement “The gun is over there” and the gun because the officer had not given respondent the warnings required by our decision in Miranda v. Arizona . . . before asking him where the gun was located. The judge excluded the other statements about respondent’s ownership of the gun and the place of purchase, as evidence tainted by the prior Miranda violation. The Appellate Division of the Supreme Court of New York affirmed without opinion. . . . The Court of Appeals . . . concluded that respondent was in “custody” within the meaning of Miranda during all questioning and rejected the State’s argument that the exigencies of the situation justified Officer Kraft’s failure to read respondent his Miranda rights until after he had located the gun. The court declined to recognize an exigency exception to the usual requirements of Miranda because it found no indication from Officer Kraft’s testimony at the suppression hearing that his subjective motivation in asking the question was to protect his own 362

safety or the safety of the public. . . . For the reasons which follow, we believe that this case presents a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda. . . . In this case . . . [there is] no claim that respondent’s statements were actually compelled by police conduct which overcame his will to resist. See Beckwith v. United States, 425 U.S. 341, 347–348 (1976). . . . Thus the only issue before us is whether Officer Kraft was justified in failing to make available to respondent the procedural safeguards associated with the privilege against compulsory selfincrimination since Miranda. The New York Court of Appeals was undoubtedly correct in deciding that the facts of this case come within the ambit of the Miranda decision as we have subsequently interpreted it. We agree that respondent was in police custody because we have noted that “the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” . . . Here Quarles was surrounded by at least four police officers and was handcuffed when the questioning at issue took place. As the New York Court of Appeals observed, there was nothing to suggest that any of the officers were any longer concerned for their own physical safety. . . . The New York Court of Appeals majority declined to express an opinion as to whether there might be an exception to the Miranda rule if the police had been acting to protect the public, because the lower courts in New York had made no factual determination that the police had acted with that motive. . . . We hold that on these facts there is a “public safety” exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence, and that the availability of that exception does not depend upon the motivation of the individual officers involved. In a kaleidoscopic situation such as the one confronting these officers, where spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the exception which we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer. Undoubtedly most police officers, if placed in Officer Kraft’s position, would act out of a host of different, instinctive, and largely unverifiable motives—their own safety, the safety of others, and perhaps as well

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the desire to obtain incriminating evidence from the suspect. Whatever the motivation of individual officers in such a situation, we do not believe that the doctrinal underpinnings of Miranda require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety. . . . The police in this case, in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it. In such a situation, if the police are required to recite the familiar Miranda warnings before asking the whereabouts of the gun, suspects in Quarles’ position might well be deterred from responding. Procedural safeguards which deter a suspect from responding were deemed acceptable in Miranda in order to protect the Fifth Amendment privilege; when the primary social cost of those added protections is the possibility of fewer convictions, the Miranda majority was willing to bear that cost. Here, had Miranda warnings deterred Quarles from responding to Officer Kraft’s question about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting Quarles. Officer Kraft needed an answer to his question not simply to make his case against Quarles but to insure that further danger to the public did not result from the concealment of the gun in a public area. We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against selfincrimination. We decline to place officers such as Officer Kraft in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them.

In recognizing a narrow exception to the Miranda rule in this case, we acknowledge that to some degree we lessen the desirable clarity of that rule. At least in part in order to preserve its clarity, we have over the years refused to sanction attempts to expand our Miranda holding. . . . As we have in other contexts, we recognize here the importance of a workable rule “to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.” . . . But as we have pointed out, we believe that the exception which we recognize today lessens the necessity of that on-the-scene balancing process. The exception will not be difficult for police officers to apply because in each case it will be circumscribed by the exigency which justifies it. We think police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect. The facts of this case clearly demonstrate that distinction and an officer’s ability to recognize it. Officer Kraft asked only the question necessary to locate the missing gun before advising respondent of his rights. It was only after securing the loaded revolver and giving the warnings that he continued with investigatory questions about the ownership and place of purchase of the gun. The exception which we recognize today, far from complicating the thought processes and the on-the-scene judgments of police officers, will simply free them to follow their legitimate instincts when confronting situations presenting a danger to the public safety. We hold that the Court of Appeals in this case erred in excluding the statement “the gun is over there” and the gun because of the officer’s failure to read respondent his Miranda rights before attempting to locate the weapon. Accordingly, we hold that it also erred in excluding the subsequent statements as illegal fruits of a Miranda violation. We therefore reverse and remand for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE O’CONNOR, concurring in part in the judgment and dissenting in part: ... In my view, a “public safety” exception unnecessarily blurs the edges of the clear line heretofore

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established and makes Miranda’s requirements more difficult to understand. In some cases, police will benefit because a reviewing court will find that an exigency excused their failure to administer the required warnings. But in other cases, police will suffer because, though they thought an exigency excused their noncompliance, a reviewing court will view the “objective” circumstances differently and require exclusion of admissions thereby obtained. The end result will be a fine-spun new doctrine on public safety exigencies incident to custodial interrogation, complete with the hair-splitting distinctions that currently plague our Fourth Amendment jurisprudence. “While the rigidity of the prophylactic rules was a principal weakness in the view of dissenters and critics outside the Court, . . . that rigidity [has also been called a] strength of the decision. It [has] afforded police and courts clear guidance on the manner in which to conduct a custodial investigation: if it was rigid, it was also precise. . . . [T]his core virtue of Miranda would be eviscerated if the prophylactic rules were freely [ignored] by . . . courts under the guise of [reinterpreting] Miranda . . .” Fare v. Michael C., 439 U.S. 1310, 1314 (1978). . . . The justification the Court provides for upsetting the equilibrium that has finally been achieved—that police cannot and should not balance considerations of public safety against the individual’s interest in avoiding compulsory testimonial self-incrimination— really misses the critical question to be decided. . . . Miranda has never been read to prohibit the police from asking questions to secure the public safety. Rather, the critical question Miranda addresses is, Who shall bear the cost of securing the public safety when such questions are asked and answered: the defendant or the State? Miranda, for better or worse, found the resolution of that question implicit in the prohibition against compulsory self-incrimination and placed the burden on the State. When police ask custodial questions without administering the required warnings, Miranda quite clearly requires that the answers received be presumed compelled and that they be excluded from evidence at trial. . . . The Court concedes, as it must, both that respondent was in “custody” and subject to “interrogation” and that his statement “the gun is over there” was compelled within the meaning of our precedent. . . . In my view, since there is nothing about an exigency that makes custodial interrogation any less com-

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pelling, a principled application of Miranda requires that respondent’s statement be suppressed. . . . The gun respondent was compelled to supply is clearly evidence of the “real or physical” sort. What makes the question of its admissibility difficult is the fact that, in asking respondent to produce the gun, the police also “compelled” him, in the Miranda sense, to create an incriminating testimonial response. In other words, the case is problematic because police compelled respondent, not only to provide the gun but also to admit that he knew where it was and that it was his. . . . [A]dmission of nontestimonial evidence secured through informal custodial interrogation will reduce the incentives to enforce the Miranda code. But that fact simply begs the question of how much enforcement is appropriate. There are some situations, as the Court’s struggle to accommodate a “public safety” exception demonstrates, in which the societal cost of administering the Miranda warnings is very high indeed. The Miranda decision quite practically does not express any societal interest in having those warnings administered for their own sake. Rather, the warnings and waiver are only required to ensure that “testimony” used against the accused at trial is voluntarily given. Therefore, if the testimonial aspects of the accused’s custodial communications are suppressed, the failure to administer the Miranda warnings should cease to be of concern. . . . The harm caused by failure to administer Miranda warnings relates only to admission of testimonial self-incriminations, and the suppression of such incriminations should by itself produce the optimal enforcement of the Miranda rule. . . . In Miranda, the Court looked to the experience of countries like England, India, Scotland, and Ceylon in developing its code to regulate custodial interrogations. . . . Those countries had also adopted procedural rules to regulate the manner in which police secured confessions to be used against accused persons at trial. . . . Confessions induced by trickery or physical abuse were never admissible at trial, and any confession secured without the required procedural safeguards could, in the courts’ discretion, be excluded on grounds of fairness or prejudice. . . . But nontestimonial evidence derived from all confessions “not blatantly coerced” was and still is admitted. . . . Admission of nontestimonial evidence of this type is based on the very sensible view that procedural

The Rights of the Accused and the Criminal Justice System

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errors should not cause entire investigations and prosecutions to be lost. . . . The learning of these countries was important to development of the initial Miranda rule. It therefore should be of equal importance in establishing the scope of the Miranda exclusionary rule today. I would apply that learning in this case and adhere to our precedents requiring that statements elicited in the absence of Miranda warnings be suppressed. But because nontestimonial evidence such as the gun should not be suppressed, I join in that part of the Court’s judgment that reverses and remands for further proceedings with the gun admissible as evidence against the accused. JUSTICE MARSHALL, joined by JUSTICES BRENNAN and STEVENS, dissenting: . . .Before today’s opinion, the procedures established in Miranda v. Arizona had “the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogations are not admissible.” . . . In a chimerical quest for public safety, the majority has abandoned the rule that brought eighteen years of doctrinal tranquility to the field of custodial interrogations. As the majority candidly concedes, . . . a public-safety exception destroys forever the clarity of Miranda for both law enforcement officers and members of the judiciary. The Court’s candor cannot mask what a serious loss the administration of justice has incurred. This case is illustrative of the chaos the “publicsafety” exception will unleash. The circumstances of Quarles’ arrest have never been in dispute. After the benefit of briefing and oral argument, the New York Court of Appeals concluded that there was “no evidence in the record before us that there were exigent circumstances posing a risk to the public safety.” 58 N.Y.2d, at 666. Upon reviewing the same facts and hearing the same arguments, a majority of this Court has come to precisely the opposite conclusion: “So long as the gun was concealed somewhere in the supermarket, with its actual whereabout unknown, it obviously posed more than one danger to the public safety. . . .” If after plenary review two appellate courts so fundamentally differ over the threat to public safety pre-

sented by the simple and uncontested facts of this case, one must seriously question how law enforcement officers will respond to the majority’s new rule in the confusion and haste of the real world. As the Chief Justice wrote in a similar context, “Few, if any, police officers are competent to make the kind of evaluation seemingly contemplated; . . .” Rhode Island v. Innis, 446 U.S. at 304 (1980) (concurring in the judgment). Not only will police officers have to decide whether the objective facts of an arrest justify an unconsented custodial interrogation; they will also have to remember to interrupt the interrogation and read the suspect his Miranda warnings once the focus of the inquiry shifts from protecting the public’s safety to ascertaining the suspect’s guilt. Disagreements of the scope of the “public-safety” exception and mistakes in its application are inevitable. The end result, as JUSTICE O’CONNOR predicts, will be “a finespun new doctrine of public safety exigencies incident to custodial interrogation, complete with the hair-splitting distinctions that currently plague our Fourth Amendment jurisprudence.” In the meantime, the courts will have to dedicate themselves to spinning this new web of doctrines, and the country’s law enforcement agencies will have to suffer patiently through the frustrations of another period of constitutional uncertainty. Though unfortunate, the difficulty of administering the “public-safety” exception is not the most profound flaw in the majority’s decision. The majority has lost sight of the fact that Miranda v. Arizona and our earlier custodial-interrogation cases all implemented a constitutional privilege against self-incrimination. The rules established in these cases were designed to protect criminal defendants against prosecutions based on coerced self-incriminating statements. The majority today turns its back on these constitutional considerations and invites the government to prosecute through the use of what necessarily are coerced statements. . . . In fashioning its “public-safety” exception to Miranda, the majority makes no attempt to deal with the constitutional presumption established by that case. The majority does not argue that police questioning about issues of public safety is any less coercive than custodial interrogations into other matters. The majority’s only contention is that police officers could more easily protect the public if Miranda did not apply to custodial interrogations

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concerning the public’s safety. But Miranda was not a decision about public safety; it was a decision about coerced confessions. Without establishing that interrogations concerning the public’s safety are less likely to be coercive than other interrogations, the majority cannot endorse the “publicsafety” exception and remain faithful to the logic of Miranda v. Arizona. The majority’s avoidance of the issue of coercion may not have been inadvertent. It would strain credulity to contend that Officer Kraft’s questioning of respondent Quarles was not coercive. In the middle of the night and in the back of an empty supermarket, Quarles was surrounded by four armed police officers. His hands were handcuffed behind his back. The first words out of the mouth of the arresting officer were: “Where is the gun?” In the majority’s phrase, the situation was “kaleidoscopic.” Police and suspect were acting on instinct. Officer Kraft’s abrupt and pointed question pressured Quarles in precisely the way that the Miranda Court feared the custodial interrogations would coerce self-incriminating testimony. That the application of the “public-safety” exception in this case entailed coercion is no happenstance. The majority’s ratio decidendi is that interrogating suspects about matters of public safety will be coercive. In its cost-benefit analysis, the Court’s strongest argument in favor of a publicsafety exception to Miranda is that the police would be better able to protect the public’s safety if they were not always required to give suspects their Miranda warnings. The crux of this argument is that, by deliberately withholding Miranda warnings, the police can get information out of suspects who would refuse to respond to police questioning were they advised of their constitutional rights. The “public-safety” exception is efficacious precisely because it permits police officers to coerce criminal defendants into making involuntary statements. Indeed, in the efficacy of the “public-safety” exception lies a fundamental and constitutional defect. Until today, this Court could truthfully state that the Fifth Amendment is given “broad scope” “where there has been genuine compulsion of testimony.” . . . Coerced confessions were simply inadmissible in criminal prosecutions. The “publicsafety” exception departs from this principle by expressly inviting police officers to coerce defendants into making incriminating statements, and 366

then permitting prosecutors to introduce those statements at trial. . . . The irony of the majority’s decision is that the public’s safety can be perfectly well protected without abridging the Fifth Amendment. If a bomb is about to explode or the public is otherwise imminently imperiled, the police are free to interrogate suspects without advising them of their constitutional rights. Such unconsented questioning may take place not only when police officers act on instinct but also when higher faculties lead them to believe that advising a suspect of his constitutional rights might decrease the likelihood that the suspect would reveal life-saving information. If trickery is necessary to protect the public, then the police may trick a suspect into confessing. While the Fourteenth Amendment sets limits on such behavior, nothing in the Fifth Amendment or our decision in Miranda v. Arizona proscribes this sort of emergency questioning. All the Fifth Amendment forbids is the introduction of coerced statements at trial. . . . To a limited degree, the majority is correct that there is a cost associated with the Fifth Amendment’s ban on introducing coerced self-incriminating statements at trial. Without a “public-safety” exception, there would be occasions when a defendant incriminated himself by revealing a threat to the public, and the State was unable to prosecute because the defendant retracted his statement after consulting with counsel and the police cannot find independent proof of guilt. Such occasions would not, however, be common. The prosecution does not always lose the use of incriminating information revealed in these situations. After consulting with counsel, a suspect may well volunteer to repeat his statement in hopes of gaining a favorable plea bargain or more lenient sentence. The majority thus overstates its case when it suggests that a police officer must necessarily choose between public safety and admissibility. . . . The policies underlying the Fifth Amendment’s privilege against self-incrimination are not diminished simply because testimony is compelled to protect the public’s safety. The majority should not be permitted to elude the Amendment’s absolute prohibition simply by calculating special costs that arise when the public’s safety is at issue. Indeed, were constitutional adjudication always conducted in such an ad hoc manner, the Bill of Rights would be a most unreliable protector of individual liberties. . . .

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

ILLINOIS V. PERKINS 496 U.S. 292; 110 L. Ed. 2d 243; 110 S. Ct. 2394 (1990) JUSTICE KENNEDY delivered the opinion of the Court and filed an opinion, in which CHIEF JUSTICE REHNQUIST and JUSTICES WHITE, BLACKMUN, STEVENS, O’CONNOR, and SCALIA joined. JUSTICE BRENNAN filed an opinion concurring in the judgment. JUSTICE MARSHALL filed a dissenting opinion. JUSTICE KENNEDY delivered the opinion of the Court. An undercover government agent was placed in a cell of respondent Perkins, who was incarcerated on charges unrelated to the subject of the agent’s investigation. Respondent made statements that implicated him in the crime that the agent sought to solve. Respondent claims that the statements should be inadmissible because he had not been given Miranda warnings by the agent. We hold that the statements are admissible. Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement. I In November 1984, Richard Stephenson was murdered in a suburb of East St. Louis, Illinois. The murder remained unsolved until March 1986, when one Donald Charlton told police that he had learned about a homicide from a fellow inmate at the Graham Correctional Facility, where Charlton had been serving a sentence for burglary. The fellow inmate was Lloyd Perkins, who is the respondent here. Charlton told police that, while at Graham, he had befriended respondent, who told him in detail about a murder that respondent had committed in East St. Louis. On hearing Charlton’s account, the police recognized details of the Stephenson murder that were not well known, and so they treated Charlton’s story as a credible one. By the time the police heard Charlton’s account, respondent had been released from Graham, but police traced him to a jail in Montgomery County, Illinois, where he was being held pending trial on a charge of aggravated battery, unrelated to the

Stephenson murder. The police wanted to investigate further respondent’s connection to the Stephenson murder, but feared the use of an eavesdropping device would prove impractical and unsafe. They decided instead to place an undercover agent in the cellblock with respondent and Charlton. The plan was for Charlton and undercover agent John Parisi to pose as escapees from a work release program who had been arrested in the course of a burglary. Parisi and Charlton were instructed to engage respondent in casual conversation and report anything he said about the Stephenson murder. Parisi, using the alias “Vito Bianco,” and Charlton, both clothed in jail garb, were placed in the cellblock with respondent at the Montgomery County jail. . . . Respondent greeted Charlton, who, after a brief conversation with respondent, introduced Parisi by his alias. Parisi told respondent that he “wasn’t going to do any more time,” and suggested that the three of them escape. Respondent replied that the Montgomery County jail was “rinky-dink” and that they could “break out.” The trio met in respondent’s cell later that evening, after the other inmates were asleep, to refine their plan. Respondent said that his girlfriend could smuggle in a pistol. Charlton said, “Hey, I’m not a murderer, I’m a burglar. That’s your guy’s profession.” After telling Charlton that he would be responsible for any murder that occurred, Parisi asked respondent if he had ever “done” anybody. Respondent said that he had, and proceeded to describe at length the events of the Stephenson murder. Parisi and respondent then engaged in some casual conversation before respondent went to sleep. Parisi did not give respondent Miranda warnings before the conversations. Respondent was charged with the Stephenson murder. Before trial, he moved to suppress the statements made to Parisi in the jail. The trial court granted the motion to suppress, and the State appealed. The Appellate Court of Illinois affirmed, holding that Miranda v. Arizona prohibits all undercover contacts with incarcerated suspects which are reasonably likely to elicit an incriminating response. . . .

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II . . . Conversations between suspects and undercover agents do not implicate the concerns underlying Miranda. The essential ingredients of a “policedominated atmosphere” and compulsion are not present when an incarcerated person speaks freely to someone that he believes to be a fellow inmate. Coercion is determined from the prospective of the suspect. When a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking. . . . There is no empirical basis for the assumption that a suspect speaking to those whom he assumes are not officers will feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess. It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation. We reject the argument that Miranda warnings are required whenever a suspect is in custody in a technical sense and converses with someone who happens to be a government agent. Questioning by captors, who appear to control the suspect’s fate, may create mutually reinforcing pressures that the Court has assumed will weaken the suspect’s will, but where a suspect does not know that he is conversing with a government agent, these pressures do not exist. The State Court here mistakenly assumed that because the suspect was in custody, no undercover questioning could take place. When the suspect has no reason to think that the listeners have official power over him, it should not be assumed that his words are motivated by the reaction he expects from his listeners. “[W]hen the agent carries neither badge nor gun and wears not ‘police blue,’ but the same prison gray” as the suspect, there is no “interplay between police interrogation and police custody.” . . . Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect’s misplaced trust in one he supposes to be a fellow prisoner. As we recognized in Miranda, “[c]onfessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influence is, of course, admissible as evidence.” Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda’s concerns. . . . Miranda was not meant to protect suspects from boasting about their criminal activities in front of persons whom they believe to be 368

their cellmates. This case is illustrative. Respondent had no reason to feel that undercover agent Parisi had any legal authority to force him to answer questions or that Parisi could affect respondent’s future treatment. Respondent viewed the cellmate-agent as an equal and showed no hint of being intimidated by the atmosphere of the jail. In recounting the details of the Stephenson murder, respondent was motivated solely by the desire to impress his fellow inmates. He spoke at his own peril. The tactic employed here to elicit a voluntary confession from a suspect does not violate the SelfIncrimination Clause. We held in Hoffa v. United States, 385 U.S. 293 (1966), that placing an undercover agent near a suspect in order to gather incriminating information was permissible under the Fifth Amendment. . . . The only difference between this case and Hoffa is that the suspect here was incarcerated, but detention, whether or not for the crime in question, does not warrant a presumption that the use of an undercover agent to speak with an incarcerated suspect makes any confession thus obtained involuntary. Our decision in Mathis v. United States, 391 U.S. 1 (1968), is distinguishable. In Mathis, an inmate in a state prison was interviewed by an Internal Revenue Service agent about possible tax violations. No Miranda warning was given before questioning. The Court held that the suspect’s incriminating statements were not admissible at his subsequent trial on tax fraud charges. The suspect in Mathis was aware that the agent was a government official, investigating the possibility of non-compliance with the tax laws. The case before us now is different. Where the suspect does not know that he is speaking to a government agent there is no reason to assume the possibility that the suspect might feel coerced. . . . This Court’s Sixth Amendment decisions in Massiah v. United States, 377 U.S. 21 (1964), United States v. Henry, 447 U.S. 264 (1980), and Maine v. Moulton, 474 U.S. 159 (1985), also do not avail respondent. We held in those cases that the government may not use an undercover agent to circumvent the Sixth Amendment right to counsel once a suspect has been charged with the crime. After charges have been filed, the Sixth Amendment prevents the government from interfering with the accused’s right to counsel. In the instant case no charges have been filed on the subject of the interrogation, and our Sixth Amendment precedents are not applicable. Respondent can seek no help from his argument that a bright-line rule for the application of Miranda

The Rights of the Accused and the Criminal Justice System

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

is desirable. Law enforcement officers will have little difficulty putting into practice our holding that undercover agents need not give Miranda warnings to incarcerated suspects. The use of undercover agents is a recognized law enforcement technique, often employed in the prison context to detect violence against correctional officials or inmates, as well as for the purpose served here. The interests protected by Miranda are not implicated in these cases, and the warnings are not required to safeguard the constitutional rights of inmates who make voluntary statements to undercover agents. We hold that an undercover law enforcement officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking the questions that may elicit an incriminating response. The statements at issue in this case were voluntary, and there is no federal obstacle to their admissibility at trial. We now reverse and remand for proceedings not inconsistent with our opinion. It is so ordered. [The concurring opinion of JUSTICE BRENNAN is not reprinted here.] JUSTICE MARSHALL, dissenting: . . . The conditions that require the police to apprise a defendant of his constitutional rights—custodial interrogation conducted by an agent of the police— were present in this case. Because Lloyd Perkins received no Miranda warnings before he was subjected to custodial interrogation, his confession was not admissible. The Court reaches the contrary conclusion by fashioning an exception to the Miranda rule that applies whenever “an undercover law enforcement officer posing as a fellow inmate . . . ask[s] questions that may elicit an incriminating response” from an incarcerated suspect. This exception is inconsistent with the rationale supporting Miranda and allows police officers intentionally to take advantage of suspects unaware of their constitutional rights. I therefore dissent. The Court does not dispute the police officer here conducted a custodial interrogation of a criminal suspect. Perkins was incarcerated in county jail during the questioning at issue here; under these circumstances, he was in custody as that term is defined in Miranda. . . . The Solicitor General argues that Perkins was not in custody for purposes of Miranda because he was familiar with the custodial environment as a result

of being in jail for two days and previously spending time in prison. Perkins’ familiarity with confinement, however, does not transform his incarceration into some sort of noncustodial arrangement. . . . . . . Although the Court does not dispute that Perkins was interrogated, it downplays the nature of the 35-minute questioning by disingenuously referring to it as a “conversatio[n].” The officer’s narration of the “conversation” at Perkins’ trial, however, reveals that it clearly was an interrogation: [Agent:] You ever do anyone? [Perkins:] Yeah, once in East St. Louis, in a rich white neighborhood. [Informant:] I didn’t know they had any rich white neighborhoods in East St. Louis. [Perkins:] It wasn’t in East St. Louis, it was by a race track in Fairview Heights. . . . [Agent:] You did a guy in Fairview Heights? [Perkins:] Yeah in a rich white section where most of the houses look the same. [Informant:] If all the houses look the same, how did you know you had the right house? [Perkins:] Me and two guys cased the house for about a week. I knew exactly which house, the second house on the left from the corner. [Agent:] How long ago did this happen? [Perkins:] Approximately about two years ago. I got paid $5,000 for that job. [Agent:] How did it go down? [Perkins:] I walked up to . . . this guy’s house with a sawed-off shotgun under my trench coat. [Agent:] What type gun[?] [Perkins:] A .12 gauge Remmington [sic] Automatic Model 1100 sawed-off.

The police officer continued the inquiry, asking a series of questions designed to elicit specific information about the victim, the crime scene, the weapon, Perkins’ motive, and his actions during and after the shooting. This interaction was not a “conversation”; Perkins, the officer, and the informant were not equal in a free-ranging discussion, with each man offering his views on different topics. Rather, it was an interrogation: Perkins was subjected to express questioning likely to evoke an incriminating response. Because Perkins was interrogated by the police while he was in custody, Miranda required that the officer inform him of his rights. In rejecting that conclusion, the Court finds that “conversations” between undercover agents and suspects are devoid of the coercion inherent in stationhouse interrogations

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conducted by law enforcement officials who openly represent the State. Miranda was not, however, concerned solely with police coercion. It dealt with any police tactics that may operate to compel a suspect in custody to make incriminating statements without full awareness of his constitutional rights. . . . Thus, when a law enforcement agent structures a custodial interrogation so that a suspect feels compelled to reveal incriminating information, he must inform the suspect of his constitutional rights and give him an opportunity to decide whether or not to talk. The compulsion proscribed by Miranda includes deception by the police. . . . Although the Court did not find trickery by itself sufficient to constitute compulsion in Hoffa v. United States, the defendant in that case was not in custody. Perkins, however, was interrogated while incarcerated. As the Court has acknowledged in the Sixth Amendment context: “[T]he mere fact of custody imposes pressures on the accused; confinement may bring into play subtle influences that will make him particularly susceptible to the ploys of undercover Government agents.” United States v. Henry, 447 U.S. 264, 274 (1980). . . . Custody works to the State’s advantage in obtaining incriminating information. The psychological pressures inherent in confinement increase in the suspect’s anxiety, making him likely to seek relief by talking to others. . . . The inmate is thus more susceptible to efforts by undercover agents to elicit information from him. Similarly, where the suspect is incarcerated, the constant threat of physical danger peculiar to the prison environment may make him demonstrate his toughness to other inmates by recounting or inventing past violent acts. “Because the suspect’s ability to select people with whom he can confide is completely within their control, the police have a unique opportunity to exploit the suspect’s vulnerability. In short, the police can insure that if the pressures of confinement lead the suspect to confide in anyone, it will be a police agent.” . . . In this case, the police deceptively took advantage of Perkins’ psychological vulnerability by including him in a sham escape plot, a situation in which he would feel compelled to demonstrate his willingness to shoot a prison guard by revealing his past involvement in a murder. . . . Thus, the pressures unique to custody allow the police to use deceptive interrogation tactics to compel a suspect to make an incriminating statement. The compulsion is not eliminated by the suspect’s ignorance of his interrogator’s true identity. The Court therefore need not inquire past the bare facts 370

of custody and interrogation to determine whether Miranda warnings are required. The Court’s adoption of an exception to the Miranda doctrine is incompatible with the principle, consistently applied by this Court, that the doctrine should remain simple and clear. We explained the benefits of a bright line rule in Fare v. Michael C., 442 U.S. 707 (1979): “Miranda’s holding has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing the courts under what circumstances statements obtained during such interrogation are not admissible.” The Court’s holding today complicates a previously clear and straightforward doctrine. The Court opines that “[l]aw enforcement officers will have little difficulty putting into practice our holding that undercover agents need not give Miranda warnings to incarcerated suspects.” Perhaps this prediction is true with respect to fact patterns virtually identical to the one before the Court today. But the outer boundaries of the exception created by the Court are by no means clear. Would Miranda be violated, for instance, if an undercover police officer beat a confession out of a suspect, but the suspect thought the officer was another prisoner who wanted the information for his own purposes? Even if Miranda, as interpreted by the Court, would not permit such obviously compelled confessions, the ramifications of today’s opinion are still disturbing. The exception carved out of Miranda doctrine today may well result in proliferation of departmental policies to encourage police officers to conduct interrogations of confined suspects through undercover agents, thereby circumventing the need to administer Miranda warnings. Indeed, if Miranda now requires a police officer to issue warnings only in those situations in which the suspect might feel compelled “to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess,” presumably it allows custodial interrogation by an undercover officer posing as a member of the clergy or a suspect’s defense attorney. Although such abhorrent tricks would cause the suspect’s need to confide in a trusted advisor, neither would cause the suspect to “think that the listeners have official power over him.” The Court’s adoption of the “undercover agent” exception to the Miranda rule thus is necessarily also the adoption of a substantial loophole in our jurisprudence protecting suspects’ Fifth Amendment rights. I dissent.

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

VERMONT V. BRILLON 556 U.S. ___(2009) JUSTICE GINSBURG delivered the opinion of the Court, in which CHIEF JUSTICE ROBERTS and JUSTICES SCALIA, KENNEDY, SOUTER, THOMAS, and ALITO joined. JUSTICE BREYER filed a dissenting opinion, in which JUSTICE STEVENS joined. JUSTICE GINSBURG delivered the opinion of the Court. This case concerns the Sixth Amendment guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial.” Michael Brillon, defendant below, respondent here, was arrested in July 2001 on felony domestic assault and habitual offender charges. Nearly three years later, in June 2004, he was tried by jury, found guilty as charged, and sentenced to twelve to twenty years in prison. The Vermont Supreme Court vacated Brillon’s conviction and held that the charges against him must be dismissed because he had been denied his right to a speedy trial. During the time between Brillon’s arrest and his trial, at least six different attorneys were appointed to represent him. Brillon “fired” the first, who served from July 2001 to February 2002. His third lawyer, who served from March 2002 until June 2002, was allowed to withdraw when he reported that Brillon had threatened his life. The Vermont Supreme Court charged against Brillon the delays associated with those periods, but charged against the State periods in which assigned counsel failed “to move the case forward.” 955 A. 2d 1108. We hold that the Vermont Supreme Court erred in ranking assigned counsel essentially as state actors in the criminal justice system. Assigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are ordinarily attributable to the defendants they represent. For a total of some six months of the time that elapsed between Brillon’s arrest and his trial, Brillon lacked an attorney. The State may be charged with those months if the gaps resulted from the trial court’s failure to appoint replacement counsel with dispatch. Similarly, the State may bear responsibility if

there is “a breakdown in the public defender system.” . . . But, as the Vermont Supreme Court acknowledged, . . . the record does not establish any such institutional breakdown. On July 27, 2001, Michael Brillon was arrested after striking his girlfriend. Three days later he was arraigned in state court in Bennington County, Vermont and charged with felony domestic assault. His alleged status as a habitual offender exposed him to a potential life sentence. The court ordered him held without bail. Richard Ammons, from the county public defender’s office, was assigned on the day of arraignment as Brillon’s first counsel.6 In October, Ammons filed a motion to recuse the trial judge. It was denied the next month and trial was scheduled for February 2002. In mid-January, Ammons moved for a continuance, but the State objected, and the trial court denied the motion. On February 22, four days before the jury draw, Ammons again moved for a continuance, citing his heavy workload and the need for further investigation. Ammons acknowledged that any delay would not count (presumably against the State) for speedy-trial purposes. The State opposed the motion,7 and at the conclusion of a hearing, the trial court denied it. Brillon, participating in the proceedings through interactive television, then announced: “You’re fired, Rick.” . . . Three days later, the trial court—over the State’s objection—granted Ammons’ motion to withdraw as counsel, citing Brillon’s termination of Ammons 6 Vermont’s Defender General has “the primary responsibility for providing needy persons with legal services.” Vt. Stat. Ann., Tit. 13, §5253(a) (1998). These services may be provided “personally, through public defenders,” or through contract attorneys. Ibid. 7 The State expressed its concern that the continuance request was “just part and parcel of an effort by the defense to have the Court not hear this matter.” App. 180. Under Vermont procedures, the judge presiding over the trial was scheduled to “rotate” out of the county where Brillon’s case was pending in March 2002. See id., ¶6, at 109.Thus, a continuance past March would have caused a different judge to preside over Brillon’s trial, despite the denial of his motion to recuse the initial judge. Ammons requested a continuance until April.

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and Ammons’ statement that he could no longer zealously represent Brillon. 8 The trial court warned Brillon that further delay would occur while a new attorney became familiar with the case. The same day, the trial court appointed a second attorney, but he immediately withdrew based on a conflict. On March 1, 2002, Gerard Altieri was assigned as Brillon’s third counsel. On May 20, Brillon filed a motion to dismiss Altieri for, among other reasons, failure to file motions, “[v]irtually no communication whatsoever,” and his lack of diligence “because of heavy case load.” Id., ¶¶2, 5, at 113–114. At a June 11 hearing, Altieri denied several of Brillon’s allegations, noted his disagreement with Brillon’s trial strategy,9 and insisted he had plenty of time to prepare. The State opposed Brillon’s motion as well. Near the end of the hearing, however, Altieri moved to withdraw on the ground that Brillon had threatened his life during a break in the proceedings. The trial court granted Brillon’s motion to dismiss Altieri, but warned Brillon that “this is somewhat of a dubious victory in your case because it simply prolongs the time that you will remain in jail until we can bring this matter to trial.” . . . That same day, the trial court appointed Paul Donaldson as Brillon’s fourth counsel. At an August 5 status conference, Donaldson requested additional time to conduct discovery in light of his caseload. A few weeks later, Brillon sent a letter to the court complaining about Donaldson’s unresponsiveness and lack of competence. Two months later, Brillon filed a motion to dismiss Donaldson—similar to his motion to dismiss Altieri—for failure to file motions and “virtually no communication whatsoever.” . . . At a November 26 hearing, Donaldson reported that his contract with the Defender General’s office had expired in June and that he had been in discussions to have Brillon’s case reassigned. The trial court released Donaldson from the case “[w]ithout making any findings regarding the adequacy of [Donaldson]’s representation.” . . . 8 Ammons also cited as cause to withdraw, “certain irreconcilable differences in preferred approach between Mr. Brillon and counsel as to trial strategy, as well as other legitimate legal decisions.” Id., ¶2, at104. 9 Specifically, Altieri appeared reluctant to follow Brillon’s tactic that he “bring in a lot of people” at trial, “some of them young kids and relatives . . . in an attempt by Mr. Brillon—this is his theory—I don’t want to use the words trash, [to] impeach [the victim].” Id., at 216–217.

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Brillon’s fifth counsel, David Sleigh, was not assigned until January 15, 2003; Brillon was without counsel during the intervening two months. On February 25, Sleigh sought extensions of various discovery deadlines, noting that he had been in trial out of town. . . . On April 10, however, Sleigh withdrew from the case, based on “modifications to [his] firm’s contract with the Defender General.” . . . Brillon was then without counsel for the next four months. On June 20, the Defender General’s office notified the court that it had received “funding from the legislature” and would hire a new special felony unit defender for Brillon. . . . On August 1, Kathleen Moore was appointed as Brillon’s sixth counsel. The trial court set November 7 as the deadline for motions, but granted several extensions in accord with the parties’ stipulation. On February 23, 2004, Moore filed a motion to dismiss for lack of a speedy trial. The trial court denied the motion on April 19. The case finally went to trial on June 14, 2004. Brillon was found guilty and sentenced to twelve to twenty years in prison. The trial court denied a posttrial motion to dismiss for want of a speedy trial, concluding that the delay in Brillon’s trial was “in large part the result of his own actions” and that Brillon had “failed to demonstrate prejudice as a result of [the] pre-trial delay.” . . . On appeal, the Vermont Supreme Court held 3 to 2 that Brillon’s conviction must be vacated and the charges dismissed for violation of his Sixth Amendment right to a speedy trial. Citing the balancing test of Barker v. Wingo, 407 U.S. 514 (1972), the majority concluded that all four of the factors described in Barker—“[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant”—weighed against the State. . . . The court first found that the three-year delay in bringing Brillon to trial was “extreme” and weighed heavily in his favor. . . . In assessing the reasons for that delay, the Vermont Supreme Court separately considered the period of each counsel’s representation. It acknowledged that the first year, when Brillon was represented by Ammons and Altieri, should not count against the State. . . . But the court counted much of the remaining two years against the State for delays “caused, for the most part, by the failure of several of defendant’s assigned counsel, over an inordinate period of time, to move his case forward.” . . . As for the third and fourth factors, the court found that Brillon “repeatedly and adamantly demanded to be tried,” . . . and that his “lengthy

The Rights of the Accused and the Criminal Justice System

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

pretrial incarceration” was prejudicial, despite his insubstantial assertions of evidentiary prejudice. . . . The dissent strongly disputed the majority’s characterization of the periods of delay. It concluded that “the lion’s share of delay in this case is attributable to defendant, and not to the state.” Id., at 1127. But for Brillon’s “repeated maneuvers to dismiss his lawyers and avoid trial through the first eleven months following arraignment,” the dissent explained, “the difficulty in finding additional counsel would not have arisen.” . . . We granted certiorari, 554 U.S. ___ (2008),10 and now reverse the judgment of the Vermont Supreme Court. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial.” The speedy-trial right is “amorphous,” “slippery,” and “necessarily relative.” Barker, 407 U.S., at 522 (quoting Beavers v. Haubert, 198 U.S. 77, 87 (1905)). It is “consistent with delays and depend[ent] upon circumstances.” . . . In Barker, the Court refused to “quantif[y]” the right “into a specified number of days or months” or to hinge the right on a defendant’s explicit request for a speedy trial. . . . Rejecting such “inflexible approaches,” Barker established a “balancing test, in which the conduct of both the prosecution and the defendant are weighed.” . . . “[S]ome of the factors” that courts should weigh include “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Ibid. Primarily at issue here is the reason for the delay in Brillon’s trial. Barker instructs that “different weights should be assigned to different reasons,” . . . and in applying Barker, we have asked “whether the government or the criminal defendant is more to blame for th[e] delay.” . . . Deliberate delay “to hamper the defense” weighs heavily against the prosecution. . . . “[M]ore neutral reason[s] such as negligence or overcrowded courts” weigh less heavily “but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with 10 Vermont’s Constitution contains a speedy-trial clause which reads: “[I]n all prosecutions for criminal offenses, a person hath a right to . . . a speedy public trial by an impartial jury . . .” Vt. Const., Ch. I, Art. 10. Notably, the Vermont Supreme Court made no ruling under the State’s own prescription, but instead relied solely on the Federal Constitution. Because it did so, our review authority was properly invoked and exercised. See Oregon v. Hass, 420 U.S. 714, 719–720 (1975); Ginsburg, Book Review, 92 Harv. L. Rev. 340, 343–344 (1978).

the government rather than with the defendant.” . . . In contrast, delay caused by the defense weighs against the defendant: “[I]f delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine.” . . . That rule accords with the reality that defendants may have incentives to employ delay as a “defense tactic”: delay may “work to the accused’s advantage” because “witnesses may become unavailable or their memories may fade” over time. Barker, 407 U.S., at 521. Because “the attorney is the [defendant’s] agent when acting, or failing to act, in furtherance of the litigation,” delay caused by the defendant’s counsel is also charged against the defendant. Coleman v. Thompson, 501 U.S. 722, 753 (1991).11 The same principle applies whether counsel is privately retained or publicly assigned, for “[o]nce a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program.” Polk County v. Dodson, 454 U.S. 312, 318 (1981) (internal quotation marks omitted). “Except for the source of payment,” the relationship between a defendant and the public defender representing him is “identical to that existing between any other lawyer and client.” Ibid. Unlike a prosecutor or the court, assigned counsel ordinarily is not considered a state actor.12 Barker’s formulation “necessarily compels courts to approach speedy trial cases on an ad hoc basis,” . . . , and the balance arrived at in close cases ordinarily would not prompt this Court’s review. But the Vermont Supreme Court made a fundamental error in its application of Barker that calls for this Court’s correction. The Vermont Supreme Court erred in attributing to the State delays caused by “the failure of several assigned counsel . . . to move his case forward,” 955 A. 2d, at 1122, and in failing adequately to take into account the role of Brillon’s disruptive behavior in the overall balance. 11

Several States’ speedy-trial statutes expressly exclude from computation of the time limit continuances and delays caused by the defendant or defense counsel. See, e.g., Cal. Penal Code Ann. §1381 (West2000); Ill. Comp. Stat., ch. 725, §5/103–5(f) (2006); N. Y. Crim. Proc. Law Ann. §30.30(4) (West Supp. 2009); Alaska Rule Crim. Proc. 45(d)(1993); Ark. Rule Crim. Proc. 28.3 (2006); Ind. Rule Crim. Proc. 4(A)(2009). See also Brief for National Governors Association et al. as Amici Curiae 17–18, and n. 12. 12 A public defender may act for the State, however, “when making hiring and firing decisions on behalf of the State,” and “while performing certain administrative and possibly investigative functions.” Polk County v. Dodson, 454 U.S. 312, 325 (1981).

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The Vermont Supreme Court’s opinion is driven by the notion that delay caused by assigned counsel’s “inaction” or failure “to move [the] case forward” is chargeable to the State, not the defendant. . . . In this case, that court concluded, “a significant portion of the delay in bringing defendant to trial must be attributed to the state, even though most of the delay was caused by the inability or unwillingness of assigned counsel to move the case forward.” . . . We disagree. An assigned counsel’s failure “to move the case forward” does not warrant attribution of delay to the State. Contrary to the Vermont Supreme Court’s analysis, assigned counsel generally are not state actors for purposes of a speedy-trial claim. While the Vermont Defender General’s office is indeed “part of the criminal justice system,” . . . , the individual counsel here acted only on behalf of Brillon, not the State. . . . (rejecting the view that public defenders act under color of state law because they are paid by the State). . . . Most of the delay that the Vermont Supreme Court attributed to the State must therefore be attributed to Brillon as delays caused by his counsel. During those periods, Brillon was represented by Donaldson, Sleigh, and Moore, all of whom requested extensions and continuances. Their “inability or unwillingness . . . to move the case forward,” . . ., may not be attributed to the State simply because they are assigned counsel. A contrary conclusion could encourage appointed counsel to delay proceedings by seeking unreasonable continuances, hoping thereby to obtain a dismissal of the indictment on speedy-trial grounds. Trial courts might well respond by viewing continuance requests made by appointed counsel with skepticism, concerned that even an apparently genuine need for more time is in reality a delay tactic. Yet the same considerations would not attend a privately retained counsel’s requests for time extensions. We see no justification for treating defendants’ speedy trial claims differently based on whether their counsel is privately retained or publicly assigned. In addition to making assigned counsel’s “failure . . . to move [the] case forward” the touchstone of its speedy-trial inquiry, the Vermont Supreme Court further erred by treating the period of each counsel’s representation discretely. The factors identified in Barker “have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.” . . . Yet the Vermont Supreme Court failed appropriately to take into account Brillon’s role during the first year of delay in “the chain of events that started all this.” . . . Brillon sought to dismiss Ammons on the eve of trial. 374

His strident, aggressive behavior with regard to Altieri, whom he threatened, further impeded prompt trial and likely made it more difficult for the Defender General’s office to find replacement counsel. Even after the trial court’s warning regarding delay, Brillon sought dismissal of yet another attorney, Donaldson. Just as a State’s “deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the [State],” Barker, 407 U.S., at 531, so too should a defendant’s deliberate attempt to disrupt proceedings be weighted heavily against the defendant. Absent Brillon’s deliberate efforts to force the withdrawal of Ammons and Altieri, no speedy-trial issue would have arisen. The effect of these earlier events should have been factored into the court’s analysis of subsequent delay. The general rule attributing to the defendant delay caused by assigned counsel is not absolute. Delay resulting from a systemic “breakdown in the public defender system,” . . . could be charged to the State. Cf. Polk County, 454 U.S., at 324–325. But the Vermont Supreme Court made no determination, and nothing in the record suggests, that institutional problems caused any part of the delay in Brillon’s case. In sum, delays caused by defense counsel are properly attributed to the defendant, even where counsel is assigned. “[A]ny inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case,” Barker, 407 U.S., at 522, and the record in this case does not show that Brillon was denied his constitutional right to a speedy trial. ... For the reasons stated, the judgment of the Vermont Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE BREYER, with whom JUSTICE STEVENS joins, dissenting. We granted certiorari in this case to decide whether delays caused “solely” by a public defender can be “charged against the State pursuant to the test in Barker v. Wingo, 407 U.S. 514 (1972).” . . . The case, in my view, does not squarely present that question, for the Vermont Supreme Court, when it found Michael Brillon’s trial unconstitutionally delayed, did not count such delays against the State. The court’s opinion for the most part makes that fact

The Rights of the Accused and the Criminal Justice System

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

clear; at worst some passages are ambiguous. Given these circumstances, I would dismiss the writ of certiorari as improvidently granted. The relevant time period consists of slightly less than three years, stretching from July 2001, when Brillon was indicted, until mid-June 2004, when he was convicted and sentenced. In light of Brillon’s improper behavior, . . ., the Vermont Supreme Court did not count months 1 through 12 (mid-July 2001 through mid-June 2002) against the State. Noting the objection that Brillon had sought to “intentionally sabotag[e] the criminal proceedings against him,” the Vermont Supreme Court was explicit that this time period “do[es] not count . . . against the [S]tate.” . . . The Vermont Supreme Court did count months 13 through 17 (mid-June 2002 through November 2002) against the State. It did so under circumstances where (1) Brillon’s counsel, Paul Donaldson, revealed that his contract with the defender general’s office had expired in June 2002— shortly after (perhaps before!) he took over as Brillon’s counsel, . . . , (2) he stated that this case was “basically the beginning of [his] departure from the contract,” . . . , and (3) he made no filings, missed several deadlines, did “little or nothing” to “move the case forward,” and made only one brief appearance at a status conference in mid-August. . . . I believe it fairer to characterize this period, not as a period in which “assigned counsel” failed to move the case forward, . . . but as a period in which Brillon, in practice, had no assigned counsel. And, given that the State conceded its responsibility for delays caused by another defender who resigned for “contractual reasons,” . . . it is hardly unreasonable that the Vermont Supreme Court counted this period of delay against the State. The Vermont Supreme Court also counted months 18 through 25 (the end of November 2002 through July 2003) against the State. It did so because the State conceded in its brief that this period of delay “cannot be attributed to the defendant.” . . . This concession is not surprising in light of the fact that during much of this period, Brillon was represented by David Sleigh, a contract attorney, who

during the course of his representation filed nothing on Brillon’s behalf except a single motion seeking to extend discovery. The record reflects no other actions by Sleigh other than a letter sent to Brillon informing him that “[a]s a result of modifications to our firm’s contract with the Defender General, we will not be representing you in your pending case.” . . . Brillon was left without counsel for a period of nearly six months. The State explained in conceding its responsibility for this delay that Sleigh had been forced to withdraw “for contractual reasons,” and that the defender general’s office had been unable to replace him “for funding reasons.” . . . Finally, the Vermont Supreme Court counted against the State the last 11 months—from August 2003 to mid-June 2004. But it is impossible to conclude from the opinion whether it did so because it held the State responsible for the defender’s failure to “move the case forward,” or for other reasons having nothing to do with counsel, namely the judge’s unavailability, . . . or the fact that “the [case] files were incomplete” and “additional documents were needed from the State,” . . . Treating the opinion as charging the State on the basis of the defender’s conduct is made more difficult by the fact that Brillon did not argue below that Kathleen Moore, his defender during this period, caused any delays. . . . In sum, I can find no convincing reason to believe the Vermont Supreme Court made the error of constitutional law that the majority attributes to it. Rather than read ambiguities in its opinion against it, thereby assuming the presence of the error the Court finds, I would dismiss the writ as improvidently granted. As a majority nonetheless wishes to decide the case, I would note that the Vermont Supreme Court has considerable authority to supervise the appointment of public defenders. . . . It consequently warrants leeway when it decides whether a particular failing is properly attributed to assigned counsel or instead to the failure of the defender general’s office properly to assign counsel. I do not believe the Vermont Supreme Court exceeded that leeway here. And I would affirm its decision. With respect, I dissent.

SELECTED REFERENCES Allen, Ronald J. “The Misguided Defenses of Miranda v. Arizona,” Ohio State Journal of Criminal Law, Vol. 5 (2007), 205.

Backus, Mary Sue, and Paul Marcus. The Right to Counsel in Criminal Law Cases: A National Crisis, 27 Hastings, L. J., 1031 (2006).

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Engler, Russell. “Civil Gideon: Creating a Constitutional Right to Counsel in the Civil Context: Shaping a Context-Based Civil Gideon from the Dynamics of Social Change,” Temple Political and Civil Rights Law Review, Vol. 15 (2006), 697. Feeney, Floyd, and Patrick G. Jackson. “Public Defenders, Assigned Counsel, Retained Counsel: Does the Type of Criminal Defense Counsel Matter?” 22 Rutgers Law Journal 361 (Winter 1991). Garcia, Alfredo. “The Right to Counsel Under Siege: Requiem for an Endangered Right?, 29 American Criminal Law Review 35 (1991). Hazel, Thomas. “Toward a Uniform Statutory Standard for Effective Assistance of Counsel After Strickland,” 17 Loyola University (Chicago) Law Journal 200 (Winter 1983). Holland, Brooks. “A Relational Sixth Amendment During Interrogation,” 99 The Journal of Criminal Law and Criminology 381 (2009). Hornung, Amanda Myra. Note, The Paper Tiger of Gideon v Wainwright and the Evisceration of the Right to Legal Counsel for Indigent Defendants, 3 Cardozo Public Law Policy and Ethics Journal 495 (2005). Kassin, Saul M. “Confession Evidence: Commonsense Myths and Misconceptions,” Criminal Justice and Behavior, Vol. 35, No. 10 (2008), 1309–1322. Leo, Richard A. “The Impact of Miranda Revisited,” 86 The Journal of Criminal Law and Criminology 621 (Spring 1996). Leo, Richard A. Police Interrogation and American Justice. Cambridge, MA: Harvard University Press, 2008. Lerman, Amy E. “The Rights of the Accused,” in Persily, Nathaniel, Citrin, Jack, & Egan, Patrick J., Public Opinion and Constitutional Controversy. New York: Oxford University Press, 2008. Lewis, Anthony. Gideon’s Trumpet. New York: Vintage Books, 1989.

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Marcus, Paul. “Why the United States Supreme Court Got Some (But Not a Lot) of the Sixth Amendment Right to Counsel Analysis Right,” St. Thomas Law Review, Vol. 21, No. 2 (2008), 142–190. Metzger, Pamela R. “Beyond the Bright Line: A Contemporary Right-to-Counsel Doctrine, 97 Northwestern Law Review 1635 (2003). Miller, Jeremy M. “Law and Disorder: How the Court’s Hasty Decision in Miranda Leaves a Tangled Mess,” Chapman Law Review, Vol. 10, No. 3 (2007), 713. Mushlin, Michael B. “Gideon v. Wainwright: What Does the Right to Counsel Guarantee Today?” 10 Pace Law Review 327 (Spring 1990). Ogletree, Charles. “Are Confessions Really Good for the Soul? A Proposal to Mirandize Miranda,” 100 Harvard Law Review 1826 (May 1987). Payne, Brian K., Time, Victoria, and Gainey, Randy R. “Police Chiefs’ and Students’ Attitudes about the Miranda Warnings,” Journal of Criminal Justice, Vol. 34, No. 6 (2006), 653–660. Penrose, Meg. “Miranda, Please Report to the Principal’s Office,” Fordham Urban Law Journal, Vol. 33 (2006), 775. Ryan, Meaghan Elizabeth. “Do You Have the Right to Remain Silent?: The Substantive Use of Pre-Miranda Silence,” Alabama Law Review, Vol. 58 (2007), 903. Simon, David A. “Equal Before the Law: Toward a Restoration of Gideon’s Promise,” Harvard Civil Rights-Civil Liberties Law Review, Vol. 43 (2008), 581. Strauss, Marcy S. “The Sounds of Silence: Reconsidering the Right to Remain Silent under Miranda,” William and Mary Bill of Rights Journal, Vol. 17 (2009). Symposium, “Miranda After Dickerson: The Future of Confession Law,” 99 Michigan Law Review 879 (2001). Weaver, Russell L. “Miranda at Forty,” San Diego Law Review, Vol. 44 (2007), 439.

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

CHAPTER 10

OTHER CONSTITUTIONAL GUARANTEES IN THE CRIMINAL PROCESS: TRIALS, SENTENCING, AND INCARCERATION

FEATURED CASES Batson v. Kentucky; Snyder v. Louisiana; Gregg v. Georgia; McCleskey v. Kemp; Payne v. Tennessee; Hudson v. McMillian; In re Gault

TRIALS, JURY SELECTION, AND SENTENCING PROBLEMS FEATURED CASES

Batson v. Kentucky; Snyder v. Louisiana During the “criminal law explosion” of the 1960s, the Supreme Court handed down a number of decisions on the scope of the fair trial guarantees that were proclaimed in the Sixth Amendment.1 In several cases, guarantees that had previously been construed to limit only the federal government were made binding on the states. The historic right to a trial by jury in criminal cases was made obligatory on the states in Duncan v. Louisiana (391 U.S. 145, 1968). (See Chapter 2.) The Duncan case involved a conviction for simple battery that, under Louisiana law, carries a maximum penalty of a two-year jail term and/or a fine of not more than $300. The defendant was sentenced to only sixty days in jail and was fined $150. However, because the trial court had denied his request for a jury trial, the Supreme Court held that the statutory penalty was heavy enough to classify the offense as “serious.” Hence, the Court 1 Often the public dimension of the criminal trial guarantees collides with the interest of the accused in obtaining a fair trial.

concluded that the Fourteenth Amendment entitled the accused to the jury trial guarantee that was proclaimed in the Sixth Amendment. (Cf. Baldwin v. New York, 399 U.S. 66, 1970, reaffirming Duncan, in which the Court examined extensively the difference between “serious” and “petty” offenses.) Duncan did not fasten the twelve-member jury requirement on the states. In Williams v. Florida (399 U.S. 78, 1970), the Court sustained a state statutory provision for a six-person jury, holding that the essential purposes which are served by a jury can be accomplished by a smaller number of jurors. However, the Court felt that a jury of fewer than six members “threatens substantially” the trial by jury guarantee and rejected a state provision for a fiveperson jury for trials of misdemeanors in Ballew v. Georgia (435 U.S. 223, 1978). A unique procedure that was designed to lessen the demands of the jury trial was considered and approved by the Court in Ludwig v. Massachusetts (427 U.S. 618, 1976). In that case, a statutory procedure permitting a “two-tier” criminal trial system was at issue. Initially, if defendants plead not guilty, they can only get a nonjury trial. If a guilty verdict results from that trial, the accused is then entitled to a jury trial. Defendants also can get a jury trial by “admitting sufficient finding of fact” in the first-tier 377

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proceeding if the judge enters a judgment of conviction. If defendants make a guilty plea initially, they are entitled to a second-tier proceeding to determine their sentence. Justice Blackmun’s majority opinion emphasized that the jury trial is not impaired by this procedure because the accused is not “unduly burdened” by moving to the “second-tier” (the jury trial). Nor does the procedure, argued Blackmun, constitute double jeopardy, for that constitutional guarantee does not “prohibit a [s]tate from affording a defendant two opportunities to avoid conviction and secure an acquittal.” Justices Brennan, Stewart, and Marshall joined Justice Stevens in dissent. They complained of the burdens imposed on the defendant by a second trial, such as stale witnesses and lawyers, unavailability of witnesses, and improper influences of the first trial on the second, and they condemned what they considered to be the real aim of the procedure—an attempt to discourage jury trials by placing a burden on those who opt for them. In other dimensions of the jury trial guarantee, the Court held the following: • •

•

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Persons may not be systematically excluded from juries because of race (Norris v. Alabama, 294 U.S. 587, 1935). The Fourteenth Amendment supports the right of a black defendant to have prospective jurors questioned on their possible racial prejudice, particularly in the context of racial issue cases (Ham v. South Carolina, 409 U.S. 524, 1973). The nature of the questions asked is left to the discretion of the trial judge. Note, however, Ristaino v. Ross (424 U.S. 589, 1976), in which the Court limited significantly the scope of Ham to cases where “racial issues [are] inextricably bound up with the conduct of the trial,” giving trial judges discretion to pose questions directed specifically at racial prejudice. Note also that Ham was reaffirmed in Turner v. Murray (476 U.S. 28, 1986), as the Court enunciated a rule that entitles a defendant in an interracial capital crime “to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias.” However, a majority could not be found to determine whether Turner should be construed as negating the Ristaino limitation of Ham). States may not exempt women, as an identifiable group, from jury duty because it would negate the “fair cross-section of the community” requirement, as noted in Taylor v. Louisiana (419 U.S. 522, 1975) and Duren v. Missouri (439 U.S. 357, 1979).

•

States are “precluded from systematic exclusion” of identifiable racial groups (blacks) from grand juries that indict and petit juries that convict white persons (Peters v. Kiff, 407 U.S. 493, 1971).

The question of racial exclusion in the jury selection process that were noted in Norris, and that were recognized initially in Strauder v. West Virginia (100 U.S. 303, 1880) over a century earlier, continues to produce cases that require the Court to determine the scope and nature of the equal protection guarantee for black Americans. One of the most troublesome of these kinds of questions involves the widely used prosecutorial practice of excluding all blacks from jury venires (panels of prospective jurors) in criminal cases where blacks are defendants through use of the peremptory challenge. Initially, the Court’s position, enunciated in Swain v. Alabama (380 U.S. 202, 1965), recognized the peremptory as a valid prosecutorial practice so long as it was not used purposely to exclude blacks from jury service. Because striking all blacks from particular jury venires does not in and of itself constitute a constitutional violation, defendants raising such a claim were required to shoulder the burden of proof. As a result, Swain was widely read as insulating the peremptory challenge. But some twenty years later, in Batson v. Kentucky (476 U.S. 79, 1986), the Court concluded that the prosecution must shoulder the burden of justifying its use when a black defendant establishes a prima facie case of racial discrimination. While many people applauded the decision in Batson as a realistic view of a “shameful” racist practice, some thought, as did Justice Marshall in his concurrence, that racial discrimination in this criminal context will not be eliminated until the practice is abolished completely. In a subsequent peremptory challenge action, the Rehnquist Court refused to construe Batson as requiring the rejection of a New York prosecutor’s use of peremptories to exclude prospective Latino jurors from the jury for a trial of Latino defendants. In Hernandez v. New York (500 U.S. 352, 1991), Justice Anthony Kennedy, in announcing the Court’s judgment, emphasized the state court’s finding of the prosecutor’s “race-neutral explanation” for excluding the Latino jurors. The lower courts accepted the prosecutor’s explanation that he thought the potential Latino jurors “might have difficulty in accepting the translator’s rendition of Spanish-language testimony” as valid and without discriminatory intent. Hence Kennedy concluded that the ethnic exclusion in that context did not abridge the Batson requirements.

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In an interesting twist of the peremptory-exclusion practice, a white defendant challenged the prosecutor’s action striking blacks from the venire in Powers v. Ohio (499 U.S. 400, 1991). On the key issue of the white defendant’s standing to raise the issue of exclusion of blacks from the trial jury, Justice Kennedy held for the seven-to-two majority that the equal protection clause supports a defendant’s challenge to race-based peremptory challenges, even though the defendant and the challenged juror are of different races. Underscoring the Court’s long-standing position that “racial discrimination in the jury selection process cannot be tolerated,” the justice concluded that a state may not follow neutral, nonracial principles in the development of jury lists and then resort to racial exclusion practices (through peremptory challenges) in the final selection stages. (Cf. Holland v. Illinois, 493 U.S. 474, 1990, in which Justice Scalia held for a five-to-four majority that whereas a white defendant could challenge on “fair cross-section of the community” grounds a prosecutor’s peremptory exclusion of all blacks from the jury venire, that Sixth Amendment requirement does not prevent either side from using peremptories to exclude cognizable racial groups from the final jury selected, “as long as the venire itself is drawn from [a] fair cross-section of the community.” Scalia emphasized that the Sixth Amendment’s imperative is a trial by an impartial jury, not a representative one.) Two years later in Georgia v. McCollum (505 U.S. 42, 1992), the Court made it clear that when criminal defendants exercise peremptory challenges, they must carry the same race-neutral explanation burden in defending against the charge of purposeful racial juror elimination through use of peremptories. McCollum is particularly significant because the white defendant, not the prosecutor, was attempting to eliminate all blacks from his trial jury because the alleged victims were black. The Rehnquist Court examined the peremptory challenge practice in the context of civil litigation in Edmondson v. Leesville Concrete Co. (500 U.S. 614, 1991), in which a black worker was injured on the job site and sued Leesville for negligence. At trial, the defendant company used two of its permitted peremptory challenges to remove black prospective jurors. The plaintiff’s subsequent request that the defendant should be required to meet the race-neutral explanation requirement of Batson was denied by the lower courts, and in a six-to-three decision the

Supreme Court reversed. The critical part of the decision was the Court’s holding that a private defendant’s use of the peremptory challenge jury exclusion technique was subject to equal protection analysis. Justice Kennedy reasoned that because the peremptory process had its source in state authority, the private litigant, when using it, takes on the character of a “government actor” who is subject to the constraints of the equal protection clause. In Snyder v. Louisiana, decided in 2008, it is clear that the Court continues to monitor closely, and strike down when warranted, peremptory challenges where racial bias may be seen or otherwise perceived as unconscious motivation for the exclusion. The prosecutor in Snyder used his peremptory challenges to strike all five blacks from the jury pool of eightyfive potential jurors. In addition, the prosecutor told the jury that they should not allow the defendant, Snyder, “to [get] away with murder” as O.J. Simpson did. Subsequently, an all-white jury found Snyder— an African American—guilty of first-degree murder and recommended the death penalty. Though Snyder’s counsel argued that such strikes violated Batson, the trial court judge accepted the prosecutor’s race-neutral explanations as justification for the exclusion. Snyder’s appeal charging the trial court as violating Batson was denied by the Louisiana state supreme court. But subsequently, in Snyder, the U.S. Supreme Court reversed and remanded the case on the basis of Batson. The Snyder case is reprinted in this chapter. On related grounds, recall that earlier the Court struck down a long-standing practice employed in the trials of capital punishment cases in Witherspoon v. Illinois (391 U.S. 510, 1968). That case involved an appeal challenging the practice of excusing all prospective jurors who indicate that they have conscientious scruples against capital punishment. It held that such a procedure results in the selection of a “prosecution-prone” jury that is more likely than the average jury to find the defendant guilty and to impose the death penalty. In an opinion for the sixto-three majority, Justice Potter Stewart contended that “a state may not entrust the determination of whether a man should live or die to a tribunal organized to return a verdict of death.” Hence, the Court concluded that the only persons called for the venire who were subject to exclusion by the “death penalty qualification” were those who indicated that their views on capital punishment would impair their ability to make an impartial assessment of a defendant’s

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culpability or that they “would automatically vote against the imposition of capital punishment.” The Court explicated further the Witherspoon principles in several cases during the next decade: Boulden v. Holman (394 U.S. 478, 1969), Maxwell v. Bishop (398 U.S. 262, 1970), and Lockett v. Ohio (438 U.S. 586, 1978). The position reiterated in those holdings was essentially the one that the Court had expressed in Witherspoon: Exclusion of a venire member because of expressed “general objections” to the death penalty and “conscientious and religious scruples against its infliction” can only be sustained upon a finding that the venire member has made it “unmistakably clear” that he or she would “automatically” vote against the death penalty, irrespective of the evidence and the law. In probably its most definitive statement on the Witherspoon standard, the Court held in Adams v. Texas (448 U.S. 38, 1980) that state statutes may not authorize exclusion on broader grounds than the ones permitted by Witherspoon. In that case, the justices found defective the statutory oath that is required of jurors (that the mandatory penalty of death will not affect their deliberations on any issue of fact) because it, in effect, permitted exclusion of potential jurors “only because they were unable positively to state whether or not their deliberations would in any way be ‘affected.’” Justice White noted for the Court that such a test is defective because it could exclude those persons who simply indicate “that they would be ‘affected’ by the possibility of the death penalty” but who apparently meant to convey that because of “the potential consequences of their decision,” the deliberations would require a more demanding emotional involvement. White concluded that the appropriate test that follows from the case is that “a juror may not be challenged for cause based on his views about capital punishment unless those views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” The test was reaffirmed in 1985 in Wainwright v. Witt (469 U.S. 412). The Rehnquist Court, however, indicated a more restrictive construction of Witherspoon one year later in Lockhart v. McCree (476 U.S. 162), when it overturned a ruling of the Court of Appeals for the Eighth Circuit that had held that the removal for cause of “Witherspoon excludables” abridged the “fair cross-section of the community” requirement of the Sixth Amendment jury trial provision. Chief Justice Rehnquist, who spoke for the six-to-three majority, argued that the 380

application of the so-called “death qualification” test in the jury selection process is no more than the assurance that an impartial jury will be composed of jurors “who will conscientiously apply the law and find the facts.” He contended further that a proper reading of Witherspoon does not require the exclusion from capital jury service of all persons who oppose the death penalty; rather, exclusion is restricted to those who “conscientiously” indicate that they cannot and will not follow the law in such cases. In further clarification, he asserted that the “fair cross-section of the community” principle applied to jury panels and venires and not to petit juries, contrary to the broad application urged by McCree. In further elaboration of the Witherspoon doctrine, the Rehnquist Court considered challenges to the selection of jurors who would automatically vote to impose the death penalty on a defendant convicted of a capital offense in Morgan v. Illinois (504 U.S. 719, 1992). In a six-to-three decision, Justice Byron White, speaking for the majority, held that a defendant facing the death penalty may challenge for cause a prospective juror who would automatically vote to impose the death penalty in every case. Just as a juror who is unalterably opposed to the imposition of the death penalty must be excluded because he or she cannot conscientiously fulfill the oath to follow the law and the instructions to the jury pursuant thereto, one who would automatically vote to impose the death penalty should be excluded for the same reason. Such a juror, he emphasized, would lack the qualities of impartiality and indifference that are required by due process. Furthermore, White noted, jurors who would automatically vote to impose the death penalty would not “in good faith . . . consider evidence of aggravating and mitigating circumstances” as may be required by law and included in jury instructions. In further expansion of our Sixth Amendment jurisprudence, the Court has approved state policies that permit less than unanimous jury verdicts in noncapital criminal prosecutions despite the vigorous contention of some people that such policies negate the “proof beyond a reasonable doubt” standard to which most jurisdictions are committed. (See Apodaca v. Oregon, 406 U.S. 404; and Johnson v. Louisiana, 406 U.S. 536, 1972.) The speedy trial guarantee was also made obligatory on the states in Klopfer v. North Carolina

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(386 U.S. 213, 1967) at the height of the so-called criminal law revolution of the Warren Court. In assessing the efficacy of claims asserting the protection of the guarantee, the Court, in Barker v. Wingo (407 U.S. 514, 1972), adopted a flexible approach, indicating that trial courts should consider factors such as (1) the length of the delay, (2) the reasons for the delay, (3) the defendant’s assertion of the guarantee, and (4) prejudice to the defendant. Upon a finding of a violation of the guarantee, the Court held in Strunk v. United States (412 U.S. 434, 1973) that while dismissal of the indictment may appear to be a severe remedy, “severe remedies are not necessarily unique in the application of constitutional standards.” The Speedy Trial Act enacted by Congress in 1974 rejects the Barker v. Wingo approach in federal prosecutions by requiring courts to adhere to fixed time intervals between arrest, pretrial proceedings, and the trial. Accordingly, the entire process from arrest to the commencement of the trial must take place within one hundred days. An unusual but interesting episode of the speedy trial issue was decided by the Court when it reviewed the highly publicized “Green Beret” murder case in United States v. MacDonald (456 U.S. 1, 1982). Military authorities brought charges against one of their medical officers (Captain MacDonald) for the murder of his pregnant wife and two children in their residence at Fort Bragg, North Carolina. Subsequent military proceedings led to a dismissal of the charges, and MacDonald was granted an honorable discharge. The Department of Justice continued to investigate the murders after his discharge and five years thereafter obtained an indictment and conviction in federal district court. Thereupon, the Court of Appeals for the Fourth Circuit reversed, holding that the indictment violated MacDonald’s Sixth Amendment right to a speedy trial. But the Supreme Court did not accept this application of the guarantee. Instead, Chief Justice Burger contended for the six-to-three majority that the guarantee “attaches only when a formal criminal charge is instituted and a criminal prosecution begins.” Consequently, the time between the dismissal of charges by the military and the indictment on civilian criminal charges is not a relevant consideration in determining whether the speedy trial guarantee has been abridged. Several other cases, including Blakely v. Washington (542 U.S. 296, 2004) and Kimbrough v. United States (552 U.S. ___, 2007), are relevant to sentencing

procedures and guidelines. As a matter of constitutional interpretation, for example, the Court held in Blakely that because the facts supporting petitioner’s exceptional sentences were neither admitted by the petitioner nor found by a jury, the sentence violated his Sixth Amendment right to trial by jury. In that case, petitioner Blakely pleaded guilty to kidnapping his estranged wife, and the facts admitted in his plea, standing alone, supported a maximum of fifty-six months. But the judge in the Washington state trial court imposed a ninety month sentence upon finding that the petitioner had acted with deliberate cruelty, a statutorily enumerated ground for departing from the standard range. The Washington state court of appeals affirmed, rejecting the petitioner’s argument that the sentencing procedure violated his federal constitutional right to have a jury determine beyond a reasonable doubt all the facts essential to his sentence. The U.S. Supreme Court held in a 5–4 decision that because the facts supporting the petitioner’s exceptional sentence were neither admitted by him nor found by a jury, that the sentence violated his Sixth Amendment right to trial by jury. The Court held that Blakely requires that its earlier decision in Apprendi v. New Jersey (530 U.S. 490, 2000) be followed that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime must be submitted to a jury, and proved beyond a reasonable doubt.” In 2007, Kimbrough v. United States focuses on the recurring debate over congressional statutory guidelines imposing disparate sentences between users of crack and powder cocaine. In Kimbrough the Court referred to its “remedial decision” in U.S. v. Booker (543 U.S. 220, 2005), in which it held that “the cocaine Guidelines, like all other Guidelines, are advisory only, and the Fourth Circuit [Court] erred in holding the crack/powder disparity effectively mandatory. A district judge must include the Guidelines range in the array of factors warranting consideration, but the judge may determine that, in the particular case, a within-Guidelines sentence is ‘greater than necessary’ to serve the objectives of sentencing. . . . In making that determination,” concluded the Court, the judge may consider the disparity between the Guidelines’ treatment of crack and powder cocaine. The Court went on to discuss the turbulent history of the issue in Congress and in the implementation of relevant statutes by the United States Sentencing Commission.

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BATSON V. KENTUCKY 476 U.S. 79; 90 L. Ed. 69; 106 S. Ct. 1712 (1986) JUSTICE POWELL delivered the opinion of the court, in which JUSTICES BRENNAN, WHITE, MARSHALL, BLACKMUN, STEVENS, and O’CONNOR joined. JUSTICES WHITE and MARSHALL filed concurring opinions. JUSTICE STEVENS filed a concurring opinion, in which JUSTICE BRENNAN joined. JUSTICE O’CONNOR filed a concurring opinion. CHIEF JUSTICE BURGER filed a dissenting opinion, in which JUSTICE REHNQUIST joined. JUSTICE REHNQUIST filed a dissenting opinion, in which CHIEF JUSTICE BURGER joined. JUSTICE POWELL delivered the opinion of the Court. This case requires us to reexamine that portion of Swain v. Alabama (1965), concerning the evidentiary burden placed on a criminal defendant who claims that he has been denied equal protection through the State’s use of peremptory challenges2 to exclude members of his race from the petit jury. I Petitioner, a black man, was indicted in Kentucky on charges of second-degree burglary and receipt of stolen goods. On the first day of trial in Jefferson Circuit Court, the judge conducted voir dire examination of the venire, excused certain jurors for cause, and permitted the parties to exercise peremptory challenges. The prosecutor used his peremptory challenges to strike all four black persons on the venire, and a jury composed only of white persons was selected. Defense counsel moved to discharge the jury before it was sworn on the ground that the prosecutor’s removal of the black veniremen violated 2 The Kentucky Rules of Criminal Procedure authorize the trial court to permit counsel to conduct voir dire examination or to conduct the examination itself. Ky. Rule Crim. Proc. 9.38. After jurors have been excused for cause, the parties exercise their peremptory challenges by striking names from a list of qualified jurors equal to the number to be seated plus the number of allowable peremptory challenges. Rule 9.36. The offense charged in this case was a felony, so an alternate juror was called; the prosecutor was entitled to six peremptory challenges, and defense counsel to nine.

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petitioner’s rights under the Sixth and Fourteenth Amendments to a jury drawn from a cross section of the community, and under the Fourteenth Amendment to equal protection of the laws. . . . [T]he trial judge observed that the parties were entitled to use their peremptory challenges to “strike anybody they want to.” The judge then denied petitioner’s motion, reasoning that the cross-section requirement applies only to selection of the venire and not to selection of the petit jury itself. The jury convicted petitioner on both counts . . . [and] the Supreme Court of Kentucky affirmed. . . . II In Swain v. Alabama, this Court recognized that a “State’s purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Protection Clause.” This principle has been “consistently and repeatedly” reaffirmed, in numerous decisions of this Court both preceding and following Swain. We reaffirm the principle today. A More than a century ago, the Court decided that the State denies a black defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have been purposefully excluded. Strauder v. West Virginia (1880). That decision laid the foundation for the Court’s unceasing efforts to eradicate racial discrimination in the procedures used to select the venire from which individual jurors are drawn. In Strauder, the Court explained that the central concern of the recently ratified Fourteenth Amendment was to put an end to governmental discrimination on account of race. Exclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure. In holding that racial discrimination in jury selection offends the Equal Protection Clause, the Court in Strauder recognized, however, that a defendant

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has no right to a “petit jury composed in whole or in part of persons of his own race.”. . . But the defendant does have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria. . . . Purposeful racial discrimination in selection of the venire violates a defendant’s right to equal protection because it denies him the protection that a trial by jury is intended to secure. “The very idea of a jury is a body . . . composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.”. . . The petit jury has occupied a central position in our system of justice by safeguarding a person accused of crime against the arbitrary exercise of power by prosecutor or judge. . . . Those on the venire must be “indifferently chosen,” to secure the defendant’s right under the Fourteenth Amendment to “protection of life and liberty against race or color prejudice.”. . . Racial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try. Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial. . . . A person’s race simply “is unrelated to his fitness as a juror.”. . . The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. . . . Discrimination within the judicial system is most pernicious because it is “a stimulant to that race prejudice which is an impediment to securing to [black citizens] that equal justice which the law aims to secure to all others.” Strauder, supra. B . . . While decisions of this Court have been concerned largely with discrimination during selection of the venire, the principles announced there also forbid discrimination on account of race in selection of the petit jury. Since the Fourteenth Amendment protects an accused throughout the proceedings bringing him to justice, . . . the State may not draw up its jury lists pursuant to neutral procedures but then resort to discrimination at “other stages in the selection process,” Avery v. Georgia (1953). . . .

Accordingly, the component of the jury selection process at issue here, the State’s privilege to strike individual jurors through peremptory challenges, is subject to the commands of the Equal Protection Clause. Although a prosecutor ordinarily is entitled to exercise permitted peremptory challenges “for any reason at all, as long as that reason is related to his view concerning the outcome” of the case to be tried, . . . the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant. III The principles announced in Strauder never have been questioned in any subsequent decision of this Court. Rather, the Court has been called upon repeatedly to review the application of those principles to particular facts. . . . A Swain required the Court to decide, among other issues, whether a black defendant was denied equal protection by the State’s exercise of peremptory challenges to exclude members of his race from the petit jury. The record in Swain showed that the prosecutor had used the State’s peremptory challenges to strike the six black persons included on the petit jury venire. While rejecting the defendant’s claim for failure to prove purposeful discrimination, the Court nonetheless indicated that the Equal Protection Clause placed some limits on the State’s exercise of peremptory challenges. The Court sought to accommodate the prosecutor’s historical privilege of peremptory challenge free of judicial control, and the constitutional prohibition on exclusion of persons from jury service on account of race. While the Constitution does not confer a right to peremptory challenges, those challenges traditionally have been viewed as one means of assuring the selection of a qualified and unbiased jury. To preserve the peremptory nature of the prosecutor’s challenge, the Court in Swain declined to scrutinize his actions in a particular case by relying on a presumption that he properly exercised the State’s challenges. The Court went on to observe, however, that a State may not exercise its challenges in contravention of the Equal Protection Clause. It was impermissible for a prosecutor to use his challenges to exclude blacks from the jury “for reasons wholly unrelated to

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the outcome of the particular case on trial” or to deny to blacks “the same right and opportunity to participate in the administration of justice enjoyed by the white population.” Accordingly, a black defendant could make out a prima facie case of purposeful discrimination on proof that the peremptory challenge system was “being perverted” in that manner. For example, an inference of purposeful discrimination would be raised on evidence that a prosecutor, “in case after case, whatever the circumstances, whatever the crime and whoever the defendant or the victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries.” Evidence offered by the defendant in Swain did not meet that standard. While the defendant showed that prosecutors in the jurisdiction had exercised their strikes to exclude blacks from the jury, he offered no proof of the circumstances under which prosecutors were responsible for striking black jurors beyond the facts of his own case. A number of lower courts following the teaching of Swain reasoned that proof of repeated striking of blacks over a number of cases was necessary to establish a violation of the Equal Protection Clause. Since this interpretation of Swain has placed on defendants a crippling burden of proof, prosecutors’ peremptory challenges are now largely immune from constitutional scrutiny. For reasons that follow, we reject this evidentiary formulation as inconsistent with standards that have been developed since Swain for assessing a prima facie case under the Equal Protection Clause. B Since the decision in Swain, we have explained that our cases concerning selection of the venire reflect the general equal protection principle that the “invidious quality” of governmental action claimed to be racially discriminatory “must ultimately be traced to a racially discriminatory purpose.” As in any equal protection case, the “burden is, of course,” on the defendant who alleges discriminatory selection of the venire “to prove the existence of purposeful discrimination.” In deciding if the defendant has carried his burden of persuasion, a court must undertake “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Circumstantial evidence of invidious intent may include proof of disproportionate impact. We have observed that 384

under some circumstances proof of discriminatory impact “may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds.”. . . Moreover, since Swain, we have recognized that a black defendant alleging that members of his race have been impermissibly excluded from the venire may make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. Once the defendant makes the requisite showing, the burden shifts to the State to explain adequately the racial exclusion. The State cannot meet this burden on mere general assertions that its officials did not discriminate or that they properly performed their official duties. Rather, the State must demonstrate that “permissible racially neutral selection criteria and procedures have produced the monochromatic result.” The showing necessary to establish a prima facie case of purposeful discrimination in selection of the venire may be discerned in this Court’s decisions. The defendant initially must show that he is a member of a racial group capable of being singled out for differential treatment. In combination with that evidence, a defendant may then make a prima facie case by proving that in the particular jurisdiction members of his race have not been summoned for jury service over an extended period of time. Proof of systematic exclusion from the venire raises an inference of purposeful discrimination because the “result bespeaks discrimination.” Since the ultimate issue is whether the State has discriminated in selecting the defendant’s venire, however, the defendant may establish a prima facie case “in other ways than by evidence of long-continued unexplained absence” of members of his race “from many panels.” In cases involving the venire, this Court has found a prima facie case on proof that members of the defendant’s race were substantially underrepresented on the venire from which his jury was drawn, and that the venire was selected under a practice providing “the opportunity for discrimination.” This combination of factors raises the necessary inference of purposeful discrimination because the Court has declined to attribute to chance the absence of black citizens on a particular jury array where the selection mechanism is subject to abuse. When circumstances suggest the need, the trial court must undertake a “factual inquiry” that “takes into

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account all possible explanatory factors” in the particular case. Thus, since the decision in Swain, this Court has recognized that a defendant may make a prima facie showing of purposeful racial discrimination in selection of the venire by relying solely on the facts concerning its selection in his case. These decisions are in accordance with the proposition, articulated in Arlington Heights v. Metropolitan Housing Development Corp., that “a consistent pattern of official racial discrimination” is not “a necessary predicate to a violation of the Equal Protection Clause. A single invidiously discriminatory governmental act” is not “immunized by the absence of such discrimination in the making of other comparable decisions.” For evidentiary requirements to dictate that “several must suffer discrimination” before one could object would be inconsistent with the promise of equal protection to all. C The standards for assessing a prima facie case in the context of discriminatory selection of the venire have been fully articulated since Swain. These principles support our conclusion that a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial. To establish such a case, the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.”. . . Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the empaneling of the petit jury, as in the selection of the venire, raises the necessary inference of purposeful discrimination. In deciding whether the defendant has made the requisite showing, the trial court should consider all relevant circumstances. For example, a “pattern” of strikes against black jurors included in the particular venire might give rise to an inference of discrimination. Similarly, the prosecutor’s questions and state-

ments during voir dire examination and in exercising his challenges may support or refute an inference of discriminatory purpose. These examples are merely illustrative. We have confidence that trial judges, experienced in supervising voir dire, will be able to decide if the circumstances concerning the prosecutor’s use of peremptory challenges creates a prima facie case of discrimination against black jurors. Once the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors. Though this requirement imposes a limitation in some cases on the full peremptory character of the historic challenge, we emphasize that the prosecutor’s explanation need not rise to the level justifying exercise of a challenge for cause. But the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption—or his intuitive judgment—that they would be partial to the defendant because of their shared race. Just as the Equal Protection Clause forbids the States to exclude black persons from the venire on the assumption that blacks as a group are unqualified to serve as jurors, so it forbids the States to strike black veniremen on the assumption that they will be biased in a particular case simply because the defendant is black. The core guarantee of equal protection, ensuring citizens that their State will not discriminate on account of race, would be meaningless were we to approve the exclusion of jurors on the basis of such assumptions, which arise solely from the jurors’ race. Nor may the prosecutor rebut the defendant’s case merely by denying that he had a discriminatory motive or “affirm[ing] [his] good faith in making individual selections.” If these general assertions were accepted as rebutting a defendant’s prima facie case, the Equal Protection Clause “would be but a vain and illusory requirement.” The prosecutor therefore must articulate a neutral explanation related to the particular case to be tried. The trial court then will have the duty to determine if the defendant has established purposeful discrimination. IV The State contends that our holding will eviscerate the fair trial values served by the peremptory challenge. Conceding that the Constitution does not guarantee a right to peremptory challenges and that Swain

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did state that their use ultimately is subject to the strictures of equal protection, the State argues that the privilege of unfettered exercise of the challenge is of vital importance to the criminal justice system. While we recognize, of course, that the peremptory challenge occupies an important position in our trial procedures, we do not agree that our decision today will undermine the contribution the challenge generally makes to the administration of justice. The reality of practice, amply reflected in many stateand federal-court opinions, shows that the challenge may be, and unfortunately at times has been, used to discriminate against black jurors. By requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate of equal protection and furthers the ends of justice. In view of the heterogeneous population of our Nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race. Nor are we persuaded by the State’s suggestion that our holding will create serious administrative difficulties. In those States applying a version of the evidentiary standard we recognize today, courts have not experienced serious administrative burdens, and the peremptory challenge system has survived. We decline, however, to formulate particular procedures to be followed upon a defendant’s timely objection to a prosecutor’s challenges. V In this case, petitioner made a timely objection to the prosecutor’s removal of all black persons on the venire. Because the trial court flatly rejected the objection without requiring the prosecutor to give an explanation for his action, we remand this case for further proceedings. If the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner’s conviction be reversed. It is so ordered. [The concurring opinion of JUSTICE WHITE is not reprinted here.] JUSTICE MARSHALL, concurring: . . . The decision today will not end the racial discrimination that peremptories inject into the jury386

selection process. That goal can be accomplished only by eliminating peremptory challenges entirely. I Misuse of the peremptory challenge to exclude black jurors has become both common and flagrant. Black defendants rarely have been able to compile statistics showing the extent of that practice, but the few cases setting out such figures are instructive. See United States v. Carter, 528 F.2d 844, 848 (CA8 1975) (in 15 criminal cases in 1974 in the Western District of Missouri involving black defendants, prosecutors peremptorily challenged 81 percent of black jurors); United States v. McDaniels, 379 F. Supp. 1243 (ED La. 1974) (in 53 criminal cases in 1972–1974 in the Eastern District of Louisiana involving black defendants, federal prosecutors used 68.9 percent of their peremptory challenges against black jurors, who made up less than one-quarter of the venire); McKinney v. Walker, 394 F. Supp. 1015, 1017–1018 (SC 1974) (in 13 criminal trials in 1970–1971 in Spartansburg County, South Carolina, involving black defendants, prosecutors peremptorily challenged 82 percent of black jurors). . . . Prosecutors have explained to courts that they routinely strike black jurors. An instruction book used by the prosecutor’s office in Dallas County, Texas, explicitly advised prosecutors that they conduct jury selection so as to eliminate “‘any member of a minority group.’” In 100 felony trials in Dallas County in 1983–1984, prosecutors peremptorily struck 405 out of 467 eligible black jurors; the chance of a qualified black sitting on a jury was 1 in 10, compared to 1 in 2 for a white. . . . II I wholeheartedly concur in the Court’s conclusion that use of the peremptory challenge to remove blacks from juries, on the basis of their race, violates the Equal Protection Clause. I would go further, however, in fashioning a remedy adequate to eliminate that discrimination. Merely allowing defendants the opportunity to challenge the racially discriminatory use of peremptory challenges in individual cases will not end the illegitimate use of the peremptory challenge. Evidentiary analysis similar to that set out by the Court has been adopted as a matter of state law in States including Massachusetts and California. Cases from those jurisdictions illustrate the limitations of the approach. First, defendants cannot attack the discriminatory use of peremptory challenges at all

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unless the challenges are so flagrant as to establish a prima facie case. This means, in those States, that where only one or two black jurors survive the challenges for cause, the prosecutor need have no compunction about striking them from the jury because of their race. . . . Prosecutors are left free to discriminate against blacks in jury selection provided that they hold that discrimination to an “acceptable” level. Second, when a defendant can establish a prima facie case, trial courts face the difficult burden of assessing prosecutors’ motives. Any prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill equipped to second-guess those reasons. How is the court to treat a prosecutor’s statement that he struck a juror because the juror had a son about the same age as defendant, . . . or seemed “uncommunicative,” or “never cracked a smile” and, therefore “did not possess the sensitivities necessary to realistically look at the issues and decide the facts in this case”? If such easily generated explanations are sufficient to discharge the prosecutor’s obligation to justify his strikes on nonracial grounds, then the protection erected by the Court today may be illusory. Nor is outright prevarication by prosecutors the only danger here. “[I]t is even possible that an attorney may lie to himself in an effort to convince himself that his motives are legal.” A prosecutor’s own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is “sullen,” or “distant,” a characterization that would not have come to his mind if a white juror had acted identically. A judge’s own conscious or unconscious racism may lead him to accept such an explanation as well supported. As JUSTICE REHNQUIST concedes, prosecutors’ peremptories are based on their “seat-ofthe-pants instincts” as to how particular jurors will vote. . . . Yet “seat-of-the-pants instincts” may often be just another term for racial prejudice. Even if all parties approach the Court’s mandate with the best of conscious intentions, that mandate requires them to confront and overcome their own racism on all levels— a challenge I doubt all of them can meet. It is worth remembering that “114 years after the close of the War Between the States and nearly 100 years after Strauder, racial and other forms of discrimination still remain a fact of life, in the administration of justice as in our society as a whole.” III The inherent potential of peremptory challenges to distort the jury process by permitting the exclusion

of jurors on racial grounds should ideally lead the Court to ban them entirely from the criminal justice system. . . . JUSTICE GOLDBERG, dissenting in Swain, emphasized that “[w]ere it necessary to make an absolute choice between the right of a defendant to have a jury chosen in conformity with the requirements of the Fourteenth Amendment and the right to challenge peremptorily, the Constitution compels a choice of the former.” I believe that this case presents just such a choice, and I would resolve that choice by eliminating peremptory challenges entirely in criminal cases. . . . [The concurring opinion of JUSTICE STEVENS, joined by JUSTICE BRENNAN, is not reprinted here.] [The concurring opinion of JUSTICE O’CONNOR is not reprinted here.] [The dissenting opinion of CHIEF JUSTICE BURGER, joined by JUSTICE REHNQUIST, is not reprinted here.] JUSTICE REHNQUIST, joined by CHIEF JUSTICE BURGER, dissenting: The Court states, in the opening line of its opinion, that this case involves only a reexamination of that portion of Swain v. Alabama concerning “the evidentiary burden placed on a criminal defendant who claims that he has been denied equal protection through the State’s use of peremptory challenges to exclude members of his race from the petit jury.” But in reality the majority opinion deals with much more than “evidentiary burden[s].” With little discussion and less analysis, the Court also overrules one of the fundamental substantive holdings of Swain, namely, that the State may use its peremptory challenges to remove from the jury, on a case-specific basis, prospective jurors of the same race as the defendant. Because I find the Court’s rejection of this holding both ill considered and unjustifiable under established principles of equal protection, I dissent. . . . The Court today asserts . . . that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely . . . on the assumption that black jurors as a group will be unable impartially to consider the State’s case against a black defendant.” Later, in discussing the State’s need to establish a nondiscriminatory basis for striking blacks from the jury, the Court states that “the prosecutor may not rebut the defendant’s prima facie case of discrimination by stating merely that he challenged jurors of the defendant’s race on the assumption—or his intuitive

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judgment—that they would be partial to the defendant because of their shared race.” Neither of these statements has anything to do with the “evidentiary burden” necessary to establish an equal protection claim in this context, and both statements are directly contrary to the view of the Equal Protection Clause shared by the majority and the dissenters in Swain. Yet the Court in the instant case offers absolutely no analysis in support of its decision to overrule Swain. . . . I cannot subscribe to the Court’s unprecedented use of the Equal Protection Clause to restrict the historic scope of the peremptory challenge, which has been described as “a necessary part of trial by jury.” In my view, there is simply nothing “unequal” about the State’s using its peremptory challenges to strike blacks from the jury in cases involving black defendants, so long as such challenges are also used to exclude whites in cases involving white defendants, Hispanics in cases involving Hispanic defendants, Asians in cases involving Asian defendants, and so on. This case-specific use of peremptory challenges by the State does not single out blacks, or members of any other race for that matter, for discriminatory treatment. Such use of peremptories is at best based upon seat-of-the-pants instincts, which are undoubtedly crudely stereotypical and may in many cases be hopelessly mistaken. But as long as they are applied across-the-board to jurors of all races and nationalities, I do not see—and the Court most certainly has not explained—how their use violates the Equal Protection Clause. Nor does such use of peremptory challenges by the State infringe upon any other constitutional

interests. The Court does not suggest that exclusion of blacks from the jury through the State’s use of peremptory challenges results in a violation of either the fair-cross-section or impartiality component of the Sixth Amendment. And because the case-specific use of peremptory challenges by the State does not deny blacks the right to serve as jurors in cases involving nonblack defendants, it harms neither the excluded jurors nor the remainder of the community. The use of group affiliations, such as age, race, or occupation, as a “proxy” for potential juror partiality, based on the assumption or belief that members of one group are more likely to favor defendants who belong to the same group, has long been accepted as a legitimate basis for the State’s exercise of peremptory challenges. Indeed, given the need for reasonable limitations on the time devoted to voir dire, the use of such “proxies” by both the State and the defendant may be extremely useful in eliminating from the jury persons who might be biased in one way or another. The Court today holds that the State may not use its peremptory challenges to strike black prospective jurors on this basis without violating the Constitution. But I do not believe there is anything in the Equal Protection Clause, or any other constitutional provision, that justifies such a departure from the substantive holding contained in Part II of Swain. Petitioner in the instant case failed to make a sufficient showing to overcome the presumption announced in Swain that the State’s use of peremptory challenges was related to the context of the case. I would therefore affirm the judgment of the court below.

SNYDER V. LOUISIANA 552 U.S. ____ (2008) JUSTICE ALITO delivered the opinion of the Court, in which CHIEF JUSTICE ROBERTS and JUSTICES STEVENS, KENNEDY, SOUTER, GINSBURG, and BREYER joined. JUSTICE THOMAS filed a dissenting opinion, in which JUSTICE SCALIA joined. JUSTICE ALITO delivered the opinion of the Court. 388

Petitioner Allen Snyder was convicted of first-degree murder in a Louisiana court and was sentenced to death. He asks us to review a decision of the Louisiana Supreme Court rejecting his claim that the prosecution exercised some of its peremptory jury challenges based on race, in violation of Batson v. Kentucky, 476 U.S. 79 (1986). We hold

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that the trial court committed clear error in its ruling on a Batson objection, and we therefore reverse. I The crime for which petitioner was convicted occurred in August 1995. At that time, petitioner and his wife, Mary, had separated. On August 15, they discussed the possibility of reconciliation, and Mary agreed to meet with petitioner the next day. That night, Mary went on a date with Howard Wilson. During the evening, petitioner repeatedly attempted to page Mary, but she did not respond. At approximately 1:30 A.M. on August 16, Wilson drove up to the home of Mary’s mother to drop Mary off. Petitioner was waiting at the scene armed with a knife. He opened the driver’s side door of Wilson’s car and repeatedly stabbed the occupants, killing Wilson and wounding Mary. The State charged petitioner with first-degree murder and sought the death penalty based on the aggravating circumstance that petitioner had knowingly created a risk of death or great bodily harm to more than one person. . . . Voir dire began on Tuesday, August 27, 1996, and proceeded as follows. During the first phase, the trial court screened the panel to identify jurors who did not meet Louisiana’s requirements for jury service or claimed that service on the jury or sequestration for the duration of the trial would result in extreme hardship. More than fifty prospective jurors reported that they had work, family, or other commitments that would interfere with jury service. In each of those instances, the nature of the conflicting commitments was explored, and some of these jurors were dismissed. . . . In the next phase, the court randomly selected panels of thirteen potential jurors for further questioning. . . . The defense and prosecution addressed each panel and questioned the jurors both as a group and individually. At the conclusion of this questioning, the court ruled on challenges for cause. Then, the prosecution and the defense were given the opportunity to use peremptory challenges (each side had 12) to remove remaining jurors. The court continued this process of calling 13person panels until the jury was filled. In accordance with Louisiana law, the parties were permitted to exercise “back strikes.” That is, they were allowed to use their peremptories up until the time when the final jury was sworn and thus were permitted to strike jurors whom they had initially accepted when

the jurors’ panels were called. . . . Eighty-five prospective jurors were questioned as members of a panel. Thirty-six of these survived challenges for cause; five of the thirty-six were black; and all five of the prospective black jurors were eliminated by the prosecution through the use of peremptory strikes. The jury found petitioner guilty of first-degree murder and determined that he should receive the death penalty. On direct appeal, the Louisiana Supreme Court conditionally affirmed petitioner’s conviction. The court rejected petitioner’s Batson claim but remanded the case for a nunc pro tunc determination of petitioner’s competency to stand trial. . . . Two justices dissented and would have found a Batson violation. . . . On remand, the trial court found that petitioner had been competent to stand trial, and the Louisiana Supreme Court affirmed that determination. State v. Snyder, 1998–1078 (La. 4/14/04), 874 So. 2d 739. Petitioner petitioned this Court for a writ of certiorari, and while his petition was pending, this Court decided Miller-El v. Dretke, 545 U.S. 231 (2005). We then granted the petition, vacated the judgment, and remanded the case to the Louisiana Supreme Court for further consideration in light of Miller-El. See Snyder v. Louisiana, 545 U.S. 1137 (2005). On remand, the Louisiana Supreme Court again rejected Snyder’s Batson claim, this time by a vote of 4 to 3. . . . We again granted certiorari, 551 U.S. ___ (2007), and now reverse. II Batson provides a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was based on race: “‘First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race [; s]econd, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question[; and t]hird, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.’” Miller-El v. Dretke, supra, at 277 (THOMAS, J., dissenting) (quoting Miller-El v. Cockrell, 537 U.S. 322, 328–329 (2003)). On appeal, a trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous. See Hernandez v. New York, 500 U.S. 352, 369 (1991) (plurality opinion); id., at 372 (O’CONNOR, J., joined by SCALIA, J., concurring in

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judgment). The trial court has a pivotal role in evaluating Batson claims. Step three of the Batson inquiry involves an evaluation of the prosecutor’s credibility, . . ., and “the best evidence [of discriminatory intent] often will be the demeanor of the attorney who exercises the challenge,” Hernandez, 500 U.S., at 365 (plurality opinion). In addition, race-neutral reasons for peremptory challenges often invoke a juror’s demeanor (e.g., nervousness, inattention), making the trial court’s first-hand observations of even greater importance. In this situation, the trial court must evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor. We have recognized that these determinations of credibility and demeanor lie “‘peculiarly within a trial judge’s province,’” ibid. (quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)), and we have stated that “in the absence of exceptional circumstances, we would defer to [the trial court].” 500 U.S., at 366. III Petitioner centers his Batson claim on the prosecution’s strikes of two black jurors, Jeffrey Brooks and Elaine Scott. Because we find that the trial court committed clear error in overruling petitioner’s Batson objection with respect to Mr. Brooks, we have no need to consider petitioner’s claim regarding Ms. Scott. See, e.g., United States v. Vasquez-Lopez, 22 F. 3d 900, 902 (CA9 1994) (“[T]he Constitution forbids striking even a single prospective juror for a discriminatory purpose”); United States v. Lane, 866 F. 2d 103, 105 (CA4 1989);. . .[etc.]. In Miller-El v. Dretke, the Court made it clear that in considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted. . . . Here, as just one example, if there were persisting doubts as to the outcome, a court would be required to consider the strike of Ms. Scott for the bearing it might have upon the strike of Mr. Brooks. In this case, however, the explanation given for the strike of Mr. Brooks is by itself unconvincing and suffices for the determination that there was Batson error. When defense counsel made a Batson objection concerning the strike of Mr. Brooks, a college senior who was attempting to fulfill his student-teaching 390

obligation, the prosecution offered two race-neutral reasons for the strike. The prosecutor explained: “I thought about it last night. Number 1, the main reason is that he looked very nervous to me throughout the questioning. Number 2, he’s one of the fellows that came up at the beginning [of voir dire] and said he was going to miss class. He’s a student teacher. My main concern is for that reason, that being that he might, to go home quickly, come back with guilty of a lesser verdict so there wouldn’t be a penalty phase. Those are my two reasons.” . . .

Defense counsel disputed both explanations, . . . , and the trial judge ruled as follows: “All right. I’m going to allow the challenge. I’m going to allow the challenge.” Id., at 445. We discuss the prosecution’s two proffered grounds for striking Mr. Brooks in turn. A With respect to the first reason, the Louisiana Supreme Court was correct that “nervousness cannot be shown from a cold transcript, which is why . . . the [trial] judge’s evaluation must be given much deference.” . . . As noted above, deference is especially appropriate where a trial judge has made a finding that an attorney credibly relied on demeanor in exercising a strike. Here, however, the record does not show that the trial judge actually made a determination concerning Mr. Brooks’ demeanor. The trial judge was given two explanations for the strike. Rather than making a specific finding on the record concerning Mr. Brooks’ demeanor, the trial judge simply allowed the challenge without explanation. It is possible that the judge did not have any impression one way or the other concerning Mr. Brooks’ demeanor. Mr. Brooks was not challenged until the day after he was questioned, and by that time dozens of other jurors had been questioned. Thus, the trial judge may not have recalled Mr. Brooks’ demeanor. Or, the trial judge may have found it unnecessary to consider Mr. Brooks’ demeanor, instead basing his ruling completely on the second proffered justification for the strike. For these reasons, we cannot presume that the trial judge credited the prosecutor’s assertion that Mr. Brooks was nervous. B The second reason proffered for the strike of Mr. Brooks—his student-teaching obligation—fails even under the highly deferential standard of review that is applicable here. At the beginning of voir dire, when the trial court asked the members of the venire

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whether jury service or sequestration would pose an extreme hardship, Mr. Brooks was 1 of more than 50 members of the venire who expressed concern that jury service or sequestration would interfere with work, school, family, or other obligations. When Mr. Brooks came forward, the following exchange took place: “MR. JEFFREY BROOKS: . . . I’m a student at Southern University, New Orleans. This is my last semester. My major requires me to student teach, and today I’ve already missed a half a day. That is part of my—it’s required for me to graduate this semester. “[DEFENSE COUNSEL]: Mr. Brooks, if you— how many days would you miss if you were sequestered on this jury? Do you teach every day? “MR. JEFFREY BROOKS: Five days a week. “[DEFENSE COUNSEL]: Five days a week. “MR. JEFFREY BROOKS: And it’s 8:30 through 3:00. “[DEFENSE COUNSEL]: If you missed this week, is there any way that you could make it up this semester? “MR. JEFFREY BROOKS: Well, the first two weeks I observe, the remaining I begin teaching, so there is something I’m missing right now that will better me towards my teaching career. “[DEFENSE COUNSEL]: Is there any way that you could make up the observed observation [sic] that you’re missing today, at another time? “MR. JEFFREY BROOKS: It may be possible, I’m not sure. “[DEFENSE COUNSEL]: Okay. So that— “THE COURT: Is there anyone we could call, like a Dean or anything, that we could speak to? “MR. JEFFREY BROOKS: Actually, I spoke to my Dean, Doctor Tillman, who’s at the university probably right now. “THE COURT: All right. “MR. JEFFREY BROOKS: Would you like to speak to him? “THE COURT: Yeah. “MR. JEFFREY BROOKS: I don’t have his card on me. “THE COURT: Why don’t you give [a law clerk] his number, give [a law clerk] his name and we’ll call him and we’ll see what we can do. “(MR. JEFFREY BROOKS LEFT THE BENCH).”. . . . Shortly thereafter, the court again spoke with Mr. Brooks: “THE LAW CLERK: Jeffrey Brooks, the requirement for his teaching is a three hundred clock hour

observation. Doctor Tillman at Southern University said that as long as it’s just this week, he doesn’t see that it would cause a problem with Mr. Brooks completing his observation time within this semester. “(MR. BROOKS APPROACHED THE BENCH) “THE COURT: We talked to Doctor Tillman and he says he doesn’t see a problem as long as it’s just this week, you know, he’ll work with you on it. Okay? “MR. JEFFREY BROOKS: Okay. “(MR. JEFFREY BROOKS LEFT THE BENCH).”. . . . Once Mr. Brooks heard the law clerk’s report about the conversation with Doctor Tillman, Mr. Brooks did not express any further concern about serving on the jury, and the prosecution did not choose to question him more deeply about this matter. The colloquy with Mr. Brooks and the law clerk’s report took place on Tuesday, August 27; the prosecution struck Mr. Brooks the following day, Wednesday, August 28; the guilt phase of petitioner’s trial ended the next day, Thursday, August 29; and the penalty phase was completed by the end of the week, on Friday, August 30. The prosecutor’s second proffered reason for striking Mr. Brooks must be evaluated in light of these circumstances. The prosecutor claimed to be apprehensive that Mr. Brooks, in order to minimize the student-teaching hours missed during jury service, might have been motivated to find petitioner guilty, not of first-degree murder, but of a lesser included offense because this would obviate the need for a penalty phase proceeding. But this scenario was highly speculative. Even if Mr. Brooks had favored a quick resolution, that would not have necessarily led him to reject a finding of first-degree murder. If the majority of jurors had initially favored a finding of first-degree murder, Mr. Brooks’ purported inclination might have led him to agree in order to speed the deliberations. Only if all or most of the other jurors had favored the lesser verdict would Mr. Brooks have been in a position to shorten the trial by favoring such a verdict. Perhaps most telling, the brevity of petitioner’s trial—something that the prosecutor anticipated on the record during voir dire—_______meant that serving on the jury would not have seriously interfered with Mr. Brooks’ ability to complete his required student teaching. As noted, petitioner’s trial was completed by Friday, August 30. If Mr. Brooks, who reported to court and was peremptorily challenged on

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Wednesday, August 28, had been permitted to serve, he would have missed only two additional days of student teaching, Thursday, August 29, and Friday, August 30. Mr. Brooks’ dean promised to “work with” Mr. Brooks to see that he was able to make up any student teaching time that he missed due to jury service; the dean stated that he did not think that this would be a problem; and the record contains no suggestion that Mr. Brooks remained troubled after hearing the report of the dean’s remarks. In addition, although the record does not include the academic calendar of Mr. Brooks’ university, it is apparent that the trial occurred relatively early in the fall semester. With many weeks remaining in the term, Mr. Brooks would have needed to make up no more than an hour or two per week in order to compensate for the time that he would have lost due to jury service. When all of these considerations are taken into account, the prosecutor’s second proffered justification for striking Mr. Brooks is suspicious. The implausibility of this explanation is reinforced by the prosecutor’s acceptance of white jurors who disclosed conflicting obligations that appear to have been at least as serious as Mr. Brooks’. We recognize that a retrospective comparison of jurors based on a cold appellate record may be very misleading when alleged similarities were not raised at trial. In that situation, an appellate court must be mindful that an exploration of the alleged similarities at the time of trial might have shown that the jurors in question were not really comparable. In this case, however, the shared characteristic, i.e., concern about serving on the jury due to conflicting obligations, was thoroughly explored by the trial court when the relevant jurors asked to be excused for cause.3 A comparison between Mr. Brooks and Roland Laws, a white juror, is particularly striking. During the initial stage of voir dire, Mr. Laws approached the court and offered strong reasons why serving on the sequestered jury would cause him hardship. Mr. Laws stated that he was “a self-employed general contractor,” with “two houses that are nearing 3 The Louisiana Supreme Court did not hold that petitioner had procedurally defaulted reliance on a comparison of the AfricanAmerican jurors whom the prosecution struck with white jurors whom the prosecution accepted. On the contrary, the State Supreme Court itself made such a comparison. See 942 So. 2d 484, 495–496 (2006).

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completion, one [with the occupants] . . . moving in this weekend.”. . . He explained that, if he served on the jury, “the people won’t [be able to] move in.”. . . Mr. Laws also had demanding family obligations: “[M]y wife just had a hysterectomy, so I’m running the kids back and forth to school, and we’re not originally from here, so I have no family in the area, so between the two things, it’s kind of bad timing for me.” . . .

Although these obligations seem substantially more pressing than Mr. Brooks’, the prosecution questioned Mr. Laws and attempted to elicit assurances that he would be able to serve despite his work and family obligations. . . . (prosecutor asking Mr. Laws “[i]f you got stuck on jury duty anyway . . . would you try to make other arrangements as best you could?”). And the prosecution declined the opportunity to use a peremptory strike on Mr. Laws. Id., at 549. If the prosecution had been sincerely concerned that Mr. Brooks would favor a lesser verdict than first-degree murder in order to shorten the trial, it is hard to see why the prosecution would not have had at least as much concern regarding Mr. Laws. The situation regarding another white juror, John Donnes, although less fully developed, is also significant. At the end of the first day of voir dire, Mr. Donnes approached the court and raised the possibility that he would have an important work commitment later that week. . . . Because Mr. Donnes stated that he would know the next morning whether he would actually have a problem, the court suggested that Mr. Donnes raise the matter again at that time. . . . The next day, Mr. Donnes again expressed concern about serving, stating that, in order to serve, “I’d have to cancel too many things,” including an urgent appointment at which his presence was essential. . . . Despite Mr. Donnes’ concern, the prosecution did not strike him. . . . As previously noted, the question presented at the third stage of the Batson inquiry is “‘whether the defendant has shown purposeful discrimination.’” Miller-El v. Dretke, 545 U.S., at 277. The prosecution’s proffer of this pretextual explanation naturally gives rise to an inference of discriminatory intent. . . . In other circumstances, we have held that, once it is shown that a discriminatory intent was a substantial or motivating factor in an action taken by a state actor, the burden shifts to the party defending the action to show that this factor was not determinative.

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See Hunter v. Underwood, 471 U.S. 222, 228 (1985). We have not previously applied this rule in a Batson case, and we need not decide here whether that standard governs in this context. For present purposes, it is enough to recognize that a peremptory strike shown to have been motivated in substantial part by discriminatory intent could not be sustained based on any lesser showing by the prosecution. And in light of the circumstances here—including absence of anything in the record showing that the trial judge credited the claim that Mr. Brooks was nervous, the prosecution’s description of both of its proffered explanations as “main concern[s],” . . . , and the adverse inference noted above—the record does not show that the prosecution would have pre-emptively challenged Mr. Brooks based on his nervousness alone. . . . Nor is there any realistic possibility that this subtle question of causation could be profitably explored further on remand at this late date, more than a decade after petitioner’s trial. *** We therefore reverse the judgment of the Louisiana Supreme Court and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting. Petitioner essentially asks this Court to second-guess the fact-based determinations of the Louisiana courts as to the reasons for a prosecutor’s decision to strike two jurors. The evaluation of a prosecutor’s motives for striking a juror is at bottom a credibility judgment, which lies “‘peculiarly within a trial judge’s province.’” Hernandez v. New York, 500 U.S. 352, 365 (1991) (plurality opinion). . . . None of the evidence in the record as to jurors Jeffrey Brooks and Elaine Scott demonstrates that the trial court clearly erred in finding they were not stricken on the basis of race. Because the trial court’s determination was a “permissible view of the evidence,”. . . , I would affirm the judgment of the Louisiana Supreme Court. The Court begins by setting out the “deferential standard,”. . . , that we apply to a trial court’s resolution of a Batson v. Kentucky, 476 U.S. 79 (1986), claim, noting that we will overturn a ruling on the question of discriminatory intent only if it is “clearly erroneous,” ante, at 4. Under this standard, we “will

not reverse a lower court’s finding of fact simply because we would have decided the case differently.” Easley v. Cromartie, 532 U.S. 234, 242 (2001) (internal quotation marks omitted). Instead, a reviewing court must ask “whether, ‘on the entire evidence,’ it is ‘left with the definite and firm conviction that a mistake has been committed.’” Ibid. (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). The Court acknowledges two reasons why a trial court “has a pivotal role in evaluating Batson claims.” . . . First, the Court notes that the trial court is uniquely situated to judge the prosecutor’s credibility because the best evidence of discriminatory intent “‘often will be the demeanor of the attorney who exercises the challenge.’” Ibid. (quoting Hernandez, supra, at 365 (plurality opinion)). Second, it recognizes that the trial court’s “firsthand observations” of the juror’s demeanor are of “grea[t] importance” in determining whether the prosecutor’s neutral basis for the strike is credible. . . . The Court’s conclusion, however, reveals that it is only paying lipservice to the pivotal role of the trial court. The Court second-guesses the trial court’s determinations in this case merely because the judge did not clarify which of the prosecutor’s neutral bases for striking Mr. Brooks was dispositive. But we have never suggested that a reviewing court should defer to a trial court’s resolution of a Batson challenge only if the trial court made specific findings with respect to each of the prosecutor’s proffered race-neutral reasons. To the contrary, when the grounds for a trial court’s decision are ambiguous, an appellate court should not presume that the lower court based its decision on an improper ground, particularly when applying a deferential standard of review. . . . The prosecution offered two neutral bases for striking Mr. Brooks: his nervous demeanor and his stated concern about missing class. . . . The trial court, in rejecting defendant’s Batson challenge, stated only “All right. I’m going to allow the challenge. I’m going to allow the challenge.” Id., at 445. The Court concedes that “the record does not show” whether the trial court made its determination based on Mr. Brooks’ demeanor or his concern for missing class, ante, at 6, but then speculates as to what the trial court might have thought about Mr. Brooks’ demeanor. As a result of that speculation, the Court concludes that it “cannot presume that the trial court credited the prosecutor’s assertion that

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Mr. Brooks was nervous.” Ibid. Inexplicably, however, the Court concludes that it can presume that the trial court impermissibly relied on the prosecutor’s supposedly pretextual concern about Mr. Brooks’ teaching schedule, even though nothing in the record supports that interpretation over the one the Court rejects. Indeed, if the record suggests anything, it is that the judge was more influenced by Mr. Brooks’ nervousness than by his concern for missing class. Following an exchange about whether his desire to get back to class would make Mr. Brooks more likely to support a verdict on a lesser included offense because it might avoid a penalty phase, defense counsel offered its primary rebuttal to the prosecutor’s proffered neutral reasons. Immediately after argument on the nervousness point, the judge ruled on the Batson challenge, even interrupting the prosecutor to do so: “MR. VASQUEZ: His main problem yesterday was the fact that he didn’t know if he would miss some teaching time as a student teacher. The clerk called the school and whoever it was and the Dean said that wouldn’t be a problem. He was told that this would go through the weekend, and he expressed that that was his only concern, that he didn’t have any other problems. “As far as him looking nervous, hell, everybody out here looks nervous. I’m nervous. “MR. OLINDE: Judge, it’s — “MR. VASQUEZ: Judge, that’s — You know. “MR. OLINDE: — a question of this: It’s a peremptory challenge. We need 12 out of 12 people. Mr. Brooks was very uncertain and very nervous looking and — “THE COURT: All right. I’m going to allow the challenge. I’m going to allow the challenge.”. . .

Although this exchange is certainly not hardand-fast evidence of the trial court’s reasoning, it undermines the Court’s presumption that the trial judge relied solely on Mr. Brooks’ concern for missing school. The Court also concludes that the trial court’s determination lacked support in the record because the prosecutor failed to strike two other jurors with 394

similar concerns. Ante, at 10–12. Those jurors, however, were never mentioned in the argument before the trial court, nor were they discussed in the filings or opinions on any of the three occasions this case was considered by the Louisiana Supreme Court.4 Petitioner failed to suggest a comparison with those two jurors in his petition for certiorari, and apparently only discovered this “clear error” in the record when drafting his brief before this Court. We have no business overturning a conviction, years after the fact and after extensive intervening litigation, based on arguments not presented to the courts below. Cf. Miller-El v. Dretke, 545 U.S. 231, 283 (2005) (THOMAS, J., dissenting). Because I believe that the trial court did not clearly err in rejecting petitioner’s Batson challenge with respect to Mr. Brooks, I also must address the strike of Ms. Scott. The prosecution’s neutral explanation for striking Ms. Scott was that she was unsure about her ability to impose the death penalty. Like the claims made about Mr. Brooks, there is very little in the record either to support or to undermine the prosecution’s asserted rationale for striking Ms. Scott. But the trial court had the benefit of observing the exchange between the prosecutor and Ms. Scott, and accordingly was in the best position to judge whether the prosecutor’s assessment of her response was credible. When asked if she could consider the death penalty, her first response was inaudible. . . . The trial court, with the benefit of contextual clues not apparent on a cold transcript, was better positioned to evaluate whether Ms. Scott was merely softspoken or seemed hesitant in her responses. Similarly, a firsthand observation of demeanor is the only thing that could give sufficient content to Ms. Scott’s ultimate response—“I think I could,” id., at 361—to determine whether the prosecution’s concern about her willingness to impose the death penalty was well founded. Given the trial court’s expertise in making credibility determinations and its firsthand knowledge of the voir dire exchanges, it is entirely proper to defer to its judgment. Accordingly, I would affirm the judgment below. 4 While the Court correctly observes that the Louisiana Supreme Court made a comparison between Mr. Brooks and unstricken white jurors, that is true only as to jurors Vicki Chauffe, Michael Sandras, and Arthur Yeager. 1998–1078 (La. 9/6/06), 942 So. 2d 484, 495–496. The Court, on the other hand, focuses on Roland Laws and John Donnes, who were never discussed below in this context.

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THE DEATH PENALTY CONTROVERSY FEATURED CASES

Gregg v. Georgia; McCleskey v. Kemp; Payne v. Tennessee Since its 1972 decision in Furman v. Georgia (408 U.S. 238), the Court has remained embroiled in a continuing controversy over the death penalty. In Furman, the Court found violative of the Eighth and Fourteenth Amendments particular state statutes5 that allowed juries unfettered discretion to impose the death penalty and that allowed the arbitrary and discriminatory implementation of these laws.6 Beyond this statement of principle, however, there was little agreement among the majority, and each justice wrote a concurring opinion without support from any of his associates. Three of the majority justices (Douglas, Stewart, and White) found the statutes to be defective because they failed to impose a mandatory death penalty for specific crimes, allowing juries to exercise undirected discretion in each case. This situation led them to express concern about the discriminatory application of the penalty that was possible under such statutory schemes. Statistics were cited that revealed substantial differential treatment between whites and nonwhites and between “the poor who lack ‘political clout’” and the more socially prominent. Justice Potter Stewart set forth the argument that the death penalty in such cases is “cruel” because the juries in their discretion go “excessively . . . beyond, not in degree but in kind, the punishments that the state legislatures [had] determined to be necessary.” The death penalty is also “unusual,” he continued, because of its infrequent imposition as punishment for murder and rape. Because of this infrequent imposition, Justice Byron White did not believe the death penalty was an effective deterrent to crime. He characterized it as a “pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.” And Justices Brennan and Marshall expressed the view that the death penalty was unconstitutional per se. Brennan 5 The Georgia statute was at issue in Furman and Jackson v. Georgia, and the Texas law was at issue in Branch v. Texas. 6 This holding was somewhat surprising, because the Court had approved broad jury discretion in capital cases one year earlier in McGautha v. California (402 U.S. 183, 1971).

argued that imposition of the death penalty as punishment for crimes is “cruel and unusual punishment” because “it does not comport with human dignity,” and Justice Thurgood Marshall felt that such a mode of punishment was “no longer consistent with our ‘self-respect.’” Each of the dissenters wrote opinions, and, unlike the majority justices, they joined in one another’s opinions. Essentially, theirs was a plea for judicial restraint and deference to legislatures in prescribing the penalties that they deemed necessary to punish crimes. Chief Justice Burger emphasized that a thorough analysis of the intent of the framers of the Eighth Amendment does not support the conclusion that the death penalty was one of the cruel and unusual punishments banned by the Amendment. The dissenters emphasized that only two members of the majority had held that the death penalty per se is cruel and unusual punishment. Hence, the ruling did not prevent legislatures from prescribing capital punishment for specified crimes. Undoubtedly, the state legislatures got this same message, and thirty-five of them moved at varying degrees of speed to bring their statutes into conformity with the standards that were enunciated in Furman. Some of the revamped statutes called for bifurcated proceedings—a trial segment followed by a separate sentencing proceeding. Missouri’s unique bifurcated procedure, for example, in which the sentencing phase resembles the trial on the issue of guilt or innocence gave rise to an interesting double jeopardy argument in Bullington v. Missouri (451 U.S. 430, 1981). Because of this and the statute’s explicit requirement that the jury in the sentencing phase determine whether the prosecution has proved its case, the Court held that the protection afforded by the double jeopardy clause applied to the sentencing phase. Here, the death sentence that was imposed after the second trial was based on the same aggravating circumstances that produced a life sentence in the first trial. Justice Harry Blackmun, who spoke for the Court, noted that when the jury imposed a life sentence after the first trial, it had found the aggravating factors that were again presented by the prosecution at the second trial to be inadequate to support imposition of the death penalty. Cf. Arizona v. Rumsey (467 U.S. 203, 1984). In general, most of the several statutes mandate consideration of specified aggravating and mitigating circumstances, although

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some eliminated the sentencing discretion by specifying the crimes for which the death penalty could be imposed. However, they all mandate some type of appellate review. Certain so-called revised death penalty statutes once again came before the Court in five cases that arose in Florida, Georgia, Texas, North Carolina, and Louisiana during the 1975 term.7 Seven justices were satisfied that the standards enunciated in Furman had been followed in Georgia, Florida, and Texas, but not in North Carolina and Louisiana. The leading opinion of Justices Stewart, Powell, and Stevens noted that the statutes of the three aforementioned states contained standards that would ensure that the death penalty could not be imposed “arbitrarily and capriciously.” Furthermore, pointing to the long use of the death penalty in the United States, the reflection of “contemporary standards of decency” by the legislative bodies recently enacting capital punishment statutes, and the continued disposition of juries to impose the penalty, the three justices rejected the cruel and unusual punishment attack. The concurring justices echoed similar themes. Employing reasoning similar to that in Gregg v. Georgia, the Court sustained the Florida and Texas statutes but set aside the Louisiana and North Carolina statutes for insufficient standards to control court and jury discretion. In a subsequent review of the Louisiana statute one year later in Harry Roberts v. Louisiana (431 U.S. 633), the Court emphasized the need to allow the sentencing authority to consider mitigating circumstances to be consistent with Gregg. In striking down the mandatory death penalties prescribed by the statute, the Court reasserted its holding in Woodson, the North Carolina case of the previous year, that: the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.

A steady stream of cases since Gregg has allowed the Court to explicate further the constitutional standards for imposition of the death penalty. Imposition of the death penalty for rape was considered “exces-

7 Profit v. Florida, 428 U.S. 242; Gregg v. Georgia, 428 U.S. 153; Jurek v. Texas, 428 U.S. 262; Woodson v. North Carolina, 428 U.S. 280; and Stanislaus Roberts v. Louisiana, 428 U.S. 325.

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sive punishment” for the crime, contrary to the cruel and unusual punishment prohibition of the Eighth Amendment in Coker v. Georgia (433 U.S. 584, 1977). Justice Byron White’s plurality opinion emphasized that while “rape is without doubt deserving of serious punishment . . . in terms of moral depravity and . . . injury to the person and to the public, it does not compare with murder. . . . ” In an action the following year—Lockett v. Ohio (438 U.S. 586, 1978), the Court made it clear that Gregg requires the “individualized consideration of mitigating circumstances” and that even where a statutory enumeration of such factors is made, such a listing should not be construed to preclude consideration of others by the sentencing authority (Cf. Eddings v. Oklahoma, 455 U.S. 104, 1982). This conclusion was reemphasized two years later in Beck v. Alabama (447 U.S. 625, 1980), when the Court overturned a death sentence that had been imposed for a “robbery–intentional killing” conviction in which the jury was statutorily proscribed from considering a “lesser included offense” such as felony or murder (which is considered lesser because it is otherwise only part of the “robbery-intentional killing” charge). Justice John Paul Stevens maintained that withholding the “lesser included offense” option from the jury could well enhance the risk of an unwarranted conviction. He concluded that “such a risk” was intolerable when a person’s life was at stake. However, in Spaziano v. Florida (468 U.S. 447, 1984), the Court did not consider a trial court’s refusal to instruct the jury on lesser included offenses, where the statute of limitations had run out on such offenses, to be inconsistent with Beck. On another key issue in Spaziano, the Court upheld the Florida capital sentencing scheme that allows a trial judge to disregard the jury’s sentence recommendation. In that case, the jury, after considering both aggravating and mitigating circumstances, recommended life imprisonment. But the trial judge disregarded their advice and imposed a death sentence because he concluded that the aggravating circumstances far outweighed the mitigating ones. To Justice Harry Blackmun, who authored the Court’s opinion, the discretion that was permitted to the trial judge under the statute was not inconsistent with “contemporary standards of fairness and decency.” It was sufficient, he concluded, that the statute required the judge to assess both aggravating and mitigating circumstances before deciding whether death was an appropriate penalty for the crime.

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In several post-Gregg cases, the Court has also considered the statutory “aggravating circumstance” issue. In Godfrey v. Georgia (446 U.S. 420, 1980), for example, the Court overturned a murder conviction because of the vague construction that was given to the aggravating circumstances provision of the statute by the court.8 But in Zant v. Stephens (462 U.S. 862, 1983), the Court referred to the jury’s finding of a statutory aggravating circumstance as a “limited function” and refused to overturn a death sentence where one of the three aggravating circumstances that were found was later held void for vagueness. The two remaining aggravating circumstances were considered sufficient to achieve their “narrowing function.” Likewise, the Court refused to overturn a death sentence in Barclay v. Florida (463 U.S. 939, 1983), although the sentencing judge improperly went beyond the statute’s enumeration of aggravating circumstances to find and include the defendant’s criminal record as an aggravating circumstance. Indicating the trend of Court actions to allow states more latitude in implementing their sentencing procedure, Justice Rehnquist asserted the following: The Constitution does not require that the sentencing process be transformed into a rigid and mechanical parsing of statutory aggravating factors. It is entirely fitting for the moral, factual and legal judgment of judges and juries to play a meaningful role in sentencing.

The Court scrutinized what some people consider to be an inordinately and unnecessarily drawn-out process of appellate review of applications for stays of execution in Barefoot v. Estelle (463 U.S. 880, 1983). There, the Court held valid a court of appeals procedure in a habeas corpus action, where the merits of the appeal were decided in the course of denying a stay. The Court noted that it would have been better for the appeals court to expressly affirm the lower court’s habeas corpus ruling and then proceed with the application for the stay. Nevertheless, it did not find the “merged” consideration of the appeal and the application for stay to be at variance with precedents so long as the petitioner was given “ample opportunity to address the merits.” Whereas such a procedure was considered “tolerable” in the 8

Under the statute, a person convicted of murder may be sentenced to death if it is found that the offense “was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.”

context of Barefoot, the Court cautioned that it was not “preferred procedure.” Consequently, it set forth several general guidelines for courts of appeals to consider in formulating procedures for expediting the appellate stage of the federal habeas corpus process and the continuing flood of applications for stays of execution. The Court’s decision in Pulley v. Harris (465 U.S. 37) in 1984 appears to underscore its desire to lessen federal constitutional constraints on the states in the death penalty appellate process. Pursuant to Furman, some thirty-five states revised their death penalty statutes, and several of them provided for “comparative proportionality review”—an inquiry that compares a death penalty imposed in one case with the penalty imposed in other cases for similar crimes. However, the Court in Pulley indicated that this type of proportionality review is not necessary to meet constitutional standards set forth in Gregg. The Constitution, said Justice White for the Court majority, only requires “traditional proportionality” to ensure that the penalty imposed is not “inherently disproportionate” to the offense committed. Thus, the fact that some states require a kind of “comparative proportionality review” before affirming a death sentence (and the statutes providing for that review have been declared constitutional by the Supreme Court) does not fasten it as a federal constitutional requirement on other states. Over the years, the Court has been presented with questions alleging racial discrimination in the administration of various aspects of the criminal justice system in several states. One of the most troublesome of such allegations was presented in the context of the death penalty in McCleskey v. Kemp (481 U.S. 279) in 1987. The conventional wisdom shared by many blacks over the years was that the death penalty was imposed on blacks much more often than on whites who were convicted of capital crimes. One of the most frequently cited examples involved interracial crime. Simply put, “when the person convicted of the capital offense was black and the victim was white, the frequency of imposition of the death penalty was high. But when the capital offender was white, the death penalty was rarely imposed.” In a last-ditch effort to save his life, McCleskey presented to the Court this argument in the context of a systematic scientific study using data gleaned from some 2000 murder cases in Georgia during the 1970s. (McCleskey had been convicted and sentenced to death in Georgia.) The Baldus study, as it

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was labeled by the Court, used the data to show that there is a disparity in the imposition of the death penalty in Georgia and that such disparity correlates with the race of both the defendant and the victim. McCleskey argued that because in Georgia black defendants who killed white victims have a far greater likelihood of being executed than do white defendants who killed victims of either race, the sentencing process is administered in a racially discriminatory manner that violates the equal protection clause of the Fourteenth Amendment. But this argument did not impress the majority of the justices. Speaking for the five-person majority (Rehnquist, White, Powell, O’Connor, and Scalia), Justice Lewis Powell contended that the statistical analysis did not prove that race was the critical factor in the sentencing decision but showed only that racial prejudices were likely to have some influence. Furthermore, he thought that accepting the argument presented by McCleskey would negate the traditional discretion that was accorded juries so they would be in a position to consider leniency arguments of defendants as they weigh their “particularized characteristics.” In the end, he cautioned that if the racial-disparity argument is taken to its logical conclusion, other claims of bias could very well be made that focus on “unexplained discrepancies that correlate to membership in other minority groups and even to gender.” Justices Brennan and Marshall, who consistently have opposed the imposition of the death penalty in all circumstances, were joined in dissent by Justices Blackmun and Stevens. They accepted the study’s findings as valid and underscored the continued arbitrariness in the imposition of the death penalty in some jurisdictions. Brennan emphasized that the study was particularly important in the context of Georgia’s past racial history and its legacy of a raceconscious criminal justice system. In a separate opinion, Justice Blackmun indicated that the statistical evidence made the case of prosecutorial racial bias, and consequently the state should have been required to shoulder the burden of proof that it administered a capital sentencing process which was free of racial considerations. Another dimension of death penalty jurisprudence that commanded the Court’s attention during the 1980s considers the penalty’s appropriateness for accomplices to capital crimes. Initially, the Court confronted this question directly in 1982 in Enmund v. Florida (458 U.S. 782), and held that the Eighth 398

Amendment prohibits the imposition of the death penalty on the nontriggerman accomplice whose participation in the activities that led to murder was minimal (emphasis ours). Contending that the death penalty is in fact excessive punishment for one who does not actually take human life, Justice Byron White reviewed the statutes of the thirty-six States that permitted the use of the death penalty and noted that only nine of them include felony-murder provisions that allow the death penalty under some circumstances for the accomplice who does not actually take the lethal action. (In the instant case, the defendant was not present at the actual scene of the murder but was waiting in the getaway car in front of the victims’ house.) Florida was one of the nine States, but Justice White concluded that the application of its statute to Enmund’s level of involvement was at odds with the general societal view as expressed by most legislative bodies and juries and does not warrant the imposition of the death penalty. In the succeeding years, courts interpreted the sweep of Enmund differently. Some construed it expansively as barring the imposition of the death penalty on all nontriggermen accomplices. Others held accomplices culpable depending on their intent and level of participation. The opportunity for the Court to eliminate some of the confusion about its Enmund ruling came when it decided Tison v. Arizona (481 U.S. 137) in 1987. In what may be considered a contraction of the Eighth Amendment guarantee, the Court majority (Rehnquist, White, Powell, O’Connor, and Scalia) focused on the mental state of the accomplice and the degree of participation in the criminal activity that culminated in murder. Examining the facts in Tison, Justice Sandra Day O’Connor contended for the majority that the Eighth Amendment does not prohibit the imposition of the death penalty on a nontriggerman accomplice who “had the culpable mental state of reckless indifference to human life” and whose participation in the several activities that eventually resulted in murder was “major.” Justice Brennan wrote a sharp dissent, which was joined by Justice Marshall and supported in part by Justices Blackmun and Stevens, in which he complained that the majority’s approval of state felonymurder statutes represented a return to a legal era in which those convicted of all kinds of felonies were subjected to capital punishment. Indeed, he noted, such a policy is at odds with doctrines adhered to in most of our states and in practically all of the

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Western world. As a consequence, he would continue to adhere to the doctrine established in Enmund, which requires proof of “intent to kill” before the death penalty may be imposed on a nontriggerman accomplice. Considerations regarding the penalty segment of the bifurcated death penalty trial have presented other controversial questions to the Court. In California v. Brown (479 U.S. 538, 1987), for example, the Court appeared to allow trial judges considerable discretion in guiding juries while they listened to the presentation of evidence of mitigating circumstances. In that case, a bare majority of the justices did not consider a trial judge’s caution to the sentencing jury that it should not be “swayed by sentiment, sympathy, public opinion, or passion, etc.” to be an unconstitutional interference with the defendant in the presentation of evidence of mitigating circumstances. But in another ruling related to the introduction of evidence at the penalty phase, the Court disallowed the presentation of victim-impact statements. In Booth v. Maryland (482 U.S. 496, 1987), a bare majority of the Court (Brennan, Marshall, Blackmun, Powell, and Stevens) held that statements describing the emotional impact of the crime on surviving family members is irrelevant to the sentence decision-making process. Similarly, in South Carolina v. Gathers two years later (490 U.S. 805, 1989), the Court held that the fact that the murder victim was a religious man and a registered voter (as established by documents found on his person at the murder scene) was irrelevant to sentencing because the murderer was unaware of such information, so it did not go into the moral calculation of his crime. Given that it did not go into the calculation of the crime, the Court found that it should also not go into the calculation of the sentence. The Booth–Gathers rulings, however, did not settle in as significant precedents, for only four years after the Gathers decision, Chief Justice Rehnquist led the 6–3 majority in brushing both rulings aside in Payne v. Tennessee (501 U.S. 808, 1991). Asserting that victim-impact statements serve legitimate purposes by providing sentencing authorities another method of informing themselves, the chief justice argued that in both Booth and Gathers the Court had wrongly characterized Vis evidence as leading “to the arbitrary imposition of the death penalty.” Hence, he felt that the Court should not be bound by those decisions and concluded bluntly that “when governing decisions are unworkable or are badly reasoned,

‘this Court has never felt constrained to follow precedent.’” In a particularly sharp dissent, his last opinion before retirement, Justice Thurgood Marshall hurled a parting shot at his conservative brethren. Apparently greatly disturbed by the majority’s cavalier treatment of the stare decisis doctrine, he thundered that “power, not reason, is the new currency of this Court’s decision making.” Noting that “neither the law nor the facts supporting Booth and Gathers” had undergone change since they were decided, he warned that the majority’s action in Payne “suggests that an even more extensive upheaval of . . . precedents may be in store.” The Court considered another dimension of information that should be presented to the jury during its determination of the penalty on a convicted murderer in Simmons v. South Carolina (512 U.S. 154) in 1994. Some people are concerned that a life sentence often does not keep a person who has been convicted of a capital offense incarcerated until he or she dies. Fearing that a particularly dangerous felon could be released under the terms of a life sentence, some jurors may consider the death penalty to be their only viable option. To provide the sentencing-phase jury with better information in such a circumstance, a 7–2 majority held that where state law does not allow parole for a capital defendant who has been sentenced to a life term, due process requires that the sentencing jury be informed of such parole ineligibility. A critical death penalty question was presented to the Court in Ford v. Wainwright (477 U.S. 399, 1986), in which the Court had to determine for the first time whether the Eighth Amendment bars a state from executing an insane prisoner. Citing the common-law jurisprudence that has developed over the centuries and the constitutional law and practices of the several states, a majority of the Court concluded that it did. Both Justice Marshall in his plurality opinion and Justice Powell in his partial concurrence underscored the cruelty and inhumanity of a policy that permits the execution of a person who has lost his or her sanity. Both justices also concluded that Florida’s procedures for determining the condemned prisoner’s sanity were constitutionally inadequate. For Justice Powell the proper test is “whether the prisoner is aware of his impending execution and the reason for it.” Three years later, the Court was asked to consider mental retardation in the imposition of the death penalty. In Penry v. Lynaugh (492 U.S. 302, 1989),

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Justice O’Connor played a pivotal role in crafting an opinion to dispose the two critical issues raised in the appeal. First, she joined the liberal bloc (Brennan, Marshall, Blackmun, and Stevens) to set aside Penry’s death sentence because the trial judge’s construction of relevant Texas law did not permit the sentencing jury to consider adequately his mental deficiency. On the central constitutional question, however, O’Connor joined her conservative colleagues (Rehnquist, White, Scalia, and Kennedy) to hold that the “evidence of a national consensus against the imposition of the death penalty on murderers with mental deficiencies was insufficient to conclude that the Eighth Amendment bars it absolutely.” The death penalty controversy spawned another difficult question for consideration by the Court in 1988—whether the Constitution allows the several states to execute minors. But the Court did not provide the definitive answer in Thompson v. Oklahoma (487 U.S. 815), as only four justices agreed that the Eighth Amendment prohibits the execution of a person who was under sixteen years of age at the time the offense was committed. Justice Stevens, in whose opinion Justices Brennan, Marshall, and Blackmun joined, argued that the appropriate Eighth Amendment standard “must be guided by the ‘evolving standards of decency that mark the progress of a maturing society,’” and that the imposition of the death penalty on juveniles below sixteen years old “is now generally abhorrent to the conscience of the community.” Justice O’Connor agreed that Thompson’s conviction should be vacated and remanded because of defects in the Oklahoma statute. However, she was not ready to accept the view that the Constitution prohibits states from executing juvenile offenders below the age of sixteen until the Court was presented with better evidence that a societal consensus supports the prohibition. Hence, whether and when a proscription on juvenile executions would become a dimension of our Eighth Amendment’s jurisprudence had to await another such case in another term of the Court. One year later, Justice O’Connor switched sides and joined the four Thompson dissenters to rule that there was no “national consensus” that the Eighth Amendment bars states from imposing the death penalty on juveniles less than eighteen years of age. In the companion cases of Stanford v. Kentucky and Wilkins v. Missouri (492 U.S. 361, 1989), the Court upheld the imposition of the death penalty on 400

sixteen- and seventeen-year-old murderers. In his opinion for the Court, Justice Antonin Scalia reviewed the extant federal and state laws on the issue (which he considered to be “[t]he primary and most reliable evidence of national consensus”) and concluded that the evidence of a national consensus opposing the death penalty for juveniles was insufficient to characterize the imposition of the death penalty in these contexts as cruel and unusual. Nor did he believe that these state policies were “contrary to the ‘evolving standards of decency that mark the progress of a maturing society.’” As would be expected, the dissenters (Justices Brennan, Marshall, Blackmun, and Stevens) reviewed the same evidence and came to the opposite conclusion. National interest in the imposition of the death penalty on juvenile capital offenders intensified in the late 1990s as boys as young as eleven and thirteen years old were charged for particularly heinous multiple murders at schools. Incidents in Jonesboro, Arkansas, in 1998 and at a school dance in Edinboro, Pennsylvania, several weeks later prompted legislators and governors across the country to propose legislation that would allow the imposition of the death penalty on capital offenders even as young as eleven years old. It is unlikely that the minimum age for imposition of the ultimate penalty will be lowered significantly below the current (2010) minimum of sixteen in force in some jurisdictions. The widespread concern about juvenile capital offenders did not escape the attention of some members of Congress. Proposals in Congress aimed at federalizing the prosecution of juveniles who are ordered to stand trial as adults have drawn criticism from Chief Justice Rehnquist, not because of the possibility of lowering the age for the imposition of the death penalty, but because the chief justice thought that such prosecutions should continue to be left to the states. In addition, he was troubled by the potential increased workload for the federal courts that the measures would spawn. The Rehnquist Court underscored its deepening impatience with lengthy appellate review procedures that have enabled some death row inmates to delay their execution for years when it decided McCleskey v. Zant (499 U.S. 467) in 1991. The Court heightened the burden on inmate use of habeas corpus petitions to raise constitutional claims challenging their sentences. Some death-row inmates had engaged in the practice of raising different claims in successive separate actions, which

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had the practical effect of staying their execution date pending disposition of their petitions. (As soon as a claim in one petition was denied, they would file another petition raising a different claim.) In his opinion for the Court, Justice Anthony Kennedy focused on inmate abuse of the habeas corpus writ to set out standards that would be applied to the consideration of petitions following the initial petition. These standards would allow dismissal for abusive use unless the inmate showed that: (1) there was cause for not having raised the claim earlier, and (2) he or she had suffered “actual prejudice” from the constitutional error that was claimed in the trial and/or sentencing process. This redefined “abuse of writ” standard would make it easier for prosecutors to challenge the flow of habeas corpus petitions that Justice Kennedy thought had raised a threat to the integrity of the habeas corpus process. Finally, Congress added its concern about the abuse of habeas corpus petitions by death-row inmates by including in the Antiterrorism and Effective Death Penalty Act provisions that restrict federal courts in the disposition of such petitions. The Court sustained the act’s constitutionality in Felker v. Turpin (518 U.S. 651, 1996) when it rejected claims that the act should not stand because it

precluded the Court from entertaining applications for habeas corpus relief, although it imposed certain procedural requirements on the Court’s review of appeals from lower court actions on second habeas petitions. And in its 1997 term, the Court considered the effectiveness of the statutory provisions in the context of its decision in Calderon v. Thompson (523 U.S. 538, 1998). The Court sharply criticized the Court of Appeals for the Ninth Circuit for blocking the scheduled execution of a convicted murderer just two days before the execution was to take place. The Thompson case illustrates how death-row inmates use habeas corpus petitions in both state and federal courts to try to overcome the scheduled execution. Thompson’s efforts to escape execution ranged over a period of some thirteen years after his conviction. In addition, the case is important because it examines the effectiveness of the statutory restrictions that are placed on the federal courts in considering habeas corpus petitions, particularly of death-row inmates. Cf. Buchanan v. Angelone (522 U.S. 269, 1975), in which the Court, just a few months before Thompson, sustained a lower federal court decision on a habeas petition of a death-row inmate that alleged faulty instructions on mitigating circumstances given the jury in the penalty phase of the trial.

GREGG V. GEORGIA 428 U.S. 153; 49 L. Ed. 2d 857; 96 S. Ct. 2906 (1976) JUSTICES STEWART, POWELL, and STEVENS announced the judgment of the Court and filed an opinion delivered by JUSTICE STEWART. JUSTICE WHITE filed a concurring opinion, in which CHIEF JUSTICE BURGER and JUSTICE REHNQUIST joined. JUSTICES BRENNAN and MARSHALL filed dissenting opinions. JUSTICES STEWART, POWELL, and STEVENS announced the judgment of the Court and filed an opinion delivered by JUSTICE STEWART. The issue in this case is whether the imposition of the sentence of death for the crime of murder under the law of Georgia violates the Eighth and Fourteenth Amendments.

I The petitioner, Troy Gregg, was charged with committing armed robbery and murder. In accordance with Georgia procedure in capital cases, the trial was in two stages, a guilt stage and a sentencing stage. The evidence at the guilt trial established that on November 21, 1973, the petitioner and a traveling companion, Floyd Allen, while hitchhiking north in Florida, were picked up by Fred Simmons and Bob Moore. Their car broke down, but they continued north after Simmons purchased another vehicle with some of the cash he was carrying. While still in

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Florida, they picked up another hitchhiker, Dennis Weaver, who rode with them to Atlanta, where he was let out about 11 P.M. A short time later the four men interrupted their journey for a rest stop along the highway. The next morning the bodies of Simmons and Moore were discovered in a ditch nearby. On November 23, after reading about the shootings in an Atlanta newspaper, Weaver communicated with the Gwinnett County police and related information concerning the journey with the victims, including a description of the car. The next afternoon, the petitioner and Allen, while in Simmons’s car, were arrested in Ashville, N.C. . . . After receiving the warnings required by Miranda, and signing a written waiver of his rights, the petitioner signed a statement in which he admitted shooting, then robbing, Simmons and Moore. He justified the slayings on grounds of self-defense. . . . [The next day Allen gave police his version of the events at the scene of the slayings. At the subsequent trial] the jury found the petitioner guilty of two counts of armed robbery and two counts of murder. At the penalty stage, which took place before the same jury, . . . the judge instructed the jury that it “would not be authorized to consider [imposing] the sentence of death” unless it first found beyond a reasonable doubt one of these aggravating circumstances: One—That the offense of murder was committed while the offender was engaged in the commission o[f] two other capit[a]l felonies, to-wit the armed ro[b]bery of [Simmons and Moore]. Two—That the offender committed the offense of murder for the purpose of receiving money and the automobile described in the indictment. Three—The offense of murder was outrageously and wantonly vile, horrible and inhuman, in that they [sic] involved the depravity of the mind of the defendant.

Finding the first and second of these circumstances, the jury returned verdicts of death on each count. The Supreme Court of Georgia affirmed the convictions and the imposition of the death sentences for murder. . . . The death sentences imposed for armed robbery, however, were vacated on the grounds that the death penalty had rarely been imposed in Georgia for that offense. . . . We granted the petitioner’s application for a writ of certiorari challenging the imposition of the death sentence in this case as “cruel and unusual” punish402

ment in violation of the Eighth and the Fourteenth Amendments. . . . II Before considering the issues presented it is necessary to understand the Georgia statutory scheme for the imposition of the death penalty. The Georgia statute, as amended after our decision in Furman . . . retains the death penalty for six categories of crime: murder, kidnapping for ransom or where the victim is harmed, armed robbery, rape, treason, and aircraft hijacking. . . . The capital defendant’s guilt or innocence is determined in the traditional manner, either by a trial judge or a jury, in the first stage of a bifurcated trial. If trial is by jury, the trial judge is required to charge lesser included offenses when they are supported by any view of the evidence. . . . After a verdict, finding or plea of guilty to a capital crime, a presentence hearing is conducted before whoever made the determination of guilt. The sentencing procedures are essentially the same in both bench and jury trials. At the hearing, the judge (or jury) shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any prior conviction and pleas: Provided however, that only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible. In the assessment of the appropriate sentence to be imposed the judge is also required to consider or to include in his instructions to the jury “any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of (10) statutory aggravating circumstances which may be supported by the evidence. . . . “The scope of the nonstatutory aggravating or mitigating circumstances is not delineated in the statute. Before a convicted defendant may be sentenced to death, however, except in cases of treason or aircraft hijacking, the jury, or the trial judge in cases tried without a jury, must find beyond a reasonable doubt one of the 10 aggravating circumstances specified in the statute. . . . If the verdict is death the jury or judge must specify the aggravating circumstance(s) found. . . . In jury cases, the trial judge is bound by the jury’s recommended sentence. . . . In addition to the conventional appellate process available in all criminal cases, provision is made for

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special expedited direct review by the Supreme Court of Georgia of the appropriateness of imposing the sentence of death in the particular case. The court is directed to consider “the punishment as well as any errors enumerated by way of appeal,” and to determine: 1. Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and 2. Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in section 27.2534.1(b), and 3. Whether the sentence of death is excessive or disproportionate to the penalty, imposed in similar cases considering both the crime and the defendant.

If the court affirms a death sentence, it is required to include in its decision reference to similar cases that it has taken into consideration. . . . III We address initially the basic contention that the punishment of death for the crime of murder is, under all circumstances, “cruel and unusual” in violation of the Eighth and Fourteenth Amendments of the Constitution. In Part IV of this opinion, we will consider the sentence of death imposed under the Georgia statutes at issue in this case. The Court on a number of occasions has both assumed and asserted the constitutionality of capital punishment. In several cases that assumption provided a necessary foundation for the decision, as the Court was asked to decide whether a particular method of carrying out a capital sentence would be allowed to stand under the Eighth Amendment. But until Furman v. Georgia (1972) the Court never confronted squarely the fundamental claim that the punishment of death always, regardless of the enormity of the offense or the procedure followed in imposing the sentence, is cruel and unusual punishment in violation of the Constitution. Although this issue was presented and addressed in Furman, it was not resolved by the Court. Four justices would have reached the opposite conclusion; and three justices, while agreeing that the statutes then before the Court were invalid as applied, left open the question whether such punishment may ever be imposed. We now hold that the punishment of death does not invariably violate the Constitution.

The history of the prohibition of “cruel and unusual” punishment already has been reviewed by this Court at length. . . . In the earliest cases raising Eighth Amendment claims, the Court focused on particular methods of execution to determine whether they were too cruel to pass constitutional muster. The constitutionality of the sentence of death itself was not at issue, and the criterion used to evaluate the mode of execution was its similarity to “torture” and other “barbarous” methods. . . . But the Court has not confined the prohibition embodied in the Eighth Amendment to “barbarous” methods that were generally outlawed in the eighteenth century. Instead, the Amendment has been interpreted in a flexible and dynamic manner. The Court early recognized that “a principle to be vital must be capable of wider application than the mischief which gave it birth.” Weems v. United States, 217 U.S. 349, 373 (1910). Thus the clause forbidding “cruel and unusual” punishments “is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.” Id., at 378. . . . It is clear that the Eighth Amendment has not been regarded as a static concept. As CHIEF JUSTICE WARREN said, in an oft-quoted phrase, “[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. at 101. . . . Thus, an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application of the Eighth Amendment. . . . It requires, rather, that we look to objective indicia that reflect the public attitude toward a given sanction. But our cases also make clear that public perceptions of standards of decency with respect to criminal sanctions are not conclusive. A penalty also must accord with “the dignity of man,” which is the “basic concept underlying the Eighth Amendment.”. . . This means, at least, that the punishment not be “excessive.” When a form of punishment in the abstract . . . is under consideration, the inquiry into “excessiveness” has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain. . . . Second, the punishment must not be grossly out of proportion to the severity of the crime. . . . *** We now consider specifically whether the sentence of death for the crime of murder is a per se violation of the Eighth and Fourteenth Amendments to the

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Constitution. We note first that history and precedent strongly support a negative answer to this question. The imposition of the death penalty for the crime of murder has a long history of acceptance both in the United States and in England. The common-law rule imposed a mandatory death sentence on all convicted murderers. . . . And the penalty continued to be used into the twentieth century by most American States, although the breadth of the common-law rule was diminished, initially by narrowing the class of murders to be punished by death and subsequently by widespread adoption of laws expressly granting juries the discretion to recommend mercy. . . . It is apparent from the test of the Constitution itself that the existence of capital punishment was accepted by the Framers. At the time the Eighth Amendment was ratified, capital punishment was a common sanction in every State. Indeed, the First Congress of the United States enacted legislation providing death as the penalty for specified crimes. . . . The Fifth Amendment, adopted at the same time as the Eighth, contemplated the continued existence of the capital sanction by imposing certain limits on the prosecution of capital cases. . . . And the Fourteenth Amendment, adopted over three-quarters of a century later, similarly contemplates the existence of the capital sanction in providing that no State shall deprive any person of “life, liberty, or property” without due process of law. For nearly two centuries, this Court, repeatedly and often expressly, has recognized that capital punishment is not invalid per se. . . . Four years ago, the petitioners in Furman and its companion cases predicated their argument primarily upon the asserted proposition that standards of decency had evolved to the point where capital punishment no longer could be tolerated. . . . This view was accepted by two justices. Three other justices were unwilling to go so far. . . . The petitioners . . . before the Court today renew the “standards of decency” argument, but developments during the four years since Furman have undercut substantially the assumptions upon which their argument rested. Despite the continuing debate, dating back to the nineteenth century, over the morality and utility of capital punishment, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction. The most marked indication of society’s endorsement of the death penalty for murder is the legisla404

tive response to Furman. The legislatures of at least thirty-five States have enacted new statutes that provide for the death penalty for at least some crimes that result in the death of another person. And the Congress of the United States, in 1974, enacted a statute providing the death penalty for aircraft piracy that results in death. These recently adopted statutes have attempted to address the concerns expressed by the Court in Furman. . . . But all of the post-Furman statutes make clear that capital punishment itself has not been rejected by the elected representatives of the people. In the only state-wide referendum occurring since Furman was brought to our attention, the people of California adopted a constitutional amendment that authorized capital punishment. . . . The jury also is a significant and reliable objective index of contemporary values because it is so directly involved. . . . Indeed, the actions of juries in many States since Furman is [sic] fully compatible with the legislative judgments, reflected in the new statutes, as to the continued utility and necessity of capital punishment in appropriate cases. At the close of 1974 at least 254 persons had been sentenced to death since Furman, and by the end of March 1976, more than 460 persons were subject to death sentences. . . . The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders. In part, capital punishment is an expression of society’s moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self-help to vindicate their wrongs. . . . “Retribution is no longer the dominant objective of the criminal law,” Williams v. New York, 337 U.S. 241, 248 (1949), but neither is it a forbidden objective nor one inconsistent with our respect for the dignity of men. . . . Indeed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death. Statistical attempts to evaluate the worth of the death penalty as a deterrent to crimes by potential offenders have occasioned a great deal of debate. The results simply have been inconclusive. . . . Although some of the studies suggest that the death penalty may not function as a significantly

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greater deterrent than lesser penalties, there is no convincing empirical evidence either supporting or refuting this view. We may nevertheless assume safely that there are murderers, such as those who act in passion, for whom the threat of death has little or no deterrent effect. But for many others, the death penalty undoubtedly is a significant deterrent. . . . The value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts. . . . In sum, we cannot say that the judgment of the Georgia legislature that capital punishment may be necessary in some cases is clearly wrong. Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe. Finally, we must consider whether the punishment of death is disproportionate in relation to the crime for which it is imposed. There is no question that death as a punishment is unique in its severity and irrevocability. . . . When a defendant’s life is at stake, the Court has been particularly sensitive to insure that every safeguard is observed. . . . But we are concerned here only with the imposition of capital punishment for the crime of murder, and when a life has been taken deliberately by the offender, we cannot say that the punishment is invariably disproportionate to the crimes. . . . IV [Here the Court reviews the mandate of Furman on sentencing discretion.] B We now turn to consideration of the constitutionality of Georgia’s capital-sentencing procedures. In the wake of Furman, Georgia amended its capital punishment statute, but chose not to narrow the scope of its murder provisions. . . . These procedures require the jury to consider the circumstances of the crime and the criminal before it recommends sentence. No longer can a Georgia jury

do as Furman’s jury did: reach a finding of the defendant’s guilt and then, without guidance or direction, decide whether he should live or die. . . . Georgia’s new sentencing procedures require as a prerequisite to the imposition of the death penalty, specific jury findings as to the circumstances of the crime or the character of the defendant. Moreover, to guard further against a situation comparable to that presented in Furman, the Supreme Court of Georgia compares each death sentence with the sentences imposed on similarly situated defendants to ensure that the sentence of death in a particular case is not disproportionate. On their face these procedures seem to satisfy the concerns of Furman. . . . [The concurring opinion of JUSTICE WHITE, joined by CHIEF JUSTICE BURGER and JUSTICE REHNQUIST, is not reprinted here.] JUSTICE BRENNAN, dissenting: In Furman v. Georgia, . . . I read “evolving standards of decency” as requiring focus upon the essence of the death penalty itself and not primarily or solely upon the procedures under which the determination to inflict the penalty upon a particular person was made. I there said: At bottom, the battle has been waged on moral grounds. The country has debated whether a society for which the dignity of the individual is the supreme value can, without a fundamental inconsistency, follow the practice of deliberately putting some of its members to death. In the United States, as in other nations of the western world, the struggle about this punishment has been one between ancient and deeply rooted beliefs in retribution, atonement or vengeance on the one hand, and, on the other, beliefs in the personal value and dignity of the common man that were born of the democratic movement of the eighteenth century, as well as beliefs in the scientific approach to an understanding of the motive forces of human conduct, which are the result of the growth of the sciences of behavior during the nineteenth and twentieth centuries. It is this essentially moral conflict that forms the backdrop for the past changes in and the present operation of our system of imposing death as a punishment for crime.

That continues to be my view. For the Clause forbidding cruel and unusual punishments under our constitutional system of government embodies in unique degree moral principles restraining the punishments that our civilized society may impose on those persons who transgress its laws. . . .

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This Court inescapably has the duty, as the ultimate arbiter of the meaning of our Constitution, to say whether, when individuals condemned to death stand before our Bar, “moral concepts” require us to hold that the law has progressed to the point where we should declare that the punishment of death, like punishments on the rack, the screw and the wheel, is no longer morally tolerable in our civilized society. . . . I emphasize only that foremost among the “moral concepts” recognized in our cases and inherent in the Clause is the primary moral principle that the State, even as it punishes, must treat its citizens in a manner consistent with their intrinsic worth as human beings—a punishment must not be so severe as to be degrading to human dignity. A judicial determination whether the punishment of death comports with human dignity is therefore not only permitted but compelled by the Clause. . . . I do not understand that the Court disagrees that “[i]n comparison to all other punishments today . . . the deliberate extinguishment of human life by the

State is uniquely degrading to human dignity.”. . . For three of my Brethren hold today that mandatory infliction of the death penalty constitutes the penalty cruel and unusual punishment. I perceive no principled basis for this limitation. Death for whatever crime and under all circumstances “is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity. . . . ” *** The fatal constitutional infirmity in the punishment of death is that it treats “members of the human race as nonhumans, as objects to be toyed with and discarded. [It] is thus inconsistent with the fundamental premise of the Clause that even the vilest criminal remains a human being possessed of common human dignity.”. . . As such it is a penalty that “subjects the individual to a fate forbidden by the principle of civilized treatment guaranteed by the [Clause]. . . . ’

MCCLESKEY V. KEMP 481 U.S. 279 (1987) JUSTICE POWELL delivered the opinion of the Court, in which CHIEF JUSTICE REHNQUIST and JUSTICE WHITE, O’CONNOR, and SCALIA joined. JUSTICE BRENNAN filed a dissenting opinion in which JUSTICE MARSHALL joined, and in all but Part I of which JUSTICE BLACKMUN and STEVENS joined. JUSTICE BLACKMUN filed a dissenting opinion in which JUSTICE MARSHALL and STEVENS joined, and in all but Part IV-B of which JUSTICE BRENNAN joined. JUSTICE STEVENS filed a dissenting opinion in which JUSTICE BLACKMUN joined. JUSTICE POWELL delivered the opinion of the Court. This case presents the question whether a complex statistical study that indicates a risk that racial considerations enter into capital sentencing determinations proves that petitioner McCleskey’s capital 406

sentence is unconstitutional under the Eighth or Fourteenth Amendment. I McCleskey, a black man, was convicted of two counts of armed robbery and one count of murder in the Superior Court of Fulton County, Georgia, on October 12, 1978. McCleskey’s convictions arose out of the robbery of a furniture store and the killing of a white police officer during the course of the robbery. The evidence at trial indicated that McCleskey and three accomplices planned and carried out the robbery. All four were armed. . . . During the course of the robbery, a police officer, answering a silent alarm, entered the store through the front door. As he was walking down the center aisle of the store, two shots were fired. Both struck the officer. One hit him in the face and killed him.

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Several weeks later, McCleskey was arrested in connection with an unrelated offense. He confessed that he had participated in the furniture store robbery but denied that he had shot the police officer. At trial, the State introduced evidence that at least one of the bullets that struck the officer was fired from a .38 caliber Rossi revolver. This description matched the description of the gun that McCleskey had carried during the robbery. The State also introduced the testimony of two witnesses who had heard McCleskey admit to the shooting. The jury convicted McCleskey of murder. At the penalty hearing, the jury heard arguments as to the appropriate sentence. Under Georgia law, the jury could not consider imposing the death penalty unless it found beyond a reasonable doubt that the murder was accompanied by one of the statutory aggravating circumstances. [Ilt . . . found two aggravating circumstances to exist beyond a reasonable doubt: the murder was committed during the course of an armed robbery, . . . and the murder was committed upon a peace officer engaged in the performance of his duties. . . . In making its decision whether to impose the death sentence, the jury considered the mitigating and aggravating circumstances of McCleskey’s conduct. . . . McCleskey offered no mitigating evidence. The jury recommended that he be sentenced to death on the murder charge and to consecutive life sentences on the armed robbery charges. The court followed the jury’s recommendation and sentenced McCleskey to death. On appeal, the Supreme Court of Georgia affirmed the convictions and the sentences. This Court denied a petition for a writ of certiorari. The Superior Court of Fulton County denied McCleskey’s extraordinary motion for a new trial. McCleskey then filed a petition for a writ of habeas corpus in the Superior Court of Butts County. After holding an evidentiary hearing, the Superior Court denied relief. The Supreme Court of Georgia denied McCleskey’s application for a certificate of probable cause to appeal the Superior Court’s denial of his petition, and this Court again denied certiorari. . . . McCleskey next filed a petition for a writ of habeas corpus in the federal District Court for the Northern District of Georgia. His petition raised 18 claims, one of which was that the Georgia capital sentencing process is administered in a racially discriminatory manner in violation of the Eighth and Fourteenth Amendments to the United States Constitution. In support of his claim, McCleskey proffered a statistical study performed by Professors

David C. Baldus, George Woodworth, and Charles Pulanski (the Baldus study) that purports to show a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant. The Baldus study is actually two sophisticated statistical studies that examine over 2,000 murder cases that occurred in Georgia during the 1970s. The raw numbers collected by Professor Baldus indicate that defendants charged with killing white persons received the death penalty in 11 percent of the cases, but defendants charged with killing blacks received the death penalty in only 1 percent of the cases. The raw numbers also indicate a reverse racial disparity according to the race of the defendant: 4 percent of the black defendants received the death penalty, as opposed to 7 percent of the white defendants. Baldus also divided the cases according to the combination of the race of the defendant and the race of the victim. He found that the death penalty was assessed in 22 percent of the cases involving black defendants and white victims; 8 percent of the cases involving white defendants and white victims; 1 percent of the cases involving black defendants and black victims; and 3 percent of the cases involving white defendants and black victims. Similarly, Baldus found that prosecutors sought the death penalty in 70 percent of the cases involving black defendants and white victims; 32 percent of the cases involving white defendants and white victims; 15 percent of the cases involving black defendants and black victims; and 19 percent of the case [sic] involving white defendants and black victims. Baldus subjected his data to an extensive analysis, taking account of 230 variables that could have explained the disparities on nonracial grounds. One of his models concludes that, even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks. According to this model, black defendants were 1. 1 times as likely to receive a death sentence as other defendants. Thus, the Baldus study indicates that black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty. The District Court held an extensive evidentiary hearing on McCleskey’s petition [and] . . . considered the Baldus study with care. It concluded that McCleskey’s “statistics do not demonstrate a prima facie case in support of the contention that the death

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penalty was imposed upon him because of his race, because of the race of the victim, or because of any Eighth Amendment concern.” McCleskey v. Zant, 580 F. Supp. 338, 379 (ND Ga. 1984). As to McCleskey’s Fourteenth Amendment claim, the court found that the methodology of the Baldus study was flawed in several respects. Because of these defects, the court held that the Baldus study “fail[ed] to contribute anything of value” to McCleskey’s claim, [and] . . . dismissed the petition. . . . The Court of Appeals affirmed the dismissal by the District Court . . . with three judges dissenting as to McCleskey’s claims based on the Baldus study. We granted certiorari and now affirm. II McCleskey’s first claim is that the Georgia capital punishment statute violates the Equal Protection Clause of the Fourteenth Amendment. He argues that race has infected the administration of Georgia’s statute in two ways: persons who murder whites are more likely to be sentenced to death than persons who murder blacks, and black murderers are more likely to be sentenced to death than white murderers. As a black defendant who killed a white victim, McCleskey claims that the Baldus study demonstrates that he was discriminated against because of his race and because of the race of his victim. . . . A Our analysis begins with the basic principle that a defendant who alleges an equal protection violation has the burden of proving “the existence of purposeful discrimination.” A corollary to this principle is that a criminal defendant must prove that the purposeful discrimination “had a discriminatory effect” on him. Thus, to prevail under the Equal Protection Clause, McCleskey must prove that the decision makers in his case acted with discriminatory purpose. He offers no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence. Instead, he relies solely on the Baldus study. McCleskey argues that the Baldus study compels an inference that his sentence rests on purposeful discrimination. McCleskey’s claim that these statistics are sufficient proof of discrimination, without regard to the facts of a particular case, would extend to all capital cases in Georgia, at least where the victim was white and the defendant black. 408

The Court has accepted statistics as proof of intent to discriminate in certain limited contexts. First, this Court has accepted statistical disparities as proof of an equal protection violation in the selection of the jury venire in a particular district. Although statistical proof normally must present a “stark” pattern to be accepted as the sole proof of discriminatory intent under the Constitution, “[b] ecause of the nature of the jury-selection task . . . we have permitted a finding of constitutional violation even when the statistical pattern does not approach [such] extremes.” Second, this Court has accepted statistics in the form of multiple regression analysis to prove statutory violations under Title VII [of the 1964 Civil Rights Act]. But the nature of the capital-sentencing decision, and the relationship of the statistics to that decision, are fundamentally different from the corresponding elements in the venire-selection or Title VII cases. Most importantly, each particular decision to impose the death penalty is made by a petit jury selected from a properly constituted venire. Each jury is unique in its composition, and the Constitution requires that its decision rest on consideration of innumerable factors that vary according to the characteristics of the individual defendant and the facts of the particular capital offense. Thus, the application of an inference drawn from the general statistics to a specific decision in a trial and sentencing simply is not comparable to the application of an inference drawn from general statistics to a specific venireselection or Title VII case. In those cases, the statistics relate to fewer entities, and fewer variables are relevant to the challenged decision. Another important difference between the cases in which we have accepted statistics as proof of discriminatory intent and this case is that, in the venireselection and Title VII contexts, the decision maker has an opportunity to explain the statistical disparity. Here, the State has no practical opportunity to rebut the Baldus study. [C]ontrolling considerations of . . . public policy” dictate that jurors “cannot be called . . . to testify to the motives and influences that led to their verdict.” Similarly, the policy considerations behind a prosecutor’s traditionally “wide discretion” suggest the impropriety of our requiring prosecutors to defend their decisions to seek death penalties “often years after they were made.” Moreover, absent far stronger proof, it is unnecessary to seek such a rebuttal, because a legitimate and unchallenged explanation for the decision is apparent from the record: McCleskey committed an act for which the

The Rights of the Accused and the Criminal Justice System

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

United States Constitution and Georgia laws permit imposition of the death penalty. Finally, McCleskey’s statistical proffer must be viewed in the context of his challenge. McCleskey challenges decisions at the heart of the State’s criminal justice system. “[O]ne of society’s most basic tasks is that of protecting the lives of its citizens, and one of the most basic ways in which it achieves the task is through criminal laws against murder.” Implementation of these laws necessarily requires discretionary judgments. Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. The unique nature of the decisions at issue in this case also counsels against adopting such an inference from the disparities indicated by the Baldus study. Accordingly, we hold that the Baldus study is clearly insufficient to support an inference that any of the decision makers in McCleskey’s case acted with discriminatory purpose. B McCleskey also suggests that the Baldus study proves that the State as a whole has acted with a discriminatory purpose. He appears to argue that the State has violated the Equal Protection Clause by adopting the capital punishment statute and allowing it to remain in force despite its allegedly discriminatory application. But “‘[d]iscriminatory purpose’ . . . implies more than intent as volition or intent as awareness of consequences. It implies that the decision maker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” For this claim to prevail, McCleskey would have to prove that the Georgia Legislature enacted or maintained the death penalty statute because of an anticipated racially discriminatory effect. In Gregg v. Georgia, this Court found that the Georgia capital sentencing system could operate in a fair and neutral manner. There was no evidence then, and there is none now, that the Georgia Legislature enacted the capital punishment statute to further a racially discriminatory purpose. Nor has McCleskey demonstrated that the legislature maintains the capital punishment statute because of the racially disproportionate impact suggested by the Baldus study. As legislatures necessarily have wide discretion in the choice of criminal laws and penalties, and as there were legitimate rea-

sons for the Georgia Legislature to adopt and maintain capital punishment, we will not infer a discriminatory purpose on the part of the State of Georgia. Accordingly, we reject McCleskey’s equal protection claims. III McCleskey also argues that the Baldus study demonstrates that the Georgia capital sentencing system violates the Eighth Amendment. . . . [Here JUSTICE POWELL’S analysis focuses on Furman, Gregg, and post-Gregg rulings to elucidate the requirements of the capital sentencing process.] D In sum, our decisions since Furman have identified a constitutionally permissible range of discretion in imposing the death penalty. First, there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decision maker’s judgment as to whether the circumstances of a particular defendant’s case meet the threshold. Moreover, a societal consensus that the death penalty is disproportionate to a particular offense prevents a State from imposing the death penalty for that offense. Second, States cannot limit the sentencer’s consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot channel the sentencer’s discretion, but must allow it to consider any relevant information offered by the defendant. IV A In light of our precedents under the Eighth Amendment, McCleskey cannot argue successfully that his sentence is “disproportionate to the crime in the traditional sense.” He does not deny that he committed a murder in the course of a planned robbery, a crime for which this Court has determined that the death penalty constitutionally may be imposed. His disproportionality claim “is of a different sort.” McCleskey argues that the sentence in his case is disproportionate to the sentences in other murder cases. On the one hand, he cannot base a constitutional claim on an argument that his case differs from other cases in which defendants did receive the death penalty. On automatic appeal, the Georgia Supreme

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Court found that McCleskey’s death sentence was not disproportionate to other death sentences imposed in the State. The court supported this conclusion with an appendix containing citations to 13 cases involving generally similar murders. Moreover, where the statutory procedures adequately channel the sentencer’s discretion, such proportionality review is not constitutionally required. On the other hand, absent a showing that the Georgia capital punishment system operates in an arbitrary and capricious manner, McCleskey cannot prove a constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty. . . . Because McCleskey’s sentence was imposed under Georgia sentencing procedures that focus discretion “on the particularized nature of the crime and the particularized characteristics of the individual defendant,” we lawfully may presume that McCleskey’s death sentence was not “-wantonly and freakishly” imposed, and thus that the sentence is not disproportionate within any recognized meaning under the Eighth Amendment. B . . . McCleskey . . . further contends that the Georgia capital punishment system is arbitrary and capricious in application, and therefore his sentence is excessive, because racial considerations may influence capital sentencing decisions in Georgia. We now address this claim. To evaluate McCleskey’s challenge, we must examine exactly what the Baldus study may show. Even Professor Baldus does not contend that his statistics prove that race enters into any capital sentencing decisions, or that race was a factor in McCleskey’s particular case. Statistics at most may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury’s decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials. The question “is at what point that risk becomes constitutionally unacceptable.” McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decision. This we decline to do. Because of the risk that the factor of race may enter the criminal justice process, we have engaged in “unceasing efforts” to eradicate racial prejudice 410

from our criminal justice system. Our efforts have been guided by our recognition that “the inestimable privilege of trial by jury . . . is a vital principle, underlying the whole administration of criminal justice.” Thus, it is the jury that is a criminal defendant’s fundamental “protection of life and liberty against race or color prejudice.” Specifically, a capital sentencing jury representative of a criminal defendant’s community assures a “‘Diffused impartiality,’” in the jury’s task of “express[ing] the conscience of the community on the ultimate question of life or death.”. . . McCleskey’s argument that the Constitution condemns the discretion allowed decision makers in the Georgia capital sentencing system is antithetical to the fundamental role of discretion in our criminal justice system. Discretion in the criminal justice system offers substantial benefits to the criminal defendant. Not only can a jury decline to impose the death sentence, it can decline to convict or choose to convict of a lesser offense. Whereas decisions against a defendant’s interest may be reversed by the trial judge or on appeal, these discretionary exercises of leniency are final and unreviewable. Similarly, the capacity of prosecutorial discretion to provide individualized justice is “firmly entrenched in American law.” 2 W. LaFave & D. Israel, Criminal Procedure Section 13.2 (a), p. 160 (1984). . . . C At most, the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system. The discrepancy indicated by the Baldus study is “a far cry from the major systemic defects identified in Furman.” As this Court has recognized, any mode for determining guilt or punishment “has its weaknesses and the potential for misuse.” Specifically, “there can be ‘no perfect procedure for deciding in which cases governmental authority should be used to impose death.’” Despite these imperfections, our consistent rule has been that constitutional guarantees are met when “the mode [for determining guilt or punishment] itself has been surrounded with safeguards to make it as fair as possible.” Where the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious. In light of the safeguards designed to minimize racial bias in the process, the fundamental value of a jury trial in our criminal justice system, and the benefits that

The Rights of the Accused and the Criminal Justice System

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

discretion provides to criminal defendants, we hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process. V Two additional concerns inform our decision in this case. First, McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties. Thus, if we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty. Moreover, the claim that his sentence rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender. Similarly, since McCleskey’s claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys or judges. Also, there is no logical reason that such a claim need be limited to racial or sexual bias. If arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim could-at least in theory be based upon any arbitrary variable, such as the defendant’s facial characteristics, or the physical attractiveness of the defendant or the victim, that some statistical study indicates may be influential injury decision making. As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey. The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. As we have stated specifically in the context of capital punishment, the Constitution does not “plac[e] totally unrealistic conditions on its use.” Second, McCleskey’s arguments are best presented to the legislative bodies. It is not the responsibility or indeed even the right of this Court to determine the appropriate punishment for particular crimes. It is the legislatures, the elected representatives of the people, that are “constituted to respond to the will and consequently the moral values of the people.” Legislatures also are better qualified to

weigh and “evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts.” Capital punishment is now the law in more than two-thirds of our States. It is the ultimate duty of courts to determine on a case-by-case basis whether these laws are applied consistently with the Constitution. Despite McCleskey’s wide-ranging arguments that basically challenge the validity of capital punishment in our multiracial society, the only question before us is whether in his case the law of Georgia was properly applied. We agree with the District Court and the Court of Appeals for the Eleventh Circuit that this was carefully and correctly done in this case. VI Accordingly, we affirm the judgment of the Court of Appeals for the Eleventh Circuit. It is so ordered. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, and with whom JUSTICE BLACKMUN and JUSTICE STEVENS join in all but Part I, dissenting. I . . . [M]urder defendants in Georgia with white victims are more than four times as likely to receive the death sentence as are defendants with black victims. Nothing could convey more powerfully the intractable reality of the death penalty: “that the effort to eliminate arbitrariness in the infliction of that ultimate sanction is so plainly doomed to failure that is—and the death penalty—must be abandoned altogether.”. . . II At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey’s past criminal conduct were more important than the fact that his victim was white. Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. In addition, frankness would compel the disclosure that it was more likely than

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

not that the race of McCleskey’s victim would determine whether he received a death sentence: six of every eleven defendants convicted of killing a white person would not have received the death penalty if their victims had been black; while, among defendants with aggravating and mitigating factors comparable to McCleskey, twenty of every thirty-four would not have been sentenced to die if their victims had been black. Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim. The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died. The Court today holds that Warren McCleskey’s sentence was constitutionally imposed. It finds no fault in a system in which lawyers must tell their clients that race casts a large shadow on the capital sentencing process. The Court arrives at this conclusion by stating that the Baldus study cannot “prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey’s particular case.” Since, according to Professor Baldus, we cannot say “to a moral certainty” that race influenced a decision, we can identify only “a likelihood that a particular factor entered into some decisions” and “a discrepancy that appears to correlate with race.” This “likelihood” and “discrepancy,” holds the Court, is [sic] insufficient to establish a constitutional violation. The Court reaches this conclusion by placing four factors on the scales opposite McCleskey’s evidence: the desire to encourage sentencing discretion, the existence of “statutory safeguards” in the Georgia scheme, the fear of encouraging widespread challenges to other sentencing decisions, and the limits of the judicial role. The Court’s evaluation of the significance of petitioner’s evidence is fundamentally at odds with our consistent concern for rationality in capital sentencing, and the considerations that the majority invokes to discount that evidence cannot justify ignoring its force. III A Defendants challenging their death sentences . . . never have had to prove that impermissible considerations have actually infected sentencing decisions. We have 412

required instead that they establish that the system under which they were sentenced posed a significant risk of such an occurrence. McCleskey’s claim does differ, however, in one respect from these earlier cases: it is the first to base a challenge not on speculation about how a system might operate, but on empirical documentation of how it does operate. The Court assumes the statistical validity of the Baldus study and acknowledges that McCleskey has demonstrated a risk that racial prejudice plays a role in capital sentencing in Georgia. Nonetheless, it finds the probability of prejudice insufficient to create constitutional concern. Close analysis of the Baldus study, however, in light of both statistical principles and human experience, reveals that the risk that race influenced McCleskey’s sentence is intolerable by any imaginable standard. B The Baldus study indicates that, after taking into account some 230 nonracial factors that might legitimately influence a sentencer, the jury more likely than not would have spared McCleskey’s life had his victim been black. The study distinguishes between (1) those cases in which the jury exercises virtually no discretion because the strength or weakness of aggravating factors usually suggests that only one outcome is appropriate, and (2) cases reflecting an “intermediate” level of aggravation, in which the jury has considerable discretion in choosing a sentence. McCleskey’s case falls into the intermediate range. In such cases, death is imposed in 34 percent of the white-victim crimes and 14 percent of blackvictim crimes, a difference of 139 percent in the rate of imposition of the death penalty. In other words, just under 59 percent—almost 6 in 10—defendants comparable to McCleskey would not have received the death penalty if their victims had been black. Furthermore, even examination of the sentencing system as a whole, factoring in those cases in which the jury exercises little discretion, indicates the influence of race on capital sentencing. For the Georgia system as a whole, race accounts for a six-percentage-point difference in the rate at which capital punishment is imposed. Since death is imposed in 11 percent of all white-victim cases, the rate in comparably aggravated black-victim cases is 5 percent. The rate of capital sentencing in a white-victim case is thus 120 percent greater than the rate in a black victim case. Put another way, over half—55 percent— of defendants in white-victim crimes in Georgia

The Rights of the Accused and the Criminal Justice System

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

would not have been sentenced to die if their victims had been black. Of the more than 200 variables potentially relevant to a sentencing decision, race of the victim is a powerful explanation for variation in death sentence rates—as powerful as nonracial aggravating factors such as a prior murder conviction or acting as the principal planner of the homicide. These adjusted figures are only the most conservative indication of the risk that race will influence the death sentences of defendants in Georgia. Data unadjusted for the mitigating or aggravating effect of other factors show an even more pronounced disparity by race. The capital sentencing rate for all whitevictim cases was almost 11 times greater than the rate for black-victim cases. Furthermore, blacks who kill whites are sentenced to death at nearly 22 times the rate of blacks who kill blacks, and more than 7 times the rate of whites who kill blacks. In addition, prosecutors seek the death penalty for 70 percent of black defendants with white victims, but for only 15 percent of black defendants with black victims, and only 19 percent of white defendants with black victims. Since our decision upholding the Georgia capital sentencing system in Gregg, the State has executed 7 persons. All of the 7 were convicted of killing whites, and 6 of the 7 executed were black. Such execution figures are especially striking in light of the fact that, during the period encompassed by the Baldus study, only 9.2 percent of Georgia homicides involved black defendants and white victims, while 60.7 percent involved black victims. McCleskey’s statistics have particular force because most of them are the product of sophisticated multiple-regression analysis. Such analysis is designed precisely to identify patterns in the aggregate, even though we may not be able to reconstitute with certainty any individual decision that goes to make up that pattern. Multiple-regression analysis is particularly well suited to identify the influence of impermissible considerations in sentencing, since it is able to control for permissible factors that may explain an apparent arbitrary pattern. While the decision-making process of a body such as a jury may be complex, the Baldus study provides a massive compilation of the details that are most relevant to that decision. . . . The statistical evidence in this case thus relentlessly documents the risk that McCleskey’s sentence was influenced by racial considerations. This evidence shows that there is a better than even chance in Georgia that race will influence the decision to

impose the death penalty: a majority of defendants in white-victim crimes would not have been sentenced to die if their victims had been black. In determining whether this risk is acceptable, our judgment must be shaped by the awareness that “[t]he risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence.” . . . In light of the gravity of the interest at stake, petitioner’s statistics on their face are a powerful demonstration of the type of risk that our Eighth Amendment jurisprudence has consistently condemned. C Evaluation of McCleskey’s evidence cannot rest solely on the numbers themselves. We must also ask whether the conclusion suggested by those numbers is consonant with our understanding of history and human experience. Georgia’s legacy of a race-conscious criminal justice system, as well as this Court’s own recognition of the persistent danger that racial attitudes may affect criminal proceedings, indicate that McCleskey’s claim is not a fanciful product of mere statistical artifice. For many years, Georgia operated openly and formally precisely the type of dual system the evidence shows is still effectively in place. The criminal law expressly differentiated between crimes committed by and against blacks and whites, distinctions whose lineage traced back to the time of slavery. . . . This historical review of Georgia criminal law is not intended as a bill of indictment calling the State to account for past transgressions. Citation of past practices does not justify the automatic condemnation of current ones. But it would be unrealistic to ignore the influence of history in assessing the plausible implications of McCleskey’s evidence. . . . History and its continuing legacy thus buttress the probative force of McCleskey’s statistics. Formal dual criminal laws may no longer be in effect, and intentional discrimination may no longer be prominent. Nonetheless . . . “subtle, less consciously held racial attitudes” continue to be of concern, and the Georgia system gives such attitudes considerable room to operate. The conclusions drawn from McCleskey’s statistical evidence are therefore consistent with the lessons of social experience. The majority thus misreads our Eighth Amendment jurisprudence in concluding that McCleskey has not demonstrated a degree of risk sufficient to raise

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constitutional concern. The determination of the significance of his evidence is at its core an exercise in human moral judgment, not a mechanical statistical analysis. It must first and foremost be informed by awareness of the fact that death is irrevocable, and that as a result “the qualitative difference of death from all other punishments requires a greater degree of scrutiny of the capital sentencing determination.” For this reason, we have demanded a uniquely high degree of rationality in imposing the death penalty. A capital sentencing system in which race more likely than not plays a role does not meet this standard. It is true that every nuance of decision cannot be statistically captured, nor can any individual judgment be plumbed with absolute certainty. Yet the fact that we must always act without the illumination of complete knowledge cannot induce paralysis when we confront what is literally an issue of life and death. Sentencing data, history, and experience all counsel that Georgia has provided insufficient assurance of the heightened rationality we have required in order to take a human life. . . . IV *** Considering the race of a defendant or victim in deciding if the death penalty should be imposed is completely at odds with this concern that an individual be evaluated as a unique human being. Decisions influenced by race rest in part on a categorical assessment of the worth of human beings according to color, insensitive to whatever qualities the individuals in question may possess. Enhanced willingness to impose the death sentence on black defendants, or diminished willingness to render such a sentence when blacks are victims, reflects a devaluation of the lives of black persons. When confronted with evidence that race more likely than not plays such a role in a capital sentencing system, it is plainly insufficient to say that the importance of discretion demands that the risk be higher before we will act—for in such a case the very end that discretion is designed to serve is being undermined. . . . At the time our Constitution was framed 200 years ago this year, blacks “had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man 414

was bound to respect.” Dred Scott v. Sandford, 19 How. 393, 404 (1857). Only 130 years ago, this Court relied on these observations to deny American citizenship to blacks. Ibid. A mere three generations ago, this Court sanctioned racial segregation, stating that “[i]f one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.” Plessy v. Ferguson, 163 U.S. 537, 552 (1896). In more recent times, we have sought to free ourselves from the burden of this history. Yet it has been scarcely a generation since this Court’s first decision striking down racial segregation, and barely two decades since the legislative prohibition of racial discrimination in major domains of national life. These have been honorable steps, but we cannot pretend that in three decades we have completely escaped the grip of a historical legacy spanning centuries. Warren McCleskey’s evidence confronts us with the subtle and persistent influence of the past. His message is a disturbing one to a society that has formally repudiated racism, and a frustrating one to a Nation accustomed to regarding its destiny as the product of its own will. Nonetheless, we ignore him at our peril, for we remain imprisoned by the past as long as we deny its influence in the present. It is tempting to pretend that minorities on death row share a fate in no way connected to our own, that our treatment of them sounds no echoes beyond the chambers in which they die. Such an illusion is ultimately corrosive, for the reverberations of injustice are not so easily confined. “The destinies of the two races in this country are indissolubly linked together.” id., at 560, (HARLAN, J., dissenting), and the way in which we choose those who will die reveals the depth of moral commitment among the living. The Court’s decision today will not change what attorneys in Georgia tell other Warren McCleskeys about their chances of execution. Nothing will soften the harsh message they must convey nor alter the prospect that race undoubtedly will continue to be a topic of discussion. McCleskey’s evidence will not have obtained judicial acceptance, but that will not affect what is said on death row. However many criticisms of today’s decision may be rendered, these painful conversations will serve as the most eloquent dissents of all. [The dissenting opinions of JUSTICE BLACKMUN and JUSTICE STEVENS are not reprinted here.]

The Rights of the Accused and the Criminal Justice System

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

PAYNE V. TENNESSEE 501 U.S. 808; 115 L. Ed. 2d 720; 111 S. Ct. 2597 (1991) CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. JUSTICE O’CONNOR filed a concurring opinion, in which JUSTICES WHITE and KENNEDY joined. JUSTICE SCALIA filed a concurring opinion in Part II, in which JUSTICE O’CONNOR and KENNEDY joined. JUSTICE SOUTER filed a concurring opinion, in which JUSTICE KENNEDY joined. JUSTICE MARSHALL filed a dissenting opinion, in which JUSTICE BLACKMUN joined. JUSTICE STEVENS filed a dissenting opinion, in which JUSTICE BLACKMUN joined. CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. In this case we reconsider our holdings in Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989), that the Eighth Amendment bars the admission of victim impact evidence during the penalty phase of a capital trial. The petitioner, Pervis Tyrone Payne, was convicted by a jury on two counts of first-degree murder and one count of assault with intent to commit murder in the first degree. He was sentenced to death for each of the murders, and to thirty years in prison for the assault. The victims of Payne’s offenses were twentyeight-year-old Charisse Christopher, her two-yearold daughter Lacie, and her three-year-old son Nicholas. The three lived together in an apartment in Millington, Tennessee, across the hall from Payne’s girlfriend, Bobbie Thomas. On Saturday, June 27, 1987, Payne visited Thomas’ apartment several times in expectation of her return from her mother’s house in Arkansas, but found no one at home. On one visit, he left his overnight bag, containing clothes and other items for his weekend stay, in the hallway outside Thomas’ apartment. With the bag were three cans of malt liquor. Payne passed the morning and early afternoon injecting cocaine and drinking beer. Later, he drove around the town with a friend in the friend’s car, each of them taking turns reading a pornographic magazine. Sometime around 3 P.M., Payne returned

to the apartment complex, and began making sexual advances toward Charisse. Charisse resisted and Payne became violent. A neighbor heard Charisse screaming, “‘Get out, get out,’ as if she were telling the children to leave.” The noise briefly subsided and then began, “‘horribly loud.’” The neighbor called the police after she heard a “blood-curdling scream” from the Christopher apartment. When the first police officer arrived at the scene, he immediately encountered Payne, who was leaving the apartment building, so covered with blood that he appeared to be “‘sweating blood.’” The officer confronted Payne, who responded, “‘I’m the complainant.’” When the officer asked, “‘What’s going on up there?’” Payne struck the officer with the overnight bag, dropped his tennis shoes, and fled. Inside the apartment, the police encountered a horrifying scene. Blood covered the walls and floor throughout the unit. Charisse and her children were lying on the floor in the kitchen. Nicholas, despite several wounds inflicted by a butcher knife that completely penetrated through his body from front to back, was still breathing. Miraculously, he survived, but not until after undergoing seven hours of surgery and a transfusion of 1700 cc’s of blood— 400 to 500 cc’s more than his estimated blood volume. Charisse and Lacie were dead. Charisse’s body was found on the kitchen floor on her back, her legs fully extended. She had sustained forty-two direct knife wounds and forty-two defensive wounds on her arms and hands. The wounds were caused by forty-one separate thrusts of a butcher knife. None of the eighty-four wounds inflicted by Payne were individually fatal; rather, the cause of death was most likely bleeding from all the wounds. Lacie’s body was on the kitchen floor near her mother. She had suffered stab wounds to the chest, abdomen, back, and head. The murder weapon, a butcher knife, was found at her feet. Payne’s baseball cap was snapped on her arm near her elbow. Three cans of malt liquor bearing Payne’s fingerprints were found on a table near her body, and a fourth empty one was on the landing outside the apartment door.

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Payne was apprehended later that day hiding in the attic of the home of a former girlfriend. As he descended the stairs of the attic, he stated to the arresting officers, “Man, I ain’t killed no woman.” According to one of the officers, Payne had “a wild look about him. His pupils were contracted. He was foaming at the mouth, saliva. He appeared to be very nervous. He was breathing real rapid.” He had blood on his body and clothes and several scratches across his chest. It was later determined that the blood stains matched the victims’ blood types. A search of his pockets revealed a packet containing cocaine residue, a hypodermic syringe wrapper, and a cap from a hypodermic syringe. His overnight bag, containing a bloody white shirt, was found in a nearby dumpster. At trial, Payne took the stand and, despite the overwhelming and relatively uncontroverted evidence against him, testified that he had not harmed any of the Christophers. Rather, he asserted that another man had raced by him as he was walking up the stairs to the floor where the Christophers lived. He stated that he had gotten blood on himself when, after hearing moans from the Christophers’ apartment, he had tried to help the victims. According to his testimony, he panicked and fled when he heard police sirens and noticed the blood on his clothes. The jury returned guilty verdicts against Payne on all counts. During the sentencing phase of the trial, Payne presented the testimony of four witnesses: his mother and father, Bobbie Thomas, and Dr. John T. Huston, a clinical psychologist specializing in criminal court evaluation work. Bobbie Thomas testified that she met Payne at church, during a time when she was being abused by her husband. She stated that Payne was a very caring person, and that he devoted much time and attention to her three children, who were being affected by her marital difficulties. She said that the children had come to love him very much and would miss him, and that he “behaved just like a father that loved his kids.” She asserted that he did not drink, nor did he use drugs, and that it was generally inconsistent with Payne’s character to have committed these crimes. Dr. Huston testified that based on Payne’s low score on an IQ test, Payne was “mentally handicapped.” Huston also said that Payne was neither psychotic nor schizophrenic, and that Payne was the most polite prisoner he had ever met. Payne’s parents testified that their son had no prior criminal record and had never been arrested. They also stated that 416

Payne had no history of alcohol or drug abuse, [that] he worked with his father as a painter, he was good with children, and that he was a good son. The State presented the testimony of Charisse’s mother, Mary Zvolanek. When asked how Nicholas had been affected by the murders of his mother and sister, she responded: He cries for his mom. He doesn’t seem to understand why she doesn’t come home. And he cries for his sister Lacie. He comes to me many times during the week and asks me, Grandmama, do you miss my Lacie. And I tell him yes. He says, I’m worried about my Lacie. In arguing for the death penalty during closing argument, the prosecutor commented on the continuing effects of Nicholas’ experience, stating: But we do know that Nicholas was alive. And Nicholas was still conscious. His eyes were open. He responded to the paramedics. He was able to follow their directions. He was able to hold his intestines in as he was carried to the ambulance. So he knew what happened to his mother and baby sister. There is nothing you can do to ease the pain of any of the families involved in this case. There is nothing you can do to ease the pain of Bernice or Carl Payne, and that’s a tragedy. There is nothing you can do basically to ease the pain of Mr. and Mrs. Zvolanek, and that’s a tragedy. They will have to live with it the rest of their lives. There is obviously nothing you can do for Charisse and Lacie Jo. But there is something you can do for Nicholas. Somewhere down the road Nicholas is going to grow up, hopefully. He’s going to want to know what happened. And he is going to know what happened to his baby sister and his mother. He is going to want to know what type of justice was done. He is going to want to know what happened. With your verdict, you will provide the answer. In the rebuttal to Payne’s closing argument, the prosecutor stated: You saw the videotape this morning. You saw what Nicholas Christopher will carry in his mind forever. When you talk about cruel, when you talk about atrocious, and when you talk about heinous, that picture will always come into your mind, probably throughout the rest of your lives.

... . . . No one will ever know about Lacie Jo because she never had the chance to grow up. Her life was taken from her at the age of two years old. So,

The Rights of the Accused and the Criminal Justice System

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

no, there won’t be a high school principal to talk about Lacie Jo Christopher, and there won’t be anybody to take her to her high school prom. And there won’t be anybody there—there won’t be her mother there or Nicholas’ mother there to kiss him at night. His mother will never kiss him good night or pat him as he goes off to bed, or hold him and sing him a lullaby. ... [Petitioner’s attorney] wants you to think about a good reputation, people who love the defendant and things about him. He doesn’t want you to think about the people who love Charisse Christopher, her mother and daddy who loved her. The people who loved little Lacie Jo, the grandparents who are still here. The brother who mourns for her every single day and wants to know where his best little playmate is. He doesn’t have anybody to watch cartoons with him, a little one. These are the things that go into why it is especially cruel, heinous, and atrocious, the burden that that child will carry forever. The jury sentenced Payne to death on each of the murder counts. The Supreme Court of Tennessee affirmed the conviction and sentence. The court rejected Payne’s contention that the admission of the grandmother’s testimony and the State’s closing argument constituted prejudicial violations of his rights under the Eighth Amendment as applied in Booth v. Maryland, and South Carolina v. Gathers. . . . The court concluded that any violation of Payne’s rights under Booth and Gathers “was harmless beyond a reasonable doubt.” In Booth, the defendant robbed and murdered an elderly couple. As required by a state statute, a victim impact statement was prepared based on interviews with the victims’ son, daughter, son-in-law, and granddaughter. The statement, which described the personal characteristics of the victims, the emotional impact of the crimes on the family, and set forth the family members’ opinions and characterizations of the crimes and the defendant, was submitted to the jury at sentencing. The jury imposed the death penalty. The conviction and sentence were affirmed on appeal by the State’s highest court. This Court held by a five-to-four vote that the Eighth Amendment prohibits a jury from considering a victim impact statement at the sentencing phase of a capital trial. The Court made clear that the admissibility of victim impact evidence was not to be determined on a case-by-case basis, but that such

evidence was per se inadmissible in the sentencing phase of a capital case except to the extent that it “relate[d] directly to the circumstances of the crime.” In Gathers, decided two years later, the Court extended the rule announced in Booth to statements made by a prosecutor to the sentencing jury regarding the personal qualities of the victim. The Booth Court began its analysis with the observation that the capital defendant must be treated as a “‘uniquely individual human bein[g],’” and therefore the Constitution requires the jury to make an individualized determination as to whether the defendant should be executed based on the “‘character of the individual and the circumstances of the crime.’”. . . The Court concluded that, except to the extent that victim impact evidence relates “directly to the circumstances of the crime,” the prosecution may not introduce such evidence at a capital sentencing hearing because “it creates an impermissible risk that the capital sentencing decision will be made in an arbitrary manner.” Booth and Gathers were based on two premises: that evidence relating to a particular victim or to the harm that a capital defendant causes a victim’s family do not in general reflect on the defendant’s “blameworthiness,” and that only evidence relating to “blameworthiness” is relevant to the capital sentencing decision. However, the assessment of harm caused by the defendant as a result of the crime charged has understandably been an important concern of the criminal law, both in determining the elements of the offense and in determining the appropriate punishment. Thus, two equally blameworthy criminal defendants may be guilty of different offenses solely because their acts cause differing amounts of harm. . . . Wherever judges in recent years have had discretion to impose sentence, the consideration of the harm caused by the crime has been an important factor in the exercise of that discretion. . . . Whatever the prevailing sentencing philosophy, the sentencing authority has always been free to consider a wide range of relevant material. In the federal system, we observed that “a judge may appropriately conduct an inquiry broad in scope, largely unlimited as to the kind of information he may consider, or the source from which it may come.” Even in the context of capital sentencing, prior to Booth the joint opinion of JUSTICES STEWART, POWELL, and STEVENS in Gregg v. Georgia, had rejected petitioner’s attack on the Georgia statute because of the “wide scope of

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evidence and argument allowed at presentence hearings.” The joint opinion stated: We think that the Georgia court wisely has chosen not to impose unnecessary restrictions on the evidence that can be offered at such a hearing and to approve open and far-ranging argument. . . . So long as the evidence introduced and the arguments made at the presentence hearing do not prejudice a defendant, it is preferable not to impose restrictions. We think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision. The Maryland statute involved in Booth required that the presentence report in all felony cases include a “victim impact statement” which would describe the effect of the crime on the victim and his family. Congress and most of the States have, in recent years, enacted similar legislation to enable the sentencing authority to consider information about the harm caused by the crime committed by the defendant. The evidence involved in the present case was not admitted pursuant to any such enactment, but its purpose and effect was much the same as if it had been. While the admission of this particular kind of evidence—designed to portray for the sentencing authority the actual harm caused by a particular crime—is of recent origin, this fact hardly renders it unconstitutional. . . . “We have held that a State cannot preclude the sentencer from considering ‘any relevant mitigating evidence’ that the defendant proffers in support of a sentence less than death.” Eddings v. Oklahoma, 455 U.S. 14, 114 (1982). Thus we have, as the Court observed in Booth, required that the capital defendant be treated as a “‘uniquely individual human bein[g].’” But it was never held or even suggested in any of our cases preceding Booth that the defendant, entitled as he was to individualized consideration, was to receive that consideration wholly apart from the crime which he had committed. . . . Booth reasoned that victim impact evidence must be excluded because it would be difficult, if not impossible, for the defendant to rebut such evidence without shifting the focus of the sentencing hearing away from the defendant, thus creating a “‘minitrial’ on the victim’s character.” In many cases the evidence relating to the victim is already before the jury at least in part because of its relevance at the guilt phase of the trial. But even as to additional evidence admitted at the sentencing phase, the mere fact that for tactical reasons it might not be prudent for 418

the defense to rebut victim impact evidence makes the case no different than others in which a party is faced with this sort of dilemma. As we explained in rejecting the contention that expert testimony on future dangerousness should be excluded from capital trials, “the rules of evidence generally extant at the federal and state levels anticipate that relevant, unprivileged evidence should be admitted and its weight left to the factfinder, who would have the benefit of cross examination and contrary evidence by the opposing party.” Payne echoes the concern voiced in Booth’s case that the admission of victim impact evidence permits a jury to find that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy. As a general matter, however, victim impact evidence is not offered to encourage comparative judgments of this kind—for instance, that the killer of a hardworking, devoted parent deserves the death penalty, but that the murderer of a reprobate does not. It is designed to show instead each victim’s “uniqueness as an individual human being,” whatever the jury might think the loss to the community resulting from his death might be. . . . Under our constitutional system, the primary responsibility for defining crimes against state law, fixing punishments for the commission of these crimes, and establishing procedures for criminal trials rests with the States. . . . Where the State imposes the death penalty for a particular crime, we have held that the Eighth Amendment imposes special limitations upon that process. First, there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decisionmaker’s judgment as to whether the circumstances of a particular defendant’s case meet the threshold. Moreover, a societal consensus that the death penalty is disproportionate to a particular offense prevents a State from imposing the death penalty for that offense. Second, States cannot limit the sentencer’s consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot challenge the sentencer’s discretion, but must allow it to consider any relevant information offered by the defendant. . . . But, as we noted in California v. Ramos, 463 U.S. 992, 1983, “[b]eyond these limitations . . . the Court has deferred to the State’s choice of substantive factors relevant to the penalty determination.”

The Rights of the Accused and the Criminal Justice System

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

. . . The States remain free, in capital cases, as well as others, to devise new procedures and new remedies to meet felt needs. Victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities. We think the Booth Court was wrong in stating that this kind of evidence leads to the arbitrary imposition of the death penalty. In the majority of cases, and in this case, victim impact evidence serves entirely legitimate purposes. In the event that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief. . . . We are now of the view that a State may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant. “[T]he State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.”. . . Booth deprives the State of the full moral force of its evidence and may prevent the jury from having before it all the information necessary to determine the proper punishment for a first-degree murder. . . . . . . Under the aegis of the Eighth Amendment, we have given the broadest latitude to the defendant to introduce relevant mitigating evidence reflecting on his individual personality, and the defendant’s attorney may argue that evidence to the jury. Petitioner’s attorney in this case did just that. . . . [W]e now reject the view that a State may not permit the prosecutor to similarly argue to the jury the human cost of the crime of which the defendant stands convicted. We reaffirm the view expressed by JUSTICE CARDOZO in Snyder v. Massachusetts, 291 U.S. 97, 122 (1934): “justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.” We thus hold that if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family

is relevant to the jury’s decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated. Payne and his amicus argue that despite these numerous infirmities in the rule created by Booth and Gathers, we should adhere to the doctrine of stare decisis and stop short of overruling those cases. Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. Adhering to precedent “is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.” Nevertheless, when governing decisions are unworkable or are badly reasoned, “this Court has never felt constrained to follow precedent.” Stare decisis is not an inexorable command; rather, it “is a principle of policy and not a mechanical formula of adherence to the latest decision.” This is particularly true in constitutional cases, because in such cases “correction through legislative action is practically impossible.” Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved; . . . the opposite is true in cases such as the present one involving procedural and evidentiary rules. Applying these general principles, the Court has during the past two terms overruled in whole or in part 33 of its previous constitutional decisions. Booth and Gathers were decided by the narrowest of margins over spirited dissents challenging the basic underpinnings of those decisions. They have been questioned by members of the Court in later decisions, and have defied consistent application by the lower courts. . . . Reconsidering these decisions now, we conclude for the reasons heretofore stated, that they were wrongly decided and should be, and now are, overruled. We accordingly affirm the judgment of the Supreme Court of Tennessee. Affirmed. [The concurring opinions of JUSTICES O’CONNOR, SCALIA, and SOUTER are not reprinted here.] JUSTICE MARSHALL, joined by JUSTICE BLACKMUN, dissenting: Power, not reason, is the new currency of this Court’s decisionmaking. Four terms ago, a five-Justice

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

majority of this Court held that “victim impact” evidence of the type at issue in this case could not constitutionally be introduced during the penalty phase of a capital trial. By another 5–4 vote, a majority of this Court rebuffed an attack upon this ruling just two terms ago. Nevertheless, having expressly invited respondent to renew the attack, today’s majority overrules Booth and Gathers and credits the dissenting views expressed in those cases. Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did. In dispatching Booth and Gathers to their graves, today’s majority ominously suggest that an even more extensive upheaval of this Court’s precedents may be in store. Renouncing this Court’s historical commitment, to a conception of “the judiciary as a source of impersonal and reasoned judgments,” the majority declares itself free to discard any principle of constitutional liberty which was recognized or reaffirmed over the dissenting votes of four Justices and with which five or more Justices now disagree. The implications of this radical new exception to the doctrine of stare decisis are staggering. The majority of established constitutional liberties are now ripe for reconsideration, thereby inviting the very type of open defiance of our precedents that the majority rewards in this case. Because I believe that this Court owes more to its constitutional precedents in general and to Booth and Gathers in particular, I dissent. I Speaking for the Court as then constituted, JUSTICE POWELL and JUSTICE BRENNAN set out the rationale for excluding victim-impact evidence from the sentencing proceedings in a capital case. As the majorities in Booth and Gathers recognized, the core principle of this Court’s capital jurisprudence is that the sentence of death must reflect an “‘individualized determination’” of the defendant’s “‘personal responsibility and moral guilt’” and must be based upon factors that channel the jury’s discretion “‘so as to minimize the risk of wholly arbitrary and capricious action.’”. . . There is nothing new in the majority’s discussion of the supposed deficiencies in Booth and Gathers. Every one of the arguments made by the majority can be found in the dissenting opinions filed in those two cases, and . . . each argument was convincingly answered by JUSTICE POWELL and JUSTICE BRENNAN. 420

But contrary to the impression that one might receive from reading the majority’s lengthy rehearsing of the issues addressed in Booth and Gathers, the outcome of this case does not turn simply on who—the Booth and Gathers dissenters—had the better of the argument. JUSTICE POWELL and JUSTICE BRENNAN’s position carried the day in those cases and became the law of the land. The real question, then, is whether today’s majority has come forward with the type of extraordinary showing that this Court has historically demanded before overruling one of its precedents. In my view, the majority clearly has not made any such showing. Indeed, the striking feature of the majority’s opinion is its radical assertion that it need not even try. II The overruling of one of this Court’s precedents ought to be a matter of great moment and consequence. Although the doctrine of stare decisis is not an “inexorable command,” this Court has repeatedly stressed that fidelity to precedent is fundamental to “a society governed by the rule of law.”. . . Consequently, this Court has never departed from precedent without “special justification.” Such justifications include the advent of “subsequent changes or development in the law” that undermine a decision’s rationale, the need “to bring [a decision] into agreement with experience and with facts newly ascertained,” and a showing that a particular precedent has become a “detriment to coherence and consistency in the law.” The majority cannot seriously claim that any of these traditional bases for overruling a precedent applies to Booth or Gathers. The majority does not suggest that the legal rationale of these decisions has been undercut by changes or developments in doctrine during the last two years. Nor does the majority claim that experience over that period of time has discredited the principle that “any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion,” the larger postulate of political morality on which Booth and Gathers rest. The majority does assert that Booth and Gathers “have defied consistent application by the lower courts,” but the evidence that the majority proffers is so feeble that the majority cannot sincerely expect anyone to believe this claim. To support its contention, the majority points to JUSTICE O’CONNOR’S dissent in Gathers, which noted a division among lower courts over whether Booth prohibited prosecutorial

The Rights of the Accused and the Criminal Justice System

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

arguments relating to the victim’s personal characteristics. That, of course, was the issue expressly considered and resolved in Gathers. The majority also cites THE CHIEF JUSTICE’s dissent in Mills v. Maryland, 486 U.S. 367 (1988). That opinion does not contain a single word about any supposed “[in]consistent application” of Booth in the lower courts. Finally, the majority refers to a divided Ohio Supreme Court decision disposing of an issue concerning victim-impact evidence. Obviously, if a division among the members of a single lower court in a single case were sufficient to demonstrate that a particular precedent was a “detriment to coherence and consistency in the law,” there would hardly be a decision in United States Reports that we would not be obliged to reconsider. It takes little real detective work to discern just what has changed since this Court decided Booth and Gathers: this Court’s own personnel. Indeed, the majority candidly explains why this particular contingency, which until now has been almost universally understood not to be sufficient to warrant overruling a precedent . . . is sufficient to justify overruling Booth and Gathers. “Considerations in favor of stare decisis are at their acme,” the majority explains, “in cases involving property and contract rights, where reliance interests are involved[;] the opposite is true in cases such as the present one involving procedural and evidentiary rules.” In addition, the majority points out, “Booth and Gathers were decided by the narrowest of margins, over spirited dissents,” and thereafter were “questioned by members of the Court.” Taken together, these considerations make it legitimate, in the majority’s view, to elevate the position of the Booth and Gathers dissenters into the law of the land. This truncation of the Court’s duty to stand by its own precedents is astonishing. By limiting full protection of the doctrine of stare decisis to “cases involving property and contract rights,” the majority sends a clear signal that essentially all decisions implementing the personal liberties protected by the Bill of Rights and the Fourteenth Amendment are open to reexamination. Taking into account the majority’s additional criterion for overruling—that a case either was decided or reaffirmed by a 5–4 margin “over spirited dissen[t],” the continued vitality of literally scores of decisions must be understood to depend on nothing more than the proclivities of the individuals who now comprise a majority of this Court. . . .

In my view, this impoverished conception of stare decisis cannot possibly be reconciled with the values that inform the proper judicial function. Contrary to what the majority suggests, stare decisis is important not merely because individuals rely on precedent to structure their commercial activity but because fidelity to precedent is part and parcel of a conception of “the judiciary as a source of impersonal and reasoned judgments.” Indeed, this function of stare decisis is in many respects even more critical in adjudication involving constitutional liberties than in adjudication involving commercial entitlements. Because enforcement of the Bill of Rights and the Fourteenth Amendment frequently requires this Court to rein in the forces of democratic politics, this Court can legitimately lay claim to compliance with its directives only if the public understands the Court to be implementing “principles . . . founded in the law rather than in the proclivities of individuals.” Thus, as JUSTICE STEVENS has explained, the “stron[g] presumption of validity” to which “recently decided cases” are entitled “is an essential thread in the mantle of protection that the law affords the individual. . . . It is the unpopular or beleaguered individual—not the man in power—who has the greatest stake in the integrity of the law.”. . . Carried to its logical conclusion, the majority’s debilitated conception of stare decisis would destroy the Court’s very capacity to resolve authoritatively the abiding conflicts between those with power and those without. If this Court shows so little respect for its own precedents, it can hardly expect them to be treated more respectfully by the state actors whom these decisions are supposed to bind. By signaling its willingness to give fresh consideration to any constitutional liberty recognized by a 5–4 vote “over spirited dissen[t],” the majority invites state actors to renew the very policies deemed unconstitutional in the hope that this Court may now reverse course, even if it has only recently reaffirmed the constitutional liberty in question. Indeed, the majority’s disposition of this case nicely illustrates the rewards of such a strategy of defiance. The Tennessee Supreme Court did nothing in this case to disguise its contempt for this Court’s decisions in Booth and Gathers. . . . Offering no explanation for how this case could possibly be distinguished from Booth and Gathers— for obviously, there is none to offer—the court perfunctorily declared that the victim-impact evidence and the prosecutor’s argument based on this

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

evidence “did not violate either [of those decisions].” It cannot be clearer that the court simply declined to be bound by this Court’s precedents. Far from condemning this blatant disregard for the rule of law, the majority applauds it. In the Tennessee Supreme Court’s denigration of Booth and Gathers as “an affront to the civilized members of the human race,” the majority finds only confirmation of “the unfairness of the rule pronounced by” the majorities in those cases. It is hard to imagine a more complete abdication of this Court’s historic commitment to defending the supremacy of its own pronouncements on issues of constitutional liberty. . . . In light of the cost that such abdication exacts on the authoritativeness of all of this Court’s pronouncements, it is also hard to imagine a more short-sighted strategy for effecting change in our constitutional order. III Today’s decision charts an unmistakable course. If the majority’s radical reconstruction of the rules for overturning this Court’s decisions is to be taken at face value—and the majority offers us no reason why it should not—then the overruling of Booth and Gathers is but preview of an even broader and more far-reaching assault upon this Court’s precedents. Cast aside today are those condemned to face society’s ultimate penalty. Tomorrow’s victims may be minorities, women, or the indigent. Inevitably, this campaign to resurrect yesterday’s “spirited dissents” will squander the authority and the legitimacy of this Court as a protector of the powerless. I dissent. [The dissenting opinion of JUSTICE STEVENS, joined by JUSTICE BLACKMUN, is not reprinted here.]

BAIL AND PREVENTIVE DETENTION The Eighth Amendment underscores the cardinal principle that innocence is presumed until guilt has been proved, in language that prohibits the imposition of “excessive bail.” Although this principle is not expressly guaranteed as a substantive right in the amendment, it holds as a matter of legislative policy and/or state constitutional mandate. During specific criminal prosecutions, the Supreme Court has most frequently been called upon to apply this policy by determining the “excessive” dimension of bail. On 422

that question, the most notable pronouncement was set forth in Stack v. Boyle (342 U.S. 1, 1951), in its review of the $50,000 bail that was fixed for a number of so-called second-string Communist leaders who were accused of violating provisions of the Smith Act. Taking judicial notice of the historical purpose of bail—to ensure that the accused will be present at trial—Chief Justice Fred Vinson emphasized that when bail is fixed at an amount in excess of that which is “reasonably calculated” to achieve that purpose, it is “excessive.” He concluded that “[t]o infer from the fact of indictment alone a need for bail in an unusually high amount is an arbitrary act . . . [that] would inject into our own system of government the very principles of totalitarianism which Congress was seeking to guard against in passing the [Smith Act].” When and under what conditions bail should be denied are central questions addressed in the socalled preventive detention statutes. The Court considered the issue in the context of a juvenile criminal action in Schall v. Martin (467 U.S. 753, 1984) and concluded that the state’s interest in using preventive detention, or “P. D.,” to protect both the juvenile and society was sufficient to withstand a due process challenge. A more comprehensive inquiry of P. D. was undertaken by the Court in an adult criminal context in United States v. Salerno (481 U.S. 739) in 1987. There it considered and rejected a facial constitutional challenge to the preventive detention provision of the Bail Reform Act of 1984. Under the statute’s provisions, detention is imposed on people who are accused of specified serious felonies when the prosecution “demonstrates with clear and convincing evidence” that release of the accused on bail would pose a threat to the community and to other persons. Noting the required procedural safeguards that are available to the accused in an adversarial judicial proceeding, the Court stressed the need for judicial deference to legislative regulatory power for the remediation of increasing criminal activity of persons free on bail pending trial. Consequently, the detention policy that is prescribed in the Bail Reform Act is a regulatory measure, not a penal one, and it outweighs the individual liberty interest. Near the end of the twentieth century, the Court was asked to examine the application of preventive detention policy in a civil commitment context. As communities across the nation became increasingly alarmed about the presence of known “sexual

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molesters” within their jurisdictions, increased attention was given to developing and enforcing appropriate policies to restrict the free movement of such persons. Very often when such persons are nearing completion of criminal sentences for such crimes, citizens make major efforts to prevent the newly freed offender from establishing residence in a particular jurisdiction. The Legislature of Kansas decided to deal with the problem on a statewide basis by enacting The Sexually Violent Predator Act in 1994. The key provision at issue in Kansas v. Hendricks (521 U.S. 346, 1997) allowed an action for civil commitment of a person who has served a criminal sentence if the court determines that the person is “a sexually violent predator.” In a 5–4 decision, the Supreme Court sustained the act against both double jeopardy and ex post facto challenges.

CONFRONTATION AND CROSS-EXAMINATION The Sixth Amendment guarantees the accused the right to confront and cross-examine his or her accusers, and the Court made this right applicable to state criminal proceedings in Pointer v. Texas (380 U.S. 400, 1965). The Court cited both Malloy v. Hogan (378 U.S. 1, 1964) and Gideon v. Wainwright (372 U.S. 335, 1963), emphasizing that the confrontation guarantee is essential to a fair trial and the principal means to test the reliability of a witness and the truthfulness of his or her testimony. In addition, Justice Hugo Black emphasized that the standards that should govern the enforcement of the guarantee in state proceedings are the same as the standards that are applied to federal actions. In another case that was decided the same day as Pointer (Douglas v. Alabama, 380 U.S. 415), the Court stressed the essentiality of cross-examination in the criminal process, noting that it is “a primary interest” secured by the confrontation clause. This principle was reaffirmed a decade later in Davis v. Alaska (415 U.S. 308, 1974), in which the Court held that state policy protecting the anonymity of juvenile offenders could not be asserted to restrict a defendant’s cross-examination of an accuser, because it would diminish the confrontation guarantee. But the Court, in reaffirming the principle a decade later in Delaware v. Van Arsdall (475 U.S. 673, 1986), appeared to open the door for its later contraction. It held that pleadings alleging that judicial restrictions on cross-examination efforts impinge on the confrontation guarantee are subject to

“harmless error” analysis. The narrowing of the guarantee became evident during the next term, in Kentucky v. Stincer (482 U.S. 730, 1987), when the Court held that a defendant could be excluded from an in-chambers hearing to determine whether his child victims of sodomy were competent to testify at trial. But the Court indicated some hesitancy about moving too far in this direction (even when the aim was to protect juvenile victims from the trauma of confronting their alleged assailants) during the next term in its decision in Coy v. Iowa (487 U.S. 1012, 1988). There it found that the Iowa statute which allowed the placement of a screen between a defendant and his juvenile sexual assault victim created a “legislatively imposed presumption of trauma” that short-circuited the requirement of “individualized findings” of the need for “special protection” of the victim during his or her testimony. Asserting that “a more obvious or damaging” infringement of the confrontation guarantee “is difficult to imagine,” Justice Scalia concluded that the state’s proffered interest was insufficient to justify an exception to the confrontation guarantee. The other dimension of this Sixth Amendment guarantee—“to have compulsory process for obtaining witnesses in his favor”—was made binding on the states two years after Pointer in Washington v. Texas (388 U.S. 14, 1967). At issue was a statutory procedure that prohibited persons who were charged or convicted as coparticipants in the same crime from testifying for one another, but that allowed the prosecution to use them to testify against one another. Chief Justice Earl Warren, who spoke for the Court, emphasized the right of the accused not only to confront and challenge the testimony of prosecution witnesses but also to present their own witnesses to establish their defense. The defendant, concluded the chief justice, has just as much right to present his or her version of the facts to the jury as the prosecution.

PRISONERS’ RIGHTS FEATURED CASE

Hudson v. McMillian Many scholars and organizations have devoted years of extensive study to the conditions under which prisoners are forced to live during their incarceration. It was an apparent spin-off of the “rights revolution” of the 1960s that focused the Court’s attention on the constitutional rights of prisoners. More

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specifically, the Court has been asked to determine whether the guarantees of the Constitution apply to people who are incarcerated for crimes and, if so, to what extent the special status of criminals requires some modification of those guarantees. Since the late 1960s, the Supreme Court has considered some of these questions, and several are examined briefly here. In a number of cases, the Court has focused on the accessibility of courts to prisoners for the adjudication of their claims. Although Congress had provided for the writ of habeas corpus in certain circumstances, incarcerated persons occasionally have encountered stiff resistance to their attempts to invoke it. Initially, the Court steadfastly held that such an access route is fundamental and struck down roadblocks to it. In Ex parte Hull (312 U.S. 546, 1941), for example, a subtle state attempt to apply limited censorship by requiring initially that all habeas corpus petitions be submitted to prison authorities to determine whether they were “properly drawn” was struck down as an impairment of a prisoner’s right to petition a federal court for the writ. In addition, the Court held in Smith v. Bennett (365 U.S. 708, 1961) that states are obligated to provide prisoners with a free transcript of their previous habeas corpus hearings. (See Long v. District Court, 385 U.S. 192, 1966; cf. Younger v. Gilmore, 404 U.S. 15, 1971.) Undoubtedly as a logical extension of its concern for the right to counsel that was enunciated in Gideon, supra, the Court has required that prisoners who are attempting to assert their claims receive some form of legal assistance. Its sensitivity to such assistance was indicated in Johnson v. Avery (393 U.S. 483, 1969), in which it nullified a prison regulation that prohibited inmates from assisting fellow prisoners in the preparation of legal papers seeking postconviction relief.9 The Court reiterated its concern for prisoners’ access to the judicial process to present their constitutional claims when it held in Haines v. Kerner (404 U.S. 519, 1972) that a federal district court was in error for dismissing a pris9

A number of lower courts have dealt extensively with assistance provided by “jailhouse lawyers.” See, for example, Bears v. Alabama Board of Corrections (413 F.2d 455, 5th Cir., 1969); Novak v. Beto (453 F.2d 661, 5th Cir., 1971); and Lepiscopo v. United States (469 F.2d 650, 5th Cir., 1972). Other cases have focused on the accessibility of law books for inmates and inmate law libraries. See Hooks v. Wainwright (352 F. Supp. 163, M.D. Fla., 1972).

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oner’s pro se pleading without allowing the prisoner to present evidence in support the claim. Such pleadings, the Court conceded, should be considered with “less stringent standards [than the standards that are applied to] formal pleadings drafted by lawyers.” The number of cases concerning questions of prison regulatory authority and the scope of constitutional liberty of prisoners steadily increased. Recognizing this trend, the Court used a challenge to California’s mail censorship regulations in Procunier v. Martinez (416 U.S. 396, 1974) to set forth important principles that should govern judicial analysis of the constitutional claims of prisoners. These include (1) judicial cognizance of a prisoner’s “valid constitutional claims”; (2) inmate access to the judicial process; and (3) judicial deference to prison administrative authorities in the operation of such facilities, but continuing judicial responsibility to ensure that prison regulations and practices do not offend fundamental constitutional guarantees. Then, without resolving the “broad question of prisoner rights,” the Court struck down the content-based mail censorship regulations as an infringement of the First Amendment guaranty to prisoners and their communicants. Following Procunier, a number of challenges to a wide variety of prison administrative practices were presented to the Burger Court. A case that considered issues such as disciplinary proceedings, an inmate legal assistance program, and mail inspection regulations was Wolff v. McDonnell (418 U.S. 539, 1974). In that case, the Court recognized that prison disciplinary proceedings are not subject to the procedural guarantees that govern criminal trials, but made it clear that where statutory rights (such as a reduction of time served for good behavior) are provided, a prisoner’s interest is “sufficiently embraced within Fourteenth Amendment liberty” that procedural due process protects him or her against arbitrary abrogation of the statutory right. In short, the Court emphasized the requirement of “some kind of hearing” before the withdrawal of a prisoner’s statutory rights. The Court considered further the extent of the constitutional rights of inmates in prison disciplinary proceedings in the consolidated cases of Baxter v. Palmigiano and Enomoto v. Clutchette (425 U.S. 308, 1976). At issue were procedures of the Rhode Island Adult Correctional Institutions (in Palmigiano) and California’s San Quentin Prison (in

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Clutchette). Prisoners in both cases alleged that the procedures employed in their disciplinary proceedings for behavior constituting violations of prison regulations (which could possibly be punished under state statutes as well) abridged their Fourteenth Amendment due process and equal protection guarantees. The district court denied relief in Palmigiano but granted it in Clutchette. Thereupon, the Court of Appeals for the First Circuit reversed the district court in Palmigiano, and the Appeals Court in the Ninth Circuit affirmed in Clutchette. Both decisions generally stressed that the same kinds of guarantees must be made available to an inmate who is confronted with the prison disciplinary process. The court in the Ninth Circuit, for example, held that inmates in such proceeding are entitled to: 1. Notice of the charges against them, 2. A hearing in which they are able to present witnesses, 3. The right to confrontation and cross-examination, 4. A neutral and detached hearing panel, 5. Provision of counsel or a “counsel substitute” when the seriousness of the consequences of the disciplinary action warrant it, and 6. A decision that is limited to the evidence presented at the hearing.

Relying heavily on its Wolff decision, the Supreme Court reversed the rulings of both appeals courts. Justice White’s opinion for the Court noted the difference between a prison disciplinary proceeding and a criminal trial and held that inmates are not constitutionally entitled to receive the assistance of counsel. Nor are they entitled to the application of the Griffin rule (announced in Griffin v. California, 380 U.S. 609, 1965), which bars the prosecutor or judge from implying that the defendant’s decision to remain silent suggests guilt and also proscribes unrestricted confrontation and cross-examination privileges. Regarding the extension of the minimum due process requirements (such as notice and opportunity to respond to charges) to “less serious” disciplinary actions, the Court held that the appeals court for the Ninth Circuit had acted prematurely in extending the requirements, as all of the inmates involved were charged with “serious misconduct.” The Burger Court continued to reject the assertion of prisoner rights in Meachum v. Fano (427 U.S. 215, 1976). Justice White’s opinion for the Court

made it clear that the decision of prison authorities to transfer an inmate from a “medium to maximum security” institution without a hearing does not abridge liberty protected by the due process clause of the Fourteenth Amendment. He concluded that as long as prison officials’ discretion in transfers is not limited by state law, it is a matter of prison administration into which the judiciary should not inquire. (Cf. Vitek v. Jones, 445 U.S. 480, 1980, in which the Court held that transfer of an inmate from a prison to a mental facility does not “implicate a liberty interest,” and Olim v. Wakinekona, 461 U.S. 238, 1983, in which the same reasoning was used to approve the interstate transfer of inmates.) The Court has reviewed several cases that dealt with the conditions under which inmates live and receive care. In Hutto v. Finney (437 U.S. 678, 1978), the Court reviewed aspects of the relief that was ordered by a lower court to correct conditions and practices of the well-publicized Arkansas prison facilities. In particular, the Court sustained a lower court holding that the conditions under which inmates were kept in isolated (solitary) confinement abridged the prohibition against cruel and unusual punishment of the Eighth Amendment. Justice John Paul Stevens made it clear that the length of isolated confinement standing alone would not in itself constitute a violation, but when it is considered in combination with the conditions to which an inmate is subjected while in an isolated cell (such as filth and inadequate diet), it is possible to conclude that a constitutional violation exists. Two years earlier, the Court reached the same conclusion regarding medical care for inmates of a correctional facility. In Estelle v. Gamble (429 U.S. 97, 1976), the Court, while partially absolving prison officials for their actions, made it clear that the “deliberate indifference” of prison authorities to the “serious medical needs of prisoners” constitutes cruel and unusual punishment, thereby providing a cause of action under 42 U.S.C. 1983. The Court indicated further its sensitivity to the health concerns of prisoners when it held in Helling v. McKinney (509 U.S. 25, 1993) that an inmate has an Eighth Amendment cause of action to protect himself from the hazard of secondhand smoke to which he was subjected by the chain smoking of his cellmate. In his opinion for the Court, Justice Byron White asserted that the Eighth Amendment “requires that inmates be furnished with the basic human needs, one of which is reasonable safety.” The justice agreed with the lower

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court (Court of Appeals for the Ninth Circuit) that the inmate (McKinney) had stated a proper cause of action by alleging that prison authorities, “with deliberate indifference” had exposed him to levels of secondhand smoke that placed his future health at risk. In addition to examining the conditions in prisons, the Court also examined the constitutionality of certain conditions under which people who have been charged and are awaiting trial are detained. In Bell v. Wolfish (441 U.S. 520, 1979), for example, the Court scrutinized several conditions, practices, and policies of a federal detention center—double bunking, the limited amount of reading matter that can be received through the mail or from publishers, body cavity and room searches—to determine whether they abridged the Fifth Amendment due process guarantees of the detainees. Speaking for the Court, Justice William Rehnquist emphasized the marked difference between traditional jails and the facilities in which the prisoners were detained, which included innovative features and modern architectural design. He considered the crucial issue to be whether the conditions and practices that were challenged amounted to the punishment of detainees. The loss of freedom of choice and the diminished privacy that are inherent in such detention facilities, he opined, cannot be equated with punishment. And “absent a showing of an expressed intent to punish” and balancing the governmental interests that are protected by the practices against the constitutional claims of the detainees, he dismissed the challenges with the statement that courts ought to refrain from becoming “enmeshed in the minutiae of prison operations.” The Court reaffirmed its position in Wolfish on diminished privacy rights for inmates when it considered cell “shakedown search” practices in Hudson v. Palmer (468 U.S. 517, 1984). Reversing a court of appeals ruling that acknowledged an inmate’s “limited privacy rights” in his or her cell, where searches are conducted “solely to harass or to humiliate,” Chief Justice Burger held for the Court that the Fourth Amendment does not extend to a prisoner any reasonable expectation of privacy in his or her cell. To recognize such a right would be inconsistent with the prison’s need to prevent the smuggling of weapons, drugs, and other contraband into cells and among the prison population. Burger concluded that the “shakedown search” was an effective weapon in prison administrators’ efforts against the proliferation of weapons in cells, a weapon that should not be 426

blunted by an expansive interpretation of the Fourth Amendment. (See also Block v. Rutherford, 468 US. 576, 1984, in which the Court upheld the “shakedown” practice in county jails for pretrial detainees. Also at issue here was the blanket prohibition of contact visits between detainees and their spouses, children, relatives, and friends, a policy that the Court found constitutionally valid and “reasonably related to a legitimate governmental objective.”) Near the end of its 1980 term, when prison populations were spiraling up, the Court examined the serious problem of housing these prisoners. Many states have been unwilling to further tax their dwindling financial resources in order to provide additional facilities to meet such housing demands. Consequently, officials in some institutions have resorted to the practice of “double celling,” or routinely assigning two inmates to a cell that is designed for one. Some inmates and their advocates contend that forcing such living arrangements on incarcerated persons constitutes cruel and unusual punishment in violation of the Eighth Amendment. But the Court, apparently recognizing the serious consequences of accepting that position, ruled otherwise in Rhodes v. Chapman (452 U.S. 337, 1981). Justice Lewis Powell emphasized that the Constitution requires the maintenance of humane conditions, but not “comfort.” Consequently, when prison conditions such as food, medical care, sanitation, and personal security are satisfactory, “double celling” is constitutionally permissible. During its first term, the Rehnquist Court (1986–87), in considering the constitutionality of Missouri’s correspondence and marriage regulations, reexamined the appropriate level of judicial scrutiny to determine whether prison regulations and practices abridge the constitutional rights of inmates. In Turner v. Safley (482 U.S. 78, 1987), Justice O’Connor’s opinion for the Court contended that lower courts had misconstrued Procunier and its progeny as requiring a strict scrutiny level of review of such controversies. Instead, she argued that a lesser standard of review—regardless of “whether a prison regulation that impinges on inmates’ constitutional rights is ‘reasonably related’ to legitimate penological interests”—was indicated in those cases and should be adhered to here. After reviewing several factors that should be examined to determine whether prison regulations and practices are “reasonably related to penological interests,” she concluded that the inmate-correspondence regulation

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was in pursuance of “legitimate” prison security interests,10 whereas the marriage restriction was not.11 The issue of the quality of living conditions for prison inmates was presented to the Rehnquist Court for the first time in a challenge to the living conditions in Ohio prisons in Wilson v. Seiter (501 U.S. 294) in 1991. Alleging that the facility in which he was incarcerated was overcrowded, had inadequate heating and lighting, was improperly ventilated, and had unsanitary food preparation and dining facilities, the inmate argued that such conditions of confinement constituted the cruel and unusual punishment proscribed by the Eighth Amendment. But the Court, following its position of deference to prison administrative authority, rejected the claim. In his opinion for the Court, Justice Scalia fastened a heavy burden on inmates raising such Eighth Amendment claims by requiring them to show not only that the conditions did exist but that the prison officials responsible for them had “a culpable state of mind.” He also stressed that the “deliberate indifference” standard enunciated in Estelle v. Gamble in 1976 must be met in inmate challenges to their conditions of confinement. Scalia’s assertion that the “indifference” standard could be applied to the conditions and deprivapions suffered by inmates that were not a part of the formal sentence was challenged by Justice White in a concurring opinion, supported by Justices Marshall, Blackmun, and Stevens. He contended that “[t]he linchpin of the majority’s analysis . . . is its assertion that ‘[i]f the pain inflicted is not formally meted out as punishment . . . [by the sentencer] some mental element must be attributed to the inflicting officer before it can qualify’” for Eighth Amendment scrutiny. This, he argued, was a serious disregard of the Court’s prior decisions on conditions of confinement, in which it had been made “clear that the conditions are themselves part of the punishment.” In a second cruel-and-unusual-punishment case involving prison disciplinary action, the Rehnquist 10 The regulation prescribed conditions for correspondence between inmates at different institutions. It permits correspondence with “immediate family members” and with inmates imprisoned at other institutions concerning legal matters. All other interinmate, interprison correspondence is permitted only if appropriate authorities determine it to be “in the best interest of the parties involved.” 11 The challenged regulation permitted inmate marriage only with the permission of the prison superintendent, whose consent was to be given only “when there are compelling reasons to do so.”

Court drew back from its earlier deference to prison authorities as it decided Hudson v. McMillian (501 U.S. 1) in 1992. In that case, a Louisiana prison inmate who had sustained injuries (minor bruises, facial swelling, loosened teeth, and a cracked denture) from a beating by prison guards convinced a sevento-two majority of the Court to sustain his Eighth Amendment claim. In her opinion for the Court, Justice O’Connor noted that in such cases, the “core of judicial inquiry is whether force is applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hence, she concluded that although the inmate did not suffer serious injuries, the use of excessive physical force was at odds with the Eighth Amendment’s crueland-unusual-punishment clause. In a dissenting opinion in which Justice Scalia joined, Justice Thomas took exception to the expansive application of that clause. He argued that the de minimis use of force and the insignificant injury to the inmate do not reach the level of an Eighth Amendment violation. He phrased the issue thusly: [A] use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortuous, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not “cruel and unusual punishment.”

On another dimension of the cruel-and-unusualpunishment question, the Rehnquist Court adopted a narrow view of its protective shield when it decided Harmelin v. Michigan (501 U.S. 957) in 1991. In that case, the Court upheld a Michigan law that provides for a mandatory life sentence without the possibility of parole for a conviction of the possession of large quantities of drugs. Justice Scalia brushed aside the petitioner’s claim that such a mandatory sentencing policy is contrary to the Court’s capital sentencing jurisprudence, which requires the consideration of mitigating factors, and that it abridges the cruel-andunusual-punishment clause. He held that although such “severe, mandatory penalties may be cruel, . . . they are not unusual in the constitutional sense.” Emphasizing that what actually constitutes cruel and unusual punishment does not include consideration of “the particular offense,” he concluded that the clause was intended to proscribe “certain methods of punishment,” not “disproportionate” sentences. In dissent, Justice White found some support for the petitioner’s proportionality argument in the “excessive fines” clause of the Eighth Amendment.

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Consequently, it would not be unreasonable to conclude that the imposition of “punishment that is grossly disproportionate to the offense” for which one has been convicted infringes the cruel and unusual punishment clause. Another issue before the Court was whether the First Amendment guarantees of freedom of speech and assembly apply to inmate organizational activities with respect to the formation of a prisoners’ union. In Jones v. North Carolina Prisoners’ Labor Union, Inc. (433 U.S. 119, 1977), the Supreme Court held that a state’s overriding interest in the maintenance of prison decorum and security overrode the First Amendment guarantees. The Court noted that such an organization, which airs grievances in an adversarial relationship with prison officials, “surely would rank high on anyone’s list of potential trouble spots.” The Court also has considered a number of claims that focus on the application of constitutional guarantees to parole and probation revocation. During the height of the Court’s sensitivity to the rights of the accused in the 1960s, it held in Mempa v. Rhay (389 U.S. 128, 1967) that when a sentencing hearing is included in a probation revocation proceeding, a stage of the criminal process is involved and therefore the probationer is entitled to counsel. Because the revocation proceeding lacks a sentencing component, however, the Court ruled that neither a hearing nor counsel is required during that proceeding. Five years later, in Morrissey v. Brewer (408 U.S. 471, 1972), the Court held that although revocation of parole is not a part of a criminal prosecution, the

deprivation of liberty that ensues requires that due process be observed. Accordingly, parolees are entitled to a hearing when they are placed in custody to ascertain whether there is probable cause that they have violated their parole. In addition, the Court held that a parolee is entitled to a “more comprehensive” hearing prior to a revocation decision. This decision was reaffirmed a year later in Gagnon v. Scarpelli (411 U.S. 778) when, at the same time, the Court asserted the necessity for a flexible “constitutional rule” with respect to the right to counsel in such proceedings. As Justice Powell contended, “there will [be] certain cases in which fundamental fairness . . . will require that the state provide at its expense counsel for indigent probationers or parolees.” When lower courts construed Morrissey and its progeny to invalidate Nebraska’s discretionary parole procedure, the Court disagreed. In Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex (442 U.S. 1, 1979), Chief Justice Burger maintained that there was a constitutional difference between a deprivation of one’s liberty (as in Morrissey, when parole revocation was at issue) and the loss of the “conditional liberty that one desires” (as in the discretionary parole release involved in this case). He concluded that the state’s two-stage procedure for determining parole eligibility did not abridge due process because the inmate was not afforded a full-scale hearing at the initial interview stage, at which suitability for parole is determined. Provision for such a hearing at the second stage, once the inmate has been determined to be suitable, was held to be sufficient.

HUDSON V. MCMILLIAN 503 U.S. 1; 117 L. Ed. 2d 156; 112 S. Ct. 995 (1992) JUSTICE O’CONNOR delivered the opinion of the Court. JUSTICES STEVENS and BLACKMUN filed concurring opinions. JUSTICE THOMAS filed a dissenting opinion, in which JUSTICE SCALIA joined.

constitute cruel and unusual punishment when the inmate does not suffer serious injury. We answer that question in the affirmative.

JUSTICE O’CONNOR delivered the opinion of the Court.

At the time of the incident that is the subject of this suit, petitioner Keith Hudson was an inmate at the state penitentiary in Angola, Louisiana. Respondents Jack McMillian, Marvin Woods, and Arthur Mezo

This case requires us to decide whether the use of excessive physical force against a prisoner may 428

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served as corrections security officers at the Angola facility. During the early morning hours of October 30, 1983, Hudson and McMillian argued. Assisted by Woods, McMillian then placed Hudson in handcuffs and shackles, took the prisoner out of his cell, and walked him toward the penitentiary’s “administrative lockdown” area. Hudson testified that, on the way there, McMillian punched Hudson in the mouth, eyes, chest, and stomach while Woods held the inmate in place and kicked and punched him from behind. He further testified that Mezo, the supervisor on duty, watched the beating but merely told the officers “not to have too much fun.” As a result of this episode, Hudson suffered minor bruises and swelling of his face, mouth, and lip. The blows also loosened Hudson’s teeth and cracked his partial dental plate, rendering it unusable for several months. Hudson sued the three corrections officers in Federal District Court under 42 U.S.C. § 1983, alleging a violation of the Eighth Amendment’s prohibition on cruel and unusual punishments and seeking compensatory damages. The parties consented to disposition of the case before a Magistrate, who found that McMillian and Woods used force when there was no need to do so and that Mezo expressly condoned their actions. The Magistrate awarded Hudson damages of $800. The Court of Appeals for the Fifth Circuit reversed. It held that inmates alleging use of excessive force in violation of the Eighth Amendment must prove: (1) significant injury; (2) resulting “directly and only from the use of force that was clearly excessive to the need”; (3) the excessiveness of which was objectively unreasonable; and (4) that the action constituted an unnecessary and wanton infliction of pain. The court determined that respondents’ use of force was objectively unreasonable because no force was required. Furthermore, “[t]he conduct of McMillian and Woods qualified as clearly excessive and occasioned unnecessary and wanton infliction of pain.” However, Hudson could not prevail on his Eighth Amendment claim because his injuries were “minor” and required no medical attention. . . . II . . . [The Court has adopted as the] legal standard that should govern the Eighth Amendment claim of an inmate shot by a guard during a prison riot . . . the settled rule that “‘the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual

punishment forbidden by the Eighth Amendment,’” (quoting Ingraham v. Wright, 430 U.S. 651, 670, 1970). What is necessary to establish an “unnecessary and wanton infliction of pain,” we said, varies according to the nature of the alleged constitutional violation. For example, the appropriate inquiry when an inmate alleges that prison officials failed to attend to serious medical needs is whether the officials exhibited “deliberate indifference.” See Estelle v. Gamble, 429 U.S. 97, 104 (1976). This standard is appropriate because the State’s responsibility to provide inmates with medical care ordinarily does not conflict with competing administrative concerns. By contrast, officials confronted with a prison disturbance must balance the threat unrest poses to inmates, prison workers, administrators, and visitors against the harm inmates may suffer if guards use force. Despite the weight of these competing concerns, corrections officials must make their decisions “in haste, under pressure, and frequently without the luxury of a second chance.” We accordingly concluded in Whitley [v. Albers, 475 U.S. 312, 1986] that application of the deliberate indifference standard is inappropriate when authorities use force to put down a prison disturbance. Instead, “the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on ‘whether force [was] applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’” Many of the concerns underlying our holding in Whitley arise whenever guards use force to keep order. Whether the prison disturbance is a riot or a lesser disruption, corrections officers must balance the need “to maintain or restore discipline” through force against the risk of injury to inmates. Both situations may require prison officials to act quickly and decisively. Likewise, both implicate the principle that “‘[p]rison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.’” In recognition of these similarities, we hold that whenever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley: whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm. . . .

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A Under the Whitley approach, the extent of injury suffered by an inmate is one factor that may suggest “whether the use of force could plausibly have been thought necessary” in a particular situation, “or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” In determining whether the use of force was wanton and unnecessary, it may also be proper to evaluate the need for application of force, the relationship between that need and the amount of force used, the threat “reasonably perceived by the responsible officials,” and “any efforts made to temper the severity of a forceful response.” The absence of serious injury is therefore relevant to the Eighth Amendment inquiry, but does not end it. Respondents nonetheless assert that a significant injury requirement of the sort imposed by the Fifth Circuit is mandated by what we have termed the “objective component” of Eighth Amendment analysis. See Wilson v. Seiter, 501 U.S. 294, 111 S. Ct. 2321, 2326 (1991). Wilson extended the deliberate indifference standard applied to Eighth Amendment claims involving medical care to claims about conditions of confinement. In taking this step, we suggested that the subjective aspect of an Eighth Amendment claim (with which the Court was concerned) can be distinguished from the objective facet of the same claim. Thus, courts considering a prisoner’s claim must ask both if “the officials act[ed] with a sufficiently culpable state of mind” and if the alleged wrongdoing was objectively “harmful enough” to establish a constitutional violation. . . . What is necessary to show sufficient harm for purposes of the Cruel and Unusual Punishments Clause depends upon the claim at issue, for two reasons. First, “[t]he general requirement that an Eighth Amendment claimant allege and prove the unnecessary and wanton infliction of pain should . . . be applied with due regard for differences in the kind of conduct against which an Eighth Amendment objection is lodged.” Second, the Eighth Amendment’s prohibition of cruel and unusual punishments “‘draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society,’” and so admits of few absolute limitations. Rhodes v. Chapman, 452 U.S. 337, 346 (1981). The objective component of an Eighth Amendment claim is therefore contextual and 430

responsive to “contemporary standards of decency.” For instance, extreme deprivations are required to make out a conditions-of-confinement claim. Because routine discomfort is “part of the penalty that criminal offenders pay for their offenses against society,” “only those deprivations denying ‘the minimal civilized measure of life’s necessities’ are sufficiently grave to form the basis of an Eighth Amendment violation.” A similar analysis applies to medical needs. Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are “serious.” In the excessive force context, society’s expectations are different. When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. This is true whether or not significant injury is evident. Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury. Such a result would have been as unacceptable to the drafters of the Eighth Amendment as it is today. . . . That is not to say that every malevolent touch by a prison guard gives rise to a federal cause of action. See Johnson v. Glick, 481 F.2d, at 1033 (“Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights”). The Eighth Amendment’s prohibition of “cruel and unusual” punishment necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort “‘repugnant to the conscience of mankind.’” In this case, the Fifth Circuit found Hudson’s claim untenable because his injuries were “minor.” Yet the blows directed at Hudson, which caused bruises, swelling, loosened teeth, and a cracked dental plate, are not de minimis for Eighth Amendment purposes. The extent of Hudson’s injuries thus provides no basis for dismissal of his § 1983 claim. B The dissent’s theory that Wilson requires an inmate who alleges excessive use of force to show serious injury in addition to the unnecessary and wanton infliction of pain misapplies Wilson and ignores the body of our Eighth Amendment jurisprudence. . . . Wilson presented neither an allegation of excessive

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force nor any issue relating to what was dubbed the “objective component” of an Eighth Amendment claim. . . . The dissent’s argument that claims based on excessive force and claims based on conditions of confinement are no different in kind is likewise unfounded. Far from rejecting Whitley’s insight that the unnecessary and wanton infliction of pain standard must be applied with regard for the nature of the alleged Eighth Amendment violation, the Wilson Court adopted it. How could it be otherwise when the constitutional touchstone is whether punishment is cruel and unusual? To deny, as the dissent does, the difference between punching a prisoner in the face and serving him unappetizing food is to ignore the “‘concepts of dignity, civilized standards, humanity, and decency’” that animate the Eighth Amendment. C Respondents argue that, aside from the significant injury test applied by the Fifth Circuit, their conduct cannot constitute an Eighth Amendment violation because it was “isolated and unauthorized.” The beating of Hudson, they contend, arose from “a personal dispute between correctional security officers and a prisoner,” and was against prison policy. Respondents invoke the reasoning of courts that have held the use of force by prison officers under such circumstances beyond the scope of “punishment” prohibited by the Eighth Amendment. . . . We take no position on respondent’s legal argument because we find it inapposite on this record. The Court of Appeals left intact the Magistrate’s determination that the violence at issue in this case was “not an isolated assault.” Indeed, there was testimony that McMillian and Woods beat another prisoner shortly after they finished with Hudson. To the extent that respondents rely on the unauthorized nature of their acts, they make a claim not addressed by the Fifth Circuit, not presented by the question on which we granted certiorari, and accordingly, not before this Court. Moreover, respondents ignore the Magistrate’s finding that Lieutenant Mezo, acting as a supervisor, “expressly condoned the use of force in this instance.” The judgment of the Court of Appeals is Reversed. [The concurring opinion of JUSTICE STEVENS is not reprinted here.]

JUSTICE BLACKMUN, concurring in the judgment: The Court today appropriately puts to rest a seriously misguided view that pain inflicted by an excessive use of force is actionable under the Eighth Amendment only when coupled with “significant injury,” e.g., injury that requires medical attention or leaves permanent marks. Indeed, were we to hold to the contrary, we might place various kinds of state-sponsored torture and abuse—of the kind ingeniously designed to cause pain but without a telltale “significant injury”—entirely beyond the pale of the Constitution. In other words, the constitutional prohibition of “cruel and unusual punishments” then might not constrain prison officials from lashing prisoners with leather straps, whipping them with rubber hoses, beating them with naked fists, shocking them with electric currents, asphyxiating them short of death, intentionally exposing them to undue heat or cold, or forcibly injecting them with psychosis-inducing drugs. These techniques, commonly thought to be practiced only outside this Nation’s borders, are hardly unknown within this Nation’s prisons. See, e.g. Campbell v. Grammer, 889 F.2d 797, 802 (CA8 1989) (use of high-powered fire hoses); Jackson v. Bishop, 404 F.2d 571, 574–575 (CA8 1968) (use of the “Tucker Telephone,” a hand-cranked device that generated electric shocks to sensitive body parts, and flogging with leather strap). . . . I Citing rising caseloads, respondents, represented by the Attorney General of Louisiana, and joined by the States of Texas, Hawaii, Nevada, Wyoming, and Florida as amici curiae, suggest that a “significant injury” requirement is necessary to curb the number of court filings by prison inmates. We are informed that the “significant injury requirement has been very effective in the Fifth Circuit in helping to control its system-wide docket management problems.” This audacious approach to the Eighth Amendment assumes that the interpretation of an explicit constitutional protection is to be guided by pure policy preferences for the paring down of prisoner petitions. Perhaps judicial overload is an appropriate concern in determining whether statutory standing to sue should be conferred upon certain plaintiffs. . . . But this inherently self-interested concern has no appropriate role in interpreting the contours of a substantive constitutional right.

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Since the burden on the courts is presumably worth bearing when a prisoner’s suit has merit, the States’ “concern” is more aptly termed a “conclusion” that such suits are simply without merit. One’s experience on the federal bench teaches the contrary. Moreover, were particular classes of cases to be nominated for exclusion from the federal courthouse, we might look first to cases in which federal law is not sensitively at issue rather than to those in which fundamental constitutional rights are at stake. The right to file for legal redress in the courts is as valuable to a prisoner as to any other citizen. Indeed, for the prisoner it is more valuable. Inasmuch as one convicted of a serious crime and imprisoned usually is divested of the franchise, the right to file a court action stands . . . as his most “fundamental political right, because preservative of all rights.” Today’s ruling . . . does not open the floodgates for filings by prison inmates. By statute, prisoners— alone among other § 1983 claimants—are required to exhaust administrative remedies. Moreover, prison officials are entitled to a determination before trial whether they acted in an objectively reasonable manner, thereby entitling them to a qualified immunity defense. Additionally, a federal district court is authorized to dismiss a prisoner’s complaint in forma pauperis “if satisfied that the action is frivolous or malicious.” These measures should be adequate to control any docket-management problems that might result from meritless prisoner claims. II I do not read anything in the Court’s opinion to limit injury cognizable under the Eighth Amendment to physical injury. It is not hard to imagine inflictions of psychological harm—without corresponding physical harm—that might prove to be cruel and unusual punishment. The issue was not presented here, because Hudson did not allege that he feared that the beating incident would be repeated or that it had caused him anxiety and depression. As the Court makes clear, the Eighth Amendment prohibits the unnecessary and wanton infliction of “pain,” rather than “injury.” “Pain” in its ordinary meaning surely includes a notion of psychological harm. I am unaware of any precedent of this Court to the effect that psychological pain is not cognizable for constitutional purposes. If anything, our precedent is to the contrary. 432

To be sure, as the Court’s opinion intimates, de minimis or nonmeasurable pain is not actionable under the Eighth Amendment. But psychological pain can be more than de minimis. Psychological pain often may be clinically diagnosed and quantified through well established methods, as in the ordinary tort context where damages for pain and suffering are regularly awarded. I have no doubt that to read a “physical pain” or “physical injury” requirement into the Eighth Amendment would be no less pernicious and without foundation than the “significant injury requirement” we reject today. JUSTICE THOMAS, joined by JUSTICE SCALIA, dissenting: ... I In my view, a use of force that causes only insignificant harm to a prisoner may be immoral, it may be tortious, it may be criminal, and it may even be remediable under other provisions of the Federal Constitution, but it is not “cruel and unusual punishment.” In concluding to the contrary, the Court today goes far beyond our precedents. A Until recent years, the Cruel and Unusual Punishment Clause was not deemed to apply at all to deprivations that were not inflicted as part of the sentence for a crime. For generations, judges and commentators regarded the Eighth Amendment as applying only to torturous punishments meted out by statutes or sentencing judges, and not generally to any hardship that might befall a prisoner during incarceration. In Weems v. United States, 217 U.S. 349 (1910), the Court extensively chronicled the background of the amendment, discussing its English antecedents, its adoption by Congress, its construction by this Court, and the interpretation of analogous provisions by state courts. Nowhere does Weems even hint that the Clause might regulate not just criminal sentences but the treatment of prisoners. Scholarly commentary also viewed the Clause as governing punishments that were part of the sentence. See T. Cooley, Constitutional Limitations, 329. . . . Surely prison was not a more congenial place in the early years of the Republic than it is today; nor were our judges and commentators so naive as to be unaware of the often harsh conditions of prison life.

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Rather, they simply did not conceive of the Eighth Amendment as protecting inmates from harsh treatment. Thus, historically, the lower courts routinely rejected prisoner grievances by explaining that the courts had no role in regulating prison life. . . . B We made clear in Estelle that the Eighth Amendment plays a very limited role in regulating prison administration. The case involved a claim that prison doctors had inadequately attended an inmate’s medical needs. We rejected the claim because the inmate failed to allege “acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs” (emphasis added). From the outset, thus, we specified that the Eighth Amendment does not apply to every deprivation, or even every unnecessary deprivation, suffered by a prisoner, but only that narrow class of deprivations involving “serious” injury inflicted by prison officials acting with a culpable state of mind. We have since described these twin elements as the “objective” and “subjective” components of an Eighth Amendment prison claim. We have never found a violation of the Eighth Amendment in the prison context when an inmate has failed to establish either of these elements. . . . C Given Estelle, Rhodes, Whitley, and Wilson, one might have assumed that the Court would have little difficulty answering the question presented in this case by upholding the Fifth Circuit’s “significant injury” requirement. Instead, the Court announces that “[t]he objective component of an Eighth Amendment claim is . . . contextual and responsive to contemporary standards of decency.” In the context of claims alleging the excessive use of physical force, the Court then asserts, the serious deprivation requirement is satisfied by no serious deprivation at all. “When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated.” Ibid. Ascertaining prison officials’ state of mind, in other words, is the only relevant inquiry in deciding whether such cases involve “cruel and unusual punishment.” In my view, this approach is an unwarranted and unfortunate break with our Eighth Amendment prison jurisprudence. The Court purports to derive the answer to this case from Whitley. The sum and substance of an

Eighth Amendment violation, the Court asserts, is “the unnecessary and wanton infliction of pain.” (quoting Whitley, 475 U.S., at 319, 106 S. Ct., at 1084). This formulation has the advantage, from the Court’s perspective, of eliminating the objective component. As noted above, however, the only dispute in Whitley concerned the subjective component; the prisoner, who had been shot, had self-evidently been subjected to an objectively serious injury. Whitley did not say, as the Court does today, that the objective component is contextual, and that an Eighth Amendment claim may succeed where a prisoner is not seriously injured. Rather, Whitley stands for the proposition that, assuming the existence of an objectively serious deprivation, the culpability of an official’s state of mind depends on the context in which he acts. “Whitley teaches that, assuming the conduct is harmful enough to satisfy the objective component of an Eighth Amendment claim, whether it can be characterized as ‘wanton’ depends upon the constraints facing the official.” Whether officials subject a prisoner to the “unnecessary and wanton infliction of pain” is simply one way to describe the state of mind inquiry that was at issue in Whitley itself. As Wilson made clear, that inquiry is necessary but not sufficient when a prisoner seeks to show that he has been subjected to cruel and unusual punishment. Perhaps to compensate for its elimination of the objective component in excessive force cases, the Court simultaneously makes it harder for prisoners to establish the subjective component. As we explained in Wilson, “deliberate indifference” is the baseline mental state required to establish an Eighth Amendment violation. Departure from this baseline is justified where, as in Whitley, prison officials act in response to an emergency; in such situations their conduct cannot be characterized as “wanton” unless it is taken “maliciously and sadistically for the very purpose of causing harm.” The Court today extends the heightened mental state applied in Whitley to all excessive force cases, even where no competing institutional concerns are present. . . . I do not agree. Many excessive force cases do not arise from guards’ attempts to “keep order.” (In this very case, the basis for petitioner’s Eighth Amendment claim is that the guards hit him when there was no need for them to use any force at all.) The use of excessive physical force is by no means invariably (in fact, perhaps not even predominantly) accompanied by a “malicious and sadistic” state of mind. I see no justification for applying the extraordinary

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Whitley standard to all excessive force cases, without regard to the constraints facing prison officials. The Court’s unwarranted extension of Whitley, I can only suppose, is driven by the implausibility of saying that minor injuries imposed upon prisoners with anything less than a “malicious and sadistic” state of mind can amount to “cruel and unusual punishment. . . . ” D If the Court is to be taken at its word that “the unnecessary and wanton infliction of pain” upon a prisoner per se amounts to “cruel and unusual punishment,” the implications of today’s opinion are sweeping. For this formulation replaces the objective component described in our prior cases with a “necessity” component. Many prison deprivations, however, are not “necessary,” at least under any meaningful definition of the word. Thus, under today’s analysis, Rhodes was wrongly decided. Surely the “double celling” of inmates was not “necessary” to fulfill the State’s penal mission; in fact, the prison in that case had been designed for individual cells, but was simply overcrowded. We rejected the prisoners’ claim in Rhodes not because we determined that double-celling [sic] was “necessary,” but because the deprivations alleged were not sufficiently serious to state a claim of cruel and unusual punishment. After today, the “necessity” of a deprivation is apparently the only relevant inquiry beyond the wantonness of official conduct. This approach, in my view, extends the Eighth Amendment beyond all reasonable limits. II Today’s expansion of the Cruel and Unusual Punishment Clause beyond all bounds of history and precedent is, I suspect, yet another manifestation of the pervasive view that the Federal Constitution must address all ills in our society. Abusive behavior by prison guards is deplorable conduct that properly evokes outrage and contempt. But that does not mean that it is invariably unconstitutional. The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation. To reject the notion that the infliction of concededly “minor” injuries can be considered either “cruel” or “unusual” “punishment” (much less cruel and unusual punishment) is not to say that it amounts to acceptable conduct. Rather, it is to recognize that primary responsibility for preventing and punishing such 434

conduct rests not with the Federal Constitution but with the laws and regulations of the various States. Petitioner apparently could have, but did not, seek redress for his injuries under state law. Respondents concede that if available state remedies were not constitutionally adequate, petitioner would have a claim under the Due Process Clause of the Fourteenth Amendment. I agree with respondents that this is the appropriate, and appropriately limited, federal constitutional inquiry in this case. . . . Because I conclude that, under our precedents, a prisoner seeking to establish that he has been subjected to “cruel and unusual punishment” must always show that he has suffered a serious injury, I would affirm the judgment of the Fifth Circuit.

JUVENILE RIGHTS FEATURED CASE

In re Gault To what extent are the various constitutional safeguards that are guaranteed to adults accused of crime available to juveniles? The Court considered this crucial question in In re Gault (387 U.S. 1, 1967), in which it reversed a juvenile court decision that had committed a youngster to an industrial school until he reached the age of majority (a six-year sentence). The Court held that in such proceedings the due process clause of the Fourteenth Amendment requires that (1) adequate notice of the hearings be given, (2) the child be informed of his or her right to counsel (including assigned counsel), and (3) the privileges against self-incrimination and confrontation be extended to him or her. Justice Abe Fortas’s opinion for the five-man majority was careful to limit the holdings to the actual “proceedings.” He concluded that the unique values of the juvenile system would in no way be impaired by this “constitutional domestication.” See also Breed v. Jones (421 U.S. 519, 1975), in which the guarantee against double jeopardy was held to be applicable to such proceedings, but note the Court’s refusal to construe a juvenile’s request to consult with his probation officer as per se invocation of Miranda interrogation requirements (Fare v. Michael C., 442 U.S. 707, 1979). In McKeiver v. Pennsylvania and In re Burrus (403 U.S. 528, 1971), however, the Court did not agree that such “constitutional domestication” includes the right to trial by jury in juvenile court

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delinquency proceedings. Noting that “fundamental fairness” is the essential ingredient of due process in such proceedings, Justice Harry Blackmun emphasized in the plurality opinion that other instruments of the juvenile process can better serve its purpose and that states should not be impeded in searching for improvements by having to conduct jury trials. Such trials, he concluded, are not required in order for the proceeding to be “fair and equitable.” He cautioned that injection of the jury trial in juvenile matters as a matter of right could well burden juvenile courts with many of the evils that characterize modern criminal courts, such as lengthy delays and possibly damaging public proceedings. Justice Douglas, in dissent, focused on the results that come from such proceedings. He contended that when the state uses the juvenile proceeding as a forum to prosecute a criminal act, out of which is issued a confinement order for a period of time or where such a possibility is a stark reality, the procedural protections that are afforded adults must be available to juveniles. After all, he continued, the Court made it clear in Gault that the guarantees protected by the Bill of Rights and the Fourteenth Amendment are not exclusively for adults.

However, in its apparent intent to broaden the discretion of the states in the administration of criminal procedures, the Burger Court upheld New York’s juvenile preventive detention statute in Schall v. Martin (467 U.S. 253, 1984). For Justice William Rehnquist, who spoke for the six-to-three majority, pretrial detention is designed to accomplish a “legitimate governmental objective” in protecting society from pretrial criminal activity. Rehnquist concluded that the statute, in providing for a range of postdetention guarantees (such as habeas corpus review appeals), does not abridge that “fundamental fairness” that due process requires. But in 2005 Chief Justice Rehnquist found himself dissenting in Roper v. Simmons (543 U.S. 551). In that case, a 5–4 Court majority held that to impose capital punishment on juveniles under the age of eighteen when their crimes were committed was unconstitutional. The Court said that subjecting juveniles to the death penalty was forbidden by the “cruel and unusual punishment” clause of the Eighth Amendment as applied to the states through the Fourteenth Amendment. Thus, Roper overruled the 1989 Court decision in Stanford v. Kentucky.

IN RE GAULT 387 U.S. 1; 18 L. Ed. 2d 527; 87 S. Ct. 1428 (1967) JUSTICE FORTAS delivered the opinion of the Court. JUSTICES BLACK and WHITE filed concurring opinions. JUSTICE HARLAN filed an opinion concurring in part and dissenting in part. JUSTICE STEWART filed a dissenting opinion. JUSTICE FORTAS delivered the opinion of the Court. This is an appeal under 28 U.S.C. § 1257(2) from a judgment of the Supreme Court of Arizona affirming the dismissal of a petition for a writ of habeas corpus. . . . The petition sought the release of Gerald Francis Gault, appellants’ 15-year-old son, who had been committed as a juvenile delinquent to the State Industrial School by the Juvenile Court of Gila County, Arizona. The Supreme Court of Arizona af-

firmed dismissal of the writ. . . . The court agreed that the constitutional guarantee of due process of law is applicable in such proceedings. It held that Arizona’s Juvenile Code is to be read as “impliedly” implementing the “due process concept.”. . . It concluded that the proceedings ending in commitment of Gerald Gault did not offend those requirements. We do not agree, and we reverse. We begin with a statement of the facts. On Monday, June 8, 1964, at about 10 A.M., Gerald Francis Gault and a friend, Ronald Lewis, were taken into custody by the Sheriff of Gila County. Gerald was then still subject to a six months’ probation order. . . . The police action on June 8 was taken as the result of a verbal complaint by a neighbor of the boys, Mrs. Cook, about

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a telephone call made to her in which the caller or callers made lewd or indecent remarks. It will suffice for purposes of this opinion to say that the remarks or questions put to her were of the irritatingly offensive, adolescent, sex variety. At the time Gerald was picked up, his mother and father were both at work. No notice that Gerald was being taken into custody was left at the home. No other steps were taken to advise them that their son had, in effect, been arrested. Gerald was taken to the Children’s Detention Home. . . . The deputy probation officer, Flagg, who was also superintendent of the Detention Home, told Mrs. Gault “why Jerry was there” and said that a hearing would be held in Juvenile Court at 3 o’clock the following day, June 9. Officer Flagg filed a petition with the court on the hearing day, June 9, 1964. It was not served on the Gaults. Indeed, none of them saw this petition until the habeas corpus hearing on August 17, 1964. The petition was entirely formal. It made no reference to any factual basis for the judicial action which it initiated. It recited only that “said minor is under the age of eighteen years, and is in need of the protection of this Honorable Court; [and that] said minor is a delinquent minor.” It prayed for a hearing and an order regarding “the care and custody of said minor.”. . . On June 9, Gerald, his mother, his older brother, and Probation Officers Flagg and Henderson appeared before the Juvenile Judge in chambers. Gerald’s father was not there. He was at work out of the city. Mrs. Cook, the complainant, was not there. No one was sworn at this hearing. No transcript or recording was made. No memorandum or record of the substance of the proceedings was prepared. Our information about the proceeding and the subsequent hearing on June 15, derives entirely from the testimony of the Juvenile Court Judge, Mr. and Mrs. Gault and Officer Flagg at the habeas corpus proceeding conducted two months later. From this, it appears that at the June 9 hearing Gerald was questioned by the judge about the telephone call. There was conflict as to what he said. His mother recalled that Gerald said he only dialed Mrs. Cook’s number and handed the telephone to his friend, Ronald. Officer Flagg recalled that Gerald had admitted making the lewd remarks. Judge McGhee testified that Gerald “admitted making one of these [lewd] statements.” At the conclusion of the hearing, the judge said he would “think about it.” Gerald was taken back to the Detention Home. . . . On June 11 or 12, 436

after having been detained since June 8, Gerald was released and driven home. There is no explanation in the record as to why he was kept in the Detention Home or why he was released. At 5 P.M. on the day of Gerald’s release, Mrs. Gault received a note signed by Officer Flagg. It was on plain paper, not letter-head. Its entire text was as follows: Mrs. Gault: Judge McGhee has set Monday June 15, 1964 at 11:00 A.M. as the date and time for further Hearings on Gerald’s delinquency /s/ Flagg

At the appointed time on Monday, June 15, Gerald, his father and mother, Ronald Lewis and his father, and Officers Flagg and Henderson were present before Judge McGhee. Witnesses at the habeas corpus proceeding differed in their recollections of Gerald’s testimony at the June 15 hearing. Mr. and Mrs. Gault recalled that Gerald again testified that he had only dialed the number and that the other boy had made the remarks. Officer Flagg agreed that at this hearing Gerald did not admit making the lewd remarks. But Judge McGhee recalled that “there was some admission again of some of the lewd statements. He—he didn’t admit any of the more serious lewd statements.” Again, the complainant, Mrs. Cook, was not present. Mrs. Gault asked that Mrs. Cook be present “so she could see which boy that done the talking, the dirty talking over the phone.” The Juvenile Judge said “she didn’t have to be present at that hearing.” The judge did not speak to Mrs. Cook or communicate with her at any time. Probation Officer Flagg had talked to her once— over the telephone on June 9. At this June 15 hearing a “referral report” made by the probation officers was filed with the court, although not disclosed to Gerald or his parents. This listed the charge as “Lewd Phone Calls.” At the conclusion of the hearing, the judge committed Gerald as a juvenile delinquent to the State Industrial School “for the period of his minority (that is, until 21), unless sooner discharged by due process of law.”. . . No appeal is permitted by Arizona law in juvenile cases. On August 3, 1964, a petition for a writ of habeas corpus was filed with the Supreme Court of Arizona and referred by it to the Superior Court for hearing. At the habeas corpus hearing on August 17, Judge McGhee was vigorously cross-examined as to

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the basis for his actions. He testified that he had taken into account the fact that Gerald was on probation. He was asked “under what section of . . . the code you found the boy delinquent?”. . . . . . In substance, he concluded that Gerald came within [the state statute] which specifies that a “delinquent child” includes one “who has violated a law of the state or an ordinance or regulation of a political subdivision thereof.”. . . The judge also testified that he acted under [the statutory provision] which includes in the definition of a “delinquent child” one who, as the judge phrased it, is “habitually involved in immoral matters.”. . . The Superior Court dismissed the writ, and appellants sought review in the Arizona Supreme Court. . . . The Supreme Court handed down an elaborate and wide-ranging opinion affirming dismissal of the writ. . . . [Appellants] urge that we hold the Juvenile Code of Arizona invalid on its face or as applied in this case because, contrary to the Due Process Clause of the Fourteenth Amendment, the juvenile is taken from the custody of his parents and committed to a state institution pursuant to proceedings in which the Juvenile Court has virtually unlimited discretion, and in which the following basic rights are denied: 1. 2. 3. 4. 5.

Notice of the charges; Right to counsel; Right to confrontation and cross-examination; Privilege against self-incrimination; Right to a transcript of the proceedings; and Right to appellate review.

This Court has not heretofore decided the precise question. In Kent v. United States (1966), we considered the requirements for a valid waiver of the “exclusive” jurisdiction of the Juvenile Court of the District of Columbia so that a juvenile could be tried in the adult criminal court of the District. . . . [W]e emphasized the necessity that “the basic requirements of due process and fairness” be satisfied in such proceedings. Haley v. Ohio (1948) involved the admissibility, in a state criminal court of general jurisdiction, of a confession by a 15-year-old boy. The Court held that the Fourteenth Amendment applied to prohibit the use of the coerced confession. JUSTICE DOUGLAS said, “Neither man nor child can be allowed to stand condemned by methods which flout constitutional requirements of due process of law.”. . . Accordingly, while these cases relate only to re-

stricted aspects of the subject, they unmistakably indicate that, whatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone. From the inception of the juvenile court system, wide differences have been tolerated—indeed insisted upon—between the procedural rights accorded to adults and those of juveniles. In practically all jurisdictions, there are rights granted to adults which are withheld from juveniles. In addition to the specific problems involved in the present case, for example, it has been held that the juvenile is not entitled to bail, to indictment by grand jury, to a public trial or to trial by jury. It is frequent practice that rules governing the arrest and interrogation of adults by the police are not observed in the case of juveniles. The right of the state, as parens patriae, to deny to the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right “not to liberty but to custody.” He can be made to attorn to his parents, to go to school, etc. If his parents default in effectively performing their custodial functions—that is, if the child is “delinquent”—the state may intervene. In doing so, it does not deprive the child of any rights, because he has none. It merely provides the “custody” to which the child is entitled. On this basis, proceedings involving juveniles were described as “civil” not “criminal” and therefore not subject to the requirements which restrict the state when it seeks to deprive a person of his liberty. . . . Juvenile Court history has . . . demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure. . . . The absence of procedural rules based upon constitutional principle has not always produced fair, efficient, and effective procedures. Departures from established principles of due process have frequently resulted not in enlightened procedure, but in arbitrariness. . . . [I]t is urged that the juvenile benefits from informal proceedings in the court. The early conception of the Juvenile Court proceeding was one in which a fatherly judge touched the heart and conscience of the erring youth by talking over his problems, by paternal advice and admonition, and in which, in extreme situations, benevolent and wise institutions of the State provided guidance and help “to save him from a downward career.” Then, as now, goodwill and compassion were admirably prevalent. But recent studies have, with surprising unanimity, entered

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sharp dissent as to the validity of this gentle conception. They suggest that the appearance as well as the actuality of fairness, impartiality and orderliness—in short, the essentials of due process—may be a more impressive and more therapeutic attitude so far as the juvenile is concerned. . . . While due process requirements will, in some instances, introduce a degree of order and regularity to Juvenile Court proceedings to determine delinquency, and in contested cases will introduce some elements of the adversary system, nothing will require that the conception of the kindly juvenile judge be replaced by its opposite, nor do we here rule upon the question whether ordinary due process requirements must be observed with respect to hearings to determine the disposition of the delinquent child. Ultimately, however, we confront the reality of that portion of the Juvenile Court process with which we deal in this case. A boy is charged with misconduct. The boy is committed to an institution where he may be restrained of liberty for years. It is of no constitutional consequence—and of limited practical meaning—that the institution to which he is committed is called an Industrial School. The fact of the matter is that, however euphemistic the title, a “receiving home” or an “industrial school” for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time. His world becomes “a building with whitewashed walls, regimented routine and institutional hours. . . . ” Instead of mother and father and sisters and brothers and friends and classmates, his world is peopled by guards, custodians, state employees, and “delinquents” confined with him for anything from waywardness to rape and homicide. In view of this, it would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase “due process.” Under our Constitution, the condition of being a boy does not justify a kangaroo court. The traditional ideas of Juvenile Court procedure, indeed, contemplated that time would be available and care would be used to establish precisely what the juvenile did and why he did it—was it a prank of adolescence or a brutal act threatening serious consequences to himself or society unless corrected? Under traditional notions, one would assume that in a case like that of Gerald Gault, where the juvenile appears to have a home, a working mother and father, and an older brother, the Juvenile Judge would have made a careful inquiry and judgment as to the 438

possibility that the boy could be disciplined and dealt with at home, despite his previous transgressions. Indeed, so far as appears in the record before us, except for some conversation with Gerald about his school work and his “wanting to go to . . . Grand Canyon with his father,” the points to which the judge directed his attention were little different from those that would be involved in determining any charge of violation of a penal statute. The essential difference between Gerald’s case and a normal criminal case is that safeguards available to adults were discarded in Gerald’s case. The summary procedure as well as the long commitment was possible because Gerald was fifteen years of age instead of over eighteen. If Gerald had been over eighteen, he would not have been subject to Juvenile Court proceedings. For the particular offense immediately involved, the maximum punishment would have been a fine of $5 to $50, or imprisonment in jail for not more than two months. Instead, he was committed to custody for a maximum of six years. If he had been over 18 and had committed an offense to which such a sentence might apply, he would have been entitled to substantial rights under the Constitution of the United States as well as under Arizona’s laws and constitution. The United States Constitution would guarantee him rights and protections with respect to arrest, search and seizure, and pretrial interrogation. It would assure him of specific notice of the charges and adequate time to decide his course of action and to prepare his defense. He would be entitled to clear advice that he could be represented by counsel, and, at least if a felony were involved, the State would be required to provide counsel if his parents were unable to afford it. If the court acted on the basis of his confession, careful procedures would be required to assure its voluntariness. If the case went to trial, confrontation and opportunity for cross-examination would be guaranteed. So wide a gulf between the State’s treatment of the adult and of the child requires a bridge sturdier than mere verbiage, and reasons more persuasive than cliche can provide. . . . We now turn to the specific issues which are presented to us in the present case. Notice of Charges We cannot agree with the court’s conclusion that adequate notice was given in this case. Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will

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be afforded, and it must “set forth the alleged misconduct with particularity.”. . . The “initial hearing” in the present case was a hearing on the merits. Notice at that time is not timely; and even if there were a conceivable purpose served by the deferral proposed by the court below, it would have to yield to the requirements that the child and his parents or guardian be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation. Due process of law requires notice of the sort we have described—that is, notice which would be deemed constitutionally adequate in a civil or criminal proceeding. . . . Right to Counsel Appellants charge that the Juvenile Court proceedings were fatally defective because the court did not advise Gerald or his parents of their right to counsel, and proceeded with the hearing, the adjudication of delinquency and the order of commitment in the absence of counsel. . . . The Supreme Court of Arizona pointed out that “[t]here is disagreement [among the various jurisdictions] as to whether the court must advise the infant that he has a right to counsel.”. . . It referred to a provision of the Juvenile Code which it characterized as requiring “that the probation officer shall look after the interests of neglected, delinquent and dependent children, including representing their interests in court. The court argued that “The parent and the probation officer may be relied upon to protect the infant’s interests.”. . . It said that juvenile courts have the discretion, but not the duty, to allow such representation. . . . We do not agree. Probation officers, in the Arizona scheme, are also arresting officers. They initiate proceedings and file petitions which they verify . . . alleging the delinquency of the child; and they testify . . . against the child. And here the probation officer was also superintendent of the Detention Home. The probation officer cannot act as counsel for the child. His role in the adjudicatory hearing, by statute and in fact, is as arresting officer and witness against the child. Nor can the judge represent the child. . . . A proceeding where the issue is whether the child will be found to be “delinquent” and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make

skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it. The child “requires the guiding hand of counsel at every step in the proceedings against him.”. . . Confrontation, Self-Incrimination, Cross-Examination Appellants urge that the writ of habeas corpus should have been granted because of the denial of the rights of confrontation and cross-examination in the Juvenile Court hearings, and because the privilege against self-incrimination was not observed. . . . Our first question, then, is whether Gerald’s admission was improperly obtained and relied on as the basis of decision, in conflict with the Federal Constitution. For this purpose, it is necessary briefly to recall the relevant facts. Mrs. Cook, the complainant, and the recipient of the alleged telephone call, was not called as a witness. Gerald’s mother asked the Juvenile Court Judge why Mrs. Cook was not present and the judge replied that “she didn’t have to be present.” So far as appears, Mrs. Cook was spoken to only once, by Officer Flagg, and this was by telephone. . . . Gerald had been questioned by the probation officer after having been taken into custody. The exact circumstances of this questioning do not appear but any admissions Gerald may have made at this time do not appear in the record. Gerald was also questioned by the Juvenile Court Judge at each of the two hearings. The judge testified in the habeas corpus proceeding that Gerald admitted making “some of the lewd statements . . . [but not] any of the more serious lewd statements.”. . . We shall assume that Gerald made admissions of the sort described by the Juvenile Court Judge. . . . Neither Gerald nor his parents were advised that he did not have to testify or make a statement, or that an incriminating statement might result in his commitment as a “delinquent.”. . . . . . Specifically, the question is whether, in such a proceeding, an admission by the juvenile may be used against him in the absence of clear and unequivocal evidence that the admission was made with knowledge that he was not obliged to speak and would not be penalized for remaining silent. In light of Miranda v. Arizona, we must also consider whether, if the privilege against self-incrimination is available, it can effectively be waived unless counsel is present or the right to counsel has been waived. . . .

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It would indeed be surprising if the privilege against self-incrimination were available to hardened criminals but not to children. The language of the Fifth Amendment . . . is unequivocal and without exception. And the scope of the privilege is comprehensive. . . . Against the application to juveniles of the right to silence, it is argued that juvenile proceedings are “civil” and not “criminal,” and therefore the privilege should not apply. It is true that the statement of the privilege in the Fifth Amendment . . . is that no person “shall be compelled in any criminal case to be a witness against himself.” However, it is also clear that the availability of the privilege does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites. . . . It would be entirely unrealistic to carve out of the Fifth Amendment all statements by juveniles on the ground that these cannot lead to “criminal” involvement. . . . [J]uvenile proceedings to determine “delinquency,” which may lead to commitment to a state institution, must be regarded as “criminal” for purposes of the privilege against self-incrimination. To hold otherwise would be to disregard substance because of the feeble enticement of the “civil” label-of-convenience which has been attached to juvenile proceedings. Indeed, in over half of the States, there is not even assurance that the juvenile will be kept in separate institutions, apart from adult “criminals.”. . . For this purpose, at least, commitment is a deprivation of liberty. It is incarceration against one’s will, whether it is called “criminal” or “civil.”. . . We conclude that the constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults. We appreciate that special problems may arise with respect to waiver of the privilege by or on behalf of children, and that there may well be some differences in technique—but not in principle—depending upon the age of the child and the presence and competence of parents. The participation of counsel will, of course, assist the police, Juvenile Courts and appellate tribunals in administering the privilege. If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair. . . . 440

. . . We now hold that, absent a valid confession, a determination of delinquency and an order of commitment to a state institution cannot be sustained in the absence of sworn testimony subjected to the opportunity for cross-examination in accordance with our law and constitutional requirements. . . . Judgment reversed and cause remanded with directions. [The concurring opinions of JUSTICES BLACK and WHITE are not reprinted here. The opinion of JUSTICE HARLAN, concurring in part and dissenting in part, is not reprinted here.] JUSTICE STEWART, dissenting: The Court today uses an obscure Arizona case as a vehicle to impose upon thousands of juvenile courts throughout the Nation restrictions that the Constitution made applicable to adversary criminal trials. I believe the Court’s decision is wholly unsound as a matter of constitutional law, and sadly unwise as a matter of judicial policy. Juvenile proceedings are not criminal trials. They are not civil trials. They are simply not adversary proceedings. Whether treating with a delinquent child, a neglected child, a defective child, or a dependent child, a juvenile proceeding’s whole purpose and mission is the very opposite of the mission and purpose of a prosecution in a criminal court. The object of the one is correction of a condition. The object of the other is conviction and punishment for a criminal act. . . . The inflexible restrictions that the Constitution so wisely made applicable to adversary criminal trials have no inevitable place in the proceedings of those public social agencies known as juvenile or family courts. And to impose the Court’s long catalog of requirements upon juvenile proceedings in every area of the country is to invite a long step backwards into the nineteenth century. In that era there were no juvenile proceedings, and a child was tried in a conventional criminal court with all the trappings of a conventional criminal trial. So it was that a 12-year-old boy named James Guild was tried in New Jersey for killing Catharine Beakes. A jury found him guilty of murder, and he was sentenced to death by hanging. The sentence was executed. It was all very constitutional. A State in all its dealings must, of course, accord every person due process of law. And due process may require that some of the same restrictions which

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the Constitution has placed upon criminal trials must be imposed upon juvenile proceedings. For example, I suppose that all would agree that a brutally coerced confession could not constitutionally be considered in a juvenile court hearing. But it surely does not follow that the testimonial privilege against self-incrimination is applicable in all juvenile proceedings. Similarly, due process clearly requires timely notice of the purpose and scope of any proceedings affecting the relationship of parent and child. But it certainly does not follow that notice of a juvenile hearing must be framed with all the technical niceties of a criminal indictment. . . .

In any event, there is no reason to deal with issues such as these in the present case. The Supreme Court of Arizona found that the parents of Gerald Gault “knew of their right to counsel, to subpoena and cross examine witnesses, of the right to confront the witnesses against Gerald and the possible consequences of a finding of delinquency.” It further found that “Mrs. Gault knew the exact nature of the charge against Gerald from the day he was taken to the detetion home.” And . . . no issue of compulsory self-incrimination is presented by this case. I would dismiss the appeal.

SELECTED REFERENCES Alfieri, Anthony V. “Mitigation, Mercy, and Delay: The Moral Politics of Death Penalty Absolutists,” 31 Harvard Civil Rights/Civil Liberties Law Review 325 (1996). Aronson, Jay D., and Cole, Simon A. “Science and the Death Penalty: DNA, Innocence and the Debate over Capital Punishment in the United States,” Law and Social Inquiry, Vol. 34, No. 3 (2009), 603–633. Baldus, David C., Woodworth, George, and Grosso, Catherine M. “Race and Proportionality since McCleskey v. Kemp (1987): Different Actors with Mixed Strategies of Denial and Avoidance,” Columbia Human Rights Law Review, Vol. 39 (2008), 143–177. Baumgartner, Frank R., De Boef, Suzanna L., and Boydstun, Amber E. The Decline of the Death Penalty and the Discovery of Innocence. New York: Cambridge University Press, 2008. Bohm, Robert M. The Death Penalty in America. Cincinnati, OH: Anderson Publishing Company, 1991. Bowman, III, Frank O., “Mr. Madison Meets a Time Machine: The Political Science of “Sentencing Reform,” 58 Stanford Law Review 235 (2005). Brennan, William J. “Constitutional Adjudication and the Death Penalty: A View from the Court,” 100 Harvard Law Review 313 (December 1986). Carter, Stephen. “When the Victim Appears to Be Black,” 97 Yale Law Journal 420 (1988). Chen, Tina. “The Sixth Amendment Right to a Jury Trial: Why is it a Fundamental Right for Adults and Not Juveniles?” Journal of Juvenile Law, Vol. 28, No. 1 (2007), 1. Clark, Homer H. “Children and the Constitution,” 1992 University of Illinois Law Review 1047 (1991).

Cohen, Meredith, “No Child Left Behind Bars: The Need to Combat Cruel and Unusual Punishment of State Statutory Rape Laws, XVI Journal of Law and Policy 717 (2008). Garland, David. “Death, Denial, Discourse: On the Forms and Functions of American Capital Punishment,” in Downes, David, Rock, Paul, Chinkin, Christine, and Gearty, Conor, eds., Crime, Social Control and Human Rights. Portland, OR: Willan Publishing, 2007. Hanley, John. “The Death Penalty,” in Persily, Nathaniel, Citrin, Jack and Egan, Patrick J., eds., Public Opinion and Constitutional Controversy. New York: Oxford University Press, 2008. Higginbotham, Patrick E. “Juries and the Death Penalty,” 41 Case-Western Law Review 1 (Winter 1992). Hinton, Melissa C. “Has Batson Been Stretched Too Far?” 57 Missouri Law Review 569 (Spring 1992). Hunt, Charles B. “Constitutional Law—Fourteenth Amendment—Peremptory Challenges in Violation of the Equal Protection Clause,” Tennessee Law Review, Vol. 74 (2006), 147–165. Jones, Ken. “Ewing v. California: Affirmation of the Three Strikes Law or Cruel and Unusual Punishment?” Southern University Law Review, Vol. 33 (2005), 213. Kirk, Bradley R. “Milking the New Sacred Cow: The Supreme Court Limits the Peremptory Challenge on Racial Grounds. . . ,” 19 Pepperdine Law Review 691 (January 1992). Liebman, James B. “More Than ‘Slightly Retro’: The Rehnquist Court’s Rout of Habeas Corpus Jurisdiction,” 18 New York University Review of Law and Social Change 537 (1990/91).

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Montross, William R., Jr., and Patrick Mulvaney, “Who Will Report on the Failures of Criminal Justice System?” 61 Stanford Law Review 1429 (2009). Ogletree, Charles J. and Sarat, Austin. From Lynch Mobs to the Killing State: Race and the Death Penalty in America. New York University Press, 2006. Paternoster, Raymond, Brame, Robert, and Bacon, Sarah. The Death Penalty: America’s Experience with Capital Punishment. New York: Oxford University Press, 2007. Radelet, M. L. “Choosing Those Who Will Die: Race and the Death Penalty,” 43 Florida Law Review 1 (January 1991). Radelet, Michael L. and Traci L. Lacock, “Do Executions Lower Homicide Rates: The Views From Leading Criminologists, 99 Journal of Criminal Law and Criminology 489 (2009). Rowe, Julie. “Mourning the Untimely Death of the Juvenile Death Penalty: An Examination of Roper v. Simmons and the Future of the Juvenile Justice System,” California Western Law Review, Vol. 42 (2006), 287. Schoeman, Paul. “Easing the Fear of Too Much Justice: A Compromise Proposal to Revise the Racial Justice Act,” 30 Harvard Civil Rights/Civil Liberties Law Review 543 (Summer 1995).

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Sigler, Mary, “Contradiction, Coherence, and Guided Discretion in the Supreme Court’s Capital Sentencing Jurisprudence, American Criminology Law Review 1151. Sommers, Samuel R. “Race and the Decision Making of Juries,” Legal and Criminological Psychology, Vol. 12, No. 2 (2007), 171–187. Sommers, Samuel R. and Norton, Michael I. “Race-Based Judgments, Race-Neutral Justifications: Experimental Examination of Peremptory Use and the Batson Challenge Procedure,” Law and Human Behavior, Vol. 31, No. 3 (2007), 261–273. Soss, Joe, Langbein, Laura and Metelko, Alan R. “Why Do White Americans Support the Death Penalty?” Journal of Politics, Vol. 65, No. 2 (2003), 397–421. Suleiman, Daniel, “Note, The Capital Punishment Exception: A Case for Constitutionalizing the Substantive Criminal Law, 104 Columbia Law Review 426 (2004). Walsh, Jennifer E. Three Strikes Laws. Westport, CT: Greenwood Press, 2007. Zimring, Franklin E. “Inheriting the Wind: The Supreme Court and Capital Punishment in the 1990s,” 20 Florida State University Law Review 7 (1992).

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PART V PROTECTING AGAINST BIAS: SEGREGATION AND DISCRIMINATION

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s this nation strives to achieve the ideals of democracy, the challenges of discrimination and segregation exert powerful influences in the body politics and the everyday lives of many Americans. The core values of democracy oppose the creation and perpetuation of differences that are rooted in racism and racial exclusion. Part V (Chapters 11–15) focuses on the pushes and pulls of political disagreements and policy choices that stem from racism. Chapter 11 concentrates on the import of constitutional contradictions and the political expediency and legal–social stratifications that gave rise to a race-based system of segregation and racial differences. More than half a century before the watershed decision of Brown v. Board of Education (347 U.S. 483, 1954), Plessy v. Ferguson (163 U.S. 537, 1896) set forth a separate-but-equal doctrine that encapsulated the legacy of the institution of slavery. Plessy constitutionalized the framework that structured racial policy and interactions between blacks and whites in both the North and South. In other words, it granted constitutional protection to the system of segregation that controlled the lives of Americans in public and private matters, including education, marriage, employment, public accommodation, housing, voting, place of birth, and place of burial. The Supreme Court found it increasingly difficult to craft constitutional mandates within the strictures of the separate-but-equal formula. The Plessy ruling restricted the rights and foreclosed the

opportunities of blacks and many other nonwhite groups and individuals. In Brown, the Supreme Court concluded that the invidious separate-butequal doctrine violated the Equal Protection Clause of the Fourteenth Amendment. Writing for a unanimous Court, Chief Justice Earl Warren adjudged that state-supported segregated education controverted the Constitution. Chapter 12 examines the journey of school desegregation from Brown to Parents Involved in Community Schools (PICS) (551 U.S. ___, 2007). The implementation of Brown illuminates the symbolic and substantive powers of the Constitution, the salience of cultural values and attitudes, the significance of institutions and structures, the limitations of law and politics, and the viability of resistance to a national policy. There have been many shifts in the debate over the desegregation mandate. The shifts related to the authority of the federal government (especially federal courts) versus local autonomy, affirmative duty versus good faith standard, forced busing versus neighborhood schools, social engineering versus judicial competence, quality education versus desegregation, race-conscious programs versus colorblindness, and voluntary desegregation programs versus strict scrutiny. The road to desegregation was layered with stubborn political and social conflicts that consumes precious time, scarce resources, and the political will of a nation. In the twenty-first century, as federal courts increasingly relinquish supervision of 443

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school districts, resegregation is occurring at an alarming pace. Chapter 13 analyzes transformations in judicial standards of review and conflicts over policies and programs that combat biases and exclusion in the workplace and educational institutions. There are mixed reviews on the consequences of the struggle to eliminate the influence of race and color on opportunities for African Americans. The chapter also incorporates presidential and congressional contributions to the affirmative action debate and policy formulation over a period of 30 years. The Reagan, George H. W. Bush, and George W. Bush administrations truncated the general push for broad civil rights policy and inclusive programs in employment and admission to institution of higher education. In response to litigation of Gratz v. Bollinger (539 U.S. 244, 2003) and Grutter v. Bollinger (539 U.S. 306, 2003), President George W. Bush termed the affirmative action programs in the University of Michigan Law School and the undergraduate College of Literature, Science and Arts “divisive” and “unfair.” During his 2000 presidential campaign, he offered “affirmative access” as a substitute for affirmative action. As governor of Texas, Bush championed affirmative access, a program that permitted the top 10 percent of graduating students from each Texas high school to be admitted to the state university of their choice. Chapter 13 also discusses the controversy over segregation in housing. The chapter traces schemes that were used to maintain racial separation in housing, including restrictive covenants and referral requirements. We examine how civil rights legislation from the Reconstruction period and the Civil Rights Movement affect skin color in housing. Chapter 14 concentrates on the various dimensions of the conflict over the voting rights and representation of blacks in the American democracy. Since the early 1990s, te Supreme Court has become increasingly intolerant of race as a predominate motivation for drawing voting districts. The justices have used the strict scrutiny standard to determine the permissibility of racially based voting districts. In Shaw v. Reno (509 U.S. 630, 1993), speaking for a sharply divided Court, Justice O’Connor provides the following justifications for subjecting race-based districting to close judicial scrutiny: “Racial classifications of any sort pose the risk of lasting harm to our society. They reinforce the belief, 444

held by too many for too much of our history, that individuals should be judged by the color of their skin. Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters—a goal that the Fourteenth and Fifteenth Amendments embody, and to which the nation continues to aspire.”

The Supreme Court has adhered to the suggestions of various studies on the Voting Rights Act of 1965 which contend that the most effective way to maximize minority voting strength is to create more coalitional districts instead of minority–majority districts. In Georgia v. Ashcroft (539 U.S. 461, 2003), for example, Justice O’Connor indicates that the Voting Rights Act of 1965 grants states the discretion to choose the best strategy to maximize the electoral success of a minority group. O’Connor argues: “A state may choose to create a certain number of ‘safe’ districts, in which it is highly likely that minority voters will be able to elect the candidate of their choice. Alternatively, a state may choose to create a greater number of districts in which it is likely—perhaps not quite as likely as under the benchmark plan—that minority voters will be able to elect candidates of their choice.”

Chapter 15 examines issues of discrimination, cultural rights, and the sovereignty of Native Americans. Seven periods describe the historical evolution of colonial and federal Indian policy: 1. The Tribal Independence Era (1499–1787) 2. The Agreement between Equals Era (1787–1828) 3. The Relocation of Native Americans Era (1828–1887) 4. The Allotment and Assimilation Era (1887–1934) 5. The Indian Reorganization Era (1934–1954) 6. The Termination Era (1954–1968) 7. The Self-Determination Era (1968–present)

These historical and contemporary periods illustrate the shifts and fluctuations in the status of Native Americans and the reaction of America to them. Chapter 15 also explores the conflicts over the property and individual rights of Native Americans and the division of power and jurisdiction among the tribes, the federal government, and state

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governments in Indian country. Unlike other groups that experience racism and racial discrimination in America, Native American nations that are recognized by the federal government retain limited sovereignty. Under Chief Justice John Marshall, the Supreme Court established the principle that Indian nations possess the right of occupancy, but, because

of the doctrine of conquest, the federal government may restrict the title, and the Native peoples’ rights and claims to the land are subordinate to that of the federal government (see, for example, Johnson v. McIntosh 21 U. S. 548, 1823). In addition, Chapter 15 focuses on the fishing and water rights and religious freedom of Native Americans.

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CHAPTER 11

THE DEVELOPMENT AND LEGAL DEMISE OF RACIAL SEGREGATION

FEATURED CASES Plessy v. Ferguson; Brown v. Board of Education (I); Brown v. Board of Education (II)

SLAVERY IN THE SHADOW OF THE CONSTITUTION The Constitution of the United States of America is the symbol of democracy. It inspires people around the globe to yearn to live under the values of limited government: equality, freedom, and liberty. At the same time, it illuminates the paradox of American history. On the one hand, Americans dedicated themselves to producing the first written constitution in modern history. This document implements the principles that were expounded in the Declaration of Independence, in which Jefferson argues: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.” On the other hand, slavery existed in the shadow of the Constitution. The new freedom-loving nation was built largely with the labor of slaves. Slaveholders were well represented at the Constitutional Convention of 1787. In fact, their voices and interests are clearly evident in many of the provisions of the Constitution. The provisions include the Threefifth Clause of Article I, Section 2; the Importation of Slaves Clause of Article I, Section 9; the Fugitive

Slave Clause of Article IV, Section 2; and the Threefifth Clause for counting slaves in the Electoral College. These provisions gave tremendous support to the institution of slavery. The Supreme Court rejects the contention that segregation of blacks constituted a badge or incident slavery. In the Civil Rights Cases of 1883 (109 U.S. 3), the majority opinion of Justice Bradley voided the public accommodation provision of the Civil Rights Act of 1875. Justice Bradley interpreted the segregation requirements of the black codes as a means to prevent slaves from escaping: “. . . from the control of their masters. This was . . . no part of the servitude itself. A law of that kind could not have any such object now, however justly it might be deemed an invasion of the party’s legal rights as a citizen, and amendable to the prohibition of the fourteenth amendment . . . Such an act of refusal has nothing to do with slavery or involuntary servitude . . . It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theater, or deal with in other matters of intercourse or business.”

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The dissenting opinion of Justice Harlan took issue with the majority. Justice Harlan concluded that segregation in public accommodation is “a badge of servitude, the imposition of which Congress may prevent under its power, through appropriate legislation to enforce the thirteenth amendment.” Harlan conceded that the Thirteenth Amendment has universal application. He argued, however, that slavery was the “moving or principal cause of the adoption of that amendment . . ., their [former slaves] freedom necessarily involved immunity from, and protection against, all discrimination against them, because of their race, in respect of such civil rights as belong to freedom of other races.” Justice Harlan also contended that the majority opinion proceeded upon grounds that were “entirely too narrow and artificial.” Harlan noted that prior to the adoption of the Thirteenth and Fourteenth Amendments, the relation between “the national government and the institution of slavery, also indicated by the provisions of the Constitution, the legislation of Congress, and the decisions of this court” supported the master’s rights. Justice Harlan’s contention is corroborated in several of the Supreme Court slavery holdings. In Prigg v. The Commonwealth of Pennsylvania (41 U.S. 539, 1842), for example, the Supreme Court examined the construction of the Fugitive Clause of Article IV. Prigg took a black woman, Margaret Morgan, with force and violence from Pennsylvania to Maryland. The plaintiff had the design and intention of selling and disposing of her, thus keeping her a slave for life. Such an action was contrary to a statute of Pennsylvania that had been enacted in 1826. A Maryland court decided in favor of Prigg, stating that Margaret Morgan was a slave for life and noting that she had escaped and fled from Maryland to Pennsylvania in 1832. Justice Story found the Pennsylvania statute to be unconstitutional. Story suggested “that the object of the Fugitive Clause of the Constitution was to secure to the citizens of the slaveholding states the complete right and title of ownership in their slaves, as property, in every state in the Union with which they might escape from the state where they were held in servitude.” Justice Story intimated that the Fugitive Slave Clause’s “true design was to guard against the doctrines and principles prevalent in the non-slaveholding states, by preventing them from intermeddling with, or obstructing, or abolishing the rights of the owners of slaves.” Justice Story argued that the rights of the

owners of slaves exceeded state law or regulation. He stated that “the slave is not to be discharged from service or labour, in consequence of any state law or regulation.” He insisted that the constitutional guarantee of the Fugitive Slave Clause clothed the national government with the appropriate “authority and functions” to enforce the clause. For him, Congress “may call that power into activity for the very purpose of giving effect to that right; and if so, then it may prescribe the mode and extent in which it shall be applied, and how, and under what circumstances the proceedings shall afford a complete protection and guaranty to the right.” In the Amistad Case a year earlier (40 U.S. 518, 1841), the disabilities of slavery for persons with black skin were apparent. In this case (the basis for the 1997 movie Amistad), a group of Africans who had been kidnapped from Africa and carried to Cuba rebelled against their Spanish captors, who were transporting them from one point in Cuba to another on the Spanish vessel L’Amistad. The rebellious Africans killed one of their Spanish guards. The Africans were apprehended by the U.S. Navy and taken ashore in Connecticut. The two surviving Spanish captors alleged in court that the Africans were slaves and their property and asked for them to be returned to themselves or the Spanish Crown. The United States argued that the Africans should be returned to the Spanish Crown unless they had been brought to America in violation of its laws, in which case they should be returned to the coast of Africa. The Africans denied that they were slaves. They claimed that they were unlawfully kidnapped, transported to Cuba, and then sold to the Spaniards who contested their freedom. Speaking for the Court, Justice Story reviewed the contention of both the two Spaniards and the United States. Story concluded that the Africans neither were captured slaves nor came to the United States properly under the laws of its government or the laws of Spain. Rather, the Africans were “free.”

THE TROUBLED LEGACY OF SLAVERY The institution of slavery has bequeathed a troubled legacy to America. The uneven and tenuous successes of Reconstruction, the era that followed the Civil War, indicate that the consequences of the institution reached beyond the physical and geographical locations of slavery. The political forces and environment that produced the Emancipation Proclamation,

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copious civil rights acts, and the ratification of three constitutional amendments related to slavery suggest that the legacy of slavery has been infused in the national character. The ideals of freedom encountered the reconstituted powers that opposed the granting of political, legal, and social rights to blacks. These principles clashed in the infamous Dred Scott v. Sandford (60 U.S. 393, 1857) case. The Supreme Court championed the slavery and property clauses of the Constitution over the interests and values of freedom. At issue was whether a black person who had been or was still a slave could become a citizen of the United States, with all the rights, privileges, and immunities guaranteed by the Constitution to citizens. In a seven-to-two decision, the Supreme Court held that blacks could not become members of the political community of the United States, and thus possessed no rights that were secured by the Constitution. Delivering the opinion of the majority, Chief Justice Taney concluded that the U.S. Constitution had not intended to confer citizenship upon blacks. Because blacks were not citizens, Taney argued that they could not claim the rights and privileges which the Constitution provided to citizens of the United States. Taney seemed to be greatly influenced by the assumed inferiority of blacks. This assumed inferiority prompted Taney to contend that blacks were unfit to associate with the white race, either in social or political relations, and “. . . that they had no rights which the white man was bound to respect; and that [blacks] might justly and lawfully be reduced to slavery for [their] benefit.” In spite of Chief Justice Taney’s efforts, the Dred Scott decision failed to settle the slavery issue. Substantial opposition to the decision emerged. Taney and the Court sanctioned the institution of slavery and clothed slavery in legal regalia that served both as a moral and legal basis for discrimination against blacks for decades. The Supreme Court incurred a shattering defeat and loss of prestige on account of the Dred Scott decision. Both the Civil War and the ratification of the Fourteenth Amendment pointed to the nation’s repudiation of the Court’s ruling in that case. Moreover, with the voiding of the Missouri Compromise of 1820, which partitioned the nation into free and slave territories, the Supreme Court sharpened the abolition/slave conflict between the northern and southern states. Dred Scott excited opposition to the institution of slavery. The abolitionist movement was emboldened, and at the same time the champions of slavery ratcheted up their advocacy. 448

The Civil War shaped the conflict among the ideals of democracy, the institution of slavery, and the preservation of the Union. President Lincoln’s Emancipation Proclamation of 1863 brought this conflict to the fore. It evolved from the President’s desire to win the Civil War and preserve the United States. The Emancipation Proclamation was in effect a military move, freeing slaves only in jurisdictions that were under the control of the Confederacy. The Proclamation excluded Tennessee and jurisdictions that were controlled by Union troops. The Civil War was a devastating defeat for the political and cultural forces that supported slavery. These forces did not go quietly into the good night. They resisted the legislation passed by the Radical Republicans that dominated Congress. Some of this legislation dissolved the old government in the southern states and partitioned the Confederacy into five military districts. The policies stemmed from the refusal of Border States and states of the confederacy to ratify the Fourteenth Amendment. The new government of the South enfranchised blacks at the same time as it disenfranchised large numbers of white voters who had participated in the war against the Union. These governments ratified the Fourteenth Amendment, which granted blacks citizenship and contained the Equal Protection and Due Process clauses. Prior to the Fourteenth Amendment, the states had ratified the Thirteenth Amendment, which prohibited slavery. In addition, although several of the Reconstruction Acts (e.g., the Civil Rights Act of 1866, the Civil Rights Act of 1870) gave blacks the right to vote, the Fifteenth Amendment placed that right on a constitutional footing. Congress enacted Civil Rights Acts in February 1871 and April 1871, but perhaps the most compelling and comprehensive piece of legislation that was enacted during Reconstruction was the Civil Rights Act of 1875. Unlike earlier legislation, the Civil Rights Act of 1875 involved social equality as well as equality in political rights. The Act provided that all persons were to have full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement. It also stated that the district courts and circuit courts of the United States were to have jurisdiction, exclusively of the several states, of all crimes and offenses that violated the act. The hopes and aspirations of blacks which were engendered by the Civil Rights Acts of Reconstruction

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were short-lived. The Compromise of 1876 effectively terminated the Reconstruction Era. The Compromise profoundly altered the national debate on the rights of blacks. Both the Democratic candidate, Samuel J. Tilden, and the Republican candidate, Rutherford B. Hayes, claimed victory in the 1876 presidential election. The House of Representatives reached an impasse. To break the impasse, the Republican Party promised to withdraw federal troops from the South and to provide federal subsidies to assist the South in internal development and improvement. When Hayes became president, he kept his promise. Federal troops were indeed withdrawn from the South. The withdrawal of the troops, as expected, allowed the states to restore white “home-rule,” solidified the Democratic South, and placed blacks at the mercy of their former oppressors, the former slave masters. The resurgence of white rule in the South was often brutal, repressive, and a flashback to the days of slavery. Supporters of home-rule intimidated, hanged, maimed, and threatened blacks at will without interference from state or federal officials. The repression swept across the South. Blacks were denied the right to vote, removed from both state and federal offices, and denied the right to protest or speak against their unconstitutional treatment. The restoration of home-rule also meant that the rights and inclusion of blacks was no longer a national issue. Race relations became a sectional and local issue. United States v. Cruikshank (92 U.S. 542, 1876) was the first major case to come before the Court concerning the right of blacks to vote. At issue in this case was whether the Enforcement Act of May 31, 1870, violated the dichotomous power relation between the states and the federal government. This act prohibited persons from conspiring to deny other citizens of their constitutional rights. Chief Justice Waite delivered the opinion of the Court voiding the Act. Although the federal government may be supreme, said the Chief Justice, it cannot enact legislation securing to its citizens rights and immunities that are not stated or that do not fall by implications under its jurisdiction. According to Waite, the Enforcement Act of May 31, 1870, was not appropriate legislation to enforce the provisions of the Fourteenth Amendment because the Act prohibited private citizens from acting in ways to abridge certain rights. Chief Justice Waite declared that the Fourteenth Amendment did not permit Congress to enact laws to protect one private citizen from another.

The duty of the United States under the Fourteenth Amendment was to make sure that the states did not deny the citizens within their jurisdictions any of their rights. The Court in U.S. v. Reese (92 U.S. 214, 1876) voided other sections of the Enforcement Act of May 31, 1870, which attempted to safeguard the rights of blacks to vote under the Fifteenth Amendment. Once again, the Court narrowly constructed the meaning of “state action.” These and other cases demonstrate how the Supreme Court voided Reconstruction legislation that was designed to protect blacks in their suffrage. Indeed, the Court’s narrow construction of the “state action” concept permitted private citizens as well as state officials to deny blacks the right to vote because of race, color, or previous condition of servitude. In the Civil Rights Cases of 1883 (109 U.S. 3), the Supreme Court voided the Civil Rights Act of 1875. Writing for the majority, Justice Bradley insisted that the intent of the Fourteenth Amendment was to protect citizens from state action, and not to prevent “individual invasion of individual rights.” Because the legislation did not refer to any violation of the Fourteenth Amendment on the part of the state, Justice Bradley concluded that the contested sections were not “appropriate legislation” to enforce the Fourteenth Amendment. The Civil Rights Cases of 1883 established the state-action doctrine that limited the protection of the Fourteenth Amendment to actions of the state that violate the rights of citizens. Moreover, the Civil Rights Cases of 1883 pulled the plug on the “First Reconstruction,” which followed on the heels of the Civil War (1865–1883). The “Second Reconstruction” refers to the Civil Rights Movement of the 1950s and 1960s. The Civil Rights Cases effectively limited the authority of the federal government to protect the rights and interests of the resource-poor blacks.

CONSTITUTIONALIZATION OF RACIAL SEGREGATION FEATURED CASE

Plessy v. Ferguson The conclusion of Reconstruction is marked by several southern states enacting legislation and instituting practices that required the complete segregation of black and whites. The segregation was designed to express in thousands of ways white society’s judgment that blacks were inferior to whites. No aspect

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of life in the South and eventually in the North was exempted. In 1896, the Supreme Court was petitioned to decide the constitutionality of segregation. A Louisiana statute provided separate accommodations on conveyances for blacks and white citizens. The plaintiffs argued that the separation of the races violated the Thirteenth and Fourteenth Amendments. The Plessy Court announced the separate-but-equal doctrine, which legitimated a new era in race relations and status of blacks before the law. Speaking for a sevento-two majority, Justice Brown held that the statute did no violence to either the Thirteenth or Fourteenth Amendments. The Louisiana statute fell within the police power of the state. Brown held that the separation of the races on public conveyances within a state did not violate the interstate commerce clause, did not abridge the privileges and immunities clause, and did not deny blacks equal protection under the law. He also adjured that the statute was reasonable, meaning that the Louisiana legislature acted with “reference to established usages, customs and traditions of the people, and with a view to promotion of their comfort, and preservation of the public peace and good order.” Justice Brown rejected arguments that the separation of the races would constitute “a badge of inferiority” or have a detrimental effect on the inclusion of blacks in America: “If this be so, it is not by reason of anything found in the Act, but solely because the colored race chooses to put that construction upon it.” Similarly, Justice Brown disallowed the power of law to retard or promote social and political change and to influence perceptions among the citizens: “Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal one cannot be inferior to the other socially, the Constitution . . . cannot put them upon the same plane.”

In dissent, Justice Harlan decried the conclusion reached by the majority. Harlan argued for a broader interpretation and reading of the Thirteenth and Fourteenth Amendments and the entire Constitution in the protection of the rights of blacks and whites. “[S]uch legislation as that here in question,” insisted Justice Harlan, “is inconsistent not only with that equality of rights which pertains to citizenship, national and states, but with the personal liberty 450

enjoyed by every one within the United States.” Harlan understood the segregation of blacks from whites as a residual effect of slavery. He said that the “Thirteenth Amendment not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude.” Harlan also contended that the Thirteenth and Fourteenth Amendments “if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship.” According to Harlan, the purpose of the segregation law was “not so much to exclude white persons from railroad cars occupied by blacks, as to exclude [blacks] people from coaches occupied by or assigned to white persons,” and he suggested that the Louisiana statute “interferes with the personal freedom of citizens.” Justice Harlan questioned the wisdom of the decision and prophesied that it would harm American society. He also differed from the majority on the law’s potential effect on social change. Harlan asked: “What can more certainly arouse race hate, perpetuate a feeling of distrust between these races, than state enactments, which, in fact, proceed on the ground that [black] citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? . . . If laws of like character should be enacted in the several states of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom; . . . and to place in a condition of legal inferiority a large body of American citizens. . . .”

The prophetic character of Justice Harlan’s dissent became evident immediately. The separatebut-equal doctrine controlled the relationship and participation of blacks and whites in public accommodation and housing, voting, employment, and education. Harlan’s fears were realized when other states besides Louisiana did enact similar segregation laws. The failure of government officials at both the federal and state levels to implement the doctrine fairly may have been more destructive than the separate-but-equal doctrine itself. The separate component of the doctrine was strictly and severely enforced, but officials rarely adhered to the equal component of the doctrine.

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PLESSY V. FERGUSON 163 U.S. 537; 41 L. Ed. 256; 16 S. Ct. 1138 (1896) JUSTICE BROWN delivered the opinion of the Court, in which CHIEF JUSTICE FULLER and JUSTICES FIELD, GRAY, SHIRAS, WHITE, and PECKHAM joined. JUSTICE HARLAN filed a dissenting opinion. JUSTICE BREWER took no part in the consideration or decision of the case. JUSTICE BROWN delivered the opinion of the Court. This case turns upon the constitutionality of an act of the general assembly of the State of Louisiana, passed in 1890, providing for separate railway carriages for the white and colored races. . . . The first section of the statute enacts “that all railway companies carrying passengers in their coaches in this state shall provide equal but separate accommodations for the white and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: Provided, that this section shall be construed to apply to street railroads. No person or persons shall be permitted to occupy any coaches other than the ones assigned to them, on account of the race they belong to.” By the second section it was enacted “that the officers of such passenger trains shall have power and are hereby required to assign each passenger to the coach or compartment used for the race to which such passenger belongs: any passenger insisting on going into a coach or compartment to which by race he does not belong, shall be liable to a fine of $25 or in lieu thereof to imprisonment for a period of not more than twenty days in the parish prison.” ... The information filed in the criminal district court charged in substance that Plessy, being a passenger between two stations within the State of Louisiana, was assigned by officers of the company to the coach used for the race to which he belonged, but he insisted upon going into a coach used by the race to which he did not belong. Neither in the

information nor plea was his particular race or color averred. The petition for the writ of prohibition averred that petitioner was seven-eighths Caucasian and one-eighth African blood; that the mixture of colored blood was not discernible in him, and that he was entitled to every right, privilege, and immunity secured to citizens of the United States of the white race; and that, upon such theory, he took possession of a vacant seat in a coach where passengers of the white race were accommodated, and was ordered by the conductor to vacate said coach and take a seat in another assigned to persons of the colored race, and having refused to comply with such demand he was forcibly ejected with the aid of a police officer, and imprisoned in the parish jail to answer a charge of having violated the above act. The constitutionality of this act is attacked upon the ground that it conflicts both with the Thirteenth Amendment of the Constitution, abolishing slavery, and the Fourteenth Amendment, which prohibits certain restrictive legislation on the part of the States. 1. That it does not conflict with the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as a punishment for crime, is too clear for argument. ... A statute which implies merely a legal distinction between the white and colored races—a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color—has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude. Indeed, we do not understand that the Thirteenth Amendment is strenuously relied upon by the plaintiff in error in this connection. 2. By the Fourteenth Amendment, all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are made citizens of the United States and of the State wherein they reside; and the States are forbidden from making or enforcing any

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law which shall abridge the privileges or immunities of citizens of the United States, or shall deprive any person of life, liberty, or property without due process of law, or deny to any person within their jurisdiction the equal protection of the laws. ... The object of the Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting and even requiring their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which have been held to be a valid exercise of the legislative power even by courts of States where the political rights of the colored race have been longest and most earnestly enforced. One of the earliest of these cases is that of Roberts v. Boston, 5 Cush. 198, in which the supreme judicial court of Massachusetts held that the general school committee of Boston had power to make provision for the instruction of colored children in separate schools established exclusively for them, and to prohibit their attendance upon the other schools. . . . It was held that the powers of the committee extended to the “establishment of separate schools for children of different ages, sexes, and colors.”. . . Similar laws have been enacted by Congress under its general power of legislation over the District of Columbia . . . as well as by the legislatures of many of the States, and have been generally, if not uniformly, sustained by the courts. . . . Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contract, and yet have been universally recognized as within the police power of the State, State v. Gibson, 36 Ind. 389. The distinction between interfering with the political equality of the negro and those requiring the separation of the two races in schools, theaters, and railway carriages, has been frequently drawn by this 452

court. Thus in Strauder v. West Virginia, 100 U.S. 303, it was held that a law of West Virginia limiting to white male persons, twenty-one years of age and citizens of the State, the right to sit upon juries, was a discrimination which implied a legal inferiority in civil society, which lessened the security of the right of the colored race, and was a step towards reducing them to a condition of servility. . . . Much nearer, and, indeed almost directly in point, is the case of the Louisville, N.O. & T.R. Co. v. Mississippi, 133 U.S. 587, wherein the railway company was indicted for a violation of a statute of Mississippi, enacting that all railroads carrying passengers should provide equal, but separate, accommodations for the white and colored races, by providing two or more passenger cars for each passenger train, or by dividing the passenger cars by a partition, so as to secure separate accommodations. The case was presented in a different aspect from the one under consideration, inasmuch as it was an indictment against the railway company for failing to provide the separate accommodations, but the question considered was the constitutionality of the law. In that case, the supreme court of Mississippi had held that the statute applied solely to commerce within the State, and, that being the construction of the state statute by its highest court, was accepted as conclusive. “If it be a matter,” said the court, “respecting commerce wholly within a state, and not interfering with commerce between the states, then, obviously, there is no violation of the commerce clause of the Federal Constitution. . . . No question arises under this section as to the power of the state to separate in different compartments interstate passengers, or to affect in any manner, the privileges and rights of such passengers. All that we can consider is, whether the state has the power to require that railroad trains within her limits shall have separate accommodations for the two races; that affecting only commerce within the states is no invasion of the powers given to Congress by the commerce clause.” ... [I]t is . . . suggested by the learned counsel for the plaintiff in error that the same argument that will justify the state legislature in requiring railways to provide separate accommodations for the two races will also authorize them to require separate cars to be provided for people whose hair is of a certain color, or who are aliens, or who belong to certain nationalities, or to enact laws requiring colored people

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to walk upon one side of the street, and white people upon the other, or requiring white men’s houses to be painted white, and colored men’s black, or their vehicles or business signs to be of different colors, upon the theory that one side of the street is as good as the other, or that a house or vehicle of one color is as good as one of another color. The reply to all this is that every exercise of the police power must be reasonable, and extend only to such laws as are enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class. . . . So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and with respect to this there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable or more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children in the District of Columbia, the constitutionality of which does not seem to have been questioned, or the corresponding acts of state legislatures. We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it. The argument necessarily assumes that if, as has been more than once the case, and is not unlikely to be so again, the colored race would become the dominant power in the state legislature, and should enact a law in precisely similar terms, it would thereby relegate the white race to an inferior position. We imagine that the white race, at least, would not acquiesce in this assumption. The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet on terms of social equality, it must be the result of natural affinities, a mutual appreciation of each

other’s merits and a voluntary consent of individuals. . . . Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane. It is true that the question of the proportion of colored blood necessary to constitute a colored person, as distinguished from a white person, is one upon which there is a difference of opinion in the different States, some holding that any visible admixture of black stamps the person as belonging to the colored race (State v. Chavers, 5 Jones, L. 11); others that it depends upon the predominance of blood (Gray v. State, 4 Ohio 354; Monroe v. Collins, 17 Ohio St. 665); and still others that the predominance of white blood must only be in the proportion of three fourths (People v. Dean, 14 Mich. 406; Jones v. Com. 80 Va. 544). But these are questions to be determined under the laws of each State and are not properly put in issue in this case. Under the allegation of his petition it may undoubtedly become a question of importance whether, under the laws of Louisiana, the petitioner belongs to the white or colored race. The judgment of the court below is therefore affirmed. [JUSTICE BREWER did not hear the argument or participate in the decision of this case.] JUSTICE HARLAN, dissenting: ... [W]e have before us a state enactment that compels, under penalties, the separation of the two races in railroad passenger coaches, and makes it a crime for a citizen of either race to enter a coach that has been assigned to citizens of the other race. Thus the State regulates the use of a public highway by citizens of the United States solely upon the basis of race. However apparent the injustice of such legislation may be, we have only to consider whether it is consistent with the Constitution of the United States. ... In respect of civil rights, common to all citizens, the Constitution of the United States does not, I

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think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed such legislation as that here in question is inconsistent, not only with that equality of rights which pertains to citizenship, national and state, but with the personal liberty enjoyed by every one within the United States. [The Thirteenth, Fourteenth, and Fifteenth Amendments] removed the race line from our governmental systems. They had, as this Court has said, a common purpose, namely, to secure “to a race recently emancipated, a race that through many generations have [sic] been held in slavery, all the civil rights that the superior race enjoys.” They declared, in legal effect, this court has further said, “that the law in the states shall be the same for the black as for the white: that all persons, whether colored or white, shall stand equal before the laws of the states, and, in regard to the colored race, for whose protection that amendment was primarily designed, that no discrimination shall be made against them by law because of their color.” We also said: “The words of the Amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race—the right to exemption from unfriendly legislation against them distinctively as colored—exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discrimination which are steps towards reducing them to the condition of a subject race.”. . . It was said in argument that the statute of Louisiana does not discriminate against either race, but prescribes a rule applicable alike to white and colored citizens. But this argument does not meet the difficulty. Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied or assigned to white persons. Railroad corporations of Louisiana did not make discrimination among whites in the matter of accommodation for 454

travelers. The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while traveling in railroad passenger coaches. No one would be so wanting in candor to assert the contrary. The fundamental objection, therefore, to the statute is that it interferes with the personal freedom of citizens. “Personal liberty,” it has been well said, “consists in the power of locomotion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct, without imprisonment or restraint, unless by due course of law.” If a white man and a black man choose to occupy the same public conveyance on a public highway, it is their right to do so, and no government, proceeding alone on grounds of race, can prevent it without infringing the personal liberty of each. It is one thing for railroad carriers to furnish, or to be required by law to furnish, equal accommodations for all whom they are under a legal duty to carry. It is quite another thing for government to forbid citizens of the white and black races from traveling in the same pubic conveyance, and to punish officers of railroad companies for permitting persons of the two races to occupy the same passenger coach. If a State can prescribe as a rule of civil conduct, that whites and blacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of the street and black citizens to keep on the other? Why may it not, upon like grounds, punish whites and blacks who ride together in street cars or in open vehicles on a public road or street? Why may it not require sheriffs to assign whites to one side of the courtroom and blacks to the other? And why may it not also prohibit the commingling of the two races in the galleries of legislative halls or in public assemblages convened for the political questions of the day? Further, if this statute of Louisiana is consistent with the personal liberty of citizens, why may not the State require the separation in railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman Catholics? The answer given at the argument to these questions was that regulations of the kind they suggest would be unreasonable, and could not, therefore, stand before the law. Is it meant that the determination of questions of legislative power depends upon the inquiry whether the statute whose validity is questioned is, in the judgment of the courts, a reasonable

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one, taking all the circumstances into consideration? A statute may be unreasonable merely because a sound public policy forbade its enactment. But I do not understand that the courts have anything to do with the policy or expediency of legislation. A statute may be valid, and yet upon grounds of public policy may well be characterized as unreasonable. Mr. Sedgwick correctly states the rule when he says that the legislative intention being clearly ascertained, “the courts have no other duty to perform than to execute the legislative will, without any regard to their views as to the wisdom or justice of the particular enactment.” Sedgw. Stat. & Const. L. 324. . . . The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not that it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty. But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race. In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case. . . . The recent amendments of the Constitution, it was supposed, had eradicated the principles (announced in that decision) from our institutions. But it seems that we have yet, in some of the states, a dominant race, a superior class of citizens, which assumes to regulate the enjoyment of civil rights, common to all citizens, upon the basis of race. The present decision, it may well be apprehended, will not stimulate aggressions, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficent purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution. . . . Sixty millions of whites are in no danger from the presence here of eight

millions of blacks. The destinies of the two races in this country are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law. What can more certainly arouse race hate, what more certainly create and perpetuate a feeling of distrust between these races, than state enactments which in fact proceed on the ground that colored citizens are so inferior and degraded that they cannot be allowed to sit in public coaches occupied by white citizens? That, as all will admit, is the real meaning of such legislation as was enacted in Louisiana. The sure guaranty of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, national and state, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States without regard to race. State enactments, regulating the enjoyment of civil rights, upon the basis of race, are cunningly devised to defeat legitimate results of the war, under the pretense of recognizing equality of rights, and can have no other result than to render permanent peace impossible and to keep alive a conflict of races, the continuance of which must do harm to all concerned. ... The arbitrary separation of citizens, on the basis of race, while they are on a public highway, is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds. If evils will result from the commingling of the two races upon public highways established for the benefit of all, they will be infinitely less than those that will surely come from state legislation regulating the enjoyment of civil rights upon the basis of race. We boast of the freedom enjoyed by our people above all other peoples. But it is difficult to reconcile that boast with a state of the 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, or atone for the wrong this day done. ... I am of the opinion that the statute of Louisiana is inconsistent with the personal liberty of citizens,

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white and black, in that State, and hostile to both the spirit and letter of the Constitution of the United States. If laws of like character should be enacted in the several States of the Union, the effect would be in the highest degree mischievous. Slavery as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom: to regulate civil rights, common to all citizens, upon the basis of race; and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community, called the people of the United States, for whom and by whom, through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each state of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land anything in the Constitution or laws of any State to the contrary notwithstanding. For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the majority.

PUBLIC ACCOMMODATION AND HOUSING: THE COLOR LINE In public accommodation and housing, the separatebut-equal doctrine nationalized the color line. The practice of legally and administratively separating African Americans from white Americans gained momentum. This color line provided daily lessons for every citizen on the nation’s precept of racial superiority or inferiority. This racially biased point of view infused several presidential administrations. For example, President Theodore Roosevelt adopted the motto “no crown of thorns” on the heads of southern whites. Roosevelt’s handling of the Brownsville Affair of 1906 exemplified his general position toward Africa Americans as a group. Some black soldiers who were angered by the treatment of blacks in the town of Brownsville, Texas, were accused by the townspeople of going into town and conducting a shooting sortie. The white commanders of the troops stated that all the soldiers had been in their barracks at the time. Roosevelt gave dishonorable discharges to three companies of black soldiers for 456

refusing to reveal who had done the shooting. He labeled their refusal to speak “a conspiracy of silence.” (During the Nixon Administration, the Secretary of the Army granted honorable discharge to the black soldiers. Congressman Augustus Hawkins championed the passage of legislation that compensated any veteran dishonorably discharged from the Army as a result of the Brownville Incident. The compensation included unmarried widows of any such veteran.) President Woodrow Wilson permitted segregation to return to the nation’s capital in forms such as segregated drinking water fountains. President Wilson did not interfere with whites’ discrimination against blacks, either in the North or South. In 1917, Wilson refused to denounce race riots in the South and in East St. Louis, Illinois. Wilson’s color line was maintained during the successive Republican administrations. President Harding failed to endorse the Dyer Anti-Lynching Bill, which would have made lynching a federal offense. Harding and his successors remained silent on the race issue in America. Even as discrimination against African Americans spread across the nation, the race question seemed to be denationalized. Local social customs and practices determined the breadth and strength of the implementation of the constitutional rights of blacks in public accommodation, housing, and in a host of other areas. Under President Franklin Roosevelt and the New Deal, the focus shifted from local customs and practices to a more national orientation regarding policy. Significant emphasis was placed on legislation to improve the housing market. The legislation was largely aimed at reviving the mortgage and insurance companies and assisting middle-class home owners. On the whole, those pieces of legislation provided limited benefits to African Americans. The low-income status of blacks and the politics of the color line greatly restricted the benefits that accrued to African Americans. Section 934 of the Underwriting Manual of the Federal Housing Administration (manual), for example, stated, “Deed restrictions [were] apt to prove more effective than a zoning ordinance in providing protection from adverse influence.” “Adverse influence” referred to blacks and ethnic minorities. Section 937 of the Manual stated that “a change in social or racial occupancy generally contributes to instability and a decline in values.”

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

The Truman Administration objected more stridently to racial discrimination in public accommodation and housing. President Truman’s Commission on Civil Rights noted the racial disparities in public accommodation and housing as well as in other areas. The report called for the government, especially the federal government, to play a more active role. It strongly criticized the Reconstruction decisions of the Supreme Court. The influence of Plessy’s separate-but-equal doctrine on the Supreme Court was mixed. The ruling allowed statutes and ordinances to be enacted that discriminated on the basis of race, color, or previous condition of servitude. In Morgan v. Virginia (328 U.S. 373, 1946), the Court disallowed the separatebut-equal doctrine of Plessy in interstate travel. Speaking for the Court, Justice Stanley Reed found the Virginia statute to be unconstitutional. Justice Reed concluded that the statute placed an undue burden on interstate travel. Following Plessy, state and local governments also passed laws that affected the transfer of private property. In Buchanan v. Warley (245 U.S. 60, 1917), the Supreme Court disallowed a Louisville ordinance that interfered with the transfer of property. Justice Day held that the ordinance violated the right of a person to dispose of his or her property to a black person. It also prevented a black person from disposing of his property to a white person. The restrictive covenant ordinance violated the Fourteenth Amendment. The restrictive covenant ordinance violated the Fourteenth Amendment. In both Herman v. Tyler (273 U.S. 668, 1926) and City of Richmond v. Deans (281 U.S. 704, 1930), the Supreme Court voided ordinances that interfered with the transfer of property. Here the majority showed a reluctance to rule against restrictive covenants between private citizens. However, in the 1930s, the National Association for the Advancement of Colored People (NAACP) developed and implemented a legal strategy that perceived law to be a means of social change. The strategy focused mainly on housing and education. In the area of housing, the NAACP orchestrated a closely monitored campaign to overturn restrictive covenants that were the chief barrier to choice in housing. The federal government promoted the use of restrictive covenants as a means of keeping blacks and other nonwhite racial and ethnic groups separated from whites (for example, by publishing

the underwriting manual previously mentioned). The restrictive covenant policies of the federal and state government worked to create black slums and ghettos. The NAACP met unusual success in Shelly v. Kraemer (334 U.S. 1, 1948) and Hurd v. Hodge (334 U.S. 24, 1948). In Shelly, the NAACP argued that judicial enforcement of restrictive covenants in state courts constituted state action, which in turn violated the Fourteenth Amendment. The Supreme Court accepted the argument. Speaking for a unanimous Court, Chief Justice Vinson held that the judicial enforcement of restrictive covenants did indeed constitute state action and thus violated the Fourteenth Amendment. According to Vinson, the judicial enforcement of restrictive covenants clearly conformed “to the common-law policy of the states, as formulated by those courts in earlier decisions.” He concluded that “the judicial action in each case bears the clear and unmistakable imprimatur of the state.” “[T]he restrictive agreement standing alone,” insisted Chief Justice Vinson, “cannot be regarded as violative of any rights guaranteed to the petitioners by the Fourteenth Amendment.” In Hurd v. Hodge, the Court addressed federal judicial enforcement of restrictive covenants. The Supreme Court held that federal judicial enforcement of restrictive covenants violated both the Due Process Clause of the Fifth Amendment and the Civil Rights Act of 1866, which gave blacks the same right to sell and buy property as whites. The justices declared that the spirit of the public policy of the United States is to permit federal courts to do what the Supreme Court refused to allow state courts to do. Although the Supreme Court permitted covenants that were not judicially enforced to exist, in 1953 the Court lessened the effectiveness of the restrictive covenants. At issue in Barrows v. Jackson (346 U.S. 249, 1953) was whether a covenant could be enforced as law by a suit for damages against a fellow member of the covenant who allegedly broke the agreement. Justice Minton delivered the opinion of the Court, which held that damages for violating the covenant could not be granted. The Supreme Court held that it could not allow a state to coerce an individual to pay damages when in effect the state could not incorporate the act into statute. On balance, it must be noted that the restrictive covenant decisions did not prohibit all forms of restrictive covenants that had the overall intent of barring blacks from white areas.

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In 1946, the Supreme Court revisited its Plessy ruling with regard to interstate travel. In Morgan v. Virginia (328 U.S. 373, 1946), the issue was the separation of races on interstate conveyances. The Supreme Court concluded that the Virginia statute was unconstitutional because it placed an undue burden on interstate commerce. Writing for the Court, Justice Reed indicated that separate seating arrangements for different races in interstate travel were burdensome. Reed argued, “it seems clear to us that seating arrangements for the different races in interstate motor travel require a single, uniform rule to promote and to protect national travel.” Consequently, the Supreme Court held that the Virginia statute was invalid.

STRATEGIES FOR POLITICAL EXCLUSION Several states employed simple and complex strategies to exclude African Americans from political participation. Some of the more popular strategies that were implemented were grandfather clauses, white primaries, literacy and understanding tests, poll taxes, and economic and political reprisals and violence to exclude blacks from the political process. The damaging effects of Plessy v. Ferguson easily negated the voting rights guarantees of the Fifteenth Amendment and the Reconstruction legislation. In 1896, the year of Plessy, over 100,000 blacks were registered voters in Louisiana, but by 1900 that number was reduced to approximately 5000 registered voters. The grandfather clause was a widely used disfranchisement tool enacted by white legislatures in the South. The clause came in various forms. Most of them stated that men or lineal descendants of men who were voters before 1867 were not required to meet the educational, property, or tax requirements for voting. The grandfather clauses allowed poor and illiterate whites but not blacks to vote. The first grandfather clause case to come before the Supreme Court was Guinn v. United States (238 U.S. 347, 1915). The Guinn Court voided the January 1, 1866, standard because it revitalized conditions that existed prior to the Fifteenth Amendment. The Court, however, did not find the literacy test provision to be constitutionally invalid. In Lane v. Wilson (307 U.S. 268, 1939), the justices voided an Oklahoma grandfather statute. Justice Frankfurter concluded that “the Fifteenth Amendment nullified so blatant or simple minded modes of discrimination.” 458

However, a decision of the Supreme Court in 1921, Newberry v. United States (256 U.S. 232), held that a primary was “in no real sense” a part of the federal election process, It facilitated the spread of the “white primary” as one of the most effective schemes fencing blacks out of the political process. Initially stymied by the “state action” barrier of the Fourteenth Amendment because the exclusion of blacks from the Democratic Party primaries was directly traceable to official actions, the Texas Democratic Convention skirted this constitutional barrier when it acted as a “private voluntary group” to exclude blacks. In Grovey v. Townsend (295 U.S. 45, 1935), the Supreme Court agreed that the subsequent exclusion of blacks from the party’s primary election was not constitutionally defective because the action was private in character. By 1941, there was a change in judicial attitude about the status of primary elections, as indicated in United States v. Classic (313 U.S. 299). The case involved the federal prosecution of a Louisiana election official for ballot fraud in a congressional primary election. The district court had rejected federal regulation of such contests. largely on the authority of the Newberry decision. But in reversing this holding, the Supreme Court held that the right to vote in such primary elections is secured by the federal Constitution and that Congress has the authority to regulate primaries “when they are a step in the exercise by the people of their choice of representatives in Congress.” The Classic decision clearly forecasted the downfall of the white primary by rejecting the “private status” theory of primary elections. In fact, that downfall came only 3 years later in Smith v. Allwright (321 U.S. 649, 1944), when another challenge to the Texas white primary system lay before the Court. The Court directly reversed Grovey v. Townsend and eliminated that impediment to black suffrage. It ruled that political parties and party primaries were so regulated by massive state legislation that such action was for all practical purposes “state action.” Hence, party action, which discriminated against blacks, was really state action, contrary to the command of the Fifteenth Amendment. Several schemes that were designed to resurrect the white primary proved to be little more than delaying nuisances. The South Carolina effort to make the party a truly private club by repealing some 150 statutory provisions governing primary elections was rejected by the lower federal courts, and the

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Supreme Court denied certiorari (Rice v. Elmore, 333 U.S. 875, 1948). A Texas county’s evasive scheme took the form of a preprimary election from which black voters were excluded. The winner then filed in the regular Democratic primary and was usually elected without opposition. In Terry v. Adams (345 U.S. 461, 1953), the Supreme Court rejected the “private status” claim of the “Jaybird” group and held that its primary was an integral part of the election process that must conform with the Fifteenth Amendment.

SEPARATE AND UNEQUAL: PUBLIC EDUCATION FROM PLESSY TO BROWN FEATURED CASES

Brown v. Board of Education (I); Brown v. Board of Education (II) Since the Plessy decision, public education has exemplified the conflicted constitutional, political, and social status that Americans constructed and forced on African Americans. In seventeen states and the District of Columbia, statutes and ordinances required dual educational facilities for blacks and whites. In several other states and cities, state and school officials made decisions and established policies that resulted in the purposeful racial segregation of students. The separate education of blacks and whites violated the assertion of Justice Harlan’s dissent in Plessy: “[T]here is no caste here [in America]. Our Constitution is color blind, and neither knows nor tolerates classes among citizens.” The state of public education also reflected Justice Harlan’s contention that the white race is “the dominant race in this country.” The Court shared the conflicted racial construct with governmental and nongovernmental institutions. These institutions emphasized the “separate” rather than the “equal” side of Plessy’s separate-but-equal equation. Three years after Plessy, Cumming v. Richmond County Board of Education (175 U.S. 528, 1899) gave the Supreme Court the opportunity to construe the separate-but-equal doctrine in education. The Richmond County School Board of Georgia maintained a high school for white children but refused to build one for black children. The county’s financial difficulties were used to justify the school board’s official decision. The Supreme Court concluded that disparate treatment did not violate the

Equal Protection Clause of the Fourteenth Amendment. Speaking for the Court, Justice Harlan failed to order the Board of Education of the county to enroll black and white children at the same high school. In Berea v. Kentucky (211 U.S. 45, 1908), the Supreme Court sustained a Kentucky statute that prohibited colleges from instructing African Americans and white students at the same time and place. The Court held that the law did not controvert the Equal Protection Clause of the Fourteenth Amendment. Then, in Gong Sum v. Rice (275 U.S. 78, 1927), the Supreme Court applied the separate-but-equal doctrine beyond the black–white framework. The state of Mississippi required a person of Chinese ancestry to attend the black school rather than the one for whites. The justices concluded that the regulation of schools was within the jurisdiction of the State of Mississippi. The Court held that the requirement that Chinese students attend school with African Americans did not conflict with the Fourteenth Amendment. These cases demonstrate how the Supreme Court led the nation in nationalizing the public policy of segregation. Both Democratic and Republican administrations followed the Court’s lead. The Wilson administration, for example, permitted segregation to be established in the nation’s capital and allowed blacks to be eliminated from positions in the federal government, especially positions that were traditionally understood to “belong” to blacks—Registrar of the Treasury, Ambassador to Haiti, and other diplomatic positions. Succeeding Republican administrations embraced the policy of the Wilson administration. National, state, and local decisions jealously upheld the “separate” component of the separate-but-equal doctrine. It was not until 1936 that any court considered fully the standard of equality and the appropriate relief that may be granted to correct inequality. Furthermore, the pivotal case was not a challenge to the largest arena of public education—elementary and secondary schools—but to a higher education institution. Somewhat paradoxically, it was a state court—the Maryland Court of Appeals—that initiated judicial scrutiny of the equality offered under the separate-but-equal doctrine. In Pearson v. Murray (182 Atl. 590, 1936), a qualified black applicant was denied admission to the University of Maryland School of Law solely because of race.

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Instead, the applicant was offered an out-of-state scholarship that covered expenses for his legal education elsewhere. Although it refused to rule on the issue of segregated education, the state court did examine the standard of equality that was afforded and found the policy to be deficient. Adhering to the doctrine of the “present” nature of constitutional rights, the court held that immediate equality could only be furnished by Murray’s admission to the white law school. The U.S. Supreme Court adopted essentially the same position 2 years later in Missouri ex rel. Gaines v. Canada (305 U.S. 337, 1938). Like Maryland, Missouri provided blacks an opportunity to obtain a legal education via an out-of-state scholarship. However, the Supreme Court held that admission to the white law school was the only appropriate remedy that was consistent with the constitutional standard of equality. The Court also gave notice that it would no longer ignore the “equal” part of the separatebut-equal formula. Chief Justice Charles Evans Hughes, who delivered the Court’s opinion, stressed equality of treatment in rejecting the scholarship arrangement. In short, the equal protection clause required Missouri to provide the black applicant with a legal education within the state. The Court reaffirmed the Gaines doctrine 10 years later in Sipuel v. Board of Regents of the University of Oklahoma (322 U.S. 631, 1948). The states of Missouri, Texas, Louisiana, Florida, North Carolina, and South Carolina responded to the Gaines decision by constructing separate law schools for blacks. Litigation then shifted to whether these separate segregated school facilities met the standard of equality that was required by the Equal Protection Clause of the Fourteenth Amendment. In Sweatt v. Painter (339 U.S. 629, 1950), the Supreme Court compared the quality of legal education provided at Texas Southern University School of Law with that provided at the University of Texas Law School. The Court did not overturn the separate-butequal doctrine per se. Instead, it reached the conclusion that the margins of the separate-but-equal doctrine had, indeed, eroded. Seemingly forecasting the doom of the doctrine, Chief Justice Vinson suggested that there are “qualities which are incapable of objective management” and that the law school “cannot be effective in isolation from the individuals and institutions with which the law interacts.” The Court further clarified the standard of equality as applied to higher education in its decision in 460

McLaurin v. Oklahoma State Regents (339 U.S. 637, 1950), which it announced the same day as Sweatt. That decision condemned the internal segregation practices to which a black graduate student was subjected, saying that they impaired his “ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession.” Immediately following the Sweatt and McLaurin decisions, the legal attack on segregated education shifted to the elementary and secondary school level. The first action, which was brought in December 1950, challenged the constitutionality of South Carolina’s school segregation laws. Similar challenges were made in Kansas, Virginia, Delaware, and the District of Columbia during the following year. In each case, the constitutionality of racially segregated educational facilities was argued, but the lower courts held steadfastly to the separate-butequal doctrine. However, Chancellor Collins J. Seitz of a Delaware state court did grant partial relief because of a finding of unequal facilities. The Supreme Court consolidated the four challenges to the state systems of segregated education in Brown v. Board of Education (347 U.S. 483, 1954), questioning their permissibility under the Equal Protection Clause of the Fourteenth Amendment. The District of Columbia case, Bolling v. Sharpe (347 U.S. 497, 1954) raised the issue under the Due Process Clause of the Fifth Amendment. The Equal Protection Clause of the Fourteenth Amendment does not apply to the federal government, in the District of Columbia. In both Brown and Bolling, the Supreme Court ruled against the legal requirement to separate black and white children in school. Various explanations have been offered for this change in the Court’s position relative to its earlier decisions. First, the holdings reflect a change in racial attitudes and values in the American culture. Second, they may be due to a convergence of interests. That is, the anticommunism interests of the nation and the civil rights interests of blacks converged in decisions of the Supreme Court. On May 17, 1954, a unanimous Court ruled that the separate-but-equal doctrine was unconstitutional in public education, overruling the Plessy precedent. In the unanimous opinion written by Chief Justice Warren, the Court dealt with, perhaps, the central problem related to race in America and considered not only the tangible inequalities in status and rewards for the races but also focused on the nature

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and consequences of segregation in the schools and in the broader society. Probably anticipating the impact of the decision, the Court announced its judgment but delayed a decree. After examining additional briefs and further arguments on the question of the appropriate remedy during the 1954 fall term, the Court announced the implementation decree on May 31, 1955 (Brown II, 349 U.S. 294, 1955). The Court rejected the “immediacy” argument of the victorious appellants in favor of the “gradualism” urged by the appellees. The cases were remanded to the federal district courts with instructions to order local school districts to proceed with desegregation of public schools “with all deliberate speed.” The rise and fall of segregation are remarkably similar. Both movements manifested the close relationship between social attitudes and behavior, law and public policy. While the Supreme Court did not

specifically give rise to segregation, it legitimated the attitudes, events, and developments that merged to separate blacks from whites and that reinforced the American society’s thoughts about blacks. The fall of segregation presented this pattern in reverse. The Supreme Court took a prominent role in enlightening America about the perniciousness of the separate-but-equal doctrine and its harmful consequences on the perceptions, lives, and life chances of blacks and on the perceptions of whites. Both Plessy and Brown influenced national policy and more generally the debate on the rights and aspirations of blacks. In Brown, a transformation of the debate on race occurred. Brown made race a national issue, placed racism and racial discrimination on the agenda of the Congress and president, dislodged the rights of blacks from the domain of the states, and placed the Constitution on the side of true racial equality.

BROWN V. BOARD OF EDUCATION (I) 347 U.S. 483; 98 L. Ed. 873; 74 S. Ct. 686 (1954) CHIEF JUSTICE WARREN delivered the opinion for a unanimous Court. These cases came to us from the States of Kansas, South Carolina, Virginia, and Delaware. They are premised on different facts and different local conditions, but a common legal question justified their consideration together in this consolidated opinion. In each of the cases, minors of the Negro race, through their legal representatives, seek aid of the courts in obtaining admission to the public schools of their community on a non-segregated basis. . . . In each of the cases other than the Delaware case, a threejudge federal district court denied relief to the plaintiffs on the so-called “separate but equal” doctrine, announced by the Court in Plessy v. Ferguson. . . . In the Delaware case, the Supreme Court of Delaware adhered to that doctrine, but ordered that the plaintiffs be admitted to the white schools because of their superiority to the Negro schools.

The plaintiffs contend that segregated public schools are not “equal” and cannot be made “equal,” and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the Court took jurisdiction. Argument was heard in the 1952 Term, and reargument was heard this Term on certain questions propounded by the Court. Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the States, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among “all persons

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born or naturalized in the United States.” Their opponents just as certainly were antagonistic to both the letter and spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty. An additional reason for the inconclusive nature of the Amendment’s history, with respect to segregated schools, is the status of public education at that time. In the South, the movement toward free common schools, supported by general taxation, had not yet taken hold. Education for white children was largely in the hands of private groups. Education for Negroes was almost nonexistent, and practically all of the race was illiterate. In fact, any education of Negroes was forbidden by law in some States. Today, in contrast, many Negroes have achieved outstanding success in the arts and sciences as well as in the business and professional world. It is true that public education had already advanced further in the North, but the effect of the Amendment on Northern States was generally ignored in the Congressional debates. Even in the North, the conditions of public education did not approximate those existing today. The curriculum was usually rudimentary; ungraded schools were common in rural areas; the school term was but three months a year in many States; and compulsory school attendance was virtually unknown. As a consequence, it is not surprising that there should be so little in the history of the Fourteenth Amendment relating to its intended effect on public education. In the first cases in this Court construing the Fourteenth Amendment, decided shortly after its adoption, the Court interpreted it as proscribing all state-imposed discriminations against the Negro race. The doctrine of “separate but equal” did not make its appearance in the Court until 1896 in the case of Plessy v. Ferguson, . . . involving not education but transportation. American courts have since labored with the doctrine for over half a century. In this Court, there have been six cases involving the “separate but equal” doctrine in the field of public education. In Cumming v. Board of Education of Richmond County and Gong Lum v. Rice, the validity of the doctrine itself was not challenged. In more recent cases, all on the graduate school level, inequality was found in that specific benefits enjoyed by white students were denied to Negro students of the same educational qualifications (State of Missouri ex. rel. Gaines v. Canada, Sipuel v. Board of Regents 462

of University of Oklahoma, Sweatt v. Painter, and McLaurin v. Oklahoma State Regents). In none of these cases was it necessary to reexamine the doctrine to grant relief to the Negro plaintiff. And in Sweatt v. Painter, . . . the Court expressly reserved decision on the question whether Plessy v. Ferguson should be held inapplicable to public education. ... In approaching this problem, we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the State has undertaken to provide it, is a right which must be made available to all on equal terms. We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does. In Sweatt v. Painter . . . in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on “those qualities which are incapable of objective measurement but which make for greatness in a law school.” In McLaurin v. Oklahoma State Regents . . . the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: “. . . his ability to study, to

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engage in discussion and exchange views with other students, and, in general, to learn his profession.” Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs: Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of [N]egro children and to deprive them of the benefits they would receive in a racial[ly] integrated school system.

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.

We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by the reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. This disposition make unnecessary any discussion whether such segregation also violates the Due Process Clause of the Fourteenth Amendment. Because these are class actions, because of the wide applicability of the decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. . . . In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument on [the appropriate decree]. The Attorney General of the United States is again invited to participate. The Attorneys General of the States requiring or permitting segregation in public education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and submission of briefs by October 1, 1954. Cases ordered restored to docket for further argument on question of appropriate decrees. It is so ordered.

BROWN V. BOARD OF EDUCATION (II) 349 U.S. 294; 99 L. Ed. 1083; 75 S. Ct. 753 (1955) CHIEF JUSTICE WARREN delivered the opinion for a unanimous Court. These cases were decided on May 17, 1954. The opinions of that date, declaring the fundamental principle that racial discrimination in public education is unconstitutional, are incorporated herein by reference. All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle. There remains for consideration the manner in which relief is to be accorded.

Because these cases arose under different local conditions and their disposition will involve a variety of local problems, we requested further argument on the question of relief. In view of the nationwide importance of the decision, we invited the Attorney General of the United States and the Attorneys General of all States requiring or permitting racial discrimination in public education to present their views on that question. The parties, the United States, and the States of Florida, North Carolina, Arkansas, Oklahoma, Maryland, and Texas filed briefs and participated in the oral argument.

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These presentations were informative and helpful to the Court in its consideration of the complexities arising from the transition to a system of public education freed of racial discrimination. The presentations also demonstrated that substantial steps to eliminate racial discrimination in public schools have already been taken, not only in some of the communities in which these cases arose, but in some of the States appearing as amici curiae, and in other States as well. Substantial progress has been made in the District of Columbia and in the communities in Kansas and Delaware involved in this litigation. The defendants in the cases coming to us from South Carolina and Virginia are awaiting the decision of this Court concerning relief. Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts. In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of

such obstacles in a systematic and effective manner. But it would go without saying that the validity of these constitutional principles cannot be allowed to yield simply because of disagreement with them. While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and a revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases. The judgments below, except that in the Delaware case, are accordingly reversed and remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases. The judgment in the Delaware case—ordering the immediate admission of the plaintiffs to schools previously attended only by white children—is affirmed on the basis of the principle stated in our May 17, 1954, opinion, but the case is remanded to the Supreme Court of Delaware for such further proceedings as that court may deem necessary in light of this opinion.

SELECTED REFERENCES Balkin, Jack M. and Reva B. “The American Civil Rights Tradition: Anticlassification or Antisubordination?” 58 University of Miami Law Review 9 (2003–2004). Bell, Derrick, Jr. Race, Racism, and American Law. Boston, MA: Little, Brown and Company, 1973. 464

Bell, Derrick, Jr. “Brown v. Board of Education and Interest-Convergence Dilemma.” Harvard Law Review, Vol. 93 (1980), 518–533. Bell, Derrick, Jr. And We Are Not Saved: The Elusive Quest for Racial Justice. New York: Basic Books, 1987.

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Bell, Derrick, Jr. Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform. New York: Oxford University Press, 2004. Bergner, Gwen. “Black Children, White Preference: Brown v. Board, the Doll Tests, and the Politics of Self Esteem,” American Quarterly, Vol. 61, No. 4 (2009), 299–332. Bobo, Lawrence and Ryan A. Smith. “From Jim Crow Racism to Laissez-Faire Racism: The Transformation of Racial Attitudes,” Beyond Pluralism, Eds. Wendy F. Katkin, Ned Londsman, and Andrea Tyree, Chicago: University of Illinois, 1998. Brown, Kevin. “The Road Not Taken in Brown: Recognizing the Dual Harm of Racial Segregation,” Virginia Law Review, Vol. 90, No. 6 (2004), 1579–1599. Burton, Orville V. The Age of Lincoln. New York: Hill and Wang, 2007. Caldas, Stephen J. and Carl L. Bankston III. “A ReAnalysis of the Legal, Political, and Social Landscape of Desegregation from Plessy v. Ferguson to Parents Involved in Community Schools v. Seattle District I” 2007 B.Y.U. Education and Law Journal 217 (2007). Collin, Robin Morris. “Brown and Me: Brown’s Theory of an Education Remedy of Citizenship,” Howard Scroll: The Social Justice Law Review, Vol. 9 (2006), 73. Dudziak, Mary L. “Brown as a Cold War Case.” The Journal of American History, Vol. 91 (2004), 32–42. Fireside, Harvey. Separate and Unequal: Homer Plessy and the Supreme Court Decision that Legalized Racism. New York: Carroll and Graf, 2005. Fiss, Owen M. “Groups and the Equal Protection Clause.” Philosophy and Public Affairs, Vol. 5 (1976), 107–177. Fiss, Owen M. “School Desegregation: The Uncertain Path of the Law.” Philosophy and Public Affairs, Vol. 4 (1974), 3–39. Fleming-Rife, Anita and Proffitt, Jennifer M. “The More Public School Reform Changes, the More It Stays the Same: A Framing Analysis of the Newspaper Coverage of Brown v. Board of Education,” Journal of Negro Education, Vol. 73, No. 3 (2004), 239–254. Franklin, John Hope. History of Racial Segregation in the United States, Vol. 34 (1956), 1–9. Golub, Mark. “Plessy as ‘Passing’: Judicial Responses to Ambiguously Raced Bodies in Plessy v. Ferguson,”

Law and Society Review, Vol. 39, No. 3 (2005), 563–600. Gross, Ariela. “When Is the Time of Slavery? The History of Slavery in Contemporary Legal and Political Argument.” 96 California Law Review. 283–322 (2008). Huhn, Wilson R. “The Legacy of Slaughterhouse, Bradwell, and Cruikshank in Constitutional Interpretation,” Akron Law Review, Vol. 42 (2009), 1051. Hunter, James D. Culture Wars: The Struggle to Define America. New York: Basic Books, 1991. Jordan, Winthrop D. White Over Black. Chapel Hill: The University of North Carolina Press, 1968. Klarman, Michael J. From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality. New York: Oxford University Press, 2005. Kluger, Richard. Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality. New York: Vintage Books, 1977. Ogletree, Charles J. All Deliberate Speed: Reflections on the First Half-Century of Brown v. Board of Education. New York: W. W. Norton and Co., Inc., 2005. Primus, Richard A. “Bolling Alone,” Columbia Law Review, Vol. 104, No. 4 (2004), 975–1041. Rountree, Clarke, ed. Brown v. Board of Education at Fifty. Lanham, MD: Lexington Books, 2005. Sandoval-Strausz, A. K. “Travelers, Strangers, and Jim Crow: Law, Public Accommodations, and Civil Rights in America,” Law and History Review, Vol. 23, No. 1 (2005), 53–94. Scott, Rebecca J. “Public Rights, Social Equality, and the Conceptual Roots of the Plessy Challenge,” Michigan Law Review, Vol. 106 (2009), 777. Turner, Ronald. “The Voluntary School Integration Cases and the Contextual Equal Protection Clause,” Howard Law Journal, Vol. 51 (2008), pp. 251–334. Tushnet, Mark V. The NAACP’s Legal Strategy against Segregated Education, 1925–1950. Chapel Hill: University of North Carolina Press, 2004. Williams, Linda F. The Constraint of Race. University Park: The Pennsylvania State University Press, 2003. Woodward, C. Vann. A History of the South: Origins of the New South, 1877–1913. Baton Rouge: Louisiana State University Press, 1951.

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CHAPTER 12

THE ROCKY ROAD OF SCHOOL DESEGREGATION

FEATURED CASES Board of Education of Oklahoma City Public Schools v. Dowell; Parents Involved in Community Schools v. Seattle School District No. 1

THE JOURNEY FROM BROWN I: ISSUES OF RESISTANCE AND IMPLEMENTATION In Brown v. Board of Education I and II, the Supreme Court challenged America to pursue racial transformation in public school education. The journey from segregation to racial diversity in the public school system has encountered and continues to encounter cultural, legal, political, and institutional resistance. The implementation of the principles and remedial requirements of the two Brown decisions has been very telling. It has illuminated the whys and hows of racial change and continuity in the American democracy. The Warren Court anticipated the difficulties that would emerge from its announcement of Brown v. Board of Education I and II. This expectation was reflected in Chief Justice Warren’s decision to author the opinion himself, the unanimous nature of the rulings, the craftsmanship of the opinions, and the issuing of the decisions in two installments, separating the constitutional principle from the remedy (decree). The justices seemingly understood the hostile reactions that would emerge when the law touched ingrained social mores, folkways, attitudes, and behavior. The Brown decisions would face some sixty years of entrenched political forces that possessed sufficient power to frustrate,

vitiate, and even impede the directives of the Supreme Court. The road to school desegregation has been one of protracted struggle that has consumed more than sixty years, an enormous amount of money, and many other resources. On May 31, 1955, the Warren Court announced the implementation decree (Brown v. Board of Education, 349 U.S. 294). Again speaking for a unanimous Court, Chief Justice Warren outlined the procedures by which school desegregation was to be implemented. The creation of a desegregated school system might encounter administrative problems such as “the physical condition of the school plant, the school transportation, personnel, revision of school districts and attendance areas into compact units.” The lion’s share of the implementation responsibility was given to lower federal courts, especially district courts. Warren urged district courts to pursue the transformation of dual school districts with unitary ones “with all deliberate speed.” Such an approach permitted states to adjust incrementally to unitary school systems. Moreover, the “with all deliberate speed” standard made allowances for the “public interest,” granting district courts the discretion to permit state officials to move with caution and be aware of the impact of desegregating school districts.

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In practice, district courts showed considerable leniency in passing on local desegregation plans. They tolerated procedural maneuvers and often granted delays that were hardly consistent with the intent of the Court’s “deliberate speed” formula. Many school boards were under heavy local pressures to resist, evade, or at least delay final desegregation orders. For several years, the federal judiciary was at the center of the school desegregation effort. In 1957, however, President Eisenhower abandoned his moderate approach to school desegregation and civil rights. Eisenhower dispatched federal troops to Arkansas to squelch violence and the threat of violence at Central High School in Little Rock. And in Cooper v. Aaron (358 U.S. 1, 1958), the Supreme Court made it clear that it would not tolerate the postponement of court orders. The Court insisted that the constitutional rights of black children “are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature.” The justices rejected the State of Arkansas’ argument that the implementation of the principles of Brown should be voided to preserve “law and order.” Although the Court used strong language in Cooper to condemn obstruction to desegregation efforts, it showed considerable leniency and deference to lower courts when they presented plans that were designed to minimize the number of blacks attending schools with whites. It approved pupil-placement plans and grade-a-year plans, and allowed a variety of freedom-of-choice and free transfer plans to stand. All of these plans contributed to the disappointingly slow pace of desegregation during the decade immediately following Brown.1 But other, more blatant evasion efforts were blunted. In Griffin v. Prince Edward County School Board (377 U.S. 218, 1964), for example, the Court refused to allow authorities to abandon public education when the authorities were given a final order to effect desegregation. In rejecting this method of defiance, the Court took the unusual step of empowering the federal district court to order the taxing authority to exercise its power in providing funds “to reopen, operate, and maintain” the public school 1 See Kelly v. Board of Education (270 F.2d 209, 6th Cir., 1959); Shuttlesworth v. Birmingham Board of Education (358 U.S. 101, 1958); and Green v. County School Board of New Kent County (391 U.S. 430, 1968).

system on a nondiscriminatory basis. In the same action, the mushrooming “private white academies” (an alternative to desegregated schools) were blunted in their attempts to gain sustenance from the public trough in the form of various tuition-grant arrangements and tax exemptions for their financial backers. There were occasional expressions of discontent with the slow pace of school desegregation, such as Justice Goldberg’s opinion in Watson v. Memphis (373 U.S. 526, 1963) and the Court’s decision in Rogers v. Paul (382 U.S. 198, 1965). But very little was done until Congress provided some support with the enactment of the Civil Rights Act of 1964. This act contained a title on public school desegregation that denied federal financial assistance to any program which was administered in a racially discriminatory manner. Pursuant to this provision, in late 1964 the U.S. Office of Education made eligibility for federal aid contingent on compliance with a court-ordered desegregation plan. In the absence of such a plan, eligibility was contingent on compliance with guidelines for school desegregation that were issued by the Department of Health, Education and Welfare, popularly known as the HEW Guidelines. The new policy had an immediate impact, as the withholding of federal financial aid would have serious fiscal consequences for many school districts where no effort or at most a token effort had been made to desegregate schools. Faced with the possibility of losing substantial funds, especially in view of the passage of the Elementary and Secondary Education Act of 1965, most districts grudgingly moved to comply with the HEW Guidelines.2 The most authoritative statement on the constitutionality of the HEW Guidelines was given by Circuit Judge John Minor Wisdom of the Court of Appeals for the Fifth Circuit in United States v. Jefferson County Board of Education (372 F.2d 836, 1966). In reversing district court holdings involving 2 These first Guidelines, issued in April 1965, set Fall 1967 as the target date for the desegregation of all public school systems. A revision of the Guidelines in March 1968 moved the target date to the opening of the 1968–69 school year, or, at the latest, the opening of the 1969–70 year. Without abandoning the 1969–70 target, the Nixon administration adopted a flexible policy under which delays in implementing desegregation plans would be granted if they were warranted by “bona fide educational and administrative problems.”

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seven school districts in Alabama and Louisiana, Judge Wisdom held that the standards for desegregation which were prescribed by the Guidelines are justified by the Brown ruling and the congressional objectives of the Civil Rights Act of 1964. In what must be considered the most far-reaching statement on the obligation of school boards, Judge Wisdom asserted that “the law imposes an absolute duty to integrate, in the sense that a disproportionate concentration of Negroes in certain schools cannot be ignored [for] racial mixing of students is a high priority goal.” The obligations that Brown imposed on local school boards to dismantle segregated school systems were clarified by the Supreme Court. In Green v. New Kent County School Board (391 U.S. 430, 1968), the Court struck down the county’s “freedomof-choice” plan. Speaking for a unanimous Court, Justice Brennan noted that Brown required the school board to devise realistic plans that worked. Brennan indicated that school officials had to shoulder the burden to effectively convert from a segregated system to a unitary, nonracial one. A year later, the justices blunted the Nixon Administration’s effort to delay the court-ordered desegregation of thirty-three Mississippi school districts in Alexander v. Holmes County Board of Education (396 U.S. 19, 1969). The Court maintained that the standard of “all deliberate speed [was no longer] constitutionally permissible” and that the operation of segregated schools must be terminated “at once.” Although the Court reaffirmed its intolerance for delay in several cases that it decided immediately thereafter, several justices (including Chief Justice Burger) indicated in dissent a preference for greater lower court discretion in applying the “at once” standard. (See, e.g., Carter v. West Feliciana Parish School Board 396 U.S. 290, 1970). In the end, notwithstanding scattered instances of violent resistance, desegregation proceeded rather swiftly throughout the Fourth and Fifth Circuits, which contained the bulk of districts where de jure segregation had been firmly embedded for almost a century. The immediate result was that there were a larger percentage of blacks and whites attending the same schools in the South than in other parts of the country.3 3

For a discussion of this phenomenon, see J. Harvie Wilkinson, From Brown to Bakke: The Supreme Court and School Integration: 1954–1978 (New York: Oxford University Press, 1979), pp. 118–125.

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“IT’S NOT THE BUS; IT’S US”: DESEGREGATION MOVES NORTH Defenders of racially segregated public schools in the South frequently called attention to the dual school systems in other sections of the county. They complained that the mandates of Brown were not being fairly enforced, and that instead they were focusing on the areas where state policy ordered racially separate schools. The 1970s witnessed the nationalization of school desegregation from Massachusetts to Washington, from New York to California, and from Michigan to Colorado. Judicial and administrative resources were directed at school districts that practiced de facto segregation in public schools. Some scattered lower-court action on the problem during the 1960s illuminated several dimensions of the problem. In the Gary, Indiana, case of Bell v. School City of Gary, Ind. (324 F.2d 209, 1963), for example, residential segregation was pinpointed as a crucial variable, and when it was coupled with a “neighborhood school” policy, the resulting segregated schools were predictable. But Circuit Judge F. Ryan Duffy, speaking for a unanimous panel of the Seventh Circuit, would not accept the plaintiffs’ argument of school official responsibility for population shifts that affected the racial character of school attendance districts. There was no constitutional duty “to change innocently arrived-at school attendance districts.” When the Supreme Court denied certiorari, Bell became the legal support for northern-type de facto school segregation, although other circuits were not bound thereby. (See also Downs v. Kansas City, 336 F.2d 988, 10th Cir., 1964, and Deal v. Cincinnati Board of Education, 369 F.2d 55, 6th Cir., 1966. But note Hobson v. Hansen, 269 F. Supp. 407, 1967, in which Circuit Judge J. Skelly Wright of the District of Columbia Circuit, sitting in the D.C. district court pursuant to 23 U.S.C. § 291(c), made an expansive interpretation of Brown in an effort to dismantle de facto segregation in the District’s school system.) The de jure–de facto distinction finally came before the Supreme Court in Keyes v. School District No. 1, Denver, Colorado (413 U.S. 921) in 1973. Advancing the “segregative intent” test as the “differentiating factor between de jure and de facto segregation,” the Court asserted that a finding of intentional and purposeful segregation in a “meaningful portion of the school system” supported a finding that de jure

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segregation characterized the entire system. Because the school board could not prove that its policies and practices with respect to matters such as site location, attendance zones, assignment and transfer options for students, and assignment of faculty and staff, considered together with the neighborhood school policy, were not designed to create or maintain racially segregated inner-city schools, Justice Brennan concluded for the Court that de jure segregation existed and that there was no need to consider the de facto “neighborhood school policy.” In a concurring opinion, Justice Lewis Powell echoed the charges of many apologists of southern school systems. Powell noted that many northern school systems were as fully segregated as those of the South before the implementation of Brown. He charged that this northern system was being condoned under the “de facto–de jure distinction” and urged that it should be discarded and replaced with constitutional principles of national rather than merely regional application. Crucial to effective desegregation in most large metropolitan areas is the busing of large numbers of children from their own neighborhoods to other areas of the school district. But the possibility that such a remedy would be forced on school districts generated emotional rhetoric against “forced busing.”4 The antibusing rhetoric of the 1968 presidential campaign exacerbated the issue. Despite such campaign rhetoric and the subsequent condemnation of “forced busing” by President Nixon, the president’s newly appointed chief justice led the Court in approving busing as an acceptable remedy to dismantle de jure segregation within a specific district. In Swann v. Charlotte-Mecklenburg Board of Education (402 U.S. 1, 1971), Chief Justice Burger, speaking for a unanimous Court, made it clear that when there was a long history of school segregation and when school authorities had defaulted in their constitutional duty to produce an acceptable desegregation plan, lower federal courts possessed considerable discretion in fashioning equitable remedial relief. Consequently, the district court’s plan that included the limited use of mathematical ratios of black and white pupils, the pairing and grouping of noncontiguous school zones, and a system of bus transportation to implement the appropriate ratio of 4 For a comprehensive examination of the issue, see Gary Orfield, Must We Bus? Segregated Schools and National Policy (Washington, D.C.: The Brookings Institution, 1978).

races was a constitutionally acceptable means of dismantling the dual system. In approving the busing component of the district court’s order, the chief justice noted that the district had employed a bus transportation system for years and that the distances traveled and the amount of time required in the instant plan compared favorably with Charlotte’s previous transportation plan. But Burger’s language did provide some comfort to opponents of busing when he maintained that the continued existence of a few one-race or largely onerace schools within a district does not in and of itself constitute a violation of Brown. Presumably, extensive busing would be required to change the racial composition of a school. He further recognized that a valid objection to busing can be made when distance and travel time are so great that they constitute a health risk or “impinge significantly on the educational process.” In another busing decision (North Carolina State Board of Education v. Swann, 402 U.S. 43, 1971), the Court affirmed a lower court decision that had ruled a North Carolina antibusing law unconstitutional. The key part of the statute prohibited the assignment of pupils to schools on the basis of race, the “involuntary busing of students,” and the expenditure of public funds for such busing. Chief Justice Burger, speaking for a unanimous Court, made it clear that the statute could not stand because it limits a school authority’s discretion and could impede the dismantling of a dual segregated system. Such a policy, he concluded, “must give way when it operates to hinder vindication of federal constitutional guarantees.”5 Swann and its progeny hastened the flight to the suburbs of some whites who were opposed to busing for any number of reasons.6 But their concern that their children would be bused back to the inner cities from which they had fled was eased somewhat by the Burger Court’s stance on interdistrict busing. The 5 One year after its first busing decision, the Court’s line of unanimous school desegregation decisions was broken in Wright v. Emporia (407 U.S. 451, 1972). Nevertheless, the five-to-four majority struck down a city’s attempt to detach itself from a county school unit under a desegregation order and establish a separate district coterminous with the white residential area. See also United States v. Scotland Neck City Board of Education (407 U.S. 493, 1972). 6 Critics of school desegregation found support in Professor James Coleman’s controversial 1975 study, in which he concluded that busing for desegregation contributed significantly to the exodus of whites from big-city school systems (“Liberty and Equality in School Desegregation,” 6 Social Policy 9, January–February 1976).

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Nixon administration’s antibusing position was clearly evident in the votes of his appointees. The Court split four-to-four on the first interdistrict busing case that it was presented, in 1973, involving three districts in the Richmond, Virginia, metropolitan area.7 But it enunciated a policy one year later, in which all nine justices participated, when it decided Milliken v. Bradley (418 U.S. 717). In that case, a federal district court utilized the interdistrict busing remedy to dismantle racially segregated schools in the three-county Detroit metropolitan area, which embraced 53 school districts. The lower court reasoned that because of the residential patterns, the only effective remedy to eliminate segregated schools was a two-way busing arrangement between the central city and the suburbs. In short, the court concluded that a plan limited to Detroit would only produce an all-black city system surrounded by a number of all-white suburban systems. The Court of Appeals for the Sixth Circuit agreed with this conclusion and noted that the proposed interdistrict remedy could be fashioned because of the power that the state exercises in the control of local school districts. But, by a five-to-four vote (with Justice Potter Stewart joining the four Nixon appointees), the Supreme Court rejected such an expansive application of busing to effect remedial relief, emphasizing that there was no constitutional violation by the suburban districts. The chief justice held, however, that interdistrict busing was a permissible remedy where discriminatory acts in one district produced discrimination in the other or where there was collusive action in the gerrymandering of the districts that were involved. Justice Thurgood Marshall, who was chief counsel for the petitioners in Brown, expressed his outrage at the majority position in a sharp dissent. Characterizing the ruling as an “emasculation of our constitutional guarantee of equal protection of the laws,” Marshall complained that the decision effectively denied black children in inner-city schools in large metropolitan areas any remedy to enforce their constitutional rights as declared in Brown. 7 In Bradley v. School Board of the City of Richmond (388 F. Supp. 67, 1972), Federal District Judge Robert Mehrige found that the undesirable racial imbalance of the Richmond and two adjoining suburban districts stemmed partly from invidious state action. He ordered the consolidation of the three districts and extensive two-way busing between the city and the suburban counties.

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Notwithstanding Milliken, busing was still a remedy that could be employed to correct a violation of Brown, even when it involved central city–suburban arrangements. This was underscored when, in Newberry Area Council v. Board of Education of Jefferson County, Kentucky (510 F.2d 1358, cert. denied, 421 U.S. 931, 1975), the Supreme Court refused to overturn a metropolitan desegregation plan ordered by lower federal courts that embraced the city of Louisville, Kentucky, and its surrounding suburban area. But this and a number of other postSwann intradistrict busing orders only heightened opposition to desegregation efforts in which the reassignment of pupils (and their transportation by bus) was an essential ingredient of the plan. From Pontiac, Michigan, to Boston, to Dayton and Columbus, Ohio, to Los Angeles, the cry was the same—“no forced busing” of children from their neighborhoods. Some of the opposition came from black parents, whose children were disproportionately likely to be moved from one locale to another. But the Supreme Court refused to deny lower courts the busing remedy in fashioning relief for situations in which school systems were adjudged to be in violation of Brown. In both the Columbus and Dayton, Ohio, cases of 1979 (Columbus Board of Education v. Penick, 443 U.S. 449, and Dayton Board of Education v. Brickman II, 443 U.S. 526),8 the Supreme Court affirmed rulings of the Court of Appeals for the Sixth Circuit ordering systemwide desegregation. In both cases, the Court found that the respective boards had intentionally operated racially segregated schools on a systemwide basis prior to and after Brown. Subsequent actions to dismantle these segregated systems involved busing significant numbers of students. The Court also concluded that the foreseeable consequence standard was constitutionally permissible to establish segregated intent. Many members of Congress (some of whom had helped to enact the stringent “funds cutoff” desegregation enforcement provision in the 1964 Civil Rights Act) were not so insistent on the implementation of that provision as it hit close to home. When, for example, HEW deferred payment of 8 In an earlier ruling in the Dayton controversy (Dayton Board of Education v. Brickman I, 443 U.S. 406, 1977), the Court set aside a systemwide plan because the lower court’s general finding of “cumulative violations” was not sufficient to support the scope of the remedy. On remand, a more particularized finding of particular segregative acts was required.

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some $32 million of federal funds to the Chicago school system in 1965, pending an investigation of charges that the system was not operating in compliance with Brown, a number of prominent Illinois members of Congress, who had given crucial support in passing the 1964 legislation to enforce Brown, reassessed their positions. Thereafter, attempts to restrict HEW’s enforcement authority increased in the Congress. Amendments to federal aid-to-education proposals that were designed to weaken or curtail the federal effort to enforce compliance with Brown appeared regularly.9 After President Nixon’s election in 1968 and the Swann decision in 1971, congressional efforts to curb busing as a remedy for school desegregation intensified. Much of this effort was directed toward legislating restrictions on busing in the design of desegregation remedies. But most of such proposals were of dubious constitutionality and, they were although popular among many members, none emerged from the Congress until July 1974 (Title II of the 1974 Elementary and Secondary Education Act Amendments). The antibusing provisions incorporated in that massive aid-to-education act of 1974 were so watered down from the intense debate in Congress when President Ford (who found the act awaiting his action when he suddenly became president upon the resignation of President Nixon) signed the measure, he expressed dissatisfaction with the weak antibusing provisions.10 Efforts to curb busing as a desegregation remedy continued during the Carter administration. The antibusing forces in Congress were finally successful in attaching an antibusing provision as a rider to the 1981 appropriations measure for the Commerce, Justice, and State Departments in the final days of the 96th Congress. The essential thrust of the measure was directed at the Justice Department and prohibited

9 For an excellent summary of those efforts, see Gary Orfield, “Congress, the President, and Antibusing Legislation,” 7 Journal of Law and Education 81 (January 1975). 10 The act prohibits the busing of students beyond the school that is “next closest” to their residence, busing that poses a health risk, and busing that impinges significantly “on the educational process” of students. The act includes a provision which specifies that nothing in the measure is intended “to modify or diminish the authority of the courts ... to enforce fully the Fifth and Fourteenth Amendments....” Some people believed that this act gave courts a green light to order extensive busing simply on a finding that there was no other remedy to protect the constitutional rights involved. See U.S.C., 1975 Supp., Title 20, secs. 1701(6b) and 1714.

it from bringing desegregation actions against local school districts when busing was included as a remedy. Just five weeks before he left office, however, President Carter vetoed the measure because he believed that it would set a dangerous precedent for congressional incursions into the domain of executive law enforcement responsibilities. Congressional antibusing efforts continued during the Reagan administration, and each chamber of Congress passed separate measures that were designed to curb the use of the busing remedy. Some of them would have denied the use of federal money to support any busing dimension of a desegregation plan. Others would have prohibited the Department of Justice from participating in cases in which the busing remedy would be used to effect relief. The last major effort to get Congress to ban busing for school desegregation purposes was undertaken by Senator Jesse Helms (R-N.C.) during President Reagan’s second term. After his antibusing bill was killed in committee in 1986 (S. 37), Helms attempted to accomplish his objective with an amendment to the Higher Education Act of 1986. Like many earlier efforts, it was a court-curbing measure. Its key provision would have prohibited federal courts from mandating busing plans that would require travel in excess of 10 miles round-trip. The Senate rejected the amendment, as it had rejected the earlier efforts.11 Antibusing rhetoric and efforts also intensified in the executive branch during the Reagan administration, as the president moved to accomplish a major objective of many of his supporters. Working through the assistant attorney general charged with the enforcement of civil rights laws (W. Bradford Reynolds), the administration emphasized a “new leniency” in the enforcement of Brown. Compliance litigation was shunted aside for voluntary measures that were adopted in negotiated consent decrees. Stressing the use of the magnet-school concept to attain an acceptable racial mix, these decrees almost always relegated mandatory busing to a remedy of last resort. (See United States v. Chicago Board of Education, 88 F.R.D. 679, 1981). 11 Senator Lowell Weicker (R-Conn.) led a successful filibuster against another 1986 antibusing effort in the Senate, which attempted to attach an amendment to the Health and Human Services funding bill for fiscal year 1987 that would have denied use of federal funds for the involuntary busing of pupils and/or teachers to implement a desegregation plan.

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The Reagan administration’s antibusing effort was also directed at the modification and/or withdrawal of existing busing mandates. In 1982, for example, for the first time since busing was approved as a desegregation remedy in Swann, the Department of Justice petitioned lower federal courts to stop the busing plan that was in effect in East Baton Rouge Parish, Louisiana, and Nashville, Tennessee. In neither instance did the courts grant the request, and the Supreme Court refused to review the Nashville case when the Justice Department sought to use the appeal to reexamine Swann. See Metropolitan County Board of Education of Nashville v. Kelley (103 S. Ct. 834, 1983). Another strategy of antibusing forces was to use the popular initiative and referendum to impose busing restrictions. But such efforts had mixed results. In Washington v. Seattle School District No. 1 (458 U.S. 457, 1982), for example, a popularly adopted statute prohibiting the assignment of pupils to schools outside their neighborhood was struck down as a violation of the equal protection clause of the Fourteenth Amendment. The statute allowed exceptions for assignment of pupils outside the neighborhood for any number of purposes, but singled out racial desegregation as a “prohibited” purpose. Speaking for the five-to-four majority, Justice Harry Blackmun contended that this was at odds with Hunter v. Erickson, infra, because it structured a “decision-making process” where subsequent “state action placed special burdens on racial minorities.” On the same day, however, the Court did not find a California busing policy so flawed in Crawford v. Board of Education of City of Los Angeles (458 U.S. 527, 1982). The constitutional provision, which was adopted through the popular initiative process, limited the remedial power of state courts in mandating busing for the implementation of desegregation to situations in which federal courts would be required to use the busing remedy to correct a Fourteenth Amendment violation. The Court noted that in this case, unlike the Seattle case, the people had, in their initiative, decided that it was more appropriate for state courts to apply the standards demanded by the Fourteenth Amendment to effect school desegregation than to apply the exacting standards of the state constitution. Justice Lewis Powell, who spoke for the eight-to-one majority, agreed with the lower court finding that there was no “discriminatory intent.” Rather, the provision was adopted to advance “legitimate nondiscriminatory objectives.” 472

After 2 decades of federal court supervision of the process of dismantling the racially based dual public school systems, some districts sought to terminate that scrutiny on the ground that they were now operating unitary systems in full compliance with Brown. Many proponents of desegregation were wary of such termination efforts, fearing that without court supervision some districts would pursue policies that could lead to the resegregation of the schools. But in Pasadena City Board of Education v. Spangler (427 U.S. 424, 1976), the Court took a step in the direction of terminating such judicial supervision. Justice Rehnquist asserted for the six-to-two majority that “once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system,” school governing boards are not required to make annual adjustments in the racial composition of student bodies caused by demographic fluctuation. Noting that in this case school authorities had implemented the district court’s order to obtain racial neutrality with respect to attendance, the Court ruled that the district court could not require school authorities to make a year-by-year adjustment of its attendance zones. Three years later, the district court completely relinquished authority over the school board. Efforts to terminate federal court supervision met with mixed results in other jurisdictions around the country. Following the views enunciated in Pasadena, the Court of Appeals for the Fourth Circuit made it clear in Riddick v. School Board of City of Norfolk (784 F.2d 521, 1986) that after a desegregation plan achieves its objective of dismantling a segregated system and attaining a unitary one, the district court’s role ends. The Court stressed, however, that such a finding does not bar any future court intervention when there is evidence of intentional actions by school authorities that lead to resegregation.

FROM AFFIRMATIVE DUTY TO GOOD FAITH STANDARD FEATURED CASES

Board of Education of Oklahoma City Public Schools v. Dowell; Parents Involved in Community Schools v. Seattle School District No. 1 The Rehnquist Court continued to countenance the move away from the judicial supervision of school district desegregation efforts after they have attained

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a unitary status, even when such districts continue to maintain a number of one-race schools because of a variety of demographic factors. In Board of Education of Oklahoma City Public Schools v. Dowell (498 U.S. 237, 1991), for example, Chief Justice Rehnquist emphasized the value of local participation in school governance in schools that were no longer vestiges of state-imposed segregation policies. Asserting that “school desegregation decrees are not intended to operate in perpetuity,” the chief justice supported the dissolution of a desegregation decree after a district had “operated in compliance with it for a reasonable period of time.” For him, the “reasonable period of time” was the period that was required to remedy the effects of the past state-imposed segregation policies. In the end, the chief justice provided some guidance to lower courts in future termination actions: “In considering whether the vestiges of de jure segregation had been eliminated as far as practicable, the District Court should look not only at student assignments, but to every facet of school operations—faculty, staff, transportation, extra-curricular activities and facilities. . . .” In a sharp dissent, Justice Thurgood Marshall, joined by Justices Blackmun and Stevens, complained that the majority had departed from the central aim of the Court’s desegregation jurisprudence—the elimination of racially segregated schools and the prevention of their recurrence. Arguing that desegregation decrees should not be lifted “so long as conditions likely to inflict the stigmatic injury condemned in Brown I persist,” Marshall objected to the majority’s acceptance of some one-race schools and underscored the availability of “feasible steps” that could be used “to avoid one-race schools.” As the leading architect of the attack on school segregation when he served as chief counsel for the Legal Defense and Education Fund of the NAACP, Marshall underscored his dismay regarding the Court’s action when he asserted: “The practical question now before us is whether, thirteen years after [the Oklahoma City School Board was directed to eliminate its dual segregated system], the same . . . Board should have been allowed to return many of its elementary schools to their former one-race status. The majority today suggests that thirteen years of desegregation was enough.”

In the end, Marshall was concerned that the majority did not provide the guidance that district courts needed in order to deal with the vestiges of past de jure segregation.

The termination of the judicial superintendence of school board desegregation became the school issue of the 1990s, as evidenced by the Court’s return to it in the term following its Dowell ruling in the context of Freeman v. Pitts (112 S. Ct. 1430, 1992). In that case, eight of the justices (not including Justice Thomas, who did not participate because he had not yet been confirmed when oral arguments were heard) agreed that lower courts could terminate their supervision of school desegregation efforts, but there was considerable disagreement on “timing,” that is, whether court supervision could be terminated in one category (e.g., student assignments) and continued in another (e.g., faculty assignments). In addition, the justices were sharply divided on whether full judicial superintendence should be maintained until every facet of school operation has been desegregated. Justice Kennedy, whose opinion was supported by Chief Justice Rehnquist and Justices White, Scalia, and Souter, took the position that the lower courts may disengage from supervision in some areas of school operations while they continue surveillance in others. But Justice Scalia believed the withdrawal of court superintendence should be accelerated after there was no longer intentional discrimination in the operation of a school system. Such a standard could certainly launch a massive return to the old “neighborhood school” model, reflecting the segregated housing patterns in much of the county. But Justices Blackmun, Stevens, and O’Connor cautioned that the district courts should be required to undertake a searching examination of a school board’s full array of actions to determine whether they have in any way contributed to continued segregation. The kinds of reservations raised in these concurrences seemed certain to spawn another “generation of litigation” before the objective of Brown is fully realized. While the Court was grappling with the “termination of judicial superintendents” of desegregation efforts, it was confronted with the troubling issue of financing their implementation in Missouri v. Jenkins I (95 U.S. 33, 1990) and II (515 U.S. 70, 1995). Increasingly, some school boards refused to commit their declining revenues to meet the cost associated with desegregation initiatives. In Jenkins I, by a fiveto-four majority of the Court, the justices prohibited school boards from escaping their constitutional obligations under Brown by arguing that they had insufficient fiscal capacity to implement the desegregative remedies. Upholding the power of a district The Rocky Road of School Desegregation

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court judge to require Kansas City, Missouri, school authorities to increase the property tax levy to apply for its magnet school desegregation effort, the Court stressed that judges do not possess the power to impose taxation. The Court did add, however, that restrictive state policies on the taxing powers that may inhibit school authorities in their efforts to comply with federal constitutional requirements in the school desegregation process may be modified or set aside to the extent required to meet the constitutional obligation. In Jenkins II, a five-to-four majority refused to sustain the district court’s order that increased salary for virtually all instructional and noninstructional staff within the Kansas City, Missouri, School District (KCMSD) and the order that required Missouri to continue to fund remedial “quality education” programs because student achievement levels were still “at or below national norms at many grade levels.” Speaking for the majority, Chief Justice Rehnquist argued that the proper analysis: “must rest upon [the orders] serving as proper means to the end of restoring the victims of discriminatory conduct to the position they would have occupied in the absence of that conduct and their eventual restoration of ‘state and local authorities to the control of a school system that is operating in compliance with the Constitution.’”

Insisting that the district court judge’s remedial plan was not designed solely to redistribute the students within the KCMSD in order to eliminate racially identifiable schools within that district, the Court held that the remedial order was intended to attract nonminority students from outside the KCMSD schools. Interdistrict goals did not survive Milliken I. The order requiring continued state funding “quality education” programs was remanded to the district court. Rehnquist’s instructions required the district court to “decide whether the reduction in achievement by minority students attributable to prior de jure segregation has been remedial to the extent practicable.” The three-part test from Freeman v. Pitts was to be applied. As America navigated the first decade of the twenty-first century, resegregation in public schools claimed the attention of school officials. The trend coincided with the relinquishment of judicial school districts; the reduction in the political will to work toward racial diversity; the shift among African Americans from integration toward improving the 474

delivery of education in urban communities; and the change in the judicial standard from affirmative duty to the good faith test. School officials, in several districts, decided to counteract resegregation and the erosion of integration gains in previous decades. These districts concluded that strictly voluntary approaches would neither stop resegregation nor prevent the erosion of various gains in racial diversity. School districts in Seattle, Washington, and Jefferson County, Kentucky, voluntarily adopted racially based student assignments to foster diversity in their public schools. The two plans became the center of litigation that eventually reached the Supreme Court. At issue in Parents Involved in Community Schools v. Seattle School District No. 1 was whether a public school district that had not operated legally segregated schools or been found to be unitary may choose to classify students by race and rely on that classification when assigning students to schools. A sharply divided Court concluded that the school districts had used racial classifications in controvention of the Fourteenth Amendment. Writing for the Court, Chief Justice Roberts argued that the strict scrutiny standard is required “when the government distributes burdens or benefits on the basis of individual racial classifications.” Roberts noted that prior cases of the Supreme Court recognized two interests that qualify as compelling: (1) the interest in remedying the effects of past intentional discrimination, and (2) the interest in promoting diversity. In terms of the first interest, Chief Justice Roberts argued, “Seattle public schools have not shown that they were ever segregated by law, and were not subject to court-ordered desegregation decree.” Roberts noted, however, that “the Jefferson County schools were previously segregated by law and subject to a desegregation decree. . . .” He stated that Seattle “does not rely upon an interest in remedying the effects of past intentional discrimination in defending its present use and race in assigning students.” Roberts contended that “the harm being remedied by mandatory desegregation plans is the harm that is traceable to segregation” and that “the Constitution is not violated by racial imbalance in the schools, without more.” In effect, Chief Justice Roberts limited the interest in diversity to higher education in Grutter v. Bollinger (539 U.S. 306, 2003). He argued that the “specific interest found compelling in Grutter was student body diversity ‘in the context of higher education.’” Moreover, he advanced the position that the “diversity

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interest was not focused on race alone but encompassed ‘all factors that may contribute to student body diversity.’” Chief Justice Roberts rejected racial balance as a compelling interest: “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’” Roberts concluded that the districts failed to demonstrate that methods other than explicit racial classifications were used to achieve their stated goal. He commented that “narrow tailoring requires ‘serious, good faith consideration of workable raceneutral alternatives.’” Chief Justice Roberts would have prohibited all racial classification. He contended that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In a concurring opinion, Justice Thomas likened the dissenters’ desire to “give school boards a free hand to make decisions” to “the segregationists in Brown v. Board of Education. This approach is just as wrong today as it was a half-century ago.” Thomas argued that the dissenters were confused. He said, “[r]acial imbalance is not segregation, and the mere incantation of terms like re-segregation and remediation cannot make up the difference.” Thomas defined segregation as the “deliberate operation of a school system to ‘carry out a government policy to segregate pupils solely on the basis of race,’ . . . segregation was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.” Justice Thomas linked racial imbalance to the: “failure of a school district’s individual schools to match or approximate the demographic make-up of the student population at large. Racial imbalance is not segregation. Although presently observed racial imbalance might result from past de jure segregation, racial imbalance can also result from any number of innocent private decisions in voluntary housing choices. Because racial imbalance is not inevitably linked to unconstitutional segregation, it is not unconstitutional in and of itself. . . . [The statistics in Seattle and Louisville showed] a national trend towards classroom racial imbalance. However racial imbalance without intentional state action does not amount to segregation. To raise the specter of resegregation to defend these programs is to ignore the meaning of the word and the nature of the cases before us. . . . neither the Seattle nor the Louisville student assignment plan qualifies as a permissible racebased remedial measure. Thus, the programs are subject to the general rule that government racebased decision-making is unconstitutional. . . . [S]uch race-based decision-making is unconstitutional.”

Justice Kennedy concurred and dissented in part. Kennedy disagreed with the plurality on the issue of diversity constituting a compelling interest. The plurality limits the diversity interest to higher education. Kennedy argued: “Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue.” He suggested that neither the Seattle nor the Jefferson County student assignment plans were narrowly tailored. He also characterized parts of the opinion by Chief Justice Roberts as “an all-too unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account.” Kennedy’s opinion was very sensitive to race in the history of America. He referred to the nation’s “[f]ifty years of experience since Brown v. Board of Education” and used that experience to argue that the problem of race “defies so easy a solution. School districts can seek to reach Brown’s objective of equal educational opportunity.” He departed from the opinion of the plurality to the “extent [that the opinion] suggests the Constitution mandates that state and local school authorities must accept the status quo racial isolation in schools, . . .” Kennedy placed Harlan’s “our Constitution is colorblind” in social and historical context. He observed that Plessy “was a grievous error it took far too long to overrule.” Justice Kennedy insisted that in the real world, Harlan’s axiom “cannot be a universal constitutional principle.” For him, school officials could “consider the racial make-up of schools and to adopt general policies to encourage a diverse student body.” The dissenting opinion of Justice Stevens termed Chief Justice Roberts’s opinion a cruel irony. Stevens took issue with Roberts’ contention that before “Brown school children were told where they could and could not go to school based on the color of their skin.” Justice Stevens suggested that the Chief Justice “fails to note that it was only black school children who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools.” Stevens accused Chief Justice Roberts of rewriting “the history of one of this Court’s most important decisions.” He implied that Chief Justice Roberts’ opinion was not entirely loyal to Brown. Stevens also argued that, of Brown and Adarand, the Court was “. . . more faithful to Brown and more respectful of our precedent than it is today. It is my firm conviction that no member of the Court that I joined in 1975 would have agreed with today’s decision.” The Rocky Road of School Desegregation

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Justice Breyer framed the controversy as the: “longstanding efforts of two local school boards to integrate their schools . . . All those plans represent local efforts to bring about the kind of racially integrated education Brown v. Board of Education, . . . long ago promised – efforts that this Court has repeatedly required, permitted, and encouraged local authorities to undertake.”

Breyer claimed that the “plurality pays inadequate attention to this law, to past opinions’ rationales, their languages and the context in which they arise. As a result, it reverses course and reaches the wrong conclusions.” He maintained that the plurality “distorts precedent,” “misapplies the relevant constitutional principles,” “announces legal rules that will obstruct efforts by state and local [officials] to deal effectively with the growing resegregation of public schools,” “threatens to substitute for present calm a disruptive round of race-related litigation,” and “undermines Brown’s promise of integrated primary and secondary education that local communities have sought to make a reality.” Breyer championed the integration judgment and role of local communities. He pointed to the various race-conscious plans that local officials have crafted with “greater racial integration of public schools.” Breyer placed the Seattle and Louisville schools districts among the “myriad school districts operating in myriad circumstances [that] have devised myriad plans, often with raceconscious elements, all for the sake of eradicating earlier school segregation, bringing about integration, or preventing retrogression.” Justice Breyer highlighted what he considered to be three important features of the cases from Seattle and Louisville districts: (1) the districts’ plans served compelling interests and were narrowly tailored, (2) the plurality’s distinction between de jure segregation and de factor segregation was meaningless in the present context, and (3) the Constitution does not rule out categorically real-world efforts to substitute racially diverse schools for racially segregated schools by local officials that are race-conscious of the race of individuals. Breyer traced the history of segregation and efforts to integrate the Seattle and Louisville school districts. He argued that Swann articulated the principle that “the government may voluntarily adopt race-conscious measures to improve conditions of race even when it is not under a constitutional obligation to do so.” Justice Breyer alleged that such a “principle has been accepted by every branch of government and is rooted in the history of the Equal 476

Protection Clause itself.” He argued that the interest to promote or pressure greater racial integration of public schools constitutes a compelling interest. Breyer identified three essential elements in the racial diversity interests: (1) the historical and remedial interest sets right the consequences of prior conditions of segregation, (2) the education interests seeks to overcome the adverse educational effects produced by and associated with highly segregated schools, and (3) the democratic interest produces an educational environment that reflects the pluralist society in which our children live. Breyer contended that these three factors indicated the use of race-conscious plans criteria from the two school districts and that they “pass even the strictest ‘tailoring’ test.” First, the race-conscious criterion helps set the outer bound of broad ranges. The broad-range limits on voluntary school choice are less burdensome than other race-conscious restrictions approved previously by the Supreme Court. Finally, the plan reflects narrow tailoring in several respects: (1) the plans were devised to overcome a history of segregated public schools, (2) the plans embody the results of local experiences and community consultation, (3) the plans were produced by a process that sought to enhance student choices, and (4) the plans’ use of race-conscious elements is diminished relative to the use of race in preceding integration plans. In conclusion, Justice Breyer insisted that the plurality opinion threatens the hope of Brown. He asked: “What of the hope and promise of Brown?” Breyer argued that Brown was the Court’s finest hour. For Breyer, Brown challenged the history of segregated drinking foundations, buses, and schools and helped to change that history: “[Brown] was the promise of true racial equality— not as a matter of fine words on paper, but as a matter of everyday life in the nation’s cities and schools. [Brown] was about the nature of a democracy that must work for all Americans. [Brown] sought one law, one nation, one people, not simply as a matter of legal principle but in terms of how we actually live.”

He further concluded that Parents Involved in Community Schools threatened the promise of Brown. In Parents Involved in Community Schools v. Seattle School District No. 1, the justices re-argued the meaning of Brown v. Board of Education. The plurality insisted that Brown stood for anticlassification. The anticlassification view assumes that race

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should not be used by government to overtly or surreptitiously classify citizens. The dissenters asserted that Brown supported the antisubordination principle. The resegregation of school districts fosters the disadvantaged status of racial minorities rooted in the history of America. Justice Kennedy, concurring and dissenting in part opinion, took a middle ground.

Kennedy refused to support the contention that Brown forbids all efforts of racial classification to bring about racial diversity on a voluntary basis. He noted the gap between the ideals and the reality of equality in America. Kennedy, thus, did not foreclose every racially based effort to elevate the status of racial groups through racial diversity.

BOARD OF EDUCATION OF OKLAHOMA CITY PUBLIC SCHOOLS V. DOWELL 498 U.S. 237; 112 L. Ed. 2d 715; 111 S. Ct. 630 (1991)

I

using neighborhood zoning failed to remedy past segregation because residential segregation resulted in one-race schools. Residential segregation had once been state imposed, and it lingered due to discrimination by some realtors and financial institutions. The District Court found that school segregation had caused some housing segregation. In 1972, finding that previous efforts had not been successful at eliminating state-imposed segregation, the District Court ordered the Board to adopt . . . [a desegregation plan] under which kindergartners would be assigned to neighborhood schools unless their parents opted otherwise; children in grades 1–4 would attend formerly all white schools, and thus black children would be bused to those schools; children in grade five would attend formerly black schools, and thus white children would be bused to those schools; students in the upper grades would be bused to various areas in order to maintain integrated schools; and in integrated neighborhoods there would be standalone schools for all grades. In 1977, after complying with the desegregation decree for five years, . . . [t]he District Court [granted the Board’s motion terminating its jurisdiction, noting]:

In 1961 . . . black students and their parents sued . . . the Board of Education of Oklahoma City (Board), to end de jure segregation in the public schools. In 1963, the District Court found that Oklahoma City had intentionally segregated both schools and housing in the past, and that Oklahoma City was operating a “dual” school system—one that was intentionally segregated by race. In 1965, the District Court found that the School Board’s attempt to desegregate by

The Court has concluded that [the desegregation plan] worked and that substantial compliance with the constitutional requirements has been achieved. The Court does not foresee that the termination of its jurisdiction will result in the dismantlement of the Plan or any affirmative action by the defendant to undermine the unitary system so slowly and painfully accomplished over the sixteen years during which the cause has been pending before this court. . . .

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court, in which JUSTICES WHITE, O’CONNOR, SCALIA, and KENNEDY joined. JUSTICE MARSHALL filed a dissenting opinion, in which JUSTICES BLACKMUN and STEVENS joined. JUSTICE SOUTER took no part in the consideration or decision of the case. CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. Petitioner Board of Education of Oklahoma City sought dissolution of a decree entered by the District Court imposing a school desegregation plan. The District Court granted relief over the objection of respondents. The Court of Appeals reversed, holding that the Board would be entitled to such relief only upon “‘[n]othing less than a clear showing of grievous wrong evoked by new and unforeseen conditions. . . .’” We hold that the Court of Appeals’ test is more stringent than is required either by our cases dealing with injunctions or by the Equal Protection Clause of the Fourteenth Amendment. . . .

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. . . The School Board, as now constituted, has manifested the desire and intent to follow the law. The court believes that the present members and their successors on the Board will now and in the future continue to follow the constitutional desegregation requirements. “Now . . . , the Board is entitled to pursue in good faith its legitimate policies without the continuing constitutional supervision of this Court.”. . . In 1984, the School Board faced demographic changes that led to greater burdens on young black children. As more and more neighborhoods became integrated, more stand-alone schools were established, and young black students had to be bused further from their inner-city houses to outlying white areas. In an effort to alleviate this burden and to increase parental involvement, the Board adopted the Student Reassignment Plan (SRP). Any student could transfer from a school where he or she was in the majority to a school where he or she would be in the minority. Faculty and staff integration was retained, and an “equity officer” was appointed. In 1985, respondents filed a “Motion to Reopen the Case,” contending that the School District had not achieved “unitary” status and that the SRP was a return to segregation. Under the SRP, eleven of sixty-four elementary schools would be greater than 90 percent black, twenty-two would be greater than 90 percent white plus other minorities, and thirtyone would be racially mixed. The District Court refused to reopen the case, holding that its 1977 finding of unitariness was res judicata as to those who were then parties to the action, and that the district remained unitary. The District Court found that the School Board, administration, faculty, support staff, and student body were integrated, and transportation, extracurricular activities, and facilities within the district were equal and nondiscriminatory. Because unitariness had been achieved, the District Court concluded that court-ordered desegregation must end. The Court of Appeals for the Tenth Circuit reversed. It held that, while the 1977 order finding the district unitary was binding on the parties, nothing in that order indicated that the 1972 injunction itself was terminated. The court reasoned that the finding that the system was unitary merely ended the District Court’s active supervision of the case, and because the school district was still subject to the desegregation decree, respondents could challenge the SRP. The case was remanded to determine whether the decree should be lifted or modified. 478

On remand, the District Court found that demographic changes made the . . . Plan unworkable, that the Board had done nothing for twenty-five years to promote residential segregation, and that the school district had bused students for more than a decade in good-faith compliance with the court’s orders. The District Court found that present residential segregation was the result of private decisionmaking and economics, and that it was too attenuated to be a vestige of former school segregation. It also found that the district had maintained its unitary status, and that the neighborhood assignment plan was not designed with discriminatory intent. The court concluded that the previous injunctive decree should be vacated and the school district returned to local control. The Court of Appeals again reversed, holding that “‘an injunction takes on a life of its own and becomes an edict quite independent of the law it is meant to effectuate.’” That court approached the case “not so much as one dealing with desegregation, but as one dealing with the proper application of the federal law on injunctive remedies.” Relying on United States v. Swift & Co. (1932), it held that a desegregation decree remains in effect until a school district can show “grievous wrong evoked by new and unforeseen conditions,” and “dramatic changes in conditions unforeseen at the time of the decree that . . . impose extreme and unexpectedly oppressive hardships on the obligor.” Given that a number of schools would return to being primarily one-race schools under the SRP, circumstances in Oklahoma City had not changed enough to justify modification of the decree. The Court of Appeals held that, despite the unitary finding, the Board had the “‘affirmative duty . . . not to take any action that would impede the process of disestablishing the dual system and its effects.’” We granted the Board’s petition for certiorari, to resolve a conflict between the standard laid down by the Court of Appeals in this case and that laid down in Spangler v. Pasadena City Board of Education, and Riddick v. School Bd. of City of Norfolk. We now reverse the Court of Appeals. II We must first consider whether respondents may contest the District Court’s 1987 order dissolving the injunction which had imposed the desegregation decree. Respondents did not appeal from the District Court’s 1977 order finding that the school system had achieved unitary status, and petitioners contend that the 1977 order bars respondents from contesting

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the 1987 order. We disagree, for the 1977 order did not dissolve the desegregation decree, and the District Court’s unitariness finding was too ambiguous to bar respondents from challenging later action by the Board. The lower courts have been inconsistent in their use of the term “unitary.”. . . We think it is a mistake to treat words such as “dual” and “unitary” as if they were actually found in the Constitution. The constitutional command of the Fourteenth Amendment is that “[n]o State shall . . . deny to any person . . . the equal protection of the laws.” Courts have used the terms “dual” to denote a school system which has engaged in intentional segregation of students by race, and “unitary” to describe a school system which has been brought into compliance with the command of the Constitution. We are not sure how useful it is to define these terms more precisely, or to create subclasses within them. But there is no doubt that the differences in usage described above do exist. The District Court’s 1977 order is unclear with respect to what it meant by unitary and the necessary result of that finding. We therefore decline to overturn the conclusion of the Court of Appeals that while the 1977 order of the District Court did bind the parties as to the unitary character of the district, it did not finally terminate the Oklahoma City school litigation. In Pasadena City Bd. of Education v. Spangler (1976), we held that a school board is entitled to a rather precise statement of its obligations under a desegregation decree. If such a decree is to be terminated or dissolved, respondents as well as the school board are entitled to a like statement from the court. ... III ... . . . In the present case, a finding by the District Court that the Oklahoma City School District was being operated in compliance with the commands of the Equal Protection Clause of the Fourteenth Amendment, and that it was unlikely that the school board would return to its former ways, would be a finding that the purposes of the desegregation litigation had been fully achieved. No additional showing of “grievous wrong evoked by new and unforeseen conditions” is required of the school board. . . . . . . From the very first, federal supervision of local school systems was intended as a temporary measure to remedy past discrimination. Brown considered the

“complexities arising from the transition to a system of public education freed of racial discrimination” holding that the implementation of desegregation was to proceed “with all deliberate speed.”. . . . . . [School desegregation decrees] are not intended to operate in perpetuity. Local control over the education of children allows citizens to participate in decisionmaking, and allows innovation so that school programs can fit local needs. The legal justification for displacement of local authority by an injunctive decree in a school desegregation case is a violation of the Constitution by the local authorities. Dissolving a desegregation decree after the local authorities have operated in compliance with it for a reasonable period of time properly recognizes that “necessary concern for the important values of local control of public school systems dictates that a federal court’s regulatory control of such systems not extend beyond the time required to remedy the effects of past intentional discrimination. . . .” . . . [I]n deciding whether to modify or dissolve a desegregation decree, a school board’s compliance with previous court orders is obviously relevant. . . . . . . [T]he [Oklahoma City School] Board complied with the decree in good faith until 1985. Not only do the personnel of school boards change over time, but the same passage of time enables the District Court to observe the good faith of the school board in complying with the decree. The test espoused by the Court of Appeals would condemn a school district, once governed by a board which intentionally discriminated, to judicial tutelage for the indefinite future. Neither the principles governing the entry and dissolution of injunctive decrees, nor the commands of the Equal Protection Clause of the Fourteenth Amendment, require any such Draconian result. . . . [W]e think that the preferable course is to remand the case to that court so that it may decide, in accordance with this opinion, whether the Board made a sufficient showing of constitutional compliance as of 1985, when the SRP was adopted, to allow the injunction to be dissolved. The District Court should address itself to whether the Board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination had been eliminated to the extent practicable. . . . In considering whether the vestiges of de jure segregation had been eliminated as far as practicable, the District Court should look not only at student assignments, but “to every facet of school operaThe Rocky Road of School Desegregation

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tions—faculty, staff, transportation, extra-curricular activities and facilities.”. . . After the District Court decides whether the Board was entitled to have the decree terminated, it should proceed to decide respondent’s challenge to the SRP. A school district which has been released from a injunction imposing a desegregation plan no longer requires court authorization for the promulgation of policies and rules regulating matters such as assignment of students and the like, but it of course remains subject to the mandate of the Equal Protection Clause of the Fourteenth Amendment. If the Board was entitled to have the decree terminated as of 1985, the District Court would then evaluate the Board’s decision to implement the SRP under appropriate equal protection principles. The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered. [JUSTICE SOUTER took no part in the consideration or decision of this case.] JUSTICE MARSHALL, joined by JUSTICES BLACKMUN and STEVENS, dissenting: . . . The practical question now before us is whether, thirteen years after [a desegregation] injunction was imposed, the same School Board should have been allowed to return many of its elementary schools to their former one-race status. The majority today suggests that thirteen years of desegregation was enough. The Court remands the case for further evaluation of whether the purposes of the injunctive decree were achieved sufficient to justify the decree’s dissolution. However, the inquiry it commends to the District Court fails to recognize explicitly the threatened reemergence of one-race schools as a relevant “vestige” of de jure segregation. In my view, the standard for dissolution of a school desegregation decree must reflect the central aim of our school desegregation precedents. In Brown v. Board of Education, a unanimous Court declared that racially “[s]eparate educational facilities are inherently unequal.”. . . Remedying this evil and preventing its recurrence were the motivations animating our requirement that formerly de jure segregated school districts take all feasible steps as racially identifiable schools. 480

I believe a desegregation decree cannot be lifted so long as conditions likely to inflict the stigmatic injury condemned in Brown I persist and there remain feasible methods of eliminating such conditions. Because the record here shows, and the Court of Appeals found, that feasible steps could be taken to avoid one-race schools, it is clear that the purposes of the decree have not yet been achieved and the Court of Appeals’ reinstatement of the decree should be affirmed. I therefore dissent. ... II I agree with the majority that the proper standard for determining whether a school desegregation decree should be dissolved is whether the purposes of the desegregation litigation, as incorporated in the decree, have been fully achieved. . . . I strongly disagree with the majority, however, on what must be shown to demonstrate that a decree’s purposes have been fully realized. In my view, a standard for dissolution of a desegregation decree must take into account the unique harm associated with a system of racially identifiable schools and must expressly demand the elimination of such schools. Our pointed focus in Brown I upon the stigmatic injury caused by segregated schools explains our unflagging insistence that formerly de jure segregated school districts extinguish all vestiges of school segregation. The concept of stigma also gives us guidance as to what conditions must be eliminated before a decree can be deemed to have served its purpose. . . . Remedying and avoiding the recurrence of this stigmatizing injury have been the guiding objectives of this Court’s desegregation jurisprudence. . . . These concerns inform the standard by which the Court determines the effectiveness of a proposed desegregation remedy. . . . Concern with stigmatic injury also explains the Court’s requirement that a formerly de jure segregated school district provide its victims with “make whole” relief. . . . In order to achieve such “make whole” relief, school systems must redress any effects traceable to former de jure segregation. . . . Similarly, avoiding reemergence of the harm condemned in Brown I accounts for the Court’s insistence on remedies that insure lasting integration of formerly segregated systems. Such school districts

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are required to “make every effort to achieve the greatest possible degree of actual desegregation and [to] be concerned with the elimination of one-race schools.”. . . This focus on “achieving and preserving an integrated school system” stems from the recognition that the reemergence of racial separation in such schools may revive the message of racial inferiority implicit in the former policy of state-enforced segregation. Just as it is central to the standard for evaluating the formation of a desegregation decree, so should the stigmatic injury associated with segregated schools be central to the standard for dissolving a decree. The Court has indicated that “the ultimate end to be brought about” by a desegregation remedy is “a unitary, nonracial system of public education.” We have suggested that this aim is realized once school officials have “eliminate[d] from the public schools all vestiges of state-imposed segregation,” whether they inhere in the school’s “faculty, staff, transportation, extracurricular activities and facilities,” or even in “the community and administration[‘s] attitudes toward [a] school.” Although the Court has never explicitly defined what constitutes a “vestige” of stateenforced segregation, the function that this concept has performed in our jurisprudence suggests that it extends to any condition that is likely to convey the message of inferiority implicit in a policy of segregation. So long as such conditions persist, the purposes of the decree cannot be deemed to have been achieved. . . . III Applying the standard I have outlined, I would affirm the Court of Appeals’ decision ordering the District Court to restore the desegregation decree. For it is clear on this record that removal of the decree will result in a significant number of racially identifiable schools that could be eliminated. . . . It is undisputed that replacing the Finger Plan [the original plan] with a system of neighborhood school assignments for grades K–4 resulted in a system of racially identifiable schools. Under the SRP, over one-half of Oklahoma City’s elementary schools now have student bodies that are either 90 percent Afro-American or 90 percent non-Afro-American. Because the principal vestige of de jure segregation persists, lifting the decree would clearly be premature at this point. . . . The majority equivocates on the effect to be given to the reemergence of racially identifiable schools. . . .

And, by rendering “res nova” the issue whether residential segregation in Oklahoma City is a vestige of former school segregation, the majority accepts at least as a theoretical possibility that vestiges may exist beyond those identified in Green. Nonetheless, the majority hints that the District Court could ignore the effect of residential segregation in perpetuating racially identifiable schools if the Court finds residential segregation to be “the result of private decisionmaking and economics.” Finally, the majority warns against the application of a standard that would subject formerly segregated school districts to the “Draconian” fate of “judicial tutelage for the indefinite future.” This equivocation is completely unsatisfying. First, it is well established that school segregation “may have a profound reciprocal effect on the racial composition of residential neighborhoods.” The record in this case amply demonstrates this form of complicity in residential segregation on the part of the Board. . . . Second, there is no basis for the majority’s apparent suggestion that the result should be different if residential segregation is now perpetuated by “private decisionmaking.”. . . Even more important, it fails to account for the unique role of the School Board in creating “all-Negro” schools clouded by the stigma of segregation. . . . That such negative “personal preferences” exist should not absolve a school district that played a role in creating such “preferences” from its obligation to desegregate the schools to the maximum extent possible. I also reject the majority’s suggestion that the length of federal judicial supervision is a valid factor in assessing a dissolution. The majority is correct that the Court has never contemplated perpetual judicial oversight of former de jure segregated school districts. Our jurisprudence requires, however, that the job of school desegregation be fully completed and maintained so that the stigmatic harm identified in Brown I will not recur upon lifting the decree. Any doubt on the issue whether the School Board has fulfilled its remedial obligations should be resolved in favor of the Afro-American children affected by this litigation. In its concern to spare local school boards the “Draconian” fate of “indefinite” “judicial tutelage,” the majority risks subordination of the constitutional rights of Afro-American children to the interest of school board autonomy. The courts must consider The Rocky Road of School Desegregation

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the value of local control, but that factor primarily relates to the feasibility of a remedial measure, not whether the constitutional violation has been remedied. Swann establishes that if further desegregation is “reasonable, feasible, and workable,” then it must be undertaken. . . . We should keep in mind that the court’s active supervision of the desegregation plan process ceased in

1977. Retaining the decree does not require a return to active supervision. It may be that a modification of the decree which will improve its effectiveness and give the school district more flexibility in minimizing busing is appropriate in this case. But retaining the decree seems a slight burden on the school district compared with the risk of not delivering a full remedy to the Afro-American children in the school system. . . .

PARENTS INVOLVED IN COMMUNITY SCHOOLS V. SEATTLE SCHOOL DISTRICT NO. 1 ET AL. 551 U.S. 701 (2007) CHIEF JUSTICE ROBERTS announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II, III–A, and III–C, and an opinion with respect to Parts III–B and IV, in which JUSTICES SCALIA, THOMAS, and ALITO join. The school districts in these cases voluntarily adopted student assignment plans that rely upon race to determine which public schools certain children may attend. The Seattle school district classifies children as white or nonwhite; the Jefferson County school district as black or “other.” In Seattle, this racial classification is used to allocate slots in oversubscribed high schools. In Jefferson County, it is used to make certain elementary school assignments and to rule on transfer requests. In each case, the school district relies upon an individual student’srace in assigning that student to a particular school, so that the racial balance at the school falls within a predetermined range based on the racial composition of theschool district as a whole. Parents of students denied assignment to particular schools under these plans solely because of their race brought suit, contending that allocating children to different public schools on the basis of race violated the Fourteenth Amendment guarantee of equal protection. The Courts of Appeals below upheld the plans. We granted certiorari, and now reverse. I Both cases present the same underlying legal question—whether a public school that had not 482

operated legally segregated schools or has been found to be unitary may choose to classify students by race and rely upon that classification in making school assignments. Although we examine the plans under the same legal framework, the specifics of the two plans, and the circumstances surrounding their adoption, are in some respects quite different. A Seattle School District No. 1 operates 10 regular publichigh schools. In 1998, it adopted the plan at issue in this case for assigning students to these schools. The plan allows incoming ninth graders to choose from among any of the district’s high schools, ranking however many schools they wish in order of preference. Some schools are more popular than others. If too many students list the same school as their first choice, the district employs a series of “tiebreakers” to determine who will fill the open slots at the oversubscribed school. The first tiebreaker selects for admission students who have a sibling currently enrolled in the chosen school. The next tiebreaker depends upon the racial composition of the particular school and the race of the individual student. In the district’s public schools approximately 41 percent of enrolled students are white; the remaining 59 percent, comprising all other racial groups, are classified by Seattle for assignment purposes as nonwhite. Id., at 38a, 103a. If an oversubscribed school is not within 10 percentage points of the district’s overall

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white/nonwhite racial balance, it is what the district calls “integration positive,” and the district employs a tiebreaker that selects for assignment students whose race “will serve to bring the school into balance.” Id., at 38a. If it is still necessary to select students for the school after using the racial tiebreaker, the next tiebreaker is the geographic proximity of the school to the student’s residence. Seattle has never operated segregated schools— legally separate schools for students of different races—nor has it ever been subject to court-ordered desegregation. It nonetheless employs the racial tiebreaker in an attempt to address the effects of racially identifiable housing patterns on school assignments. Most white students live in the northern part of Seattle, most students of other racial backgrounds in the southern part. Parents Involved VII, supra, at 1166. Four of Seattle’s high schools are located in the north—Ballard, Nathan Hale, Ingraham, and Roosevelt—and five in the south—Rainier Beach, Cleveland, West Seattle, Chief Sealth, and Franklin. One school— Garfield—is more or less in the center of Seattle. . . .Petitioner Parents Involved in Community Schools (Parents Involved) is a nonprofit corporation comprising the parents of children who have been or may be denied assignment to their chosen high school in the district because of their race. The concerns of Parents Involved are illustrated by Jill Kurfirst, who sought to enroll her ninth-grade son, Andy Meeks, in Ballard High School’s special Biotechnology Career Academy. Andy suffered from attention deficit hyperactivity disorder and dyslexia, but had made good progress with hands-on instruction, and his mother and middle school teachers thought that the smaller biotechnology program held the most promise for his continued success. Andy was accepted into this selective program but, because of the racial tiebreaker, was denied assignment to Ballard High School. Id., at 143a–146a, 152a–160a. Parents Involved commenced this suit in the Western District of Washington, alleging that Seattle’s use of race in assignments violated the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, and the Washington Civil Rights Act. The District Court granted summary judgment to theschool district, finding that state law did not bar the district’s use of the racial tiebreaker and that the plan survived strict scrutiny on the federal constitutional claim because it was narrowly tailored to serve

a compelling government interest. 137 F. Supp. 2d 1224, 1240 (WD Wash. 2001) (Parents Involved I). The Ninth Circuit initially reversed based on its interpretation of the Washington Civil Rights Act, 285 F. 3d 1236, 1253 (2002) (Parents Involved II), and enjoined the district’s use of the integration tiebreaker, id., at 1257. Upon realizing that the litigation would not be resolved in time for assignment decisions for the 2002–2003 school year, the Ninth Circuit withdrew its opinion, 294 F. 3d 1084 (2002) (Parents Involved III), vacated the injunction, and, pursuant to Wash.Rev. Code §2.60.020 (2006), certified the state-law question to the Washington Supreme Court, 294 F. 3d 1085, 1087 (2002) (Parents Involved IV). The Washington Supreme Court determined that the State Civil Rights Act bars only preferential treatment programs “where race or gender is used by government to select a less qualified applicant over a more qualified applicant,” and not “[p]rograms which are racially neutral, such as the [district’s] open choice plan.” Parents Involved in Community Schools v. Seattle School Dist., No. 1, 149 Wash. 2d 660, 689–690, 663, 72 P. 3d 151, 166, 153 (2003) (en banc) (Parents Involved V). The state court returned the case to the Ninth Circuit for further proceedings. Id., at 690, 72 P. 3d, at 167. A panel of the Ninth Circuit then again reversed theDistrict Court, this time ruling on the federal constitutional question. Parents Involved VI, 377 F. 3d 949 (2004). The panel determined that while achieving racial diversity and avoiding racial isolation are compelling government interests, id., at 964, Seattle’s use of the racial tiebreaker was not narrowly tailored to achieve these interests, id., at 980. The Ninth Circuit granted rehearing en banc, 395 F. 3d 1168 (2005), and overruled the panel decision, affirming the District Court’s determination that Seattle’splan was narrowly tailored to serve a compelling government interest, Parents Involved VII, 426 F. 3d, at 1192–1193. We granted certiorari. 547 U.S. __ (2006). B Jefferson County Public Schools operates the public school system in metropolitan Louisville, Kentucky. In 1973 a federal court found that Jefferson County had maintained a segregated school system, Newburg Area Council, Inc. v. Board of Ed. of Jefferson Cty., 489 F. 2d 925, 932 (CA6), vacated and remanded, 418 U.S. 918, reinstated with modifiThe Rocky Road of School Desegregation

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cations, 510 F. 2d 1358, 1359 (CA61974), and in 1975 the District Court entered a desegregation decree. See Hampton v. Jefferson Cty. Bd. of Ed., 72 F. Supp. 2d 753, 762–764 (WD Ky. 1999). Jefferson County operated under this decree until 2000, when the District Court dissolved the decree after finding that the district had achieved unitary status by eliminating “[t]o the greatest extent practicable” the vestiges of its prior policy of segregation. Hampton v. Jefferson Cty. Bd. of Ed., 102 F. Supp. 2d 358, 360 (2000). See Board of Ed. of Oklahoma City Public Schools v. Dowell, 498 U.S. 237, 249–250 (1991); Green v. School Bd. of New Kent Cty., 391 U.S. 430, 435–436 (1968). In 2001, after the decree had been dissolved, Jefferson County adopted the voluntary student assignment plan at issue in this case. App. in No. 05–915, p. 77. Approximately 34 percent of the district’s 97,000 students areblack; most of the remaining 66 percent are white. McFarland v. Jefferson Cty. Public Schools, 330 F. Supp. 2d 834, 839–840, and n. 6 (WD Ky. 2004) (McFarland I). The plan requires all nonmagnet schools to maintain a minimum black enrollment of 15 percent, and a maximum black enrollment of 50 percent. When petitioner Crystal Meredith moved into the school district in August 2002, she sought to enroll her son, Joshua McDonald, in kindergarten for the 2002–2003 school year. His resides school was only a mile from his new home, but it had no available space—assignments had been made in May, and the class was full. Jefferson County assigned Joshua to another elementary school in his cluster, Young Elementary. This school was 10 miles from home, and Meredith sought to transfer Joshua to a school in a different cluster, Bloom Elementary, which like his resides school—was only a mile from home. See Tr. in McFarland I, pp. 1–49 through 1–54 (Dec. 8, 2003). Space was available at Bloom, and intercluster transfers are allowed, but Joshua’s transfer was nonetheless denied because, in the words of Jefferson County, “[t]he transfer would have an adverse effect on desegregation compliance” of Young. Meredith brought suit in the Western District of Kentucky, alleging violations of the Equal Protection Clause of the Fourteenth Amendment. The District Court found that Jefferson County had asserted a compelling interest in maintaining racially diverse schools, and that the assignment plan was (in all relevant respects) narrowly tailored to serve that compelling interest. McFarland I, supra, at 837. The 484

Sixth Circuit affirmed in a per curiam opinion relying upon the reasoning of the District Court, concluding that a written opinion “would serve no useful purpose.” McFarland v. Jefferson Cty. Public Schools, 416 F. 3d 513, 514 (2005) (McFarland II). We granted certiorari. 547 U.S. __ (2006). II As a threshold matter, we must assure ourselves of our jurisdiction. Seattle argues that Parents Involved lacks standing because none of its current members can claim an imminent injury. Even if the district maintains the current plan and reinstitutes the racial tiebreaker, Seattle argues, Parents Involved members will only be affected if their children seek to enroll in a Seattle public high school and choose an oversubscribed school that is integration positive—too speculative a harm to maintain standing. This argument is unavailing. The group’s members have children in the district’s elementary, middle, and high schools, and the complaint sought declaratory and injunctive relief on behalf of Parents Involved members whose elementary and middle school children may be “denied admission to the high schools of their choice when they apply for those schools in the future,” App. in No. 05–908, at 30a. The fact that it is possible that children of group members will not be denied admission to a school based on their race—because they choose an undersubscribed school or an oversubscribed school in which their race is an advantage—does not eliminate the injury claimed. Moreover, Parents Involved also asserted an interest in not being “forced to compete for seats at certain high schools in a system that uses race as a deciding factor in many of its admissions decisions.” Ibid. As we have held, one form of injury under the Equal Protection Clause is being forced to compete in a race-based system that may prejudice the plaintiff, Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 211 (1995); Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 666 (1993), an injury that the members of Parents Involved can validly claim on behalf of their children. In challenging standing, Seattle also notes that it hasceased using the racial tiebreaker pending the outcome of this litigation. Brief for Respondents in No. 05–908, at 16–17. But the district vigorously defends the constitutionality of its race-based program, and nowhere suggests that if this litigation is re-

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solved in its favor it will not resume using race to assign students. Voluntary cessation does not moot a case or controversy unless “subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203 (1968) (internal quotation marks omitted)), a heavy burden that Seattle has clearly not met. Jefferson County does not challenge our jurisdiction, but we are nonetheless obliged to ensure that it exists, Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). Although apparently Joshua has now been granted a transfer to Bloom, the school to which transfer was denied under the racial guidelines, Tr. of Oral Arg. in No. 05–915, at 45, the racial guidelines apply at all grade levels. Upon Joshua’s enrollment in middle school, he may again be subject to assignment based on his race. In addition, Meredith sought damages in her complaint, which is sufficient to preserve our ability to consider the question. Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). III A It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny. Johnson v. California, 543 U.S. 499, 505–506 (2005); Grutter v. Bollinger, 539 U.S. 306, 326 (2003); Adarand, supra, at 224. As the Court recently reaffirmed, “‘racial classifications are simply too pernicious to permitany but the most exact connection between justification and classification.’” Gratz v. Bollinger, 539 U.S. 244, 270 (2003) (quoting Fullilove v. Klutznick, 448 U.S. 448, 537 (1980) (STEVENS, J., dissenting). In order to satisfy this searching standard of review, the school districts must demonstrate that the use of individual racial classifications in the assignment plans hereunder review is “narrowly tailored” to achieve a “compelling” government interest. Without attempting in these cases to set forth all the interests a school district might assert, it suffices to note that our prior cases, in evaluating the use of racial classifications in the school context, have recognized two interests that qualify as compelling. The first is the compelling interest of remedying the ef-

fects of past intentional discrimination. See Freeman v. Pitts, 503 U.S. 467, 494 (1992). Yet the Seattle public schools have not shown that they were ever segregated by law, and were not subject to court-ordered desegregation decrees. The Jefferson County public schools were previously segregated by law and were subject to a desegregation decree entered in 1975. In 2000, the District Court that entered that decree dissolved it, finding that Jefferson County had “eliminated the vestiges associated with the former policy of segregation and its pernicious effects,” and thus had achieved “unitary” status. Hampton, 102 F. Supp. 2d, at 360. Jefferson County accordingly does not rely upon an interest in remedying the effects of past intentional discrimination in defending its present use of race in assigning students. See Tr. of Oral Arg. in No. 05–915, at 38. Nor could it. We have emphasized that the harm being remedied by mandatory desegregation plans is the harmthat is traceable to segregation, and that “the Constitution is not violated by racial imbalance in the schools, without more.” Milliken v. Bradley, 433 U.S. 267, 280, n. 14 (1977). See also Freeman, supra, at 495–496; Dowell, 498 U.S., at 248; Milliken v. Bradley, 418 U.S. 717, 746 (1974). Once Jefferson County achieved unitary status, it had remedied the constitutional wrong that allowed racebased assignments. Any continued use of race must be justified on some other basis. The second government interest we have recognized as compelling for purposes of strict scrutiny is the interest in diversity in higher education upheld in Grutter, 539 U.S., at 328. The specific interest found compelling in Grutter was student body diversity “in the context of higher education.” Ibid. The diversity interest was not focused on racealone but encompassed “all factors that may contribute tostudent body diversity.” Id., at 337. . . . The entire gist of the analysis in Grutter was that the admissions program at issue there focused on each applicant as an individual, and not simply as a member of a particular racial group. The classification of applicants by race upheld in Grutter was only as part of a “highly individualized, holistic review,” 539 U.S., at 337. As the Court explained, “[t]he importance of this individualized consideration in the context of a race-conscious admissions program is paramount.” Ibid. The point of the narrow tailoring analysis in which the Grutter Court engaged was to ensure that the use of racial classifications was indeed part of a broader assessment of diversity, and The Rocky Road of School Desegregation

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not simply an effort to achieve racial balance, which the Court explained would be “patently unconstitutional.” Id., at 330. In the present cases, by contrast, race is not considered as part of a broader effort to achieve “exposure to widely diverse people, cultures, ideas, and viewpoints,” ibid.; race, for some students, is determinative standing alone. The districts argue that other factors, such as student preferences, affect assignment decisions under their plans, but under each plan when race comes into play, it is decisive by itself. It is not simply one factor weighed with others in reaching a decision, as in Grutter; it is the factor. Like the University of Michigan undergraduate plan struck down in Gratz, 539 U.S., at 275, the plans here “do not provide for a meaningful individualized review of applicants” but instead rely on racial classifications in a“nonindividualized, mechanical” way. Id., at 276, 280 (O’CONNOR, J., concurring). Even when it comes to race, the plans here employ only a limited notion of diversity, viewing race exclusively in white/nonwhite terms in Seattle and black/ “other” terms in Jefferson County. But see Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 610 (1990) (“We are a Nation not of black and white alone, but one teeming with divergent communities knitted together with various traditions and carried forth, above all, by individuals”) (O’CONNOR, J., dissenting). In upholding the admissions plan in Grutter, though, this Court relied upon considerations unique to institutions of higher education, noting that in light of “the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.” 539 U.S., at 329. The Court explained that “[c]ontext matters” in applying strict scrutiny, and repeatedly noted that it was addressing the use of race “in the context of higher education.” Grutter, supra, at 327, 328, 334. The Court in Grutter expressly articulated key limitations on its holding—defining a specific type of broad-based diversity and noting the unique context of higher education—but these limitations were largely disregarded by the lower courts in extending Grutter to uphold race-based assignments in elementary and secondary schools. The present cases are not governed by Grutter. B Perhaps recognizing that reliance on Grutter cannot sustain their plans, both school districts assert 486

additional interests, distinct from the interest upheld in Grutter, to justify their race-based assignments. In briefing and argument before this Court, Seattle contends that its use of race helps to reduce racial concentration in schools and to ensure that racially concentrated housing patterns do not prevent nonwhite students from having access to the most desirable schools. Jefferson County has articulated a similar goal, phrasing its interest in terms of educating its students “in a racially integrated environment.” App. in No.05–915, at 22. Each school district argues that educational and broader socialization benefits flow from a racially diverse learning environment, and each contendsthat because the diversity they seek is racial diversity— not the broader diversity at issue in Grutter—it makes sense to promote that interest directly by relying on race alone. The parties and their amici dispute whether racial diversity in schools in fact has a marked impact on test scores and other objective yardsticks or achieves intangible socialization benefits. The debate is not one we need to resolve, however, because it is clear that the racial classifications employed by the districts are not narrowly tailored to the goal of achieving the educational and social benefits asserted to flow from racial diversity. In design and operation, the plans are directed only to racial balance, pure and simple, an objective this Court has repeatedly condemned as illegitimate. . . . The district did not attempt to defend the proposition that anything outside its range posed the “specter of exceptionality.” Nor did it demonstrate in any way how the educational and social benefits of racial diversity or avoidance of racial isolation are more likely to be achieved at a school that is 50 percent white and 50 percent Asian-American, which would qualify as diverse under Seattle’s plan, than at a school that is 30 percent Asian-American, 25 percent African-American, 25 percent Latino, and 20 percent white, which under Seattle’s definition would be racially concentrated. Similarly, Jefferson County’s expert referred to theimportance of having “at least 20 percent” minority group representation for the group “to be visible enough to makea difference,” and noted that “small isolated minority groups in a school are not likely to have a strong effect on the overall school.” App. in No. 05–915, at 159, 147. The Jefferson County plan, however, is based on a goal of replicating at each school “an African-American enrollment equivalent

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to the average district-wide African-American enrollment.” Id., at 81. Joshua McDonald’s requested transfer was denied because his race was listed as “other” rather than black, and allowing the transfer would have had an adverse effect on the racial guideline compliance of Young Elementary, the school he sought to leave. Id., at 21. At the time, however, Young Elementary was 46.8 percent black. Id., at 73. The transfer might have had an adverse effect on the effort to approach district-wide racial proportionality at Young, but it had nothing to do with preventing either the black or “other” group from becoming “small” or “isolated” at Young. In fact, in each case the extreme measure of relying on race in assignments is unnecessary to achieve the stated goals, even as defined by the districts. For example, at Franklin High School in Seattle, the racial tiebreaker was applied because nonwhite enrollment exceeded 69 percent, and resulted in an incoming ninth-grade class in 2000–2001 that was 30.3 percent Asian-American, 21.9 percent African-American, 6.8 percent Latino, 0.5 percent Native-American, and 40.5 percent Caucasian. Without the racial tiebreaker, the class would have been 39.6 percent Asian-American, 30.2 percent African-American, 8.3 percent Latino, 1.1 percent Native-American, and 20.8 percent Caucasian. When the actual racial breakdown is considered, enrolling students without regard to their race yields a substantially diverse student body under any definition of diversity. In Grutter, the number of minority students the school sought to admit was an undefined “meaningful number” necessary to achieve a genuinely diverse student body. 539 U.S., at 316, 335–336. Although the matter was the subject of disagreement on the Court, the majority concluded that the law school did not count back from its applicant pool to arrive at the “meaningful number” it regarded as necessary to diversify its student body. Id., at 335–336. Here the racial balance the districts seek is a defined range set solely by reference to the demographics of the respective school districts. Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that “[a]t the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller v.

Johnson, 515 U.S. 900, 911 (1995) (quoting Metro Broadcasting, 497 U.S., at 602 (O’CONNOR, J., dissenting); internal quotation marks omitted). Allowing racial balancing as a compelling end in itself would “effectively assur[e] that race will always be relevant in American life, and that the ‘ultimate goal’ of ‘eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s race’ will never be achieved.” Croson, supra, at 495 (plurality opinion of O’CONNOR, J.) (quoting Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 320 (1986) (STEVENS, J., dissenting), in turn quoting Fullilove 448 U.S., at 547 (STEVENS, J., dissenting); brackets and citation omitted). An interest “linked to nothing other than proportional representation of various races . . . would support indefinite use of racial classifications, employed first to obtain the appropriate mixture of racial views and then to ensure that the [program] continues to reflect that mixture.” Metro Broadcasting, supra, at 614 (O’CONNOR, J., dissenting). The validity of our concern that racial balancing has “no logical stopping point,” Croson, supra, at 498 (quoting Wygant, supra, at 275 (plurality opinion); internal quotation marks omitted); see also Grutter, supra, at 343, is demonstrated here by the degree to which the districts tie their racial guidelines to their demographics. As the districts’ demographics shift, so too will their definition of racial diversity. . . The principle that racial balancing is not permitted is one of substance, not semantics. Racial balancing is not transformed from “patently unconstitutional” to a compelling state interest simply by relabeling it “racial diversity.” While the school districts use various verbal formulations to describe the interest they seek to promote—racial diversity, avoidance of racial isolation, racial integration—they offer no definition of the interest that suggests it differs from racial balance. Jefferson County phrases its interest as “racial integration,” but integration certainly does not require the sort of racial proportionality reflected in its plan. Even in the context of mandatory desegregation, we have stressed that racial proportionality is not required,. . . and here Jefferson County has already been found to have eliminated the vestiges of its prior segregated school system. The en banc Ninth Circuit declared that “when a racially diverse school system is the goal (or racial concentration or isolation is the problem), there is no The Rocky Road of School Desegregation

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more effective means than a consideration of race to achieve the solution.” Parents Involved VII, supra, at 1191. For the foregoing reasons, this conclusory argument cannot sustain the plans. However closely related race-based assignments may be to achieving racial balance, that itself cannot be the goal, whether labeled “racial diversity” or anything else. To the extent the objective is sufficient diversity so that students see fellow students as individuals rather than solely as members of a racial group, using means that treat students solely as members of a racial group is fundamentally at cross-purposes with that end. C The districts assert, as they must, that the way in which they have employed individual racial classifications is necessary to achieve their stated ends. The minimal effect these classifications have on student assignments, however, suggests that other means would be effective. . . While we do not suggest that greater use of race would be preferable, the minimal impact of the districts’ racial classifications on school enrollment casts doubt on the necessity of using racial classifications. In Grutter, the consideration of race was viewed as indispensable in more than tripling minority representation at the law school—from 4 to 14.5 percent. See 539 U.S., at 320. Here the most Jefferson County itself claims is that “because the guidelines provide a firm definition of the Board’s goal of racially integrated schools, they ‘provide administrators with the authority to facilitate, negotiate and collaborate with principals and staff to maintain schools within the 15–50 percent range.’” Brief in Opposition in No. 05–915, at 7 (quoting McFarland I, supra, at 842). Classifying and assigning schoolchildren according to a binary conception of race is an extreme approach in light of our precedents and our Nation’s history of using race in public schools, and requires more than such an amorphous end to justify it. The districts have also failed to show that they considered methods other than explicit racial classifications to achieve their stated goals. Narrow tailoring requires “serious, good faith consideration of workable race-neutral alternatives,” Grutter, supra, at 339, and yet in Seattle several alternative assignment plans—many of which would not have used express racial classifications—were rejected with little or no consideration. Jefferson County has failed to present any evidence that it considered alterna488

tives, even though the district already claims that its goals are achieved primarily through means other than the racial classifications. Compare Croson, 488 U.S., at 519 (KENNEDY, J., concurring in part and concurring in judgment) (racial classifications permitted only “as a last resort”). IV JUSTICE BREYER’s dissent takes a different approach to these cases, one that fails to ground the result it would reach in law. Instead, it selectively relies on inapplicable precedent and even dicta while dismissing contrary holdings, alters and misapplies our well-established legal framework for assessing equal protection challenges to express racial classifications, and greatly exaggerates the consequences of today’s decision. To begin with, JUSTICE BREYER seeks to justify the plans at issue under our precedents recognizing the compelling interest in remedying past intentional discrimination. See post, at 18–24. Not even the school districts go this far, and for good reason. The distinction between segregation by state action and racial imbalance caused by other factors has been central to our jurisprudence in this area for generations. . . . The dissent elides this distinction between de jure and de facto segregation, casually intimates that Seattle’s school attendance patterns reflect illegal segregation, post, at 5, 18, 23, and fails to credit the judicial determination—under the most rigorous standard—that Jefferson County had eliminated the vestiges of prior segregation. The dissent thus alters in fundamental ways not only the facts presented here but the established law. *** If the need for the racial classifications embraced by the school districts is unclear, even on the districts’ own terms, the costs are undeniable. “[D]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Adarand, 515 U.S., at 214. Government action dividing us by race is inherently suspect because such classifications promote “notions of racial inferiority and lead to a politics of racial hostility,” Croson, supra, at 493, “reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin,” Shaw v. Reno, 509 U.S. 630, 657 (1993), and “endorse race-based reasoning and the conception of a Nation divided into racial blocs, thus

Protecting Against Bias: Segregation and Discrimination

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

contributing to an escalation of racial hostility and conflict.” Metro Broadcasting, 497 U.S., at 603 (O’CONNOR, J., dissenting). As the Court explained in Rice v. Cayetano, 528 U.S. 495, 517 (2000), “[o]ne of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.” All this is true enough in the contexts in which these statements were made—government contracting, voting districts, allocation of broadcast licenses, and electing state officers—but when it comes to using race to assign children to schools, history will be heard. In Brown v. Board of Education, 347 U.S. 483 (1954) (Brown I), we held that segregation deprived black children of equal educational opportunities regardless of whether school facilities and other tangible factors were equal, because government classification and separation on grounds of race themselves denoted inferiority. Id., at 493–494. It was not the inequality of the facilities but the fact of legally separating children on the basis of race on which the Court relied to find a constitutional violation in 1954. See id., at 494 (“‘The impact [of segregation] is greater when ithas the sanction of the law’”). The next Term, we accordingly stated that “full compliance” with Brown I required school districts “to achieve a system of determining admission to the public schools on a nonracial basis.” Brown II, 349 U.S., at 300–301 (emphasis added). The parties and their amici debate which side is more faithful to the heritage of Brown, but the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: “[T]he Fourteenth Amendment prevents states from according differential treatment toAmerican children on the basis of their color or race.” Brief for Appellants in Nos. 1, 2, and 4 and for Respondents in No. 10 on Reargument in Brown I, O. T. 1953, p.15 (Summary of Argument). What do the racial classifications at issue here do, if not accord differential treatment on the basis of race? As counsel who appeared before this Court for the plaintiffs in Brown put it: “We haveone fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among itscitizens.” Tr. of Oral Arg. in Brown I, p. 7 (Robert L. Carter, Dec. 9, 1952). There is no ambiguity in that statement. And

it was that position that prevailed in this Court, which emphasized in its remedial opinion that what was “[a]t stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis,” and what was required was “determining admission to the public schools on a nonracial basis.” Brown II, supra, at 300–301 (emphasis added). What do the racial classifications do in these cases, if not determine admission to a public school on a racial basis? Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way “to achieve a system of determining admission to the public schools on anonracial basis,” Brown II, 349 U.S., at 300–301, is to stop assigning students on a racial basis. The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. The judgments of the Courts of Appeals for the Sixthand Ninth Circuits are reversed, and the cases are remanded for further proceedings. It is so ordered. [JUSTICE THOMAS’ concurring opinion is not reprinted here] JUSTICE KENNEDY, concurring in part and concurring in the judgment. The Nation’s schools strive to teach that our strength comes from people of different races, creeds, and cultures uniting in commitment to the freedom of all. In these cases two school districts in different parts of the country seek to teach that principle by having classrooms that reflect the racial makeup of the surrounding community.That the school districts consider these plans to be necessary should remind us our highest aspirations are yet unfulfilled. But the solutions mandated by these school districts must themselves be lawful. To make race matter now so that it might not matter later may entrench the very prejudices we seek to overcome. In my view the state-mandated racial classifications at issue, official labels proclaiming the race of all persons in a broad class of citizens—elementary school students in one The Rocky Road of School Desegregation

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

case, high school students in another—are unconstitutional as the cases now come to us. I agree with THE CHIEF JUSTICE that we have jurisdiction to decide the cases before us and join Parts I and II of the Court’s opinion. I also join Parts III–A and III–C for reasons provided below. My views do not allow me to join the balance of the opinion by THE CHIEF JUSTICE, which seems to me to be inconsistent in both its approach and itsimplications with the history, meaning, and reach of the Equal Protection Clause. JUSTICE BREYER’s dissenting opinion, on the other hand, rests on what in my respectful submission is a misuse and mistaken interpretation of our precedents. This leads it to advance propositions that, in my view, are both erroneous and in fundamental conflict with basic equal protection principles. As a consequence, this separate opinion is necessary to set forth my conclusions in the two cases before the Court. I The opinion of the Court and JUSTICE BREYER’s dissenting opinion (hereinafter dissent) describe in detail the history of integration efforts in Louisville and Seattle. These plans classify individuals by race and allocate benefits and burdens on that basis; and as a result, they are to be subjected to strict scrutiny. See Johnson v. California, 543 U.S. 499, 505–506 (2005); ante, at 11. The dissent finds that the school districts have identified a compelling interest in increasing diversity, including for the purpose of avoiding racial isolation. The plurality, by contrast, does not acknowledge that the school districts have identified a compelling interest here. See ante, at 17–25. For this reason, among others, I do not join Parts III–B and IV. Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue. It is well established that when a governmental policy is subjected to strict scrutiny, “the government has the burden of proving that racial classifications ‘are narrowly tailored measures that further compelling governmental interests.’” Johnson, supra, at 505 (quoting Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995)). “Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.” Richmond v. J. A. Croson Co., 488 U.S. 469, 493 490

(1989) (plurality opinion). And the inquiry into less restrictive alternatives demanded by the narrow tailoring analysis requires in many cases a thorough understanding of how a plan works. The government bears the burden of justifying its use of individual racial classifications. As part ofthat burden it must establish, in detail, how decisions based on an individual student’s race are made in a challenged governmental program. The Jefferson County Board of Education fails to meet this threshold mandate. As for the Seattle case, the school district has gone further in describing the methods and criteria used to determine assignment decisions on the basis of individual racial classifications. The district, nevertheless, has failed to make an adequate showing in at least one respect. It has failed to explain why, in a district composed of a diversity of races, with fewer than half of the students classified as “white,” it has employed the crude racial categories of “white” and “non-white” as the basis for its assignment decisions. The district has identified its purposes as follows: “(1) to promote the educational benefits of diverse school enrollments; (2) to reduce the potentially harmful effects of racial isolation by allowing students the opportunity to opt out of racially isolated schools; and (3) to make sure that racially segregated housing patterns did not prevent nonwhite students from having equitable access to the most popular over-subscribed schools.” Id., at 19. Yet the school district does not explain how, in the context of its diverse student population, a blunt distinction between “white” and “non-white” furthers these goals. II Our Nation from the inception has sought to preserve and expand the promise of liberty and equality on which it was founded. Today we enjoy a society that is remarkable in its openness and opportunity. Yet our tradition is to go beyond present achievements, however significant, and to recognize and confront the flaws and injustices that remain. This is especially true when we seek assurance that opportunity is not denied on account of race. The enduring hope is that race should not matter; the reality is that too often it does. This is by way of preface to my respectful submission that parts of the opinion by THE CHIEF JUSTICE imply an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account. The plurality opinion is too dismissive of the legitimate interest government has in

Protecting Against Bias: Segregation and Discrimination

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

ensuring all people have equal opportunity regardless of their race. The plurality’s postulate that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” ante, at 40–41, is not sufficient to decide these cases. Fifty years of experience since Brown v. Board of Education, 347 U.S. 483 (1954), should teach us that the problem before us defies so easy a solution. School districts can seek to reach Brown’s objective of equal educational opportunity. The plurality opinion is at least open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. To the extent the plurality opinion suggests the Constitution mandates that state and local school authorities must accept the status quo of racial isolation in schools, it is, in my view, profoundly mistaken. The statement by Justice Harlan that “[o]ur Constitution is color-blind” was most certainly justified in the context of his dissent in Plessy v. Ferguson, 163 U.S. 537, 559 (1896). The Court’s decision in that case was a grievous error it took far too long to overrule. Plessy, of course, concerned official classification by race applicable to allpersons who sought to use railway carriages. And, as an aspiration, Justice Harlan’s axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle. In the administration of public schools by the state and local authorities it is permissible to consider the racial makeup of schools and to adopt general policies to encourage a diverse student body, one aspect of which is its racial composition. Cf. Grutter v. Bollinger, 539 U.S. 306 (2003); id., at 387–388 (KENNEDY, J., dissenting). If school authorities are concerned that the student-body compositions of certain schools interfere with the objective of offering an equal educational opportunity to all of their students, theyare free to devise race-conscious measures to address the problem in a general way and without treating each student in different fashion solely on the basis of a systematic, individual typing by race. School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhoods; allocating resources for special programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance,

and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible. See Bush v. Vera, 517 U.S. 952, 958 (1996) (plurality opinion) (“Strict scrutiny does not apply merely because redistricting is performed with consciousness of race. . . . Electoral districtlines are ‘facially race neutral’ so a more searching inquiry is necessary before strict scrutiny can be found applicable in redistricting cases than in cases of ‘classifications based explicitly on race’” (quoting Adarand, 515 U.S., at 213)). Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different races. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly. Each respondent has asserted that its assignment of individual students by race is permissible because there is no other way to avoid racial isolation in the school districts. Yet, as explained, each has failed to provide the support necessary for that proposition. Cf. Croson, 488 U.S., at 501 (“The history of racial classifications in this country suggests that blind judicial deference to legislative or executive pronouncements of necessity has no place in equal protection analysis”). And individual racial classifications employed in this manner may be considered legitimate only if they are a last resort to achieve a compelling interest. See id., at 519 (KENNEDY, J., concurring in part and concurring in judgment). In the cases before us it is noteworthy that the number of students whose assignment depends on express racial classifications is limited. I join Part III–C of the Court’sopinion because I agree that in the context of these plans, the small number of assignments affected suggests that the schools could have achieved their stated ends through different means. These include the facially race-neutral means set forth above or, if necessary, a more nuanced, individual evaluation of school needs and student characteristics that might include race as a component. The latter approach would be informed by Grutter, though The Rocky Road of School Desegregation

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

of course the criteria relevant to student placement would differ based on the age of the students, the needs of the parents, and the role of the schools. III The dissent rests on the assumptions that these sweeping race-based classifications of persons are permitted by existing precedents; that its confident endorsement of race categories for each child in a large segment of the community presents no danger to individual freedom in other, prospective realms of governmental regulation; and that the racial classifications used here cause no hurt or anger of the type the Constitution prevents. Each of these premises is, in my respectful view, incorrect. A The dissent’s reliance on this Court’s precedents to justify the explicit, sweeping, classwide racial classifications at issue here is a misreading of our authorities that, it appears to me, tends to undermine well-accepted principles needed to guard our freedom. And in his critique ofthat analysis, I am in many respects in agreement with THE CHIEF JUSTICE. The conclusions he has set forth in Part III–A of the Court’s opinion are correct, in my view, because the compelling interests implicated in the cases before us are distinct from the interests the Court has recognized in remedying the effects of past intentional discrimination and in increasing diversity in higher education. See ante, at 12–13. As the Court notes, we recognized the compelling nature of the interest in remedying past intentional discrimination in Freeman v. Pitts, 503 U.S. 467, 494 (1992), and of the interest in diversity in higher education in Grutter. At the same time, these compelling interests, in my view, do help inform the present inquiry. And to the extent the plurality opinion can be interpreted to foreclose consideration of these interests, I disagree with that reasoning. As to the dissent, the general conclusions upon which itrelies have no principled limit and would result in the broad acceptance of governmental racial classifications in areas far afield from schooling. The dissent’s permissive strict scrutiny (which bears more than a passing resemblance to rational-basis review) could invite wide spread governmental deployment of racial classifications. . . . This brings us to the dissent’s reliance on the Court’s opinions in Gratz v. Bollinger, 539 U.S. 244 (2003), and Grutter, 539 U.S. 306. . . .. 492

Gratz involved a system where race was not the entire classification. The procedures in Gratz placed much less reliance on race than do the plans at issue here. The issue in Gratz arose, moreover, in the context of college admissions where students had other choices and precedent supported the proposition that First Amendment interests give universities particular latitude in defining diversity. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 312– 314 (1978) (opinion of POWELL, J.). Even so the race factor was found to be invalid. Gratz, supra, at 251. If Gratz is to be the measure, the racial classification systems here are a fortiori invalid. If the dissent were to say that college cases are simply not applicable to public school systems in kindergarten through high school, this would seem to me wrong, but at least an arguable distinction. Under no fair reading, though, can the majority opinion in Gratz be cited as authority to sustain the racial classifications under consideration here. The same must be said for the controlling opinion in Grutter. There the Court sustained a system that, it found, was flexible enough to take into account “all pertinent elements of diversity,” 539 U.S., at 341 (internal quotation marks omitted), and considered race as only one factor among many, id., at 340. Seattle’s plan, by contrast, relies upon a mechanical formula that has denied hundreds of students their preferred schools on the basis of three rigid criteria: placement of siblings, distance from schools, and race. If those students were considered for a whole range of their talents and school needs with race asjust one consideration, Grutter would have some application. That, though, is not the case. The only support today’s dissent can draw from Grutter must be found in its various separate opinions, not in the opinion filed for the Court. B To uphold these programs the Court is asked to brush aside two concepts of central importance for determining the validity of laws and decrees designed to alleviate the hurt and adverse consequences resulting from race discrimination. The first is the difference between de jure and de facto segregation; the second, the presumptive invalidity of a State’s use of racial classifications to differentiate its treatment of individuals. Our cases recognized a fundamental difference between those school districts that had engaged in de jure segregation and those whose segregation was

Protecting Against Bias: Segregation and Discrimination

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

the result of other factors. School districts that had engaged in de jure segregation had an affirmative constitutional duty to desegregate; those that were de facto segregated did not. Compare Green v. School Bd. of New Kent Cty., 391 U.S. 430, 437–438 (1968), with Milliken v. Bradley, 418 U.S. 717, 745 (1974). The distinctions between de jure and de facto segregation extended to the remedies available to governmental units in addition to the courts. For example, in Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 274 (1986), the plurality noted: “This Court never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unitinvolved before allowing limited use of racial classifications in order to remedy such discrimination.” The Court’s decision in Croson, supra, reinforced the difference between the remedies available to redress de facto and de jure discrimination:. . . Yet, like so many other legal categories that can overlap in some instances, the constitutional distinction between de jure and de facto segregation has been thought to be an important one. It must be conceded its primary functionin school cases was to delimit the powers of the Judiciary in the fashioning of remedies. See, e.g., Milliken, supra, at 746. The distinction ought not to be altogether disregarded, however, when we come to that most sensitive of all racial issues, an attempt by the government to treat whole classes of persons differently based on the government’s systematic classification of each individual by race. There, too, the distinction serves as a limit on the exercise of a power that reaches to the very verge of constitutional authority. Reduction of an individual to an assigned racialidentity for differential treatment is among the most pernicious actions our government can undertake. The allocation of governmental burdens and benefits, contentious under any circumstances, is even more divisive when allocations are made on the basis of individual racial classifications. See, e.g., Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); Adarand, 515 U.S. 200. Notwithstanding these concerns, allocation of benefits and burdens through individual racial classifications was found sometimes permissible in the context of remedies for de jure wrong. Where there has been de jure segregation, there is a cognizable legal wrong, and the courts and legislatures have broad power to remedy it. The remedy, though, was limited in time and limited to the wrong. The

Court has allowed school districts to remedy their prior de jure segregation by classifying individual students based on their race. See North Carolina Bd. of Ed. v. Swann, 402 U.S. 43, 45–46 (1971). The limitation of this power to instances where there has been de jure segregation serves to confine the nature, extent, and duration of governmental reliance on individual racial classifications. The cases here were argued upon the assumption, and come to us on the premise, that the discrimination inquestion did not result from de jure actions. And when de facto discrimination is at issue our tradition has been that the remedial rules are different. The State must seek alternatives to the classification and differential treatment of individuals by race, at least absent some extraordinary showing not present here. C ... The idea that if race is the problem, race is the instrument with which to solve it cannot be accepted as an analytical leap forward. And if this is a frustrating duality of the Equal Protection Clause it simply reflects the duality of our history and our attempts to promote freedom in a world that sometimes seems set against it. Under our Constitution the individual, child or adult, can find his own identity, can define her own persona, without state intervention that classifies on the basis of his race or the color of her skin. *** This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children. A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. Likewise, a district may consider it a compelling interest to achieve a diverse student population. Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered. What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of raceand to assign each of them to schools based on that classification. Crude measures of this sort threaten to reduce children to racial chits valued and traded according to one school’s supply and another’s demand. That statement, to be sure, invites this response: A sense of stigma may already become the fate of The Rocky Road of School Desegregation

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

those separated out by circumstances beyond their immediate control. But to this the replication must be: Even so, measures other than differential treatment based on racial typing of individuals first must be exhausted. The decision today should not prevent school districts from continuing the important work of bringing together students of different racial, ethnic, and economic backgrounds. Due to a variety of factors—some influenced by government, some not—neighborhoods in our communities do not reflect the diversity of our Nation as a whole. Those entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators, and other concerned citizens to find a way to achieve the compelling interests they face without resorting to widespread governmental allocation of benefits and burdens on the basis of racial classifications. With this explanation I concur in the judgment of the Court. [The dissenting opinion of JUSTICE STEVENS is not reprinted here.] JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE SOUTER, and JUSTICE GINSBURG? join, dissenting. These cases consider the longstanding efforts of two local school boards to integrate their public schools. The school board plans before us resemble many others adopted in the last fifty years by primary and secondary schools throughout the Nation. All of those plans represent local efforts to bring about the kind of racially integrated education that Brown v. Board of Education, 347 U.S. 483 (1954), long ago promised—efforts that this Court has repeatedly required, permitted, and encouraged local authorities to undertake. This Court has recognized that the public interests at stake in such cases are “compelling.” We have approved of “narrowly tailored” plans that are no less race-conscious than the plans before us. And we have understood that the Constitution permits local communities to adopt desegregation plans even where it does not require them to do so. The plurality pays inadequate attention to this law, to past opinions’ rationales, their language, and the contextsin which they arise. As a result, it reverses course and reaches the wrong conclusion. In doing so, it distorts precedent, it misapplies the relevant constitutional principles, it announces legal rules that will obstruct efforts by state and local governments to deal effectively with the growing 494

resegregation of public schools, it threatens to substitute for present calm a disruptive round of race-related litigation, and it undermines Brown’s promise of integrated primary and secondary education that local communities have sought to make a reality. This cannot be justified in the name of the Equal Protection Clause. I Facts The historical and factual context in which these cases arise is critical. In Brown, this Court held that the government’s segregation of schoolchildren by race violates the Constitution’s promise of equal protection. The Court emphasized that “education is perhaps the most important function of state and local governments.” 347 U.S., at 493. And it thereby set the Nation on a path toward public school integration. In dozens of subsequent cases, this Court told school districts previously segregated by law what they must do at a minimum to comply with Brown’s constitutional holding. The measures required by those cases often included race-conscious practices, such as mandatory busing and race-based restrictions on voluntary transfers. See, e.g., Columbus Bd. of Ed. v. Penick, 443 U.S. 449, 455, n. 3 (1979); Davis v. Board of School Comm’rs of Mobile Cty., 402 U.S. 33, 37–38 (1971); Green v. School Bd. of New Kent Cty., 391 U.S. 430, 441–442 (1968). Beyond those minimum requirements, the Court left much of the determination of how to achieve integration to the judgment of local communities. Thus, in respect to race-conscious desegregation measures that the Constitution permitted, but did not require (measures similar to those at issue here), this Court unanimously stated: “School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities.” Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 16 (1971) (emphasis added). As a result, different districts—some acting under court decree, some acting in order to avoid threatened lawsuits, some seeking to comply with federal administrative orders, some acting purely voluntarily,

Protecting Against Bias: Segregation and Discrimination

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

some acting after federal courts had dissolved earlier orders—adopted, modified, and experimented with hosts of different kinds of plans, including race-conscious plans, all with a similar objective: greater racial integration of public schools. Overall these efforts brought about considerable racial integration. More recently, however, progress has stalled. Between 1968 and 1980, the number of black children attending a school where minority children constituted more than half of the school fell from 77 percent to 63 percent in the Nation (from 81 percent to 57 percent in the South) but then reversed direction by the year 2000, rising from 63 percent to 72 percent in the Nation (from 57 percent to 69 percent in the South). Similarly, between 1968 and 1980, the number of black children attending schools that were more than 90 percent minority fell from 64 percent to 33 percent in the Nation (from 78 percent to 23 percent in the South), but that too reversed direction, rising by the year 2000 from 33 percent to 37 percent in the Nation (from 23 percent to 31 percent in the South). As of 2002, almost 2.4 million students, or over 5 percent of all public school enrollment, attended schools with a white population of less than 1 percent. Of these, 2.3 million were black and Latino students, and only 72,000 were white. Today, more than one in six black children attend a school that is 99–100 percent minority. In light of the evident risk of a return to school systems that are in fact (though not in law) resegregated, many school districts have felt a need to maintain or to extend their integration efforts. The upshot is that myriad school districts operating in myriad circumstances have devised myriad plans, often with race-conscious elements, all for the sake of eradicating earlier school segregation, bringing about integration, or preventing retrogression. Seattle and Louisville are two such districts, and the histories of their present plans set forth typical school integration stories. I describe those histories at length in order to highlight three important features of these cases. First, the school districts’ plans serve “compelling interests” and are “narrowly tailored” on any reasonable definition of those terms. Second, the distinction between de jure segregation (caused by school systems) and de facto segregation (caused, e.g., by housing patterns or generalized societal discrimination) is meaningless in the present context, thereby dooming the plurality’s endeavor to find support for its views in that distinction. Third, real-world efforts

to substitute racially diverse for racially segregated schools (however caused) are complex, to the point where the Constitution cannot plausibly be interpreted to rule out categorically all local efforts to use means that are“conscious” of the race of individuals. In both Seattle and Louisville, the local school districts began with schools that were highly segregated in fact. In both cities plaintiffs filed lawsuits claiming unconstitutional segregation. In Louisville, a federal district court found that school segregation reflected pre-Brown state laws separating the races. In Seattle, the plaintiffs alleged that school segregation unconstitutionally reflected not only generalized societal discrimination and residential housing patterns, but also school board policies and actions that had helped to create, maintain, and aggravateracial segregation. In Louisville, a federal court entered a remedial decree. In Seattle, the parties settled after the school district pledged to undertake a desegregation plan. In both cities, the school boards adopted plans designed toachieve integration by bringing about more racially diverse schools. In each city the school board modified itsplan several times in light of, for example, hostility to busing, the threat of resegregation, and the desirability of introducing greater student choice. And in each city, the school boards’ plans have evolved over time in ways that progressively diminish the plans’ use of explicit race-conscious criteria. The histories that follow set forth these basic facts. They are based upon numerous sources, which for ease of exposition I have cataloged, along with their correspond A Seattle 1. Segregation, 1945 to 1956. During and just after World War II, significant numbers of black Americans began to make Seattle their home. Few black residents lived outside the central section of the city. Most worked at unskilled jobs. Although black students made up about 3 percent of the total Seattle population in the mid-1950’s, nearly all black children attended schools where a majority of the population was minority. Elementary schools in central Seattle were between 60 percent and 80 percent black; Garfield, the central district high school, was more than 50 percent minority; schools outside the central and southeastern sections of Seattle were virtually all white. 2. Preliminary Challenges, 1956 to 1969. In 1956, a memo for the Seattle School Board reported that The Rocky Road of School Desegregation

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

school segregation reflected not only segregated housing patterns but also school board policies that permitted white students to transfer out of black schools while restricting the transfer of black students into white schools. In 1958, black parents whose children attended Harrison Elementary School (with a black student population of over 75 percent) wrote the Seattle board, complaining that the “‘boundaries for the Harrison Elementary School were not set in accordance with the long-established standards of the School District . . . but were arbitrarily set with an end to excluding colored children from McGilvra School, which is adjacent to the Harrison school district.’” In 1963, at the insistence of the National Association for the Advancement of Colored People (NAACP) and other community groups, the school board adopted a new race-based transfer policy. The new policy added an explicitly racial criterion: If a place exists in a school, then, irrespective of other transfer criteria, a white student may transfer to a predominantly black school, and a black student may transfer to a predominantly white school. At that time one high school, Garfield, was about two-thirds minority; eight high schools were virtually all white. In 1963, the transfer program’s first year, 239 black students and 8 white students transferred. In 1969, about 2200 (of 10,383 total) of the district’s black students and about 400 of the district’s white students took advantage of the plan. For the next decade, annual program transfers remained at approximately this level. 3. The NAACP’s First Legal Challenge and Seattle’s Response, 1969 to 1977. In 1969 the NAACP filed a federal lawsuit against the school board, claiming that theboard had “unlawfully and unconstitutionally” “establish[ed]” and “maintain[ed]” a system of “racially segregated public schools.” The complaint charged that the school board had brought about this segregated system in part by “mak[ing] and enforc[ing]” certain “rules and regulations,” in part by“drawing . . . boundary lines” and “executing school attendance policies” that would create and maintain “predominantly Negro or non-white schools,” and in part by building schools “in such a manner as to restrict the Negro plaintiffs and the class they represent to predominantly negro or non-white schools.” The complaint also charged that the board discriminated in assigning teachers. The board responded to the lawsuit by introducing a plan that required race-based transfers and 496

mandatory busing. The plan created three new middle schools at three school buildings in the predominantly white north end. It then created a “mixed” student body by assigning to those schools students who would otherwise attend predominantly white, or predominantly black, schools elsewhere. It used explicitly racial criteria in making these assignments (i.e., it deliberately assigned to the new middle schools black students, not white students, from the black schools and white students, not black students, from the white schools). And it used busing to transport the students to their new assignments. The plan provoked considerable local opposition. Opponents brought a lawsuit. But eventually a state court found that the mandatory busing was lawful. In 1976–1977, the plan involved the busing of about 500 middle school students (300 black students and 200 white students). Another 1,200 black students and 400 white students participated in the previously adopted voluntary transfer program. Thus about 2000 students out of a total district population of about 60,000 students were involved in one or the other transfer program. At that time, about 20 percent or 12,000 of the district’s students were black. And the board continued to describe 26 of its 112 schools as “segregated.” 4. The NAACP’s Second Legal Challenge, 1977. In 1977, the NAACP filed another legal complaint, this time with the federal Department of Health, Education, and Welfare’s Office for Civil Rights (OCR). The complaint alleged that the Seattle School Board had created or perpetuated unlawful racial segregation through, e.g., certain school-transfer criteria, a construction program that needlessly built new schools in white areas, district line-drawing criteria, the maintenance of inferior facilities at black schools, the use of explicit racial criteria in the assignment of teachers and other staff, and a general pattern of delay in respect to the implementation of promised desegregation efforts. The OCR and the school board entered into a formal settlement agreement. The agreement required the boardto implement what became known as the “Seattle Plan.” 5. The Seattle Plan: Mandatory Busing, 1978 to 1988. The board began to implement the Seattle Plan in 1978. This plan labeled “racially imbalanced” any school at which the percentage of black students exceeded by more than 20 percent the minority population of the school district as a whole. . . .

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The Seattle Plan achieved the school integration that it sought. Just prior to the plan’s implementation, for example, 4 of Seattle’s 11 high schools were “imbalanced,” i.e., almost exclusively “black” or almost exclusively “white.” By 1979, only two were out of “balance.” By 1980 only Cleveland remained out of “balance” (as the board defined it) and that by a mere two students. Nonetheless, the Seattle Plan, due to its busing, provoked serious opposition within the State. See generally Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 461–466 (1982). Thus, Washington state voters enacted an initiative that amended state law to require students to be assigned to the schools closest to their homes. Id., at 462. The Seattle School Board challenged the constitutionality of the initiative. Id., at 464. This Court then held that the initiative— which would have prevented the Seattle Plan from taking effect—violated the Fourteenth Amendment. Id., at 470. 6. Student Choice, 1988 to 1998. By 1988, many white families had left the school district, and many Asian families had moved in. The public school population had fallen from about 100,000 to less than 50,000. The racial makeup of the school population amounted to 43 percent white, 24 percent black, and 23 percent Asian or Pacific Islander, with Hispanics and Native Americans making up the rest. The cost of busing, the harm that members of all racial communities feared that the Seattle Plan caused, the desire to attract white families back to the public schools, and the interest in providing greater school choice led the board to abandon busing and to substitute a new student assignment policy that resembles the plan now before us. The new plan permitted each student to choose the school he or she wished to attend, subject to racebased constraints. In respect to high schools, for example, a student was given a list of a subset of schools, carefully selected by the board to balance racial distribution in the district by including neighborhood schools and schools in racially different neighborhoods elsewhere in the city. The student could then choose among those schools, indicating a first choice, and other choices the student found acceptable. . . 7. The Current Plan, 1999 to the Present. In 1996, the school board adopted the present plan, which began in 1999. In doing so, it sought to deemphasize the use of racial criteria and to increase the likelihood that a student would receive an assignment at his first

or second choice high school. The district retained a racial tiebreaker for oversubscribed schools, which takes effect only if the school’s minority or majority enrollment falls outside of a 30 percent range centered on the minority/majority population ratio within the district. At the same time, all students were free subsequently to transfer from the school at which they were initially placed to a different school of their choice without regard to race. Thus, at worst, a student would have to spend one year at a high school he did not pick as a first or second choice. The new plan worked roughly as expected for the two school years during which it was in effect (1999–2000 and 2000–2001. . . . In the year 2005–2006, by which time the racial tiebreaker had not been used for several years, Franklin’s overall minority enrollment had risen to 90 percent. During the period the tiebreaker applied, it typically affected about 300 students per year. Between 80 percent and 90 percent of all students received their first choice assignment; between 89 percent and 97 percent received their first or second choice assignment. Petitioner Parents Involved in Community Schools objected to Seattle’s most recent plan under the State and Federal Constitutions. In due course, the Washington Supreme Court, the Federal District Court, and the Court of Appeals for the Ninth Circuit (sitting en banc) rejected the challenge and found Seattle’s plan lawful. B Louisville 1. Before the Lawsuit, 1954 to 1972. In 1956, two years after Brown made clear that Kentucky could no longer require racial segregation by law, the Louisville Board of Education created a geographybased student assignment plan designed to help achieve school integration. At the same time it adopted an open transfer policy under which approximately 3000 of Louisville’s 46,000 students applied for transfer. By 1972, however, the Louisville School District remained highly segregated. 2. Court-Imposed Guidelines and Busing, 1972 to 1991. In 1972, civil rights groups and parents, claiming unconstitutional segregation, sued the Louisville Board of Education in federal court. The original litigation eventually became a lawsuit against the Jefferson County School System, which in April 1975 absorbed Louisville’s schools and combined them with those of the surrounding suburbs. (For The Rocky Road of School Desegregation

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ease of exposition, I shall still use “Louisville” to refer to what is now the combined districts.) After preliminary rulings and an eventual victory for the plaintiffs in the Court of Appeals for the Sixth Circuit, the District Court in July 1975 entered an order requiring desegregation. The order’s requirements reflected a (newly enlarged) school district student population of about 135,000, approximately 20 percent of whom were black. The order required the school board to create and to maintain schools with student populations that ranged, for elementary schools, between 12 percent and 40 percent black, and for secondary schools (with one exception), between 12.5 percent and 35 percent black. The District Court also adopted a complex desegregation plan designed to achieve the order’s targets. The plan required redrawing school attendance zones, closing twelve schools, and busing groups of students, selected by race and the first letter of their last names, to schools outside their immediate neighborhoods. The plan’s initial busing requirements were extensive, involving the busing of 23,000 students and a transportation fleet that had to“operate from early in the morning until late in the evening.” For typical students, the plan meant busing for several years (several more years for typical black students than for typical white students). The following notice, published in a Louisville newspaper in 1976, gives a sense of how the district’s race-based busing plan operated in practice: Louisville Courier Journal, June 18, 1976 (reproduced in J. Wilkinson, From Brown to Bakke: The Supreme Court and School Integration 1954–1978, p. 176 (1979)). The District Court monitored implementation of the plan. In 1978, it found that the plan had brought all of Louisville’s schools within its “‘guidelines’ for racial composition” for “at least a substantial portion of the [previous] three years.” It removed the case from its active docket while stating that it expected the board “to continue to implement those portions of the desegregation order which are by their nature of a continuing effect.” By 1984, after several schools had fallen out of compliance with the order’s racial percentages due to shifting demographics in the community, the school board revised its desegregation plan. In doing so, the board created a new racial “guideline,” namely a “floating range of 10 percent above and 10 percent below the countywide average for the different grade levels.” The board simultaneously redrew district boundaries so that middle school students 498

could attend the same school for three years and high school students for four years. It added “magnet” programs at two high schools. And it adjusted its alphabet-based system for grouping and busing students. The board estimated that its new plan would lead to annual reassignment (with busing) of about 8,500 black students and about 8,000 white students. 3. Student Choice and Project Renaissance, 1991 to 1996. By 1991, the board had concluded that assigning elementary school students to two or more schools during their elementary school years had proved educationally unsound and, if continued, would undermine Kentucky’s newly adopted Education Reform Act. It consequentlyconducted a nearly year-long review of its plan. In doing so, it consulted widely with parents and other members of the local community, using public presentations, public meetings, and various other methods to obtain the public’s input. At the conclusion of this review, the board adopted a new plan, called “Project Renaissance,” that emphasized student choice. Project Renaissance again revised the board’s racial guidelines. It provided that each elementary school would have a black student population of between 15 percent and 50 percent; each middle and high school would have a black population and a white population that fell within a range, the boundaries of which were set at 15 percent above and 15 percent below the general student population percentages in the county at that grade level. The plan then drew new geographical school assignment zones designed to satisfy these guidelines; the district could reassign students if particular schools failed to meet the guidelines and was required to do so if a school repeatedly missed these targets. 4. The Current Plan: Project Renaissance Modified, 1996 to 2003. In 1995 and 1996, the Louisville School Board, with the help of a special “Planning Team,” community meetings, and other official and unofficial study groups, monitored the effects of Project Renaissance and considered proposals for improvement. Consequently, in1996, the board modified Project Renaissance, thereby creating the present plan. At the time, the district’s public school population was approximately 30 percent black. The plan consequently redrew the racial “guidelines,” setting the boundaries at 15 percent to50 percent black for all schools. It again redrew school assignment boundaries. And it expanded the transfer opportunities available to elementary and middle school pupils. The plan forbade transfers, however, if the transfer

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would lead to a school population outside the guideline range, i.e., if it would create a school where fewer than 15 percent or more than 50 percent of the students were black. The plan also established “Parent Assistance Centers” to help parents and students navigate the school selectionand assignment process. It pledged the use of other resources in order to “encourage all schools to achieve an African-American enrollment equivalent to the average district-wide AfricanAmerican enrollment at the school’s respective elementary, middle or high school level.” And the plan continued use of magnet schools. In 1999, several parents brought a lawsuit in federal court attacking the plan’s use of racial guidelines at one of the district’s magnet schools. They asked the court to dissolve the desegregation order and to hold the use of magnet school racial guidelines unconstitutional. The board opposed dissolution, arguing that “the old dual system” had left a “demographic imbalance” that “prevent[ed] dissolution.” In 2000, after reviewing the present plan, the District Court dissolved the 1975 order. It wrote that there was “overwhelming evidence of the Board’s goodfaith compliance with the desegregation Decree and itsunderlying purposes.” It added that the Louisville School Board had “treated the ideal of an integrated system asmuch more than a legal obligation—they consider it a positive, desirable policy and an essential element of any well-rounded public school education.” The Court also found that the magnet programs available at the high school in question were “not available at other high schools” in the school district. It consequently held unconstitutional the use of racebased “targets” to govern admission to magnet schools. And it ordered the board not to control access to those scarce programs through the use of racial targets. 5. The Current Lawsuit, 2003 to the Present. Subsequent to the District Court’s dissolution of the desegregation order (in 2000) the board simply continued to implement its 1996 plan as modified to reflect the court’s magnet school determination. In 2003, the petitioner now before us, Crystal Meredith, brought this lawsuit challenging the plan’s unmodified portions, i.e., those portions that dealt with ordinary, not magnet, schools. Both the District Court and the Court of Appeals for the Sixth Circuit rejected Meredith’s challenge and held the unmodified aspects of the plan constitutional.

C The histories I have set forth describe the extensive and ongoing efforts of two school districts to bring about greater racial integration of their public schools. In both cases the efforts were in part remedial. Louisville began its integration efforts in earnest when a federal court in 1975 entered a school desegregation order. Seattle undertook its integration efforts in response to the filing of afederal lawsuit and as a result of its settlement of a segregation complaint filed with the federal OCR. Both districts rethought their methods over time and explored a wide range of other means, including non-race-consciouspolicies. Both districts also considered elaborate studies and consulted widely within their communities. Both districts sought greater racial integration for educational and democratic, as well as for remedial, reasons. Both sought to achieve these objectives while preserving their commitment to other educational goals, e.g., districtwide commitment to high quality public schools, increased pupil assignment to neighborhood schools, diminished use of busing, greater student choice, reduced risk of white flight, and so forth. Consequently, the present plans expand student choice; they limit the burdens (including busing) that earlier plans had imposed uponstudents and their families; and they use race-conscious criteria in limited and gradually diminishing ways. In particular, they use race-conscious criteria only to mark the outer bounds of broad population-related ranges. The histories also make clear the futility of looking simply to whether earlier school segregation was de jure or de facto in order to draw firm lines separating the constitutionally permissible from the constitutionally forbidden use of “race-conscious” criteria. . . . No one here disputes that Louisville’s segregation was de jure. But what about Seattle’s? Was it de facto? De jure? A mixture? Opinions differed. Or is it that a priorfederal court had not adjudicated the matter? Does that make a difference? Is Seattle free on remand to say that its schools were de jure segregated, just as in 1956 a memo for the School Board admitted? The plurality does not seem confident as to the answer. . . . A court finding of de jure segregation cannot be the crucial variable. After all, a number of school districts in the South that the Government or private plaintiffs challenged as segregated by law voluntarily The Rocky Road of School Desegregation

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desegregated their schools without a court order— just as Seattle did. . . . Moreover, Louisville’s history makes clear that a community under a court order to desegregate might submit a race-conscious remedial plan before the court dissolved the order, but with every intention of following that plan even after dissolution. How could such a plan be lawful the day before dissolution but then become unlawful the very next day? On what legal ground can the majority rest its contrary view? The histories also indicate the complexity of the tasks and the practical difficulties that local school boards face when they seek to achieve greater racial integration. The boards work in communities where demographic patterns change, where they must meet traditional learning goals, where they must attract and retain effective teachers, where they should (and will) take account of parents’ views and maintain their commitment to public school education, where they must adapt to court intervention, where they must encourage voluntary student and parentaction—where they will find that their own good faith, their knowledge, and their understanding of local circumstances are always necessary but often insufficient to solve the problems at hand. With this factual background in mind, I turn to the legal question: Does the United States Constitution prohibit these school boards from using raceconscious criteria in the limited ways at issue here? II The Legal Standard A longstanding and unbroken line of legal authority tells us that the Equal Protection Clause permits local school boards to use race-conscious criteria to achieve positive race-related goals, even when the Constitution does not compel it. Because of its importance, I shall repeat what this Court said about the matter in Swann. Chief Justice Burger, on behalf of a unanimous Court in acase of exceptional importance, wrote: “School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities.” 402 U.S., at 16. 500

The statement was not a technical holding in the case. But the Court set forth in Swann a basic principle of constitutional law—a principle of law that has found “wide acceptance in the legal culture.” Thus, in North Carolina Bd. of Ed. v. Swann, 402 U.S. 43, 45 (1971), this Court, citing Swann, restated the point. “[S]chool authorities,” the Court said, “have wide discretion in formulating school policy, and . . . as a matter of educational policy school authorities may well conclude that some kind of racial balance in the schools is desirable quite apart from any constitutional requirements.” Then-Justice Rehnquist echoed this view in Bustop, Inc. v. Los Angeles Bd. of Ed., 439 U.S. 1380, 1383 (1978) (opinion in chambers), making clear that he too believed that Swann’s statement reflected settled law: “While I have the gravest doubts that [a state supreme court] was required by the United States Constitution to take the [desegregation] action that it has taken in this case, I have very little doubt that it was permitted by that Constitution to take such action.” (Emphasis in original.) These statements nowhere suggest that this freedom islimited to school districts where court-ordered desegregation measures are also in effect. Indeed, in McDaniel, a case decided the same day as Swann, a group of parents challenged a race-conscious student assignment plan that the Clarke County School Board had voluntarily adopted as a remedy without a court order (though under federal agency pressure— pressure Seattle also encountered. . . .This Court upheld the plan, see McDaniel, 402 U.S., at 41, rejecting the parents’ argument that “a person may not be included or excluded solely because he is a Negro or because he is white.” Brief for Respondents in McDaniel, O. T. 1970, No. 420, p. 25. Federal authorities had claimed—as the NAACP and the OCR did in Seattle—that Clarke County schools were segregated in law, not just in fact. The plurality’s claim that Seattle was “never segregated by law” is simply not accurate. Compare ante, at 29, with supra, at 6–9. The plurality could validly claim that no court ever found that Seattle schools were segregated in law. But that is also true of the Clarke County schools in McDaniel. Unless we believe that the Constitution enforces one legal standard for the South and another for the North, this Court should grant Seattle the permission it granted Clarke County, Georgia. See McDaniel, 402 U.S., at 41 (“[S]teps will almost invariably require that students be assigned ‘differently because of their race.’ . . .

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Any other approach would freeze the status quo that is the very target of all desegregation processes.”). This Court has also held that school districts may be required by federal statute to undertake race-conscious desegregation efforts even when there is no likelihood that de jure segregation can be shown. In Board of Ed. of City School Dist. of New York v. Harris, 444 U.S. 130, 148–149 (1979), the Court concluded that a federal statute required school districts receiving certain federal funds to remedy faculty segregation, even though in this Court’s view the racial disparities in the affected schools were purely de facto and would not have been actionable under the Equal Protection Clause. Not even the dissenters thought the race-conscious remedial program posed a constitutional problem. Lower state and federal courts had considered the matter settled and uncontroversial even before this Court decided Swann. Indeed, in 1968, the Illinois Supreme Court rejected an equal protection challenge to a race-conscious state law seeking to undo de facto segregation: “. . . . The issue here is whether the constitution permits, rather than prohibits, voluntary State action aimed toward reducing and eventually eliminating de facto school segregation. “State laws or administrative policies, directed toward the reduction and eventual elimination of de facto segregation of children in the schools and racial imbalance, have been approved by every high State court which has considered the issue. Similarly, the Federal courts which have considered the issue . . . have recognized that voluntary programs of local school authorities designed to alleviate de facto segregation and racial imbalance in the schools are not constitutionally forbidden.” Tometz v. Board of Ed., Waukegan School Dist. No. 6, 39 Ill. 2d 593, 597–598, 237 N. E. 2d 498, 501 (1968) (citations omitted) (citing decisions from the high courts of Pennsylvania, Massachusetts, New Jersey, California, New York, and Connecticut, and from the Courts of Appeals for the First, Second, Fourth, and Sixth Circuits). If there were doubts before Swann was decided, they did not survive this Court’s decision. Numerous state and federal courts explicitly relied upon Swann’s guidance for decades to follow. For instance, a Texas appeals court in 1986 rejected a Fourteenth Amendment challenge to a voluntary integration plan . . . Similarly, in Zaslawsky v. Bd. of Ed. of Los Angeles City Unified School Dist., 610 F. 2d 661, 662–664

(1979), the Ninth Circuit rejected a federal constitutional challenge to a school district’s use of mandatory faculty transfers to ensure that each school’s faculty makeup would fall within 10 percent of the district wide racial composition. Like the Texas court, the Ninth Circuit relied upon Swann and North Carolina Bd. of Ed. to reject the argument that “a race-conscious plan is permissible only when there has been a judicial finding of de jure segregation.” 610 F. 2d, at 663–664. See also, e.g., Darville v. Dade County School Bd., 497 F. 2d 1002, 1004–1006 (CA5 1974); State ex rel. Citizens Against Mandatory Bussing v. Brooks, 80 Wash. 2d 121, 128–129, 492 P. 2d 536, 541–542 (1972) (en banc), overruled on other grounds, Cole v. Webster, 103 Wash. 2d 280, 692 P. 2d 799 (1984) (en banc); School Comm. of Springfield v. Board of Ed., 362 Mass. 417, 428–429 287 N. E. 2d 438, 447–448 (1972). These decisions illustrate well how lower courts understood and followed Swann’s enunciation of the relevant legal principle. Courts are not alone in accepting as constitutionally valid the legal principle that Swann enunciated—i.e., that the government may voluntarily adopt raceconscious measures to improve conditions of race even when it is not under a constitutional obligation to do so. That principle has been accepted by every branch of government and isrooted in the history of the Equal Protection Clause itself. Thus, Congress has enacted numerous race-conscious statutes that illustrate that principle or rely upon its validity. See, e.g., 20 U.S. C. §6311(b)(2)(C)(v) (No Child Left Behind Act); §1067 et seq. (authorizing aid to minority institutions). In fact, without being exhaustive, I have counted 51 federal statutes that use racial classifications. I have counted well over 100 state statutes that similarly employ racial classifications. Presidential administrations for the past half-century have used and supported various race-conscious measures. See, e.g., Exec. Order No. 10925, 26 Fed. Reg. 1977 (1961) (President Kennedy); Exec. Order No. 11246, 30 Fed. Reg. 12319 (1965) (President Johnson); Sugrue, Breaking Through: The Troubled Origins of Affirmative Action in the Workplace, in Colorlines: Affirmative Action, Immigration, and Civil Rights Options for America 31 (Skretny ed. 2001) (describing President Nixon’s lobbying for affirmative action plans, e.g., the Philadelphia Plan); White, Affirmative Action’s Alamo: Gerald Ford Returns to Fight Once More for Michigan, Time, Aug. 23, 1999, p. 48 (reporting on President Ford’s support for affirmative action); Schuck, Affirmative Action: Past, Present, and Future, The Rocky Road of School Desegregation

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20 Yale L. & Pol’y Rev. 1,50 (2002) (describing President Carter’s support for affirmation action). And during the same time, hundreds of local school districts have adopted student assignment plans that use race-conscious criteria. See Welch 83–91. That Swann’s legal statement should find such broad acceptance is not surprising. For Swann is predicated upon a well-established legal view of the Fourteenth Amendment. That view understands the basic objective of those who wrote the Equal Protection Clause as forbidding practices that lead to racial exclusion. The Amendment sought to bring into American society as full members those whom the Nation had previously held in slavery. See Slaughter-House Cases, 16 Wall. 36, 71 (1872) (“[N]oone can fail to be impressed with the one pervading purpose found in [all the Reconstruction amendments] . . . we mean the freedom of the slave race”); Strauder v. West Virginia, 100 U.S. 303, 306 (1879) (“[The Fourteenth Amendment] is one of a series of constitutional provisions having a common purpose; namely, securing to a race recently emancipated . . . all the civil rights that the superior race enjoy”). There is reason to believe that those who drafted an Amendment with this basic purpose in mind would have understood the legal and practical difference between the use of race-conscious criteria in defiance of that purpose, namely to keep the races apart, and the use of race conscious criteria to further that purpose, namely to bring the races together. What does the plurality say in response? First, it seeks to distinguish Swann and other similar cases on the ground that those cases involved remedial plans in response to judicial findings of de jure segregation. . . . Second, the plurality downplays the importance of Swann and related cases by frequently describing their relevant statements as “dicta.” Third, a more important response is the plurality’ sclaim that later cases—in particular Johnson, Adarand, and Grutter—supplanted Swann. This Court in Adarand added that “such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” Ibid. And the Court repeated this same statement in Grutter. See 539 U.S., at 326. Several of these cases were significantly more restrictive than Swann in respect to the degree of leniency the Fourteenth Amendment grants to programs designed to include people of all races. See, e.g., Adarand, supra; Gratz, supra; Grutter, supra. 502

But that legal circumstance cannot make a critical difference here for two separate reasons. First, no case—not Adarand, Gratz, Grutter, or any other—has ever held that the test of “strict scrutiny”means that all racial classifications—no matter whether they seek to include or exclude— must in practice be treated the same. The Court did not say in Adarand or in Johnson or in Grutter that it was overturning Swann or its central constitutional principle. . . . The Court’s holding in Grutter demonstrates that the Court meant what it said, for the Court upheld an elite law school’s race-conscious admissions program. Second, as Grutter specified, “[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause.” 539 U.S., at 327 (citing Gomillion v. Lightfoot, 364 U.S. 339, 343–344 (1960)). . . . Here, the context is one in which school districts seek to advance or to maintain racial integration in primary and secondary schools. It is a context, as Swann makes clear, where history has required special administrative remedies. And it is a context in which the school boards’ plans simply set race-conscious limits at the outer boundaries of a broad range. This context is not a context that involves the use of race to decide who will receive goods or services that are normally distributed on the basis of merit and which are in short supply. It is not one in which race-conscious limits stigmatize or exclude; the limits at issue do not pit the races against each other or otherwise significantly exacerbate racial tensions. They do not impose burdens unfairly upon members of one race alone but instead seek benefits for members of all races alike. The context here is one of racial limits that seek, not to keep the races apart, but to bring them together. If one examines the context more specifically, one finds that the districts’ plans reflect efforts to overcome a history of segregation, embody the results of broad experienceand community consultation, seek to expand student choice while reducing the need for mandatory busing, and use race-conscious criteria in highly limited ways that diminish the use of race compared to preceding integration efforts. Compare Wessmann v. Gittens, 160 F. 3d 790, 809–810 (CA1 1998) (BOUDIN, J., concurring), with Comfort, 418 F. 3d, at 28–29 (BOUDIN, C. J., concurring). They do not seek to award a scarce commodity on the basis of merit, for they are not magnet schools; rather, by design and in practice, they offer substantially equiva-

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lent academic programs and electives. Although some parents or children prefer some schools over others, school popularity has varied significantly over the years. In 2000, for example, Roosevelt was the most popular first choice high school in Seattle; in 2001, Ballard was the most popular; in 2000, West Seattle was one of the least popular; by 2003, it was one of the more popular. In a word, the school plans under review do not involve the kind of race-based harm that has led this Court, in other contexts, to find the use of race-conscious criteria unconstitutional. The view that a more lenient standard than “strict scrutiny” should apply in the present context would not imply abandonment of judicial efforts carefully to determine the need for race-conscious criteria and the criteria’s tailoring in light of the need. And the present context requires a court to examine carefully the race-conscious program at issue. In doing so, a reviewing judge must be fully aware of the potential dangers and pitfalls that JUSTICE THOMAS and JUSTICE KENNEDY mention. In my view, this contextual approach to scrutiny is altogether fitting. I believe that the law requires application here of a standard of review that is not “strict” in the traditional sense of that word, although it does require thecareful review I have just described. See Gratz, supra, at 301 (GINSBURG, J., joined by SOUTER, J., dissenting); Adarand, supra, at 242–249 (SOUTER, J., joined by GINSBURG, J., dissenting); 426 F. 3d, at 1193–1194 (KOZINSKI, J., concurring). Apparently JUSTICE KENNEDY also agrees that strict scrutiny would not apply in respect to certain “race-conscious” school board policies. See ante, at 9 (“Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impact a given approach might have on students of different races”). Nonetheless, in light of Grutter and other precedents, see, e.g., Bakke, 438 U.S., at 290 (opinion of POWELL, J.), I shall adopt the first alternative. I shall apply the version of strict scrutiny that those cases embody. I shall consequently ask whether the school boards in Seattle and Louisville adopted these plans to serve a “compelling governmental interest” and, if so, whether the plans are “narrowly tailored” to achieve that interest. If the plans survive this strict review, they would survive less exacting review a fortiori. Hence, I conclude that the plans before us

pass both parts of the strict scrutiny test. Consequently I must conclude that the plans here are permitted under the Constitution. III Applying the Legal Standard A Compelling Interest The principal interest advanced in these cases to justify the use of race-based criteria goes by various names. Sometimes a court refers to it as an interest in achieving racial “diversity.” Other times a court, like the plurality here, refers to it as an interest in racial “balancing.” I have used more general terms to signify that interest, describing it, for example, as an interest in promoting or preserving greater racial “integration” of public schools. By this term, I mean the school districts’ interest in eliminating school-byschool racial isolation and increasing the degree to which racial mixture characterizes each of the district’s schools and each individual student’s public school experience. Regardless of its name, however, the interest at stake possesses three essential elements. First, there is a historical and remedial element: an interest in setting rightthe consequences of prior conditions of segregation. This refers back to a time when public schools were highly segregated, often as a result of legal or administrative policies that facilitated racial segregation in public schools. It is an interest in continuing to combat theremnants of segregation caused in whole or in part by these school-related policies, which have often affected not only schools, but also housing patterns, employment practices, economic conditions, and social attitudes. It is an interest in maintaining hard-won gains. And it has its roots in preventing what gradually may become the de facto resegregation of America’s public schools. See Part I, supra, at 4; Appendix A, infra. See also ante, at 17 (opinion of KENNEDY, J.) (“This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children”). Second, there is an educational element: an interest in overcoming the adverse educational effects produced by and associated with highly segregated schools. Cf. Grutter, 539 U.S., at 345 (GINSBURG, J., concurring). Studies suggest that children taken from those schools and placed in integrated settings The Rocky Road of School Desegregation

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often show positive academic gains. See, e.g., Powell, Living and Learning: Linking Housing and Education, in Pursuit of a Dream Deferred: Linking Housing and Education Policy 15, 35 (J. Powell, G. Kearney, & V. Kay eds. 2001) (hereinafter Powell); Hallinan, Diversity Effects on Student Outcomes: Social Science Evidence, 59 Ohio St. L. J. 733, 741–742 (1998) (hereinafter Hallinan). Other studies reach different conclusions. See, e.g., D. Armor, Forced Justice (1995). See also ante, at 15–17 (THOMAS, J., concurring). But the evidence supporting an educational interest in racially integrated schools is well established and strong enough to permit a democratically elected school board reasonably to determine that this interest is a compelling one. Research suggests, for example, that black children from segregated educational environments significantly increase their achievement levels once they are placed in a more integrated setting. Third, there is a democratic element: an interest in producing an educational environment that reflects the“pluralistic society” in which our children will live. Swann, 402 U.S., at 16. It is an interest in helping our children learn to work and play together with children of different racial backgrounds. It is an interest in teaching children to engage in the kind of cooperation among Americans of all races that is necessary to make a land of three hundred million people one Nation. . . .Again, however, the evidence supporting a democratic interest in racially integrated schools is firmly established and sufficiently strong to permit a school board to determine, as this Court has itself often found, that this interest is compelling. For example, one study documented that “black and white students in desegregated schools are less racially prejudiced than those in segregated schools,” and that “interracial contact in desegregated schools leads to an increase in interracial sociability and friendship.” Hallinan 745. See also Quillian & Campbell 541. Cf. Bowen & Bok 155. Other studies have found that both black and white students who attend integrated schools are more likely to work in desegregated companies after graduation than students who attended racially isolated schools. Dawkins & Braddock 401–403; Wells & Crain 550. Further research has shown that the desegregation of schools can help bring adult communities together by reducing segregated housing. Cities that have implemented successful school desegregation plans have witnessed increased interracial contact and 504

neighborhoods that tend to become less racially segregated. Dawkins & Braddock 403. These effects not only reinforce the prior gains ofintegrated primary and secondary education; they also foresee a time when there is less need to use race-conscious criteria. Moreover, this Court from Swann to Grutter has treated these civic effects as an important virtue of racially diverse education. See, e.g., Swann, supra, at 16; Seattle School Dist. No. 1, 458 U.S., at 472–473. In Grutter, in the context of law school admissions, we found that these types of interests were, constitutionally speaking, “compelling.” See 539 U.S., at 330. In light of this Court’s conclusions in Grutter, the “compelling” nature of these interests in the context of primary and secondary public education follows here a fortiori. Primary and secondary schools are where the education of this Nation’s children begins, where each of us begins to absorb those values we carry with us to the end of our days. As Justice Marshall said, “unless our children begin to learn together, there is little hope that our people will ever learn to live together.” Milliken v. Bradley, 418 U.S. 717, 783 (1974) (dissenting opinion). And it was Brown, after all, focusing upon primary and secondary schools, not Sweatt v. Painter, 339 U.S. 629 (1950), focusing on law schools, or McLaurin v. Oklahoma State Regents for Higher Ed., 339 U.S. 637 (1950), focusing on graduate schools, that affected so deeply not only Americans but the world. R. Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality, p. x (1975) (arguing that perhaps no other Supreme Court case has “affected more directly the minds, hearts, and daily lives of so manyAmericans”); Patterson, Brown v. Board of Education xxvii (2001) (identifying Brown as “the most eagerly awaited and dramatic judicial decision of modern times”). The compelling interest at issue here, then, includes an effort to eradicate the remnants, not of general “societal discrimination,” ante, at 23 (plurality opinion), but of primary and secondary school segregation, see supra, at 7, 14; it includes an effort to create school environments that provide better educational opportunities for all children; it includes an effort to help create citizens better prepared to know, to understand, and to work with people of all races and backgrounds, thereby furthering the kind of democratic government our Constitution foresees. If an educational interest that combines these three elements is not “compelling,” what is?

Protecting Against Bias: Segregation and Discrimination

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

The majority acknowledges that in prior cases this Court has recognized at least two interests as compelling: an interest in “remedying the effects of past intentional discrimination,” and an interest in “diversity in highereducation.” Ante, at 12, 13. But the plurality does not convincingly explain why those interests do not constitute a “compelling interest” here. How do the remedial interests here differ in kind from those at issue in the voluntary desegregation efforts that Attorney General Kennedy many years ago described in his letter to the President? Supra, at 19–20. How do the educational and civic interests differ in kind from those that underlie and justify the racial “diversity” that the law school sought in Grutter, where this Court found a compelling interest? The plurality tries to draw a distinction by reference to the well-established conceptual difference between de jure segregation (“segregation by state action”) and de facto segregation (“racial imbalance caused by other factors”). Ante, at 28. But that distinction concerns what the Constitution requires school boards to do, not what it permits them to do. Compare, e.g., Green, 391 U.S., at 437–438 (“School boards . . . operating state-compelled dual systems” have an “affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch”), with, e.g., Milliken, 418 U.S., at 745 (the Constitution does not impose a duty to desegregate upondistricts that have not been “shown to have committed any constitutional violation”). The opinions cited by the plurality to justify its reliance upon the de jure/de facto distinction only address what remedial measures a school district may be constitutionally required to undertake. See, e.g., Freeman v. Pitts, 503 U.S. 467, 495 (1992). As to what is permitted, nothing in our equal protection law suggests that a State may right only those wrongs that it committed. No case of this Court has ever relied upon the de jure/de facto distinction in order to limit what a school district is voluntarily allowed to do. That is what is at issue here. And Swann, McDaniel, Crawford, North Carolina Bd. of Ed., Harris, and Bustop made one thing clear: significant as the difference between de jure and de facto segregation may be to the question of what a school district must do, that distinction is not germane to the question of what a school district may do. Nor does any precedent indicate, as the plurality suggests with respect to Louisville, ante, at 29, that remedial interests vanish the day after a federal court

declares that a district is “unitary.” Of course, Louisville adopted those portions of the plan at issue here before a court declared Louisville “unitary.” Moreover, in Freeman, this Court pointed out that in “one sense of the term, vestiges of past segregation by state decree do remain in our society and in our schools. Past wrongs to the black race, wrongs committed by the State and in its name, are a stubborn fact of history. And stubborn facts of history linger and persist.” 503 U.S., at 495. See also ante, at 15 (opinion of KENNEDY, J.). I do not understand why this Court’s cases, which rest the significance of a “unitary” finding in partupon the wisdom and desirability of returning schools to local control, should deprive those local officials of legal permission to use means they once found necessary to combat persisting injustices. . . .If we are to insist upon unanimity in the social science literature before finding a compelling interest, we might never find one. I believe only that the Constitution allows democratically elected school boards to make up their own minds as to how best to include people of all races in one America. B Narrow Tailoring I next ask whether the plans before us are “narrowly tailored” to achieve these “compelling” objectives. I shall not accept the school board’s assurances on faith, cf. Miller v. Johnson, 515 U.S. 900, 920 (1995), and I shall subject the “tailoring” of their plans to “rigorous judicial review.” Grutter, 539 U.S., at 388 (KENNEDY, J., dissenting). Several factors, taken together, nonetheless lead me to conclude that the boards’ use of race-conscious criteria in these plans passes even the strictest “tailoring” test. First, the race-conscious criteria at issue only help set the outer bounds of broad ranges. They constitute but one part of plans that depend primarily upon other, nonracial elements. To use race in this way is not to set a forbidden “quota.” See id., at 335 (“Properly understood, a ‘quota’ is a program in which a certain fixed number or proportion of opportunities are ‘reserved exclusively for certain minority groups’” (quoting Croson, 488 U.S., at 496)). In fact, the defining feature of both plans is greater emphasis upon student choice. In Seattle, for example, in more than 80 percent of all cases, that choice alone determines which high schools Seattle’s ninth graders will attend. After ninth grade, students can decide voluntarily to transfer to a preferred The Rocky Road of School Desegregation

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district high school (without any consideration of race-conscious criteria). Choice, therefore, is the “predominant factor” in these plans. Race is not. See Grutter, supra, at 393 (KENNEDY, J., dissenting) (allowing consideration of race only if it does “not become a predominant factor”). Indeed, the race-conscious ranges at issue in these cases often have no effect, either because the particular school is not oversubscribed in the year in question, or because the racial makeup of the school falls within the broad range, or because the student is a transfer applicant or has a sibling at the school. In these respects, the broad ranges are less like a quota and more like the kinds of “useful starting points” that this Court has consistently found permissible, even when they set boundaries upon voluntary transfers, and even when they are based upon a community’s general population. Second, broad-range limits on voluntary school choice plans are less burdensome, and hence more narrowly tailored, see Grutter, supra, at 341, than other race-conscious restrictions this Court has previously approved. . . Indeed, the plans before us are more narrowly tailored than the race-conscious admission plans that this Court approved in Grutter. Here, race becomes a factor only in a fraction of students’ non-merit-based assignments—not in large numbers of students’ merit-based applications. Moreover, the effect of applying race-conscious criteria here affects potentially disadvantaged students less severely, not more severely, than the criteria at issue in Grutter. Disappointed students are not rejected from a State’s flagship graduate program; they simply attend a different one of the district’s many public schools, which in aspiration and in fact are substantially equal. Cf. Wygant, 476 U.S., at 283. And, in Seattle, the disadvantaged student loses at most one year at the high school of his choice. One will search Grutter in vain for similarly persuasive evidence of narrow tailoring as the school districts have presented here. Third, the manner in which the school boards developed these plans itself reflects “narrow tailoring.” Each plan was devised to overcome a history of segregated public schools. Each plan embodies the results of local experience and community consultation. Each plan is the product of a process that has sought to enhance student choice, while diminishing the need for mandatory busing. And each plan’s use of race-conscious elements is diminished compared to the use of race in preceding integration plans. 506

The school boards’ widespread consultation, their experimentation with numerous other plans, indeed, the forty year history that Part I sets forth, make clear that plans that are less explicitly race-based are unlikely to achieve the board’s “compelling” objectives. The history of each school system reveals highly segregated schools, followed by remedial plans that involved forced busing, followed by efforts to attract or retain students through the use of plans that abandoned busing and replaced it with greater student choice. Moreover, giving some degree of weight to a local school board’s knowledge, expertise, and concerns in these particular matters is not inconsistent with rigorous judicial scrutiny. It simply recognizes that judges are not well suited to act as school administrators. Indeed, in the context of school desegregation, this Court has repeatedly stressed the importance of acknowledging that local school boards better understand their own communities and have a better knowledge of what in practice will best meet the educational needs of their pupils. Experience in Seattle and Louisville is consistent with experience elsewhere. In 1987, the U.S. Commission on Civil Rights studied 125 large school districts seeking integration. It reported that most districts—92 of them, in fact—adopted desegregation policies that combined two or more highly race-conscious strategies, for example, rezoning or pairing. See Welch 83–91. Indeed, if there is no such plan, or if such plans are purely imagined, it is understandable why, as the plurality notes, ante, at 27, Seattle school officials concentrated on diminishing the racial component of their districts’ plan, but did not pursue eliminating that element entirely. For the plurality now to insist as it does, ante, at 27–28, that these school districts ought to have said so officially is either to ask for the superfluous (if they need only make explicit what is implicit) or to demand the impossible (if they must somehow provide more proof that there is no hypothetical other plan that could work as well as theirs). I am not aware of any case in which this Court has read the “narrow tailoring” test to impose such a requirement. . . . The plurality also points to the school districts’ use of numerical goals based upon the racial breakdown of the general school population, and it faults the districts for failing to prove that no other set of numbers will work. See ante, at 18–20. The plurality refers to no case in support of its demand. Nor is it likely to find such a case. After all, this Court has in many

Protecting Against Bias: Segregation and Discrimination

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

cases explicitly permitted districts to use target ratios based upon the district’s underlying population. Nor could the school districts have accomplished their desired aims (e.g., avoiding forced busing, countering white flight, maintaining racial diversity) by other means. Nothing in the extensive history of desegregation efforts over the past fifty years gives the districts, or this Court, any reason to believe that another method is possible to accomplish these goals. . . . Finally, I recognize that the Court seeks to distinguish Grutter from these cases by claiming that Grutter arose in “‘the context of higher education.’” Ante, at 16. But that is not a meaningful legal distinction. I have explained why I do not believe the Constitution could possibly find “compelling” the provision of a racially diverse education for a twentythree-year-old law student but not for a thirteen-yearold high school pupil. See supra, at 46–48. And I have explained how the plans before us are more narrowly tailored than those in Grutter. See supra, at 45. I add that one cannot find a relevant distinction in the fact that these school districts did not examine the merits of applications “individual[ly].” See ante, at 13–15. The context here does not involve admission by merit; a child’s academic, artistic, and athletic “merits” are not at all relevant to the child’s placement. These are not affirmative action plans, and hence “individualized scrutiny” is simply beside the point. The upshot is that these plans’ specific features— (1) their limited and historically-diminishing use of race, (2) their strong reliance upon other non-raceconscious elements, (3) their history and the manner in which the districts developed and modified their approach, (4) the comparison with prior plans, and (5) the lack of reasonably evident alternatives—together show that the districts’ plans are “narrowly tailored” to achieve their “compelling” goals. In sum, the districts’ race-conscious plans satisfy “strict scrutiny” and are therefore lawful. IV Direct Precedent Two additional precedents more directly related to the plans here at issue reinforce my conclusion. The first consists of the District Court determination in the Louisville case when it dissolved its desegregation order that there was “overwhelming evidence of the Board’s good faith compliance with the desegregation Decree and its underlying purposes,” indeed that the Board had “treated the ideal of an integrated

system as much more than a legal obligation—they consider it a positive, desirable policy and an essential element of any well-rounded public school education.” Hampton II, 102 F. Supp. 2d, at 370. When the court made this determination in 2000, it did so in the context of the Louisville desegregation plan that the board had adopted in 1996. . . . Second, Seattle School Dist. No. 1, 458 U.S. 457, is directly on point. That case involves the original Seattle Plan, a more heavily race-conscious predecessor of the very plan now before us. In Seattle School Dist. No. 1, this Court struck down a state referendum that effectively barred implementation of Seattle’s desegregation plan and “burden[ed] all future attempts to integrate Washington schools in districts throughout the State.” Id., at 462–463, 483. Because the referendum would have prohibited theadoption of a school-integration plan that involved mandatory busing, and because it would have imposed a special burden on school integration plans (plans that sought to integrate previously segregated schools), the Court found it unconstitutional. In reaching this conclusion, the Court did not directly address the constitutional merits of the underlying Seattle plan. But it explicitly cited Swann’s statement that the Constitution permitted a local district to adopt such a plan. 458 U.S., at 472, n. 15. It also cited to Justice Powell’s opinion in Bakke, approving of the limited use of race-conscious criteria in a universityadmissions “affirmative action” case. 458 U.S., at 472, n. 15. In addition, the Court stated that “[a]ttending an ethnically diverse school,” id., at 473, could help prepare “minority children for citizenship in our pluralistic society,” hopefully “teaching members of the racial majority to live in harmony and mutual respect with children of minority heritage.” Ibid. (internal quotation marks and citation omitted). It is difficult to believe that the Court that held unconstitutional a referendum that would have interfered with the implementation of this plan thought that the integration plan it sought to preserve was itself an unconstitutional plan. And if Seattle School Dist. No. 1 is premised upon the constitutionality of the original Seattle Plan, it is equally premised upon the constitutionality of the present plan, for the present plan is the Seattle Plan, modified only insofar as it places even less emphasis on race-conscious elements than its predecessors. It is even more difficult to accept the plurality’s contrary view, namely that the underlying plan was unconstitutional. If that is so, then all of Seattle’s earlier The Rocky Road of School Desegregation

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(even more race-conscious) plans must also have been unconstitutional. That necessary implication of the plurality’s position strikes the 13th chime of the clock. How could the plurality adopt a constitutional standard that would hold unconstitutional large numbers of race-conscious integration plans adopted by numerous school boards over the past fifty years while remaining true to this Court’s desegregation precedent? V Consequences The Founders meant the Constitution as a practical document that would transmit its basic values to future generations through principles that remained workable over time. Hence it is important to consider the potential consequences of the plurality’s approach, as measured against the Constitution’s objectives. To do so provides further reason to believe that the plurality’s approach is legally unsound. At the state level, forty-six States and Puerto Rico have adopted policies that encourage or require local school districts to enact interdistrict or intradistrict open choice plans. Eight of those States condition approval of transfers to another school or district on whether the transfer will produce increased racial integration. Eleven other States require local boards to deny transfers that are not in compliance with the local school board’s desegregation plans. At a minimum, the plurality’s views would threaten a surge of race-based litigation. Hundreds of state and federal statutes and regulations use racial classifications for educational or other purposes. See supra, at 27. In many such instances, the contentious force of legal challenges to these classifications, meritorious or not, would displace earlier calm. The wide variety of different integration plans that school districts use throughout the Nation suggests that the problem of racial segregation in schools, including de facto segregation, is difficult to solve. The fact that many such plans have used explicitly racial criteria suggests that such criteria have an important, sometimes necessary, role to play. The fact that the controlling opinion would make a school district’s use of such criteria often unlawful (and the plurality’s “colorblind” view would make such use always unlawful) suggests that today’s opinion will require setting aside the laws of several States and many local communities. As I have pointed out, supra, at 4, de facto resegregation is on the rise. See Appendix A, infra. It is reasonable to conclude that such resegregation can 508

create serious educational, social, and civic problems. See supra, at 37–45. Given the conditions in which school boards work to set policy, see supra, at 20–21, they may need all of the means presently at their disposal to combat those problems. Yet the plurality would deprive them of at least one tool that some districts now consider vital—the limited use of broad race-conscious student population ranges. I use the words “may need” here deliberately. . . . By way of contrast, I do not claim to know how best to stop harmful discrimination; how best to create a society that includes all Americans; how best to overcome our serious problems of increasing de facto segregation, troubled innercity schooling, and poverty correlated with race. But, as a judge, I do know that the Constitution does not authorize judges to dictate solutions to these problems. Rather, the Constitution creates a democratic political system through which the people themselves must together find answers. And it is for them to debate how best to educate the Nation’s children and how best to administer America’s schools to achieve that aim. The Court should leave them to their work. And it is for them to decide, to quote the plurality’s slogan, whether the best “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Ante, at 40–41. See also Parents Involved VII, 426 F. 3d, at 1222 (BEA, J., dissenting) (“The way to end racial discrimination is to stop discriminating by race”). That is why the Equal Protection Clause outlaws invidious discrimination, but does not similarly forbid all use of race-conscious criteria. Until today, this Court understood the Constitution as affording the people, acting through their elected representatives, freedom to select the use of “race-conscious” criteria from among their available options. See Adarand Constructors, Inc., 515 U.S., at 237 (“[S]trict scrutiny” in this context is “[not] ‘strict in theory, but fatal in fact’” (quoting Fullilove, 448 U.S., at 519 (MARSHALL, J., concurring in judgment))). Today, however, the Court restricts (and some Members would eliminate) that leeway. I fear the consequences of doing so for the law, for the schools, for the democratic process, and for America’s efforts to create, out of its diversity, one Nation. VI Conclusions To show that the school assignment plans here meet the requirements of the Constitution, I have written

Protecting Against Bias: Segregation and Discrimination

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

at exceptional length. But that length is necessary. I cannot refer to the history of the plans in these cases to justify the use of race-conscious criteria without describing that history in full. I cannot rely upon Swann’s statement that the use of race-conscious limits is permissible without showing, rather than simply asserting, that the statement represents a constitutional principle firmly rooted in federal and state law. Nor can I explain my disagreement withthe Court’s holding and the plurality’s opinion, without offering a detailed account of the arguments they propound and the consequences they risk. Thus, the opinion’s reasoning is long. But its conclusion is short: The plans before us satisfy the requirements ofthe Equal Protection Clause. And it is the plurality’s opinion, not this dissent that “fails to ground the result itwould reach in law.” Ante, at 28. Four basic considerations have led me to this view. First, the histories of Louisville and Seattle reveal complex circumstances and a long tradition of conscientious efforts by local school boards to resist racial segregation inpublic schools. Segregation at the time of Brown gave way to expansive remedies that included busing, which in turn gave rise to fears of white flight and resegregation. For decades now, these school boards have considered and adopted and revised assignment plans that sought to rely less upon race, to emphasize greater student choice, and to improve the conditions of all schools for all students, no matter the color of their skin, no matter where they happen to reside. The plans under review—which are less burdensome, more egalitarian, and more effective than prior plans—continue in that tradition. And their history reveals school district goals whose remedial, educational, and democratic elements are inextricably intertwined eachwith the others. See Part I, supra, at 2–21. Second, since this Court’s decision in Brown, the law has consistently and unequivocally approved of both voluntary and compulsory race-conscious measures to combat segregated schools. The Equal Protection Clause, ratified following the Civil War, has always distinguished in practice between state action that excludes and thereby subordinates racial minorities and state action that seeks to bring together people of all races. From Swann to Grutter, this Court’s decisions have emphasized this distinction, recognizing that the fate of race relations in this country depends upon unity among our children, “for unless our children begin to learn together, there is little hope that our people will ever learn to live

together.” Milliken, 418 U.S., at 783 (Thurgood MARSHALL, dissenting. Third, the plans before us, subjected to rigorous judicial review, are supported by compelling state interests and are narrowly tailored to accomplish those goals. Just as diversity in higher education was deemed compelling in Grutter, diversity in public primary and secondary schools—where there is even more to gain—must be, a fortiori, a compelling state interest. . . . Fourth, the plurality’s approach risks serious harm to the law and for the Nation. Its view of the law rests either upon a denial of the distinction between exclusionary and inclusive use of race-conscious criteria in the context of the Equal Protection Clause, or upon such a rigid application of its “test” that the distinction loses practical significance. Consequently, the Court’s decision today slows down and sets back the work of local school boards to bring about racially diverse schools. Indeed, the consequences of the approach the Court takes today are serious. Yesterday, the plans under review were lawful. Today, they are not. Yesterday, the citizens of this Nation could look for guidance to thisCourt’s unanimous pronouncements concerning desegregation. Today, they cannot. Yesterday, school boards had available to them a full range of means to combat segregated schools. Today, they do not. The Court’s decision undermines other basic institutional principles as well. What has happened to stare decisis? The history of the plans before us, their educational importance, their highly limited use of race—allthese and more—make clear that the compelling interest here is stronger than in Grutter. The plans here are more narrowly tailored than the law school admissions program there at issue. Hence, applying Grutter’s strict test, their lawfulness follows a fortiori. To hold to the contrary is to transform that test from “strict” to “fatal in fact”—the very opposite of what Grutter said. And what has happened to Swann? To McDaniel? To Crawford? To Harris? To School Committee of Boston? To Seattle School Dist. No. 1? After decades of vibrant life, they would all, under the plurality’s logic, be written out of the law. *** Finally, what of the hope and promise of Brown? For much of this Nation’s history, the races remained divided. It was not long ago that people of different races drank from separate fountains, rode on separate buses, and studied in separate schools. In this The Rocky Road of School Desegregation

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Court’s finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality— not as a matter of fine words on paper, but as a matter of everyday life in the Nation’s cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live. Not everyone welcomed this Court’s decision in Brown. Three years after that decision was handed down, the Governor of Arkansas ordered state militia to block the doors of a white schoolhouse so that black children could not enter. The President of the United States dispatched the 101st Airborne Division to Little Rock, Arkansas, and federal troops were needed to enforce a desegregation decree. See Cooper v. Aaron, 358 U.S. 1 (1958). Today, over fifty years later, attitudes toward race in this Nation have changed dramatically. Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, the very school districts that once spurned integration now strive for it. The long history of their efforts reveals the complexities and difficulties they have faced. And in light of those challenges, they have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty. The plurality would decline their modest request. The plurality is wrong to do so. The last halfcentury has witnessed great strides toward racial equality, but wehave not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret. I must dissent.

DESEGREGATION ISSUES IN HIGHER EDUCATION The same states that separated elementary and secondary school pupils on the basis of race also provided for racial segregation in their institutions of higher learning. Several states of the “Old Confederacy” established “Negro” colleges and universities, and a number of private colleges were 510

developed and maintained by churches and other private philanthropy organizations to make higher education accessible for black students. By the time of Brown, public authorities were operating 32 of these institutions, and private sources maintained more than 40 of them. Together these “historic black colleges and universities” (HBCUs) nurtured and developed most of the nation’s African-American professional class and leaders. Supreme Court Justice Thurgood Marshall, Dr. Martin Luther King, Jr., President Clinton’s Transition Team Chair Vernon Jordan, former United Nations Ambassador Andrew Young, and former Congressperson Barbara Jordan completed their undergraduate educations at those institutions. Because so many African-American students found the culture of the HBCUs more conducive to their total development than integrated schools, considerable efforts have been undertaken during the post-Brown era to maintain the publicly supported schools as identifiable African-American institutions despite the mandate of Brown I and Brown II. Hence, very little was done to alter their character. A token few “other” race students enrolled at the traditional “white” institutions and the HBCUs under nondiscriminatory admissions policies. Even occasional pressure from the Justice and Education Departments failed to alter significantly the racial character of these institutions. Maintaining what is essentially a dual system of comprehensive colleges and universities is an expensive undertaking, and the fiscal resources problem is compounded in the states where most of the HBCUs are located because of their very weak revenue capacities. Hence, the HBCUs almost never received their fair share of resources. Many attempts were made to ameliorate this condition (e.g., increased federal support for the historic black colleges and universities under Title III of the Higher Education Act of 1965). In the mid-1970s, African Americans in Mississippi challenged the funding disparity between the traditionally white colleges and universities and the HBCUs in that state. The federal government later joined in that challenge, resulting in the Supreme Court’s decision in United States v. Fordice (505 U.S. 717) in 1992. Although the plaintiffs’ position alleging the discriminatory allocation of resources was sustained, that victory was tempered with unforeseen negative possibilities. Some African-American defenders of the HBCUs are concerned that many of the publicly supported schools will not be able to maintain high

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standards in future because state legislatures and governing boards are dominated by whites and the fiscal capacity to sustain higher education continues to deteriorate. These supporters fear that state authorities may move to comply with the Fordice ruling by terminating their HBCUs as identifiable, freestanding institutions. The immediate consequence would be that African-American students would have to apply to the traditionally white universities and colleges in the state; confronted with more restrictive admissions policies, many of them would be unable to enroll. In his concurring opinion, Justice Thomas recognized this possibility, but cautioned that the standard advanced by the Court in this higher education context is less stringent than the one forged in the 1968 Green case to achieve compliance with Brown at the elementary and secondary school levels. In that case, he noted, the essence of the Court’s holding was that states are required to reform policies still in force from the old de jure segregation era that have discriminatory effects, “to the extent practical and consistent with sound educational policies” (emphasis added). Thomas concluded that the standard “does not compel the elimination of all observed racial imbalance” and hence does not portend “the destruction of [HBCUs] nor the severing of those institutions from their distinctive histories and traditions.” But the policy options that Fordice appears to leave to states that continue to operate essentially “white” and “black” colleges and universities will undoubtedly spawn litigation for years to come. In Regents of the University of California v. Bakke (438 U.S. 265, 1978), Gratz v. Bollinger (539 U.S. 244, 2003), and Grutter v. Bollinger (539 U.S. 309, 2003), the Supreme Court focused on racial diversity in universities and professional schools in states that have not mandated by statutes separate educational facilities for blacks and whites. Bakke held that the set-aside policy and programs at the medical school at the University of California at Davis violated the Equal Protection Clause of the Fourteenth Amendment. Writing for a plurality, Justice Powell asserted that the set-aside spots for racial minorities constituted a quota, denying individuals an opportunity to be considered on the basis of their own merit. Powell argued that racial classifications require strict scrutiny. He rejected the contention that societal discrimination met the standard of strict scrutiny. For Powell, racial discrimination against blacks was legally and judicially indistin-

guishable from discrimination against white ethnic groups. Justice Powell maintained that present-day whites were innocent. He also concluded that diversity survives the exacting standard of strict scrutiny. He further contended that race could be a plus in admission decisions. The Gratz Court held that the University of Michigan’s College of Literature, Science and Arts affirmative action policy failed the strict scrutiny standard. Speaking for the sharply divided Court, Chief Justice Rehnquist argued that the “university’s use of race in its current freshman admissions policy is not narrowly tailored to achieve . . . [the] asserted compelling interest in diversity.” The admissions policy “violates the Equal Protection Clause of the Fourteenth Amendment. We further find that the admissions policy also violates Title VI and 42 U.S.C. section 1981.” In a concurring opinion, Justice O’Connor claimed that “the record . . . does not support the conclusion that the university’s admissions program for its College of Literature, Science and the Arts—to the extent that it considers race—provides the necessary individualized consideration.” She labeled the college current system “a non-individualized, mechanical one.” In her dissenting opinion, Justice Ginsburg questioned what she called “this insistence on ‘consistency.’” Ginsburg contended that this pursuit “would be fitting were our nation free of the vestiges of race discrimination long enforced by law. But we are far distant from an overtly discriminatory past, and the effects of centuries of law-sanctioned inequality remain painfully evident in our communities and schools.” She placed the admissions policy in the context of racial differences in unemployment, poverty, and access to health care: All too often African Americans and Hispanic children are educated at poverty-stricken and underperforming institutions; there is a sharp disparity between African Americans’ income and equivalently educated whites; there is racial prejudice in real estate markets and consumer transactions. Ginsburg distinguished actions specifically intended to overcome “entrenched discrimination and its after effects” from other actions. She concluded, “I see no constitutional infirmity” in the Freshman Admission Policy. Ginsburg argued that the “stain of generations of racial oppression is still visible in our society and the determination to hasten its removal remains vital.” She suggested that the Court is encouraging universities to engage in less than honesty approaches to recruit minority students (i.e., encouraging students to write The Rocky Road of School Desegregation

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about their cultural traditions in essays, to indicate whether English is their second language, to highlight their minority group association, to highlight their Hispanic surnames, to have teachers emphasize who a student is as much as what he or she has accomplished).

In Grutter v. Bollinger, the majority concluded that the law school’s admission policy narrowly tailored the use of race to further a compelling interest of diversity. See more discussion in the Chapter 13 on affirmation action.

SELECTED REFERENCES Adamson, Bryan L. “A Thousand Humiliations: What Brown Could Not Do,” The Scholar, Vol. 9 (2007), 187. Amar, Abhil Reed. “The Supreme Court 1999–Forward: The Document and the Doctrine.” Harvard Law Review 26 (2000). Armor, David J. Forced Justice: School Desegregation and the Law. New York: Oxford University Press, 1995. Banks, Tonell Taunya. “Trampling Whose Rights? Democratic Majority Rule and Racial Minorities: A Response to Chin and Wagner.” Harvard Civil RightsCivil Liberties Law Review 127–164 (2008). Bell, Derrick A. “Brown v. Board of Education and the Interest–Convergence Dilemma.” 93 Harvard Law Review 518–533. Bunch, Kenyon D. “Patrick E. Higginbotham’s Third Road to Desegregating Higher Education: Something Old or Something New?” 18 Ohio Northern University Law Review 11 (1991). Clotfelter, Charles T. After Brown: The Rise and Retreat of School Desegregation. Princeton, NJ: Princeton University Press, 2004. Epp, Charles R. “Courts and the Rights Revolution.” The Judicial Branch. Eds. Kermit L. Hall and Kevin T. McGuire. New York: Oxford University (2005). Feagin, Joe R. and Bernice McNair Barnett. “How Systemic Racism Trumped the Brown v. Board of Education Decision.” University of Illinois Law Review 1099–1130 (2004). Fife, Brian L. School Desegregation in the Twenty-First Century. Lewiston, NY: E. Mellen Press, 1997. Fischbach, Jonathan, Will Rhee, and Robert Cacace. “Race at the Pivot Point: The Future of Race-Based Policies to Remedy De Jure Segregation After Parents Involved in Community Schools,” 43 Harvard Civil Rights-Civil Liberties Law Review 491–538 (2008). Frankenberg, Erica and Orfield, Gary. Lessons in Integration: Realizing the Promise of Racial Diversity in American Schools. Charlottesville, NC: University of Virginia Press, 2007. Freeman, Alan D. “Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine.” 62 Minnesota Law Review 1049–1119.

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Freyer, Tony Allan. Little Rock on Trial: Cooper v. Aaron and School Segregation. Lawrence: University Press of Kansas, 2007. Frye, Joycelyn, et al. “The Rise and Fall of the United States Commission on Civil Rights,” 22 Harvard Civil Rights-Civil Liberties Law Review 450 (Spring 1987). Hanell, Joy. “The Future of Desegregation after Dowell: Returning to Pre-Brown Days,” 56 Missouri Law Review 1141 (Fall 1991). Harrison, Rea J. “Black and White Prom Nights: The Unconstitutionality of Racially Segregated High School Proms in the Twenty-First Century,” Journal of Gender, Race and Justice, Vol. 10, No. 3 (2007), 505–531. Hunter, Richard C. “The Administration of Court-Ordered Desegregation in Urban School Districts: The Law and Experience,” Journal of Negro Education, Vol. 73, No. 3 (2004), 218–229. Jones, D. Marvin. “Plessy’s Ghost: Grutter, Seattle, and the Quiet Reversal of Brown,” Pepperdine Law Review, Vol. 35 (2008), 583. Kluger, Richard. Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality. New York: Vintage Books, 1977. Kujovich, Gilo. “Equal Opportunity in Higher Education and the Black College: The Era of Separate, but Equal,” 72 Minnesota Law Review 29 (October 1987). Liu, Goodwin. “‘History Will Be Heard’: An Appraisal of the Seattle/Louisville Decision,” Harvard Law and Policy Review, Vol. 2, No. 1 (2008), 54–73. McUsic, Molly S. “The Future of Brown v. Board of Education: Economic Integration of the Public Schools,” Harvard Law Review, Vol. 117, No. 5 (2004), 1334–1377. Moran, Rachel F. “Rethinking Race, Equality and Liberty: The Unfulfilled Promise of Parents Involved,” Ohio State Law Journal, Vol. 69, No. 6 (2009). Ogletree, Charles J. All Deliberate Speed: Reflections on the First Half Century of Brown v. Board of Education. New York: W. W. Norton & Co., 2004. Ogletree, Charles P. and Eaton, Susan. “From Little Rock to Seattle and Louisville: Is ‘All Deliberate Speed’ Stuck in Reverse?” University of Arkansas at Little Rock Law Review, Vol. 30 (2007–08), 279.

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Orfield, Gary. Deepening Segregation in American Public Schools. Cambridge, MA: Harvard Project on School Desegregation, 1997. Orfield, Gary. Dismantling Desegregation. New York: New Press, 1996. Orfield, Gary and Chungmei Lee. “Racial Transformation and the Changing Nature of Segregation.” Cambridge, MA: The Civil Rights Project, Harvard University (2006). Perea, Juan F. “Buscando América: Why Integration and Equal Protection Fail to Protect Latinos,” Harvard Law Review, Vol. 117, No. 5 (2004), 1420–1469. Powell, John A. and Menendian, Stephen. “Parents Involved: The Mantle of Brown, the Shadow of Plessy,” University of Louisville Law Review, Vol. 36 (2008), 631. Reed, Douglas S. On Equal Terms: The Constitutional Politics of Educational Opportunity. Princeton, NJ: Princeton University Press, 2001.

Rosenberg, Gerald N. The Hollow Hope: Can Courts Bring About Social Change? University of Chicago (1991). Stuart Wells, Amy, Tijerina Revilla, Anita, Jellison Holme, Jennifer and Korantemaa Atanda, Awo. “The Space between School Desegregation, Court Orders and Outcomes: The Struggle to Challenge White Privilege,” Virginia Law Review, Vol. 90, No. 6 (2004), 1721–1751. Whitman, Mark, ed. The Irony of Desegregation Law, 1955–1995: Essays and Documents. Princeton, NJ: M. Wiener, 1997. Williams, John B. Race Discrimination in Public Higher Education: Interpreting Federal Civil Rights Enforcement, 1964–1996. Westport, CT: Praeger, 1997.

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CHAPTER 13

THE CONTINUING SIGNIFICANCE OF RACE: THE PREVALENCE OF BIASES AND THE AFFIRMATIVE ACTION CONTROVERSY

FEATURED CASES Griggs v. Duke Power Co.; Regents of the University of California v. Bakke; Grutter v. Bollinger; Ricci v. DeStefano

BROWN: THE CATALYST FOR RACIAL CHANGE IN THE WORKPLACE Brown v. Board of Education is the catalyst that inched America toward a national policy that forbids inequality in myriad areas, including employment opportunities. Title VII and a series of executive orders pursued the establishment of workplaces that do not discriminate against Americans due to their racial, ethnic, religious, or gender status. The available evidence suggests that the salience of race and color has not been satisfactorily eradicated. Over the past two decades, the politics of employment opportunity from the years 1990–2010 is a vantage point from which we may observe the challenges, retrenchments, and backlashes that dominate issues of color and race. Participants include the branches of the federal, state, and local government; business and labor groups; and civil rights, and conservative interest groups. Brown has become the gold standard of racial politics. Participants in the conflict over employment opportunities have framed their social discourse in terms of what Brown does or does not require. On the one hand, some groups argue that Brown stands for the antisubordination of historically disadvantaged

groups, especially African Americans. The assumption is that Brown is intended to dislodge cultural, institutional, and structural factors and forces that subordinate the status of African Americans. On the other hand, other participants in the debate say that Brown requires the anti-classification of people on the basis of race. They insist that government is forbidden to classify people according to their race. The controversy over affirmative action brings to the fore the competing understandings of Brown. The opposing assessments of Brown ultimately affect the breadth and strength of the application of Title VII as well as state and local policy and decision-making. Even decision makers in colleges and universities are touched by these interpretations. The antisubordination position seems to be very sensitive to the way in which history and past political–social–legal stratifications reverberate in contemporary America. It is accepted that the past frames issues and significantly determines the status of historically disadvantaged groups in the age of diversity. President Johnson’s Executive Order 11246, which was issued in 1965, is an example of the antisubordination position. Executive Order 11246 required contractors to take “affirmative action to

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ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origins.” President Johnson sought to give legs to Title VII and the principles of Brown. A stern criticism of the “First Reconstruction” was that the legislative enactments did not go far enough to prevent the subordination of the newly freed slaves. The First Reconstruction describes the period of federal involvement in recognizing, securing, and protecting the rights of the newly freed slaves from roughly 1865 to 1883. Except for the Civil Rights Acts of 1866 and 1875, the enactments were not very comprehensive. As noted in Chapter 11, the Civil Rights Cases of 1883 virtually brought the First Reconstruction to a halt and provided nourishment and opportunity for the successful resistance to the civil rights of blacks. The “Second Reconstruction” era, meaning the post-Brown era, has been very conflicted. Even so, significant strides have been made toward including African Americans and other historically excluded groups in major dimensions of America’s political, economic, and social order. President Jimmy Carter’s policies and position on race might be labeled antisubordination. Carter appointed a record number of African Americans and members of ethnic and racial minorities to important governmental positions, especially the federal judiciary. He questioned the traditional premise and notion of merit in assessing prospective nominees for the federal courts. Several presidential administrations seemed to favor an anticlassification understanding of Brown. Those presidents tried to restrict the role of the federal government, especially the federal judiciary, on racial matters and to restrict state and local government officials and administrative and institutional decision makers from expanding policy on racial equality. The Reagan administration, for example, took very staunch stands on the use of race in a host of areas, especially racial equality in employment. President Reagan worked very closely with what he estimated to be the national mood. Under Reagan, Justice Department officials scaled down civil rights enforcement efforts. For example, consent decrees were pursued over full-scale litigations, and little support was given to congressional actions to strengthen federal fair housing laws. State and local decision makers were under reduced pressure to

adhere to requirements of Section 5 of the Voting Rights Act of 1965. During Reagan’s second term, the Justice Department lobbied local governments to limit or drop affirmative action programs, even though these programs increased racial diversity. Moreover, the Reagan administration became a training camp for conservative positions and lawyers on race. Chief Justice John Roberts and Justice Alito, both known as conservatives, served in the Reagan Justice Department. The Reagan administration was very adept at using the Supreme Court to advance its anticlassification understanding of Brown. The Memphis Firefighters case (467 U.S. 561, 1984) was a catalyst in Reagan’s “war” on affirmative action under the leadership of Attorney General Edwin Meese. The administration maintained a philosophical and legal assault on affirmative action. That same year, in Grove City College v. Bell (465 U.S. 555), the Justice Department persuaded the Supreme Court, among others, to pursue a more restrictive interpretation of civil rights law on sex discrimination and constitutional provisions on the principle of equality. After Reagan left office and George H. W. Bush won the White House, the Reagan administration’s policy gained even greater traction on the Court. Reagan’s efforts coupled with the strict constructive leftover appointments by President Richard Nixon transformed the Supreme Court. Reagan’s appointees—O’Connor, Scalia, and Kennedy— along with his elevation of Rehnquist to the Chief Justiceship dominated the jurisprudence of the Court. Justice Bryon White, appointed by President John Kennedy in 1962, often voted with the conservative bloc of the Court. This bloc reexamined and overturned certain jurisprudential perspectives that were thought to be entrenched in judicial holdings. In 1989, for example, the civil rights position of the Court experienced a paradigm shift. In City of Richmond v. J. A. Croson Co. (488 U.S. 469), the new conservative bloc parted with the decision on Fullilove v. Klutznick (448 U.S. 448, 1980) a decade earlier. The Rehnquist Court refused to support a set-aside program that had been established by the City of Richmond and modeled after the federal set-aside policy approved in Fullilove. Speaking for the majority, Justice O’Connor concluded that the City of Richmond’s set-aside effort

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did not survive the strict scrutiny standard. O’Connor insisted: “The purpose of strict scrutiny is to ‘smoke out’ illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool. The test also ensures that the means chosen ‘fit’ this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.”

Justice O’Connor also suggested that classifications “based on race carry a danger of stigmatic harm.” She reasoned that local government does not have the broad authority to forge a policy as Congress did under the Fourteenth Amendment. She contended “[t]hat Congress may identify and redress the effects of society-wide discrimination does not mean that, a fortiori, the states and their political subdivisions are free to decide that such remedies are appropriate.” In June 1989, the Supreme Court announced three decisions that collectively supported the conclusion that the rhetoric of the Reagan administration was incorporated into the nation’s constitutional law. In Wards Cove Packing Co. v. Atonio (490 U.S. 642, 1989), the Justices stripped away the case of a precedent that had been established nearly twenty years earlier in Griggs v. Duke Power Co. (401 U.S. 424, 1971). The Wards Cove holding established a business justification in the place of the business necessity established in Griggs. When an employee charged an employer with discriminatory practices and policies, the employer could shift the burden by showing a business justification. Title VII of the Civil Rights Act of 1964 was construed to disallow a mere showing of discriminatory effect. Next, the Court dealt a blow to the effectiveness of consent decrees as instruments to implement affirmative action programs. The Martin v. Wilks (490 U.S. 755, 1989) holding stated that nonparties to consent agreements who allege that their interests are adversely affected by its provisions may bring actions to reopen the agreement. Third, in Lorance v. A.T. & T. Technologies, Inc. (490 U.S. 900, 1989), the Supreme Court narrowly construed Title VII. The Court made it more difficult for people to bring discriminatory actions by requiring such an item to adhere to very strict time limits. In another case, however, the Supreme Court seemed to draw back slightly. In Patterson v. McLean 516

Credit Union (491 U.S. 164, 1989), the Justices refused to overturn Runyon v. McCray (427 U.S. 601, 1976). The Runyon decision construed the 1866 Civil Rights Act as prohibiting both private acts of racial discrimination and acts stemming from public action. However, the Rehnquist Court also concluded that the statute does not condemn employers’ actions, such as racial harassment. These four cases, Wards Cove, Martin, Lorance, and Patterson, were serious setbacks in the pursuit of equal employment opportunity. Almost immediately, Congress marshaled forces to counter the impact of these decisions. Because they were statutory construction decisions (the Court’s determination of the intent of Congress), the federal legislature was in a position to make its intent clear by enacting new legislation that had the effect of setting aside the rulings of the Supreme Court. Congress passed what eventually became the Civil Rights Act of 1991 over the veto of President George H. W. Bush. The Civil Rights Act of 1991 addressed, among other things, discrimination in the making and enforcement of contracts, the burden of proof in disparate impact cases, and the definition of a business necessity. It established what is the impermissible consideration of race, color, religion, sex, or national origins; facilitated the prompt and orderly resolution of challenges to employment practices implementing litigates, consent judgments, or orders; and expanded the right to challenge discriminatory seniority systems. During his two administrations, President Clinton took a decidedly different view of affirmative action than had previous presidents. Clinton’s motto, “mend it, don’t end,” described his view of affirmative action policies. Adarand v. Pena (515 U.S. 2000, 1995) permitted the administration to clearly stake out its position on affirmative action. The controversy centered on the Department of Transportation implementation of a set-aside that went to a small businesses controlled by “socially and economically disadvantaged individuals.” A subcontracting clause required the presumption that socially and economically disadvantaged individuals were African Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities. Adarand contended that the presumption set forth in the statute on the basis of race violates the Fifth Amendment obligation not to deny anyone Equal Protection of the Law. Drew Days, the Solicitor General of the United States in the first Clinton administration, argued that the program was based on disadvantage, not race. He contended that

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the Supreme Court should use the intermediate standard, or two-tier, test. The intermediate standard requires classifications to serve an important governmental objective and be substantially related to the achievement of those objectives (Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 564-565, 1990). It is less exacting than strict scrutiny, the standard the Adarand Court employed. Speaking for the majority, Justice O’Connor stated that “explicit . . . federal racial classifications, like those of a state, must serve a compelling governmental interest, and must be narrowly tailored to further that interest.” The Court overturned Metro Broadcasting. O’Connor noted that the holding of Fullilove v. Klutznick (448 U.S. 448, 1980) that federal racial classifications be subject to a less rigorous standard was no longer controlling. The strict scrutiny standard was now required for both federal and state classifications. The Clinton administration sought to exploit the negative reaction that simmered after Adarand. Clinton endeavored to garner support for policies that demanded racial equality under the rubric of affirmative action. He appointed several African Americans and members of other racial ethnic groups to high-ranking positions in the federal government, including the federal judiciary. Clinton’s two appointments to the Supreme Court (Justices Breyer and Ginsberg), moderate liberals, have not fostered the excitement over equality that followed the appointments of Justices Brennan and Marshall. Justice Souter, appointed by President Bush, became the championing voice of racial equality on the Supreme Court. (In 2009, Souter announced his resignation from the Court and President Obama replaced him with Justice Sonia Sotomayor). Through his town hall meeting initiative, President Clinton encouraged a national dialogue on race in communities throughout America. Just before Clinton left the White House, the affirmative action debate shifted to the University of Michigan. Both the Law School and the College of Literature, Science, and Arts admission policies provided for affirmative action in order to achieve diversity. The University of Michigan Law School is one of the nation’s top law schools. More generally, the University of Michigan is one of the nation’s elite universities. The petitioners alleged that the university’s use of race violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. At the district court

level, Clinton supported the use of race by the Law School and the College of Literature, Science, and Arts (LSA). In Grutter v. Bollinger, the district court concluded that the Law School’s use of race as a factor in admission decisions was unlawful. In Gratz v. Bollinger, the district court held that the admission decisions operated as the functional equivalent of a quota and violated Powell’s opinion in Bakke. The second Bush administration (George W.), however, took a contrary position from Clinton when the litigation reached the Supreme Court. The Bush Justice Department argued that admission policies constituted quotas and thus violated the Equal Protection Clause of the Fourteenth Amendment. As noted in Chapter 12, Bush favored systems of admission that avoided the use of race. As governor of Texas, Bush had enacted a policy that required the top 10 percent of a high school graduating class to be offered admission to the state university of their choice. President Bush labeled this policy “affirmative access.” A sharply divided Court ruled against the University of Michigan in Gratz v. Bollinger (539 U.S. 244, 2003) and for the university in Grutter v. Bollinger (539 U.S. 306, 2003). Writing for the majority, Chief Justice Rehnquist used the strict scrutiny test to overturn the holding of the Sixth Circuit Court of Appeals. Rehnquist concluded that the LSA use of race was not narrowly tailored to achieve the college’s asserted interest in diversity. Chief Justice Rehnquist argued that the “current LSA policy does not provide such individualized consideration.” He held that the admissions policy violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of Civil Rights Act of 1964. The Grutter decision reached the opposite conclusion. Justice O’Connor wrote for a sharply divided Court. She held that the school’s admission policy survived the strict scrutiny test. O’Connor asserted that the policy demonstrated a narrowly tailored use of race to further a compelling state interest in the educational benefits that flow from a diverse student body. O’Connor deferred to the “law school’s educational judgment that such diversity is essential to its educational mission . . . Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions within constitutionally prescribed limits.” According to Justice O’Connor, diversity in educational institutions could promote cross-racial The Continuing Significance of Race

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understanding, help break down racial stereotypes, enable students to better understand persons of different races, promote learning outcomes, better prepare students for an increasing diverse workforce and society, and better prepare students as professionals. She then turned to the amici briefs from major American businesses and high-ranking retired officers and civilian leaders of the United States military. O’Connor argued that “major American businesses have made clear that the skills needed in today’s global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” In terms of the military, she said “[b]ased on [their] decades of experiences, a ‘highly qualified, racially diverse officer corps . . . is essential to the military’s ability to fulfill its principle [sic] mission—to provide national security.’” Justice O’Connor resigned in 2005 and Chief Justice Rehnquist also left the Court. President Bush appointed two conservatives, Roberts as Chief Justice and Alito as an Associate Justice. During the first few months of the Obama administration, the leading supporter for the use of race, Justice David Souter, announced that he planned to retire from the Supreme Court at the end of the term in June 2009. Souter had been the vocal champion for the use of race in policy. And in April 2009, the Justices heard oral arguments for Ricci v. DeStefano, in which white firefighters in New Haven, Connecticut, alleged that they were denied promotion when an examination yielded the information that no black firefighters were eligible for promotion. Both sides claimed racial discrimination. The city argued that its action of throwing out the flawed test was racially neutral. The questioning by the Justices pointed to the schism that exists on the Court on the consideration of race. The amicus curiae brief of the United States seemed to capture President Obama’s more nuanced race–class perspective on affirmative action. Obama favored taking into account white kids who were disadvantaged and grew up in poverty but became successful. President Obama did argue that racism has lingering effects, particularly on middle-class African Americans. Obama compared the position of first-generation middle-class African Americans with that of fifth- or sixthgeneration white college attendees. He argued that affirmative action should be an instrument to bring people together to build the nation. President 518

Obama framed diversity as being in the national interest. In the New Haven case, Ricci v. DeStefano, the brief of the Justice Department asked the Supreme Court to vacate the lower court judgment and remand. The Office of the Solicitor General argued that an employer does not violate Title VII when it decides not to certify the results of a promotional test in order to comply with a federal law that prohibits disparate impact. As we shall see below, the Supreme Court framed Ricci v. DeStefano (557 U.S. ___, 2009) as a conflict between disparate impact and disparate treatment under Griggs and Title VII. The ruling will have great influence on how race will be used in public policy and decision making to address disadvantages. The New Haven case was considered under the cloud of Justice David Souter’s resignation from the Supreme Court and the nomination of Judge Sonia Sotomayor of the Second Circuit of the U.S. Court of Appeals. Justice Souter had become possibly the most vocal defender of the use of race to overcome the lingering effects and presentday reality of racial discrimination. In several cases, he had written the lead dissenting opinion. Souter’s replacement, Sotomayor, was President Obama’s first opinion to the Supreme Court. Before Judge Sotomayor’s nomination was announced, commentators and scholars sifted Obama’s speeches, classroom lectures, and writings, searching for indicators of the type of Justice that the president would nominate to fill the vacancy. One source of information was the law school at the University of Chicago where Obama had taught. Some of his former students described him as a minimalist, a structuralist, and a pragmatist. A minimalist is weary of court-directed efforts to usher in social change. A structuralist focuses on how the law distributes power in society. A pragmatist is concerned with how law and court decisions affect the lives of everyday people. Some former students and colleagues suggested that President Obama subscribed to the view that the political process and not courts should resolve issues. Obama’s nomination was affected by the political environment. Judge Sotomayor is a Puerto Rican with a B.A. from Princeton and a law degree from Yale. She served as editor of the Yale Law Journal. It is too early to tell, however, whether her appointment will significantly help the Democratic Party in its competition with the Republican Party for the growing Hispanic vote.

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

SOME JUDICIAL STANDARDS EQUAL PROTECTION REVIEW

AND

Since World War II, the Equal Protection Clause of the Fourteenth Amendment has been the weapon of choice of African Americans in their struggle to achieve equality. The clause also has been construed to prohibit other forms of discriminatory treatment such as gender and durational residency. Footnote 4 in United States v. Carolene Products Co. (304 U.S. 144, 1938) called for strict scrutiny when legislation infringed on discrete and insular minorities and fundamental rights. Justice Stone indicated that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” In an early approach to cases that involved discriminatory classification schemes, the Supreme Court invoked its rationality standard of review. Under the rational basis test, the Court gives deference to the legislature. It presumes that the legislation is valid unless the legislature has acted in an arbitrary and irrational manner. That is, the Justice sdetermine whether the classification is itself reasonable and has a rational relationship to a legitimate state interest. This practice has usually been considered a lenient standard of review and has been used by the Supreme Court to test the constitutionality of classification schemes involving economic and commercial questions or social welfare policy that does not infringe on fundamental rights. See, for example, San Antonio Independent School District v. Rodriguez (411 U.S. 1, 1973). In their review of classification schemes that impinge on race, the Justice shave turned to a more exacting standard of review. As we noted earlier, the strict scrutiny standard of review is triggered when a “suspect class” (e.g., race) is embraced in the classification or when the classification is alleged to abridge a “fundamental right,” such as the right to travel or to privacy. The classification scheme is presumed to be invalid unless it can be demonstrated that the legislation is necessary to achieve a compelling state interest and that there are no less intrusive means or alternatives available. The Supreme Court has granted approval to only two compelling interests when a racial classification is examined: (1) past discrimination and (2) diversity (Grutter v. Bollinger, 539 U.S. 306, 2003).

In the early 1970s, Justice Thurgood Marshall, with whom Justice William O. Douglas concurred, questioned what he considered to be a too-rigid approach to equal protection review. Rejecting what he perceived to be the majority’s view—that the broad spectrum of equal protection cases fall neatly into one of two categories, thereby triggering mere rationality or strict scrutiny review—Marshall argued for an approach that would employ variable degrees of scrutiny depending on such factors as (1) “the constitutional and societal importance of the interests adversely affected” and (2) the “invidiousness of the basis upon which the particular classification is drawn” (San Antonio Independent School District v. Rodriguez, 411 U.S. 1 at 98, 1973). This type of “mid-level scrutiny,” as it has been labeled, provides the Court with yet another approach in its review of an ever-increasing number of cases reaching the courts under the equal protection clause.

ELIMINATING JOB BIAS FEATURED CASE

Griggs v. Duke Power Co. The elimination of on-the-job bias has been an ongoing enterprise in America. World War II and the period immediately afterward witnessed the issuing of executive orders that related to this effort. The executive orders were directly confined to federal employment and employees who performed services for the federal government under contract. The impact of these initiatives was very limited. One might argue that the effects were more symbolic than substantive in the elimination of discrimination. Several northern states adopted legislation that promoted fair employment practices in the 1950s, with uneven results. The enactment of Title VII of the Civil Rights Act of 1964 is the nation’s major effort to eliminate bias in the workplace. Title VII forbids discrimination that is based on race, color, sex, or national origin by both employers and labor unions. In successive stages, the legislation eventually covered employers with twenty-five or more employees. In 1972, Title VII was amended to cover most public employees. In 1964, Title VII encountered an America that had enacted politics, procedures, and practices which differentiated employment opportunities for blacks and whites. The workplace, in many instances, had segregated toilet, shower, locker facilities, eating The Continuing Significance of Race

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areas and social events; jobs themselves were segregated, and pay scale differences were based on race. Moreover, racial slurs were commonplace. Title VII was not welcomed by all employers and employees. This legislation withstood its first major challenge in Griggs v. Duke Power Co. (401 U.S. 424, 1971). The Supreme Court unanimously held that the Act bars the use of employment practices that operate to exclude African Americans if the practices are unrelated to job performance. In that case, black employees of the Duke Power Company contested requirements that made a condition of employment in, or transfer to, jobs within the company the completion of high school or passing of a standardized intelligence test. The practical effect of these requirements was to preclude blacks from employment in or promotion to jobs in the highest paying departments of the company. Chief Justice Burger, speaking for the Court, said that Title VII “proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Burger noted that “the touchstone is business necessity [and] if an employment practice which operates to exclude [blacks] cannot be shown to be related to job performance, the practice is prohibited.” To Duke Power’s contention that the requirements were made without the intention of discrimination against African Americans, the Chief Justice said that “good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.” Griggs v. Duke Power Co. supported the disparate impact approach to Title VII. The theory of disparate impact focuses on the effects of policies, procedures, or practices on blacks or other protected groups. Whether the employer intended to discriminate against African Americans is irrelevant. Chief Justice Burger asserted that “Congress directed the thrust of the [Title VII] to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.” (Compare Kennedy’s majority opinion in Ricci v. DeStefano, 557 U.S. ____, 2009). Subsequently, in McDonnell Douglas Corp. v. Green (411 U.S. 792, 1973), the Court set forth some of the factors that a complainant could use in establishing a prima facie case of racial discrimination. 520

These factors include a showing that (1) the complainant belongs to a racial minority; (2) he or she applied and was qualified for a job for which the employer was seeking applicants; (3) he or she was rejected despite his or her qualifications; and (4) the employer continued to accept applications for the position from persons with similar qualifications. McDonnell Douglas Corp. v. Green burden sifting represented a judicial effort to separate legitimate reasons from concealed efforts to discriminate. In 1976, Title VII was construed to prohibit discrimination against whites. In McDonald v. Santa Fe Trail Transportation Co. (424 U.S. 905, 1976), Justice Thurgood Marshall, speaking for the Court, underscored the even-handed prohibition against racial discrimination as the intent of the Congress in enacting the measure, as had been held in Griggs. Furthermore, Marshall contended that the challenged discrimination was also prohibited by the 1870 Civil Rights Act, as codified in 42 U.S.C.A. Section 1981. Finally, in Washington v. Davis (426 U.S. 229), decided late in the 1975 term, the Court considered the nature of recruiting procedures, scrutinizing in particular the personnel test that was administered to police applicants in Washington, D.C. In what some people have characterized as a crippling blow to the aspirations of black would be employees, the Court reversed the court of appeals and held that the more stringent statutory standards of Title VII were inapplicable in resolving the Fifth Amendment issue of invidious discrimination that had been raised. Despite the radically disproportionate impact of the testing and selection procedures that were involved, the Court held that when a constitutional claim is raised, aggrieved blacks must show that administrators had a discriminatory intent; mere showing of a disproportionate racial impact of the selection mechanisms is not enough. Just one year later, in Teamsters v. United States (431 U.S. 324, 1977), the Court rejected the positions of the Justice Department and the Equal Employment Opportunity Commission when it ruled that Title VII does not forbid the use of seniority systems that perpetuate the effects of pre-act racially discriminatory employment practices. In a bitter disappointment to civil rights groups, the seven-to-two majority held that it was not the intention of Congress when enacting Title VII to displace preexisting seniority systems, even when they gave seniority advantages to white over black employees.

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

The majority contended that a white employee’s seniority should not be adversely affected because of the discriminatory policies and practices of his or her employer. As long as there is no proof of a “discriminatory intent” of an employer who continues to use the pre-act seniority system, that employer is not breaching Title VII. Justice Stewart also discussed disparate treatment. Under Title VII, disparate treatment requires the plaintiff to prove that the employer intentionally discriminated on the basis of a protected trait such as race, color, sex, national origin, or religion. Justice Stewart stated that the “ultimate factual issues are thus simply whether there was a pattern or practice or such disparate treatment and, if so, whether the differences were ‘racially premised.’” The complexity of ways to discriminate on the basis of race changed as more African Americans and racial minorities entered the workplace in nontraditional positions. The debate over ways to prevent or eliminate racially based decisions and actions also shifted. The 1980s, 1990s and 2000s saw shifts in the policy and decisions of the Supreme Court and the Congress. One might reasonably connect transformations on race to personnel changes on the Supreme Court, which reflect electoral victories and defeats for offices in the Congress and the Presidency. In the 1980s, the Supreme Court confronted the two schemes of establishing proof of discrimination: disparate impact (Griggs v. Duke Power Co.) and disparate treatment (McDonnell Douglas) cases. The Griggs disparate impact model focused on employment policies, practices, and procedures that affect large groups of workers. The McDonnell Douglas disparate treatment model looked at intentional discrimination against an individual employee. The Texas Dept. of Community Affairs v. Burdine (450 U.S. 248, 1981) allowed the Supreme Court to further distinguish between the two approaches. Justice Powell argued: [The] “burden of establishing a prima facie case of disparate treatment is not onerous. The plaintiff must prove by a preponderance of evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.”

Powell noted that the burden shifts to the defendant to rebut the presumption of discrimination. The defendant rebuts the presumption “by producing evidence that the plaintiff was rejected, or someone else

was preferred, for a legitimate, non-discriminatory reason.” The Court does not need to be persuaded that the defendant’s decision “was actually motivated by the proffered reasons.” If the defendant carries the burden of production and rebuts the presumption to discriminate, “the factual inquiry proceeds to a new level of specificity.” If the plaintiff “retains the burden of persuasion . . . she may succeed . . . directly by persuading the Court that a discriminatory reason more likely motivated the employer, or, indirectly by showing that the employer’s proffered explanation is unworthy of credence.” The Burdine decision made it more difficult for the plaintiff to prevail in disparate treatment case. Defendants are not required to prove a business necessity. Rather, they must prove that less discriminatory alternatives exist. Disparate impact has given way to a form of intent to discriminate. The Supreme Court returned to the allocation of proof in disparate treatment and disparate impact in Wards Cove Packing Co. v. Atonio (490 U.S. 642, 1989). The Wards Cove Court reversed the burden of proof allocated in Griggs, which was a disparate impact case. The Griggs Court concluded that the “touchstone is business necessity. If an employer practice which operates to exclude [African Americans] cannot be shown to be related to job performance, the practice is prohibited.” The Wards Cove majority severely weakened Title VII as formulated in Griggs in the following manner: (1) the plaintiff bears the burden of disproving an employer’s assertion that the adverse employment action or practice was based solely on a legitimate neutral consideration; and (2) the plaintiff must persuade the court that other tests or selection devices, which do not have a similarly undesirable racial effect, would also serve the employer’s legitimate hiring interest. The Wards Cove majority was very cautious. Justice White argued, “Courts are generally less competent than employers to restructure business practices; consequently, the judiciary should proceed with care before mandating that an employer must adopt [an] alternative selection or hiring practice in response to a Title VII suit.” As we discussed earlier, the Congress rejected the Supreme Court’s ruling in Wards Cove. A provision of the Civil Rights Act of 1991 gave the business necessity formula from Griggs in disparate impact cases statutory footing. The Supreme Court also decided issues that focused on the subjective criteria for promotion The Continuing Significance of Race

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decisions, mixed motives, retaliation, and pay discrimination under Title VII. In Watson v. Fort Worth Bank & Trust (487 U.S. 977, 1988), Justice O’Connor gave businesses the green light to use of subjective or discretionary employment practices under the disparate impact approach in appropriate cases. O’Connor offered a two-pronged framework: (1) The plaintiff must go beyond the showing or statistical disparities in the workplace and identify the specific challenged employment practice; and (2) the plaintiff must prove that discrimination against a protected group has been caused by a specific employment practice. Justice Blackmun, joined by Justices Brennan and Marshall who concurred in part and concurred in the judgment, argued that the plurality’s “allocation of burdens of proof and production is contrary to the cases of the Court.” He took issue with the plurality’s dismissal of statistical information. Blackmun contended that “disparate impact caused by an employment practice is directly established by the numerical disparity.” In Price Waterhouse v. Hopkins (490 U.S. 228, 1988), the Supreme Court added the category of mixed motive to the claims of plaintiffs. Hopkins’s proposal for partnership in a professional accounting firm was denied. She filed suit in Federal District Court under Title VII of the Civil Rights Act of 1964, charging that the company had discriminated against her on the basis of sex in its partnership decision. A plurality held that in mixed-motive case “an employer may not, prevail . . . by offering legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision . . . an employer may not meet its burden in such a case by merely showing that at the time of the decision it was motivated, only in part by a legitimate reason.” Brennan said, “The employer instead must show that its legitimate reason, standing alone, would have induced it to make the same decision.” The Congress superseded Price Waterhouse by enacting the Civil Rights Act of 1991. Under the Act, an employer is liable if the plaintiff in mixedmotive cases can demonstrate that race, color, religious, sex, or national origin was a contributing factor to any employment practice, even though other factors also contributed to the practice. In Desert Palace, Inc. v. Costa (539 U.S. 90, 2003), the Supreme Court addressed the division among the Courts of Appeals over whether a plaintiff must prove by direct evidence that an impermissible consideration was a motivating factor in an adverse 522

action. Costa, the respondent, experienced “a number of problems with management and her co-workers that led to an escalating series of disciplinary sanctions, including informal rebukes, a denial of privileges, and suspension.” Justice Thomas, writing in a unanimous opinion, indicated that the case provided the Court with “the first opportunity to consider the effects of the 1991 Act on jury instructions in mixed-motive cases.” Thomas held that in mixed-motive cases plaintiffs can present direct or circumstantial evidence. He agreed with the Court of Appeals that no heightened showing is required under the Act of 1991. Thomas concluded, “a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that race, color, religion, sex or national origin was a motivating factor for any employment practice.” Employees who are protected under Title VII of the Civil Rights Act of 1964 now encounter more subtle forms of discrimination. Employers disguise their actions. This is particularly evident when employees allege discrimination and employers camouflage their retaliatory behavior. In 1997, the Rehnquist Court issued rulings on Title VII and its protection against retaliation for employees. In Walters v. Metropolitan Educational Enterprises (519 U.S. 202, 1997), the petitioner filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging that Metropolitan had discriminated against her on the basis of her gender in failing to promote her. Shortly thereafter, she was fired. The petitioner argued that the Title VII antiretaliation provision prohibits an employer from discriminating against an employee for filing a discrimination complaint. Metropolitan responded that it did not meet the 15-employee minimum required by Title VII. Speaking for a unanimous Court, Justice Scalia held that the proper standard for whether an employer has reached the 15-employee threshold is the payroll method. Scalia concluded that an “alternate touchstone [under the statute] is whether an employer has employment relationships with 15 or more individuals for each working day in 20 or more weeks during the year in question.” In Robinson v. Shell Oil Company (519 U.S. 337, 1997), a unanimous Court led by Justice Thomas held that an employer could be held actionable under Title VII for allegedly retaliatory postemployment actions. The petitioner, after being fired by Shell Oil Company, filed a Title VII claim of

Protecting Against Bias: Segregation and Discrimination

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

unlawful employment discrimination with the EEOC. According to the petitioner, his former employer then retaliated against him by giving a negative employment reference on his behalf to another company where he had applied for a job. The Court held that Title VII’s prohibitions against employment discrimination apply to past employees, as well as to present ones. Burlington Northern and Santa Fe Railway Co. v. White (548 U.S. 53, 2006) (BNSR) presented the Supreme Court with the opportunity to decide whether the Title VII antiretaliation provision forbids only employer actions and resulting harms that are related to employment or the workplace. The Court also considered how harmful an act of retaliatory discrimination must be in order to fall within the provision’s scope. The Circuits of the Courts of Appeals varied. Justice Breyer delivered the opinion of the Court and Justice Alito filed a concurring opinion. Breyer distinguished discrimination based on status (e.g., race, gender) from discrimination based on conduct (e.g., whistleblowing). Justice Breyer concluded that the “scope of the antiretaliation provision extends beyond workplace-related or employment-related retaliatory acts and harms.” He used the standard material adversity to separate protected and unprotected retaliation. Breyer evaluated retaliatory acts in the context of particular circumstances (e.g., a young mother with children, a flex-time schedule for an employee with a disabled child, the exclusion of an employee from a weekly training lunch). In the case of White, Breyer argued that being suspended for 37 days without pay constituted retaliation. Burlington Northern used the fact that back pay was given to rebut White’s contention. Justice Breyer commented on the serious hardship (physical and emotional) of 37 days with no income and said that the suspension without pay “could well act as a deterrent, even if the suspended employee eventually received back pay.” Two years later, the Supreme Court returned to the issue of retaliation under the Civil Rights Act of 1866 (Section 1981). In CBOCS West, Inc. v. Humphries (553 U.S. ____, 2008), the Court considered whether the Civil Rights Act of 1865 encompasses a complaint of retaliation against a person who has complained about a violation of another person’s contract-related “right.” Hedrick G. Humphries (an African American man), a former assistant manager of a Cracker Barrel restaurant,

was dismissed by the parent company, CBOCS West, Inc., for two reasons: (1) He is black and (2) he had complained to managers that a fellow assistant manager had dismissed a black employee for race-based reasons. Humphries claimed that his dismissal violated both Title VII of the Civil Rights Act of 1964 and Section 1981 of the Civil Rights Act of 1866. The District Court dismissed the Title VII claim and decided in favor of CBOCS. The Seventh Circuit affirmed the District Court on the Title VII claim and remanded Humphries’s Section 1981 claim for a trial, rejecting CBOCS’s argument that Section 1981 did not encompasses retaliation claims. Breyer asserted the pertinent interpretive history of Section 1981. He noted that (1) on the basis of Sullivan v. Little Hunting Park, Inc. (396 U.S. 229, 1969), federal appeals courts have concluded that Section 1981 encompassed retaliation claims; (2) the Court has long interpreted Sections 1981 and 1982 of the Civil Rights Act of 1866 alike (both represent immediately post–Civil-War legislative efforts to guarantee the newly freed slaves the same legal rights that other citizens enjoyed); (3) the Civil Rights Act of 1991 superseded Patterson v. McLean Credit Union (491 U.S. 164, 1988); and (4) Section 1981 encompasses both status-based and conductbased discrimination (i.e., claims of discrimination). Breyer argued that “Burlington did not suggest that Congress must separate the two in all events.” At issue in Ledbetter v. The Goodyear Tire & Rubber Company, Inc. (550 U.S. ____, 2007) is whether discrimination in the pay setting differs from other types of employment discrimination and requires a different filing time framework. Ledbetter claimed that towards the end of her time with Goodyear she was being paid significantly less than any of her male colleagues. Ledbetter argued that the paychecks that she received during the charging period and a 1998 raise denial each violated Title VII and triggered a new EEOC charging period. Justice Alito, who authored the opinion of the Court, concluded that a pay setting decision is a “discrete act.” Alito’s opinion is particularly crucial for African Americans; women can seek redress under the Equal Pay Act. Alito interpreted precedents to mean that a “new violation does not occur, and a new charging period does commence upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination.” Alito explained that the purpose of the EEOC filing deadline is to protect “employers The Continuing Significance of Race

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from the burden of defending claims arising from employment decisions that are long past. . . .This short deadline (180-day) reflects Congress’ strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation.” The dissenting opinion of Justice Ginsberg contended that pay “disparities are thus significantly different from adverse actions ‘such as termination, failure to promote, . . . or refusal to hire,’ all involving fully communicated discrete acts, ‘easy to identify’ as discriminatory.” She argued that her view, unlike that of the majority, “is more faithful to precedent, more in tune with the realities of the workplace, and more respectful of Title VII’s remedial purpose.” Ginsberg noted that compensation disparities, in contrast with promotions, transfers, hirings, and firings, “are often hidden from sight. It is not unusual, decisions in point illustrate, for management to decline to publish employee pay levels, or for employees to keep private their own salaries.” The 2008 elections increased the margin of Democratic majorities in the House and the Senate and elected Barack Obama to the White House. On January 29, 2009, Congress passed the Lilly

Ledbetter Fair Pay Act of 2009 to supersede the Court holding in the Ledbetter decision. The Act addressed discrimination in compensation because of race, color, religion, sex, or national origin. Section 3 indicated: “an unlawful employment practice occurs . . . each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice; and liability may accrue and an aggrieved person may obtain relief . . ., including recovery of back pay for up to two years preceding of the charge, where the unlawful employment practices that have occurred during the charge filing period are similar or related to unlawful employment practices with regard to discrimination in compensation that occurred outside the time for filing a charge.”

The conflict between judicial and congressional policy to eliminate bias in employment is very revealing. For more than a generation and a half, African Americans and other minorities turned to the Supreme Court to gain favorable decisions to advance their rights. In the 1990s and 2000s, Congress has increasingly become the forum that supports the policy perspective of minorities.

GRIGGS V. DUKE POWER CO. 401 U.S. 424; 28 L. Ed. 2d 158; 91 S. Ct. 849 (1971) CHIEF JUSTICE BURGER delivered the opinion for a unanimous Court. JUSTICE BRENNAN took no part in the consideration or decision of the case. CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted the writ in this case to resolve the question whether an employer is prohibited by the Civil Rights Act of 1964, Title VII, from requiring a high school education or passing of a standardized general intelligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, (b) both requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs in question formerly had been filled only by white employees as 524

part of a longstanding practice of giving preference to whites. Congress provided, in Title VII of the Civil Rights Act of 1964, for class actions for enforcement of provisions of the Act and this proceeding was brought by a group of incumbent Negro employees against Duke Power Company. . . . At the time this action was instituted, the Company had 95 employees at the Dan River Station, 14 of whom were Negroes; 13 of these are petitioners here. The District Court found that prior to July 2, 1965, the effective date of the Civil Rights Act of 1964, the Company openly discriminated on the basis of race in the hiring and assigning of employees at its Dan River plant. The plant was organized into five operating departments: (1) Labor, (2) Coal Handling, (3) Operations, (4) Maintenance, and (5) Laboratory

Protecting Against Bias: Segregation and Discrimination

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

and Test. Negroes were employed only in the Labor Department where the highest paying jobs paid less than the lowest paying jobs in the other four “operating” departments in which only whites were employed. Promotions were normally made within each department on the basis of job seniority. Transferees into a department usually began in the lowest position. In 1955 the Company instituted a policy of requiring a high school education for initial assignment to any department except Labor, and for transfer from the Coal Handling to any “inside” department (Operations, Maintenance, or Laboratory). When the Company abandoned its policy of restricting Negroes to the Labor Department in 1965, completion of high school also was made a prerequisite to transfer from Labor to any other department. From the time the high school requirement was instituted to the time of trial, however, white employees hired before the time of the high school education requirement continued to perform satisfactorily and achieve promotions in the “operating” departments. Findings on this score are not challenged. The Company added a further requirement for new employees on July 2, 1965, the date on which Title VII became effective. To qualify for placement in any but the Labor Department it became necessary to register satisfactory scores on two professionally prepared aptitude tests, as well as to have a high school education. Completion of high school alone continued to render employees eligible for transfer to the four desirable departments from which Negroes had been excluded if the incumbent had been employed prior to the time of the new requirement. In September 1965 the Company began to permit incumbent employees who lacked a high school education to qualify for transfer from Labor or Coal Handling to an “inside” job by passing two tests—the Wonderlic Personnel Test, which purports to measure general intelligence, and the Bennett Mechanical Aptitude Test. Neither was directed or intended to measure the ability to learn to perform a particular job or category of jobs. The requisite scores used for both initial hiring and transfer approximated the national median for high school graduates. The District Court had found that while the Company previously followed a policy of overt racial discrimination in a period prior to the Act, such conduct had ceased. The District Court also concluded that Title VII was intended to be prospective only and, consequently, the impact of prior inequities was beyond the reach of corrective action authorized by the Act.

The Court of Appeals was confronted with a question of first impression, as are we, concerning the meaning of Title VII. After careful analysis a majority of that court concluded that a subjective test of the employer’s intent should govern, particularly in a close case, and that in this case there was no showing of a discriminatory purpose in the adoption of the diploma and test requirements. On this basis, the Court of Appeals concluded there was no violation of the Act. The Court of Appeals reversed the District Court in part, rejecting the holding that residual discrimination arising from prior employment practices was insulated from remedial action. The Court of Appeals noted, however, that the District Court was correct in its conclusion that there was no finding of a racial purpose of invidious intent in the adoption of the high school diploma requirement or general intelligence test and that these standards had been applied fairly to whites and Negroes alike. It held that, in the absence of a discriminatory purpose, use of such requirements was permitted by the Act. In so doing, the Court of Appeals rejected the claim that because these two requirements operated to render ineligible a markedly disproportionate number of Negroes, they were unlawful under Title VII unless shown to be job-related. . . . The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory employment practices. The Court of Appeals’ opinion, and the partial dissent, agreed that, on the record in the present case, “whites fare far better on the Company’s alternative requirements” than Negroes. This consequence would appear to be directly traceable to race. Basic intelligence must have the means of articulation to manifest itself fairly in a testing process. Because they are Negroes, petitioners have long received inferior education in segregated schools and this Court expressly recognized these differences in Gaston County v. United States, 395 U.S. 285 (1969). There, because of the inferior education received by Negroes in North Carolina, this Court barred the The Continuing Significance of Race

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institution of a literacy test for voter registration on the ground that the test would abridge the right to vote indirectly on account of race. Congress did not intend by Title VII, however, to guarantee a job to every person regardless of qualifications. In short, the Act does not command that any person be hired simply because he was formerly the subject of discrimination, or because he is a member of a minority group. Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification. Congress has now provided that tests or criteria for employment or promotion may not provide equality of opportunity only in the sense of the fabled offer of milk to the stork and the fox. On the contrary, Congress has now required that the posture and condition of the job seeker be taken into account. It has—to resort again to the fable—provided that the vessel in which the milk is proffered be one all seekers can use. The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. On the record before us, neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. Both were adopted, as the Court of Appeals noted, without meaningful study of their relationship to job-performance ability. Rather, a vice president of the Company testified, the requirements were instituted on the Company’s judgment that they generally would improve the overall quality of the work force. The evidence, however, shows that employees who have not completed high school or taken the tests have continued to perform satisfactorily and make progress in departments for which the high school and test criteria are now used. The promotion record of present employees who would not be able to meet the new criteria thus suggests the possibility that the requirements may not be needed even for the limited purpose of preserving the avowed policy of advancement within the Company. . . . 526

The Court of Appeals held that the Company had adopted the diploma and test requirements without any “intention to discriminate against Negro employees.” We do not suggest that either the District Court or the Court of Appeals erred in examining the employer’s intent; but good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as “built-in headwinds” for minority groups and are unrelated to measuring job capability. . . . The facts of this case demonstrate the inadequacy of broad and general testing devices as well as the infirmity of using diplomas or degrees as fixed measures of capability. History is filled with examples of men and women who rendered highly effective performance without the conventional badges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests are useful servants, but Congress had mandated the commonsense proposition that they are not to become masters of reality. The Company contends that its general intelligence tests are specifically permitted by section 703(h) of the Act. That section authorizes the use of “any professionally developed ability test” that is not “designed, intended, or used to discriminate because of race. . . .” The Equal Employment Opportunity Commission, having enforcement responsibility, has issued guidelines interpreting section 703(h) to permit only the use of job-related tests. The administrative interpretation of the Act by the enforcing agency is entitled to great deference. . . . Since the Act and its legislative history support the Commission’s construction, this affords good reason to treat the Guidelines as expressing the will of Congress. . . . Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance. Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins. Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant. What Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract.

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The judgment of the Court of Appeals is, as to that portion of the judgment appealed from, reversed. [JUSTICE BRENNAN took no part in the consideration or decision of this case.]

AFFIRMATIVE ACTION AND THE INCLUSION OF THE EXCLUDED FEATURED CASES

Regents of the University of California v. Bakke; Grutter v. Bollinger; Ricci v. DeStefano The demand for greater inclusion of African American and minority students reverberated in politics and in higher institutions of education in the 1960s and 1970s. A number of traditionally white institutions adopted affirmative action plans. These admission policies were designed to increase the number of minority students in their general student population. In the 1970s, the ever-diminishing resources to support education, particularly higher education, brought such plans and programs under sharp attack. There was keen competition for these spots in professional schools, and some white applicants alleged that affirmative action programs placed them at a disadvantage in their quest for admission. The charges of reverse discrimination and the call for a color-blind Constitution resonated in public opinions and political campaigns. DeFunis v. Odegaard (416 U.S. 312, 1974) was the first installment of many litigation efforts that came before the Supreme Court. The Court, however, was able to avoid making a decision on it. In that case, the white petitioner charged the University of Washington Law School with a violation of the Equal Protection Clause of the Fourteenth Amendment in denying him admission while admitting “minority” applicants with lower qualifications. The university acknowledged that the petitioner’s grades and Law School Aptitude Test scores were higher than those of thirty-six African American, Latino, and other minority students who were admitted, but it justified its policy by indicating that it used a broad range of other factors, in addition to raw grades and test scores, to arrive at its admissions decisions. It further defended its administrative discretion to expand opportunities for legal education to minorities whose past access to the legal profession had been negligible. But a state trial court disagreed and ordered DeFunis’s admission in

1971. When the state supreme court reversed that ruling, DeFunis took the issue to the U.S. Supreme Court. Pending disposition of the appeal, however, he was allowed to remain in school. Hence, when the Court considered the case in 1974, DeFunis was nearing completion of his studies and enrolled for his last semester, and the majority ducked the issue by holding that the case was moot. The Court did concede, however, that the issue would most likely come before it again in the near future. Three years later it did reappear. In February 1977, the case of Regents of the University of California v. Bakke (438 U.S. 265, 1978) was accepted for review and raised legal issues that were somewhat similar to those in the DeFunis case. The minority admissions program at the Medical School of the University of California at Davis provided separate reviews of minority and white applicants. Out of 100 spots in an entering class, sixteen were, for all practical purposes, set aside for minority students. When Bakke was denied admission to one of the remaining 84 slots, he charged that the special minority program allowed students to be admitted whose overall qualifications were inferior to his and that the program operated to exclude him solely on the basis of race. Bakke charged that this reverse discrimination violated not only the equal protection clause of the Fourteenth Amendment but a central provision (Title VI) of the 1964 Civil Rights Act as well. A California trial court agreed, holding that the special minority admissions program really operated as a racial quota system in violation of the cited constitutional and statutory provisions. In addition, that court proscribed the use of race as a criterion in admissions decisions. However, Bakke’s admission was not ordered because of insufficient proof of his admissibility “but for the special admissions program.” The California Supreme Court modified this ruling, finding the strict scrutiny standard of review applicable, and held that the program violated the equal protection clause of the Fourteenth Amendment. Contrary to the decision of the trial court, it further held that the burden of proof under strict scrutiny shifted to the university, and that because this burden was not satisfied, Bakke should be admitted. Thereupon, the university, despite the urging of some major civil rights groups not to do so, sought review by the Supreme Court. Responding to the difficult and complex questions that the case presented, the Justices divided in such a manner as to allow gains by both sides in this The Continuing Significance of Race

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widely publicized case. There was no Court opinion, but Justice Lewis Powell announced the Court’s judgment and was supported by the Chief Justice Burger and Justices Stewart, Rehnquist, and Stevens in holding that the special minority admissions program at Davis operated to exclude persons because of race, thereby abridging the Equal Protection Clause of the Fourteenth Amendment. But the other four justices, Brennan, White, Marshall, and Blackmun, who disagreed with Powell’s characterization of the admissions programs, joined him in holding that university officials may consider race as one of a number of factors in their admissions determinations. By waffling on this case, the Court preserved its options for the consideration of affirmative action programs that had been fashioned to accomplish equal employment opportunities, which we consider in the next section. Applying a rationale similar to the one supporting race-conscious admissions policies in higher education, the Court approved the use of such remedies by employers operating in the private sector in its ruling in United States Steelworkers of America v. Weber (443 U.S. 193, 1979). In a cooperative effort to achieve a more proportionate racial balance in the local work force, union and management agreed to implement a training program that was aimed at increasing the ranks of African Americans in skilled positions in the company, positions from which they had been excluded in the past. Central to this voluntary effort was a preferential admissions component to achieve the goals of training larger numbers of African Americans than whites. In sustaining the arrangement against a charge of “reverse discrimination” by a white applicant who was not admitted to the training program, the Court made it clear that the program was consistent with the intent of the framers of Title VII of the 1964 Civil Rights Act. The Court emphasized that the statute should be viewed as a “catalyst” for employers and unions in their efforts to remedy the past effects of racial discrimination in employment practices and not as a barrier. In short, the plan was well within the discretionary area that was left to private employers by Title VII. The incompatibility of affirmative action with the long-standing seniority principles that have been traditionally embedded in labor contracts has presented some thorny questions for courts who have tried to enforce the nondiscriminatory provisions of Title VII. In their efforts to achieve a better racial balance 528

of employees in key service areas like firefighting and policing, a number of cities agreed to institute (over the objection of many white employees) affirmative action hiring programs during the 1970s. But when economic hard times plunged many municipal governments into fiscal difficulty, there were employee layoffs, putting the affirmative action and seniority principles on a collision course. Should the departments follow the traditional seniority practice (requiring “the last hired to be the first fired”) and bring to a halt the objective of a better racial balance of employees, or should the seniority principle be modified or ignored in order to protect the gains of minority employees? The question had profound implications for the struggle for racial equality, as racially discriminatory hiring policies prior to Title VII had provided a significant seniority advantage to white employees. Several lower federal courts, including those in Boston, Detroit, and Memphis, decided to sustain the affirmative action principle. The Supreme Court sidestepped the conflict in 1983 when it held in Boston Firefighters Union, Local 718 v. Boston Chapter, NAACP, and Boston Police Patrolmen’s Association v. Castro (463 U.S. 1226), that an appeal of a district court ruling (affirmed by the court of appeals) that had set aside the seniority principle in order to preserve affirmative action hiring programs in the Boston fire and police departments was moot. The state legislature had responded to the district court ruling by appropriating additional revenue that enabled the departments to reinstate the aggrieved white employees. One year later, however, in Firefighters Union No. 1784 v. Stotts (467 U.S. 561, 1984), the Court was presented with a “live” conflict involving the affirmative action program in the Memphis Fire Department. The Court upheld the seniority principle. Speaking for the majority, Justice Byron White argued that the district court’s action modifying the consent decree (in which the affirmative action hiring plan was couched), contrary to the wishes of the city, was limited by Title VII of the 1964 Civil Rights Act. Furthermore, he rejected the notion that had been advanced by the court of appeals, that judges possess inherent power to order actions that are required to accomplish the objectives sought by such consent decrees. Instead, he maintained, Title VII limits their actions in awarding relief (such as seniority in the context of this case) only to individual employees who prove that they have been “actual victims of

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discriminatory employment practices.” Thus, White appeared to provide precedential support for the Reagan administration’s effort to eliminate groupbased remedies from affirmative action law. But in two subsequent rulings in 1986, the Court did not read Stotts as forging such a restrictive construction of Title VII. First, in Firefighters v. City of Cleveland (478 U.S. 501), Justice Brennan made it clear for a six-to-three majority that Title VII does not preclude a consent decree remedy for discrimination against minority firefighters in promotions that may benefit some minority persons who may not have been the actual victims of discriminatory treatment. Pointing to the statutory provision (Section 706g) that the white firefighters association invoked in opposing the consent decree remedy, Brennan noted that the provision is intended to restrict the latitude of a court from imposing certain kinds of race-conscious relief after trial and does not apply to consent decree-fashioned relief arrangements. Brennan went a step further in the other case—Sheet Metal Workers v. Equal Employment Opportunity Commission (478 U.S. 421)—when he argued that section 706g does not preclude the authority of district courts to fashion remedies that may prescribe race-conscious arrangements which may “incidentally benefit individuals who were not actual victims of discrimination.” In a third ruling handed down in 1986, the Court continued to indicate its displeasure with affirmative action plans that made possible the abrogation of seniority rights of white employees in order to preserve targeted minority representation in the work force. At issue in Wygant v. Jackson, Michigan Board of Education (476 U.S. 267, 1986), was a layoff policy that the teachers’ union had been persuaded to accept in a collective bargaining agreement which extended preferential treatment to minority teachers. When circumstances necessitated implementation of the policy, white teachers with greater seniority were laid off, and the positions of minority teachers with less seniority were preserved. A plurality of the Justices (Powell, Burger, Rehnquist, and O’Connor) agreed with the complaining white teachers that such a policy constituted an abridgment of equal protection of the laws. They were joined in the judgment by Justice White. Justice Powell, who wrote the plurality opinion, rejected generalized societal discrimination and minority role model justifications as insufficient to justify the application of the race-conscious remedy.

Rather, he contended that the board’s burden was to present convincing evidence of past discrimination and then “narrowly tailor the remedy” that was to be used in accomplishing its objective. He concluded that “less intrusive measures” than the use of racial preference could be used to attain the objectives of the school board in teacher layoffs. In a concurring opinion, Justice White stated that the remedy should be limited to the “actual victims” of discrimination. He could not accept a policy that required the layoff of white teachers “to make room for black [teachers]” absent proof of actual victimization. In dissent, Justice Marshall, who was joined by Justices Brennan and Blackmun, argued that the race-preferential remedy was adopted to achieve “important governmental interests” and was “substantially related” thereto. Justice Stevens, the fourth dissenter, contended that the important public interest that the layoff policy was designed to achieve justified the adverse consequences for some of the board’s white teachers. In the following term, the Rehnquist Court had its first opportunity to examine the affirmative action question in both the race and gender contexts. The Alabama state police employment practices were at issue in United States v. Paradise (480 U.S. 149, 1987). The crucial dimension of the relief ordered by the district court was a “one-black-for-one-white” promotion arrangement that was to be used as an interim measure until the department was found to be “implementing valid promotion procedures.” The Reagan Justice Department and several white troopers who alleged that they would be adversely affected by this relief measure lodged an equal protection objection to it. But the Supreme Court, in a narrow five-to-four decision, rejected that contention, with Justice Brennan once again asserting that such a race-conscious remedy was justified in pursuit of a “compelling governmental interest” to eradicate longstanding egregious discrimination in that area of public employment. Furthermore, he contended, the relief was “narrowly tailored” to deal with the specific discriminatory practices that were involved. The Rehnquist Court considered a gender-based affirmative action plan in Johnson v. Transportation Agency, Santa Clara County, CA (480 U.S. 616, 1987). There it rejected a Title VII challenge to a public agency’s affirmative action plan that allowed the consideration of the gender of an applicant in promoting to positions in which women had been The Continuing Significance of Race

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traditionally underrepresented. Speaking for the sixto-three majority, Justice Brennan recognized the existence of a “manifest imbalance” in the job category to which the female applicant was promoted. (It should be noted that the female applicant’s rating on the promotional examination was slightly lower than that of the male applicant who brought the challenge. There was, however, no question that she was qualified to hold the position of dispatcher about which the controversy centered.) Brennan concluded that the agency’s consideration of the applicant’s gender was constitutionally justified in correcting such imbalances. Another congressional action that was designed to enhance the economic position of minority contractors met with litigatory resistance in Fullilove v. Klutznick (448 U.S. 448, 1980). Minority contractors (often operating with meager resources) were usually at a disadvantage in competing for contracts and usually did not receive them. This situation was ameliorated somewhat when Congress included in the Public Works Employment Act of 1977 a “minority business enterprise” (MBE) provision. The provision required the secretary of commerce to exact from the state and local governments who were applying for grants under the act assurances that at least 10 percent of each grant would be expended in contracts with minority business enterprises. Immediately, the 10 percent set-aside was denounced as a “quota” regulatory measure that deprived some contractors of access to a portion of governmental contracting opportunities. Congress, it was argued, is constitutionally required to act in a “color-blind” manner. In rejecting such status quo arguments, the Court stressed the broad remedial powers of Congress to remedy the effects of past racial discrimination. The “limited use of racial and ethnic criteria” to effect remedies in this area of government operation was certainly within the authority of Congress, said Chief Justice Warren Burger, and it met the strict scrutiny standard that was required in such governmental efforts. In the years that followed the Fullilove ruling, a number of state and local governments adopted little set-aside programs to ensure that minority contractors would be able to get their share of the construction dollars awarded by various agencies of government in those governmental units. A number of minority contractors prospered in varying degrees as a result of these inclusive policies. But just as in 530

Fullilove, some white contractors resisted these initiatives, charging that the implementation of such policies resulted in unconstitutional “reverse” discrimination. White contractors were joined in their attack on the “set-aside” plans by the Reagan administration, which had mounted a heavy attack on race-based affirmative action policies generally. The issue came before the Court in a local governmental context when it considered City of Richmond v. J. A. Croson Co. (488 U.S. 469) during the 1988 term. In a six-tothree decision affirming the court of appeals’ rejection of Richmond’s 30 percent set-aside program, the Court held that government policies which utilize race-conscious numerical remedies are “suspect” and are subject to “strict scrutiny” review. Speaking for the Court, Justice O’Connor argued that the kind of race-conscious numerical remedy at issue in Richmond can only pass constitutional muster by a showing of a “compelling state interest” in the redress of specific “identified discrimination.” Rejecting the contention of affirmative action proponents that numerical disparity (the absence or only token presence of African Americans) is proof of discrimination, O’Connor embraced the meritocracy theory as the appropriate standard to govern agency selection and/or award decisions. Emphasizing this point, she contended, “[W]here special qualifications are necessary, the relevant statistical pool for purposes of demonstrating discriminatory exclusion must be the number of minorities qualified to undertake the particular task” at issue. In a concurring opinion, Justice Scalia argued that “compensatory justice” types of affirmative action plans (plans that are adopted to remedy generalized past societal discrimination) should not be accorded constitutional sanction. Furthermore, he asserted, “[T]here is only one circumstance in which the states may act by race to ‘undo the effects of past discrimination’: where that is necessary to eliminate their own maintenance of a system of unlawful racial classification.” In the major dissent, Justice Marshall indicated his displeasure with the majority for taking “a deliberate and giant step backward in [the] Court’s affirmative action jurisprudence.” On the merits, he argued that the Constitution does not prohibit Richmond from allocating a portion of its resources to allow minority contractors an opportunity to participate in the delivery of city services. Consequently, he stated, neither ordinary scrutiny (rational basis) nor strict scrutiny

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was the appropriate constitutional standard to apply to cases like Croson Hence, for Marshall, that kind of affirmative action case called for an equal protection inquiry that sought to determine whether the plan “serves important governmental objectives” and is “substantially related to the achievement of those objectives.” Underscoring the appropriateness of that kind of mid-level scrutiny for the race-conscious remedial policies, Marshall took very sharp exception to the majority’s adoption of strict scrutiny as the appropriate standard for the equal protection review of race remediation policies, calling it an “unwelcomed development.” In Martin v. Wilks (490 U.S. 755, 1989), the interest of affirmative action suffered a procedural loss. In that case, the consent decree as a mechanism for the implementation of affirmative action goals was the target of the Court’s conservative majority. The Court upheld a ruling of the court of appeals for the Eleventh Circuit that had overturned a federal district court consent decree settlement of a racial discrimination suit against the Birmingham Fire Department. The core stipulation in the decree provided for the hiring and promotion of equal numbers of blacks and whites until the black contingent in the several firefighter positions approximated the proportion of blacks in the local civilian labor force. The appeals court agreed with the white firefighter plaintiffs that implementation of the numericalbased remedy in the consent decree would constitute “reverse discrimination” and that the white firefighters should be allowed to reopen the consent decree and make their case. In affirming that position, the majority, speaking through Chief Justice Rehnquist, asserted that although a consent decree might settle matters among parties to a lawsuit, it “does not conclude the rights of strangers (the white firefighters here) to those proceedings.” The chief Justice then swung the courthouse door wide open to a potentially large number of lawsuits by groups challenging affirmative action programs in a variety of employment contexts that have been couched in consent decrees over the past two decades when he concluded that the decree is only binding on parties who were part of the original lawsuit. Justice John Paul Stevens underscored that possibility in his sharp dissent. Characterizing the result reached by the majority as “unfathomable” and “counterproductive,” he warned that the decision would “subject large employers who seek to comply with the

law by remedying past discrimination to a never ending stream of litigation and potential liability.” In another decision, a slightly different line-up of Justices(Justice O’Connor did not participate and Justice Stevens supplied the fifth vote) handed down a ruling that made it significantly more difficult for a plaintiff to bring an action challenging an allegedly discriminatory seniority system. In Lorance v. American Telephone and Telegraph Co. (490 U.S. 900, 1989), Justice Antonin Scalia’s opinion for the Court held that the female and the black employees, who had discovered in a personnel action some time after the employer had modified seniority rules that the changes adversely affected them, were too late to bring a discrimination action under Title VII. He noted that, in complaints alleging discrimination in violation of the title, actions must be brought within 300 days of the alleged violation. For many civil rights leaders and their supporters, the Court’s narrow interpretation of the applicable antidiscrimination laws in these affirmative action rulings represented a major step toward acceptance of the disgruntled white employees’ complaints of reverse discrimination. To be sure, the Court’s conservative majority did not overturn any of the antidiscrimination laws in the several rulings, but the construction of those laws made it significantly more difficult for the “protected” classes (minorities and women) to prevail in their complaints of discriminatory treatment in the several dimensions of employment. In the congressional session following the Court’s 1989 anti-affirmative action rulings, civil rights forces convinced Congress to enact amendatory legislation to overturn the Court’s narrow interpretation of the relevant law in several cases. But many opponents of affirmative action convinced President Bush that the net effect of the amendatory legislation would be to force employers to adopt hiring quotas to protect themselves from employment discrimination actions. Bush’s expected veto sent the measure back to the Congress, where a bipartisan group led by Senator John Danforth (R-Mo.) was able to fashion a measure that the president could sign in 1991. Two issues that affected the president’s altered position on this legislation were ex-Ku Klux Klansman David Duke’s significant appeal (as a Republican candidate) in the Louisiana gubernatorial election and the troublesome sexual harassment allegations that were brought against the president’s AfricanAmerican nominee (Appeals Court Judge Clarence The Continuing Significance of Race

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Thomas) to fill a Supreme Court vacancy. The image of a president who was insensitive to the efforts of diverse forces (including respected members of his own party) to rid the American workplace of employment discrimination was not baggage he wanted to carry in his 1992 reelection effort. Although the measure essentially restored the Griggs v. Duke Power Co. interpretation of Title VII, which had been shunted aside in the Wards Cove decision, it also allowed limited monetary damage awards for victims of employment discrimination that was based on sex, religion, and disability. Other key provisions of the new legislation negated and/or lessened the impact of the decisions in Wilks, McLean Credit Union, and Lorance. Many people expected that the climate which spawned the retrogressive actions on employment discrimination during the 1980s would be replaced with the more vigorous enforcement of existing law under the Clinton administration. The Court, however, did not give any indication that it was backing away from its narrow construction of employment discrimination law in the 1989 decisions when it decided St. Mary’s Honor Center v. Hicks (509 U.S. 502, 1993) during the final days of its 1992 term. The five-to-four decision made the burden of proof that was required of employees who sue their employers for discriminating against them more demanding. Justice Scalia argued for the majority that it is simply not enough to state that an employer’s proffered explanation for the adverse action against an employee is not credible. Scalia also maintained that the employee must present evidence of intentional discrimination as the reason for the adverse action against him or her (emphasis added). Such a requirement makes it extremely difficult for an employee plaintiff to prevail. Evidence of intentional discrimination is almost impossible to uncover unless an employer is incredibly inept and careless. In the end, civil rights leaders may mount an effort in Congress for remedial legislation as was done after the 1989 decision in this area of the law. In 1995, the Rehnquist Court continued its assault on affirmative action in Adarand Constructors, Inc. v. Pena (515 U.S. 200). Justice O’Connor wrote for the five-to-four majority. At issue in Adarand was whether the federal government’s use of race-conscious measures violated the equal protection clause of the Fifth Amendment. O’Connor applied the strict scrutiny standard to federal affirmative action measures as it had with the states in Croson. Here the 532

Supreme Court placed severe restrictions on the use of race-based remedies in federal government contracting activities. Many observers of racial policies perceived Adarand to put all affirmative action programs in constitutional jeopardy. It is quite clear that Adarand has sent anti-affirmative action ripples throughout America and has advanced the interests of those who are opposed to affirmative action. Moreover, Adarand has significantly influenced the strategy and willingness of supporters of affirmative action to place cases on the docket of the Supreme Court. In Board of Education of Piscataway v. Taxman (case no. 96-679), a coalition of civil rights groups under the leadership of the Reverend Jesse Jackson obtained a settlement before the Supreme Court ruled. Although many people might protest the tactic, the behavior of the coalition of civil rights groups suggests several scenarios: First, the supporters of affirmative action are seeking to avoid the Court if at all possible. Second, the supporters of affirmative action are returning to the 1950s and early 1960s when the NAACP searched for the proper test case that had the factual background which the NAACP thought was most advantageous. Third, the Supreme Court has ceased to be a forum for the advancement of the interests of African Americans and other excluded racial and ethnic groups. In 2003, the Supreme Court heard two affirmative action cases from the University of Michigan, Gratz v. Bollinger (529 U.S. 244) and Grutter v. Bollinger (539 U.S. 306). The Gratz decision was a setback in the eyes of civil rights groups and supporters of affirmative policies and programs. Gratz argued that the inclusion policy of the University of Michigan’s College of Literature, Science and Arts denied his rights under the Equal Protection of the Fourteenth Amendment and Title VII of the Civil Rights Act of 1964. Speaking for a sharply divided Court, Chief Justice Rehnquist concluded that the policy of the College of Literature, Science and Arts did not survive strict scrutiny. The use of race was not narrowly tailored to achieve the College’s interest in diversity. Rehnquist insisted that the 20 points assigned to racial and ethnic disadvantaged groups constituted a quota. He asserted that the applicants to the College were not given “individualized consideration.” The admission policy violated both the Equal Protection Clause of the Fourteenth Amendment and Title VII. The Grutter v. Bollinger Court reached an opposite conclusion. Writing for a five-to-four majority, Justice O’Connor couched her decision in terms of a

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diverse student body, the educational mission of the law school, the relentless pursuit of democracy, and the military and national security. O’Connor accepted the University of Michigan’s contention that the goal of creating a diverse student body survived strict scrutiny. Moreover, she was very deferential to the educational mission of the law school. She contended that the Grutter ruling was in keeping with the Court’s tradition of giving deference to a University’s academic decisions within constitutional limits. She took judicial notice of the varied benefits that are reaped from a diverse student body. Justice O’Connor also pointed to the briefs filed by major corporations and the nearly 30 briefs filed by the nation’s top former military and civilian defense officials. O’Connor noted that a highly qualified and racially diverse officer corps is tied to the military capacity to provide national security. She did suggest that a sundown element that would retire the policy after a certain period of time was essential. O’Connor intimated that twenty-five years after 2003, affirmative action would be unnecessary, showing great confidence in the pace that racial inclusion will define the American democracy. A concurring opinion by Justice Ginsberg questioned the twenty-five-year time frame for affirmative policy. Ginsberg observed that “it was only twenty-five years before Bakke that this Court declared public school desegregation unconstitutional, a declaration that after prolonged resistance, yielded an end to a law-enforced racial cast system, itself the legacy of centuries of slavery.” She advanced the argument that “well documented . . . conscious and unconscious race bias, even rank discrimination based on race, remains alive in our land impeding realization of our highest values and ideals.” O’Connor referred to the evidence of segregated education for African American and Latino children. She also asserted that “schools in predominantly minority communities lag far behind others measured by the educational resources available to them.” Justice Thomas filed an opinion concurring in part and dissenting in part. Thomas agreed with the part of O’Connor’s opinion that “approves of only one racial classification, confirms that further use of race in admissions remains unlawful” and with the part that “racial discrimination in higher education admissions will be illegal in twenty-five years.” Referring to a speech by Frederick Douglas to a group of abolitionists almost 140 years earlier, Thomas contended, “I believe blacks can achieve in

every avenue of American life without the meddling of university administrators.” He argued that the University of Michigan Law School knew that its admission policy is elitist. The use of race “is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.” Justice Thomas alleged that only two circumstances justify racial discrimination by the state: (1) national security and (2) past discrimination. Thomas characterized the majority opinion as conclusory. He contended that “selective admissions have been the vehicle for racial, ethnic, and religious tinkering and experimentation by university administration.” Thomas insisted that selective admissions was premised on “too many” excuses. His search of the history of admission revealed that “Columbia employed intelligence tests precisely because Jewish applicants, who were predominantly immigrants, scored worse on such tests . . . the tests were adopted with full knowledge of their disparate impact.” Like Columbia and other Ivy League schools at the turn of the twentieth century, “law schools continue to use the test and then attempt to ‘correct’ for black underperformance by using racial discrimination in admission so as to obtain their aesthetic student body.” The spring of 2009 found affirmative action related issues before the Supreme Court again. The Justice sheard oral arguments in Ricci v. DeStefano (no. 07-1428). The City of New Haven, Connecticut administered a promotion test for firefighters that only white firefighters passed. New Haven scuttled the promotion, fearing claims of race discrimination on both sides. Eventually, white firefighters brought the case to the Court, alleging violations of their rights under the Equal Protection Clause of the Fourteenth Amendment and Title VII. In oral arguments, their attorney claimed that “racial classifications are inherently pernicious and, if not checked, lead as they did in New Haven to regrettable and socially destructive racial politics.” The Assistant Solicitor General of the Justice Department as amicus curiae supported vacatur (an order from the Court by which a proceeding is set aside or annulled) and remand of the case. He argued that the Supreme Court “has long recognized that Title VII prohibits not only intentional discrimination but acts that are discriminatory in their operations.” At oral arguments, the attorney for the City of New Haven argued that employers, “both private and public, are required to comply with Title VII’s disparate impact provisions, which seek to root out barriers to equal The Continuing Significance of Race

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opportunity.” The attorney also claimed that “Title VII’s disparate impact provisions are designed to remove structural barriers to discrimination, and when an employment practice has an adverse impact such that it substantiates an inference of discrimination, an employer should look beyond that adverse impact.” The Justices of the Court used analogies and hypotheticals to explore the various issues and questions that were raised in Ricci v. DeStefano. Some of the questions included the following: (1) Is there a distinction between race as an animating discriminating object and race consciousness? (2)I Is race consciousness ever permissible? (3) Do the firefighters have a vested interest in getting the promotions if the city has strong evidence that the test excluded all blacks and was not job-related and that a better test was available? (4) Does the City of New Haven have a valid interest in avoiding liability and a disparate impact lawsuit? (5) Would the federal government’s position be the same if this test resulted in black applicants scoring highest on the test in disproportionate numbers and the City said it did not like the results? (6) Are Title VII’s disparate treatment and disparate impact provisions at war with one another? (7) How does one determine whether the concern the employer is expressing is really in good faith or is reasonable (8) What are the indicia of reasonableness? (9) Is it neutral to set aside a test simply because one race predominates? (10) Is disparate impact something to which one can intentionally respond by drawing racial distinctions solely to create a more diverse workplace? (11) Did the City look at the results and classify the successful and unsuccessful applicants by race? (12) What is the line between strict scrutiny and compliance with Title VII? (13) What is the distinction between intentional racial discrimination and race-conscious action? (14) Were the City’s efforts directed at overcoming a legacy of the past or achieving diversity? (15) Does Title VII prohibit altering test results? (16) What is meant by altering test results, and (17) Can the City change the test once it realizes the disparate results of the test? On June 29, a highly fractured Supreme Court answered several of the questions that were raised during oral arguments in the controversial Ricci v. DeStefano (557 U.S. ____, 2009) case. Speaking for the majority, Justice Kennedy framed the issue as a conflict between the disparate treatment and disparate impact provisions of Title VII. The City of 534

New Haven alleged that certification of the test results would make the city liable under the disparate impact demands of Title VII. Thus, New Haven used statistical racial disparity to discard the test results in which African Americans and Latinos who took the firefighters’ promotion examination disproportionately did not pass. The white and Latino firefighters who passed the examination claimed that they were denied a chance at promotion in violation of the disparate treatment provision of Title VII and the Equal Protection Clause of the Fourteenth Amendment. The City of New Haven responded that had the city certified the test results, it would have faced Title VII liability for adopting a practice that has a disparate impact on minority firefighters. Justice Kennedy proved again to be the pivotal vote on the Court. He recounted the factual basis of the litigation, including the five meetings that New Haven Civil Service Board had before discarding the test results. Then Justice Kennedy turned his attention to Title VII of the Civil Rights Act of 1964 as amended: “Title VII prohibits . . . intentional discrimination (known as ‘disparate treatment’) that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as ‘disparate impact’).” Kennedy claimed that the primary, original focus of Title VII “held employers liable only for disparate treatment.” Justice Kennedy gives priority to the disparate treatment requirement. He said, for example, that the “Civil Rights Act of 1964 did not include an express prohibition on policies or practices that produce a disparate impact.” Kennedy suggested that disparate impact is a judicially created requirement which is based on Title VII of the Civil Rights Act of 1964. Justice Kennedy pointed to Griggs v. Duke Power Co. (401 U.S. 424, 1971): [The] “Court interpreted the Act to prohibit, . . . , employers’ facially neutral practices that, in fact, are ‘discriminatory’ in operation. The Griggs Court stated that the ‘touchstone’ for disparate impact liability is the lack of ‘business necessity’: ‘If an employment practice which operates to exclude [minorities] cannot be shown to be related to job performance, the practice is prohibited.’”

Justice Kennedy seemed to ignore Wards Cove. He referred instead to the congressional enactment of the Civil Rights Act of 1991, which included “a provision codifying the prohibition on disparate-impact discrimination.” Kennedy claimed that the action of the City of New Haven brings into sharp

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focus the tension between the disparate impact and disparate treatment provisions of Title VII. He believed that the firefighters suggested what is “overly simplistic and too restrictive of Title VII’s purpose” to reconcile the competing claims. Kennedy also believed that the City’s good faith belief that its actions were necessary to comply with Title VII’s disparateimpact provision was not permissible. Justice Kennedy opted for the strong-basis-in-evidence standard. He argued that the application of strongbasis-in-evidence standard to Title VII “gives effect to both the disparate-treatment and disparate impact provisions, allowing violations of one in the name of compliance with the other only in certain narrow circumstances.” Kennedy insisted that the strong-basisin-evidence standard “leaves ample room for employers’ voluntary compliance efforts, which are essential to statutory scheme and to Congress’s efforts to eradicate workplace discrimination.” Justice Kennedy seemed not to emphasize whether the test was fair for all test takers. “But once that process has been established and employers have made clear their selection criteria,” adjudged Kennedy, “they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race.” In conclusion, he stated: “Our holding today clarifies how Title VII applies to resolve competing expectations under the disparatetreatment and disparate-impact provisions. If, after it certifies the tests results, the City faces a disparateimpact suit, then in light of our holding today it should be clear that the City would avoid disparateimpact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.”

The Equal Protection claim was not decided. In a concurring opinion, Justice Scalia asserted: “I join the Court’s opinion in full, but write separately to observe that its resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantees of equal protection?”

Scalia admitted that the “question is not an easy one.” He raised a second question: “Whether or not Title VII’s disparate-treatment provision forbid ‘remedial’ race-based actions when a disparateimpact violation would not otherwise result?” Scalia claimed that Title VII disparate-impact

provisions “place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes.” He alleged that the disparate-impact provisions “sweep too broadly to be fairly characterized in such a fashion—since they fail to provide an affirmative defense for good-faith . . . conduct, or even perhaps even for good faith plus hiring standards are entirely reasonable.” In a concurring opinion, joined by Justice Scalia and Thomas, Justice Alito asserted that his effort was to meet the incomplete description of the events offered by the dissent of Justice Ginsburg. The dissenting opinion of Justice Ginsburg was joined by Justices Stevens, Souter and Breyer. Justice Ginsburg’s approach placed the City of New Haven firefighters’ controversy in the historical context of racial discrimination in employment, especially municipal fire departments across the country. According to Ginsburg, at the time when Title VII of the Civil Rights Act of 1964 was enacted, fire departments including New Haven’s “pervasively discriminated against minorities.” Justice Ginsburg observed that it “took decades of persistent effort, advanced by Title VII litigation, to open firefighting posts to members of racial minorities.” Ginsburg conceded that the “white firefighters who scored high on New Haven’s promotional exams understandable attract this Court’s sympathy.” But she added that “they had no vested right to promotion. Nor have other persons received promotions in preference to them.” Ginsburg accepted New Haven’s contention that it “refused to certify the test results because it believed, for good cause, that it would be vulnerable to a Title VII disparate-impact suit if it relied on those results.” Ginsburg denounced the majority’s holding that New Haven “rejected the test results solely because the higher scoring candidates were white.” She argued that the majority ignored substantial evidence of multiple flaws in the tests administered by New Haven. Moreover, she argued the majority “fails to acknowledge the better tests used in other cities which have yielded less racially skewed outcomes.” Justice Ginsburg then turned to the United States Commission on Civil Rights Report (USCCR) that framed discrimination in municipal employment. Ginsburg noted that the USCCR blamed the paucity of African Americans and Latinos in municipal employment on two factors: (1) Overt racism and (2) a The Continuing Significance of Race

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failure of municipal employers to apply meritbased employment principles. Justice Ginsburg argued that such “flawed selection methods served to entrench preexisting racial hierarchies. The USCCR report singled out police and fire departments for having ‘barriers to equal employment . . . greater . . . than in any other area of state or local government,’ with African-Americans ‘hold[ing] almost no positions in officer ranks.’”

Next Ginsburg documented the difficult path traveled by New Haven to include African Americans and Latinos in the rank of firefighters: “It is against this backdrop of entrenched inequality that the promotion process at issue in this litigation should be assessed.” Like the majority, Justice Ginsburg recited the materials on the test and testimony at the five meetings by the City of New Haven Civil Service Board, but she reached an opposite conclusion: “Respondents were no doubt conscious of race during their decision-making process, the court [2nd Circuit Court of Appeals] acknowledged, but this did not mean they had engaged in racially disparate treatment. The conclusion they had reached and the action thereupon taken were race-neutral in this sense: ‘[A]ll the test results were discarded, no one was promoted, and firefighters of every race will have to participate in another selection process to be considered for promotion.’”

Referring to the Second Circuit holding, Justice Ginsburg contended that “New Haven’s action, which gave no individual a preference, ‘was simply not analogous to a quota system or a minority setaside where candidates, on the basis of their race, are treated uniformly.’” Unlike the majority, Justice Ginsburg traced the history of disparate-impact to July 1965, the date that Title VII became effective. Unlike the majority, Ginsburg stressed that Griggs v. Duke Power Co. was the Supreme Court’s response to the rules, practices, and subtle and unconscious forms of discrimination. She chastised the majority for ignoring Griggs: “Only by ignoring Griggs could one maintain that intentionally disparate treatment alone was Title VII’s ‘original, foundational prohibition’, and disparate impact a mere afterthought.” Ginsburg emphasized that the Supreme Court’s development of disparate impact interpretation of Title VII was rooted in a series of unanimous opinions (e.g., Griggs and Albemarle Paper Co. v. Moody, 442 U.S. 536

405, 1975). Justice Ginsburg described how in Wards Cove Packing Co. v. Atonio (490 U.S. 642, 1989) a “bare majority of this Court significantly modified the Griggs-Albemarle delineation of Title VII’s disparate-impact proscription.” She underscored how Wards Cove changed the business necessity of Griggs to a policy whereby “practice would be permissible as long as it ‘serve[d], in a significant way, the legitimate employment goals of the employee.’” Ginsburg indicated that the Civil Rights Act of 1991 was Congress’s response to Wards Cove and “a number of [other] recent decisions by the United States Supreme Court that sharply cut back on the scope and effectiveness of [civil rights] laws.” Congress specifically: “made plain its intention to restore ‘the concepts of business necessity’ [and] ‘job related’ enunciates by the Supreme Court in Griggs v. Duke Power Co. . . . and in other Supreme Court decisions prior to Ward Cove Packing Co. v. Atonio.”

Justice Ginsburg focused on the question of the conflict between the disparate treatment and disparate impact provisions of Title VII. Ginsburg concluded that neither “Congress’ enactments nor this Court’s Title VII precedents (including the nowdiscredited decision in Wards Cove) offer even a hint of ‘conflict’ between an employer’s obligations under the statute’s disparate treatment and disparateimpact provisions.” Unlike the majority, she insisted that the two provisions stand “on an equal footing . . .” The twin pillows of Title VII have the same objectives: “[E]roding workplace discrimination and promoting genuinely equal opportunity.” Ginsburg chided the majority for using the strong-basis-inevidence standard. Justice Ginsburg argued that this standard is “drawn from inapposite equal protection precedents . . . [and] is not elaborated. One is left to wonder what cases would meet the standard and why.” Ginsburg sought to distinguish equal protection doctrine and Title VII. She claimed that under equal protection, the body of precedents of the Supreme Court “prohibits only intentional discrimination; it does not have a disparate-impact component . . . Title VII, in contrast, aims to eliminate all forms of employment discrimination, unintentional as well as deliberate.” Justice Ginsburg returned to the proper standard to record in New Haven: “I would hold that New Haven had ample cause to believe its selection process was flawed and not justified by business necessity. Judged by that standard,

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petitioners have not shown that New Haven’s failure to certify the exam results violated Title VII’s disparate-treatment provision.” In conclusion, Ginsburg wrote “This case presents an unfortunate situation, one New Haven might well have avoided had it utilized a better selection process in the first place. But what this case does not present is race-based discrimination in violation of Title VII.” One year later, in Lewis v. City of Chicago (560 U.S.__, 2010), the Supreme Court accepted another suit that contested a written examination for firefighter positions. The City of Chicago administered a written examination to applicants seeking firefighter positions and divided the applicants into three categories based on their test scores: (1) “Well-qualified”(89 or above out of 100); (2) “qualified” (65 to 88); and (3) “unqualified” (64 and below). African Americans filed suit, alleging that the city’s practice of randomly selecting only applicants who scored 89 or above had a disparate impact on blacks in violation of Title VII of the Civil Rights Act of 1964. The District Court ruled in favor of blacks on the merit. The Seventh Circuit Court of Appeals reversed, holding that the suit was not filed in a timely manner because the earliest filing to the Equal Employment Opportunity Commission was more than 300 days after the only discriminatory act: sorting the scores into the three categories. The Seventh Circuit reasoned that “[t]he hiring only of applicants classified ‘well-qualified’ was the automatic consequence of the test scores rather than the product of a fresh act of discrimination.’”

The Supreme Court granted certiorari, reversed the judgment of the Seventh Circuit, and remanded the case. Justice Scalia delivered the opinion of a unanimous Court. Scalia concluded that the suit was indeed filed in a timely manner. He admitted that “Title VII of the Civil Rights Act of 1964 prohibits employers from using employment practices that cause a disparate impact on the basis of race (among other bases).” He re-affirmed the DeStefano Court’s construction of Title VII and disparate impact. Scalia argued that, as originally enacted, “Title VII did not expressly prohibit employment practices that cause a disparate impact.” He contended that disparate treatment was the original prohibition of Title VII. Griggs’ interpretation of Title VII and Congress’ enactment of the Civil Rights Act of 1991 extended the prohibition against discrimination to disparate impact. Scalia adjudged that the African American petitioners met the standard for a prima facie disparate impact claim “by showing that the employer ‘uses a particular employment practice that causes a disparate impact’ on one of the prohibited bases.” He also stated that a business-necessity defense” . . . is irrelevant.” Scalia added, “Unless and until the defendant pleads and proves a business-necessity defense, the plaintiff wins simply by showing the stated elements.” Finally, he noted Title VII’s conflict: disparate impact v. disparate treatment. Scalia stated that it was the task of Congress, and not “one that federal courts can fix.” “Our charge,” insisted Scalia, “is to give effect to the law Congress enacted.”

REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE 438 U.S. 265; 57 L. Ed. 2d 750; 98 S. Ct. 2733 (1978) JUSTICE POWELL announced the Court’s judgment and filed an opinion expressing his views of the case in Parts I, III-A, and V-C, in which JUSTICE WHITE joined, and in Parts I and V-C, in which JUSTICES BRENNAN, MARSHALL, and BLACKMUN joined. JUSTICES BRENNAN, WHITE, MARSHALL, and BLACKMUN filed an opinion concurring in the judgment in part and dissenting in part. JUSTICES WHITE, MARSHALL, and BLACKMUN filed separate opinions. JUSTICE STEVENS filed an opinion concurring in the judgment in part and dissenting in part, in which

CHIEF JUSTICES BURGER and JUSTICES STEWART and REHNQUIST joined. JUSTICE POWELL announced the judgment of the Court. This case presents a challenge to the special admissions program of the petitioner, the Medical School of the University of California at Davis, which is designed to assure the admission of a specified number of students from certain minority groups. The Superior Court of California sustained The Continuing Significance of Race

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respondent’s challenge, holding that petitioner’s program violated the California Constitution, Title VI of the Civil Rights Act of 1964 . . . and the Equal Protection Clause of the Fourteenth Amendment. The court enjoined petitioner from considering respondent’s race or the race of any other applicant in making admissions decisions. It refused, however, to order respondent’s admission to the Medical School, holding that he had not carried his burden of proving that he would have been admitted but for the constitutional and statutory violations. The Supreme Court of California affirmed those portions of the trial court’s judgment. . . . It modified that portion of the judgment denying respondent’s requested injunction and directed the trial court to order his admission. For the reasons stated in the following opinion, I believe that so much of the judgment of the California court as holds petitioner’s special admissions program unlawful and directs that respondent be admitted to the Medical School must be affirmed. For the reasons expressed in a separate opinion, my Brothers THE CHIEF JUSTICE, JUSTICE STEWART, JUSTICE REHNQUIST, and JUSTICE STEVENS concur in this judgment. I also conclude for the reasons stated in the following opinion that the portion of the court’s judgment enjoining petitioner from according any consideration to race in its admissions process must be reversed. For reasons expressed in separate opinions, my Brothers JUSTICE BRENNAN, JUSTICE WHITE, JUSTICE MARSHALL, and JUSTICE BLACKMUN concur in this judgment. Affirmed in part and reversed in part. I The Medical School of the University of California at Davis opened in 1968 with an entering class of fifty students. In 1971, the size of the entering class was increased to 100 students, a level at which it remains. No admissions program for disadvantaged or minority students existed when the school opened, and the first class contained three Asians but no blacks, no Mexican-Americans, and no American Indians. Over the next two years, the faculty devised a special admissions program to increase the representation of “disadvantaged” students in each medical school class. The special program consisted of a separate admissions system operating in coordination with the regular admissions process. 538

Under the regular admissions procedure, a candidate could submit his application to the Medical School beginning in July of the year preceding the academic year for which admission was sought. Because of the large number of applications, the admissions committee screened each one to select candidates for further consideration. Candidates whose overall undergraduate grade point averages fell below 2.5 on a scale of 4.0 were summarily rejected. About one out of six applicants was invited for a personal interview. Following the interviews, each candidate was rated on a scale of 1 to 100 by his interviewers and four other members of the admissions committee. The rating embraced the interviewers’ summaries, the candidate’s overall grade point average, grade point average in science courses, scores on the Medical College Admissions Test (MCAT), letters of recommendation, extracurricular activities, and other biographical data. The ratings were added together to arrive at each candidate’s “benchmark” score. . . . The full committee then reviewed the file and scores of each applicant and made offers of admission. . . . The special admissions program operated with a separate committee, a majority of whom were members of minority groups. On the 1973 application form, candidates were asked to indicate whether they wished to be considered as “economically and/or educationally disadvantaged” applicants; on the 1974 form the question was whether they wished to be considered as members of a “minority group,” which the Medical School apparently viewed as “Blacks,” “Chicanos,” “Asians,” and “American Indians.” If these questions were answered affirmatively, the application was forwarded to the special admissions committee. No formal definition of “disadvantaged” was ever produced, but the chairman of the special committee screened each application to see whether it reflected economic or educational deprivation. Having passed this initial hurdle, the applications then were rated by the special committee in a fashion similar to that used by the general admissions committee, except that special candidates did not have to meet the 2.5 grade point average cutoff applied to regular applicants. About one-fifth of the total number of special applicants were invited for interviews in 1973 and 1974. Following each interview, the special committee assigned each special applicant a benchmark score. The special committee then presented its top choices to the general admissions committee. The latter did not rate or compare the special candidates

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against the general applicants, but could reject recommended special candidates for failure to meet course requirements or other specific deficiencies. The special committee continued to recommend special applicants until a number prescribed by faculty vote were admitted. While the overall class size was still 50, the prescribed number was 8; in 1973 and 1974, when the class size had doubled to 100, the prescribed number of special admissions also doubled, to 16. From the year of the increase in class size— 1971—through 1974, the special program resulted in the admission of twenty-one black students, thirty Mexican-Americans, and twelve Asians, for a total of sixty-three minority students. Over the same period, the regular admissions program produced one black, six Mexican-Americans, and thirty-seven Asians, for a total of forty-four minority students. Although disadvantaged whites applied to the special program in large numbers, none received an offer of admission through that process. . . . Allan Bakke is a white male who applied to the Davis Medical School in both 1973 and 1974. In both years Bakke’s application was considered under the general admissions program, and he received an interview. . . . Despite a strong benchmark score of 468 out of 500 (in 1973), Bakke was rejected. His application had come late in the year, and no applicants in the general admissions process with scores below 470 were accepted after Bakke’s application was completed. There were four special admissions slots unfilled at that time, however, for which Bakke was not considered. . . . Bakke’s 1974 application was completed early in the year. . . . Again, Bakke’s application was rejected. In neither year did the chairman of the admissions committee . . . exercise his discretion to place Bakke on the waiting list. In both years, applicants were admitted under the special program with grade point averages, MCAT scores, and benchmark scores significantly lower than Bakke’s. After the second rejection, Bakke filed the instant suit in the Supreme Court of California. II ... In this Court the parties neither briefed nor argued the applicability of Title VI of the Civil Rights Act of 1964. Rather, as had the California court, they focused exclusively upon the validity of the special admissions program under the Equal Protection Clause. Because it was possible, however, that a

decision on Title VI might obviate resort to constitutional interpretation, . . . we requested supplementary briefing on the statutory issue. . . . B The language of § 601, 78 Stat. 252 [Title VI] like that of the Equal Protection Clause, is majestic in its sweep: 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 Federal financial assistance.

The concept of “discrimination,” like the phrase “equal protection of the laws,” is susceptible of varying interpretations. . . . We must, therefore, seek whatever aid is available in determining the precise meaning of the statute before us. . . . Examination of the voluminous legislative history of Title VI reveals a congressional intent to halt federal funding of entities that violate a prohibition of racial discrimination similar to that of the Constitution. Although isolated statements of various legislators, taken out of context, can be marshaled in support of the proposition that § 601 enacted a purely colorblind scheme, without regard to the reach of the Equal Protection Clause, these comments must be read against the background of both the problem that Congress was addressing and the broader view of the statute that emerges from a full examination of the legislative debates. The problem confronting Congress was discrimination against Negro citizens at the hands of recipients of federal moneys. . . . Over and over again, proponents of the bill detailed the plight of Negroes seeking equal treatment in such programs. There simply was no reason for Congress to consider the validity of hypothetical preferences that might be accorded minority citizens; the legislators were dealing with the real and pressing problem of how to guarantee those citizens equal treatment. In addressing that problem, supporters of Title VI repeatedly declared that the bill enacted constitutional principles. . . . In the Senate, Senator Humphrey declared that the purpose of Title VI was “to insure that Federal funds are spent in accordance with the Constitution and the moral sense of the Nation.” . . . Senator Ribicoff agreed that Title VI embraced the constitutional standard: “Basically, there is a constitutional restriction against discrimination in the use of federal funds; and Title VI simply spells out the procedure to be used in The Continuing Significance of Race

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enforcing that restriction.” . . . Other Senators expressed similar views. Further evidence of the incorporation of a constitutional standard into Title VI appears in the repeated refusals of the legislation’s supporters precisely to define the term “discrimination.” Opponents sharply criticized this failure, but proponents of the bill merely replied that the meaning of “discrimination” would be made clear by reference to the Constitution or other existing law. . . . In view of the clear legislative intent, Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment. III A Petitioner does not deny that decisions based on race or ethnic origin by faculties and administrations of state universities are reviewable under the Fourteenth Amendment. . . . For his part, respondent does not argue that all racial or ethnic classifications are per se invalid. . . . The parties do disagree as to the level of judicial scrutiny to be applied to the special admissions program. Petitioner argues that the court below erred in applying strict scrutiny, as this inexact term has been applied in our cases. That level of review, petitioner asserts, should be reserved for classifications that disadvantage “discrete and insular minorities.” See United States v. Carolene Products Co. . . . Respondent, on the other hand, contends that the California court correctly rejected the notion that the degree of scrutiny accorded a particular racial or ethnic classification hinges upon membership in a discrete and insular minority and duly recognized that the “rights established (by the Fourteenth Amendment) are personal rights.” Shelley v. Kraemer. . . . En route to this crucial battle over the scope of judicial review, the parties fight a sharp preliminary action over the proper characterization of the special admissions program. Petitioner prefers to view it as establishing a “goal” of minority representation in the Medical School. Respondent, echoing the courts below, labels it a racial quota. This semantic distinction is beside the point: The special admissions program is undeniably a classification based on race and ethnic background. To the extent that there existed a pool of at least minimally qualified minority applicants to fill the 16 special 540

admissions seats, white applicants could compete only for eighty-four seats in the entering class, rather than the 100 open to minority applicants. Whether this limitation is described as a quota or a goal, it is a line drawn on the basis of race and ethnic status. . . . It is settled beyond question that the “rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights.” Shelley v. Kraemer. . . . The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal. Nevertheless, petitioner argues that the court below erred in applying strict scrutiny to the special admissions program because white males, such as respondent, are not a “discrete and insular minority” requiring extraordinary protection from the majoritarian political process. . . . This rationale, however, has never been invoked in our decisions as prerequisite to subjecting racial or ethnic distinctions to strict scrutiny. Nor has this Court held that discreteness and insularity constitute necessary preconditions to a holding that a particular classification is invidious. . . . These characteristics may be relevant in deciding whether or not to add new types of classifications to the list of “suspect” categories or whether a particular classification survives close examination. . . . Racial and ethnic classifications, however, are subject to stringent examination without regard to these additional characteristics. We declared as much in the first cases explicitly to recognize racial distinctions as suspect: Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. Hirabayashi, 320 U.S., at 100. [A]ll legal restrictions which curtail the civil rights of a single group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Korematsu, 323 U.S., at 216.

The Court has never questioned the validity of those pronouncements. Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination. B This perception of racial and ethnic distinctions is rooted in our Nation’s constitutional and demographic

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history. The Court’s initial view of the Fourteenth Amendment was that its “one pervading purpose” was “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised dominion over him.” Slaughter-House Cases. . . . The Equal Protection Clause, however, was “[v]irtually strangled in infancy by post-civil-war judicial reactionism.” It was relegated to decades of relative desuetude while the Due Process Clause of the Fourteenth Amendment, after a short germinal period, flourished as a cornerstone in the Court’s defense of property and liberty of contract. . . . In that cause, the Fourteenth Amendment’s “one pervading purpose” was displaced. . . . It was only as the era of substantive due process came to a close . . . that the Equal Protection Clause began to attain a genuine measure of vitality. . . . By that time it was no longer possible to peg the guarantees of the Fourteenth Amendment to the struggle for equality of one racial minority. During the dormancy of the Equal Protection Clause, the United States had become a Nation of minorities. Each had to struggle—and to some extent struggles still—to overcome the prejudices not of a monolithic majority, but of a “majority” composed of various minority groups of whom it was said—perhaps unfairly in many cases—that a shared characteristic was a willingness to disadvantage other groups. As the Nation filled with the stock of many lands, the reach of the Clause was gradually extended to all ethnic groups seeking protection from official discrimination. See Strauder v. West Virginia, 100 U.S. 303, 308 (1880) (Celtic Irishmen) (dictum); Yick Wo v. Hopkins, 118 U.S. 356 (1886) (Chinese); Traux v. Raich, 239 U.S. 33, 41 (1915) (Austrian resident aliens); Korematsu, supra (Japanese); Hernandez v. Texas, 347 U.S. 475 (1954) (Mexican-Americans). . . . Although many of the Framers of the Fourteenth Amendment conceived of its primary function as bridging the vast distance between members of the Negro race and the white “majority,” . . . the Amendment itself was framed in universal terms, without reference to color, ethnic origin, or condition of prior servitude. As this Court recently remarked in interpreting the 1866 Civil Rights Act to extend to claims of racial discrimination against white persons, “the 39th Congress was intent upon establishing in the federal law a broader principle than would have been necessary simply to meet the particular

and immediate plight of the newly freed Negro slaves.” McDonald v. Santa Fe Trail Transportation Co. . . . And that legislation was specifically broadened in 1870 to ensure that “all persons,” not merely “citizens” would enjoy equal rights under the law. See Runyon v. McCrary. . . . Indeed, it is not unlikely that among the Framers were many who would have applauded a reading of the Equal Protection Clause that states a principle of universal application and is responsive to the racial, ethnic, and cultural diversity of the Nation. . . . Over the past thirty years, this Court has embarked upon the crucial mission of interpreting the Equal Protection Clause with the view of assuring to all persons “the protection of equal laws” . . . in a Nation confronting a legacy of slavery and racial discrimination. . . . Because the landmark decisions in this area arose in response to the continued exclusion of Negroes from the mainstream of American society, they could be characterized as involving discrimination by the “majority” white race against the Negro minority. But they need not be read as depending upon that characterization for their results. It suffices to say that “[o]ver the years, this Court has consistently repudiated ‘[d]istinctions between citizens solely because of their ancestry’ as being ‘odious to a free people whose institutions are founded upon the doctrine of equality.’” Loving v. Virginia, 388 U.S. 1, 11 (1967), quoting Hirabayashi. . . . Petitioner urges us to adopt for the first time a more restrictive view of the Equal Protection Clause and hold that discrimination against members of the white “majority” cannot be suspect if its purpose can be characterized as “benign.” The clock of our liberties, however, cannot be turned back to 1868. . . . It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others. “The Fourteenth Amendment is not directed solely against discrimination due to a ‘two-class theory’—that is, based upon differences between ‘white’ and Negro.” Hernandez, 347 U.S., at 478. Once the artificial line of a “two-class theory” of the Fourteenth Amendment is put aside, the difficulties entailed in varying the level of judicial review according to a perceived “preferred” status of a particular racial or ethnic minority are intractable. The concepts of “majority” and “minority” necessarily reflect temporary arrangements and political judgments. . . . [T]he white “majority” itself is composed The Continuing Significance of Race

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of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals. Not all of these groups can receive preferential treatment and corresponding judicial tolerance of distinctions drawn in terms of race and nationality, for then the only “majority” left would be a new minority of white AngloSaxon Protestants. There is no principled basis for deciding which groups would merit “heightened judicial solicitude” and which would not. Courts would be asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classifications at the expense of individuals belonging to other groups. Those classifications would be free from exacting judicial scrutiny. As these preferences began to have their desired effect, and the consequences of past discrimination were undone, new judicial rankings would be necessary. The kind of variable sociological and political analysis necessary to produce such rankings simply does not lie within the judicial competence—even if they otherwise were politically feasible and socially desirable. Moreover, there are serious problems of Justice connected with the idea of preference itself. First, it may not always be clear that a so-called preference is in fact benign. Courts may be asked to validate burdens imposed upon individual members of a particular group in order to advance the group’s general interest. See United Jewish Organizations v. Carey. . . . Nothing in the Constitution supports the notion that individuals may be asked to suffer otherwise impermissible burdens in order to enhance the societal standing of their ethnic groups. Second, preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth. See DeFunis v. Odegaard. . . . Third, there is a measure of inequity in forcing innocent persons in respondent’s position to bear the burdens of redressing grievances not of their making. By hitching the meaning of the Equal Protection Clause to these transitory considerations, we would be holding, as a constitutional principle, that judicial scrutiny of classifications touching on racial and ethnic background may vary with the ebb and flow of political forces. Disparate constitutional tolerance of such classifications well may serve to exacerbate 542

racial and ethnic antagonisms rather than alleviate them. . . . United Jewish Organizations, supra, at 173–174 (JUSTICE BRENNAN, concurring in part). Also, the mutability of a constitutional principle, based upon shifting political and social judgments, undermines the changes for consistent application of the Constitution from one generation to the next, a critical feature of its coherent interpretation. . . . If it is the individual who is entitled to judicial protection against classifications based upon his racial or ethnic background because such distinctions impinge upon personal rights, rather than the individual only because of his membership in a particular group, then constitutional standards may be applied consistently. Political judgments regarding the necessity for the particular classification may be weighed in the constitutional balance . . . but the standard of justification will remain constant. This is as it should be, since those political judgments are the product of rough compromise struck by contending groups within the democratic process. When they touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest. The Constitution guarantees that right to every person regardless of his background. . . . C Petitioner contends that on several occasions this Court has approved preferential classifications without applying the most exacting scrutiny. Most of the cases upon which petitioner relies are drawn from three areas: school desegregation, employment discrimination, and sex discrimination. Each of the cases cited presented a situation materially different from the facts of this case. The school desegregation cases are inapposite. Each involved remedies for clearly determined constitutional violations. . . . Racial classifications thus were designed as remedies for the vindication of constitutional entitlement. Moreover, the scope of the remedies was not permitted to exceed the extent of the violations. . . . Here, there was no judicial determination of constitutional violation as a predicate for the formulation of a remedial classification. The employment discrimination cases also do not advance petitioner’s cause. For example, in Franks v. Bowman Transportation Co., 424 U.S. 747 (1976), we approved a retroactive award of seniority to a class of Negro truckdrivers who had been the victims

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of discrimination—not just by society at large, but by the respondent in that case. While this relief imposed some burdens on other employees, it was held necessary “‘to make [the victims] whole for injuries suffered on account of unlawful employment discrimination.’” . . . The Courts of Appeals have fashioned various types of racial preferences as remedies for constitutional or statutory violations resulting in identified, race-based injuries to individuals held entitled to the preference. . . . Such preferences also have been upheld where a legislative or administrative body charged with the responsibility made determinations of past discrimination by the industries affected, and fashioned remedies deemed appropriate to rectify the discrimination. . . . But we have never approved preferential classifications in the absence of proved constitutional or statutory violations. Nor is petitioner’s view as to the applicable standard supported by the fact that gender-based classifications are not subjected to this level of scrutiny. . . . Gender-based distinctions are less likely to create the analytical and practical problems present in preferential programs premised on racial or ethnic criteria. With respect to gender there are only two possible classifications. The incidence of the burdens imposed by preferential classifications is clear. There are no rival groups which can claim that they, too, are entitled to preferential treatment. . . . In sum, the Court has never viewed such classification as inherently suspect or as comparable to racial or ethnic classifications for the purpose of equal protection analysis. . . . [P]etitioner contends that our recent decision in United Jewish Organizations v. Carey . . . indicates a willingness to approve racial classifications designed to benefit certain minorities, without denominating the classifications as “suspect.” The State of New York had redrawn its reapportionment plan to meet objections of the Department of Justiceunder § 5 of the Voting Rights Act of 1965. . . . Specifically, voting districts were redrawn to enhance the electoral power of certain “nonwhite” voters found to have been the victims of unlawful “dilution” under the original reapportionment plan. United Jewish Organizations . . . properly is viewed as a case in which the remedy for an administrative finding of discrimination encompassed measures to improve the previously disadvantaged group’s ability to participate, without excluding individuals belonging to any other group from enjoyment of the relevant opportunity—meaningful participation in the electoral process.

In this case, unlike . . . United Jewish Organizations, there has been no determination by the legislature or a responsible administrative agency that the University engaged in a discriminatory practice requiring remedial efforts. Moreover, the operation of petitioner’s special admissions program is quite different from the remedial measures approved in those cases. It prefers the designated minority groups at the expense of other individuals who are totally foreclosed from competition for the 16 special admissions seats in every Medical School class. Because of that foreclosure, some individuals are excluded from enjoyment of a state-provided benefit— admission to the Medical School—they otherwise would receive. When a classification denies an individual opportunities or benefits enjoyed by others solely because of his race or ethnic background, it must be regarded as suspect. . . . IV We have held that in “order to justify the use of a suspect classification, a State must show that its purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is ‘necessary . . . to the accomplishment’ of its purpose of the safeguarding of its interest.” . . . The special admissions program purports to serve the purposes of: (i) “reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession” . . . ; (ii) countering the effects of societal discrimination; (iii) increasing the number of physicians who will practice in communities currently underserved; and (iv) obtaining the educational benefits that flow from an ethnically diverse student body. It is necessary to decide which, if any, of these purposes is substantial enough to support the use of a suspect classification. A If petitioner’s purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a preferential purpose must be rejected not as insubstantial but as facially invalid. Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. . . . B The State certainly has a legitimate and substantial interest in ameliorating, or eliminating where feasible, the disabling effects of identified discrimination. The Continuing Significance of Race

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The line of school desegregation cases, commencing with Brown, attests to the importance of this state goal and the commitment of the judiciary to affirm all lawful means toward its attainment. . . . That goal was far more focused than the remedying of the effects of “societal discrimination,” an amorphous concept of injury that may be ageless in its reach into the past. We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations. . . . After such findings have been made, the governmental interest in preferring members of the injured groups at the expense of others is substantial, since the legal rights of the victims must be vindicated. In such a case, the extent of the injury and the consequent remedy will have been judicially, legislatively, or administratively defined. Also, the remedial action usually remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit. Without such findings of constitutional or statutory violations, it cannot be said that the Government has any greater interest in helping one individual than in refraining from harming another. Thus, the Government has no compelling justification for inflicting such harm. Petitioner does not purport to have made, and is in no position to make, such findings. Its broad mission is education, not the formulation of any legislative policy or the adjudication of particular claims of illegality. . . . [I]solated segments of our vast governmental structures are not competent to make those decisions, at least in the absence of legislative mandates and legislatively determined criteria. . . . Before relying upon these sorts of findings in establishing a racial classification, a governmental body must have the authority and capability to establish, in the record, that the classification is responsive to identified discrimination. . . . Lacking this capability, petitioner has not carried its burden of justification on this issue. Hence, the purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of “societal discrimination” does not justify a classification that imposes disadvantages upon persons like respondent, who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered. To hold otherwise would be to convert a 544

remedy heretofore reserved for violations of legal rights into a privilege that all institutions throughout the Nation could grant at their pleasure to whatever groups are perceived as victims of societal discrimination. That is a step we have never approved. . . . C Petitioner identifies, as another purpose of its program, improving the delivery of health-care services to communities currently underserved. It may be assumed that in some situations a State’s interest in facilitating the health care of its citizens is sufficiently compelling to support the use of a suspect classification. But there is virtually no evidence in the record indicating that petitioner’s special admissions program is either needed or geared to promote that goal. . . . D The fourth goal asserted by petitioner is the attainment of a diverse student body. This clearly is a constitutionally permissible goal for an institution of higher education. Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body. . . . The atmosphere of “speculation, experiment and creation”—so essential to the quality of higher education—is widely believed to be promoted by a diverse student body. . . . Thus, in arguing that its universities must be accorded the right to select those students who will contribute the most to the “robust exchange of ideas,” petitioner invokes a countervailing constitutional interest, that of the First Amendment. In this light, petitioner must be viewed as seeking to achieve a goal that is of paramount importance in the fulfillment of its mission. It may be argued that there is greater force to these views at the undergraduate level than in a medical school where the training is centered primarily on professional competency. But even at the graduate level, our tradition and experience lend support to the view that the contribution of diversity is substantial. In Sweatt v. Painter, 339 U.S. 629, at 634 (1950) the Court made a similar point with specific reference to legal education: The law school, the proving ground for legal learning and practice, cannot be effective in isolation from the individuals and institutions with which the

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law interacts. Few students and no one who has practiced law would choose to study in an academic vacuum, removed from the interplay of ideas and the exchange of views with which the law is concerned.

Physicians serve a heterogeneous population. An otherwise qualified medical student with a particular background—whether it be ethnic, geographic, culturally advantaged or disadvantaged—may bring to a professional school of medicine experiences, outlooks, and ideas that enrich the training of its student body and better equip its graduates to render with understanding their vital service to humanity. Ethnic diversity, however, is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body. Although a university must have wide discretion in making the sensitive judgments as to who should be admitted, constitutional limitations protecting individual rights may not be disregarded. . . . As the interest of diversity is compelling in the context of a university’s admissions program, the question remains whether the program’s racial classification is necessary to promote this interest. . . . V A It may be assumed that the reservation of a specified number of seats in each class for individuals from the preferred ethnic groups would contribute to the attainment of considerable ethnic diversity in the student body. But petitioner’s argument that this is the only effective means of serving the interest of diversity is seriously flawed. In a most fundamental sense the argument misconceives the nature of the state interest that would justify consideration of race or ethnic background. It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. Petitioner’s special admissions program, focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity. . . . The experience of other university admissions programs, which take race into account in achieving the educational diversity valued by the First

Amendment, demonstrates that the assignment of a fixed number of places to a minority group is not a necessary means toward that end. An illuminating example is found in the Harvard College program: In recent years Harvard College has expanded the concept of diversity to include students from disadvantaged economic, racial and ethnic groups. Harvard College now recruits not only Californians or Louisianians but also blacks and Chicanos and other minority students. . . . In practice, this new definition of diversity has meant that race has been a factor in some admission decisions. When the Committee on Admissions reviews the large middle group of applicants who are “admissible” and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates’ cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer. . . . In Harvard College admissions the Committee has not set target-quotas for the number of blacks, or of musicians, football players, physicists or Californians to be admitted in a given year. . . . But that awareness (of the necessity of including more than a token number of black students) does not mean that the Committee sets a minimum number of blacks or of people from west of the Mississippi who are to be admitted. It means only that in choosing among thousands of applicants who are not only “admissible” academically but have other strong qualities, the Committee, with a number of criteria in mind, pays some attention to distribution among many types and categories of students. . . .

In such an admissions program, race or ethnic background may be deemed a “plus” in a particular applicant’s file, yet it does not insulate the individual from comparison with all other candidates for the available seats. The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism. Such qualities could include exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to The Continuing Significance of Race

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communicate with the poor, or other qualifications deemed important. In short, an admissions program operated in this way is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight. . . . This kind of program treats each applicant as an individual in the admission process. The applicant who loses out on the last available seat to another candidate receiving a “plus” on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant. His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment. It has been suggested that an admissions program which considers race only as one factor is simply a subtle and more sophisticated—but no less effective—means of according racial preference than the Davis program. A facial intent to discriminate, however, is evident in petitioner’s preference program and not denied in this case. No such facial infirmity exists in an admissions program where race or ethnic background is simply one element—to be weighed fairly against other elements—in the selection process. . . .

absolute. But when a State’s distribution of benefits or imposition of burdens hinges on ancestry or the color of a person’s skin, that individual is entitled to a demonstration that the challenged classification is necessary to promote a substantial state interest. Petitioner has failed to carry this burden. For this reason, that portion of the California court’s judgment holding petitioner’s special admissions program invalid under the Fourteenth Amendment must be affirmed. C In enjoining petitioner from ever considering the race of any applicant, however, the courts below failed to recognize that the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin. For this reason, so much of the California court’s judgment as enjoins petitioner from any consideration of the race of any applicant must be reversed. VI With respect to respondent’s entitlement to an injunction directing his admission to the Medical School, petitioner has conceded that it could not carry its burden of proving that, but for the existence of its unlawful special admissions program, respondent still would not have been admitted. Hence, respondent is entitled to the injunction, and that portion of the judgment must be affirmed. . . .

B

JUSTICES BRENNAN, WHITE, MARSHALL, and BLACKMUN, concurring in the judgment in part and dissenting in part:

In summary, it is evident that the Davis special admissions program involves the use of an explicit racial classification never before countenanced by this Court. It tells applicants who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of the seats in an entering class. No matter how strong their qualifications, quantitative and extracurricular, including their own potential for contribution to educational diversity, they are never afforded the chance to compete with applicants from the preferred groups for the special admission seats. At the same time, the preferred applicants have the opportunity to compete for every seat in the class. The fatal flaw in petitioner’s preferential program is its disregard of individual rights as guaranteed by the Fourteenth Amendment. Such rights are not

The Court today, in reversing in part the judgment of the Supreme Court of California, affirms the constitutional power of Federal and State Governments to act affirmatively to achieve equal opportunity for all. The difficulty of the issue presented—whether Government may use race-conscious programs to redress the continuing effects of past discrimination— and the mature consideration which each of our Brethren has brought to it have resulted in many opinions, no single one speaking for the Court. But this should not and must not mask the central meaning of today’s opinions: Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial,

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legislative, or administrative bodies with competence to act in this area. THE CHIEF JUSTICE, and our Brothers STEWART, REHNQUIST and STEVENS, have concluded that Title VI of the Civil Rights Act of 1964 . . . prohibits programs such as that at the Davis Medical School. On this statutory theory alone, they would hold that respondent Allan Bakke’s rights have been violated and that he must, therefore, be admitted to the Medical School. Our Brother POWELL, preaching the Constitution, concludes that, although race may be taken into account in university admissions, the particular special admissions program used by petitioner, which resulted in the exclusion of respondent Bakke, was not shown to be necessary to achieve petitioner’s stated goals. Accordingly, these Members of the Court form a majority of five affirming the judgment of the Supreme Court of California insofar as it holds that respondent Bakke “is entitled to an order that he be admitted to the University.” . . . We agree with JUSTICE POWELL that, as applied to the case before us, Title VI goes no further in prohibiting the use of race than the Equal Protection Clause of the Fourteenth Amendment itself. We also agree that the effect of the California Supreme Court’s affirmance of the judgment of the Superior Court of California would be to prohibit the University from establishing in the future affirmative action programs that take race into account. . . . Since we conclude that the affirmative admissions program at the Davis Medical School is constitutional, we would reverse the judgment below in all respects. JUSTICE POWELL agrees that some uses of race in university admissions are permissible and, therefore, he joins with us to make five votes reversing the judgment below insofar as it prohibits the University from establishing race-conscious programs in the future. . . . ... Davis’s articulated purpose of remedying the effects of past societal discrimination is, under our cases, sufficiently important to justify the use of race-conscious admissions programs where there is a sound basis for concluding that minority underrepresentation is substantial and chronic, and that the handicap of past discrimination is impeding access of minorities to the Medical School. [The separate opinion of JUSTICE WHITE is not reprinted here.]

JUSTICE MARSHALL: I agree with the judgment of the Court only insofar as it permits a university to consider the race of an applicant in making admissions decisions. I do not agree that petitioner’s admissions program violates the Constitution. For it must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of the legacy of discrimination, I cannot believe that this same Constitution stands as a barrier. . . . [Here JUSTICE MARSHALL gives a lengthy review of the 350 years of African American history in the United States.] ... The position of the Negro today in America is the tragic but inevitable consequence of centuries of unequal treatment. Measured by any benchmark of comfort or achievement, meaningful equality remains a distant dream for the Negro. . . . A Negro child today has a life expectancy which is shorter by more than five years than that of a white child. The Negro child’s mother is over three times more likely to die of complications in childbirth, and the infant mortality rate for Negroes is nearly twice that for whites. The median income of the Negro family is only 60 percent that of the median of a white family, and the percentage of Negroes who live in families with incomes below the poverty line is nearly four times greater than that of whites. When the Negro child reaches working age, he finds that America offers him significantly less than it offers his white counterpart. For Negro adults, the unemployment rate is twice that of whites, and the unemployment rate for Negro teenagers is nearly three times that of white teenagers. . . . Although Negroes represent 11.5 percent of the population, they are only 1.2 percent of the lawyers and judges, 2 percent of the physicians, 2.3 percent of the dentists, 1.1 percent of the engineers, and 2.6 percent of the college and university professors. The relationship between those figures and the history of unequal treatment afforded to the Negro cannot be denied. At every point from birth to death the impact of the past is reflected in the still disfavored position of the Negro. In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life The Continuing Significance of Race

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should be a state interest of the highest order. To fail to do so is to ensure that America will forever remain a divided society. I do not believe that the Fourteenth Amendment requires us to accept that fate. Neither its history nor our past cases lend any support to the conclusion that a university may not remedy the cumulative effects of society’s discrimination by giving consideration to race in an effort to increase the number and percentage of Negro doctors. This Court long ago remarked that: in any fair and just construction of any section or phrase of these [Civil War] amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy. . . . SlaughterHouse Cases, 16 Wall., at 72.

It is plain that the Fourteenth Amendment was not intended to prohibit measures designed to remedy the effects of the Nation’s past treatment of Negroes. . . . While I applaud the judgment of the Court that a university may consider race in its admissions process, it is more than a little ironic that, after several hundred years of class-based discrimination against Negroes, the Court is unwilling to hold that a class-based remedy for that discrimination is permissible. In declining to so hold, today’s judgment ignores the fact that for several hundred years Negroes have been discriminated against, not as individuals, but rather solely because of the color of their skins. It is unnecessary in twentieth century America to have individual Negroes demonstrate that they have been victims of racial discrimination; the racism of our society has been so pervasive that none, regardless of wealth or position, has managed to escape its impact. The experience of Negroes in America has been different in kind, not just in degree, from that of other ethnic groups. It is not merely the history of slavery alone but also that a whole people were marked as inferior by the law. And that mark has endured. The dream of America as the great melting pot has not been realized for the Negro; because of his skin color he never even made it into the pot. These differences in the experience of the Negro make it difficult for me to accept that Negroes cannot be afforded greater protection under the Fourteenth Amendment where it is necessary to remedy the effects of past discrimination. In the Civil Rights Cases, . . . the Court wrote that the Negro emerging from slavery must cease “to be the special favorite of the laws.” . . . We cannot in light of the history of the last century yield to that view. Had the Court in that 548

decision and others been willing to “do for human liberty and the fundamental rights of American citizenship, what it did . . . for the protection of slavery and the rights of the masters of fugitive slaves,” id. (JUSTICE HARLAN, dissenting), we would not need now to permit the recognition of any “special wards.” Most importantly, had the Court been willing in 1896, in Plessy v. Ferguson, to hold that the Equal Protection Clause forbids differences in treatment based on race, we would not be faced with this dilemma in 1978. We must remember however, that the principle that the “Constitution is colorblind” appeared only in the opinion of the lone dissenter. . . . The majority of the Court rejected the principle of color blindness, and for the next sixty years, from Plessy to Brown v. Board of Education, ours was a Nation where, by law, an individual could be given “special” treatment based on the color of his skin. It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence, and prestige in America. For far too long, the doors to those positions have been shut to Negroes. If we are ever to become a fully integrated society, one in which the color of a person’s skin will not determine the opportunities available to him or her, we must be willing to take steps to open those doors. I do not believe that anyone can truly look into America’s past and still find that a remedy for the effects of that past is impermissible. It has been said that this involves only the individual, Bakke, and this University. I doubt, however, that there is a computer capable of determining the number of persons and institutions that may be affected by the decision in this case. For example, we are told by the Attorney General of the United States that at least 27 federal agencies have adopted regulations requiring recipients of federal funds to take “affirmative action to overcome the effects of conditions which resulted in limiting participation . . . by persons of a particular race, color, or national origin . . . ” (emphasis added). I cannot even guess the number of state and local governments that have set up affirmative action programs, which may be affected by today’s decision. I fear that we have come full circle. After the Civil War our Government started several “affirmative action” programs. This Court in the Civil Rights Cases and Plessy v. Ferguson destroyed the movement toward complete equality. For almost a century no action was taken, and this nonaction was with the

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tacit approval of the courts. Then we had Brown v. Board of Education and the Civil Rights Acts of Congress, followed by numerous affirmative action programs. Now, we have this Court again stepping in, this time to stop affirmative action programs of the type used by the University of California.

[The separate opinion of JUSTICE BLACKMUN is not reprinted here. The opinion of JUSTICE STEVENS, joined by CHIEF JUSTICE BURGER and JUSTICES STEWART and REHNQUIST, concurring in the judgment in part and dissenting in part, is not reprinted here.]

GRUTTER V. BOLLINGER 539 U.S. 306 (2003) JUSTICE O’CONNOR delivered the opinion of the Court, in which JUSTICES STEVENS, SOUTER, GINSBURG, and BREYER joined, and in which JUSTICES SCALIA and THOMAS joined in part insofar as it is consistent with the views expressed in Part VII of the opinion of JUSTICE THOMAS. JUSTICE GINSBURG filed a concurring opinion, in which JUSTICE BREYER joined. JUSTICE SCALIA filed an opinion concurring in part and dissenting in part, in which Justice Thomas joined. JUSTICE THOMAS filed an opinion concurring in part and dissenting in part, in which JUSTICE SCALIA joined as to Parts I-VII. CHIEF JUSTICE REHNQUIST filed a dissenting opinion, in which JUSTICES SCALIA, KENNEDY, and Thomas joined. JUSTICE KENNEDY filed a dissenting opinion. JUSTICE O’CONNOR delivered the opinion of the Court. This case requires us to decide whether the use of race as a factor in student admissions by the University of Michigan Law School (Law School) is unlawful. I A The Law School ranks among the Nation’s top law schools. It receives more than 3,500 applications each year for a class of around 350 students. Seeking to “admit a group of students who individually and collectively are among the most capable,” the Law School looks for individuals with “substantial promise for success in law school” and “a strong likelihood of succeeding in the practice of law and contributing in diverse ways to the well-being of

others.” More broadly, the Law School seeks “a mix of students with varying backgrounds and experiences who will respect and learn from each other.” Ibid. In 1992, the dean of the Law School charged a faculty committee with crafting a written admissions policy to implement these goals. In particular, the Law School sought to ensure that its efforts to achieve student body diversity complied with this Court’s most recent ruling on the use of race in university admissions. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). Upon the unanimous adoption of the committee’s report by the Law School faculty, it became the Law School’s official admissions policy. The hallmark of that policy is its focus on academic ability coupled with a flexible assessment of applicants’ talents, experiences, and potential “to contribute to the learning of those around them.” The policy requires admissions officials to evaluate each applicant based on all the information available in the file, including a personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute to the life and diversity of the Law School. Id., at 83-84, 114-121. In reviewing an applicant’s file, admissions officials must consider the applicant’s undergraduate grade point average (GPA) and Law School Admissions Test (LSAT) score because they are important (if imperfect) predictors of academic success in law school. Id., at 112. The policy stresses that “no applicant should be admitted unless we expect that applicant to do well enough to graduate with no serious academic problems.” Id., at 111. The policy makes clear, however, that even the highest possible score does not guarantee admission The Continuing Significance of Race

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to the Law School. Id., at 113. Nor does a low score automatically disqualify an applicant. Ibid. Rather, the policy requires admissions officials to look beyond grades and test scores to other criteria that are important to the Law School’s educational objectives. Id., at 114. So-called “‘soft’ variables” such as “the enthusiasm of recommenders, the quality of the undergraduate institution, the quality of the applicant’s essay, and the areas and difficulty of undergraduate course selection” are all brought to bear in assessing an “applicant’s likely contributions to the intellectual and social life of the institution.” Ibid. The policy aspires to “achieve that diversity which has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts.” Id., at 118. The policy does not restrict the types of diversity contributions eligible for “substantial weight” in the admissions process, but instead recognizes “many possible bases for diversity admissions.” Id., at 118, 120. The policy does, however, reaffirm the Law School’s longstanding commitment to “one particular type of diversity,” that is, “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers.” Id., at 120. By enrolling a “‘critical mass’ of [underrepresented] minority students,” the Law School seeks to “ensur[e] their ability to make unique contributions to the character of the Law School.” Id., at 120–121. The policy does not define diversity “solely in terms of racial and ethnic status.” Id., at 121. Nor is the policy “insensitive to the competition among all students for admission to the [L]aw [S]chool.” Ibid. Rather, the policy seeks to guide admissions officers in “producing classes both diverse and academically outstanding, classes made up of students who promise to continue the tradition of outstanding contribution by Michigan Graduates to the legal profession.” Ibid. B Petitioner Barbara Grutter is a white Michigan resident who applied to the Law School in 1996 with a 3.8 grade point average and 161 LSAT score. The Law School initially placed petitioner on a waiting list, but subsequently rejected her application. In December 1997, petitioner filed suit in the United 550

States District Court for the Eastern District of Michigan against the Law School, the Regents of the University of Michigan, Lee Bollinger (Dean of the Law School from 1987 to 1994, and President of the University of Michigan from 1996 to 2002), Jeffrey Lehman (Dean of the Law School), and Dennis Shields (Director of Admissions at the Law School from 1991 until 1998). Petitioner alleged that respondents discriminated against her on the basis of race in violation of the Fourteenth Amendment; Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. § 2000d; and Rev. Stat. § 1977, as amended, 42 U.S.C. § 1981. Petitioner further alleged that her application was rejected because the Law School uses race as a “predominant” factor, giving applicants who belong to certain minority groups “a significantly greater chance of admission than students with similar credentials from disfavored racial groups.” Petitioner also alleged that respondents “had no compelling interest to justify their use of race in the admissions process.” Id., at 34. Petitioner requested compensatory and punitive damages, an order requiring the Law School to offer her admission, and an injunction prohibiting the Law School from continuing to discriminate on the basis of race. Id., at 36. Petitioner clearly has standing to bring this lawsuit. Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993). The District Court granted petitioner’s motion for class certification and for bifurcation of the trial into liability and damages phases. The class was defined as “all persons who (A) applied for and were not granted admission to the University of Michigan Law School for the academic years since (and including) 1995 until the time that judgment is entered herein; and (B) were members of those racial or ethnic groups, including Caucasian, that Defendants treated less favorably in considering their applications for admission to the Law School.” The District Court heard oral argument on the parties’ cross-motions for summary judgment on December 22, 2000. Taking the motions under advisement, the District Court indicated that it would decide as a matter of law whether the Law School’s asserted interest in obtaining the educational benefits that flow from a diverse student body was compelling. The District Court also indicated that it would conduct a bench trial on the extent to which race was a factor in the Law School’s admissions

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decisions, and whether the Law School’s consideration of race in admissions decisions constituted a race-based double standard. During the 15-day bench trial, the parties introduced extensive evidence concerning the Law School’s use of race in the admissions process. Dennis Shields, Director of Admissions when petitioner applied to the Law School, testified that he did not direct his staff to admit a particular percentage or number of minority students, but rather to consider an applicant’s race along with all other factors. Id., at 206a. Shields testified that at the height of the admissions season, he would frequently consult the so-called “daily reports” that kept track of the racial and ethnic composition of the class (along with other information such as residency status and gender). Id., at 207a. This was done, Shields testified, to ensure that a critical mass of underrepresented minority students would be reached so as to realize the educational benefits of a diverse student body. Ibid. Shields stressed, however, that he did not seek to admit any particular number or percentage of underrepresented minority students. Ibid. Erica Munzel, who succeeded Shields as Director of Admissions, testified that “‘critical mass’” means “‘meaningful numbers’” or “‘meaningful representation,’” which she understood to mean a number that encourages underrepresented minority students to participate in the classroom and not feel isolated. Id., at 208a-209a. Munzel stated there is no number, percentage, or range of numbers or percentages that constitute critical mass. Id., at 209a. Munzel also asserted that she must consider the race of applicants because a critical mass of underrepresented minority students could not be enrolled if admissions decisions were based primarily on undergraduate GPAs and LSAT scores. Ibid. The current Dean of the Law School, Jeffrey Lehman, also testified. Like the other Law School witnesses, Lehman did not quantify critical mass in terms of numbers or percentages. Id., at 211a. He indicated that critical mass means numbers such that underrepresented minority students do not feel isolated or like spokespersons for their race. Ibid. When asked about the extent to which race is considered in admissions, Lehman testified that it varies from one applicant to another. Ibid. In some cases, according to Lehman’s testimony, an applicant’s race may play no role, while in others it may be a “‘determinative’” factor. Ibid.

The District Court heard extensive testimony from Professor Richard Lempert, who chaired the faculty committee that drafted the 1992 policy. Lempert emphasized that the Law School seeks students with diverse interests and backgrounds to enhance classroom discussion and the educational experience both inside and outside the classroom. Id., at 213a. When asked about the policy’s “‘commitment to racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against,’” Lempert explained that this language did not purport to remedy past discrimination, but rather to include students who may bring to the Law School a perspective different from that of members of groups which have not been the victims of such discrimination. Ibid. Lempert acknowledged that other groups, such as Asians and Jews, have experienced discrimination, but explained they were not mentioned in the policy because individuals who are members of those groups were already being admitted to the Law School in significant numbers. Ibid. Kent Syverud was the final witness to testify about the Law School’s use of race in admissions decisions. Syverud was a professor at the Law School when the 1992 admissions policy was adopted and is now Dean of Vanderbilt Law School. In addition to his testimony at trial, Syverud submitted several expert reports on the educational benefits of diversity. Syverud’s testimony indicated that when a critical mass of underrepresented minority students is present, racial stereotypes lose their force because nonminority students learn there is no “‘minority viewpoint’” but rather a variety of viewpoints among minority students. Id., at 215a. In an attempt to quantify the extent to which the Law School actually considers race in making admissions decisions, the parties introduced voluminous evidence at trial. Relying on data obtained from the Law School, petitioner’s expert, Dr. Kinley Larntz, generated and analyzed “admissions grids” for the years in question (1995–2000). These grids show the number of applicants and the number of admittees for all combinations of GPAs and LSAT scores. Dr. Larntz made “‘cell-by-cell’” comparisons between applicants of different races to determine whether a statistically significant relationship existed between race and admission rates. He concluded that membership in certain minority groups “‘is an extremely strong factor in the decision for acceptance,’” and that applicants from these minority The Continuing Significance of Race

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groups “‘are given an extremely large allowance for admission’” as compared to applicants who are members of nonfavored groups. Id., at 218a-220a. Dr. Larntz conceded, however, that race is not the predominant factor in the Law School’s admissions calculus. Dr. Stephen Raudenbush, the Law School’s expert, focused on the predicted effect of eliminating race as a factor in the Law School’s admission process. In Dr. Raudenbush’s view, a race-blind admissions system would have a “‘very dramatic,’” negative effect on underrepresented minority admissions. He testified that in 2000, 35 percent of underrepresented minority applicants were admitted. Ibid. Dr. Raudenbush predicted that if race were not considered, only 10 percent of those applicants would have been admitted. Ibid. Under this scenario, underrepresented minority students would have comprised 4 percent of the entering class in 2000 instead of the actual figure of 14.5 percent. Ibid. In the end, the District Court concluded that the Law School’s use of race as a factor in admissions decisions was unlawful. Applying strict scrutiny, the District Court determined that the Law School’s asserted interest in assembling a diverse student body was not compelling because “the attainment of a racially diverse class . . . was not recognized as such by Bakke and is not a remedy for past discrimination.” Id., at 246a. The District Court went on to hold that even if diversity were compelling, the Law School had not narrowly tailored its use of race to further that interest. The District Court granted petitioner’s request for declaratory relief and enjoined the Law School from using race as a factor in its admissions decisions. The Court of Appeals entered a stay of the injunction pending appeal. Sitting en banc, the Court of Appeals reversed the District Court’s judgment and vacated the injunction. The Court of Appeals first held that JUSTICE POWELL’s opinion in Bakke was binding precedent establishing diversity as a compelling state interest. According to the Court of Appeals, JUSTICE POWELL’s opinion with respect to diversity comprised the controlling rationale for the judgment of this Court under the analysis set forth in Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). The Court of Appeals also held that the Law School’s use of race was narrowly tailored because race was merely a “potential ‘plus’ factor” and because the Law School’s program was “virtually identical” to the Harvard admissions 552

program described approvingly by JUSTICE POWELL and appended to his Bakke opinion. 288 F.3d 732, 746, 749 (C.A.6 2002). Four dissenting judges would have held the Law School’s use of race unconstitutional. Three of the dissenters, rejecting the majority’s Marks analysis, examined the Law School’s interest in student body diversity on the merits and concluded it was not compelling. The fourth dissenter, writing separately, found it unnecessary to decide whether diversity was a compelling interest because, like the other dissenters, he believed that the Law School’s use of race was not narrowly tailored to further that interest. We granted certiorari, 537 U.S. 1043, 123 S.Ct. 617, 154 L.Ed.2d 514 (2002), to resolve the disagreement among the Courts of Appeals on a question of national importance: Whether diversity is a compelling interest that can justify the narrowly tailored use of race in selecting applicants for admission to public universities. Compare Hopwood v. Texas, 78 F.3d 932 (C.A.5 1996) (Hopwood I) (holding that diversity is not a compelling state interest), with Smith v. University of Wash. Law School, 233 F.3d 1188 (C.A.9 2000) (holding that it is). II A We last addressed the use of race in public higher education over twenty-five years ago. In the landmark Bakke case, we reviewed a racial set-aside program that reserved 16 out of 100 seats in a medical school class for members of certain minority groups. 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). The decision produced six separate opinions, none of which commanded a majority of the Court. Four Justices would have upheld the program against all attack on the ground that the government can use race to “remedy disadvantages cast on minorities by past racial prejudice.” Id., at 325, 98 S.Ct. 2733 (joint opinion of BRENNAN, WHITE, MARSHALL, AND BLACKMUN, J., concurring in judgment in part and dissenting in part). Four other Justices avoided the constitutional question altogether and struck down the program on statutory grounds. Id., at 408, 98 S.Ct. 2733 (opinion of STEVENS, J., joined by BURGER, C. J., STEWART, J., and REHNQUIST, J., concurring in judgment in part and dissenting in part). JUSTICE POWELL provided a fifth vote not only for invalidating the set-aside program, but also for reversing the state court’s injunction against any use of

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race whatsoever. The only holding for the Court in Bakke was that a “State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.” Id., at 320, 98 S.Ct. 2733. Thus, we reversed that part of the lower court’s judgment that enjoined the university “from any consideration of the race of any applicant.” Ibid. Since this Court’s splintered decision in Bakke, JUSTICE POWELL’s opinion announcing the judgment of the Court has served as the touchstone for constitutional analysis of race-conscious admissions policies. Public and private universities across the Nation have modeled their own admissions programs on JUSTICE POWELL’s views on permissible race-conscious policies. See, e.g., Brief for Judith Areen et al. as Amici Curiae 12–13 (law school admissions programs employ “methods designed from and based on JUSTICE POWELL’s opinion in Bakke”); Brief for Amherst College et al. as Amici Curiae 27 (“After Bakke, each of the amici (and undoubtedly other selective colleges and universities as well) reviewed their admissions procedures in light of JUSTICE POWELL’s opinion . . . and set sail accordingly”). We therefore discuss JUSTICE POWELL’s opinion in some detail. JUSTICE POWELL began by stating that “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.” Bakke, 438 U.S., at 289–290, 98 S.Ct. 2733. In JUSTICE POWELL’s view, when governmental decisions “touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.” Id., at 299, 98 S.Ct. 2733. Under this exacting standard, only one of the interests asserted by the university survived JUSTICE POWELL’s scrutiny. First, JUSTICE POWELL rejected an interest in “ ‘reducing the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession’ “ as an unlawful interest in racial balancing. Id., at 306–307, 98 S.Ct. 2733. Second, JUSTICE POWELL rejected an interest in remedying societal discrimination because such measures would risk placing unnecessary burdens on innocent third parties “who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.” Id., at 310, 98 S.Ct.

2733. Third, JUSTICE POWELL rejected an interest in “increasing the number of physicians who will practice in communities currently underserved,” concluding that even if such an interest could be compelling in some circumstances the program under review was not “geared to promote that goal.” Id., at 306, 310, 98 S.Ct. 2733. JUSTICE POWELL approved the university’s use of race to further only one interest: “the attainment of a diverse student body.” Id., at 311, 98 S.Ct. 2733. With the important proviso that “constitutional limitations protecting individual rights may not be disregarded,” JUSTICE POWELL grounded his analysis in the academic freedom that “long has been viewed as a special concern of the First Amendment.” Id., at 312, 314, 98 S.Ct. 2733. JUSTICE POWELL emphasized that nothing less than the “‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.” Id., at 313, 98 S.Ct. 2733 (quoting Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967)). In seeking the “right to select those students who will contribute the most to the ‘robust exchange of ideas,’” a university seeks “to achieve a goal that is of paramount importance in the fulfillment of its mission.” 438 U.S., at 313, 98 S.Ct. 2733. Both “tradition and experience lend support to the view that the contribution of diversity is substantial.” Ibid. JUSTICE POWELL was, however, careful to emphasize that in his view race “is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body.” Id., at 314, 98 S.Ct. 2733. For JUSTICE POWELL, “[i]t is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups,” that can justify the use of race. Id., at 315, 98 S.Ct. 2733. Rather, “[t]he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Ibid. In the wake of our fractured decision in Bakke, courts have struggled to discern whether JUSTICE POWELL’s diversity rationale, set forth in part of the opinion joined by no other Justice, is nonetheless binding precedent under Marks. In that case, we explained that “[w]hen a fragmented Court decides a case and no single rationale explaining the result The Continuing Significance of Race

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enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” 430 U.S., at 193, 97 S.Ct. 990 (internal quotation marks and citation omitted). As the divergent opinions of the lower courts demonstrate, however, “[t]his test is more easily stated than applied to the various opinions supporting the result in [Bakke].” Nichols v. United States, 511 U.S. 738, 745-746, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). Compare, e.g., Johnson v. Board of Regents of Univ. of Ga., 263 F.3d 1234 (C.A.11 2001) (JUSTICE POWELL’s diversity rationale was not the holding of the Court); Hopwood v. Texas, 236 F.3d 256, 274275 (C.A.5 2000) (Hopwood II) (same); Hopwood I, 78 F.3d 932 (same), with Smith v. University of Wash. Law School, 233 F.3d 1188 (JUSTICE POWELL’s opinion, including the diversity rationale, is controlling under Marks). We do not find it necessary to decide whether JUSTICE POWELL’s opinion is binding under Marks. It does not seem “useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it.” Nichols v. United States, supra, at 745-746, 114 S.Ct. 1921. More important, for the reasons set out below, today we endorse JUSTICE POWELL’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions. B The Equal Protection Clause provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., Amdt. 14, § 2. Because the Fourteenth Amendment “protect[s] persons, not groups,” all “governmental action based on race—a group classification long recognized as in most circumstances irrelevant and therefore prohibited—should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.” Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (emphasis in original; internal quotation marks and citation omitted). We are a “free people whose institutions are founded upon the doctrine of equality.” Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (internal quotation marks and citation omitted). It follows from that principle that “government may treat people differently because of their 554

race only for the most compelling reasons.” Adarand Constructors, Inc. v. Peña, 515 U.S., at 227, 115 S.Ct. 2097. We have held that all racial classifications imposed by government “must be analyzed by a reviewing court under strict scrutiny.” Ibid. This means that such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests. “Absent searching judicial inquiry into the justification for such racebased measures,” we have no way to determine what “classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.” Richmond v. J. A. Croson Co., 488 U.S. 469, 493, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (plurality opinion). We apply strict scrutiny to all racial classifications to “ ‘smoke out’ illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool.” Ibid. Strict scrutiny is not “strict in theory, but fatal in fact.” Adarand Constructors, Inc. v. Peña, supra, at 237, 115 S.Ct. 2097 (internal quotation marks and citation omitted). Although all governmental uses of race are subject to strict scrutiny, not all are invalidated by it. As we have explained, “whenever the government treats any person unequally because of his or her race, that person has suffered an injury that falls squarely within the language and spirit of the Constitution’s guarantee of equal protection.” 515 U.S., at 229-230, 115 S.Ct. 2097. But that observation “says nothing about the ultimate validity of any particular law; that determination is the job of the court applying strict scrutiny.” Id., at 230, 115 S.Ct. 2097. When race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied. Context matters when reviewing race-based governmental action under the Equal Protection Clause. See Gomillion v. Lightfoot, 364 U.S. 339, 343-344, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) (admonishing that, “in dealing with claims under broad provisions of the Constitution, which derive content by an interpretive process of inclusion and exclusion, it is imperative that generalizations, based on and qualified by the concrete situations that gave rise to them, must not be applied out of context in disregard of variant controlling facts”). In Adarand Constructors,

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Inc. v. Peña, we made clear that strict scrutiny must take “ ‘relevant differences’ into account.” 515 U.S., at 228, 115 S.Ct. 2097. Indeed, as we explained, that is its “fundamental purpose.” Ibid. Not every decision influenced by race is equally objectionable and strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in that particular context. III A With these principles in mind, we turn to the question whether the Law School’s use of race is justified by a compelling state interest. Before this Court, as they have throughout this litigation, respondents assert only one justification for their use of race in the admissions process: obtaining “the educational benefits that flow from a diverse student body.” Brief for Respondents Bollinger et al. i. In other words, the Law School asks us to recognize, in the context of higher education, a compelling state interest in student body diversity. We first wish to dispel the notion that the Law School’s argument has been foreclosed, either expressly or implicitly, by our affirmative-action cases decided since Bakke. It is true that some language in those opinions might be read to suggest that remedying past discrimination is the only permissible justification for race-based governmental action. See, e.g., Richmond v. J. A. Croson Co., supra, at 493, 109 S.Ct. 706 (plurality opinion) (stating that unless classifications based on race are “strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility”). But we have never held that the only governmental use of race that can survive strict scrutiny is remedying past discrimination. Nor, since Bakke, have we directly addressed the use of race in the context of public higher education. Today, we hold that the Law School has a compelling interest in attaining a diverse student body. The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer. The Law School’s assessment that diversity will, in fact, yield educational benefits is substantiated by respondents and their amici. Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex

educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits. See Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985); Board of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 96, n. 6, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978); Bakke, 438 U.S., at 319, n. 53, 98 S.Ct. 2733 (opinion of POWELL, J.). We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. See, e.g., Wieman v. Updegraff, 344 U.S. 183, 195, 73 S.Ct. 215, 97 L.Ed. 216 (1952) (FRANKFURTER, J., concurring); Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957); Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U.S., at 603, 87 S.Ct. 675. In announcing the principle of student body diversity as a compelling state interest, JUSTICE POWELL invoked our cases recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy: “The freedom of a university to make its own judgments as to education includes the selection of its student body.” Bakke, supra, at 312, 98 S.Ct. 2733. From this premise, JUSTICE POWELL reasoned that by claiming “the right to select those students who will contribute the most to the ‘robust exchange of ideas,’” a university “seek[s] to achieve a goal that is of paramount importance in the fulfillment of its mission.” 438 U.S., at 313, 98 S.Ct. 2733 (quoting Keyishian v. Board of Regents of Univ. of State of N. Y., supra, at 603, 87 S.Ct. 675). Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School’s proper institutional mission, and that “good faith” on the part of a university is “presumed” absent “a showing to the contrary.” 438 U.S., at 318319, 98 S.Ct. 2733. As part of its goal of “assembling a class that is both exceptionally academically qualified and broadly diverse,” the Law School seeks to “enroll a ‘critical mass’ of minority students.” Brief for Respondents Bollinger et al. 13. The Law School’s interest is not simply “to assure within its student The Continuing Significance of Race

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body some specified percentage of a particular group merely because of its race or ethnic origin.” Bakke, 438 U.S., at 307, 98 S.Ct. 2733 (opinion of POWELL, J.). That would amount to outright racial balancing, which is patently unconstitutional. Ibid.; Freeman v. Pitts, 503 U.S. 467, 494, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992) (“Racial balance is not to be achieved for its own sake”); Richmond v. J. A. Croson Co., 488 U.S., at 507, 109 S.Ct. 706. Rather, the Law School’s concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce. These benefits are substantial. As the District Court emphasized, the Law School’s admissions policy promotes “cross-racial understanding,” helps to break down racial stereotypes, and “enables [students] to better understand persons of different races.” These benefits are “important and laudable,” because “classroom discussion is livelier, more spirited, and simply more enlightening and interesting” when the students have “the greatest possible variety of backgrounds.” Id., at 246a, 244a. The Law School’s claim of a compelling interest is further bolstered by its amici, who point to the educational benefits that flow from student body diversity. In addition to the expert studies and reports entered into evidence at trial, numerous studies show that student body diversity promotes learning outcomes, and “better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.” ... These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. Brief for 3M et al. as Amici Curiae 5; Brief for General Motors Corp. as Amicus Curiae 3-4. What is more, high-ranking retired officers and civilian leaders of the United States military assert that, “[b]ased on [their] decades of experience,” a “highly qualified, racially diverse officer corps . . . is essential to the military’s ability to fulfill its principle mission to provide national security.” Brief for Julius W. Becton, Jr. et al. as Amici Curiae 27. The primary sources for the Nation’s officer corps are the service academies and the Reserve Officers Training Corps (ROTC), the latter comprising students already admitted to participating colleges and universities. Id., 556

at 5. At present, “the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies.” Ibid. (emphasis in original). To fulfill its mission, the military “must be selective in admissions for training and education for the officer corps, and it must train and educate a highly qualified, racially diverse officer corps in a racially diverse setting.” Id., at 29 (emphasis in original). We agree that “[i]t requires only a small step from this analysis to conclude that our country’s other most selective institutions must remain both diverse and selective.” Ibid. We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to “sustaining our political and cultural heritage” with a fundamental role in maintaining the fabric of society. Plyler v. Doe, 457 U.S. 202, 221, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). This Court has long recognized that “education . . . is the very foundation of good citizenship.” Brown v. Board of Education, 347 U.S. 483, 493, 74 S.Ct. 686, 98 L.Ed. 873 (1954). For this reason, the diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity. The United States, as amicus curiae, affirms that “[e]nsuring that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective.” Brief for United States as Amicus Curiae 13. And, “[n]owhere is the importance of such openness more acute than in the context of higher education.” Ibid. Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized. Moreover, universities, and in particular, law schools, represent the training ground for a large number of our Nation’s leaders. Sweatt v. Painter, 339 U.S. 629, 634, 70 S.Ct. 848, 94 L.Ed. 1114 (1950) (describing law school as a “proving ground for legal learning and practice”). Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives. See Brief for Association of American Law Schools as Amicus Curiae 5-6. The pattern is even more striking when it comes to highly selective law schools. A handful of

Protecting Against Bias: Segregation and Discrimination

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

these schools accounts for twenty-five of the 100 United States Senators, seventy-four United States Courts of Appeals judges, and nearly 200 of the more than 600 United States District Court judges. Id., at 6. In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training. As we have recognized, law schools “cannot be effective in isolation from the individuals and institutions with which the law interacts.” See Sweatt v. Painter, supra, at 634, 70 S.Ct. 848. Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America. The Law School does not premise its need for critical mass on “any belief that minority students always (or even consistently) express some characteristic minority viewpoint on any issue.” Brief for Respondent Bollinger et al. 30. To the contrary, diminishing the force of such stereotypes is both a crucial part of the Law School’s mission, and one that it cannot accomplish with only token numbers of minority students. Just as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters. The Law School has determined, based on its experience and expertise, that a “critical mass” of underrepresented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body. B Even in the limited circumstance when drawing racial distinctions is permissible to further a compelling state interest, government is still “constrained in how it may pursue that end: [T]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.” Shaw v. Hunt, 517 U.S. 899, 908, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (internal quotation marks and citation omitted). The purpose of the narrow tailoring requirement is to

ensure that “the means chosen ‘fit’ . . . th[e] compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.” Richmond v. J. A. Croson Co., 488 U.S., at 493, 109 S.Ct. 706 (plurality opinion) . . . To be narrowly tailored, a race-conscious admissions program cannot use a quota system—it cannot “insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants.” Bakke, supra, at 315, 98 S.Ct. 2733 (opinion of POWELL, J.). Instead, a university may consider race or ethnicity only as a “‘plus’ in a particular applicant’s file,” without “insulat[ing] the individual from comparison with all other candidates for the available seats.” Id., at 317, 98 S.Ct. 2733. In other words, an admissions program must be “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight.” Ibid. We find that the Law School’s admissions program bears the hallmarks of a narrowly tailored plan. As JUSTICE POWELL made clear in Bakke, truly individualized consideration demands that race be used in a flexible, nonmechanical way. It follows from this mandate that universities cannot establish quotas for members of certain racial groups or put members of those groups on separate admissions tracks. See id., at 315-316, 98 S.Ct. 2733. Nor can universities insulate applicants who belong to certain racial or ethnic groups from the competition for admission. Ibid. Universities can, however, consider race or ethnicity more flexibly as a “plus” factor in the context of individualized consideration of each and every applicant. Ibid. We are satisfied that the Law School’s admissions program, like the Harvard plan described by JUSTICE POWELL, does not operate as a quota. Properly understood, a “quota” is a program in which a certain fixed number or proportion of opportunities are “reserved exclusively for certain minority groups.” Richmond v. J. A. Croson Co., supra, at 496, 109 S.Ct. 706 (plurality opinion). Quotas “‘impose a fixed number or percentage which must be attained, or which cannot be exceeded,’” Sheet Metal Workers v. EEOC, 478 U.S. 421, 495, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986) (O’CONNOR, J., concurring in part and dissenting in part), and “insulate the individual from comparison with all other candidates for the available The Continuing Significance of Race

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seats.” Bakke, supra, at 317, 98 S.Ct. 2733 (opinion of POWELL, J.). In contrast, “a permissible goal . . . require[s] only a good-faith effort . . . to come within a range demarcated by the goal itself,” Sheet Metal Workers v. EEOC, supra, at 495, 106 S.Ct. 3019, and permits consideration of race as a “plus” factor in any given case while still ensuring that each candidate “compete[s] with all other qualified applicants,” Johnson v. Transportation Agency, Santa Clara Cty., 480 U.S. 616, 638, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987). JUSTICE POWELL’s distinction between the medical school’s rigid 16-seat quota and Harvard’s flexible use of race as a “plus” factor is instructive. Harvard certainly had minimum goals for minority enrollment, even if it had no specific number firmly in mind. See Bakke, supra, at 323, 98 S.Ct. 2733 (opinion of POWELL, J.) (“10 or 20 black students could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States”). What is more, JUSTICE POWELL flatly rejected the argument that Harvard’s program was “the functional equivalent of a quota” merely because it had some “‘plus’” for race, or gave greater “weight” to race than to some other factors, in order to achieve student body diversity. 438 U.S., at 317–318, 98 S.Ct. 2733. The Law School’s goal of attaining a critical mass of underrepresented minority students does not transform its program into a quota. As the Harvard plan described by JUSTICE POWELL recognized, there is of course “some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted.” Id., at 323, 98 S.Ct. 2733. “[S]ome attention to numbers,” without more, does not transform a flexible admissions system into a rigid quota. Ibid. Nor, as JUSTICE KENNEDY posits, does the Law School’s consultation of the “daily reports,” which keep track of the racial and ethnic composition of the class (as well as of residency and gender), “suggest[ ] there was no further attempt at individual review save for race itself” during the final stages of the admissions process. See post, at 2372 (dissenting opinion). To the contrary, the Law School’s admissions officers testified without contradiction that they never gave race any more or less weight based on the information contained in these reports. Brief for Respondents Bollinger et al. 43, n. 70 (citing App. in Nos. 01-1447 and 01-1516(CA6), 558

p. 7336). Moreover, as JUSTICE KENNEDY concedes, see post, at 2372, between 1993 and 2000, the number of African-American, Latino, and NativeAmerican students in each class at the Law School varied from 13.5 to 20.1 percent, a range inconsistent with a quota. ... That a race-conscious admissions program does not operate as a quota does not, by itself, satisfy the requirement of individualized consideration. When using race as a “plus” factor in university admissions, a university’s admissions program must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application. The importance of this individualized consideration in the context of a race-conscious admissions program is paramount. See Bakke, supra, at 318, n. 52, 98 S.Ct. 2733 (opinion of POWELL, J.) (identifying the “denial . . . of th[e] right to individualized consideration” as the “principal evil” of the medical school’s admissions program). Here, the Law School engages in a highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment. The Law School affords this individualized consideration to applicants of all races. There is no policy, either de jure or de facto, of automatic acceptance or rejection based on any single “soft” variable. Unlike the program at issue in Gratz v. Bollinger, post, the Law School awards no mechanical, predetermined diversity “bonuses” based on race or ethnicity. Like the Harvard plan, the Law School’s admissions policy “is flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight.” Bakke, supra, at 317, 98 S.Ct. 2733 (opinion of POWELL, J.). We also find that, like the Harvard plan JUSTICE POWELL referenced in Bakke, the Law School’s raceconscious admissions program adequately ensures that all factors that may contribute to student body diversity are meaningfully considered alongside race in admissions decisions. With respect to the use of race itself, all underrepresented minority students admitted by the Law School have been deemed

Protecting Against Bias: Segregation and Discrimination

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

qualified. By virtue of our Nation’s struggle with racial inequality, such students are both likely to have experiences of particular importance to the Law School’s mission, and less likely to be admitted in meaningful numbers on criteria that ignore those experiences. The Law School does not, however, limit in any way the broad range of qualities and experiences that may be considered valuable contributions to student body diversity. To the contrary, the 1992 policy makes clear “[t]here are many possible bases for diversity admissions,” and provides examples of admittees who have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields. Id., at 118-119. The Law School seriously considers each “applicant’s promise of making a notable contribution to the class by way of a particular strength, attainment, or characteristic—e.g., an unusual intellectual achievement, employment experience, nonacademic performance, or personal background.” Id., at 83-84. All applicants have the opportunity to highlight their own potential diversity contributions through the submission of a personal statement, letters of recommendation, and an essay describing the ways in which the applicant will contribute to the life and diversity of the Law School. What is more, the Law School actually gives substantial weight to diversity factors besides race. The Law School frequently accepts nonminority applicants with grades and test scores lower than underrepresented minority applicants (and other nonminority applicants) who are rejected. See Brief for Respondents Bollinger et al. This shows that the Law School seriously weighs many other diversity factors besides race that can make a real and dispositive difference for nonminority applicants as well. By this flexible approach, the Law School sufficiently takes into account, in practice as well as in theory, a wide variety of characteristics besides race and ethnicity that contribute to a diverse student body. JUSTICE KENNEDY speculates that “race is likely outcome determinative for many members of minority groups” who do not fall within the upper range of LSAT scores and grades. Post, at 2371 (dissenting opinion). But the same could be said of the Harvard plan discussed approvingly by JUSTICE POWELL in Bakke, and indeed of any plan that uses race as one of many factors. See 438 U.S., at 316, 98

S.Ct. 2733 (“‘When the Committee on Admissions reviews the large middle group of applicants who are “admissible” and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor’”). Petitioner and the United States argue that the Law School’s plan is not narrowly tailored because race-neutral means exist to obtain the educational benefits of student body diversity that the Law School seeks. We disagree. Narrow tailoring does not require exhaustion of every conceivable raceneutral alternative. Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups. See Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 280, n. 6, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (alternatives must serve the interest “‘about as well’”); Richmond v. J. A. Croson Co., 488 U.S., at 509-510, 109 S.Ct. 706 (plurality opinion) (city had a “whole array of race-neutral” alternatives because changing requirements “would have [had] little detrimental effect on the city’s interests”). Narrow tailoring does, however, require serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks. See id., at 507, 109 S.Ct. 706 (set-aside plan not narrowly tailored where “there does not appear to have been any consideration of the use of race-neutral means”); Wygant v. Jackson Bd. of Ed., supra, at 280, n. 6, 106 S.Ct. 1842 (narrow tailoring “require[s] consideration” of “lawful alternative and less restrictive means”). ... The Law School’s current admissions program considers race as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race. Because a lottery would make that kind of nuanced judgment impossible, it would effectively sacrifice all other educational values, not to mention every other kind of diversity. So too with the suggestion that the Law School simply lower admissions standards for all students, a drastic remedy that would require the Law School to become a much different institution and sacrifice a vital component of its educational mission. The United States advocates “percentage plans,” recently adopted by public undergraduate institutions in Texas, Florida, and California to guarantee admission to all students above a certain class-rank threshold in every high school in the State. Brief for United States as Amicus The Continuing Significance of Race

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Curiae 14-18. The United States does not, however, explain how such plans could work for graduate and professional schools. More-over, even assuming such plans are race-neutral, they may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university. We are satisfied that the Law School adequately considered race-neutral alternatives currently capable of producing a critical mass without forcing the Law School to abandon the academic selectivity that is the cornerstone of its educational mission. We acknowledge that “there are serious problems of Justice connected with the idea of preference itself.” Bakke, 438 U.S., at 298, 98 S.Ct. 2733 (opinion of POWELL, J.). Narrow tailoring, therefore, requires that a race-conscious admissions program not unduly harm members of any racial group. Even remedial race-based governmental action generally “remains subject to continuing oversight to assure that it will work the least harm possible to other innocent persons competing for the benefit.” Id., at 308, 98 S.Ct. 2733. To be narrowly tailored, a raceconscious admissions program must not “unduly burden individuals who are not members of the favored racial and ethnic groups.” Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 630, 110 S.Ct. 2997, 111 L.Ed.2d 445 (1990) (O’CONNOR, J., dissenting). We are satisfied that the Law School’s admissions program does not. Because the Law School considers “all pertinent elements of diversity,” it can (and does) select nonminority applicants who have greater potential to enhance student body diversity over underrepresented minority applicants. . . . We agree that, in the context of its individualized inquiry into the possible diversity contributions of all applicants, the Law School’s race- conscious admissions program does not unduly harm nonminority applicants. We are mindful, however, that “[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.” Palmore v. Sidoti, 466 U.S. 429, 432, 104 S.Ct. 1879, 80 L.Ed.2d 421 (1984). Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences 560

would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. The Law School, too, concedes that all “raceconscious programs must have reasonable durational limits.” Brief for Respondents Bollinger et al. 32. In the context of higher education, the durational requirement can be met by sunset provisions in raceconscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity. Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaged in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop. The requirement that all race-conscious admissions programs have a termination point “assure[s] all citizens that the deviation from the norm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself.” Richmond v. J. A. Croson Co., 488 U.S., at 510, 109 S.Ct. 706 (plurality opinion); . . . We take the Law School at its word that it would “like nothing better than to find a race-neutral admissions formula” and will terminate its race-conscious admissions program as soon as practicable. See Brief for Respondents Bollinger et al. 34; Bakke, supra, at 317-318, 98 S.Ct. 2733 (opinion of POWELL, J.) (presuming good faith of university officials in the absence of a showing to the contrary). It has been 25 years since JUSTICE POWELL first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. See Tr. of Oral Arg. 43. We expect that twenty-five years from now, the use of racial preferences will no longer be necessary to further the interest approved today. IV In summary, the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Consequently, petitioner’s statutory claims based on Title VI and 42

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U.S.C. § 1981 also fail. See Bakke, supra, at 287, 98 S.Ct. 2733 (opinion of POWELL, J.) (“Title VI . . . proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment”); General Building Contractors Assn., Inc. v. Pennsylvania, 458 U.S. 375, 389–391,

102 S.Ct. 3141, 73 L.Ed.2d 835 (1982) (the prohibition against discrimination in § 1981 is co-extensive with the Equal Protection Clause). The judgment of the Court of Appeals for the Sixth Circuit, accordingly, is affirmed. It is so ordered.

RICCI ET AL. V. DESTEFANO ET AL. 557 U.S. ____ (2009) JUSTICE KENNEDY delivered the opinion of the Court, in which CHIEF JUSTICE ROBERTS and JUSTICES SCALIA, THOMAS, and ALITO joined. JUSTICE SCALIA filed a concurring opinion. JUSTICE ALITO filed a concurring opinion, in which JUSTICES SCALIA and THOMAS joined. JUSTICE GINSBURG filed a dissenting opinion, in which JUSTICES STEVENS, SOUTER, and BREYER joined. JUSTICE KENNEDY delivered the opinion of the Court. In the fire department of New Haven, Connecticut— as in emergency-service agencies throughout the Nation—firefighters prize their promotion to and within the officer ranks. An agency’s officers command respect within the department and in the whole community; and, of course, added responsibilities command increased salary and benefits. Aware of the intense competition for promotions, New Haven, like many cities, relies on objective examinations to identify the best qualified candidates. In 2003, 118 New Haven firefighters took examinations to qualify for promotion to the rank of lieutenant or captain. Promotion examinations in New Haven (or City) were infrequent, so the stakes were high. The results would determine which firefighters would be considered for promotions during the next two years, and the order in which they would be considered. Many firefighters studied for months, at considerable personal and financial cost. When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded because the re-

sults showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters said the exams were neutral and fair. And they, in turn, threatened a discrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end the City took the side of those who protested the test results. It threw out the examinations. Certain white and Hispanic firefighters who likely would have been promoted based on their good test performance sued the City and some of its officials. Theirs is the suit now before us. The suit alleges that, by discarding the test results, the City and the named officials discriminated against the plaintiffs based on their race, in violation of both Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. §2000e et seq., and the Equal Protection Clause of the Fourteenth Amendment. The City and the officials defended their actions, arguing that if they had certified the results, they could have faced liability under Title VII for adopting a practice that had a disparate impact on the minority firefighters. The District Court granted summary judgment for the defendants, and the Court of Appeals affirmed. We conclude that race-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard. As a result, the City’s action in discarding the tests was a violation of Title VII. In light of our ruling under the statutes, we need not The Continuing Significance of Race

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reach the question whether respondents’ actions may have violated the Equal Protection Clause. I This litigation comes to us after the parties’ cross motions for summary judgment, so we set out the facts in some detail. As the District Court noted, although “the parties strenuously dispute the relevance and legal import of, and inferences to be drawn from, many aspects of this case, the underlying facts are largely undisputed.” A When the City of New Haven undertook to fill vacant lieutenant and captain positions in its fire department (Department), the promotion and hiring process was governed by the city charter, in addition to federal and state law. The charter establishes a merit system. That system requires the City to fill vacancies in the classified civil service ranks with the most qualified individuals, as determined by job-related examinations. After each examination, the New Haven Civil Service Board (CSB) certifies a ranked list of applicants who passed the test. Under the charter’s “rule of three,” the relevant hiring authority must fill each vacancy by choosing one candidate from the top three scorers on the list. Certified promotional lists remain valid for two years. The City’s contract with the New Haven firefighters’ union specifies additional requirements for the promotion process. Under the contract, applicants for lieutenant and captain positions were to be screened using written and oral examinations, with the written exam accounting for 60 percent and the oral exam 40 percent of an applicant’s total score. To sit for the examinations, candidates for lieutenant needed 30 months’ experience in the Department, a high-school diploma, and certain vocational training courses. Candidates for captain needed one year’s service as a lieutenant in the Department, a high-school diploma, and certain vocational training courses. After reviewing bids from various consultants, the City hired Industrial/Organizational Solutions, Inc. (IOS) to develop and administer the examinations, at a cost to the City of $100,000. IOS is an Illinois company that specializes in designing entrylevel and promotional examinations for fire and police departments. In order to fit the examinations to the New Haven Department, IOS began the test-design process by performing job analyses to identify the tasks, knowledge, skills, and abilities that are essential for the lieutenant and captain positions. IOS 562

representatives interviewed incumbent captains and lieutenants and their supervisors. They rode with and observed other on-duty officers. Using information from those interviews and ride-alongs, IOS wrote job-analysis questionnaires and administered them to most of the incumbent battalion chiefs, captains, and lieutenants in the Department. At every stage of the job analyses, IOS, by deliberate choice, oversampled minority firefighters to ensure that the results— which IOS would use to develop the examinations— would not unintentionally favor white candidates. With the job-analysis information in hand, IOS developed the written examinations to measure the candidates’ job-related knowledge. For each test, IOS compiled a list of training manuals, Department procedures, and other materials to use as sources for the test questions. IOS presented the proposed sources to the New Haven fire chief and assistant fire chief for their approval. Then, using the approved sources, IOS drafted a multiple-choice test for each position. Each test had 100 questions, as required by CSB rules, and was written below a 10thgrade reading level. After IOS prepared the tests, the City opened a 3-month study period. It gave candidates a list that identified the source material for the questions, including the specific chapters from which the questions were taken. IOS developed the oral examinations as well. These concentrated on job skills and abilities. Using the job analysis information, IOS wrote hypothetical situations to test incident-command skills, firefighting tactics, interpersonal skills, leadership, and management ability, among other things. Candidates would be presented with these hypotheticals and asked to respond before a panel of three assessors. IOS assembled a pool of 30 assessors who were superior in rank to the positions being tested. At the City’s insistence (because of controversy surrounding previous examinations), all the assessors came from outside Connecticut. IOS submitted the assessors’ resumes to City officials for approval. They were battalion chiefs, assistant chiefs, and chiefs from departments of similar sizes to New Haven’s throughout the country. Sixty-six percent of the panelists were minorities, and each of the nine three member assessment panels contained two minority members. IOS trained the panelists for several hours on the day before it administered the examinations, teaching them how to score the candidates’ responses consistently using checklists of desired criteria. Candidates took the examinations in November and December 2003. Seventy-seven candidates

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completed the lieutenant examination—fourty-three whites, nineteen blacks, and fifteen Hispanics. Of those, thirty-four candidates passed—twenty-five whites, six blacks, and three Hispanics. Eight lieutenant positions were vacant at the time of the examination. As the rule of three operated, this meant that the top ten candidates were eligible for an immediate promotion to lieutenant. All ten were white. Ibid. Subsequent vacancies would have allowed at least three black candidates to be considered for promotion to lieutenant. Forty-one candidates completed the captain examination—twenty-five whites, eight blacks, and eight Hispanics. Of those, twenty-two candidates passed— sixteen whites, three blacks, and three Hispanics. Ibid. Seven captain positions were vacant at the time of the examination. Under the rule of three, nine candidates were eligible for an immediate promotion to captain—seven whites and two Hispanics. Ibid. B The City’s contract with IOS contemplated that, after the examinations, IOS would prepare a technical report that described the examination processes and methodologies and analyzed the results. But in January 2004, rather than requesting the technical report, City officials, including the City’s counsel, Thomas Ude, convened a meeting with IOS Vice President Chad Legel. (Legel was the leader of the IOS team that developed and administered the tests.) Based on the test results, the City officials expressed concern that the tests had discriminated against minority candidates. Legel defended the examinations’ validity, stating that any numerical disparity between white and minority candidates was likely due to various external factors and was in line with results of the Department’s previous promotional examinations. Several days after the meeting, Ude sent a letter to the CSB purporting to outline its duties with respect to the examination results. Ude stated that under federal law, “a statistical demonstration of disparate impact,” standing alone, “constitutes a sufficiently serious claim of racial discrimination to serve as a predicate for employer initiated, voluntar[y] remedies—even . . . race-conscious remedies.” ... C The CSB’s decision not to certify the examination results led to this lawsuit. The plaintiffs—who are

the petitioners here—are 17 white firefighters and 1 Hispanic firefighter who passed the examinations but were denied a chance at promotions when the CSB refused to certify the test results. They include the named plaintiff, Frank Ricci, who addressed the CSB at multiple meetings. Petitioners sued the City, Mayor DeStefano, DuBois-Walton, Ude, Burgett, and the two CSB members who voted against certification. Petitioners also named as a defendant Boise Kimber, a New Haven resident who voiced strong opposition to certifying the results. Those individuals are respondents in this Court. Petitioners filed suit under Rev. Stat. §§1979 and 1980, 42 U.S.C.§§1983 and 1985, alleging that respondents, by arguing or voting against certifying the results, violated and conspired to violate the Equal Protection Clause of the Fourteenth Amendment. Petitioners also filed timely charges of discrimination with the Equal Employment Opportunity Commission (EEOC); upon the EEOC’s issuing right to-sue letters, petitioners amended their complaint to assert that the City violated the disparate-treatment prohibition contained in Title VII of the Civil Rights Act of1964, as amended. See 42 U.S.C. §§2000e–2(a). The parties filed cross-motions for summary judgment. Respondents asserted they had a goodfaith belief that they would have violated the disparate-impact prohibition in Title VII, §2000e–2(k), had they certified the examination results. It follows, they maintained, that they cannot be held liable under Title VII’s disparate-treatment provision for attempting to comply with Title VII’s disparate impact bar. Petitioners countered that respondents’ good faith belief was not a valid defense to allegations of disparate treatment and unconstitutional discrimination. The District Court granted summary judgment for respondents. 554 F. Supp. 2d 142. It described petitioners’ argument as “boil[ing] down to the assertion that if[respondents] cannot prove that the disparities on the Lieutenant and Captain exams were due to a particular flaw inherent in those exams, then they should have certified the results because there was no other alternative in place.” Id., at 156. The District Court concluded that, “[n]ot withstanding the shortcomings in the evidence on existing, effective alternatives, it is not the case that[respondents] must certify a test where they cannot pinpoint its deficiency explaining its disparate impact . . . simply because they have not yet formulated a better The Continuing Significance of Race

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selection method.” Ibid. It also ruled that respondents’ “motivation to avoid making promotions based on a test with a racially disparate impact . . . does not, as a matter of law, constitute discriminatory intent” under Title VII. Id., at 160. The District Court rejected petitioners’ equal protection claim on the theory that respondents had not acted because of “discriminatory animus” toward petitioners. Id., at 162. It concluded that respondents’ actions were not “based on race” because “all applicants took the same test, and the result was the same for all because the test results were discarded and nobody was promoted.” Id., at 161. After full briefing and argument by the parties, the Court of Appeals affirmed in a one-paragraph, unpublished summary order; it later withdrew that order, issuing in its place a nearly identical, oneparagraph per curiam opinion adopting the District Court’s reasoning.530 F. 3d 87 (CA2 2008). Three days later, the Court of Appeals voted 7 to 6 to deny rehearing en banc, over written dissents by Chief Judge Jacobs and Judge Cabranes.530 F. 3d 88. This action presents two provisions of Title VII to be interpreted and reconciled, with few, if any, precedents in the courts of appeals discussing the issue. Depending on the resolution of the statutory claim, a fundamental constitutional question could also arise. We found it prudent and appropriate to grant certiorari. 555 U.S. ___ (2009). We now reverse. II Petitioners raise a statutory claim, under the disparate treatment prohibition of Title VII, and a constitutional claim, under the Equal Protection Clause of the Fourteenth Amendment. A decision for petitioners on their statutory claim would provide the relief sought, so we consider it first. See Atkins v. Parker, 472 U.S. 115, 123 (1985); Escambia County v. McMillan, 466 U.S. 48, 51 (1984) (per curiam) (“[N]ormally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case”). A Title VII of the Civil Rights Act of 1964, 42 U.S.C.§2000e et seq., as amended, prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Title VII prohibits both intentional discrimination (known as “disparate treatment”) as well as, in some cases, practices that are not intended to discriminate but in fact 564

have a disproportionately adverse effect on minorities (known as “disparate impact”). As enacted in 1964, Title VII’s principal nondiscrimination provision held employers liable only for disparate treatment. That section retains its original wording today. It makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a)(1); see also 78 Stat. 255. Disparate-treatment cases present “the most easily understood type of discrimination,” Teamsters v. United States, 431 U.S. 324, 335, n. 15 (1977), and occur where an employer has “treated [a] particular person less favorably than others because of” a protected trait. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 985–986 (1988). A disparate-treatment plaintiff must establish “that the defendant had a discriminatory intent or motive” for taking a job-related action. Id., at 986. The Civil Rights Act of 1964 did not include an express prohibition on policies or practices that produce a disparate impact. But in Griggs v. Duke Power Co., 401 U.S. 424 (1971), the Court interpreted the Act to prohibit, in some cases, employers’ facially neutral practices that, in fact, are “discriminatory in operation.” Id., at 431. The Griggs Court stated that the “touchstone” for disparate impact liability is the lack of “business necessity”: “If an employment practice which operates to exclude [minorities] cannot be shown to be related to job performance, the practice is prohibited.” Ibid.; see also id., at 432 (employer’s burden to demonstrate that practice has “a manifest relationship to the employment in question”); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975). Under those precedents, if an employer met its burden by showing that its practice was job-related, the plaintiff was required to show a legitimate alternative that would have resulted in less discrimination. Ibid. (allowing complaining party to show “that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate interest”). Twenty years after Griggs, the Civil Rights Act of 1991, 105 Stat. 1071, was enacted. The Act included a provision codifying the prohibition on disparateimpact discrimination. That provision is now in force along with the disparate-treatment section

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already noted. Under the disparate-impact statute, a plaintiff establishes a prima facie violation by showing that an employer uses “a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” 42 U.S.C. §2000e–2(k)(1)(A)(i). An employer may defend against liability by demonstrating that the practice is “job related for the position in question and consistent with business necessity.” Ibid. Even if the employer meets that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs. §§2000e–2(k)(1)(A)(ii) and (C). B Petitioners allege that when the CSB refused to certify the captain and lieutenant exam results based on the race of the successful candidates, it discriminated against them in violation of Title VII’s disparatetreatment provision. The City counters that its decision was permissible because the tests “appear[ed] to violate Title VII’s disparate impact provisions.” Our analysis begins with this premise: The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified.” 554 F. Supp. 2d, at 152; see also ibid. (respondents’ “own arguments . . . show that the City’s reasons for advocating non-certification were related to the racial distribution of the results”). Without some other justification, this express, racebased decision making violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. See §2000e–2(a)(1). . . . .Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.

We consider, therefore, whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. Courts often confront cases in which statutes and principles point in different directions. Our task is to provide guidance to employers and courts for situations when these two prohibitions could be in conflict absent a rule to reconcile them. In providing this guidance our decision must be consistent with the important purpose of Title VII—that the workplace be an environment free of discrimination, where race is not a barrier to opportunity. With these principles in mind, we turn to the parties’ proposed means of reconciling the statutory provisions. Petitioners take a strict approach, arguing that under Title VII, it cannot be permissible for an employer to take race-based adverse employment actions in order to avoid disparate-impact liability— even if the employer knows its practice violates the disparate-impact provision. See Brief for Petitioners 43. Petitioners would have us hold that, under Title VII, avoiding unintentional discrimination cannot justify intentional discrimination. That assertion, however, ignores the fact that, by codifying the disparate impact provision in 1991, Congress has expressly prohibited both types of discrimination. We must interpret the statute to give effect to both provisions where possible. See, e.g., United States v. Atlantic Research Corp., 551 U.S. 128, 137 (2007) (rejecting an interpretation that would render a statutory provision “a dead letter”). We cannot accept petitioners’ broad and inflexible formulation. Petitioners next suggest that an employer in fact must be in violation of the disparate-impact provision before it can use compliance as a defense in a disparate-treatment suit. Again, this is overly simplistic and too restrictive of Title VII’s purpose. The rule petitioners offer would run counter to what we have recognized as Congress’s intent that “voluntary compliance” be “the preferred means of achieving the objectives of Title VII.” Firefighters v. Cleveland, 478 U.S. 501, 515 (1986); see also Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 290 (1986) (O’CONNOR, J., concurring in part and concurring in judgment). Forbidding employers to act unless they know, with certainty, that a practice violates the disparate-impact provision would bring compliance efforts to a near standstill. Even in the limited situations when this restricted standard could be met, employers likely would hesitate before taking voluntary action for fear of later being proven wrong in the The Continuing Significance of Race

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course of litigation and then held to account for disparate treatment. At the opposite end of the spectrum, respondents and the Government assert that an employer’s goodfaith belief that its actions are necessary to comply with Title VII’s disparate-impact provision should be enough to justify race-conscious conduct. But the original, foundational prohibition of Title VII bars employers from taking adverse action “because of . . . race.” §2000e–2(a)(1). And when Congress codified the disparate-impact provision in 1991, it made no exception to disparate-treatment liability for actions taken in a good-faith effort to comply with the new, disparate-impact provision in subsection (k). Allowing employers to violate the disparate-treatment prohibition based on a mere good-faith fear of disparate-impact liability would encourage race-based action at the slightest hint of disparate impact. A minimal standard could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination. That would amount to a de facto quota system, in which a “focus on statistics . . . could put undue pressure on employers to adopt inappropriate prophylactic measures.” Watson, 487 U.S., at 992 (plurality opinion). Even worse, an employer could discard test results (or other employment practices) with the intent of obtaining the employer’s preferred racial balance. That operational principle could not be justified, for Title VII is express in disclaiming any interpretation of its requirements as calling for outright racial balancing. §2000e–2(j). The purpose of Title VII “is to promote hiring on the basis of job qualifications, rather than on the basis of race or color.” Griggs, 401 U.S., at 434. In searching for a standard that strikes a more appropriate balance, we note that this Court has considered cases similar to this one, albeit in the context of the Equal Protection Clause of the Fourteenth Amendment. The Court has held that certain government actions to remedy past racial discrimination— actions that are themselves based on race—are constitutional only where there is a “‘strong basis in evidence’” that the remedial actions were necessary. Richmond v. J. A. Croson Co., 488 U.S. 469, 500 (1989) (quoting Wygant, supra, at 277 (plurality opinion)). This suit does not call on us to consider whether the statutory constraints under Title VII must be parallel in all respects to those under the Constitution. That does not mean the constitutional 566

authorities are irrelevant, however. Our cases discussing constitutional principles can provide helpful guidance in this statutory context. See Watson, supra, at 993 (plurality opinion). Writing for a plurality in Wygant and announcing the strong-basis-in-evidence standard, JUSTICE POWELL recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other. 476 U.S., at 277. The plurality stated that those “related constitutional duties are not always harmonious,” and that “reconciling them requires . . . employers to act with extraordinary care.” Ibid. The plurality required a strong basis in evidence because “[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees.” Ibid. The Court applied the same standard in Croson, observing that “an amorphous claim that there has been past discrimination . . . cannot justify the use of an unyielding racial quota.” 488 U.S., at 499. The same interests are at work in the interplay between the disparate-treatment and disparate-impact provisions of Title VII. Congress has imposed liability on employers for unintentional discrimination in order to rid the workplace of “practices that are fair in form, but discriminatory in operation.” Griggs, supra, at 431. But it has also prohibited employers from taking adverse employment actions “because of” race. §2000e–2(a)(1). Applying the strong-basisin-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’ voluntary compliance efforts, which are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination. See Firefighters, supra, at 515. And the standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation. Resolving the statutory conflict in this way allows the disparate-impact prohibition to work in a manner that is consistent with other provisions of Title VII, including the prohibition on adjusting employmentrelated test scores on the basis of race. See

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§2000e–2(l). Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefighters here invested substantial time, money, and personal commitment in preparing for the tests. Employment tests can be an important part of a neutral selection system that safeguards against the very racial animosities Title VII was intended to prevent. Here, however, the firefighters saw their efforts invalidated by the City in sole reliance upon race-based statistics. If an employer cannot rescore a test based on the candidates’ race, §2000e–2(l), then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates—absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate impact provision. Restricting an employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations. See §2000e–2(h) (“[N]or shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race”); cf. AT&T Corp. v. Hulteen, 556 U.S. ___, ___ (2009) (slip op., at 8). For the foregoing reasons, we adopt the strongbasis-in evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII. Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. As we explain below, because respondents have not met their burden under Title VII, we need not decide whether a legitimate fear of disparate impact is ever sufficient to justify discriminatory treatment under the Constitution. Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have

made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed, §2000e–2(j), and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race. Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race. And when, during the test-design stage, an employer invites comments to ensure the test is fair, that process can provide a common ground for open discussions toward that end. We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparateimpact liability if it fails to take the race-conscious, discriminatory action. C The City argues that, even under the strong-basis-in evidence standard, its decision to discard the examination results was permissible under Title VII. That is incorrect. Even if respondents were motivated as a subjective matter by a desire to avoid committing disparate-impact discrimination, the record makes clear there is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate-impact liability in violation of Title VII. On this basis, we conclude that petitioners have met their obligation to demonstrate that there is “no genuine issue as to any material fact” and that they are “entitled to judgment as a matter of law.” Fed. Rule Civ. Proc. 56(c). On a motion for summary judgment, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted). In this Court, the City’s only defense is that it acted to comply with The Continuing Significance of Race

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Title VII’s disparate-impact provision. To succeed on their motion, then, petitioners must demonstrate that there can be no genuine dispute that there was no strong basis in evidence for the City to conclude it would face disparate-impact liability if it certified the examination results. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (where the nonmoving party “will bear the burden of proof at trial on a dispositive issue,” the nonmoving party bears the burden of production under Rule 56 to “designate specific facts showing that there is a genuine issue for trial” (internal quotation marks omitted)). The racial adverse impact here was significant, and petitioners do not dispute that the City was faced with a prima facie case of disparate-impact liability. On the captain exam, the pass rate for white candidates was 64 percent but was 37.5 percent for both black and Hispanic candidates. On the lieutenant exam, the pass rate for white candidates was 58.1 percent; for black candidates, 31.6 percent; and for Hispanic candidates, 20 percent. The pass rates of minorities, which were approximately one half the pass rates for white candidates, fall well below the80-percent standard set by the EEOC to implement the disparate-impact provision of Title VII. See 29 CFR §1607.4(D) (2008) (selection rate that is less than 80 percent “of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact”); Watson, 487 U.S., at 995–996, n. 3 (plurality opinion) (EEOC’s 80-percent standard is “a rule of thumb for the courts”). Based on how the passing candidates ranked and an application of the “rule of three,” certifying the examinations would have meant that the City could not have considered black candidates for any of the then-vacant lieutenant or captain positions. Based on the degree of adverse impact reflected in the results, respondents were compelled to take a hard look at the examinations to determine whether certifying the results would have had an impermissible disparate impact. The problem for respondents is that a prima facie case of disparate-impact liability—essentially, a threshold showing of a significant statistical disparity, Connecticut v. Teal, 457 U.S. 440, 446 (1982), and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results. That is because the City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, 568

less-discriminatory alternative that served the City’s needs but that the City refused to adopt. §2000e–2(k)(1)(A), (C). We conclude there is no strong basis in evidence to establish that the test was deficient in either of these respects. We address each of the two points in turn, based on the record developed by the parties through discovery—a record that concentrates in substantial part on the statements various witnesses made to the CSB. 1 There is no genuine dispute that the examinations were job-related and consistent with business necessity. The City’s assertions to the contrary are “blatantly contradicted by the record.” Scott, supra, at 380. The CSB heard statements from Chad Legel (the IOS vice president) as well as city officials outlining the detailed steps IOS took to develop and administer the examinations. IOS devised the written examinations, which were the focus of the CSB’s inquiry, after painstaking analyses of the captain and lieutenant positions—analyses in which IOS made sure that minorities were overrepresented. And IOS drew the questions from source material approved by the Department. Of the outside witnesses who appeared before the CSB, only one, Vincent Lewis, had reviewed the examinations in any detail, and he was the only one with any firefighting experience. Lewis stated that the “questions were relevant for both exams.” The only other witness who had seen any part of the examinations, Christopher Hornick (a competitor of IOS’s),criticized the fact that no one within the Department had reviewed the tests—a condition imposed by the City to protect the integrity of the exams in light of past alleged security breaches. But Hornick stated that the exams “appea[r] to be . . . reasonably good” and recommended that the CSB certify the results. ... The City, moreover, turned a blind eye to evidence that supported the exams’ validity. Although the City’s contract with IOS contemplated that IOS would prepare a technical report consistent with EEOC guidelines for examination-validity studies, the City made no request for its report. After the January 2004 meeting between Legel and some of the city-official respondents, in which Legel defended the examinations, the City sought no further information from IOS, save its appearance at a CSB

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meeting to explain how it developed and administered the examinations. IOS stood ready to provide respondents with detailed information to establish the validity of the exams, but respondents did not accept that offer. 2 Respondents also lacked a strong basis in evidence of an equally valid, less-discriminatory testing alternative that the City, by certifying the examination results, would necessarily have refused to adopt. Respondents raise three arguments to the contrary, but each argument fails. First, respondents refer to testimony before the CSB that a different compositescore calculation—weighting the written and oral examination scores 30/70—would have allowed the City to consider two black candidates for then open lieutenant positions and one black candidate for then-open captain positions. (The City used a 60/40 weighting as required by its contract with the New Haven firefighters’ union.) But respondents have produced no evidence to show that the 60/40 weighting was indeed arbitrary. In fact, because that formula was the result of a union-negotiated collectivebargaining agreement, we presume the parties negotiated that weighting for a rational reason. Nor does the record contain any evidence that the 30/70 weighting would be an equally valid way to determine whether candidates possess the proper mix of job knowledge and situational skills to earn promotions. Changing the weighting formula, moreover, could well have violated Title VII’s prohibition of altering test scores on the basis of race. See §2000e–2(l). On this record, there is no basis to conclude that a 30/70 weighting was an equally valid alternative the City could have adopted. Second, respondents argue that the City could have adopted a different interpretation of the “rule of three” that would have produced less discriminatory results. The rule, in the New Haven city charter, requires the City to promote only from “those applicants with the three highest scores” on a promotional examination. New Haven, Conn., Code of Ordinances, Tit. I, Art. XXX, §160 (1992). A state court has interpreted the charter to prohibit so called “banding”—the City’s previous practice of rounding scores to the nearest whole number and considering all candidates with the same whole-number score as being of one rank. Banding allowed the City to consider three ranks of candidates (with the possibility of multiple candidates filling each rank) for purposes

of the rule of three. See Kelly v. New Haven, No. CV000444614, 2004 WL 114377, *3 (Conn. Super. Ct., Jan. 9, 2004). Respondents claim that employing banding here would have made four black and one Hispanic candidates eligible for then-open lieutenant and captain positions. ... Third, and finally, respondents refer to statements by Hornick in his telephone interview with the CSB regarding alternatives to the written examinations. Hornick stated his “belie[f]” that an “assessment center process,” which would have evaluated candidates’ behavior in typical job tasks, “would have demonstrated less adverse impact.” CA2 App. A1039. But Hornick’s brief mention of alternative testing methods, standing alone, does not raise: a genuine issue of material fact that assessment centers were available to the City at the time of the examinations and that they would have produced less adverse impact. Other statements to the CSB indicated that the Department could not have used assessment centers for the 2003 examinations. Supra, at 14. . . . .

Especially when it is noted that the strong-basisin evidence standard applies, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) statements in the record. And there is no doubt respondents fall short of the mark by relying entirely on isolated statements by Hornick. Hornick had not “stud[ied] the test at length or in detail.” Id., at A1030. And as he told the CSB, he is a “direct competitor” of IOS’s. Id., at A1029. The remainder of his remarks showed that Hornick’s primary concern—somewhat to the frustration of CSB members—was marketing his services for the future, not commenting on the results of the tests the City had already administered. See, e.g., id., at A1026, A1027, A1032, A1036, A1040, A1041. Hornick’s hinting had its intended effect: The City has since hired him as a consultant . . . . 3 On the record before us, there is no genuine dispute that the City lacked a strong basis in evidence to believe it would face disparate-impact liability if it certified the examination results. In other words, there is no evidence —let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, The Continuing Significance of Race

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equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. The City’s discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. *** The record in this litigation documents a process that, at the outset, had the potential to produce a testing procedure that was true to the promise of Title VII: No individual should face workplace discrimination based on race. Respondents thought about promotion qualifications and relevant experience in neutral ways. They were careful to ensure broad racial participation in the design of the test itself and its administration. As we have discussed at length, the process was open and fair. The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results. The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the City had established for the promotional process. Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe. Confronted with arguments both for and against certifying the test results—and threats of a lawsuit either way—the City was required to make a difficult inquiry. But its hearings produced no strong evidence of a disparate-impact violation, and the City was not entitled to disregard the tests based solely on the racial disparity in the results. Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate treatment liability. Petitioners are entitled to summary judgment on their Title VII claim, and we therefore need not decide the underlying constitutional question. The 570

judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE SCALIA, concurring. I join the Court’s opinion in full, but write separately to observe that its resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one. See generally Primus, Equal Protection and Disparate Impact: Round Three, 117 Harv. L. Rev. 493 (2003). The difficulty is this: Whether or not Title VII’s disparate-treatment provisions forbid “remedial” race-based actions when a disparate-impact violation would not otherwise result—the question resolved by the Court today—it is clear that Title VII not only permits but affirmatively requires such actions when a disparate-impact violation would otherwise result. See ante, at 20–21. But if the Federal Government is prohibited from discriminating on the basis of race, Bolling v. Sharpe, 347 U.S. 497, 500 (1954), then surely it is also prohibited from enacting laws mandating that third parties—e.g., employers, whether private, State, or municipal—discriminate on the basis of race. See Buchanan v. Warley, 245 U.S. 60, 78–82 (1917). As the facts of these cases illustrate, Title VII’s disparate impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decision making is, as the Court explains, discriminatory. See ante, at 19; Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 279 (1979). To be sure, the disparate-impact laws do not mandate imposition of quotas, but it is not clear why that should provide a safe harbor. Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, just one step up the chain. Government compulsion of such design would therefore seemingly violate equal protection principles. Nor would it matter that Title VII requires consideration of race on a wholesale, rather than retail,

Protecting Against Bias: Segregation and Discrimination

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

level. “[T]he Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson, 515 U.S. 900, 911 (1995) (internal quotation marks omitted). And of course the purportedly benign motive for the disparate-impact provisions cannot save the statute. See Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995). It might be possible to defend the law by framing it as simply an evidentiary tool used to identify genuine, intentional discrimination—to “smoke out,” as it were, disparate treatment. See Primus, supra, at 498–499, 520–521. Disparate impact is sometimes (though not always, see Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 992 (1988) (plurality opinion)) a signal of something illicit, so a regulator might allow statistical disparities to play some role in the evidentiary process. Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–803 (1973). But arguably the disparate-impact provisions sweep too broadly to be fairly characterized in such a fashion— since they fail to provide an affirmative defense for good-faith (i.e., nonracially motivated) conduct, or perhaps even for good faith plus hiring standards that are entirely reasonable. See post, at 15–16, and n. 1 (GINSBURG, J., dissenting) (describing the demanding nature of the “business necessity” defense). This is a question that this Court will have to consider in due course. It is one thing to free plaintiffs from proving an employer’s illicit intent, but quite another to preclude the employer from proving that its motives were pure and its actions reasonable. The Court’s resolution of these cases makes it unnecessary to resolve these matters today. But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them. [JUSTICE ALITO’s opinion, with which JUSTICES SCALIA and THOMAS concurred, is not reprinted here] JUSTICE GINSBURG’s opinion, with whom JUSTICES STEVENS, SOUTER, and BREYER joined, dissenting. In assessing claims of race discrimination, “[c]ontext matters.” Grutter v. Bollinger, 539 U.S. 306, 327 (2003). In 1972, Congress extended Title VII of the Civil Rights Act of 1964 to cover public employment. At that time, municipal fire departments across the country, including New Haven’s, pervasively discriminated against minorities. The extension of Title

VII to cover jobs in firefighting effected no overnight change. It took decades of persistent effort, advanced by Title VII litigation, to open firefighting posts to members of racial minorities. The white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them. New Haven maintains that it refused to certify the test results because it believed, for good cause, that it would be vulnerable to a Title VII disparate-impact suit if it relied on those results. The Court today holds that New Haven has not demonstrated “a strong basis in evidence” for its plea. Ante, at 2. In so holding, the Court pretends that “[t]he City rejected the test results solely because the higher scoring candidates were white.” Ante, at 20. That pretension, essential to the Court’s disposition, ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes. By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60percent of the population, must today be served—as it was in the days of undisguised discrimination—by a fire department in which members of racial and ethnic minorities are rarely seen in command positions. In arriving at its order, the Court barely acknowledges the path marking decision in Griggs v. Duke Power Co., 401 U.S. 424 (1971), which explained the centrality of the disparate-impact concept to effective enforcement of Title VII. The Court’s order and opinion, I anticipate, will not have staying power. I A The Court’s recitation of the facts leaves out important parts of the story. Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow. In extending Title VII to state and local government employers in 1972, Congress took note of a U.S. Commission on Civil Rights (USCCR) report finding racial discrimination in municipal employment even “more pervasive than in the private sector.” H. R. Rep. No. 92– 238, p. 17 (1971). According to the report, overt racism was partly to blame, but so too was a failure on the part of municipal employers to apply merit-based employment principles. In making hiring The Continuing Significance of Race

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and promotion decisions, public employers often “rel[ied] on criteria unrelated to job performance,” including nepotism or political patronage. 118 Cong. Rec. 1817 (1972). Such flawed selection methods served to entrench preexisting racial hierarchies. The USCCR report singled out police and fire departments for having “[b]arriers to equal employment . . . greater . . . than in any other area of State or local government,” with African-Americans “hold[ing] almost no positions in the officer ranks.” Ibid. See also National Commission on Fire Prevention and Control, America Burning 5 (1973) (“Racial minorities are underrepresented in the fire departments in nearly every community in which they live.”). The city of New Haven (City) was no exception. In the early 1970’s, African-Americans and Hispanics composed 30 percent of New Haven’s population, but only 3.6 percent of the City’s 502 firefighters. The racial disparity in the officer ranks was even more pronounced: “[O]f the 107 officers in the Department only one was black, and he held the lowest rank above private.” Firebird Soc. of New Haven, Inc. v. New Haven Bd. of Fire Comm’rs, 66 F. R. D. 457, 460 (Conn. 1975). Following a lawsuit and settlement agreement, see ibid., the City initiated efforts to increase minority representation in the New Haven Fire Department (Department). Those litigation-induced efforts produced some positive change. New Haven’s population includes a greater proportion of minorities today than it did in the 1970’s: Nearly 40 percent of the City’s residents are African American and more than 20 percent are Hispanic. Among entry-level firefighters, minorities are still underrepresented, but not starkly so. As of 2003, African-Americans and Hispanics constituted 30 percent and 16 percent of the City’s firefighters, respectively. In supervisory positions, however, significant disparities remain. Overall, the senior officer ranks (captain and higher) are nine percent African-American and nine percent Hispanic. Only one of the Department’s twenty-one fire captains is African-American. It is against this backdrop of entrenched inequality that the promotion process at issue in this litigation should be assessed. B By order of its charter, New Haven must use competitive examinations to fill vacancies in fire officer and other civil-service positions. Such examinations, the City’s civil service rules specify, “shall be practical 572

in nature, shall relate to matters which fairly measure the relative fitness and capacity of the applicants to discharge the duties of the position which they seek, and shall take into account character, training, experience, physical and mental fitness.” Id., at A331. The City may choose among a variety of testing methods, including written and oral exams and “[p]erformance tests to demonstrate skill and ability in performing actual work.” Id., at A332. New Haven, the record indicates, did not closely consider what sort of “practical” examination would “fairly measure the relative fitness and capacity of the applicants to discharge the duties” of a fire officer. Instead, the City simply adhered to the testing regime outlined in its two decades-old contract with the local firefighters’ union: a written exam, which would account for 60 percent of an applicant’s total score, and an oral exam, which would account for the remaining 40 percent. In soliciting bids from exam development companies, New Haven made clear that it would entertain only “proposals that include a written component that will be weighted at 60 percent, and an oral component that will be weighted at 40 percent.” Id., at A342. Chad Legel, a representative of the winning bidder, Industrial/ Organizational Solutions, Inc. (IOS), testified during his deposition that the City never asked whether alternative methods might better measure the qualities of a successful fire officer, including leadership skills and command presence. (“I was under contract and had responsibility only to create the oral interview and the written exam.”). Pursuant to New Haven’s specifications, IOS developed and administered the oral and written exams. The results showed significant racial disparities. On the lieutenant exam, the pass rate for African-American candidates was about one-half the rate for Caucasian candidates; the pass rate for Hispanic candidates was even lower. On the captain exam, both African-American and Hispanic candidates passed at about half the rate of their Caucasian counterparts. More striking still, although nearly half of the seventy-seven lieutenant candidates were African-American or Hispanic, none would have been eligible for promotion to the eight positions then vacant. The highest scoring African-American candidate ranked13th; the top Hispanic candidate was 26th. As for the seven then-vacant captain positions, two Hispanic candidates would have been eligible, but no African-Americans. The highest scoring African-American candidate ranked 15th. These

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

stark disparities, the Court acknowledges, sufficed to state a prima facie case under Title VII’s disparateimpact provision. . . . New Haven thus had cause for concern about the prospect of Title VII litigation and liability. City officials referred the matter to the New Haven Civil Service Board (CSB), the entity responsible for certifying the results of employment exams. Between January and March 2004, the CSB held five public meetings to consider the proper course. At the first meeting, New Haven’s Corporation Counsel, Thomas Ude, described the legal standard governing Title VII disparate impact claims. Statistical imbalances alone, Ude correctly recognized, do not give rise to liability. Instead, presented with a disparity, an employer “has the opportunity and the burden of proving that the test is job-related and consistent with business necessity.” CA2 App. A724. A Title VII plaintiff may attempt to rebut an employer’s showing of job-relatedness and necessity by identifying alternative selection methods that would have been at least as valid but with “less of an adverse or disparate or discriminatory effect.” Ibid. See also id., at A738. Accordingly, the CSB Commissioners understood, their principal task was to decide whether they were confident about the reliability of the exams: Had the exams fairly measured the qualities of a successful fire officer despite their disparate results? Might an alternative examination process have identified the most qualified candidates without creating such significant racial imbalances? Seeking a range of input on these questions, the CSB heard from test takers, the test designer, subject-matter experts, City officials, union leaders, and community members. Several candidates for promotion, who did not yet know their exam results, spoke at the CSB’s first two meetings. Some candidates favored certification. The exams, they emphasized, had closely tracked the assigned study materials. Having invested substantial time and money to prepare themselves for the test, they felt it would be unfair to scrap the results. Other firefighters had a different view. A number of the exam questions, they pointed out, were not germane to New Haven’s practices and procedures. At least two candidates opposed to certification noted unequal access to study materials. Some individuals, they asserted, had the necessary books even before the syllabus was issued. Others had to invest substantial sums to purchase the materials and “wait a month and a half for some of the books because they were on back-order.” Id., at A858. These

disparities, it was suggested, fell at least in part along racial lines. While many Caucasian applicants could obtain materials and assistance from relatives in the fire service, the overwhelming majority of minority applicants were “first generation firefighters” without such support networks. A representative of the Northeast Region of the International Association of Black Professional Firefighters, Donald Day, also spoke at the second meeting. Statistical disparities, he told the CSB, had been present in the Department’s previous promotional exams. On earlier tests, however, a few minority candidates had fared well enough to earn promotions. Day contrasted New Haven’s experience with that of nearby Bridgeport, where minority firefighters held one-third of lieutenant and captain positions. Bridgeport, Day observed, had once used a testing process similar to New Haven’s, with a written exam accounting for 70 percent of an applicant’s score, an oral exam for 25 percent, and seniority for the remaining five percent. Bridgeport recognized, however, that the oral component, more so than the written component, addressed the sort of “real-life scenarios” fire officers encounter on the job. Accordingly, that city “changed the relative weights” to give primacy to the oral exam. Ibid. Since that time, Day reported, Bridgeport had seen minorities “fairly represented” in its exam results. Ibid. The CSB’s third meeting featured IOS representative Legel, the leader of the team that had designed and administered the exams for New Haven . . . Legel described the exam development process in detail. For security reasons, Department officials had not been permitted to check the content of the questions prior to their administration. Instead, IOS retained a senior fire officer from Georgia to review the exams “for content and fidelity to the source material.” Id., at A936. Legel defended the exams as “facially neutral,” and stated that he “would stand by the[ir] validity.” Id., at A962. City officials did not dispute the neutrality of IOS’s work. But, they cautioned, even if individual exam questions had no intrinsic bias, the selection process as a whole may nevertheless have been deficient. The officials urged the CSB to consult with experts about the “larger picture.” Id., at A1012. At its fourth meeting, CSB solicited the views of three individuals with testing-related expertise. Dr. Christopher Hornick, an industrial/organizational psychology consultant with twenty-five years’ experience with police and firefighter testing, described The Continuing Significance of Race

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the exam results as having “relatively high adverse impact.” Id., at A1028. Most of the tests he had developed, Hornick stated, exhibited “significantly and dramatically less adverse impact.” Id., at A1029. Hornick downplayed the notion of “facial neutrality.” It was more important, he advised the CSB, to consider “the broader issue of how your procedures and your rules and the types of tests that you are using are contributing to the adverse impact.” Id., at A1038. II A Title VII became effective in July 1965. Employers responded to the law by eliminating rules and practices that explicitly barred racial minorities from “white” jobs. But removing overtly race-based job classifications did not usher in genuinely equal opportunity. More subtle—and sometimes unconscious—forms of discrimination replaced once undisguised restrictions. In Griggs v. Duke Power Co., 401 U.S. 424 (1971), this Court responded to that reality and supplied important guidance on Title VII’s mission and scope. Congress, the landmark decision recognized, aimed beyond “disparate treatment”; it targeted “disparate impact” as well. Title VII’s original text, it was plain to the Court, “proscribe[d]not only overt discrimination but also practices that are fair in form, but discriminatory in operation.” Id., at 431. Only by ignoring Griggs could one maintain that intentionally disparate treatment alone was Title VII’s “original, foundational prohibition,” and disparate impact a mere afterthought. Cf. ante, at 21. Griggs addressed Duke Power Company’s policy that applicants for positions, save in the company’s labor department, be high school graduates and score satisfactorily on two professionally prepared aptitude tests. “[T]here was no showing of a discriminatory purpose in the adoption of the diploma and test requirements.” 401 U.S., at 428. The policy, however, “operated to render ineligible a markedly disproportionate number of [African-Americans].” Id., at 429. At the time of the litigation, in North Carolina, where the Duke Power plant was located, 34 percent of white males, but only 12 percent of African-American males, had high school diplomas. Id., at 430, n. 6. African-Americans also failed the aptitude tests at a significantly higher rate than whites. Ibid. Neither requirement had been “shown 574

to bear a demonstrable relationship to successful performance of the jobs for which it was used.” Id., at 431. The Court unanimously held that the company’s diploma and test requirements violated Title VII. “[T]o achieve equality of employment opportunities,” the Court comprehended, Congress “directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” Id., at 429, 432. That meant “unnecessary barriers to employment” must fall, even if “neutral on their face” and “neutral in terms of intent.” Id., at 430, 431. “The touchstone” for determining whether a test or qualification meets Title VII’s measure, the Court said, is not “good intent or the absence of discriminatory intent”; it is “business necessity.” Id., at 431, 432. Matching procedure to substance, the Griggs Court observed, Congress “placed on the employer the burden of showing that any given requirement . . . ha[s] a manifest relationship to the employment in question.” Id., at 432. In Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), the Court, again without dissent, elaborated on Griggs. When an employment test “select[s] applicants for hire or promotion in a racial pattern significantly different from the pool of applicants,” the Court reiterated, the employer must demonstrate a “manifest relationship” between test and job. 422 U.S., at 425. Such a showing, the Court cautioned, does not necessarily mean the employer prevails: “[I]t remains open to the complaining party to show that other tests or selection devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate interest in ‘efficient and trustworthy workmanship.’” Ibid. ... Moving in a different direction, in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), a bare majority of this Court significantly modified the Griggs-Albemarle delineation of Title VII’s disparate-impact proscription. As to business necessity for a practice that disproportionately excludes members of minority groups, Wards Cove held, the employer bears only the burden of production, not the burden of persuasion. 490 U.S., at 659–660. And in place of the instruction that the challenged practice “must have a manifest relationship to the employment in question,” Griggs, 401 U.S., at 432, Wards Cove said that the practice would be permissible as long as it “serve[d], in a significant way, the

Protecting Against Bias: Segregation and Discrimination

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

legitimate employment goals of the employer.” 490 U.S., at 659. In response to Wards Cove and “a number of [other] recent decisions by the United States Supreme Court that sharply cut back on the scope and effectiveness of [civil rights] laws,” Congress enacted the Civil Rights Act of 1991. Among the 1991 alterations, Congress formally codified the disparate impact component of Title VII. In so amending the statute, Congress made plain its intention to restore “the concepts of ‘business necessity’ and ‘job related’ enunciated by the Supreme Court in Griggs v. Duke Power Co. . . . and in other Supreme Court decisions prior to Wards Cove Packing Co. v. Atonio.” §3(2), 105 Stat. 1071. Once a complaining party demonstrates that an employment practice causes a disparate impact, amended Title VII states, the burden is on the employer “to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.” 42 U.S.C. §2000e–2(k)(1)(A)(i). If the employer carries that substantial burden, the complainant may respond by identifying “an alternative employment practice” which the employer “refuses to adopt.” §2000e–2(k)(1)(A)(ii), (C). B Neither Congress’ enactments nor this Court’s Title VII precedents (including the now-discredited decision in Wards Cove) offer even a hint of “conflict” between an employer’s obligations under the statute’s disparate treatment and disparate-impact provisions. Cf. ante, at 20. Standing on an equal footing, these twin pillars of Title VII advance the same objectives: ending workplace discrimination and promoting genuinely equal opportunity. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800 (1973). Yet the Court today sets at odds the statute’s core directives. When an employer changes an employment practice in an effort to comply with Title VII’s disparate-impact provision, the Court reasons, it acts “because of race”—something Title VII’s disparatetreatment provision, see §2000e–2(a)(1), generally forbids. Ante, at 20. This characterization of an employer’s compliance-directed action shows little attention to Congress’ design or to the Griggs line of cases Congress recognized as path marking. In codifying the Griggs and Albemarle instructions, Congress declared unambiguously that selection criteria operating to the disadvantage of

minority group members can be retained only if justified by business necessity. In keeping with Congress’ design, employers who reject such criteria due to reasonable doubts about their reliability can hardly be held to have engaged in discrimination “because of” race. A reasonable endeavor to comply with the law and to ensure that qualified candidates of all races have a fair opportunity to compete is simply not what Congress meant to interdict. I would therefore hold that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity. EEOC’s interpretative guidelines are corroborative. “[B]y the enactment of title VII,” the guidelines state, “Congress did not intend to expose those who comply with the Act to charges that they are violating the very statute they are seeking to implement.” 29 CFR §1608.1(a)(2008). Recognizing EEOC’s “enforcement responsibility” under Title VII, we have previously accorded the Commission’s position respectful consideration. See, e.g., Albemarle, 422 U.S., at 431; Griggs, 401 U.S., at 434. Yet the Court today does not so much as mention EEOC’s counsel. Our precedents defining the contours of Title VII’s disparate-treatment prohibition further confirm the absence of any intra-statutory discord. In Johnson v. Transportation Agency, Santa Clara City, 480 U.S. 616 (1987), we upheld a municipal employer’s voluntary affirmative action plan against a disparate-treatment challenge. Pursuant to the plan, the employer selected a woman for a road-dispatcher position, a job category traditionally regarded as “male.” A male applicant who had a slightly higher interview score brought suit under Title VII. This Court rejected his claim and approved the plan, which allowed consideration of gender as “one of numerous factors.” Id., at 638. Such consideration, we said, is “fully consistent with Title VII” because plans of that order can aid “in eliminating the vestiges of discrimination in the workplace.” Id., at 642. This litigation does not involve affirmative action. But if the voluntary affirmative action at issue in Johnson does not discriminate within the meaning of Title VII, neither does an employer’s reasonable effort to comply with Title VII’s disparate-impact provision by refrain-ing from action of doubtful consistency with business necessity. The Continuing Significance of Race

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C To “reconcile” the supposed “conflict” between disparate treatment and disparate impact, the Court offers an enigmatic standard. Employers may attempt to comply with Title VII’s disparate-impact provision, the Court declares, only where there is a “strong basis in evidence” documenting the necessity of their action. Ante, at 22. The Court’s standard, drawn from inapposite equal protection precedents, is not elaborated. One is left to wonder what cases would meet the standard and why the Court is so sure this case does not. 1 In construing Title VII, I note preliminarily, equal protection doctrine is of limited utility. The Equal Protection Clause, this Court has held, prohibits only intentional discrimination; it does not have a disparate-impact component. See Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 272 (1979); Washington v. Davis, 426 U.S. 229, 239 (1976). Title VII, in contrast, aims to eliminate all forms of employment discrimination, unintentional as well as deliberate. Until today, this Court has never questioned the constitutionality of the disparate-impact component of Title VII, and for good reason. By instructing employers to avoid needlessly exclusionary selection processes, Title VII’s disparate-impact provision calls for a “race-neutral means to increase minority . . . participation”— something this Court’s equal protection precedents also encourage. ([Q]uoting Richmond v. J. A. Croson Co., 488 U.S. 469, 507 (1989)). “The very radicalism of holding disparate impact doctrine unconstitutional as a matter of equal protection,” moreover, “suggests that only a very uncompromising court would issue such a decision.” Primus, Equal Protection and Disparate Impact: Round Three, 117Harv. L. Rev. 493, 585 (2003). The cases from which the Court draws its strong-basis in-evidence standard are particularly inapt; they concern the constitutionality of absolute racial preferences. See Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 277 (1986) (plurality opinion) (invalidating a school district’s plan to lay off nonminority teachers while retaining minority teachers with less seniority); Croson, 488 U.S., at 499–500 (rejecting a set-aside program for minority contractors that operated as “an unyielding racial quota”). An employer’s effort

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to avoid Title VII liability by repudiating a suspect selection method scarcely resembles those cases. Race was not merely a relevant consideration in Wygant and Croson; it was the decisive factor. Observance of Title VII’s disparate-impact provision, in contrast, calls for no racial preference, absolute or otherwise. The very purpose of the provision is to ensure that individuals are hired and promoted based on qualifications manifestly necessary to successful performance of the job in question, qualifications that do not screen out members of any race. 2 The Court’s decision in this litigation underplays a dominant Title VII theme. This Court has repeatedly emphasized that the statute “should not be read to thwart” efforts at voluntary compliance. Johnson, 480 U.S., at 630. Such compliance, we have explained, is “the preferred means of achieving [Title VII’s] objectives.” Firefighters v. Cleveland, 478 U.S. 501, 515 (1986). See also Kolstad v. American Dental Assn., 527 U.S. 526, 545 (1999). . . . The strong-basis-in-evidence standard, however, as barely described in general, and cavalierly applied in this case, makes voluntary compliance a hazardous venture. As a result of today’s decision, an employer who discards a dubious selection process can anticipate costly disparate treatment litigation in which its chances for success—even for surviving a summaryjudgment motion—are highly problematic. Concern about exposure to disparate-impact liability, however well grounded, is insufficient to insulate an employer from attack. Instead, the employer must make a “strong” showing that (1) its selection method was “not job related and consistent with business necessity,” or (2) that it refused to adopt “an equally valid, less discriminatory alternative.” Ante, at 28. It is hard to see how these requirements differ from demanding that an employer establish “a provable, actual violation” against itself. Cf. ante, at 24. There is indeed a sharp conflict here, but it is not the false one the Court describes between Title VII’s core provisions. It is, instead, the discordance of the Court’s opinion with the voluntary compliance ideal. Cf. Wygant, 476 U.S., at 290 (O’CONNOR, J., concurring in part and concurring in judgment) (“The imposition of a requirement that public employers make findings that they have engaged in illegal discrimination before they [act] would severely

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undermine public employers’ incentive to meet voluntarily their civil rights obligations.”) 3 The Court’s additional justifications for announcing a strong-basis-in-evidence standard are unimpressive. First, discarding the results of tests, the Court suggests, calls for a heightened standard because it “upset[s] an employee’s legitimate expectation.” Ante, at 25. This rationale puts the cart before the horse. The legitimacy of an employee’s expectation depends on the legitimacy of the selection method. If an employer reasonably concludes that an exam fails to identify the most qualified individuals and needlessly shuts out a segment of the applicant pool, Title VII surely does not compel the employer to hire or promote based on the test, however unreliable it may be. Indeed, the statute’s prime objective is to prevent exclusionary practices from “operat[ing] to ‘freeze’ the status quo.” Griggs, 401 U.S., at 430. Second, the Court suggests, anything less than a strong basis-inevidence standard risks creating “a de facto quota system, in which . . . an employer could discard test results . . . with the intent of obtaining the employer’s preferred racial balance.” Ante, at 22. Under a reasonableness standard, however, an employer could not cast aside a selection method based on a statistical disparity alone. The employer must have good cause to believe that the method screens out qualified applicants and would be difficult to justify as grounded in business necessity. Should an employer repeatedly reject test results, it would be fair, I agree, to infer that the employer is simply seeking a racially balanced outcome and is not genuinely endeavoring to comply with Title VII. D The Court stacks the deck further by denying respondents any chance to satisfy the newly announced strong basis-in-evidence standard. When this Court formulates a new legal rule, the ordinary course is to remand and allow the lower courts to apply the rule in the first instance. See, e.g., Johnson v. California, 543 U.S. 499, 515 (2005); Pullman-Standard v. Swint, 456 U.S. 273, 291 (1982). I see no good reason why the Court fails to follow that course in this case. Indeed, the sole basis for the Court’s peremptory ruling is the demonstrably false pretension that respondents showed “nothing more” than “a significant statistical disparity.” Ante, at 27–28; see supra, at 24, n. 8.

III A Applying what I view as the proper standard to the record thus far made, I would hold that New Haven had ample cause to believe its selection process was flawed and not justified by business necessity. Judged by that standard, petitioners have not shown that New Haven’s failure to certify the exam results violated Title VII’s disparate treatment provision. The City, all agree, “was faced with a prima facie case of disparate-impact liability,” ante, at 27: The pass rate for minority candidates was half the rate for nonminority candidates, and virtually no minority candidates would have been eligible for promotion had the exam results been certified. Alerted to this stark disparity, the CSB heard expert and lay testimony, presented at public hearings, in an endeavor to ascertain whether the exams were fair and consistent with business necessity. Its investigation revealed grave cause for concern about the exam process itself and the City’s failure to consider alternative selection devices. Chief among the City’s problems was the very nature of the tests for promotion. In choosing to use written and oral exams with a 60/40 weighting, the City simply adhered to the union’s preference and apparently gave no consideration to whether the weighting was likely to identify the most qualified fire-officer candidates. There is strong reason to think it was not. Relying heavily on written tests to select fire officers is a questionable practice, to say the least. Successful fire officers, the City’s description of the position makes clear, must have the “[a]bility to lead personnel effectively, maintain discipline, promote harmony, exercise sound judgment, and cooperate with other officials.” CA2 App. A432. These qualities are not well measured by written tests. Testifying before the CSB, Christopher Hornick, an exam-design expert with more than two decades of relevant experience, was emphatic on this point: Leadership skills, command presence, and the like “could have been identified and evaluated in a much more appropriate way.” Id., at A1042–A1043. Hornick’s commonsense observation is mirrored in case law and in Title VII’s administrative guidelines. Courts have long criticized written firefighter promotion exams for being “more probative of the test-taker’s ability to recall what a particular text

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stated on a given topic than of his firefighting or supervisory knowledge and abilities.” Vulcan Pioneers, Inc. v. New Jersey Dept. of Civil Serv., 625 F. Supp. 527, 539 (NJ 1985). A fire officer’s job, court shave observed, “involves complex behaviors, good interpersonal skills, the ability to make decisions under tremendous pressure, and a host of other abilities— none of which is easily measured by a written, multiple choice test.” Firefighters Inst. for Racial Equality v. St. Louis, 616 F. 2d 350, 359 (CA8 1980). Interpreting the Uniform Guidelines, EEOC and other federal agencies responsible for enforcing equal opportunity employment laws have similarly recognized that, as measures of “interpersonal relations” or “ability to function under danger (e.g., firefighters),” “[p]encil-and-paper tests . . . generally are not close enough approximations of work behaviors to show content validity.” 44 Fed. Reg. 12007 (1979). See also 29 CFR §1607.15(C)(4). Given these unfavorable appraisals, it is unsurprising that most municipal employers do not evaluate their fire officer candidates as New Haven does. Although comprehensive statistics are scarce, a 1996 study found that nearly two-thirds of surveyed municipalities used assessment centers (“simulations of the real world of work”) as part of their promotion processes. P. Lowry, A Survey of the Assessment Center Process in the Public Sector, 25 Public Personnel Management 307, 315 (1996). That figure represented a marked increase over the previous decade, see ibid., so the percentage today may well be even higher. Among municipalities still relying in part on written exams, the median weight assigned to them was 30 percent—half the weight given to New Haven’s written exam. Id., at 309. Testimony before the CSB indicated that these alternative methods were both more reliable and notably less discriminatory in operation. According to Donald Day of the International Association of Black Professional Firefighters, nearby Bridgeport saw less skewed results after switching to a selection process that placed primary weight on an oral exam. CA2 App. A830–A832; see supra, at 7–8. And Hornick described assessment centers as “demonstrat[ing] dramatically less adverse impacts” than written exams. CA2 App. A1040. Considering the prevalence of these proven alternatives, New Haven was poorly positioned to argue that promotions based on its outmoded and exclusionary selection process qualified as a business necessity. Cf. Robinson v. Lorillard Corp., 444 F. 2d 791, 798, n. 7 (CA4 1971). 578

Ignoring the conceptual and other defects in New Haven’s selection process, the Court describes the exams as “painstaking[ly]” developed to test “relevant” material and on that basis finds no substantial risk of disparate-impact liability. See ante, at 28. Perhaps such reasoning would have sufficed under Wards Cove, which permitted exclusionary practices as long as they advanced an employer’s “legitimate” goals. 490 U.S., at 659. But Congress repudiated Wards Cove and reinstated the “business necessity” rule attended by a “manifest relationship” requirement. See Griggs, 401 U.S., at 431–432. See also supra, at 17. Like the chess player who tries to win by sweeping the opponent’s pieces off the table, the Court simply shuts from its sight the formidable obstacles New Haven would have faced in defending against a disparate-impact suit. That IOS representative Chad Legel and his team may have been diligent in designing the exams says little about the exams’ suitability for selecting fire officers. IOS worked within the City’s constraints. Legel never discussed with the City the propriety of the 60/40 weighting and “was not asked to consider the possibility of an assessment center.” CA2 App. A522. See also id., at A467. The IOS exams, Legel admitted, had not even attempted to assess “command presence”: “[Y]ou would probably be better off with an assessment center if you cared to measure that.” Id., at A521. Cf. Boston Chapter, NAACP v. Beecher, 504 F. 2d 1017, 1021–1022 (CA1 1974) (“A test fashioned from materials pertaining to the job . . . superficially may seem job-related. But what is at issue is whether it demonstrably selects people who will perform better the required on-the-job behaviors.”). In addition to the highly questionable character of the exams and the neglect of available alternatives, the City had other reasons to worry about its vulnerability to disparate-impact liability. Under the City’s ground rules, IOS was not allowed to show the exams to anyone in the New Haven Fire Department prior to their administration. This “precluded [IOS] from being able to engage in[its] normal subject matter expert review process”—something Legel described as “very critical.” CA2 App.A477, A506. As a result, some of the exam questions were confusing or irrelevant, and the exams may have over tested some subject-matter areas while missing others. Testimony before the CSB also raised questions concerning unequal access to study materials, . . . and the potential bias introduced by relying principally

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on job analyses from nonminority fire officers to develop the exams, . . . The Court criticizes New Haven for failing to obtain a “technical report” from IOS, which, the Court maintains, would have provided “detailed information to establish the validity of the exams.” Ante, at 29. The record does not substantiate this assertion. As Legel testified during his deposition, the technical report merely summarized “the steps that [IOS] took methodologically speaking,” and would not have established the exams’ reliability. In sum, the record solidly establishes that the City had good cause to fear disparate-impact liability. Moreover, the Court supplies no tenable explanation why the evidence of the tests’ multiple deficiencies does not create at least a triable issue under a strongbasis-in-evidence standard. B ... The real issue, then, is not whether the mayor and his staff were politically motivated; it is whether their attempt to score political points was legitimate (i.e., nondiscriminatory). Were they seeking to exclude white firefighters from promotion (unlikely, as a fair test would undoubtedly result in the addition of white firefighters to the officer ranks), or did they realize, at least belatedly, that their tests could be toppled in a disparate-impact suit? In the latter case, there is no disparate-treatment violation. JUSTICE ALITO, I recognize, would disagree. In his view, an employer’s action to avoid Title VII disparate impact liability qualifies as a presumptively improper racebased employment decision. See ante, at 2. I reject that construction of Title VII. See supra, at 18–20. As I see it, when employers endeavor to avoid exposure to disparate-impact liability, they do not thereby encounter liability for disparate treatment. Applying this understanding of Title VII, supported by Griggs and the long line of decisions following Griggs, see supra, at 16–17, and nn. 3–4, the District Court found no genuine dispute of material fact. That court noted, particularly, the guidance furnished by Second Circuit precedent. See supra, at 12. Petitioners’ allegations that City officials took account of politics, the District Court determined, simply “d[id] not suffice” to create an inference of unlawful discrimination. 554 F. Supp. 2d, at 160, n. 12. The non certification decision, even if undertaken “in a political context,” reflected a legitimate “intent

not to implement a promotional process based on testing results that had an adverse impact.” Id., at 158, 160. Indeed, the District Court perceived “a total absence of any evidence of discriminatory animus towards [petitioners].” Id., at 158. See also id., at 162 (“Nothing in the record in this case suggests that the City defendants or CSB acted ‘because of’ discriminatory animus toward [petitioners] or other non-minority applicants for promotion.”). Perhaps the District Court could have been more expansive in its discussion of these issues, but its conclusions appear entirely consistent with the record before it. It is indeed regrettable that the City’s noncertification decision would have required all candidates to go through another selection process. But it would have been more regrettable to rely on flawed exams to shut out candidates who may well have the command presence and other qualities needed to excel as fire officers. Yet that is the choice the Court makes today. It is a choice that breaks the promise of Griggs that groups long denied equal opportunity would not be held back by tests “fair in form, but discriminatory in operation.” 401 U.S., at 431. *** This case presents an unfortunate situation, one New Haven might well have avoided had it utilized a better selection process in the first place. But what this case does not present is race-based discrimination in violation of Title VII. I dissent from the Court’s judgment, which rests on the false premise that respondents showed “a significant statistical disparity,” but “nothing more.” See ante, at 27–28.

“BUT NOT NEXT DOOR”: THE CONTROVERSY OVER RACIALLY SEGREGATED HOUSING Housing segregation continues to be a major issue in America. Segregation in housing holds important implications: the education of students in public and private school, job opportunities, and even the selection of friends and mates. For the most part, however, where people live is determined by the forces controlling the private housing market. But public housing authorities have not been without significant influence. Exacerbating the problem has been the acceptance by many whites of a number of myths regarding the residential behavior of minority groups, particularly African Americans. Commonly shared views that property values drop and neighborhoods deteriorate when African Americans move in The Continuing Significance of Race

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have generally been accepted as truisms by frightened whites. Hence, when the phenomenon of “blockbusting” occurs and one African American family moves in, almost immediately homes on that block and in that neighborhood are put on the market by fleeing whites. Early attempts to seal off a neighborhood by legislation were rejected by the Supreme Court in Buchanan v. Warley (245 U.S. 60, 1917), because the Louisville, Kentucky, ordinance was a direct violation of the equal protection clause. The Court also struck a blow at the perpetrators of racially segregated housing areas when it held in Shelley v. Kraemer (334 U.S. 1, 1948) and Hurd v. Hodge (334 U.S. 24, 1948) that privately executed “restrictive covenants” were unenforceable in the courts. The judicial action involved would be state action to enforce racial discrimination and would violate the equal protection clause. See also Barrows v. Jackson (346 U.S. 249, 1953). Such judicial holdings had little or no impact on opening up the housing market. African Americans were still restricted to certain residential areas either by the practices of real estate brokers or by mortgage institutions, with varying degrees of pressure from neighborhood associations. In addition, the Buchanan decision was often skirted by the public housing “location” decisions of local governments, as major housing projects were usually constructed with an eye to the maintenance of racially segregated neighborhoods. Consequently, federal money has, at times, supported segregated housing policies of communities across the nation. Major attention was directed at equal access to housing during the civil rights movement of the 1960s. Efforts during that time and other pressures produced a number of state and local “open occupancy” laws that were designed to bring under regulation certain real estate practices that had undergirded the segregated housing market. Practices such as racially separate listings and mortgage company policies restricting loans to African American buyers to specified areas were typically banned. The courts have upheld such fair housing laws as a valid exercise of state power to achieve a nondiscriminatory housing market. Attempts by some groups to constitutionally seal off this policy area from legislative action have been rebuffed. In California, for example, a state constitutional amendment that was overwhelmingly approved through the popular initiative and referendum in 1964 repealed the state’s fair housing laws and 580

prohibited the legislature from enacting such legislation in future. The amendment was struck down in Reitman v. Mulkey (387 U.S. 369, 1967). Noting the amendment’s “immediate objective,” the California Supreme Court found its adoption to be an unconstitutional state involvement in promoting racial discrimination contrary to the equal protection clause. In affirming on the same equal protection grounds, the U.S. Supreme Court made it clear that the enjoyment of constitutional rights may not be submitted to a popular referendum. The Court reemphasized this proposition two years later in Hunter v. Erickson (393 U.S. 385, 1969), when it struck down an Akron, Ohio, charter amendment that required the city council to submit any fair housing ordinance to a popular referendum. On the national front, the Johnson administration succeeded in getting Congress to enact a national fair housing law shortly after the assassination of the Reverend Martin Luther King, Jr., in 1968. Undoubtedly, this tragedy and the widespread urban violence that followed in its wake helped to spur congressional approval of the measure known as the 1968 Fair Housing Law. The law bans discrimination in the sale and rental of 80 percent of the nation’s housing. Excluded from its provisions are owner-occupied dwellings of four units or less and privately owned single-family homes when sale and rental transactions do not involve the services of a real estate broker. The nondiscriminatory provisions were also extended to financing and brokerage services. The Department of Housing and Urban Development (HUD) is charged with seeking voluntary compliance, but the law may be enforced through civil actions by individuals and by the attorney general, who is authorized to file suits against the offender(s) when a pattern or general practice of discrimination is found. After a decade of experience under the act, supporters of fair housing concluded that discrimination in the nation’s housing market could not be eliminated through the conciliatory means to which HUD was limited. Consequently, the 96th Congress made a major effort, with strong support from the Carter administration, to strengthen the enforcement authority of HUD. A bill authorizing HUD to initiate administrative actions before administrative law judges, who had the power to assess civil penalties up to $10,000, passed the House of Representatives, only to be killed by a Senate filibuster in the waning days of the second session. The bill also included

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provisions to deal with the problem of “red-lining” (a practice of denying mortgage money to neighborhoods that were undergoing racial change) and to expand coverage to home appraisers and insurers. The presidential election campaign of 1988 appeared to provide a needed catalyst to strengthen the Fair Housing Act. Major amendments to the act were incorporated in the Fair Housing Amendments Act of 1988 and the act had the backing of both President Reagan and Republican presidential candidate George Bush. The act passed both houses with overwhelming votes. Key provisions directed at racial discrimination strengthened HUD’s enforcement authority. Although HUD retains the power to attempt conciliation of housing discrimination complaints, the department can resort to more stringent measures if the conciliation effort is unsuccessful. If it determines that conciliation will not resolve the controversy, HUD can issue a “charge of housing discrimination” that allows the plaintiff or the defendant to seek resolution of the dispute through a newly created administrative law judge procedure or through a regular federal court trial. As an indication of Congress’s intent to get tough on violators, the administrative law judges are given authority to impose fines ranging from $10,000 for an initial violation up to $50,000 for persistent violators. Of course, such actions are reviewable by federal courts. Just 2 months after the passage of the 1968 Fair Housing Act, another law that could be employed in the battle against housing discrimination came to light when the Supreme Court resurrected an amorphous federal statute that had been passed in 1866 to enforce the Thirteenth Amendment and applied it in the case of Jones v. Mayer (392 U.S. 409, 1968) to private discrimination in the housing market. This provision of the Civil Rights Act of 1866, the Court held, which guarantees to African American citizens the same right “enjoyed by white[s] 1/4 to inherit, purchase, lease, sell, hold, and convey real and personal property,” also prohibits racial discrimination in the sale of housing by a private developer. Justice Potter Stewart, who wrote the Court’s opinion, said that the statute’s language was “plain and unambiguous” in its declaration of property rights available to all citizens. Furthermore, Justice Stewart had no doubt about the authority of Congress to act. He noted that the act was grounded in the Thirteenth Amendment, and that its enabling section empowered Congress to enact “all laws necessary and proper

to abolish all badges and incidents of slavery.” Stewart emphasized that the Court’s action in no way “diminished the significance” of the 1968 Fair Housing Law because there were vast differences between the two measures. He noted, for example, that the 1866 act was “a general statute applicable only to racial discrimination in the rental and sale of property” with remedial relief available only through private action, while, on the other hand, the 1968 statute was a comprehensive housing measure that was applicable to a number of discriminatory practices, exempted specific types of units, and was “enforceable by a complete arsenal of federal authority.” As we have noted, some public agencies have been essential supports of racial segregation in public housing. Their support was well illustrated in Hills v. Gautreaux (425 U.S. 234, 1976), in which location of public housing in the Chicago metropolitan area was the issue. Lower federal courts found that the Chicago Housing Authority, with financial support from HUD, had violated the Fourteenth Amendment and federal statutes in deliberately selecting sites for public housing on a racially discriminatory basis. In its affirmance, the Supreme Court agreed with the court of appeals that it was constitutionally permissible to consider the entire metropolitan area in fashioning relief, as that was the “relevant housing market.” Despite this ruling, the dispersal of public and other types of low-income housing in Chicago and its suburban area is highly improbable for the foreseeable future. Chief among the barriers are the powers retained by local governments (recognized in the Court’s opinion in Gautreaux) over zoning and land use in general. And the Supreme Court made it clear that the invocation of such powers to block the construction of low-income housing does not offend the Constitution. In Village of Arlington Heights, Illinois v. Metropolitan Housing Development Corp. (429 U.S. 254, 1977), the Court fastened on would-be developers and proponents of low-income and public housing the very strict burden of proving a “discriminatory intent.” As Justice Lewis Powell argued for the Court, showing that the “ultimate effect” of the Arlington Heights zoning decision was racially discriminatory was insufficient. It was necessary to show that the “motivating factor in the rezoning decision” was purposefully and intentionally to discriminate on the basis of race. As a result of the Gautreaux decision and the very meager federal financial support for housing The Continuing Significance of Race

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development in the late 1970s and early 1980s, practically no new low-income housing was constructed in the nation’s larger metropolitan centers. Instead, public housing authorities have focused their efforts on arrangements that involve housing units in the private housing market. Among the most widely used of these arrangements are rent subsidies (grants to assist the would-be public housing resident meet the higher rent charged in privately operated housing) and the scattered-site housing program (in which public housing authorities acquire private housing units throughout the metropolitan area and make them available to people who qualify for public housing). In Meyer v. Holley (537 U.S. 280, 2003), the Supreme Court decided whether the Fair Housing Act of 1968 imposes vicarious liability upon the corporation officers or owners. Emma Mary Ellen Holley and David Holley, an interracial couple, tried to buy a house in Twenty-Nine Palms, California. The real estate corporation, Triad, Inc., had listed the house for sale. Triad salesman Grove Crank prevented the Holleys from buying the house for racially discriminatory reasons. The Holleys brought a lawsuit in federal court against Crank and Triad, claiming that both were responsible for a fair housing violation. In a separate lawsuit against David Meyer (Triad’s president, sole shareholder, and licensed officer/broker), the Holleys claimed that he was vicariously liable in one or more of these capacities for Crank’s unlawful actions. The District Court ruled against the Holleys. The Ninth Circuit Court of Appeals held that the Fair Housing Act imposes principles of strict liability beyond the ones that are traditionally associated with agent/principal or employee/employer relationships. Speaking for the Court, Justice Breyer vacated the Ninth Circuit ruling and remanded the case for further proceeding consistent with this opinion. He concluded that the “act imposes liability without fault upon the employer in accordance with traditional agency principles, i.e., it normally imposes liability upon the corporation but not upon its officers or owners.” Breyer provided several explanations: (1) Congress said nothing in the statute or in the legislative history about extending vicarious liability in the alleged manner; (2) the Court has applied unusually strict rules only when Congress has specified that such was its intent; (3) the Department of Housing and Urban Development has specified that ordinary vicarious liability rules apply in this area; (4) the Ninth Circuit’s 582

position was not supported in the cases that were cited; and (5) the right to control is insufficient by itself, under traditional agency principles, to establish a principal/agent or employer/employee relationship.

COMMENTARY When the Supreme Court declared the public accommodations provisions of the 1875 Civil Rights Act unconstitutional in the Civil Rights Cases (109 U.S. 3) in 1883, private entrepreneurs were left free (except when state law decreed otherwise) to make racial distinctions in providing a variety of “public accommodations” services to the public. As a result, a rigid racial segregation practice developed in the South and in some areas outside the South where African Americans could obtain restaurant service only (if at all) in small dining areas in or near the kitchen or could view motion pictures only from the balcony or separately designated “colored” sections of local theaters. Motel and hotel accommodations for minorities were generally nonexistent except for second- and third-rate facilities in the “colored” section of town. A “white only” sign warning of the racial exclusion policy generally was enough to keep “unknowing” African Americans from seeking service at an establishment. In the early 1960s, the entrenched segregation policies and practices in this area became a target of the civil rights movement. The vigorous campaigns that were launched against segregated lunch counters, restaurants, motels, and theaters were largely undertaken by aroused black college and high school students. The tactics employed were markedly different from those used in the school segregation controversy—sit-ins and massive demonstrations were substituted for court challenges. Of course, these tactics themselves became the subject of much litigation. The objective was to prod the conscience of the various communities and the nation generally into reexamining racial segregation as a moral proposition. Beginning in 1960, demonstrations spread throughout the South, and thousands of demonstrators were arrested and jailed. Although numerous appeals were taken to the Supreme Court, the Court was able to dispose of the cases without tackling the tough constitutional issue of segregated accommodations. (See Garner v. Louisiana, 368 U.S. 157, 1961). Apparently, most of the Justices were not yet ready to reexamine the Civil Rights Cases, in which the Court limited the command of the

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equal protection clause to state action only, excluding the discriminatory actions of private individuals who provide various accommodations for the public. In a few scattered instances, segregation practices were abandoned as a result of demonstrations, but in the end it took the public accommodations title (Title II) of the 1964 Civil Rights Act to ban private discrimination. This legislation was challenged immediately after President Johnson signed it. But a federal district court in Georgia sustained the constitutionality of the act and denied attempts to enjoin its enforcement as applied to a restaurant and a motel. In Alabama, however, a federal district court held the public accommodations title to be unconstitutional as it was applied to a local eating establishment. Upon appeal of both rulings, the Supreme Court held the legislation to be a valid exercise of the commerce power (Heart of Atlanta Motel v. United States, 379 U.S. 241, and Katzenbach v. McClung, 379 U.S. 294, 1974). Initial expansive interpretations of Title II blunted the efforts of some people to circumvent it by employing the subterfuge of the “private club.”

In Daniel v. Paul (395 U.S. 298, 1969), for example, the Lake Nixon Club (a recreational facility near Little Rock, Arkansas) attempted to continue its “white only” policy by selling memberships in the “private club” only to whites. In brushing aside this simple subterfuge, Justice William J. Brennan found that the operations of the club generally, and its snack bar in particular, were so affected by interstate commerce that the entire facility was a place of public accommodation within the meaning of the 1964 act. Cf. United States v. Northwest Louisiana Restaurant Club (256 F. Supp. 151, W.D. La. 1966). By 1970, much of the vigorous resistance to compliance had subsided. In the years that have followed, use of major public accommodations (hotels, motels, restaurants) by African Americans has become commonplace, particularly in large urban areas. So to what extent minorities now benefit from the wide range of private sector public accommodations is essentially determined by economic factors.

SELECTED REFERENCES Anderson, Terry H. The Pursuit of Fairness: A History of Affirmative Action. New York: Oxford University Press (2004). Balkin, Jack M. and Reva B. Siegel. “The American Civil Rights Tradition: Anticlassification or Antisubordination?” University of Miami Law Review 58:9–33 (2004). Ball, Howard. The Bakke Case: Race, Education, and Affirmative Action. Lawrence: University Press of Kansas, 2000. Bowen, William G. “Grutter: Where Do We Go from Here? The Impact of the Supreme Court Decisions in the University of Michigan Affirmative Action Cases,” Journal of Blacks in Higher Education, Vol. 44, 76–81 (2004). Brown-Nagin, Tomiko. “Elites, Social Movements, and the Law: The Case of Affirmative Action,” Columbia Law Review, Vol. 105, No. 5, 1436–1528 (2005). Bulman-Pozen, Jessica. “Grutter at Work: A Title VII Critique of Constitutional Affirmative Action,” Yale Law Journal, Vol. 115, No. 6, 1408–1449 (2006). Flagg, Barbara J. Was Blind, But Now I See. New York: New York University Press. Goring, D. C. “Silent Beneficiaries: Affirmative Action and Gender in Law School Academic Support Programs,” 84 Kentucky Law Journal 941–982 (Summer 1995/96).

Graglia, Lino A. “Race Preferences, Quotas, and the Civil Rights Act of 1991,” 41 DePaul Law Review 1117 (Summer 1992). Green, Tristin. “Insular Individualism: Employment Discrimination Law after Ledbetter v. Goodyear,” 43 Harvard Civil Rights-Civil Liberties Law Review, 353–383 (2008). Guinier, Lani. “Admission Rituals as Political Acts: Guardians at the Gates of our Democratic Ideals,” Harvard Law Review, Vol. 117, 114–224 (2003). Horn, Catherine L. and Marin, Patricia. “Reaping the Benefits of Grutter: College Admissions and Racial/Ethnic Diversity,” in Gándara, Patricia, Orfield, Gary, and Horn, Catherine, eds., Expanding Opportunity in Higher Education: Leveraging Promise. Albany: State University of New York Press, 167–192 (2006). Karst, Kenneth L. “The Revival of Forward Looking Affirmative Action,” Columbia Law Review, Vol. 104, No. 1, 60–74 (2004). Klein, Lauren. “Ricci v. DeStefano: ‘Fanning the Flames’ of Reverse Discrimination in Civil Service Selection,” Duke Journal of Constitutional Law & Public Policy Sidebar, Vol. 4, 391–407 (2009). Landsberg, Brian K. “Race and the Rehnquist Court,” 66 Tulane Law Review 1267 (May 1992). The Continuing Significance of Race

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Larkin, Brian P. “The Forty-Year ‘First Step’: The Fair Housing Act as an Incomplete Tool for Suburban Integration,” Columbia Law Review, Vol. 107, 1616–1654 (2007). Le, Loan and Citrin, Jack. “Affirmative Action,” in Persily, Nathaniel, Citrin, Jack, and Egan, Patrick J., eds., Public Opinion and Constitutional Controversy. New York: Oxford University Press, 2008. Malamud, D. C. “Class-Based Affirmative Action: Lessons and Caveats,” 74 Texas Law Review 847–900 (June 1996). Marin, Patricia and Horn, Catherine L., eds. Realizing Bakke’s Legacy: Affirmative Action, Equal Opportunity, and Equal Access to Higher Education. Sterling, VA: Stylus Publishing, 2008. Moore, G. A., and M. K. Braswell. “Quotas and the Codification of the Disparate Impact Theory: What Did Griggs Really Say and Not Say?” 55 Albany Law Review 459 (1991). Perry, Barbara A. The Michigan Affirmative Action Cases. Lawrence: University Press of Kansas, 2007. Ray-Holmes, Sunanda. “The Changing Disparate Impact Theory of Employment Discrimination,” 34 Howard Law Journal 331 (1991). Rothstein, Jesse and Yoon, Albert H. “Affirmative Action in Law School Admissions: What Do Racial Preferences Do?” University of Chicago Law Review, Vol. 75, No. 2 (2008), 649–714. Rutherglen, George. “After Affirmative Action: Conditions and Consequences of Ending Preferences in Employment,” 1992 University of Illinois Law Review 339 (1992). Sabbagh, Daniel. Equality and Transparency: A Strategic Perspective on Affirmative Action in American Law. New York: Palgrave MacMillan, 2007.

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Schmidt, Peter G. Color and Money: How Rich White Kids Are Winning the War over College Affirmative Action. New York: Palgrave MacMillan, 2007. Starr, Paul. “Building Minority Institutions: Alternatives to Affirmative Action,” 49 Current 34 (February 1992). Sterba, James P. Affirmative Action for the Future. Ithaca, NY: Cornell University Press, 2009. Stohr, Greg. A Black and White Case: How Affirmative Action Survived its Greatest Legal Challenge. Princeton, NJ: Bloomberg L P, 2004. Sugrue, Thomas J. “Affirmative Action from Below: Civil Rights, the Building Trades, and the Politics of Racial Equality in the Urban North, 1945–1969.” The Journal of American History. 145–173 (2004). Teles, Steven M. “Transformative Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment.” 23 Studies in American Political Development 61–83 (2009). Thomas, Edward C. Racial Classification and the Flawed Pursuit of Diversity: How Phantom Minorities Threaten Critical Mass Justification in Higher Education 813 (2007). Williams, Linda Faye. “The Issues of Our Times: Economic Inequality and Political Power in America.” 2 Perspectives in Politics 683–689 (2004). Wolff, J. B. “Affirmative Action and College and Graduate School Admissions: The Effects of Hopwood and the Actions of the U.C. Board of Regents on its Continuent Existence,” 50 SMU Law Review 627–662 (January/ February 1997).

Protecting Against Bias: Segregation and Discrimination

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

CHAPTER 14

THE CONTINUING SIGNIFICANCE OF RACE: VOTING AND REPRESENTATION

FEATURED CASES Gomillion v. Lightfoot; South Carolina v. Katzenbach; Baker v. Carr; Shaw v. Reno; Northwest Austin Municipal Utility Dist. No. 1 v. Holder

T

HE CONTINUING SIGNIFICANCE OF RACE IN VOTING

and representation persists in post-Civil Rights America. Over the past sixty years, the racial landscape in politics has undergone tremendous changes. In 1948, for example, the North–South split in the Democratic Party came to a head. Approximately thirty-five Southerners walked out of the Democratic Convention in protest over the party’s strong civil rights pledge and refusal to place a states’ rights plank in the platform. Many of the Southerners who defected from the Democratic Party turned to Strom Thurman’s third party, the Dixiecrats, to pursue their political goals. Specifically, they objected to President Harry S. Truman’s attack on racial segregation and the growth in power of the federal government. Truman’s focus on desegregation was seen as an assault on the values, morals, and culture of the South. The passage of the Voting Rights Act of 1965 is believed to have been a major catalyst for the significant opening of the American democracy to blacks and other racial groups. The percentage of blacks who participated in voting and successfully pursued public offices increased greatly. By the 1970s, blacks had become one of the most loyal voting blocs in the Democratic Party. The 1984 and 1988 Democratic

Party presidential primaries were defined by the viable candidacy of the Reverend Jesse Jackson. On the one hand, Jackson’s candidacy called attention to how much racial change had occurred. On the other hand, it reminded the nation of the significant distance it still had to travel in order to create a truly open democracy. In 2008, sixty years after the turmoil and walkout at the Democratic Party Convention, the same party nominated Senator Barack Obama of Illinois for the presidency, and the nation elected him president that November. Obama made inroads into the South, which had become a political stronghold for presidential candidates who counseled America to go slow on race; they thought that the federal government had done enough on the racial front or that the balance had tipped too far in support of civil rights for African Americans and other historically disadvantaged groups. The campaign mobilized voters across the political spectrum and especially black and white voters. (See Tables 14.1 and 14.2.) The successful campaign of President Obama illuminates the racial tension in the body politic that is not limited to any particular region of the nation. Obama purposefully ran a deracialized campaign. 585

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Table 14.1 Voter Registration by Race in Selected States Blacks AL AR FL GA LA MS NC SC TN TX VA

Whites

2000

2004

2008

2000

2004

2008

613,000 199,000 761,000 1,293,000 647,000 450,000 827,000 454,000 427,000 958,000 583,000

583,000 188,000 965,000 1,083,000 693,000 531,000 874,000 595,000 416,000 1,141,000 551,000

611,000 160,000 1,685,000 1,414,000 712,000 588,000 971,000 650,000 426,000 1,356,000 727,000

1,776,000 911,000 5,391,000 2,198,000 1,670,000 995,000 2,784,000 1,516,000 2,149,000 5,901,000 2,568,000

1,806,000 1,096,000 6,169,000 2,753,000 1,678,000 949,000 3,227,000 1,617,000 2,273,000 6,065,000 2,731,000

1,791,000 1,117,000 6,213,000 2,983,000 1,612,000 980,000 3,715,000 1,692,000 2,402,000 6,048,000 2,945,000

Source: U.S. Census Bureau, Current Population Survey November 2000, 2004, and 2008

He made a concerted effort to limit references to his racial background and the salience of race as an issue in the election. The African American community and others tacitly approved of Obama’s strategy and made few if any demands on him. The consensus opinion seemed to believe that large segments of voters might not have voted for an African American candidate who emphasized racial concerns, problems, and challenges. Another view contended that Barack Obama altered the social discourse on race in the body politic. In his inaugural address, for example, President Obama steered clear of specific references to the slavery and segregation

in the context that continue to influence the status of African Americans. He framed issues in purely economic terms. The history of race in America, however, indicates that single events seldom propel the nation into new social eras. Backlash theory suggests that advances on the racial front are met with counterveiling efforts. Thus, racial transformations occur in incremental, developmental installments. Consider, for example, the Civil War Amendments to the Constitution, the civil rights legislation of the Reconstruction era, and Brown v. Board of Education. Gaining voting rights and representation for blacks

Table 14.2 Total Votes by Race in Selected States Blacks 2000 AL AR FL GA LA MS NC SC TN TX VA

485,000 173,000 607,000 1,007,000 555,000 357,000 626,000 402,000 344,000 798,000 529,000

2004 511,000 145,000 815,000 919,000 606,000 466,000 784,000 498,000 334,000 931,000 477,000

Whites 2008

2000

2004

2008

547,000 133,000 985,000 1,309,000 625,000 524,000 919,000 615,000 405,000 1,194,000 686,000

1,448,000 752,000 4,658,000 1,787,000 1,442,000 849,000 2,296,000 1,303,000 1,825,000 4,761,000 2,300,000

1,522,000 959,000 5,577,000 2,327,000 1,430,000 773,000 2,713,000 1,377,000 1,945,000 5,232,000 2,525,000

1,543,000 928,000 5,635,000 2,683,000 1,458,000 895,000 3,270,000 1,488,000 2,038,000 5,311,000 2,716,000

Source: U.S. Census Bureau, Current Population Survey NOVEMBER 2000, 2004, and 2008

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have consumed more than 100 years. Voting and representation are essential elements for the existence an open society. Policy making at all levels of government are intimately linked to voting and representation. Even the Supreme Court and its pronouncements bear a close nexus with voting and election returns. The civil rights movement of the 1950s and 1960s reflected this awareness. The movement was driven by twin objectives: The protection of the right to vote and the expansion of the electorate for blacks. One of the most successful results of the movement was the passage of the Voting Rights Act of 1965, which focused on racially based impediments to black access to the ballot and to the full representation and influence of African Americans in the electoral process. The Voting Rights Act had a startling influence upon the participation of blacks in the electorate and their influence in public office, particularly in the South where efforts of racial exclusion were profuse and intense and where the African American population was heavily concentrated.

NEGATING BLACK POLITICAL PARTICIPATION: STATE DEFIANCE OF THE FIFTEENTH AMENDMENT FEATURED CASE

Gomillion v. Lightfoot The Voting Rights Act of 1965 emerged from a political past that too often was built on state and local efforts to deny the vote to African Americans. Despite the voting guarantees of the Fifteenth Amendment, systematic exclusion of black Americans from the electoral process was commonplace for almost a century after the Amendment’s adoption. This condition was in large measure a consequence of our federal system. States exercise power to determine who can vote in state and local contests, and in practice, one’s participation in federal elections is essentially in the hands of state officials as well. States enacted the grandfather clause, poll tax, understanding and literacy test, and white primary to negate the participation of African Americans. In Guinn v. United States (238 U.S. 374, 1915), for example, the Supreme Court voided a grandfather clause amendment to the Oklahoma Constitution. Chief Justice White concluded that the amendment violated the Fifteenth Amendment to the U.S. Constitution. He argued that the January 1, 1866

standard revitalized a condition that existed prior to the Fifteenth Amendment and made that period the controlling and dominant test to the right to vote. The Supreme Court reached a similar result in a sequel to Guinn. In Lane v. Wilson (307 U.S. 268, 1939), the Supreme Court disallowed an Oklahoma law of 1916 which gave African Americans not more than 12 days to register after the Guinn decision. Speaking in the majority opinion, Justice Frankfurter held that the “Fifteenth Amendment nullified so blatant or simple-minded modes of discrimination.” The Supreme Court struggled with the white primary for more than a generation. Prior to the general election, the Democratic Party in the South held primary elections in which only whites were permitted to cast a ballot. Blacks could not participate. Because the winner of the primary invariably won in the general election, African Americans were effectively disenfranchised. Nixon v. Herndon (273 U.S. 536, 1927) was the first case to test the constitutionality of the white primary. Justice Holmes declared that the Texas statute was an obtrusive encroachment on the authority of the Fourteenth Amendment. The catand-mouse game of the white primary continued for years after Nixon v. Herndon. States lodged the white primary in the category of nonfederal private action. The decision of Newberry v. United Sates (256 U.S. 232, 1921) had concluded that a primary was not a part of the federal election process, “but merely methods by which party adherents agree upon candidates whom they entered to often and support for ultimate choice by all qualified electors.” Like Newberry, Herndon facilitated states’ perfection of the white primary. In Grover v. Townsend (295 U.S. 45, 1935), Texas devised a “legal” way to disenfranchise blacks in a primary election. The Texas Democratic Party in its state convention declared the qualifications for primary election participation, which excluded blacks. Justice Roberts, writing the opinion of the Court, believed that the state’s involvement was not extensive enough to constitute “state action.” Roberts indicated that the Democratic Party was a voluntary, private organization, not a state body, and thus was not bound by the federal Constitution. However, in 1941, the Supreme Court connected primary elections to the federal Constitution. United States v. Classic (313 U.S. 299) dealt with a case from Louisiana which focused on whether the right to vote in primary elections was secured by the U.S. Constitution. An election official refused to give a

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prospective African American voter a ballot. Justice Stone noted two overriding factors: (1) the primary election in Louisiana had an enormous impact on the general election; and (2) unlike the Fourteenth and Fifteenth Amendments, Section 2 of Article I of the Constitution secured the right to vote against the action of individuals as well as of states. Classic revised Grover v. Townsend and signaled the suffocation of the white primary. In Smith v. Allwright (321 U.S. 649, 1944), the Court rejected the white primary scheme of Texas. Justice Reed concluded that the actions by Texas constituted state action. Texas provided election ballots and the finalists limited the choice of the people in the general election. The white primary did not “go gentle into the good night.” However, South Carolina repealed some 150 statutory provisions that governed white primary elections in an effort to make the political party a truly private club. Lower federal courts rejected such provisions, and the Supreme Court denied certiorari (Rice v. Elmore, 333 U.S. 875, 1948). In Terry v. Adams (345 U.S. 461, 1953), the Supreme Court rejected a Texas county’s evasive scheme that excluded African Americans from the preprimary election. The Court held that “the private status” claim of the “jaybird” group was an integral part of the election process that is required to conform with the Fifteenth Amendment. The Supreme Court addressed resistance to the voting and representation in the South. The Alabama

state legislature took action to prevent blacks in Tuskegee from taking office in city government. The legislature enacted a statute that gerrymandered nearly all black residents out of the city. The state alleged that the issue raised in Gomillion v. Lightfoot (364 U.S. 339, 1960) constituted a “political question.” The Supreme Court rejected Alabama’s “political question” argument. The Court held that the statute deprived African Americans of their voting rights secured by the Fifteenth Amendment. Before the enactment of the Voting Rights Act of 1965, the Supreme Court decided two cases that focused on literacy and interpretation tests. Louisiana and Mississippi used these tests to block the participation of blacks in the electoral process. In the first case, Louisiana v. United States (380 U.S. 641, 1965), the Court held that the interpretation and citizenship tests violated the intent of the Fourteenth Amendment. The justices stopped short of holding the devices unconstitutional per se. The Court found that the tests lodged arbitrary and discretionary authority in the registrar of voters. Justice Black characterized the interpretation test as “not a test, but a trap.” In the second case, United States v. Mississippi (380 U.S. 128, 1965), the Supreme Court reaffirmed its stern opposition to the literacy test and derivation thereof. The conclusion was the “Fifteenth Amendment protects the right to vote regardless of race against any denial . . . by the United States or by any state.”

GOMILLION V. LIGHTFOOT 364 U.S. 339; 5 L. ED. 2D 110; 81 S. CT. 125 (1960) JUSTICE FRANKFURTER delivered the opinion of the Court. JUSTICE WHITTAKER filed a concurring opinion. JUSTICE FRANKFURTER delivered the opinion of the Court. This litigation challenges the validity, under the United States Constitution, of Local Act No. 140, passed by the Legislature of Alabama in 1957, redefining the boundaries of the City of Tuskegee. Petitioners, Negro citizens of Alabama who were, at 588

the time of this redistricting measure, residents of the City of Tuskegee, brought an action in the United States District Court for the Middle District of Alabama for a declaratory judgment that Act 140 is unconstitutional, and for an injunction to restrain the Mayor and officers of Tuskegee and the officials of Macon County, Alabama, from enforcing the Act against them and other Negroes similarly situated. Petitioners’ claim is that enforcement of the statute . . . will constitute a discrimination against them in violation of the Due Process and Equal Protection

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Clauses of the Fourteenth Amendment to the Constitution and will deny them the right to vote in defiance of the Fifteenth Amendment. The respondents moved for dismissal of the action for failure to state a claim upon which relief could be granted and for lack of jurisdiction of the District Court. The court granted the motion, stating, “This Court has no control over, no supervision over, and no power to change any boundaries of municipal corporations fixed by a duly convened and elected legislative body, acting for the people of the State of Alabama.”. . . On appeal, the Court of Appeals for the Fifth Circuit, affirmed the judgment, one judge dissenting. . . . We brought the case here since serious questions were raised concerning the power of a State over its municipalities in relation to the Fourteenth and Fifteenth Amendments. . . . . . . The sole question is whether the allegations entitle . . . [petitioners] to make good on their claim that they are being denied rights under the United States Constitution. The complaint . . . allege[s] the following facts: Prior to Act 140 the City of Tuskegee was square in shape; the Act transformed it into a strangely irregular twenty-eight-sided figure. . . . The essential inevitable effect of this redefinition of Tuskegee’s boundaries is to remove from the city all save only four or five of its 400 Negro voters while not removing a single white voter or resident. The result of the Act is to deprive the Negro petitioners discriminatorily of the benefits of residence in Tuskegee, including, inter alia, the right to vote in municipal elections. These allegations, if proven, would abundantly establish that Act 140 was not an ordinary geographic redistricting measure even within familiar abuses of gerrymandering. If these allegations upon a trial remained uncontradicted or unqualified, the conclusion would be irresistible, tantamount for all practical purposes to a mathematical demonstration, that the legislation is solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their preexisting municipal vote. It is difficult to appreciate what stands in the way of adjudging a statute having this inevitable effect invalid in light of the principles by which this Court must judge, and uniformly has judged, statutes that, however speciously defined, obviously discriminate against colored citizens. “The [Fifteenth] Amendment nullifies sophisticated as well as simple minded modes of discrimination.” Lane v. Wilson, 307 U.S. 268, 275 (1939). . . .

The complaint amply alleges a claim of racial discrimination. Against this claim the respondents have never suggested, either in their brief or in oral argument, any countervailing municipal function which Act 140 is designed to serve. The respondents invoke generalities expressing the State’s unrestricted power—unlimited, that is, by the United States Constitution—to establish, destroy, or reorganize by contraction or expansion its political subdivisions, to wit, cities, counties, and other local units. We freely recognize the breadth and importance of this aspect of the State’s political power. To exalt this power into an absolute is to misconceive the reach and rule of this Court’s decisions. . . . ... . . . [T]he cases that have come before this Court regarding legislation by States dealing with their political subdivisions fall into two classes: (1) those in which it is claimed that the State, by virtue of the prohibition against impairment of the obligation of contract (Art 1, Sec. 10) and of the Due Process Clause of the Fourteenth Amendment, is without power to extinguish, or alter the boundaries of, an existing municipality; and (2) in which it is claimed that the State has no power to change the identity of a municipality whereby citizens of a pre-existing municipality suffer serious economic disadvantages. Neither of these claims is supported by such a specific limitation upon State power as confines the States under the Fifteenth Amendment. As to the first category, it is obvious that the creation of municipalities—clearly a political act—does not come within the conception of a contract under the Dartmouth College Case. . . . As to the second, if one principle clearly emerges from the numerous decisions of this Court dealing with taxation it is that the Due Process Clause affords no immunity against mere inequalities in tax burdens, nor does it afford protection against their increase as an indirect consequence of a State’s exercise of its political powers. Particularly in dealing with claims under broad provisions of the Constitution, which derive content by an interpretive process of inclusion and exclusion, it is imperative that generalizations, based on and qualified by the concrete situations that gave rise to them, must not be applied out of context in disregard of variant controlling facts. Thus, a correct reading of . . . kindred cases is not that the State has plenary power to manipulate in every conceivable way, for every conceivable purpose, the affairs of its

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municipal corporations, but rather that the State’s authority is unrestrained by the particular prohibitions of the Constitution considered in those cases. ... . . . [T]he Court has never acknowledged that the States have power to do as they will with municipal corporations regardless of consequences. Legislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution. ... The respondents find another barrier to the trial of this case in Colegrove v. Green, 328 U.S. 549 (1946). . . . In that case the Court passed on an Illinois law governing the arrangement of congressional districts within that State. The complaint rested upon the disparity of population between the different districts which rendered the effectiveness of each individual’s vote in some districts far less than in others. This disparity came to pass solely through shifts in population between 1901, when Illinois organized its congressional districts, and 1946, when the complaint was lodged. During this entire period elections were held under the districting scheme devised in 1901. The Court affirmed the dismissal of the complaint on the ground that it presented a subject not meet for adjudication. The decisive facts in this case . . . are wholly different from the considerations found controlling in Colegrove. . . . The petitioners here complain that affirmative legislative action deprives them of their votes and the consequent advantages that the ballot affords. When a legislature thus singles out a readily isolated segment of a racial minority for special discriminatory treatment, it violates the Fifteenth Amendment. In no case involving unequal weight in voting distribution that has come before the Court did the decision sanction a differentiation on racial lines whereby approval was given to unequivocal withdrawal of the vote solely from colored citizens. Apart from all else, these considerations lift this controversy out of the so-called “political” arena and into the conventional sphere of constitutional litigation. . . . A statute which is alleged to have worked unconstitutional deprivations of petitioners’ rights is not immune to attack simply because the mechanism employed by the legislature is a redefinition of municipal boundaries. According to the allegations here made, the Alabama Legislature has not merely re590

drawn the Tuskegee city limits with incidental inconvenience to the petitioners; it is more accurate to say that it has deprived the petitioners of the municipal franchise and consequent rights and to that end it has incidentally changed the city’s boundaries. While in form this is merely an act redefining metes and bounds, if the allegations are established, the inescapable human effect of this essay is to despoil colored citizens, and only colored citizens, of their theretofore enjoyed voting rights. That was not Colegrove v. Green. When a State exercises power wholly within the domain of state interest, it is insulated from federal judicial view. But such insulation is not carried over when the state power is used as an instrument for circumventing a federally protected right. . . . For these reasons, the principal conclusions of the District Court and the Court of Appeals are clearly erroneous and the decision below must be reversed. JUSTICE WHITTAKER, concurring: I concur in the Court’s judgment, but not in the whole of its opinion. It seems to me that the decision should be rested not on the Fifteenth Amendment, but rather on the Equal Protection Clause of the Fourteenth Amendment to the Constitution. I am doubtful that the averments of the complaint, taken for present purposes to be true, show a purpose by Act No. 140 to abridge petitioners’ “right . . . to vote,” in the Fifteenth Amendment sense. It seems to me that the “right . . . to vote” that is guaranteed by the Fifteenth Amendment is but the same right to vote as is enjoyed by all others within the same election precinct, ward or other political division. And, inasmuch as no one has the right to vote in a political division, or in a local election concerning only an area in which he does not reside, it would seem to follow that one’s right to vote in Division A is not abridged by a redistricting that places his residence in Division B if he there enjoys the same voting privileges as all others in that Division, even though the redistricting was done by the State for the purpose of placing a racial group of citizens in Division B rather than A. But it does seem clear to me that accomplishment of a State’s purpose–to use the Court’s phrase–of “fencing Negro citizens out of” Division A and into Division B is an unlawful segregation of races of citizens, in violation of the Equal Protection Clause of the Fourteenth Amendment . . . and, . . . I would think the decision should be rested on that ground. . . .

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FROM THE STREETS TO THE CONGRESS: RENEWING THE FIFTEENTH AMENDMENT’S COMMITMENT FEATURED CASE

South Carolina v. Katzenbach The civil rights movement brought into sharp focus the limitations of judicial declarations. The decisions of the Supreme Court were not sufficient to secure the vote for African Americans. African American leaders and civil rights activists strategically marshalled forces in both the presidential and congressional arenas. The renewing of the protection of the Fifteenth Amendment required much more than pronouncements from the Supreme Court. This multipronged effort produced the Civil Rights Acts of 1957, 1960, and 1964 as well as the Voting Rights Act of 1965 and the various extensions of the Voting Rights Acts of 1965. These pieces of legislation meant that, to some extent, the Congress and President were on board to bring the ballot to African Americans. These legislative enactments also pointed to the ingrained antidemocratic resistance that opposed the voting rights of blacks. The passage of these various acts underscored the continued role of litigation in the area of voting and representation. In United States v. Raines (362 U.S. 58, 1960), the Supreme Court was asked to decide the constitutionality of the Civil Rights Act of 1957. The Attorney General brought suit in a federal district court against the state of Georgia. He sought to enjoin state officials from discriminating against African Americans who desired to vote1. The District Court dismissed the complaint on the ground that the provision of the Civil Rights Act of 1957 which authorized the Attorney General to bring the suit was unconstitutional. Speaking for the Supreme Court, Justice Brennan held that discrimination on the basis of race or color by state officials “within

1 The 1957 act created a Civil Rights Commission and charged it with, among other duties, gathering evidence of denials of the right to vote. More significantly, blacks were relieved of the burden of filing their own lawsuits, as the Attorney General was empowered to seek injunctions against those conspiring to deny anyone the right to vote. The 1960 act continued to rely on the courts. After the Attorney General had fulfilled his or her duties and had found a persistent pattern of discrimination, federal district judges were empowered to appoint referees to register qualified persons to vote in both federal and state elections.

the course of their official duties” constituted state action. Moreover, the Fourteenth Amendment must be obeyed by both “high and low” officials. Brennan argued that Congress is empowered to prevent “constitutional violations of every such state official without regard to the presence of other authority in the state that might possibly revise their action.” He also insisted that Congress has the power to protect “constitutional guarantees, including those that bear directly on private rights.” United States v. Thomas (362 U.S. 58, 1960) involved the issue of whether the Attorney General has the authority to bring civil suit to prevent discriminatory removal of blacks from voting rolls. The Supreme Court concluded that the Attorney General does have such authority. After the 1964 elections, there was considerable evidence that the rights of African Americans to vote still had not been secured in many areas of the South. The registration machinery was still in the hands of state and local officials, most of whom were opposed to black voting rights. At President Johnson’s urging and following massive demonstrations in the South, Congress passed a comprehensive Voting Rights Act in 1965. The act’s major improvement over the earlier laws was the provision for federal machinery for voter registration. In addition, the act suspended the use of literacy, “understanding,” and other tests in states and voting districts where fewer than 50 percent of the voting-age residents were registered in 1964 or had actually voted in the 1964 presidential election. Initially, the “coverage” formula made the act applicable to the states of Alabama, Georgia, Louisiana, Mississippi, South Carolina, Virginia, Alaska, and 26 counties in North Carolina and a few counties in other states. Criminal sanctions could be applied to anyone attempting to harm or threaten persons who were attempting to vote, to prevent them from voting, or to harm or hinder civil rights workers from assisting potential voters. Also the act directed the Justice Department to institute injunctive action against the enforcement of the poll tax requirement in the five states that retained it. The Voting Rights Act of 1965 represents the most comprehensive legislative effort produced by the civil rights movement, the president, and Congress. It struck at the “nerve center” of the denial of the ballots and political empowerment of African Americans. The Voting Rights Act of 1965 expanded the power of the federal government and restricted the power and decision making of state and local officials. The legislation assigned the federal government the

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oversight and administration of voting qualifications and election laws in covered states and jurisdictions. Not unexpectedly, officials in Louisiana, Alabama, and Mississippi immediately challenged the Act’s constitutionality. The challenges came in the form of state court injunctions that forbade local election officials to enter on voting rolls the names of persons who were registered by federal examiners. Instead of instituting actions under Section 12(d) of the Act to dissolve these injunctions, the Attorney General filed a motion to bring action in the original jurisdiction of the Supreme Court against the three states. In the meantime, South Carolina brought an injunction action in the original jurisdiction of the Court against enforcement of the Act by the Attorney General. After considering the complex jurisdictional questions posed by these simultaneous actions, the Supreme Court agreed to hear the South Carolina suit—South Carolina v. Katzenbach (383 U.S. 301, 1966)—and upheld the Act primarily on the authority of Congress to enact legislation to enforce the Fifteenth Amendment. Soon after the South Carolina decision, the Court struck down the poll tax as violative of the equal protection clause in Harper v. Virginia Board of Elections (383 U.S. 663, 1966). Justice William O. Douglas, speaking for the Court, maintained that “voter qualifications have no relation to wealth nor to paying or not paying” a tax, and concluded that “wealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process.” The 1965 Voting Rights Act also contained a provision that was designed to aid Spanish-speaking voters. It provides that no person who has obtained at least a sixth grade education from an accredited school in the United States or its territories, in which the predominant classroom language was not English, shall be denied the right to vote because of his or her inability to read or write English. The provision had particular relevance for New York City with its large Puerto Rican population, where literacy in English had been required as a condition for voting. In Katzenbach v. Morgan (384 U.S. 641, 1966), the Supreme Court reversed a ruling of the District Court for the District of Columbia and upheld the provision’s constitutionality as a valid exercise of congressional power to enforce the Equal Protection Clause of the Fourteenth Amendment. Probably the 592

most controversial provision of the Act is Section 5. It requires that “covered” jurisdictions must get from the District Court for the District of Columbia a declaratory judgment that an electoral change “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” But the act enables speedier implementation of electoral changes by allowing states to submit them and get approval from the Attorney General. Should the Attorney General approve the changes, private parties may still institute court challenges thereto. (See Allen v. State Board of Election, 393 U.S. 544, 1969; Perkins v. Matthews, 400 U.S. 379, 1971; and Georgia v. United States, 411 U.S. 622, 1973.) The electoral law and procedural changes that have been reviewed under Section 5 undoubtedly reflect the concern of white policy makers about the monumental increases of African American registered voters in a number of governmental units. The most widely used changes to resist possible African American electoral successes in such areas include the switch from single-member to multimember districts with at-large election schemes and central city annexation of white suburban areas. In addition, white officials did not lose sight of the possibilities that reapportionment offered in their actions to limit black electoral strength. An early example of the switch to an at-large scheme that was challenged under Section 5 was Fairley v. Patterson (consolidated with Allen v. State Board of Elections and two other cases challenging voting procedure changes, 393 U.S. 544, 1969), in which the court struck down a Mississippi statute that permitted a switch from single-member election districts to countywide at-large elections for county supervisors. Chief Justice Warren rejected the argument advanced by the state officials that Section 5 was not intended to apply to a change from district to at-large voting, arguing that the legislative history of the section underscores clearly the intention of Congress to have such a change subject to its scrutiny. The type of changes at issue, Warren concluded, could dilute the voting strength of African Americans and nullify their ability to elect candidates of their choice. Two years after this ruling, the Court considered the multimember district scheme in the context of the Fourteenth Amendment in Whitcomb v. Chavis (403 U.S. 124, 1971). At issue was an Indiana legislative districting plan that provided for a mixture of single- and multimember districts. In rejecting the

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claim of black voters in the Indianapolis “ghetto” that multimember districting (joining them with larger groups of white voters) unconstitutionally diluted their voting strength, the Court held that such districts are not inherently unconstitutional simply because the proportion of black voters is insufficient to elect a black legislator. Justice Byron White, who spoke for the majority on the issue, noted that because there had been no finding that African Americans “had less opportunity than did [white] residents [of the multimember district] to participate in the political process and to elect legislators of their choice,” the invidious discrimination that was required to sustain a Fourteenth Amendment violation had not been proved. He concluded that the underrepresentation alleged by African American voters was more the result of losing elections than the result of any “built-in bias.” To White, the “cancelling out” of African American voting strength that had been found by the lower court was “a mere euphemism for political defeat at the polls.” Justice Douglas was joined in dissent by Justices Brennan and Marshall. They contended that “the [essential] test for multimember districts is whether there are invidious effects.” They had little doubt that these effects were present because, to them, the effect of the plan was to “purposively wash blacks out of the system.” Two years later, the Court applied its Whitcomb standards in White v. Regester (412 U.S. 755, 1973) in the election of state legislators from the multimember districts in two Texas counties. The Court examined the history of African American and Mexican American political participation in the two counties, within the context of the multimember scheme: many years of official segregation; only a small number of African Americans (only two since Reconstruction) elected from the area; white-dominated slate-making; and technical rules of the electoral process. Then the Court concluded that the Texas legislative apportionment plan was invidiously discriminatory in violation of the equal protection clause.2 The Court continued to apply the demanding standard which required proof of purposeful dis2

The Court of Appeals for the Fifth Circuit formulated and set forth specific guidelines for measuring vote dilution in Zimmer v. McKiethen (485 F.2d 1297, 1973). These included factors such as 1) lack of access to the slate-making process, 2) a history of locking blacks out of the electoral process, and 3) a state policy underlying the preference for multimember districts and at-large voting schemes.

crimination in challenges to multimember, at-large election schemes in City of Mobile, Alabama v. Bolden (446 U.S. 55, 1980) and Rogers v. Herman Lodge (458 U.S. 613, 1982). In the Mobile case, African Americans constituted 40 percent of the city’s population but had never been elected to its three-member city commission, allegedly because of its at-large election scheme. Relief was granted by the district court which found that the at-large election system discriminated against African Americans. The Supreme Court’s reversal that followed reiterated the need to prove purposeful discrimination to sustain a Fourteenth or Fifteenth Amendment violation, as well as a violation of the Voting Rights Act, and the record contained no such proof. In the Rogers case, however, the Court held that the district court’s findings about the Burke County, Georgia, scheme were sufficient to support the existence of intentional and purposeful discrimination. The more exacting standard of proof proffered by the Court in the Mobile case was overcome by Congress in its 1982 Voting Rights Act extension legislation, which amended Section 2 to allow a violation to be proven by showing that the electoral processes in question have a discriminatory effect or result. To date, the Court has not adopted the less demanding standard in cases in which only constitutional challenges are raised. Hence, for people who challenge electoral processes and procedures as discriminatory, the most viable option will undoubtedly be to bring those actions under Section 2, which allows courts to review the “totality of circumstances” in applying the “results” test. The Court advanced a “non-retrogression” standard in a reapportionment challenge brought under Section 5 in Beer v. United States (425 U.S. 130, 1976). In that case, African American voters alleged that the New Orleans City Council reapportionment action following the 1970 census was invidiously discriminatory because the five single-member election districts were drawn in such a fashion as to preclude the election of African American candidates in all except one, although African Americans constituted 45 percent of the city’s population. Furthermore, they asserted that the discrimination was compounded by requiring two of the seven members to be elected at-large. Considering the historical position of African Americans in New Orleans politics, the Court concluded that their voting strength had been enhanced by the reapportionment, as there

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would be an increase of black representation in the city council—from none to one member. To be sure, the Court accepted a plan with an obvious discriminatory effect, because it did not result in “retrogression” in the position of blacks in city council elections.3 Black voters have continued to complain that some at-large electoral mechanisms have adversely diluted their voting strength, blocking their chances of winning office in such jurisdictions. In its most definitive statement on the issue, the Court held in Thornburg v. Gingles (478 U.S. 30, 1986) that vote dilution charges flowing from the implementation of a multimember district election mechanism adopted by North Carolina for the election of some state legislators after the 1980 census were actionable under Section 2 of the Voting Rights Act. To be successful in such an action, however, the plaintiffs “must demonstrate that, under the totality of such circumstances,” the employment of the multimember scheme produces “unequal access to the electoral process.” “The essence of such a claim,” said Justice Brennan, is that the multimember mechanism “interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” He asserted that critical factors in demonstrating such a claim are (1) lingering effects of past discrimination, (2) the extent of racially polarized voting in the electoral jurisdiction, (3) the appeal to racial bias in the election campaigns, and (4) a pattern of racial bloc voting over an extended period. He concluded that when the district court, considering “the totality of circumstances,” found that these factors “acted in concert with the multimember districting scheme to impair the ability of geographically insular and politically cohesive groups of black voters to participate equally in the political process and to elect candidates of their choice,” its finding of illegal vote dilution in violation of Section 2 of the Voting Rights Act was appropriate. Whereas the multimember, at-large election schemes were used in some jurisdictions to minimize black electoral advances, political strategists in other areas turned to territorial annexation to achieve the same objective. In 1969, the city of Richmond, 3 Cf. City of Lockhart v. United States (460 U.S. 125, 1983), in which the Court held that although the city’s revised election plan did not allow improvement of the voting strength of Mexican Americans, the revision did not violate Section 2 of the Voting Rights Act because it did not result in any retrogression of their position.

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Virginia, annexed approximately 23 miles of surrounding Chesterfield County. Before the annexation, 52 percent of the city’s population was black, but the annexation brought in an additional 45,705 whites and only 1557 blacks, thereby decreasing the proportion of blacks in the city to 42 percent. Under Section 5 of the 1965 Voting Rights Act, the city’s request for the approval of the annexation action was initially denied by the Attorney General because it would dilute black voting strength. At the Attorney General’s suggestion, Richmond eliminated an existing at-large election structure and replaced it with single-member districts to overcome the adverse racial impact of the annexation. However, when the annexation and the system of nine wards established for elections were submitted to the District Court of the District of Columbia, both were found defective under Section 5 because of the “invidious purpose underlying the annexation” and the failure of the ward election plan to “compensate for the [resulting] dilution of black voting power.” But in a five-to-three decision (Justice Powell did not participate) in City of Richmond, Va. v. United States (422 U.S. 387, 1975), the Supreme Court set aside this ruling. Justice White reasoned that the annexation, which had reduced black political strength, was not defective under Section 5 of the Voting Rights Act because the subsequent electoral structure “fairly recognizes [black] political strength.” The majority made it clear that it could not accept the argument that the right to vote was abridged because blacks had fewer seats on a city council after annexation. To them, the crucial issue was whether the election system adopted for the selection of the council afforded blacks “representation reasonably equivalent to their political strength in the enlarged community.” In the end, the Court remanded the case to the district court to consider the issue of purposeful discrimination, the record being incomplete on it. (But compare this outcome with the Court’s holding in City of Rome, Ga. v. United States, 446 U.S. 156, 1980). When the nine-ward system was finally made operational by the district court in August 1967, the wards were fashioned so that four contained black majorities, four contained white majorities, and one was structured as a “swing” district containing approximately equal numbers of whites and blacks. In the first election under the newly structured wards, held on March 1, 1977, blacks were elected to five of the nine seats. The Supreme Court appeared to give Section 5 of the Voting Rights Act a more expansive interpretation

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in upholding New York’s 1974 state legislative reapportionment scheme, which was designed to enhance black representation. In a seven-to-one decision (Justice Marshall did not participate) in United Jewish Organizations of Williamsburgh, Inc. v. Carey (U.S. 144, 1977), the Court rejected the challenge of a Hasidic Jewish community, which argued that structuring districts to produce black majorities diminished the voting strength of the Hasidic Jews by dispersing them into two districts. In upholding the legislature’s authority to consider race in its redistricting efforts, the justices were in disagreement about the supporting rationale; hence, no opinion commanded majority support. Justice White announced the judgment in an opinion that was fully supported by Justice Stevens and partly supported by Justices Brennan, Blackmun, and Rehnquist. He contended that the Constitution was not abridged by New York in its effort to comply with Section 5 of the Voting Rights Act of 1965 by establishing specific minority racial majorities in legislative districts. The creation of nonwhite majorities in the districts that were involved, he argued, “was reasonably related to the constitutionally valid statutory mandate of maintaining nonwhite voting strength.” Justices Brennan and Blackmun did not agree with White, however, when he argued that even if there were no statutory support for the reapportionment, New York’s use of racial quotas to establish nonwhite majority districts did not offend the Fourteenth and Fifteenth Amendments. In making this argument he emphasized that the redistricting “did not minimize or unfairly cancel out white voting strength.” In his dissent, Chief Justice Burger was troubled by the aura of the “racial gerrymander” that he felt resulted from setting racial quotas of voters. He contended that New York should undo the racial injustices of the past by reapportioning along racially neutral lines. The chief justice was philosophically disturbed at what fragmented representation by race does to the “American melting-pot ideal.” Although African-American representation in the legislative and executive arenas was enhanced significantly by the Court’s expansive application of the Voting Rights Act, their successes in states judicial elections were scant indeed. Electoral arrangements such as the runoff election, majority vote approval, and multimember districts prevented most AfricanAmerican judicial candidates from being successful. Entrenched political elites had resisted the application of the provisions of the Voting Rights Act to

elective judicial positions by arguing that the act applied to legislative representation only. But challenges to that construction were mounted in Georgia, Louisiana, and Texas in the late 1980s, leading to the Supreme Court’s decisions in Georgia State Board of Elections v. Brooks (111 S. Ct. 288, 1990), Chisom v. Roemer (501 U.S. 380, 1991), and Houston Lawyers Association v. Texas Attorney General (501 U.S. 419, 1991), in which the Court held that judicial elections are covered by Section 2 of the Voting Rights Act. Speaking for the six-to-three majority in Roemer, Justice John Paul Stevens focused on legislative intent and concluded that Congress had employed terms such as “representatives of their choice” and “standard, practice, or procedure” as “inclusive” terms that without doubt embrace judicial elections. Hence, the Voting Rights Act opened up another electoral arena for greater AfricanAmerican representation. Immediately after the judgeship decisions, the Court refused to extend Section 5 of the act to certain local governmental structural changes in financial management in two decisions: Presley v. Etowah County Commission (502 U.S. 491, 1992) and Mack v. Russell County Commission (112 S. Ct. 820, 1992). In those cases, when African Americans were elected to the office of county commissioner, the revenue allocation authority that had traditionally been assigned to the commissioner for use in his or her district was transferred to the full commission, where allocation decisions for each district would be made by the white majority. Rejecting the plea of the African-American commissioners that the restructuring of the revenue allocation system should be considered the kind of change that was contemplated in Section 5 of the Voting Rights Act (and thus should be subject to the approval of the Attorney General before implementation), Justice Kennedy asserted for the six-to-three majority that such internal procedural changes in a government’s financial management could not be construed as “voting changes.” For him, redistributing power among officials of a governmental body had no direct relationship to voting for office. In a dissenting opinion that was joined by Justices Blackmun and White, Justice Stevens noted the timing of the action to transfer the financial allocating authority from individual commissioners to the commission itself. The critical factor producing that change was the election of an African American for the first time. In the end, Justice Stevens thought the Court should have

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Table 14.3 Total Section 5 Changes Received By The Attorney General 1965 Through 2008* TYPE Redistricting Annexation Polling Place Precinct Reregistration or Voter Purge Incorporation Bilingual Procedures Method of Election Form of Government Consolidation or Division of Political Units Special Election Voting Methods Candidate Qualifications Voter Registration Procedures Miscellaneous Election Law Not Within the Scope of Section 5 TOTALS 1965–2009*

Totals 1965–69

Totals 1970–79

Totals 1980–89

Totals 1990–99

Totals 2000–09*

TOTAL 1965–2009*

18 5 17 29 1

993 6,039 6,373 2,168 1,071

2,835 26,168 40,068 19,382 160

3,456 31,963 41,257 26,824 101

3,413 40,131 30,929 15,524 36

10,715 104,306 118,644 63,927 1,369

1 0 0 0 0

57 1,548 0 0 0

1,378 1,432 4,634 1,665 199

1,588 997 7,819 519 629

1,833 1,508 5,878 384 779

4,857 5,485 18,331 2,568 1,607

0 0 0 0

0 0 0 0

7,126 1,525 478 20,458

11,879 1,697 2,004 19,117

13,913 6,258 1,555 4,641

32,918 9,480 4,037 44,216

17 206 29

676 7,568 642

13,249 0 0

23,190 0 0

41,099 0 0

78,231 7,774 671

323

27,135

140,757

173,040

167,881

509,136

deferred to the statutory interpretation urged by the Bush administration that would have subjected the change at issue to preclearance under Section 5. There is little doubt that the continued federal scrutiny of state and local election law changes (including legislative reapportionment) has blunted attempts to evade the Voting Rights Act. Table 14.3 indicates the scope of that scrutiny from 1965 through 2008. Certainly, blacks and other minorities consider the maintenance of such a review mechanism essential in order to realize their full potential as participants in the political processes. Consequently, the preclearance under Section 5 of the Voting Rights Act of 1965 was originally intended to be effective for a five-year period. Congress has extended Section 5 three times at the vigorous insistence of civil rights groups and their supporters, who feared that removal of federal scrutiny of the electoral policies and practices of the “covered 596

states” would restore the racially discriminatory requirements that were in general use prior to the act. Thus, in 1970 Congress extended the Act for another five years, brushing aside proposals of the Nixon administration that would have significantly weakened the Act by altering the Section 5 preclearance provision. This ritual was repeated just before the expiration date in 1975, when the Act was renewed for seven years.4 Significant changes produced by these renewals include a nationwide ban on the use of literacy tests, an updating of the time to be used in the “triggering” mechanism of Section 4 of the Act that sets forth the procedure for determining which states and jurisdictions therein are to be “covered,” and a 4

For an insightful analysis of the politics of the Voting Rights Act renewal actions, see Charles S. Bullock and Charles M. Lamb, Implementation of Civil Rights Policy (Monterey, CA: Brooks/Cole Publishing Co., 1984), Ch. 2.

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provision for the use of bilingual election materials in “covered” jurisdictions that contain large numbers of voters who do not read English. The most controversial extension struggle came in 1982 under the Reagan administration. Sections 2 and 5 were the focus of much of the debate. The 1980 Supreme Court decision in Mobile triggered the debate on the standard to be used to prove discriminatory actions prohibited in Section 2. In Mobile, the Court held that proof of a “discriminatory intent” was required to prove a voting discrimination violation under the Fifteenth Amendment. But the act’s supporters were successful in getting Congress to reject this more exacting standard of proof to sustain violations of the Voting Rights Act and included in Section 2 the less exacting “discrim-

inatory effect” standard for proving a discriminatory violation. The Section 5 preclearance provision was extended for twenty-five years, thus continuing justice department scrutiny of election law changes in the “covered” states and jurisdictions. A controversial “bail-out” provision that became effective in 1984 makes it possible for “covered” states to be relieved of Section 5 scrutiny after they prove to a three-judge panel in the District of Columbia that they have a clean record in voting rights actions for the previous ten-year period. In 2006, the Congress extended the preclearance provision for twenty-five more years on the basis of voting conditions in 1972. In 2006, the Congress extended the Voting Rights Act of 1965 for twenty-five more years on the basis of voting conditions in 1972.

SOUTH CAROLINA V. KATZENBACH 383 U.S. 301; 15 L. ED. 769; 86 S. CT. 803 (1966) CHIEF JUSTICE WARREN delivered the opinion of the Court. JUSTICE BLACK filed an opinion concurring in part and dissenting in part. CHIEF JUSTICE WARREN delivered the opinion of the Court. By leave of the Court . . . South Carolina has filed a bill of complaint, seeking a declaration that selected provisions of the Voting Rights Act of 1965 violate the Federal Constitution, and asking for an injunction against enforcement of these provisions by the Attorney General. . . . Recognizing that the questions presented were of urgent concern to the entire country, we invited all of the States to participate in this proceeding as friends of the Court. A majority responded by submitting or joining in briefs on the merits, some supporting South Carolina and others the Attorney General.* Seven of *States supporting South Carolina were Alabama, Georgia, Louisiana, Mississippi, and Virginia. States supporting the Attorney General were California, Illinois, and Massachusetts, joined by Hawaii, Indiana, Iowa, Kansas, Maine, Maryland, Michigan, Montana, New Hampshire, New Jersey, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Vermont, West Virginia, and Wisconsin.

these States also requested and received permission to argue the case orally at our hearing. Without exception, despite the emotional overtones of the proceeding, the briefs and oral arguments were temperate, lawyerlike and constructive. . . . The Voting Rights Act was designed by Congress to banish the blight of racial discrimination in voting, which has infected the electoral process in parts of our country for nearly a century. The Act creates stringent new remedies for voting discrimination where it persists on a pervasive scale, and in addition the statute strengthens existing remedies for pockets of voting discrimination elsewhere in the country. Congress assumed the power to prescribe these remedies from Section 2 of the Fifteenth Amendment, which authorizes the National Legislature to effectuate by “appropriate” measures the constitutional prohibition against racial discrimination in voting. We hold that the sections of the Act which are properly before us are an appropriate means for carrying out Congress’ constitutional responsibilities and are consonant with all other provisions of the Constitution. We therefore deny South Carolina’s request that enforcement of these sections of the Act be enjoined. The constitutional propriety of the Voting Rights Act of 1965 must be judged with reference to the

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historical experience which it reflects. Before enacting the measure, Congress explored with great care the problem of racial discrimination in voting. . . . At the close of . . . deliberations, the verdict of both chambers was overwhelming. The House approved the bill by a vote of 328–74, and the measure passed the Senate by a margin of 79–18. Two points emerge vividly from the voluminous legislative history of the Act contained in the committee hearings and the floor debates. First: Congress felt itself confronted by an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution. Second: Congress concluded that the unsuccessful remedies which it had prescribed in the past would have to be replaced by sterner and more elaborate measures in order to satisfy the clear commands of the Fifteenth Amendment. . . . [Here follows a review of Congressional remedies from 1870 to 1964.] ... Despite the earnest efforts of the Justice Department and of many federal judges, these new laws [enacted in 1956, 1960, and 1964] have done little to cure the problem of voting discrimination. According to estimates by the Attorney General during hearings on the Act, registration of voting-age Negroes in Alabama rose only from 14.2 percent to 19.4 percent between 1958 and 1964; in Louisiana it barely inched ahead from 31.7 percent to 31.8 percent between 1956 and 1965; and in Mississippi it increased only from 4.4 percent to 6.4 percent between 1954 and 1964. In each instance, registration of voting-age whites ran roughly 50 percentage points or more ahead of Negro registration. The previous legislation has proved ineffective for a number of reasons. Voting suits are unusually onerous to prepare, sometimes requiring as many as 6000 man-hours spent combing through registration records in preparation for trial. Litigation has been exceedingly slow, in part because of the ample opportunities for delay afforded voting officials and others involved in the proceedings. Even when favorable decisions have finally been obtained, some of the States affected have merely switched to discriminatory devices not covered by the federal decrees or have enacted difficult new tests designed to prolong the existing disparity between white and Negro registration. Alternatively, certain local officials have defied and evaded court orders or have 598

simply closed their registration offices to freeze the voting rolls. The provision of the 1960 law authorizing registration by federal officers has had little impact on local maladministration because of its procedural complexities. ... The Voting Rights Act of 1965 reflects Congress’ firm intention to rid the country of racial discrimination in voting. The heart of the Act is a complex scheme of stringent remedies aimed at areas where voting discrimination has been most flagrant. Section 4(a)–(d) lays down a formula defining the States and political subdivision to which these new remedies apply. The first of the remedies, contained in Section 4(a), is the suspension of literacy tests and similar voting qualifications for a period of five years from the last occurrence of substantial voting discrimination. Section 5 prescribes a second remedy, the suspension of all new voting regulations pending review by federal authorities to determine whether their use would perpetuate voting discrimination. The third remedy, covered in Sections 6(b), 7, 9, and 13(a), is the assignment of federal examiners on certification by the Attorney General to list qualified applicants who are thereafter entitled to vote in all elections. Other provisions of the Act prescribe subsidiary cures for persistent voting discrimination. Section 8 authorizes the appointment of federal poll-watchers in places to which federal examiners have already been assigned. Section 10(d) excuses those made eligible to vote in sections of the country covered by Section 4(b) of the Act from paying accumulated past poll taxes for state and local elections. Section 12(e) provides for balloting by persons denied access to the polls in areas where federal examiners have been appointed. The remaining remedial portions of the Act are aimed at voting discrimination in any area of the country where it may occur. Section 2 broadly prohibits the use of voting rules to abridge exercise of the franchise on racial grounds. Sections 3, 6(a), and 13(b) strengthen existing procedures for attacking voting discrimination by means of litigation. Section 4(e) excuses citizens educated in American schools conducted in a foreign language from passing English-language literacy tests. Section 10(a)–(c) facilitates constitutional litigation challenging the imposition of all poll taxes for state and local elections. Sections 11 and 12(a)–(d) authorize civil and criminal

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sanctions against interference with the exercise of rights guaranteed by the Act. . . . The only sections of the Act to be reviewed at this time are Sections 4(a)–(d), 5, 6(b), 7, 9, 13(a), and certain procedural portions of Section 14, all of which are presently in actual operation in South Carolina. We turn now to a . . . description of these provisions and their present status. Coverage Formula The remedial sections of the Act assailed by South Carolina automatically apply to any State, or to any separate political subdivision such as a county or parish, for which two findings have been made: (1) the Attorney General has determined that on November 1, 1964, it maintained a “test or device,” and (2) the Director of the Census has determined that less than 50 percent of its voting-age residents were registered on November 1, 1964, or voted in the presidential election of 1964. These findings are not reviewable in any court and are final upon publication in the Federal Register. ... South Carolina was brought within the coverage formula of the Act on August 7, 1965, pursuant to appropriate administrative determinations which have not been challenged in this proceeding. On the same day, coverage was also extended to Alabama, Alaska, Georgia, Louisiana, Mississippi, Virginia, twenty-six counties in North Carolina, and one county in Arizona. Two more counties in Arizona, one county in Hawaii, and one county in Idaho were added to the list on November 19, 1965. Thus far Alaska, the three Arizona counties, and the single county in Idaho have asked the District Court for the District of Columbia to grant a declaratory judgment terminating statutory coverage. Suspension of Tests In a State or political subdivision covered by Section 4(b) of the Act, no person may be denied the right to vote in any election because of his failure to comply with a “test or device.” Section 4(a). On account of this provision, South Carolina is temporarily barred from enforcing the portion of its voting laws which requires every applicant for registration to show that he: Can both read and write any section of [the State] Constitution submitted to [him] by the registration

officer or can show that he owns, and has paid all taxes collectible during the previous year on, property in this State assessed at three hundred dollars or more. SC Code Ann. Section 23–624) (1965 Supp.). The Attorney General has determined that the property qualification is inseparable from the literacy test, and South Carolina makes no objection to this finding. Similar tests and devices have been temporarily suspended in the other sections of the country listed above. Review of New Rules In a State or political subdivision covered by Section 4(b) of the Act, no person may be denied the right to vote in any election because of his failure to comply with a voting qualification or procedure different from those in force on November 1, 1964. This suspension of new rules is terminated, however, under either of the following circumstances: (1) if the area has submitted the rules to the Attorney General, and he had not interposed an objection within 60 days, or (2) if the area has obtained a declaratory judgment from the District Court for the District of Columbia, determining that the rules will not abridge the franchise on racial grounds. . . . South Carolina altered its voting laws in 1965 to extend the closing hour at polling places from 6 P.M. to 7 P.M. . . . the Attorney General . . . does not challenge the amendment. There are indications in the record that other sections of the country listed above have also altered their voting laws since November 1, 1964. Federal Examiners In any political subdivision covered by Section 4(b) of the Act, the Civil Service Commission shall appoint voting examiners whenever the Attorney General certifies either of the following facts: (1) that he has received meritorious written complaints from at least 20 residents alleging that they have been disenfranchised under color of law because of their race, or (2) that the appointment of examiners is otherwise necessary to effectuate the guarantees of the Fifteenth Amendment. In making the latter determination, the Attorney General must consider, among other factors, whether the registration ratio of non-whites to whites seems reasonably attributable to racial discrimination, or whether there is substantial evidence of good-faith efforts to comply with the Fifteenth Amendment. . . .

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. . . Any person who meets the voting requirements of state law, insofar as these have not been suspended by the Act, must promptly be placed on a list of eligible voters. . . . Any person listed by an examiner is entitled to vote in all elections held more than 45 days after his name has been transmitted. . . . On October 30, 1965, the Attorney General certified the need for federal examiners in two South Carolina counties, and examiners appointed by the Civil Service Commission have been serving there since November 8, 1965. Examiners have also been assigned to 11 counties in Alabama, five parishes in Louisiana, and 19 counties in Mississippi. . . . These provisions of the Voting Rights Act of 1965 are challenged on the fundamental ground that they exceed the powers of Congress and encroach on an area reserved to the States by the Constitution. South Carolina and certain of the amici curiae also attack specific sections of the Act for more particular reasons. They argue that the coverage formula prescribed in Section 4(a)–(d) violates the principle of the equality of States, denies due process by employing an invalid presumption and by barring judicial review of administrative findings, constitutes a forbidden bill of attainder, and impairs the separation of powers by adjudicating guilt through legislation. They claim that the review of new voting rules required in Section 5 infringes Article III by directing the District Court to issue advisory opinions. They contend that the assignment of federal examiners authorized in Section 6(b) abridges due process by precluding judicial review of administrative findings and impairs the separation of powers by giving the Attorney General judicial functions; also that the challenge procedure prescribed in Section 9 denies due process on account of its speed. Finally, South Carolina and certain of the amici curiae maintain that Sections 4(a) and 5, buttressed by Section 14(b) of the Act, abridge due process by limiting litigation to a distant forum. . . . The objections to the Act which are raised under these provisions may . . . be considered only as additional aspects of the basic question presented by the case: Has Congress exercised its powers under the Fifteenth Amendment in an appropriate manner with relation to the States? The ground rules for resolving this question are clear. The language and purpose of the Fifteenth Amendment, the prior decisions construing its several provisions, and the general doctrines of constitutional interpretation, all point to one fundamental 600

principle. As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting. . . . Section 1 of the Fifteenth Amendment declares that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” This declaration has always been treated as self-executing and has repeatedly been construed, without further legislative specification, to invalidate state voting qualifications or procedures which are discriminatory on their face or in practice. . . . [S]tates “have broad powers to determine the conditions under which the right of suffrage may be exercised.” [However, t]he gist of the matter is that the Fifteenth Amendment supersedes contrary exertions of state power. “When a State exercised power wholly within the domain of state interest, it is insulated from federal judicial review. But such insulation is not carried over when state power is used as an instrument for circumventing a federally protected right.” Gomillion v. Lightfoot, 364 U.S. 347, 1960. . . . South Carolina contends that the [previous] cases are precedents only for the authority of the judiciary to strike down state statutes and procedures–that to allow an exercise of this authority by Congress would be to rob the courts of their rightful constitutional role. On the contrary, Section 2 of the Fifteenth Amendment expressly declares that “Congress shall have power to enforce this article by appropriate legislation.” By adding this authorization, the Framers indicated that Congress was to be chiefly responsible for implementing the rights created in Section 1. “It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation. Some legislation is contemplated to make the [Civil War] amendments fully effective.” Ex parte Virginia, 100 U.S. 339, 345, 1880. . . . Accordingly, in addition to the courts, Congress has full remedial powers to effectuate the constitutional prohibition against racial discrimination in voting. Congress has repeatedly exercised these powers in the past, and its enactments have repeatedly been upheld. . . . The basic test to be applied in a case involving Section 2 of the Fifteenth Amendment is the same as in all cases concerning the express powers of Congress with relation to the reserved powers of the

Protecting Against Bias: Segregation and Discrimination

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

States. CHIEF JUSTICE MARSHALL laid down the classic formulation, fifty years before the Fifteenth Amendment was ratified: Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. McCulloch v. Maryland, 4 Wheat 316, 421, 1819. . . .

The Court has subsequently echoed his language in describing each of the Civil War Amendments: Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power. Ex parte Virginia, 100 U.S., at 345.

...

... After enduring nearly a century of widespread resistance to the Fifteenth Amendment, Congress has marshalled an array of potent weapons against the evil, with authority in the Attorney General to employ them effectively. Many of the areas directly affected by this development have indicated their willingness to abide by any restraints legitimately imposed upon them. We here hold that the portions of the Voting Rights Act properly before us are a valid means for carrying out the commands of the Fifteenth Amendment. Hopefully, millions of nonwhite Americans will now be able to participate for the first time on an equal basis in the government under which they live. We may finally look forward to the day when truly “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” The bill of complaint is Dismissed.

Congress exercised its authority under the Fifteenth Amendment in an inventive manner when it enacted the Voting Rights Act of 1965. First: The measure prescribes remedies for voting discrimination which go into effect without any need for prior adjudication. This was clearly a legitimate response to the problem, for which there is ample precedent under other constitutional provisions. . . . Congress had found that case-by-case litigation was inadequate to combat widespread and persistent discrimination in voting, because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits. After enduring nearly a century of systematic resistance to the Fifteenth Amendment, Congress might well decide to shift the advantage of time and inertia from the perpetrators of the evil to its victims. . . . Second: The Act intentionally confines these remedies to a small number of States and political subdivisions which in most instances were familiar to Congress by name. This, too, was a permissible method of dealing with the problem. Congress had learned that substantial voting discrimination presently occurs in certain sections of the country, and it knew no way of accurately forecasting whether the evil might spread elsewhere in the future. In acceptable legislative fashion, Congress chose to limit its attention to the geographic areas where immediate action seemed necessary.

JUSTICE BLACK, concurring and dissenting: Though . . . I agree with most of the Court’s conclusions, I dissent from its holding that every part of Section 5 of the Act is constitutional. Section 4(a), to which Section 5 is linked, suspends for five years all literacy tests and similar devices in those States coming within the formula of Section 4(b). Section 5 goes on to provide that a State covered by Section 4(b) can in no way amend its constitution or laws relating to voting without first trying to persuade the Attorney General of the United States or the Federal District Court for the District of Columbia that the new proposed laws do not have the purpose and will not have the effect of denying the right to vote to citizens on account of their race or color. I think this section is unconstitutional on at least two grounds. The Constitution gives federal courts jurisdiction over cases and controversies only. If it can be said that any case or controversy arises under this section which gives the District Court for the District of Columbia jurisdiction to approve or reject state laws or constitutional amendments, then the case or controversy must be between a State and the United States Government. But it is hard for me to believe that a justiciable controversy can arise in the constitutional sense from a desire by the United States Government or some of its officials to determine in advance what legislative provisions a State may

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enact or what constitutional amendments it may adopt. If this dispute between the Federal Government and the States amounts to a case or controversy it is a far cry from the traditional constitutional notion of a case or controversy as a dispute over the meaning of enforceable laws or the manner in which they are applied. And if by this section Congress has created a case or controversy, and I do not believe it has, then it seems to me that the most appropriate judicial forum for settling these important questions is this Court acting under its original Art. III, Section 2, jurisdiction to try cases in which a State is a party. At least a trial in this Court would treat the States with dignity to which they should be entitled as constituent members of our Federal Union. The form of words and the manipulation of presumptions used in Section 5 to create the illusion of a case or controversy should not be allowed to cloud the effect of that section. By requiring a State to ask a federal court to approve the validity of a proposed law which has in no way become operative, Congress had asked the State to secure precisely the type of advisory opinion our Constitution forbids. . . . My second and more basic objection to Section 5 is that Congress has here exercised its power under Section 2 of the Fifteenth Amendment through the adoption of means that conflict with the most basic principles of the Constitution. As the Court says the limitations of the power granted under Section 2 are the same as the limitations imposed on the exercise of any of the powers expressly granted Congress by the Constitution. . . . Section 5, by providing that some of the States cannot pass state laws or adopt state constitutional amendments without first being compelled to beg federal authorities to approve their policies, so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal power almost meaningless. One of the most basic premises upon which our structure of government was founded was that the Federal Government was to have certain specific and limited powers and no others, and all other power was to be reserved either “to the States respectively, or to the people.” Certainly if all the provisions of our Constitution which limit the power of the Federal Government and reserve other power to the States are to mean anything, they mean at least that the States have power to pass laws and amend their constitutions without first sending their officials hundreds of miles away to beg federal authorities to approve them. Moreover, it seems to me 602

that Section 5 which gives federal officials power to veto state laws they do not like is in direct conflict with the clear command of our Constitution that “The United States shall guarantee to every State in this Union a Republican Form of Government.” I cannot help but believe that the inevitable effect of any such law which forces any one of the States to entreat federal authorities in faraway places for approval of local laws before they can become effective is to create the impression that the State or States treated in this way are little more than conquered provinces. And if one law concerning voting can make the States plead for this approval by a distant federal court or the United States Attorney General, other laws on different subjects can force the States to seek the advance approval not only of the Attorney General but of the President himself or any other chosen members of his staff. It is inconceivable to me that such a radical degradation of state power was intended in any of the provisions of our Constitution or its Amendments. Of course I do not mean to cast any doubt whatever upon the indisputable power of the Federal Government to invalidate a state law once enacted and operative on the ground that it intrudes into the area of supreme federal power. But the Federal Government has heretofore always been content to exercise this power to protect federal supremacy by authorizing its agents to bring lawsuits against state officials once an operative state law has created an actual case and controversy. A federal law which assumes the power to compel the States to submit in advance any proposed legislation they have for approval by federal agents approaches dangerously near to wiping the States out as useful and effective units in the government of our country. I cannot agree to any constitutional interpretation that leads inevitably to such a result. ... In this and other prior Acts Congress has quite properly vested the Attorney General with extremely broad power to protect voting rights of citizens against discrimination on account of race or color. Section 5 viewed in this context is of very minor importance and in my judgment is likely to serve more as an irritant to the States than as an aid to the enforcement of the Act. I would hold Section 5 invalid for the reasons stated above with full confidence that the Attorney General has ample power to give vigorous, expeditious and effective protection to the voting rights of all citizens.

Protecting Against Bias: Segregation and Discrimination

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

REAPPORTIONMENT AND RELATED PROBLEMS FEATURED CASES

Baker v. Carr; Shaw v. Reno Simultaneous with the voting rights revolution was the drive to reapportion state legislatures. Here was a controversy involving the failure of rural-oriented state legislatures to honor the reapportionment provisions of their state constitutions. This situation had caused cities and suburbs that had increased in population to become increasingly underrepresented in state legislatures, whereas areas whose populations had stood still or had decreased became increasingly overrepresented. For some time, the Supreme Court had refused to enter the controversy, relying mainly on the “political question” doctrine (Colegrove v. Green, 328 U.S. 549, 1946). And although Gomillion v. Lightfoot raised the political question issue anew, the Court was able to circumvent it by saying that, unlike in Colegrove, in which the state (Illinois) had failed to act, in Gomillion the state (Alabama) had taken “affirmative action” to deprive blacks of their right to vote. But in 1962, just two years after Gomillion, the Court found in Baker v. Carr (396 U.S. 186) that the “political question” doctrine was not a barrier to considering reapportionment because that doctrine, on close reexamination, had not even commanded a majority in Colegrove. In any event, the Court held in Baker that reapportionment was a justiciable (capable of being settled by law) question subject to judicial remedies. And the judicial remedy was not long in coming. On June 15, 1964, in Reynolds v. Sims (377 U.S. 533), the Court stated that the “one man, one vote” formula was the constitutional rule to be followed in the reapportionment of both houses of state legislatures. Subsequent Court decisions have generally applied this rule to other elective bodies. (See, for example, Avery v. Midland County, 390 U.S. 474, 1968. But compare and contrast Sailors v. Board of Education of Kent County, 387 U.S. 203, and Abate v. Mundt, 403 U.S. 182, 1971.) The Court, in effect, fashioned its Reynolds decision largely on the basis of two earlier cases, Gray v. Sanders (372 U.S. 368, 1963) and Wesberry v. Sanders (376 U.S. 1, 1964). In Wesberry, for example, the Court said that “while it may not be possible to draw congressional districts with mathematical precision . . . [the Constitution requires] as nearly as is practicable [that] one man’s vote in a congressional

election is to be worth as much as another’s.” The Court had occasion in Kirkpatrick v. Preisler (394 U.S. 526, 1969) to elucidate Wesberry’s “as nearly as practicable” standard. In Kirkpatrick, the Court rejected “Missouri’s argument that there is a fixed numerical or percentage population variance small enough to be considered de minimis and to satisfy without question the ‘as nearly as practicable’ standard.” That standard, said the Court, “requires that the state make a good-faith effort to achieve precise mathematical equality.” Cf. Wells v. Rockefeller (394 U.S. 542), decided the same day. But four years later, in Mahan v. Howell (410 U.S. 315, 1973), the Court noted the variety of factors that come into play in the apportionment of state and local legislative districts and refused to extend the more demanding Kirkpatrick equality standard to them. Consequently, the Court set aside a district court ruling that had struck down Virginia’s 1971 state legislative redistricting where the population variance between the largest and smallest districts was 16.4 percent. Justice William Rehnquist, speaking for the majority, condemned what he characterized as the “absolute equality” test of Kirkpatrick and Wells because its application would have the effect of “impair[ing] the normal function of state and local governments.” Noting that more flexibility is permissible in state than in congressional redistricting, Rehnquist concluded that the population variations resulted from Virginia’s effort to preserve “the integrity of political subdivision lines” and were “within tolerable constitutional limits.” See also Gaffney v. Cummings (412 U.S. 735, 1970), White v. Regester (412 U.S. 755, 1973), and Chapman v. Meier (420 U.S. 1, 1975), where more exacting standards are applied to judicially imposed reapportionment than to plans emanating from legislative bodies. When New Jersey’s congressional reapportionment action that followed the 1980 census came before the Court a decade later, in Karcher v. Daggett (462 U.S. 725, 1983), the five-to-four majority made it clear that the less exacting equality standard permitted in Mahan was not to be construed as a retreat from Kirkpatrick when states redraw their congressional districts. Justice William J. Brennan’s opinion for the majority underscored the “precise mathematical equality” standard that flows from Article 1, Section 2 of the Constitution and held that such a standard “permits only the limited population variances between congressional districts which are unavoidable despite a good-faith effort to

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achieve absolute equality.” He concluded that New Jersey’s action, where the population deviation between the largest and smallest districts was less than 1 percent (0.6984), did not meet the burden of demonstrating a “good-faith effort” to attain the precise equality standard. Although the Court had considered the issue of racial gerrymandering in a number of reapportionment actions since the decision in Gomillion v. Lightfoot in 1960, it was not until its ruling in Davis v. Bandemer (478 U.S. 109, 1986) that it made a comprehensive ruling on partisan political gerrymandering. There, in the context of a challenge to the 1981 Indiana legislative apportionment action, the Court made it clear that such challenges present justiciable causes under the equal protection clause of the Fourteenth Amendment. But having opened the courthouse door for such challenges, Justice White made it clear that the burden of proof of such a violation would be a heavy one. “The mere lack of proportional representation” or “intentional drawing of district boundaries for partisan ends and for no other reason” was not considered sufficient to establish proof of a constitutional violation. As the justice pointed out, the “mere fact that a particular apportionment scheme makes it more difficult for a particular group in a particular district to elect the representatives of its choice does not render that scheme constitutionally infirm.” He concluded that a violation is indicated “only when [an] electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.” Consequently, the majority was not convinced that the Indiana scheme produced such a result. Actions in other areas point to an “opening up” of the electoral process. In 1972, for example, the Court struck down lengthy residency requirements for voting in state elections as violative of the equal protection clause (Dunn v. Blumstein, 405 U.S. 330). Here the Court declared invalid Tennessee requirements that made one year of residency in the state and three months of residency in the county prerequisites for voting. Similarly, the Voting Rights Act Amendments of 1970 included a provision prohibiting “durational” residence requirements for voting in presidential elections. Specifically, states were precluded from closing voter registration more than 30 days prior to such elections. In adopting this policy, Congress specifically found that lengthy residency requirements do “not bear a reasonable relationship to 604

any compelling state interest in the conduct of presidential elections.” In addition, the 1970 amendments barred the use of literacy tests in all elections for a five-year period and lowered the voting age to eighteen years for national, state, and local elections. The Supreme Court, in Oregon v. Mitchell (400 U.S. 112, 1970), upheld the constitutionality of each of these amendments except the lowered voting age as applied to state and local elections. The Court reasoned that Congress did not possess the power to fasten such a requirement on the states and their local units. But the Twenty-Sixth Amendment to the Constitution, ratified in 1971, accomplished this objective of lowering the voting age to eighteen years for all elections. The rights of racial and ethnic minorities were dismantled under Section 5 of the Voting Rights Act of 1965. The Supreme Court opinions in Shaw v. Reno and Miller v. Johnson seemed to encourage litigation that challenged the creation of majorityminority districts under Section 5 of the Voting Rights Act of 1965. In Bush v. Vera (116 S. Ct. 1941, 1996), the Supreme Court affirmed the judgment of the three-judge district court that had held three of the majority-minority districts promulgated by the Texas legislature following the 1990 census in compliance with the Voting Rights Act of 1965. Two of the three districts were majority African American and one of the districts was a new majority Hispanic district. Justice O’Connor, who delivered the opinion of the Court, was joined by Chief Justice Rehnquist and Justice Kennedy, and Justice Thomas filed a concurring opinion joined by Justice Scalia. Dissenting opinions were filed by Justices Ginsburg and Souter. Because O’Connor believed that the districting constituted racially motivated gerrymandering rather than politically motivated gerrymandering, she used the strict scrutiny test. Texas failed the test. O’Connor argued that strict scrutiny required that the remedy “must be specifically identified discrimination . . . [and] must have had a strong basis in evidence to conclude that remedial action was necessary. . . .” The remediation of alleged vote dilution was not sufficient to meet the requirements of Section 2 of the Voting Rights Act. The three districts were not narrowly tailored to serve a compelling state interest. In Shaw v. Hunt (116 S. Ct. 1894, 1996), the Court reversed a ruling of a district court. The Supreme Court held that the North Carolina redistricting plan offended the Equal Protection Clause because the state’s redistricting scheme was not nar-

Protecting Against Bias: Segregation and Discrimination

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

rowly tailored to serve a compelling state interest. Speaking for the majority, Chief Justice Rehnquist rejected the policy of maximizing the number of majority black districts. Rehnquist concluded that the reapportionment scheme did not avoid Section 2 liability. In dissent, Justice Stevens was joined by Justices Ginsburg and Breyer on parts II–V. Stevens suggested that the majority was substituting its wisdom for that of the Congress. He argued, “It’s . . . irrelevant whether we, as judges, deem it wise policy to create majority-minority districts as a means of assuring fair and effective representation to minority voters.” Stevens concluded that “I [do not] see how our constitutional tradition can countenance the suggestion that a state may draw unsightly lines to favor farmers and city dwellers, but not to create districts that benefit the very group whose history inspired the amendment that the Voting Rights Act was designed to implement.” Finally, in Reno v. Bossier Parish School Board (117 S. Ct. 1491, 1997), the Bossier Parish School Board petitioned the District Court for the District of Columbia for preclearance under the Voting Rights Act of 1965 for its proposed redistricting plan. The District Court granted the request and the Attorney General appealed. Speaking for the Court, Justice O’Connor confronted the relationship between Sections 5 and 2 of the Voting Rights Act of 1965. O’Connor held that a violation of Section 2 does not constitute a basis for denying preclearance under Section 5. According to O’Connor, the two sections were intended to combat different evils. Namely, Section 5 was designed to “freeze election procedures” that “would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” On the other hand, O’Connor believed that “Section 2 . . . was designed as a means of eradicating voting practices that minimize or cancel out the voting strength or cancel out the effectiveness of minority groups.” The Supreme Court vacated dilutive impact of the school board’s redistricting plan because the Court was not satisfied that the District Court had considered the evidence concerning the board’s plan. In the final decade of the twentieth century and first decade of the twenty-first century, Section 5 preclearance provision continued to fuel controversy that was translated into litigation. Lopez v. Monterey County (525 U.S. 266, 1999) gave the Supreme Court the opportunity to rule on Hispanic voters’ allegation that the county had failed to fulfill its

Section 5 preclearance requirements. The District Court noted that California was not covered by the preclearance section, dismissing the voters’ contention. In an eight-to-one ruling, the Supreme Court reversed the 3-judge District Court holding. Speaking for the majority, Justice O’Connor argued that “the Court elsewhere assumed that legislation from a partially covered state must be precleared to the extent that it affects covered counties.” O’Connor weighed the fact that “the Department of Justice claims to have received more than 1300 submissions seeking to pre-clear state laws from seven states that are currently partially covered, which included California.” She discounted California’s contention that requiring preclearance in this instance would tread on rights that were constitutionally reserved to the states and that California’s laws were not subject to Section 5 preclearance. Justice O’Connor retorted, “Congress has the constitutional authority to designate covered jurisdictions and to guard against changes that give rise to a discriminatory effect in those jurisdictions.” She concluded,” . . . the County is obligated to seek preclearance under Section 5 before giving effect to voting changes required by state law.” In dissenting, Justice Thomas argued, “I would interpret Section 5 only to require preclearance of a covered jurisdiction’s changes affecting voting qualifications, prerequisites, standards, practices, or procedures, whether made by formal enactment or otherwise.” At issue in Reno v. Bossier Parish School Board (528 U.S. 320, 2000) was whether or not Section 5 of the Voting Rights Act of 1965 prohibited preclearance of a redistricting plan that was enacted with a discriminatory but nonretrogressive purpose. Writing for a divided Court, Justice Scalia affirmed the judgment of the district court. Scalia concluded that Section 5 does not prohibit preclearance of a redistricting plan with a discriminatory but nonretrogressive purpose. He argued that before a covered jurisdiction may obtain preclearance under Section 5, two distinct showings must be made: (1) The proposed change must not have the purpose of denying or abridging the right to vote on account of race or color, and (2) the proposed change must not have the effect of denying or abridging the right to vote on account of race or color. Justice Scalia insisted that the covered jurisdiction shouldered “the burden of persuasion on both points.” The Reno v. Bossier Parish School Board case relied heavily on Beer v. United States (425 U.S. 130, 1976), in which the Supreme Court held that Section

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5 disallowed preclearance of voting changes which “would lead to a retrogression in the position of racial minorities with the respect to their effective exercise of the electoral franchise.” Scalia devoted considerable attention to terms “denying” and “abridging” the right to vote. He contended that the status quo is its baseline for abridging the right to vote in 5 Section 5 preclearance. “If the change abridges the right to vote relative to the status quo, preclearance is denied, and the status quo (however discriminatory it may be) remains in effect.” Scalia distinguished Section 2 or the Fifteenth Amendment, proceeding as follows: “If the status quo results in an abridgement of the right to vote or abridge[s] [the right to vote] relative to what the right to vote ought to be, the status quo itself must be changed.” Scalia limited abridging “only to retrogression in Section 5, but to discrimination more generally in Section 2 and the Fifteenth Amendment.” He then focused on what Section 5 prevented in vote dilution cases. In such cases, he determined, “Section 5 prevents nothing but backsliding, and preclearance under Section 5 affirms nothing but the absence of backsliding.” Scalia also argued that the holding in the present case follows precedent: “We have made clear . . . what we reaffirm today: that proceedings to preclear apportionment schemes and proceeding to consider the constitutionality of appointment schemes are entirely distinct.” In an opinion that concurred in part and dissented in part and was joined by Justices Stevens, Ginsburg, and Breyer, Justice Souter argued, “[T]he Court was mistaken in Beer when it restricted the effect prong of Section 5 to retrogression, and the Court is even more wrong today when it limits the clear text of Section 5 to the corresponding retrogressive purpose.” Accepting the policy of respecting precedent in statutory interpretation, Souter opted not to call for the reexamination of Beer v. United States, but he insisted “that policy does not demand that recognized error be compounded indefinitely, and the Court’s prior mistake about the meaning of the effect requirements of Section 5 should not be expanded by an even more erroneous interpretation of the scope of the section’s purpose prong.” Souter saw the case in the context of the forty-five year deliberate attempt by the Bossier Parish School Board to stave off adhering to Brown and the Constitution. He maintained that the “record illustrates exactly the sort of relentless bad faith on the part of majority-white voters in covered jurisdiction that led to the enactment of 606

Section 5.” For Souter, such evidence was “not only crucial to [his] resolution of these cases, but insistent in the way it points up the implausibility of the Court’s reading of purpose under Section 5.” According to Justice Souter, the Board’s recalcitrant purpose was apparent from the many stipulations it filed in the District Court: The Board never worked to fulfill the requirements of the integration decree of 1970, delayed reapportionment after the 1990 census, and refused to communicate with black leaders. For example, he noted that the “parties stipulate that for decades before this redistricting the Board had sought to ‘limit or evade’ its obligation to end segregation in its schools, an obligation specifically imposed by the Court order nearly thirty-five years ago and not yet fulfilled.” Souter explained that the school Board plan included “no black majority districts even though residential and voting patterns in Bossier Parrish meet the conditions identified in Thornburg v. Gingles, as opening the door to drawing majority-minority districts to put minority voters on an equal footing with others.” Justice Souter also discussed the meaning of “abridging” in the provision of Section 5 preclearance. He felt that “the language tracks that of the Fifteenth Amendment.” Because the Voting Rights Act is an exercise of congressional power under Section 2 of the Fifteenth Amendment, Souter contended that “[t]he choice to follow the Amendments’ terminology is most naturally read as carrying the meaning of the constitutional term into the statute.” Justice Souter read the cases of the Court as having “recognized retrogression as a subspecies of dilution, the consequence of a scheme that not only gives a minority voter a lesser practical chance to participate and elect than a majority voter enjoys, but even reduces the minority voter’s practical power from what a preceding scheme of electoral law provided.” Acknowledging that the cases of the Court have dealt with vote dilution only under the Fourteenth Amendment, Souter pointed out, “I know of no reason in text or history that dilution is not equally violative of the Fifteenth Amendment guarantee against abridgement.” He supported dilution as the ultimate test under Section 5 for preclearance: “Abridgement under Section 5 presumably covers any vote dilution, not retrogression alone, and no redistributing scheme should receive preclearance without a showing that it is nondilutative.” Justice Souter placed the Bossier Parrish School Board’s purpose in the context of “the evil in

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Congress’s sights [which] was discrimination, abridgement of the right to vote, not merely discrimination that happens to cause retrogression.” He also felt that Congress’s “intent to frustrate the unconstitutional evil by barring a replacement scheme of discrimination from being put into effect was not confined to any one subset of discrimination schemes.” The School Board’s purpose seemed “to lie at the very center of what Congress meant to counter by requiring preclearance.” Souter believed the majority opinion compounded Beer’s error. He rejected the majority’s understanding of purpose and suggested that some districts wished to dilute simply to subordinate minority voting power, so it was unnecessary to calibrate exactly in order to identify what such districts intended. Justice Souter explained that “[a]ny purpose to give less weight to minority participation in the electoral process than to majority participation is a purpose to discriminate and thus to ‘abridge’ the right to vote.” He insisted that the Court had “held that an inquiry into dilutive effect must rest on some idea of a reasonable allocation of power between minority and majority voters; this requires a court to compared a challenged practice with a reasonable alternative practice.” The behavior of Bossier Parish, urged Souter, was a plain effort to deny the voting equality that the Constitution just as plainly guaranteed. The point of Section 5 was to thwart the ingenuity of the School Board’s effort to stay ahead of challenges under Section 2. Its objective was to bring the country closer to transcending its history of intransigence and enforcing the Fifteenth Amendment.” Souter concluded that the majority’s holding meant that “the promise of Section 5 is substantially diminished.” In response to Shaw II, the State of North Carolina enacted a new district plan. Blacks no longer constituted the majority in District 12. The figures for blacks in District 12 were 47 percent of the district total population, 43 percent of the district voting-age population, and 46 percent of the registered voters in the district. In Hunt v. Cromartie (526 U.S. 541, 1999), the appellants argued that District 12 continued to be the product of unconstitutional racial gerrymandering. Before either party conducted discovery and without an evidentiary hearing, the District Court, over the dissent of one judge, granted the appellees’ motion and entered the injunction that the appellees sought. The District Court concluded the “General Assembly, in redistributing, used criteria with respect to District

12 that are facially race driven, and thereby violating the Equal Protection clause of the Fourteenth Amendment.” State officials filed a notice of appeal, and the Supreme Court granted probable jurisdiction. Speaking for the Court, Justice Thomas concluded that this case was not suited for summary disposition and reversed the judgment of the District Court. Justice Thomas argued that the determination of motivation was “an inherently complex endeavor. . . . [a] sensitive inquiry into such circumstantial and direct evidence” is required. The appellees were “required to prove that District 12 was drawn with an impermissible racial motive.” If race were found to be the predominant factor motivating the legislature districting, Thomas argued that the District Court should have employed “strict scrutiny.” The appellees were obliged to carry the burden of proving that “the legislature subordinated traditional raceneutral districting principles, including but not limited to compactness, contiguity and respect for political subdivisions or communities defined by actual shared interests, to racial consideration” (quoting from Shaw II and Miller). The appellees’ evidence tended “to support an inference that the State drew lines with an impermissible racial motive.” When the evidence was viewed in total, Justice Thomas urged that “summary judgment . . . is appropriated only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” In an opinion that concurred with the judgment and that was joined by Justices Souter, Ginsburg, and Breyer, Justice Stevens argued that the “disputed issue of fact in this case is whether political consideration or racial considerations provide the primary explanation for the seemingly irregular configuration of North Carolina’s Twelfth Congressional District.” Stevens insisted “the shape of the congressional district. . .provides strong evidence that either political or racial factors motivated its architects, but sheds no light on the question of which set of factors was more responsible for subordinating any of the state’s traditional principles.” Justice Stevens also noted that the record supported the conclusion that black Democrats were “the most loyal Democrats residing near the borders of District 12.” He felt that this alone did not necessarily require the invalidation of the government action. Quoting Justice O’Connor’s concurring opinion in Hernandez v. New York, Justice Stevens wrote: “No matter how closely tied or significantly correlated to race the explanation for

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[a governmental action] may be, the [action] does not implicate the Equal Protection clause unless it is based on race.” The North Carolina redistricting saga consumed the 1990s and made its way into the twenty-first century. In Easley v. Cromartie (532 U.S. 234, 2001), the redistributing effort of North Carolina was heard for the fourth time in the Supreme Court. The District Court held that the legislature was motivated by racial factors. The District Court’s conclusion was based on four findings: (1) The district’s shape, (2) the district’s splitting of towns and communities, (3) the district’s heavily African American voting population, and (4) the drawing of the boundaries by the legislature to collect precincts with a high racial, rather than political, common identity. Justice Breyer, writing for Justices Stevens, O’Connor, Souter, and Ginsburg, reversed the divided threejudge District Court decision that North Carolina had violated the Equal Protection Clause. Breyer framed the issue as being evidentiary. He outlined the standard that the plaintiff must meet to establish that the “legislature’s motive was predominantly racial, not political”: (1) The legislature must have subordinated traditional race-neutral districting principles; (2) race must have been not simply a motivation for the drawing of a majority-minority district, but the predominant factor motivating the legislature’s districting decision; and (3) a facially neutral law must be unexplainable on grounds other than race. First, Breyer dismantled the District Court’s finding that the legislature could have covered equally a district that was both more heavily Democratic and more compact, but opted for “precincts with a higher African-American population.” Justice Breyer noted that white Democratic tend to cast cross-over votes to a much greater extent than do African-American Democrats, who register and vote Democrat 95 percent and 97 percent of the time. According to Breyer, “a legislature trying to secure a safe Democratic seat is interested in Democratic voting behavior,” which means that the inclusion of African-American precincts in a district would be “political rather than racial.” Next, Breyer undercut the testimony of the plaintiff’s expert witness. Third, Justice Breyer disagreed with the District Court’s assessment of the defendant’s expert witness: “The principle underlying Dr. Peterson’s analysis is that if the district were drawn with race predominantly in mind, one would expect the boundaries of 608

the district to correlate with race more than with politics.” In short, African Americans are among the most reliably Democratic voters. Finally, Justice Breyer focused on the comments and communications of the legislators themselves after gleaning the information. The District Court’s gleaning concluded the presence of “discriminatory intent.” But Justice Breyer read the information differently and insisted that it said “little or nothing about whether race played a predominant role, comparatively speaking.” Here Breyer limited the reach of Shaw I. Quoting O’Connor opinion in Shaw I, Breyer adjudged that “strict scrutiny does not apply merely because redistricting is performed with consciousness of race . . . [Legislatures] will . . . almost always be aware of racial demographics.” Justice Breyer concluded that “the record contains a modicum of evidence offering support for the District Court’s conclusion. The evidence taken together however, does not show that racial considerations predominated in the drawing of District 12’s boundaries.” In the majority opinion, Justice Breyer put forth a standard that seemingly departed from the Rehnquist Court’s earlier position on redistricting (i.e., Shaw I and II, and Miller v. Johnson). The standard contains two factors: (1) Political articulation and (2) the high correlation between race and political affiliation. This substantive test allowed the Court to back away from its previous posture that equated remedial raceconscious decisions with invidious racial classifications. Perhaps the Court is abandoning the more exacting and procrustean approach that governed its decisions in the 1990s, the so-called “highly individualistic, profoundly antiessentialist conception of harm.” (See Gerken, 14 Harv. L Rev. 1663, 2001.) The substantive standard articulated by Justice Breyer permits hyper deference to the legislature. In a dissenting opinion joined by Chief Justice Rehnquist and Justices Scalia and Kennedy, Justice Thomas chided the majority for ignoring the Court’s “role as a reviewing court” and stated that the Court should not “engage in its own fact finding enterprise.” Second, Thomas accused the majority of discounting clear error review because the trial was not lengthy. Third, Justice Thomas argued that “the Court downplays deference to the District Court’s finding . . . ” Fourth, he characterized the action of the majority as a “foray into the minutia of the record.” He seemed to object to the standard advanced by Breyer: “As I see it, ‘. . . racial gerrymandering offends the Constitution whether the motivation

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is malicious or benign.’” Thomas also termed the fact that blacks are reliable Democratic voters a stereotype. Concluding with some reservation, Justice Thomas stated, “I am satisfied that the District Court’s finding was permissible even if not compelled by the record.” In Georgia v. Ashcroft (539 U.S. 461, 2003), the Supreme Court addressed whether or not a Georgia statute that increased the number of so-called “influence” districts where black voters would be able to exert a significant force in the electoral process should receive preclearance by the U.S. Attorney General or the District Court for the District of Columbia. Through the Attorney General, the United States “argued that the Georgia’s 2001 Senate redistricting plan should not be precleared.” The Senate redistricting plan had the support of the vast majority of black Senators and Representatives (i.e., 10 of 11 black Senators and 33 of the 34 black Representatives). A three-judge District Court Panel held that the plan violated Section 5 of the Voting Rights Act of 1965 and was therefore not entitled to preclearance. After Georgia enacted another plan that added black voters to Districts 2, 12, and 26, the District Court precleared that plan. Noting probable jurisdiction to consider whether the District Court should have precleared the plan as originally enacted by Georgia in 2001, the Supreme Court vacated the judgment. In the majority opinion, Justice O’Connor indicated that the preclearance requirement is “to ensure that the change ‘does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.’” Quoting Beer v. United States (425 U.S. 130, 141, 1976), O’Connor noted that preclearance depends on whether the change “would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” She recited the protracted effort of the State of Georgia to design a permissible redistricting plan that began after the 1990 census. She emphasized the role black Senators played in designing the redistricting plan, noting that Senator Robert Brown served as Vice Chairman of the Senate Reapportionment Committee and chair of the subcommittee that developed the Senate plan. O’Connor also stressed the testimony of black Senators and the strategy that governed the Senate redistricting plan. Justice O’Connor wrote, “Part of the Democrats’ strategy was not only to maintain the number of majority-minority districts, but to increase the num-

ber of so-called ‘influence’ districts, where black voters would be able to exert a significant—if not decisive—force in the election process. . . . The plan as designed by the Senate ‘unpacked’ the most heavily concentrated majority-minority districts in the benchmark plan, and created a number of new influence districts.” Then Justice O’Connor turned her attention to the purpose of Section 5 of the Voting Rights Act of 1965 as interpreted by the Court. Justice O’Connor argued that the substantive goal of Section 5 is “to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” O’Connor concluded, “a plan that merely preserves ‘current minority voting’ is entitled to Section 5 preclearance . . . a voting change with a discriminatory but nonretrogressive purpose or effect does not violate Section 5.” O’Connor continued, “Section 5 leaves room for states to sue these types of influence and coalitional districts. Indeed, the State’s choice ultimately may rest on a political choice of whether substantive or descriptive representation is preferable.” In addition to influence and coalitional districts, Justice O’Connor suggested that “the comparative position of legislative leadership, influence, and power for representatives of the benchmark majority-minority districts” also be examined. Section 5 permitted states to decide whether it is best for minority voters to create influence coalitional or majority-minority districts. O’Connor concluded her analysis with a more in-depth discussion of the purpose of the Voting Rights Act of 1965. She believed the purpose was to prevent “discrimination in the exercise of the electoral franchise and to foster our transformation to a society that is no longer fixated on race.” In a dissenting opinion that was joined by Justice Stevens, Ginsburg, and Breyer, Justice Souter maintained that the State of Georgia may turn to coalitional or influence districts. However, Souter contended that a precondition for the shifts from majority-minority to coalition districts was that the state “bears the burden of proving that nonminority voters will reliably vote along with the minority.” Souter insisted that the requirement was more than some influence for the minority voters in new districts. Instead, “minority voters will have effective influence translatable into probable election results comparable to what they enjoyed under the existing

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district scheme. And to demonstrate this, a state must do more than produce reports of minority voting age percentages; it must show that the probable voting behavior of nonminority voters will make coalitions with minorities a real prospect.” Souter criticized the conclusion of the majority in terms of coalition districts and nonretrogression. He emphasized the voting power of minority voters: “The power to elect a candidate of choice has been forgotten; voting power has been forgotten.” He took the majority to task for its failure to give “guidance for measuring influence that falls short of the voting strength of a coalitional member, let alone a majority of minority voters. . . . The Court’s ‘influence’ is simply not functional in the political and judicial worlds.” Justice Souter also contended that the majority revised the record to reach its wrong conclusions. He concluded, “Section 5 can only be addressed, and the burden to prove nonretrogression can only be carried, with the evidence of how particular populations of voters will probably act in the circumstances in which they live. The State has the burden to convince on the basis of such evidence.” A year later, in Vieth v. Jubelirer (541 U.S. 267, 2004), the Supreme Court turned its attention from the Voting Rights Act of 1965 to political gerrymandering as a violation of Article I and the Equal Protection Clause of the Fourteenth Amendment. After the 2000 census, the state of Pennsylvania was entitled to only 19 representatives in Congress rather than 21. The decrease from the previous delegation of the state in Congress required the state legislature to draw a new redistrict plan. The Republic Party controlled the Pennsylvania House and Senate and the Governor’s Office. Registered Democrats who voted in the state alleged in federal District Court that the plan contravened the “one-person, one-vote” requirement of Article I, Section 2 of the Constitution and the Fourteenth Amendment’s Equal Protection Clause. The plurality (4-1-4) on the Supreme Court announced a very confusing holding. The plurality opinion of Justice Scalia, joined by Chief Justice Rehnquist and Justices O’Connor and Thomas, announced the judgment of the Court. Justice Scalia argued that Davis v. Bandemer (478 U.S. 109, 1986) should be overturned. Scalia insisted that political gerrymandering claims are nonjustifiable. He concluded that the standards are “neither discernible nor manageable.” Scalia rejected the Bandemer plurality’s two-pronged “intent plus effect.” He also 610

found Justice Powell’s offering in Bandemer unacceptable. He termed Powell’s standard “essentially a totality of the circumstances analysis, where all conceivable factors, none of which is dispositive, are weighed with an eye to ascertaining whether the particular gerrymander has gone too far or . . . whether it is not fair.” Scalia concluded, “[E]ighteen years of essentially pointless litigation have persuaded us that Bandemer is incapable of principled application. We would therefore overrule that case, and decline to adjudicate these political gerrymandering claims.” Justice Kennedy’s pivotal concurring opinion in the judgment of the Court stopped short of rejecting the Supreme Court participation in gerrymandering claims. Kennedy chastised the legislators for their poor perspective on democracy. He contended that “legislative restraint was abandoned” and that the legislature declared, when it came to apportionment “[w]e are in the business of rigging elections.” Justice Kennedy counseled the Court that its “own responsibilities require that we refrain from intervention in this instance.” Kennedy concluded, “If workable standards do emerge to measure these burdens, however, courts should be prepared to order relief.” The four dissenters filed three dissenting opinions: Justices Stevens and Breyer filed their own dissenting opinions, and Justice Souter filed a dissenting opinion in which Justice Ginsburg joined. The lack of agreement among the dissenters added credibility to the positions of Scalia and Kennedy. Stevens concluded that the Court “could apply Justice Powell’s three factor approach in Bandemer”; in other words, the Court “could apply the predominant motivation standard fashioned by the Court in its racial gerrymandering cases.” In his dissenting opinion joined by Justice Ginsburg, Justice Souter began with the proposition the “Constitution guarantees both formal and substantial equality among voters.” Souter felt that the creation of the unequally populous districts was not “the only way to show political results by setting district lines.” He insisted that the spectrum of opportunity “runs from cracking a group into important fractions, to packing its members into one district for the sake of marginalizing them in another.” Justice Souter blamed the plurality in Davis v. Bandemer for the confused state of partisan gerrymandering: “[T]he Davis plurality required a demonstration of such pervasive devaluation over such a period of time as to raise real doubt that a case could ever be made out.”

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Souter believed that the Court must solve the problem by making a fresh start. He contended, “the increasing efficiency of partisan redistricting has damaged the democratic process to a degree that our predecessors only began to imagine.” Justice Souter argued that he would “preserve Davis’s holding that political gerrymandering is a justiciable issue, but otherwise start anew.” Souter offered a prima facie case with five elements that the plaintiff would be required to make: (1) The resident plaintiff would identify a cohesive political group to which he belonged; (2) the plaintiff would show that the district of his residence paid little or no heed to those traditional districting principles whose disregard could be shown straightforwardly (contiguity, compactness, respect for political subdivisions, and conformity with geographic features like rivers and mountains); (3) the plaintiff would establish specific correlations between the district’s deviations from traditional districting principles and the distribution of the population of his group; (4) the plaintiff would present the court with a hypothetical district that would include his residence, one in which the proportion of the plaintiff’s group was lower (in a packing claim) or higher (in a cracking one) and which at the same time deviated less from traditional districting principles than the actual district; and (5) the plaintiff would show that the defendants acted intentionally to manipulate the shape of the district in order to pack or crack his group. Souter concluded that the “harm from partisan gerrymandering is . . . a species of vote dilution: the point of the gerrymander is to capture seats by manipulating district lines to diminish the weight of the other party’s votes in elections.” Justice Breyer’s dissent discussed partisan gerrymandering in the context of democratic objectives. Breyer argued that in some of the instances in which partisan gerrymandering fails “to advance any plausible democratic objective while simultaneously threatening serious democratic harm . . . courts can identify an equal protection violation and provide a remedy.” He separated the legislature’s use of political boundary-drawing into justified and unjustified events. The justified use of political factors did not “violate the Constitution’s Equal Protection Clause.” Breyer insisted that “desirable democratic ends” are met, “such as maintaining relatively stable legislatures in which a minority party retains significant representations.” He argued, on the other hand, that the unjustified use of political districting that entrenches a minority power constitutes remediable

abuse. Breyer defined entrenchment as “a situation in which a party that enjoys only minority support among the populace has nonetheless contrived to take, and hold, legislative power.” He defined unjustified entrenchment to mean that “the minority party’s hold on power is purely the result of partisan manipulation and not other factors.” Other factors included “sheer happenstance, the existence of more than two major parties, the unique constitutional requirements of certain representational bodies such as the Senate, or reliance on traditional (geographic communities of interest, . . .) districting criteria.” Breyer suggested the tell-tale sign that unjustified entrenchment has occurred is that “voters find it far more difficult to remove those responsible for a government they do not want; and these democratic values are dishonored.” Breyer maintained that the people cannot “always count on a severely gerrymandered legislature itself to find and implement a remedy. The party that controls the process has no incentive to change. And the political advantages of a gerrymander may become ever greater in the future.” Justice Breyer offered the following circumstances that seem: “extreme enough to set off a constitutional alarm: (1) Suppose that the legislature has proceeded to redraw boundaries in what seem to be ordinary ways, but the entrenchment harm has become obvious; (2) suppose that the plaintiffs could point to more serious departures from redistricting norms; and (3) suppose that the legislature clearly departs from ordinary districting norms, but the entrenchment harm, while seriously threatened has not yet occurred.”

The four cases consolidated in League of United Latin American Citizens v. Perry (548 U.S. 349, 2006) presented the Supreme Court an opportunity to clear up confusion left by Bandemer and Vieth. However, the justices decided not to revisit the justiciability holding of Vieth. At issue in League of United Latin American Citizens was whether or not appellants’ claims offer the Court a manageable, reliable measure of fairness for determining whether a partisan gerrymandering violates the Constitution. On three occasions, the District Court ruled against the appellants. The appellants asked the Supreme Court to determine permissibility of a mid-decade redistricting plan enacted by the Republicancontrolled Texas legislature and signed by the Republican governor. Specifically, the appellants made two claims: (1) The new redistricting plan is an

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unconstitutional partisan gerrymander and the redistricting statewide violates Section 2 of the Voting Rights Act of 1965; and (2) the use of race and politics in drawing lines of specific districts violates the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. Justice Kennedy announced the judgment of the Court and the opinion of the Court with respect to Parts II-A and III, an opinion with respect to Part I and IV in which Chief Justice Roberts and Justice Alito joined, an opinion with respect to Parts II-B and II-C, and an opinion with respect to Part II-D in which Justices Souter and Ginsburg joined. First Justice Kennedy recounted the history of the litigation and recent districting in Texas. Kennedy contended that the Democratic Party’s dominance over the Republican Party gradually eroded. In the 1990s, the Democratic Party used “then-emerging computer technology to draw district lines with artful precision.” Justice Kennedy claimed that the 1991 plan “carefully constructs democratic districts ‘with incredibly convoluted lines’ and packs ‘heavily Republican’ suburban areas into a few districts.” By the end of the 1990s, Kennedy reported that the Republican Party was “sweeping elections for statewide office. Nevertheless, despite carrying 59 percent of the vote in statewide elections in 2000, the Republicans only won 13 congressional seats to the Democrats’ 17.” The 2000 census incorporated two additional seats for the Texas delegation in the Congress. The political branches could not agree on drawing redistricting lines. The Republican Party controlled the Governor’s office and the State Senate, and the Democratic Party controlled State House of Representatives. This situation resulted in a “courtordered plan to comply with the Constitution’s oneperson, one-vote requirement.” In 2003, the Republican Party gained control of the State House of Representatives and thus both houses of the Texas legislature. In October of 2003, the legislature of Texas enacted a new congressional districting map. The 2004 congressional elections saw Republicans win 21 seats to the Democrats’ 11. Justice Kennedy argued that “with respect to a mid-decade redistricting to change districts drawn earlier in conformance with a decennial census, the Constitution and Congress state no explicit prohibition.” Kennedy advanced the proposition that the state and federal legislatures bear the major responsibility and duty of reapportionment. Specifically, he 612

stated that the “State through its legislature or other body” has the primary duty and responsibility in drawing district lines. In his view, the text of the Constitution provides that Congress “may set further requirements, and with respect to districting it has generally required single-member districts.” He did not abdicate the role of the courts: “Our precedents recognize an important role courts when a districting plan violates the Constitution.” Kennedy discounted the appellant sole-intent standard, meaning that the purpose for the mid-decade redistricting was to achieve a Republican congressional majority. Justice Kennedy maintained that the: “text and structure of the Constitution and our case law indicate there is nothing inherently suspect about a legislature’s decision to replace mid-decade a court-ordered plan with one of its own. And even if there were, the fact of mid-decade redistricting alone is no sure indication of unlawful political gerrymanders.”

He explained that the mid-decade redistricting plan “can be seen as making the party balance more congruent to statewide party power.” Kennedy also rejected the appellants’ contention that the middecade redistricting for exclusively partisan purposes violates the one-person, one-vote requirement. Justice Kennedy disagreed “with appellants’ view that a legislature’s decision to override a valid, courtdrawn plan mid-decade is sufficiently suspect to give shape to a reliable standard for identifying unconstitutional gerrymanders.” Next, Kennedy turned to whether or not middecade changes in redistricting violated Section 2 of the Voting Rights Act and the Equal Protection Clause of the Fourteenth Amendment. He focused on changes to Districts 23 and 25. District 23 was drawn to reduce an increasingly powerful Latino population that threatened to oust the incumbent Republican member of the Congress. The redrawn district added voters in counties in central Texas whose populations were largely white and Republican. The newly drawn district dropped the share of the citizen voting-age population of Latino from 57.5 percent to 46 percent. Adjustments were made to District 25 as well. The Latinos in District 25 comprised 55 percent of the district’s citizen voting-age population. The Latino communities, however, are divided between the distant areas of North and South, which have “divergent ‘needs and interests,’ owing to ‘differences in socio-economic status, education, employment, health, and other characteristics.’”

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Kennedy concluded that the three requirements from Gingles to establish a Section 2 violation of the Voting Rights Act had been met: (1) The racial group is sufficiently large and geographically compact to constitute a majority in a single-member district, (2) the racial group is politically cohesive, and (3) the majority votes sufficiently as a bloc to enable it usually to defeat the minority candidate. Justice Kennedy turned to the totality of the circumstances. In terms of District 23, Kennedy concluded that “the totality of circumstances demonstrates a Section 2 violation . . .” Justice Kennedy did not address the appellants’ claims that the use of race and politics in the drawing of District 25 violated the First Amendment and the Equal Protection Clause. He believed that District 25 was created to compensate for the loss of District 23 as a Latino opportunity, meaning that changes in 23 would necessarily bring changes in District 25. The District Court’s judgment on Districts 23 and 25 was vacated. The appellants’ challenge to district lines in the Dallas area, in which they alleged that the lines diluted the African-American voting strength in violation of Section 2 of the Voting Rights Act, was denied. Kennedy accepted the District Court’s finding that African Americans had influence in District 24. Justice Kennedy concluded: “That African-Americans had influence in the district does not suffice to state a Section 2 claim in these cases. The opportunity to elect representatives of their choice” requires more than the ability to influence the outcome between some candidates, none of whom is their candidate of choice.”

Kennedy stated that the presence of influence districts is relevant to the “Section 5 analysis [and] lack of such districts cannot establish a Section 2 violation.” The state of Texas’s failure to “create an influence district in these cases thus does not run afoul of Section 2 of the Voting Rights Act.” We will not discuss the opinions of the other justices on this case. Bartlett v. Strickland (556 U.S. ___, 2009) asked the Supreme Court to decide whether or not Section 2 of the Voting Rights Act of 1965 as amended can be invoked to require state officials to draw electiondistrict lines to allow a racial minority to join with other voters to elect the minority’s candidate of choice, even when the racial minority is less than 50 percent of the voting-age population in the district to be drawn. The state of North Carolina invoked the Voting Rights Act as a defense to its creation of such

a district. State authorities argued that Section 2 required them to draw the district in a particular way, despite state laws that forbade it. The Constitution of North Carolina prohibits the General Assembly from dividing counties when legislative districts are being drawn for the State House and Senate. After the 2000 census, the North Carolina Supreme Court rejected the General Assembly’s first two statewide redistricting plans. In 2003, the General Assembly split portions of Pender and New Hanover counties. The division of Pender County gave African Americans the potential to join with majority voters to elect the minority group’s candidate of its choice. In May 2004, Pender County and five members of its Board of Commissioners filed a suit in the state court of North Carolina against the Governor of North Carolina, the Director of the State Board of Elections, and other state officials, alleging that the 2003 plan violated the whole county provision by splitting Pender County into two House districts. The sued state officials countered that dividing Pender County was required by Section 2 of the Voting Rights Act of 1965. In a plurality opinion, Justice Kennedy affirmed the holding of the North Carolina Supreme Court, which reserved a state court. The trial court determined that the first of the three requirements for Section 2 liability under Thornburg v. Gingles had been met: (1) The minority group was “sufficiently large and geographically compact to constitute a majority in a single-member district,” (2) it was “politically cohesive,” and (3) “the white minority votes sufficiently as a bloc to enable it. . . usually to defeat the minority’s preferred candidate.” Although African Americans were not a majority of the votingage population in District 18, the trial court stated that the district was a “de facto” majority-minority district. That is, African Americans could get enough support from cross-over majority voters to elect their preferred candidate. Based on the totality of circumstances, the trial court concluded that Section 2 required the General Assembly to split Pender County. Reversing the trial court, the North Carolina Supreme Court determined that the minority group must constitute a “numerical majority of the voting-age population in the area under consideration before Section 2 . . . requires the creation of a legislative district to prevent dilution of the votes of that minority group.” Justice Kennedy discussed the conceptualization and motivation of the Voting Rights Act of 1965, the close

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kinship of Section 2 and the Fifteenth Amendment, the 1982 congressional amending of Section 2 to surmount the mobile ruling with the consideration of effects and not intent, and the 1982 Congressional provision of a test to determine whether a Section 2 violation has occurred. Kennedy emphasized the Court’s construction of the amended version of Section in Thornburg v. Gingles (478 U.S. 30, 1986), which were used by the trial court. Justice Kennedy stressed that a party must establish that the Gingles’ requirements has been met before a court proceeds on to “the totality of the circumstances.” Kennedy explained that the present “case turns on whether the first Gingles requirement can be satisfied when the minority group makes up less than 50 percent of the voting-age population in the potential election district.” Justice Kennedy formulated the question thusly: “What size minority group is sufficient to satisfy the first Gingles requirement?” Before answering the question, he reviewed the terminology that is used to “describe various features of election districts in relation to the requirements of the Voting Rights Act,” including majorityminority districts, influence districts, and cross-over districts. Kennedy discussed what Section 2 says about these types of districts. Under present doctrine, he said that Section 2 can require the creation of majority-minority districts, and Section 2 does not require the creation of influence districts. The crossover districts terminology governed the present case. Kennedy defined a cross-over district as “one in which minority voters make up less than a majority of the voting-age population.” He added that in cross-over districts “the minority population, at least potentially, is large enough to elect the candidate of its choice with help from voters who are members of the majority and who cross-over to support the minority’s preferred candidate.” Justice Kennedy rejected state officials’ contention that: “Section 2 required them to override state law and split Pender County, drawing District 18 with an African-American voting-age population of 39.36 percent rather than keeping Pender County whole and leaving District 18 with an African-American voting-age population of 35.33 percent.”

Justice Kennedy concluded, “Section 2 does not impose on those who draw election districts a duty to give minority voters the most potential, or the best potential to elect a candidate by attracting cross-over voters.” Kennedy felt that “allowing cross-over 614

district claims would require [the Court] to revise and reformulate the Gingles three-hold inquiry that has been the baseline of [the Court] Section 2 jurisprudence.” He separated majority-minority requirements of Section 2 and a mandate for crossover districts. Kennedy adjudged that majority-minority district requirements are “workable standards” that provide for “sound judicial and legislative administration.” He maintained, on the other hand, that the cross-over mandate “would place courts in the untenable position of predicting many political variables and tying them to racebased assumptions.” Justice Kennedy also contended that the nationwide application of Section 2 “would require courts to make predictive political judgments.” He claimed that unlike cross-over districts, majority-minority districts are premised on “principles of democratic governance. The special significance, in the democratic process, of a majority means it is a special wrong when a minority group has 50 percent or more of the Voting population and could constitute a compact voting majority but, despite racially polarized bloc voting, that group is not put into a district.”

Justice Kennedy also discussed the cross-over districts in terms of racial classification. He argued that the “moral imperative of racial neutrality is the driving force of the Equal Protection Clause, and racial classifications are permitted only ‘as a last resort.’” Kennedy suggested that “racial classification with respect to voting carr[ies] particular dangers”: (1) Balkanizing Americans into competing racial factions; (2) moving Americans further from the goal of a political system in which race no longer matters; (3) infusing race into virtually every redistricting, raising serious constitutional questions; (4) increasing constitutional questions; and (5) increasing the use of race as the predominant factor motivating the legislature’s decision. Justice Kennedy indicated that the holding “does not consider the permissibility of such districts as a matter of legislative choice or discretion.” He suggested that on the basis of the proper factors a legislature might divide a majority-minority district with a substantial minority population to create two crossover districts. Under those circumstances, Kennedy believed that cross-over districts may serve to diminish the significance and influence of race by encouraging minority and majority voters to work together toward a common goal. Kennedy noted, “. . . Section 2 allows states to choose their own method of

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complying with the Voting Rights Act, and we have said that may include drawing cross-over districts.” He urged again that Section 2 does not mandate “maximizing minority voting strength; and . . . Section 2 does not mandate creating or preserving cross-over districts.” Then he provided guidance to states that may desire to create cross-over districts: (1) States are free to do so where no other prohibition exists, (2) majority-minority districts are only required if all three Gingles factors are met and if Section 2 applies according to the totality of the circumstances, and (3) states can and in proper cases should defend against alleged Section 2 violations by emphasizing cross-over voting patterns and effective cross-over districts. The dissenting opinion of Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer posed the issue quite differently than the majority: Can a minority with under 50 percent of the voting population of a proposed voting district ever qualify under Section 2 of the Voting Rights Act of 1965 as residents of a putative district whose minority voters have an opportunity “to elect representatives of their choice?” Souter argued that the answer in law as well as in fact is sometimes yes. Souter alleged that the plurality had gone far astray in terms of the basic premise of Section 2 vote-dilutions claims. He contended that since Section 2 was amended in 1982, vote-dilution has meant “distributing politically cohesive minority voters through districts in ways that reduce their potential strength.” He noted two classic patterns that have emerged to dilute the vote of minority voters: (1) Systematically discounting the minority vote by dispersing blacks into districts in which they constitute on ineffective minority of voters, and (2) concentrating minority voters in districts in which they constitute an excessive majority. Justice Souter suggested the three points that follow: (1) The fair chance to get the desired representation means “an identifiable baseline for measuring a group’s voting strength,” (2) “the significance of proportionality means that a Section 2 claim must be assessed by looking at the overall effect of a multidistrict plan,” and (3) “a plaintiff must show both an overall deficiency and a personal injury open to redress.” Souter gave greater weight to Congress’s totality of the circumstances than to the Gingles conditions. He maintained that the Gingles conditions serve as “a gatekeeper, ensuring that a plaintiff who proceeds to plenary review has a real chance to show a redressable violation of the ultimate Section 2

standard.” Justice Souter explained each of the three conditions. The first condition, a large and compact minority population, is “the condition for demonstrating that a dilutive plan injures the Section 2 plaintiff by failing to draw an available remedial district that would give them a chance to elect their chosen candidate.” The second condition, minority cohesion, is “there to show that minority voters will vote together to elect a distinct representative of choice.” The third condition, majority racial bloc voting, “is necessary to establish the premise of vote-dilution claims.” That is, it applies to situations in which the disadvantage extends from race, “not the happenstance of independent politics.” Souter resolved the issue in terms of the motive of a vote-dilution claim and the text of Section 2. He stated that there “is nothing in the statutory text to suggest that Congress meant to protect minority opportunity to elect solely by the creation of majorityminority districts.” Justice Souter claimed that Congress prescribed the ultimate functional approach, which is a totality of the circumstances test. He suggested that the functional approach “leaves no doubt that cross-over districts vindicate the interest expressly protected by Section 2: The opportunity to elect a desired representative.” Souter presented electoral facts that supported his functional approach. The facts, according to Souter, are electoral results that undermine the plurality’s contention. The electoral facts suggested that black voters “have an opportunity to elect [the] representatives of their choice.” Electoral facts also indicated that “racial polarization has declined, and if it continues downward the first Gingles condition will get easier to satisfy.” Souter emphasized the utility of the functional approach, suggesting that a 25 percent black population in a district would not meet the first Gingles condition. “A cross-over [district],” argued Souter, “is thus superior to a majority-minority district precisely because it requires polarized factions to break out of the mold and form the coalitions that discourage racial divisions.” Justice Souter concluded that the plurality’s judgment heightens rather than reduces race consciousness: “[T]o the extent the plurality’s holding is taken to control future results, the plurality has eliminated the protection of Section 2 for the districts that best vindicate the goals of the statute, and has done all it can to force the states to perpetuate racially concentrated districts, the quintessential manifestations of race consciousness in American politics.”

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In Northwest Austin Municipal Utility Dist. No. 1 v. Holder (557 U.S. ____, 2009), the Roberts Court expressed considerable criticism of the preclearance provision of Section 5 and the bailout provision of Section 4 of the Voting Rights Act of 1965. The Court seemingly laid the basis for declaring the preclearance provision unconstitutional at the first opportunity. Moreover, the decision encouraged litigants to raise the issue of the unconstitutionality of Section 5. Strangely, the liberal bloc, Stevens, Souter, Ginsburg, and Breyer, did not write a dissent. These justices joined Chief Justice Roberts’ opinion of the Court. Perhaps the liberal bloc negotiated some kind of deal to stave off the issue of the constitutionality of the preclearance provision until Congress has time to reassess the extent of change in the south. The 2006 extension of the Section 5 was based on voting data from 1972. Chief Justice Roberts’ approach emphasized some of the major questions that the Court has about the preclearance provision of Section 5. Roberts said, “The plaintiff in this case is a small utility district raising a big question – the constitutionality of Section 5 of the Voting Rights Act.” The Chief Justice added that the preclearance provision applied to the small utility “even though there has never been any evidence of racial discrimination in voting in the district.” The District Court of the District of Columbia denied the utility district relief under Section 4’s “bailout” provision. The District Court concluded that the bailout was unavailable to a political subdivision like the utility district that did not register voters. Refusing to answer the utility district question of unconstitutionality of the preclearance requirements, Chief Justice Roberts explained that the Court’s “usual practice is to avoid the unnecessary resolution of constitutional questions. We agree that the district is eligible under the Act to seek bailout. We therefore reverse, and do not reach the constitutionality of Section 5.” Roberts believed that the Voting Rights Act, particularly the preclearance provision, has transformed race and racial politics in the South. He traced congressional efforts to enforce the Fifteenth Amendment’s prohibition against the denial of the right to vote. Roberts asserted that the first century of congressional enforcement of the Fifteenth Amendment “can only be regarded as a failure.” For example, Chief Justice Roberts connected the ineffectiveness of the Civil Rights Act of the 1950s and 1960s to their dependence “on individual lawsuits 616

filed by the Department of Justice. But litigation is slow and expensive, and the states were creative in ‘contriving new rules’ to continue violating the Fifteenth Amendment ‘in the face adverse federal court decrees.’” Then he explained why Section 4 and 5 were enacted and what changes Congress made in the Sections since 1965. Roberts noted the current requirement of the bailout provision: A declaratory judgment from a three-judge District Court in Washington, D. C. or the United States Attorney General can consent to entry of judgment in favor of bailout if the evidence warrants it. Chief Justice Roberts pointed out that the District Court “retains continuing jurisdiction over a successful bailout suit for ten years and [can] reinstate coverage if any violation is found.” He referenced that both Section 4 and 5 of the Voting Rights Act were temporary, emphasizing that the Supreme Court had approved every change Congress made to continue its requirements of the provisions. That is, Roberts stated that the coverage formula has moved from 1964 to 1972. The Chief Justice indicated that the Northwest Austin Municipal Utility District Number One was created in 1987 and is subject to coverage under the Voting Rights Act because it is located in the state of Texas. He added, “there is no evidence that the utility district has ever discriminated on the basis of race.” Robert hailed the historic accomplishments of the Voting Rights Act of 1965 as “undeniable.” He claimed: “the registration gap between white and black voters is in single digits in the covered states; in some of the states, blacks now register and vote at higher rates than whites. Similar dramatic improvements have occurred for other racial minorities.”

The Chief Justice stressed what he calls the “federalism costs.” Here he noted Justices Black’s concurring and dissenting opinion in Katzenbach; Harlan’s concurring-in-part and dissenting-in-part opinion in Allen v. State Board of Elections; Powell’s dissent in Georgia v. United States; Rehnquist’s dissent in City of Rome v. United States; and Thomas’s dissent and Kennedy’s concurring opinion in judgment in Lopez v. Monterey. He alleged, “Section 5 goes beyond the prohibition of the Fifteenth Amendment by suspending all changes to state election law—however innocuous—until they have been precleared by federal authorities in Washington, D. C.” Roberts also emphasized the

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broad coverage of the preclearance provision, including the requirement that “every political subdivision in a covered state, no matter how small.” Next Chief Justice Roberts argued that the changes in the South question the need for the continued use of the preclearance provision. “Past success alone,” maintained Roberts, “however is not adequate justification to retain the preclearance requirements.” He cautioned that it “may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act. But the Act imposes current burdens and must be justified by current needs.” Chief Justice Roberts focused on the argument that the Voting Rights Act of 1965 departs from the principle of the equal sovereignty of the states. He contended that the differentiation between the states “requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.” Roberts advanced another argument that “the preclearance requirements in one state would be unconstitutional in another.” He reasoned that Section 5 seems to save redistricting plans that would be doomed under the Fourteenth Amendment or Section 2. Roberts concluded with the contention that the “evil that Section 5 is meant to address may no longer be concentrated in the jurisdiction singled out for preclearance.” Chief Justice Roberts sifted through decisions of the Court and statutes to determine whether the Utility District constituted a political subdivision. He concluded that the “definition should not constrict the availability of bailout from those preclearance requirement.” Roberts asserted that in 1982 Congress “embraced ‘piecemeal’ bailout.” Chief Justice Roberts indicated that “Congress decided that a jurisdiction covered because it was within a covered state need not remain covered for as long as the state did.” He concluded, “We therefore hold that all political subdivisions . . . are eligible to file a bailout suit.”

Justice Thomas, concurring in the judgment in part and dissenting in part, argued that the Utility District is entitled to bailout from coverage under the Voting Rights Act of 1965 and the preclearance requirement of Section 5 of the Act is unconstitutional. Thomas stated that the doctrine of constitutional avoidance is inapposite in this case. He contended, “Bailout eligibility is a distant prospect for most covered jurisdiction.” In his view, among others, (1) the preclearance provision reached beyond the delegated power of Congress, (2) it violated state autonomy or state sovereignty, (3) it constituted an extensive pattern of discrimination that led the Court to uphold that Section 5 no longer exists, and (4) the 2000 re-enactment suggested that Congress understood that the emergency conditions which gave rise to the original enactment no longer exist. This decision, other decisions from the 1990s, and more recent ones suggest a new round of racial politics. Perhaps the involvement of the federal government will be significantly reduced. Moreover, the strategic leadership of Chief Justice Roberts seemingly is paying great dividends. Over the past several terms, the Court has moved increasingly to the right. Justice Kennedy has assumed the pivotal role that was more recently performed by retired Justice O’Connor. With the retirement of Justice Souter, the liberal bloc of the Court is in dire need of leadership. At this point, Justices Ginsburg and Breyer do not seem to have taken on that role. We will consider a final case in this chapter, Northwest Austin Municipal Utility Dist. No. 1, which is strikingly similar to the Oklahoma City Public Schools v. Dowd in education. The exit of federal courts from the area of school desegregation has resulted in tremendous growth in resegregation. The continuation of the present course of the Court might result in setbacks in the area of voting and political representation by blacks and other minorities.

BAKER V. CARR 369 U.S. 186; 7 L. Ed. 2d 663; 82 S. Ct. 691 (1962) JUSTICE BRENNAN delivered the opinion of the Court, in which CHIEF JUSTICE WARREN and JUSTICES BLACK, DOUGLAS, CLARK, and STEWART

joined. JUSTICES DOUGLAS, STEWART, and CLARK each filed concurring opinions. JUSTICE FRANKFURTER filed a dissenting opinion, in which JUSTICE HARLAN

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joined. JUSTICE HARLAN filed a dissenting opinion, in which JUSTICE FRANKFURTER joined. JUSTICE WHITTAKER did not participate in the decision of this case. JUSTICE BRENNAN delivered the opinion of the Court. This civil action was brought under 42 U.S.C. §§ 1983 and 1988 to redress the alleged deprivation of federal constitutional rights. The complaint, alleging that by means of a 1901 statute of Tennessee apportioning the members of the General Assembly among the State’s 95 counties, “these plaintiffs and others similarly situated, are denied the equal protection of the laws accorded them by the Fourteenth Amendment to the Constitution of the United States by virtue of the debasement of their votes,” was dismissed by a threejudge court convened under 28 U.S.C. §2281 in the Middle District of Tennessee. The court held that it lacked jurisdiction of the subject matter and also that no claim was stated upon which relief could be granted. . . . We noted probable jurisdiction of the appeal. . . . We hold that the dismissal was error, and remand the case to the District Court for trial and further proceedings consistent with this opinion. The General Assembly of Tennessee consists of the Senate with thirty-three members and the House of Representatives with ninety-nine members. Tennessee’s standard for allocating legislative representation among her counties is the total number of qualified voters resident in the respective counties, subject only to minor qualifications. Decennial reapportionment in compliance with the constitutional scheme was effected by the General Assembly each decade from 1871 to 1901. The 1871 apportionment was preceded by an 1870 statute requiring an enumeration. The 1881 apportionment involved three statutes, the first authorizing an enumeration, the second enlarging the Senate from 25 to 33 members and the House from 75 to 99 members, and the third apportioning the membership of both Houses. In 1891 there were both an enumeration and an apportionment. In 1901 the General Assembly abandoned separate enumeration in favor of reliance upon the Federal Census and passed the Apportionment Act here in controversy. In the more than sixty years since that action, all proposals in both Houses of the General Assembly for reapportionment have failed to pass. Between 1901 and 1961, Tennessee has experienced substantial growth and redistribution of her 618

population. In 1901 the population was 2,020,616, of whom 487,380 were eligible to vote. The 1960 Federal Census reports the State’s population at 3,567,089, of whom 2,092,891 are eligible to vote. The relative standings of the counties in terms of qualified voters have changed significantly. It is primarily the continued application of the 1901 Apportionment Act to this shifted and enlarged voting population which gives rise to the present controversy. The District Court was uncertain whether our cases withholding federal judicial relief rested upon a lack of federal jurisdiction or upon the inappropriateness of the subject matter for judicial consideration—what we have designated “nonjusticiability.” The distinction between the two grounds is significant. In the instance of nonjusticiability, consideration of the cause is not wholly and immediately foreclosed; rather, the Court’s inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially molded. In the instance of lack of jurisdiction the cause either does not “arise under” the Federal Constitution, laws or treaties (or fall within one of the other enumerated categories of Art. III, §2), or is not a “case or controversy” within the meaning of that section; or the case is not one described by any jurisdictional statute. Our conclusion, . . . infra, that this case presents no nonjusticiable “political question” settles the only possible doubt that it is a case or controversy. Under the present heading of “Jurisdiction of the Subject Matter” we hold only that the matter set forth in the complaint does arise under the Constitution. Article III, §2, of the Federal Constitution provides that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority. . . .” It is clear that the cause of action is one which “arises under” the Federal Constitution. The complaint alleges that the 1901 statute effects an apportionment that deprives the appellants of the equal protection of the laws in violation of the Fourteenth Amendment. Dismissal of the complaint upon the ground of lack of jurisdiction of the subject matter would, therefore, be justified only if that claim were “so attenuated and unsubstantial as to be absolutely devoid of merit,” . . . or “frivolous.”. . . That the claim is unsubstantial must be “very plain.”. . . Since the District Court obviously and correctly did not deem the asserted federal constitutional claim unsubstantial and frivolous, it should not have

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dismissed the complaint for want of jurisdiction of the subject matter. The appellees refer to Colegrove v. Green, 328 U.S. 549 (1946), as authority that the District Court lacked jurisdiction of the subject matter. Appellees misconceive the holding of that case. The holding was precisely contrary to their reading of it. Seven members of the Court participated in the decision. Unlike many other cases in this field which have assumed without discussion that there was jurisdiction, all three opinions filed in Colegrove discussed the question. Two of the opinions expressing the views of four of the Justices, a majority, flatly held that there was jurisdiction of the subject matter. JUSTICE BLACK joined by JUSTICE DOUGLAS and JUSTICE MURPHY stated: “It is my judgment that the District Court had jurisdiction. . . .” JUSTICE RUTLEDGE, writing separately, expressed agreement with this conclusion. . . . Indeed, it is even questionable that the opinion of JUSTICE FRANKFURTER, joined by JUSTICE REED and JUSTICE BURTON, doubted jurisdiction of the subject matter. . . . We hold that the District Court has jurisdiction of the subject matter of the federal constitutional claim asserted in the complaint. We hold that the appellants do have standing to maintain this suit. Our decisions plainly support this conclusion. Many of the cases have assumed rather than articulated the premise in deciding the merits of similar claims. And Colegrove v. Green . . . squarely held that voters who allege facts showing disadvantage to themselves as individuals have standing to sue. In holding that the subject matter of this suit was not justiciable, the District Court relied on Colegrove v. Green, supra, and subsequent per curiam cases. The court stated: “From a review of these decisions there can be no doubt that the federal rule . . . is that the federal courts . . . will not intervene in cases of this type to compel legislative reapportionment.”. . . We understand the District Court to have read the cited cases as compelling the conclusion that since the appellants sought to have a legislative apportionment held unconstitutional, their suit presented a “political question” and was therefore nonjusticiable. We hold that this challenge to an apportionment presents no nonjusticiable “political question.” The cited cases do not hold the contrary. Of course, the mere fact that the suit seeks protection of a political right does not mean it presents a political question. . . . Rather, it is argued that apportionment cases, whatever the actual working of the

complaint, can involve no federal constitutional right except one resting on the guaranty of a republican form of government, and that complaints based on that clause have been held to present political questions which are nonjusticiable. We hold that the claim pleaded here neither rests upon nor implicates the Guaranty Clause and that its justiciability is therefore not foreclosed by our decisions of cases involving that clause. The District Court misinterpreted Colegrove v. Green and other decisions of this Court on which it relied. Appellants’ claim that they are being denied equal protection is justiciable, and if “discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights.” . . . To show why we reject the argument based on the Guaranty Clause, we must examine the authorities under it. But because there appears to be some uncertainty as to why those cases did present political questions, and specifically as to whether this apportionment case is like those cases, we deem it necessary first to consider the contours of the “political question” doctrine. That review reveals that in the Guaranty Clause cases and in the other “political question” cases, it is the relationship between the judiciary and the coordinate branches of the Federal Government, and not the federal judiciary’s relationship to the States, which gives rise to the “political question.” We have said that “[i]n determining whether a question falls within [the political question] category, the appropriateness under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations.” . . . The nonjusticiability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the “political question” label to obscure the need for caseby-case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which

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identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question’s presence. The doctrine of which we treat is one of “political questions,” not one of “political cases.” The courts cannot reject as “no law suit” a bona fide controversy as to whether some action denominated “political” exceeds constitutional authority. The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing. Clearly, several factors were thought by the Court in Luther v. Borden (48 U.S. 1, 1849), to make the question there “political”; the commitment to the other branches of the decision as to which is the lawful state government; the unambiguous action by the President, in recognizing the charter government as the lawful authority; the need for finality in the executive’s decision; and the lack of criteria by which a court could determine which form of government was republican. But the only significance that Luther could have for our immediate purposes is in its holding that the Guaranty Clause is not a repository of judicially manageable standards which a court could utilize independently in order to identify a State’s lawful government. The Court has since refused to resort to the Guaranty Clause—which alone had been invoked for the purpose—as the source of a constitutional standard for invalidating state action. We come, finally, to the ultimate inquiry whether our precedents as to what constitutes a nonjusticiable “political question” bring the case before us under the umbrella of that doctrine. A natural beginning is to note whether any of the common characteristics 620

which we have been able to identify and label descriptively are present. We find none: The question here is the consistency of state action with the Federal Constitution. We have no question decided, or to be decided by a political branch of government coequal with this Court. Nor do we risk embarrassment of our government abroad, or grave disturbance at home if we take issue with Tennessee as to the constitutionality of her action here challenged. Nor need the appellants, in order to succeed in this action, ask the Court to enter upon policy determinations for which judicially manageable standards are lacking. Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the particular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action. This case does, in one sense, involve the allocation of political power within a State, and the appellants might conceivably have added a claim under the Guaranty Clause. Of course, as we have seen, any reliance on that clause would be futile. But because any reliance on the Guaranty Clause could not have succeeded, it does not follow that appellants may not be heard on the equal protection claim which in fact they tender. True, it must be clear that the Fourteenth Amendment claim is not so enmeshed with those political question elements which render Guaranty Clause claims nonjusticiable as actually to present a political question itself. But we have found that not to be the case here. We conclude then that the nonjusticiability of claims resting on the Guaranty Clause, which arises from their embodiment of questions that were thought “political,” can have no bearing upon the justiciability of the equal protection claim presented in this case. Finally, we emphasize that it is the involvement in Guaranty Clause claims of the elements thought to define “political questions,” and no other feature, which could render them nonjusticiable. Specifically, we have said that such claims are not held nonjusticiable because they touch matters of state governmental organization. Brief examination of a few cases demonstrates this. When challenges to state action respecting matters of “the administration of the affairs of the State and the officers through whom they are conducted” have rested on claims of constitutional deprivation which are amenable to judicial correction, this Court has acted upon its view of the merits of the claim. . . . Only

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last Term, in Gomillion v. Lightfoot, . . . we applied the Fifteenth Amendment to strike down a redrafting of municipal boundaries which effected a discriminatory impairment of voting rights, in the face of what a majority of the Court of Appeals thought to be a sweeping commitment to state legislatures of the power to draw and redraw such boundaries. Gomillion was brought by a Negro who had been a resident of the City of Tuskegee, Alabama, until the municipal boundaries were so recast by the State Legislature as to exclude practically all Negroes. The plaintiff claimed deprivation of the right to vote in municipal elections. The District Court’s dismissal for want of jurisdiction and failure to state a claim upon which relief could be granted was affirmed by the Court of Appeals. This Court unanimously reversed. This Court’s answer to the argument that States enjoyed unrestricted control over municipal boundaries was: Legislative control of municipalities, no less than other state power, lies within the scope of relevant limitations imposed by the United States Constitution. . . . The opposite conclusion, urged upon us by respondents, would sanction the achievement by a State of any impairment of voting rights whatever so long as it was cloaked in the garb of the realignment of political subdivisions. “It is inconceivable that guarantees embedded in the Constitution of the United States may thus be manipulated out of existence.” . . .

To a second argument, that Colegrove v. Green, supra, was a barrier to hearing the merits of the case, the Court responded that Gomillion was lifted “out of the so-called ‘political’ arena and into the conventional sphere of constitutional litigation” because here was discriminatory treatment of a racial minority violating the Fifteenth Amendment. Article I, §§2, 4, and 5, and Amendment XIV, §2, relate only to congressional elections and obviously do not govern apportionment of state legislatures. However, our decisions in favor of justiciability even in light of those provisions plainly afford no support for the District Court’s conclusion that the subject matter of this controversy presents a political question. Indeed, the refusal to award relief in Colegrove resulted only from the controlling view of a want of equity. We conclude that the complaint’s allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision. The right asserted is within the reach of judicial protection under the Fourteenth Amendment. The judgment of the District Court is reversed and the cause is remanded for further proceedings consistent with this opinion. [JUSTICE WHITTAKER did not participate in the decision of this case. The concurring opinions of JUSTICES DOUGLAS and STEWART are not reprinted here.]

SHAW V. RENO 509 U.S. 630; L. ED. 2D; 113 S. CT. 2816 (1993) JUSTICE O’CONNOR delivered the opinion of the Court, in which CHIEF JUSTICE REHNQUIST and JUSTICES SCALIA, KENNEDY, and THOMAS joined. JUSTICE WHITE filed a dissenting opinion, in which JUSTICES BLACKMUN and STEVENS joined. JUSTICES BLACKMUN, STEVENS, and SOUTER filed dissenting opinions. JUSTICE O’CONNOR delivered the opinion of the Court. This case involves two of the most complex and sensitive issues this Court has faced in recent years: the

meaning of the constitutional “right” to vote, and the propriety of race-based state legislation designed to benefit members of historically disadvantaged racial minority groups. As a result of the 1990 census, North Carolina became entitled to a twelfth seat in the United States House of Representatives. The General Assembly enacted a reapportionment plan that included one majority-black congressional district. After the Attorney General of the United States objected to the plan pursuant to Section 5 of the Voting Rights Act of 1965, . . . the General Assembly passed new legislation creating a second

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majority-black district. Appellants allege that the revised plan, which contains district boundary lines of dramatically irregular shape, constitutes an unconstitutional racial gerrymander. The question before us is whether appellants have stated a cognizable claim. I The voting age population of North Carolina is approximately 78 percent white, 20 percent black, and 1 percent Native American; the remaining 1 percent is predominantly Asian. . . . The black population is relatively dispersed; blacks constitute a majority of the general population in only 5 of the State’s 100 counties. . . . The largest concentrations of black citizens live in the Coastal Plain, primarily in the northern part. . . . The General Assembly’s first redistricting plan contained one majority-black district centered in that area of the State. . . . Under Section 5, the State remained free to seek a declaratory judgment from the District Court for the District of Columbia notwithstanding the Attorney General’s objection. It did not do so. Instead, the General Assembly enacted a revised redistricting plan . . . that included a second majority-black district. . . . The first of the two majority-black districts contained in the revised plan, District 1, is somewhat hook shaped. Centered in the northeast portion of the State, it moves southward until it tapers to a narrow band; then, with fingerlike extensions, it reaches far into the southernmost part of the State near the South Carolina border. District 1 has been compared to a “Rorschach ink-blot test,” Shaw v. Barr, 808 F. Supp. 461, 476 (EDNC 1992) (CHIEF JUSTICE VOORHEES concurring in part and dissenting in part), and a “bug splattered on a windshield,” Wall Street Journal, Feb. 4, 1992, p. A14. The second majority-black district, District 12, is even more unusually shaped. It is approximately 160 miles long and, for much of its length, no wider than the I-85 corridor. It winds in snake-like fashion through tobacco country, financial centers, and manufacturing areas “until it gobbles in enough enclaves of black neighborhoods.” . . . Northbound and southbound drivers on I-85 sometimes find themselves in separate districts in one county, only to “trade” districts when they enter the next county. Of the 10 counties through which District 12 passes, five are cut into three different districts; even towns are divided. At one point the district remains contiguous only because it intersects at a single point with two other districts before crossing over them. . . . 622

The Attorney General did not object to the General Assembly’s revised plan. But numerous North Carolinians did. The North Carolina Republican Party and individual voters brought suit in Federal District Court alleging that the plan constituted an unconstitutional political gerrymander under Davis v. Bandemer, 478 U.S. 109 (1986). That claim was dismissed, see Pope v. Blue, 809 F. Supp. 392 (WDNC 1992), and this Court summarily affirmed, 506 U.S. (1992). Shortly after the complaint in Pope v. Blue was filed, appellants instituted the present action in the United States District Court for the Eastern District of North Carolina. Appellants alleged not that the revised plan constituted a political gerrymander, nor that it violated the “one person, one vote” principle, . . . but that the State had created an unconstitutional racial gerrymander. . . .Appellants sought declaratory and injunctive relief against the state appellees. They sought similar relief against the federal appellees, arguing, alternatively, that the federal appellees had misconstrued the Voting Rights Act or that the Act itself was unconstitutional. The three-judge District court granted the federal appellees’ motion to dismiss. . . . The majority first took judicial notice of a fact omitted from appellants’ complaint: that appellants are white. It rejected the argument that race-conscious redistricting to benefit minority voters is per se unconstitutional. The majority also rejected appellants’ claim that North Carolina’s reapportionment plan was impermissible. . . . The purposes of favoring minority voters and complying with the Voting Rights Act are not discriminatory in the constitutional sense, the court reasoned, and majorityminority districts have an impermissibly discriminatory effect only when they unfairly dilute or cancel out white voting strength. Because the State’s purpose here was to comply with the Voting Rights Act and because the General Assembly’s plan did not lead to proportional underrepresentation of white voters statewide, the majority concluded that appellants had failed to state an equal protection claim. . . . II ... B . . . Our focus is on appellant’s claim that the State engaged in unconstitutional racial gerrymandering.

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That argument strikes a powerful historical chord: It is unsettling how closely the North Carolina plan resembles the most egregious racial gerrymanders of the past. An understanding of the nature of appellants’ claim is critical to our resolution of the case. In their complaint, appellants did not claim that the General Assembly’s reapportionment plan unconstitutionally “diluted” white voting strength. They did not even claim to be white. Rather, appellants’ complaint alleged that the deliberate segregation of voters into separate districts on the basis of race violated their constitutional right to participate in a “color-blind electoral process. . . .” Despite their invocation of the ideal of a “colorblind” Constitution, . . . appellants appear to concede that race-conscious redistricting is not always unconstitutional. . . . That concession is wise: This Court never has held that race-conscious state decision-making is impermissible in all circumstances. What appellants object to is redistricting legislation that is so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional districting principles and without sufficiently compelling justification. For the reasons that follow, we conclude that appellants have stated a claim upon which relief can be granted under the Equal Protection Clause. . . . III A The Equal Protection Clause provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” . . . Its central purpose is to prevent the States from purposefully discriminating between individuals on the basis of race. . . . Laws that explicitly distinguish between individuals on racial grounds fall within the core of that prohibition. No inquiry into legislative purpose is necessary when the racial classification appears on the face of the statute. See Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 272 (1979). . . . Express racial classifications are immediately suspect because, “[a]bsent searching judicial inquiry . . ., there is simply no way of determining what classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.”

Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989). . . . Classifications of citizens solely on the basis of race “are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Hirabayashi v. United States, 320 U.S. 81, 100 (1943). . . . They threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility. . . . Accordingly, we have held that the Fourteenth Amendment requires state legislation that expressly distinguishes among citizens because of their race to be narrowly tailored to further a compelling governmental interest. . . . These principles apply not only to legislation that contains explicit racial distinctions, but also to those “rare” statutes that, although race-neutral, are, on their face, “unexplainable on ground other than race.” Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977). As we explained in Feeney: “A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification. . . . This rule applies as well to a classification that is ostensibly neutral but is an obvious pretext for racial discrimination. . . . B Appellants contend that redistricting legislation that is so bizarre on its face that it is “unexplainable on ground other than race,” Arlington Heights, supra, at 266, demands the same close scrutiny that we give other state laws that classify citizens by race. Our voting rights precedents support that conclusion. . . . Wright [v. Rockefeller, 376 U.S. 52, 1964] illustrates the difficulty of determining from the face of a single-member districting plan that it purposefully distinguishes between voters on the basis of race. A reapportionment statute typically does not classify persons at all; it classifies tracts of land, or addresses. Moreover, redistricting differs from other kinds of state decision-making in that the legislature always is aware of race when it draws district lines, just as it is aware of age, economic status, religious and political persuasion, and a variety of other demographic factors. That sort of race consciousness does not lead inevitably to impermissible race discrimination. As Wright demonstrates, when members of a racial group live together in one community, a reapportionment plan that concentrates

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members of the group in one district and excludes them from others may reflect wholly legitimate purposes. The district lines may be drawn, for example, to provide for compact districts of contiguous territory, or to maintain the integrity of political subdivisions. . . . The difficulty of proof, of course, does not mean that a racial gerrymander, once established, should receive less scrutiny under the Equal Protection Clause than other state legislation classifying citizens by race. Moreover, it seems clear to us that proof sometimes will not be difficult at all. In some exceptional cases, a reapportionment plan may be so highly irregular that, on its face, it rationally cannot be understood as anything other than an effort to “segregat[e] . . . voters” on the basis of race. Gomillion v. Lightfoot, 364 U.S. 339, at 341. Gomillion, in which a tortured municipal boundary line was drawn to exclude black voters, was such a case. So, too, would be a case in which a State concentrated a dispersed minority population in a single district by disregarding traditional districting principles such as compactness, contiguity, and respect for political subdivisions. We emphasize that these criteria are important not because they are constitutionally required—they are not, . . . but because they are objective factors that may serve to defeat a claim that a district has been gerrymandered on racial lines. . . . Put differently, we believe that reapportionment is one area in which appearances do matter. A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls. We have rejected such perceptions elsewhere as impermissible racial stereotypes. . . . The message that such districting sends to elected representatives is equally pernicious. When a district obviously is created solely to effectuate the perceived common interests of one racial group, elected officials are more likely to believe that their primary obligation is to represent only the members of that group, rather than their constituency as a whole. This is altogether antithetical to our system of representative 624

democracy. As JUSTICE DOUGLAS explained in his dissent in Wright v. Rockefeller nearly thirty years ago: “Here the individual is important, not his race, his creed, or his color. The principle of equality is at war with the notion that District A must be represented by a Negro, as it is with the notion that District B must be represented by a Caucasian, District C by a Jew, District D by a Catholic, and so on. . . . That system, by whatever name it is called, is a divisive force in a community, emphasizing differences between candidates and voters that are irrelevant in the constitutional sense. . . . . . . “When racial or religious lines are drawn by the State, the multiracial, multireligious communities that our Constitution seeks to weld together as one become separatist; antagonisms that relate to race or to religion rather than to political issues are generated; communities seek not the best representative but the best racial or religious partisan. Since that system is at war with the democratic ideal, it should find no footing here. 376 U.S., at 66–67 (dissenting opinion). For these reasons, we conclude that a plaintiff challenging a reapportionment statute under the Equal Protection Clause may state a claim by alleging that the legislation, though race-neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification. It is unnecessary for us to decide whether or how a reapportionment plan that, on its face, can be explained in nonracial terms successfully could be challenged. Thus, we express no view as to whether “the intentional creation of majority-minority districts, without more” always gives rise to an equal protection claim. . . . We hold only that, on the facts of this case, plaintiffs have stated a claim sufficient to defeat the state appellees’ motion to dismiss. ... V Racial classifications of any sort pose the risk of lasting harm to our society. They reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin. Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters—a goal that the Fourteenth and Fifteenth Amendments

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embody, and to which the Nation continues to aspire. It is for these reasons that race-based districting by our state legislatures demands close judicial scrutiny. In this case, the Attorney General suggested that North Carolina could have created a reasonably compact second majority-minority district in the southcentral to southeastern part of the State. We express no view as to whether appellants successfully could have challenged such a district under the Fourteenth Amendment. We also do not decide whether appellants’ complaint stated a claim under constitutional provisions other than the Fourteenth Amendment. Today we hold only that appellants have stated a claim under the Equal Protection Clause by alleging that the North Carolina General Assembly adopted a reapportionment scheme so irrational on its face that it can be understood only as an effort to segregate voters into separate voting districts because of their race, and that the separation lacks sufficient justification. If the allegation of racial gerrymandering remains uncontradicted, the District Court further must determine whether the North Carolina plan is narrowly tailored to further a compelling governmental interest. Accordingly, we reverse the judgment of the District Court and remand the case for further proceedings consistent with this opinion It is so ordered. JUSTICE WHITE, joined by JUSTICES BLACKMUN and STEVENS, dissenting: The facts of this case mirror those presented in United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144 (1977) (UJO), where the Court rejected a claim that creation of a majorityminority district violated the Constitution, either as a per se matter or in light of the circumstances leading to the creation of such a district. Of particular relevance, five of the Justices reasoned that members of the white majority could not plausibly argue that their influence over the political process had been unfairly canceled, see id., at 165–168 (opinion of JUSTICE WHITE, joined by CHIEF JUSTICE REHNQUIST and JUSTICE STEVENS). . . . Accordingly, they held that plaintiffs were not entitled to relief under the Constitution’s Equal Protection Clause. On the same reasoning, I would affirm the District Court’s dismissal of appellants’ claim in this instance. The Court today chooses not to overrule, but rather to sidestep, UJO. It does so by glossing over the striking similarities, focusing on surface differences, most

notably the (admittedly unusual) shape of the newly created district, and imagining an entirely new cause of action. Because the holding is limited to such anomalous circumstances, it perhaps will not substantially hamper a State’s legitimate efforts to redistrict in favor of racial minorities. Nonetheless, the notion that North Carolina’s plan, under which whites remain a voting majority in a disproportionate number of congressional districts, and pursuant to which the State has sent its first black representatives since Reconstruction to the United States Congress, might have violated appellants’ constitutional rights is both a fiction and a departure from settled equal protection principles. Seeing no good reason to engage in either, I dissent. I A The grounds for my disagreement with the majority are simply stated: Appellants have not presented a cognizable claim, because they have not alleged a cognizable injury. To date, we have held that only two types of state voting practices could give rise to a constitutional claim. The first involves direct and outright deprivation of the right to vote, for example by means of a poll tax or literacy test. See, e.g., Guinn v. United States, 238 U.S. 347 (1915). . . . The second type of unconstitutional practice is that which “affects the political strength of various groups,” City of Mobile, Alabama v. Bolden, 446 U.S. 55, 83 (1980), . . . in violation of the Equal Protection Clause. As for this latter category, we have insisted that members of the political or racial group demonstrate that the challenged action have the intent and effect of unduly diminishing their influence on the political process. Although this severe burden has limited the number of successful suits, it was adopted for sound reasons. . . . . . . [A] number of North Carolina’s political subdivisions have interfered with black citizens’ meaningful exercise of the franchise, and are therefore subject to Sections 4 and 5 of the Voting Rights Act. In other words, North Carolina was found by Congress to have “‘resorted to the extraordinary stratagem of contriving new rules of various kinds for the sole purpose of perpetuating voting discrimination in the face of adverse federal court decrees’” and therefore “would be likely to engage in ‘similar maneuvers in the future in order to evade the remedies for voting discrimination

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contained in the Act itself.’” McCain v. Lybrand, 465 U.S. 236, 245 (1984). . . . Like New York, North Carolina failed to prove to the Attorney General’s satisfaction that its proposed redistricting had neither the purpose nor the effect of abridging the right to vote on account of race or color. . . . In light of this background, it strains credulity to suggest that North Carolina’s purpose in creating a second majority-minority district was to discriminate against members of the majority group by “impair[ing] or burden [ing their] opportunity . . . to participate in the political process.” The State has made no mystery of its intent, which was to respond to the Attorney General’s objections, by improving the minority group’s prospects of electing a candidate of its choice. I doubt that this constitutes a discriminatory purpose as defined in the Court’s equal protection cases—i.e., an intent to aggravate “the unequal distribution of electoral power.” . . . But even assuming that it does, there is no question that appellants have not alleged the requisite discriminatory effects. Whites constitute roughly 76 percent of the total population and 79 percent of the voting age population in North Carolina. Yet, under the State’s plan, they still constitute a voting majority in 10 (or 83 percent) of the 12 congressional districts. Though they might be dissatisfied at the prospect of casting a vote for a losing candidate—a lot shared by many, including a disproportionate number of minority voters—surely they cannot complain of discriminatory treatment. ...

prior plan. Hence, I see no need for a remand at all, even accepting the majority’s basic approach to this case. Furthermore, how it intends to manage this standard, I do not know. Is it more “narrowly tailored” to create an irregular majority-minority district as opposed to one that is compact but harms other State interests such as incumbency protection or the representation of rural interest? Of the following two options—creation of two minority influence districts or of a single majority-minority district—is one “narrowly tailored” and the other not? Once the Attorney General has found that a proposed redistricting change violates Section 5’s nonretrogression principle in that it will abridge a racial minority’s right to vote, does “narrow tailoring” mean that the most the State can do is preserve the status quo? Or can it maintain that change, while attempting to enhance minority voting power in some other manner? This small sample only begins to scratch the surface of the problems raised by the majority’s test. But it suffices to illustrate the unworkability of a standard that is divorced from any measure of constitutional harm. In that, State efforts to remedy minority vote dilution are wholly unlike what typically has been labeled “affirmative action.” To the extent that no other racial group is injured, remedying a Voting Rights Act violation does not involve preferential treatment. . . . It involves, instead, an attempt to equalize treatment, and to provide minority voters with an effective voice in the political process. The Equal Protection Clause of the Constitution, surely, does not stand in the way.

III

IV

Although I disagree with the holding that appellants’ claim is cognizable, the Court’s discussion of the level of scrutiny it requires warrants a few comments. I have no doubt that a State’s compliance with the Voting Rights Act clearly constitutes a compelling interest. . . . Here, the Attorney General objected to the State’s plan on the ground that it failed to draw a second majority-minority district for what appeared to be pretextual reasons. Rather than challenge this conclusion, North Carolina chose to draw the second district. As UJO held, a State is entitled to take such action. . . . The Court, while seemingly agreeing with this position, warns that the State’s redistricting effort must be “narrowly tailored” to further its interest in complying with the law. It is evident to me, however, that what North Carolina did was precisely tailored to meet the objection of the Attorney General to its

Since I do not agree that petitioners alleged an Equal Protection violation and because the Court of Appeals faithfully followed the Court’s prior cases, I dissent and would affirm the judgment below.

626

VOTING RIGHTS AND THE CONSTITUTION: THE 2000 PRESIDENTIAL ELECTION FEATURED CASE

Northwest Austin Municipal Utility Dist. No. 1 v. Holder The 2000 Presidential election provided America with a seminar on the interplay of voting rights, politics, and the Constitution. On the one hand, politics

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influences what the Constitution says and does not say; on the other hand, the Constitution significantly informs the rules of the game. These rules, in turn, contribute to who wins and loses in political conflicts. As election evening gave way to the postelection morning, the most knowledgeable and experienced prognosticians were unable to declare either Al Gore, the Democratic nominee, or George Bush, the Republican candidate, the winner. The following 5 weeks were filled with charges and countercharges. The nation’s focus was the state of Florida, where candidate Bush’s brother Jeb Bush served as governor. However, the votes that were counted were not the decisive factor in the election of the president of the United States. Black, Hispanic, elderly, and poor voters cried foul. Many of these voters charged election and other state officials with irregularities, including the confusing butterfly ballot in some of the less affluent counties, the use of law enforcement to harass black voters at or near polling places, the expunging of legitimate black and other minority voters from voting lists supposedly for felony convictions, and a deficiency in reliable workers to staff the polling places that served black and poorer voters. Power struggles took place at various levels in the body politic, within party, interest group, racial, federal-level, and state–local politics. Copious reports of civil rights violations dominated news cycles in the print and broadcast media. On the morning of Tuesday, November 8, 2000, election results were too close in the states of Florida, New Mexico, Washington, and Wisconsin for those states to call a winner. Florida became the major battleground. Governor George Bush of Texas tallied 2,909,135 votes there and Vice President Al Gore received 2,907,132 votes. Bush’s margin of victory was less than half of 1 percent of the votes cast. Under such circumstances, Florida election laws required an automatic machine recount. After the machine recount had been done, Vice President Gore demanded manual recounts in Volusia, Palm Beach, Broward, and Miami–Dade counties. Under votes were alleged in these five counties. The claims and counterclaims provided the nation the vantage point for an in-depth course on machine versus manual recount; contesting certification of the election results versus protesting the results of the election; the authority of state officials versus federal officials to resolve political and constitutional conflicts under federalism; and presidential elections versus congressional elections.

Generally, Governor Bush found executive officials at the state level and federal courts to be more receptive to his claims. On the other hand, Vice President Gore received greater support for his claims from local-level election officials and the Florida Supreme Court. For example, the Republican Secretary of State, Katherine Harris, rejected Gore’s request to waive the November deadline as delineated in the provisions of Florida’s election laws. Vice President Gore then took his argument to the Florida Supreme Court, where Democratic-appointed justices outnumbered Republican appointees. The Florida Supreme Court accepted Gore’s position, establishing November 26 as the deadline. Governor Bush sought to vindicate his position in the U.S. Supreme Court where Republican appointees outnumbered Democratic ones 7–2. Vacating the Florida Supreme Court holding, the nation’s high Court remanded the case and required the Florida Court to reinstate the earlier date. After the Florida Elections Canvassing Commission certified the results of the election and declared Governor Bush to be the winner of the state’s 25 electoral votes, Vice President Gore, under the provisions of Florida’s election laws that permitted contesting the election, initiated more litigation in the judicial system of Florida. When the controversy reached the Florida Supreme Court, the justices held, among other rulings, that Vice President Gore satisfied the burden of proof, challenging Miami–Dade County’s failure to tabulate by hand 9000 ballots. Machines undercounted the votes because they occasionally failed to detect a vote for president. The Florida Supreme Court put forth a definition of a legal vote as “one in which there is a clear indication of the intent of the voter.” The Supreme Court of Florida directed the Circuit Court to include 215 ballots and a 168 net vote gain for Gore in Palm Beach and Miami–Dade counties respectively in the “total certified results, subjected to resolution of the actual vote total from the Miami–Dade partial recount.” As Vice President Gore had utilized the state judicial system, Governor Bush sought redress in the federal court system. The Supreme Court issued a stay which effectively discontinued the manual recounts that had begun in all the counties that had not conducted a manual recount or tabulation of the under votes. The justices of the Florida Supreme Court held that the Circuit Court could order the supervisor of elections, canvassing boards, and the necessary public officials to do so forthwith, said tabulation to take place in the individual

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counties where the ballots are located throughout the state. In a per curiam opinion (Bush v. Gore, 531 U.S. 98, 2000), a majority joined editorials and commentators who argued that the Bush–Gore controversy suggested a need for national election reforms. The per curiam opinion stated that “legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting.” The Bush Court concluded, however, that the following questions demanded the attention of justices: whether the Florida Supreme Court established new standards for resolving presidential election contests, thereby violating Art. II, Section I, Clause 2 of the United States Constitution and failing to comply with 3 U.S.C. Section 5; and whether the use of standard less manual recounts violated the Equal Protection and Due Process Clauses. The Bush Court held that a violation of the Equal Protection Clause had taken place. The per curiam decision couched the issue in the context of the basis of the individual federal constitutional right to vote for electors for the president of the United States. The Court maintained that the Constitution granted that responsibility to the state legislature: “The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as a means to implement its power to appoint members of the electoral college.” Then the Bush Court concentrated on the protection of the allocation and exercise of the right to vote. The Court insisted that the “right to vote is protected in more than the initial allocation of the franchise. Equal Protection applies as well as to the manner of its exercise.” The per curiam opinion sidestepped the question of whether the Florida Supreme Court had the authority under the legislative scheme for resolving election disputes to define what a legal vote is and mandate a manual recount implementing that definition. The Florida Supreme Court established the standard for a legal vote as the “intent of the voter.” In the view of the Supreme Court of the United States, Florida’s high court failed to adopt a standard that avoided arbitrary and disparate treatment of voters in Florida. The per curiam opinion held that the “recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamental right.” The Bush v. Gore 628

Court insisted that the Florida Supreme Court’s “intent of the voters” requirement did not provide specific standards to ensure its equal application.” The want of specific rules “has led to unequal evaluation of bailout in various aspects.” The Bush opinion identified several difficulties with the recount (e.g., minimal procedural safeguards) and the recount was not calculated to sustain the confidence of the citizens of Florida. The Bush Court decided “that the recount cannot be conducted in compliance with the requirements of equal protection and due process without additional work.” The Bush Court also concluded that the recount would not meet the Florida statute’s safe-harbor date of December 12. The per curiam decision reversed the judgment of the Supreme Court of Florida and ordered a recount to proceed. The national division sparked by the contested presidential election in Florida reverberated in the concurring and dissenting opinions of the justices. In a concurring opinion joined by Justice Scalia and Thomas, Chief Justice Rehnquist sought to provide additional grounds for reversal of the Florida Supreme Court. First, Rehnquist distinguished a presidential election from “ordinary” elections. Presidential elections required the Supreme Court to abandon the practice of “comity and respect for federalism” that compelled deference “to the decisions of state courts on issues of state law.” In the case of presidential elections, Rehnquist read Article II, Section I, Clause 2 as assigning the procedure for appointing electors for President and Vice President to the legislature of the state. Thus, the Supreme Court “must ensure that protection state-court actions do not frustrate the legislative desire to attain the ‘safe harbor’ of the Florida statute.” In order to determine whether “a state court has infringed upon the legislature’s authority,” the Supreme Court “must examine the law of the state as it existed prior to the action of the court.” The Chief Justice concluded that “the Florida Supreme Court’s interpretation of Florida election laws impermissibly distorted them beyond what a fair reading required, in violation of Article II.” Rehnquist evaluated the Florida legislature’s statutory scheme as providing for appointment of presidential electors by direct election, designating the Secretary of State as the chief election officer, and giving the chief election officer the responsibility to “abstain and maintain uniformity in the application, operation, and interpretation of the election laws.” The canvassing

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boards were delegated the duties of administering elections. Rehnquist accused the Florida Supreme Court of departing from the legislative scheme. Finally, Chief Justice Rehnquist alleged “the scope and nature of the remedy by the Florida Supreme Court jeopardizes the ‘legislative wish’ to take advantage of the safe harbor by 3 U.S.C. Section 5.” Rehnquist would substitute the United States Supreme Court’s reading of Florida election procedures over that of the Florida Supreme Court’s. The dissenting opinion of Justice Stevens, joined by Justices Ginsburg and Breyer, took the majority to task. Admittedly, Stevens indicated that on rare occasions “either federal statutes or the Federal Constitution may require federal judicial intervention in state elections.” Stevens argued that this particular occasion was not one of them. In Stevens’s view, the federal questions raised in “this case are not substantial.” Unlike Chief Justice Rehnquist, Justice Stevens explained the “legislative power in Florida is subject to judicial review pursuant to Article II of the Florida Constitution, and nothing in Article II of the Federal Constitution frees the state legislature from the constraints in the State Constitution that created it.” Unlike Chief Justice Rehnquist, Justice Stevens argued that both Section 5 and Article II “assume the involvement of the state judiciary in interpreting state election laws and resolving disputes under those laws.” Unlike Chief Justice Rehnquist, Justice Stevens argued that “the failure of the Florida Supreme Court to specify in detail the precise manner in which the ‘intent of the voter’ is to be determined [did not rise] to the level of a constitutional violation.” Stevens compared the “intent of the voter” to the “beyond a reasonable doubt” standard that was “employed every day by ordinary citizens in courtrooms across this country.” That is, “intent of the voter” standard is not “any less sufficient—or will lead to results any less uniform— than . . . ‘beyond a reasonable doubt’ standard.” Unlike Chief Justice Rehnquist, Stevens believed the difficulties raised by differing substandards to determine “voter intent” would be eliminated by the single impartial magistrate who would “ultimately adjudicate all objections arising from the recount process.” Justice Stevens also claimed that the majority disenfranchised “an unknown number of voters whose ballots reveal their intent—and are therefore legal votes under state law—but were for some reason rejected by ballot-counting machines.” In conclusion, he called Bush’s claims a “federal as-

sault on the Florida election procedures” and said they were based on “an unstated lack of confidence in the impartiality and capacity of state judges.” Stevens contended, “Time will one day heal the wound to that confidence that will be inflicted by today’s decision.” We will not discuss the dissenting opinions of Justices Souter and Breyer, but will cover the dissenting opinion of Justice Ginsburg, which was joined by Justice Stevens and by Justices Souter and Breyer in Part I. Justice Ginsburg claimed that the majority disrespected the Florida Supreme Court and was motivated by its disagreement with “the Florida Court’s interpretation of its own state’s law.” Ginsburg stated that the “Constitution does not call upon us to pay more respect to a federal administrative agency’s construction of federal law than to a state high court’s interpretation of its own state’s law.” Justice Ginsburg strongly disapproved of Rehnquist’s construction of Article II. She argued that (1) the Framers of the Constitution understood that in a republic government that the judiciary would construe the legislature’s enactments; (2) the guarantee of a “Republican Form of Government means Article II cannot be read to invite the Supreme Court’s disruption of a state’s republican regime”; (3) the majority’s construction of Article II contradicts the basic principle that a “state may organize itself as it sees fit”; and (4) the majority had obscured the ordinary principle that “federal courts defer to a state high court’s interpretation of the State’s own law.” Like Justice Stevens, Ginsburg did not believe that the case presented “a substantial equal protection claim.” Ginsburg concluded that the “Court’s conclusion that a constitutionally adequate recount is impractical is a prophecy the Court’s own judgment will not allow to be tested.” She continued, “[such] an untested prophecy should not decide the Presidency of the United States.” Seemingly, many Americans were not satisfied with the outcome of the presidential election of 2000. Editorials criticized state and federal officials alike. Even the Supreme Court’s motivation was questioned; people claimed that Bush v. Gore was decided on the basis of partisanship rather than using judicial craftsmanship. The allegation of civil rights violations brought civil rights groups and the Congressional Black Caucus into the fray. The experience, however, made Americans aware of the widespread undemocratic elements in many of the

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nation’s elections from Illinois to New York, from Florida to New Mexico, and from Washington to Louisiana. Internationally, the presidential election of 2000 made other nations aware of America’s own struggles to perfect democracy on many levels and fronts. In 2002, Congress enacted legislation to address many of the problems and difficulties that were exposed in the 2000 Presidential elections. The Help America Vote Act of 2002 (HAVA) sought, among other things, (1) to improve the administration of elections for federal office; (2) to educate voters on voting procedures, voting rights, and voting technology; (3) to train election officials, poll workers, and election volunteers; (4) to improve the accessibility and quantity of polling places; (5) to establish tollfree telephone hotlines that voters may use to report possible voting fraud and voting rights violations, obtain general election information, and access detailed automated information on their own voter registration status and specific polling place locations; (6) to establish a program under which the administrator of General Services shall make payment to each state eligible according to whether a precinct within the state used a punch-card voting system or a lever voting system to administer the regularly scheduled general election for federal office held in November 2000; and (7) to define a punch-card voting system. The Help America Vote Act of 2002 also provided instructions on establishing identification requirements. Indiana was one of the states that enacted statutes using identification requirements. The statute applied to in-person voting at both primary and general elections. Absentee ballots were not included under the coverage of the statute. The statute also provided an exception for individuals who were living and voting in a state-licensed facility, such as a nursing home. The Indiana legislation made provisions for voters who were indigent or who had religious objections to being photographed. Such people were permitted to cast provisional ballots that were counted only if they executed “an appropriate affidavit before the circuit court clerk within 10 days following the elections. A voter who has photo identification but is unable to present that identification on election day may file a provisional ballot that will be counted if she brings her photo identification to the circuit county clerk’s office within ten days.” Immediately after Indiana enacted the voter identification statute, the 630

Indiana Democratic Party and the Marion County Democratic Central Committee initiated a lawsuit in the federal District Court, asking the Court to declare the voter identification law invalid and enjoin its enforcement. The District Court found the evidence in the record to be insufficient to support a facial attack on the statute’s validity. The Seventh Circuit Court of Appeals concluded that the burden on voters was offset by the benefit of reducing the risk of fraud. Speaking for a 6–3 majority in (Crawford v. Marion County Election Board, 553 U.S. 181 (2008), Justice Stevens was not persuaded by the petitioners’ complaint that the statute: “substantially burdens the right to vote in violation of the Fourteenth Amendment; that it is neither a necessary nor appropriate method of avoiding election fraud; and that it will arbitrarily disfranchise qualified voters who do not possess the required identification and will place an unjustified burden on those who cannot readily abstain such identification.”

Justice Stevens identified three valid state interests advanced by the State of Indiana: (1) Deterring and detecting voter fraud; (2) preventing voter fraud in response to a problem that was in part the product of its own maladministration; and (3) safeguarding voter confidence. Stevens pointed to two federal statutes, the National Voter Registration Act of 1993 (NVRA) and the Help America Vote Act of 2002 (HAVA) that required states to modernize their election procedures. He noted that the NVRA had both increased the number of registered voters and made it more difficult for states to remove names from the lists of registered voters. Stevens discussed how the HAVA had imposed new identification for people who were registering to vote for the first time and for those who were voting by mail. Justice Stevens admitted, however, that neither HAVA nor NVRA required the state of Indiana to enact the voter identification statute. He said that the statute did “indicate that Congress believes that photo identification is one effective method of establishing a voter’s qualification to vote and that the integrity of elections is enhanced through improved technology.” Stevens then turned to the motivation of Indiana to restrict voter fraud. Justice Stevens indicated that the only voter fraud which the Indiana statute “addresses is inperson voter impersonation at polling places.” He also noted that the “record contains no evidence in

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Indiana at any time in its history.” Steven still urged that national guidance and fraudulent voting in the 2003 Democratic primary for East Chicago Major “demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.” Justice Stevens also addressed the state’s interest in protecting public confidence “in the integrity and legitimacy of representative government.” The relationship between the state’s interest in preventing fraud and the interest in public confidence relates to the integrity of the electoral process. Stevens contended that the public confidence interest “has independent significance, because it encourages citizen participation in the democratic process.” He agreed with the petitioners that a “photo identification requirement imposes some burdens on voters that other methods of identification do not share.” Stevens, however, insisted that “a somewhat heavier burden may be placed on a limited number of persons,” including elderly persons born out-of-state, persons who have economic or other personal limitations, homeless persons, and persons who have a religious objection to being photographed. Justice Stevens concluded that the “severity of that burden is . . . mitigated by the fact that, if eligible, voters without photo identification may cast provisional ballots that will ultimately be counted.” Stevens also stated that “on the basis of the record that has been made in this litigation, we cannot conclude that the statute imposes ‘excessively burdensome requirements’ on any class of voters.” He believed the statute to be nondiscriminatory. Justice Scalia filed an opinion concurring in the judgment and joined by Justices Thomas and Alito. Scalia concluded, “The universally applicable requirements of Indiana’s voter identification law are eminently reasonable. The burden of acquiring, possessing, and showing a free photo identification is simply not severe, because it does not even represent a significant increase over the usual burdens of voting.” In the dissenting opinion, which Justice Ginsburg joined, Justice Souter believed that (1) the Indiana Voter Identification Law “threatens to impose nontrivial burdens on the voting right of tens of thousands of the State’s citizens”; (2) the statute is likely to deter a significant percentage of burdened individuals from voting; and (3) the statute is “unconstitutional under the balancing

standard of Burdick v. Takushi (504 U.S. 428, 1992).” Souter asserted that Stevens’ opinion “does not insist enough on the hard facts that our standard of review demands.” That is, Justice Souter claimed that the majority opinion does not make “a careful, ground-level appraisal both of the practical burdens on the right to vote and of the State’s reasons for imposing those precise burdens.” Souter argued that the burden of travel costs and fees that had to be paid in order to get one of the limited variety of federal or state photo identifications needed to cast a regular ballot under the Voter Identification Law would affect voters based on their circumstances. He suggested that although the “average person probably view[s] [the trip to the Indiana Bureau of Motor Vehicles] as nothing more than an inconvenience. . . . Poor, old, and disabled voters who do not drive a car however, may find the trip prohibitive.” Justice Souter contended that the law’s provisional-ballot exception to the identification requirement for individuals whom Indiana considers “indigent” and those with religious objections to being photographed does not amount to much relief. Next he pointed out the burden placed on “tens of thousands of voting-age residents [who] lack the necessary photo identification. A large proportion of them are likely to be in bad shape economically.” In short, the Voter Identification Law placed hurdles that “translate into nontrivial economic costs.” Souter rejected the interests claimed by the State of Indiana and accepted by the majority as rationales for the voter identification requirements: (1) Election modernization, (2) antifraud efforts, and (3) safeguarding voter confidence. Justice Souter concluded that the “Indiana voter ID Law is thus unconstitutional: the state interests fail to justify the practical limitations placed on the right to vote, and the law imposes an unreasonable and irrelevant burden on voters who are poor and old.” In a dissenting opinion, Justice Breyer adjudged the Indiana Voter Identification Law to be “unconstitutional because it imposes a disproportionate burden upon those eligible voters who lack a driver’s license or other statutorily valid form of photo ID.” For example, Breyer noted that an Indiana nondriver is most likely to be poor, elderly, or disabled. He suggested that other examples of state voter identification laws are available for residents of Indiana. Both Florida and Georgia have significantly less restrictive photo ID requirements than

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Indiana. Justice Breyer charged that the “record nowhere provides a convincing reason why Indiana’s photo ID requirement must impose greater burdens than those of other states, or than the Carter–Barker Commission recommended nationwide.” Several lessons on democracy in America may be drawn from the controversy over the presidential election of 2000 and the resulting political fall-out. First, the influence of party or partisan politics is illuminated in the strategy and tactics of the Bus and Gore campaigns. Bush fared significantly better in

federal courts, whereas Gore won several key victories in the Florida Supreme Court. Second, the supremacy of federal courts and the Constitution over state courts and laws is made clear. Third, the controversy highlighted the interplay of race and poverty and the congressional response in the HAVA of 2002. Fourth, American democracy is a work in progress in which issues of democratization are debated and translated in statutes and court cases. Finally, the rancor from the 2000 presidential election recount in Florida remains an undercurrent in American politics.

NORTHWEST AUSTIN MUNICIPAL UTILITY DIST. NO. 1. V. HOLDER 557 U.S.____ (2009) CHIEF JUSTICE ROBERTS delivered the opinion of the Court, in which JUSTICES STEVENS, SCALIA, KENNEDY, SOUTER, GINSBURG, BREYER, and ALITO joined. JUSTICE THOMAS filed an opinion concurring in the judgment in part and dissenting in part. CHIEF JUSTICE ROBERTS delivered the opinion of the Court. The plaintiff in this case is a small utility district raising a big question—the constitutionality of §5 of the Voting Rights Act. The district has an elected board, and is required by §5 to seek preclearance from federal authorities in Washington, D. C., before it can change anything about those elections. This is required even though there has never been any evidence of racial discrimination in voting in the district. The district filed suit seeking relief from these preclearance obligations under the “bailout” provision of the Voting Rights Act. That provision allows the release of a “political subdivision” from the preclearance requirements if certain rigorous conditions are met. The court below denied relief, concluding that bailout was unavailable to a political subdivision like the utility district that did not register its own voters. The district appealed, arguing that the Act imposes no such limitation on bailout, and that if it does, the preclearance requirements are unconstitutional. That constitutional question has attracted ardent briefs from dozens of interested parties, but the 632

importance of the question does not justify our rushing to decide it. Quite the contrary: Our usual practice is to avoid the unnecessary resolution of constitutional questions. We agree that the district is eligible under the Act to seek bailout. We therefore reverse, and do not reach the constitutionality of §5. I A The Fifteenth Amendment promises that the “right of citizens of the United States to vote shall not be denied or abridged . . . on account of race, color, or previous condition of servitude.” U.S. Const., Amdt. 15, §1. In addition to that self-executing right, the Amendment also gives Congress the “power to enforce this article by appropriate legislation.” §2. The first century of congressional enforcement of the Amendment, however, can only be regarded as a failure. Early enforcement Acts were inconsistently applied and repealed with the rise of Jim Crow. South Carolina v. Katzenbach, 383 U.S. 301, 310 (1966);. . . . Another series of enforcement statutes in the 1950s and 1960s depended on individual lawsuits filed by the Department of Justice. But litigation is slow and expensive, and the States were creative in “contriving new rules” to continue violating the Fifteenth Amendment “in the face of adverse federal court decrees.” Katzenbach, supra, at 335; Riley v. Kennedy, 553 U.S. ___, ___ (2008) (slip op., at 2).

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Congress responded with the Voting Rights Act. Section 2 of the Act operates nationwide; as it exists today, that provision forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” 42 U.S. C. §1973(a). Section 2 is not at issue in this case. The remainder of the Act constitutes a “scheme of stringent remedies aimed at areas where voting discrimination has been most flagrant.” Katzenbach, supra, at 315. Rather than continuing to depend on case-by-case litigation, the Act directly pre-empted the most powerful tools of black disenfranchisement in the covered areas. All literacy tests and similar voting qualifications were abolished by §4 of the Act. Voting Rights Act of 1965, §§4(a)– (d), 79 Stat. 438–439. Although such tests may have been facially neutral, they were easily manipulated to keep blacks from voting. The Act also empowered federal examiners to override state determinations about who was eligible to vote. §§6, 7, 9, 13, id., at 439–442, 444–445. These two remedies were bolstered by §5, which suspended all changes in state election procedure until they were submitted to and approved by a three-judge Federal District Court in Washington, D. C., or the Attorney General. Id., at 439, codified as amended at 42 U.S. C. §1973c(a). Such preclearance is granted only if the change neither “has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.” Ibid. We have interpreted the requirements of §5 to apply not only to the ballot-access rights guaranteed by §4, but to drawing district lines as well. Allen v. State Bd. of Elections, 393 U.S. 544, 564–565 (1969). To confine these remedies to areas of flagrant disenfranchisement, the Act applied them only to States that had used a forbidden test or device in November 1964, and had less than 50 percent voter registration or turnout in the 1964 Presidential election. §4(b), 79 Stat. 438. Congress recognized that the coverage formula it had adopted “might bring within its sweep governmental units not guilty of any unlawful discriminatory voting practices.” Briscoe v. Bell, 432 U.S. 404, 411 (1977). It therefore “afforded such jurisdictions immediately available protection in the form of . . . [a] ‘bailout’ suit.” Ibid. To bail out under the current provision, a jurisdiction must seek a declaratory judgment from a threejudge District Court in Washington, D. C. 42 U.S.C.

§§1973b(a)(1), 1973c(a). It must show that for the previous ten years it has not used any forbidden voting test, has not been subject to any valid objection under §5, and has not been found liable for other voting rights violations; it must also show that it has “engaged in constructive efforts to eliminate intimidation and harassment” of voters, and similar measures. §§1973b(a)(1)(A)–(F). The Attorney General can consent to entry of judgment in favor of bailout if the evidence warrants it, though other interested parties are allowed to intervene in the declaratory judgment action. §1973b(a)(9). There are other restrictions: To bail out, a covered jurisdiction must show that every jurisdiction in its territory has complied with all of these requirements. §1973b(a)(3). The District Court also retains continuing jurisdiction over a successful bailout suit for ten years, and may reinstate coverage if any violation is found. §1973b(a)(5). As enacted, §§4 and 5 of the Voting Rights Act were temporary provisions. They were expected to be in effect for only five years. §4(a), 79 Stat. 438. We upheld the temporary Voting Rights Act of 1965 as an appropriate exercise of congressional power in Katzenbach, explaining that “[t]he constitutional propriety of the Voting Rights Act of 1965 must be judged with reference to the historical experience which it reflects.” 383 U.S., at 308. We concluded that the problems Congress faced when it passed the Act were so dire that “exceptional conditions [could] justify legislative measures not otherwise appropriate.” Id., at 334–335 (citing Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 (1934), and Wilson v. New, 243 U.S. 332 (1917)).Congress reauthorized the Act in 1970 (for five years), 1975 (for seven years), and 1982 (for twenty-five years). The coverage formula remained the same, based on the use of voting eligibility tests and the rate of registration and turnout among all voters, but the pertinent dates for assessing these criteria moved from 1964 to include 1968 and eventually 1972. 42 U.S.C. §1973b(b). We upheld each of these reauthorizations against constitutional challenges, finding that circumstances continued to justify the provisions. Georgia v. United States, 411 U.S. 526 (1973); City of Rome v. United States, 446 U.S. 156 (1980); Lopez v. Monterey County, 525 U.S. 266 (1999). Most recently, in 2006, Congress extended §5 for yet another twenty-five years. Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, 120 Stat. 577. The 2006 Act retained 1972 as

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the last baseline year for triggering coverage under §5. It is that latest extension that is now before us. B Northwest Austin Municipal Utility District Number One was created in 1987 to deliver city services to residents of a portion of Travis County, Texas. It is governed by a board of five members, elected to staggered terms of four years. The district does not register voters but is responsible for its own elections; for administrative reasons, those elections are run by Travis County. Because the district is located in Texas, it is subject to the obligations of §5, although there is no evidence that it has ever discriminated on the basis of race. The district filed suit in the District Court for the District of Columbia, seeking relief under the statute’s bailout provisions and arguing in the alternative that, if interpreted to render the district ineligible for bailout, §5 was unconstitutional. The three-judge District Court rejected both claims. Under the statute, only a “State or political subdivision” is permitted to seek bailout, 42 U.S. C. §1973b(a)(1)(A), and the court concluded that the district was not a political subdivision because that term includes only “counties, parishes, and voter-registering subunits,” Northwest Austin Municipal Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221, 232 (2008). Turning to the district’s constitutional challenge, the court concluded that the twenty-five year extension of §5 was constitutional both because “Congress . . . rationally concluded that extending [§]5 was necessary to protect minorities from continued racial discrimination in voting” and because “the 2006 Amendment qualifies as a congruent and proportional response to the continuing problem of racial discrimination in voting.” Id., at 283. We noted probable jurisdiction, 555 U.S. ___ (2009), and now reverse. II The historic accomplishments of the Voting Rights Act are undeniable. When it was first passed, unconstitutional discrimination was rampant and the “registration of voting-age whites ran roughly 50 percentage points or more ahead” of black registration in many covered States. Katzenbach, supra, at 313; H. R. Rep. No. 109–478, p. 12 (2006). Today, the registration gap between white and black voters is in single digits in the covered States; in some of those States, blacks now register and vote at higher rates than whites. Id., at 634

12–13. Similar dramatic improvements have occurred for other racial minorities. Id., at 18–20. “[M]any of the first generation barriers to minority voter registration and voter turnout that were in place prior to the [Voting Rights Act] have been eliminated.” Id., at 12; Bartlett v. Strickland, 556 U.S. 1, ___ (2009) (slip op., at 5) (plurality opinion) (“Passage of the Voting Rights Act of 1965 was an important step in the struggle to end discriminatory treatment of minorities who seek to exercise one of the most fundamental rights of our citizens: the right to vote”). At the same time, §5, “which authorizes federal intrusion into sensitive areas of state and local policymaking, imposes substantial ‘federalism costs.’” Lopez, supra, at 282 (quoting Miller v. Johnson, 515 U.S. 900, 926 (1995)). These federalism costs have caused Members of this Court to express serious misgivings about the constitutionality of §5. Katzenbach, 383 U.S., at 358–362 (BLACK, J., concurring and dissenting); Allen, 393 U.S., at 586, n. 4 (HARLAN, J., concurring in part and dissenting in part); Georgia, supra, at 545 (POWELL, J., dissenting); City of Rome, 446 U.S., at 209–221 (REHNQUIST, J., dissenting); id., at 200–206 (POWELL, J., dissenting); Lopez, 525 U.S., at 293–298 (THOMAS, J., dissenting); id., at 288 (KENNEDY, J., concurring in judgment). Section 5 goes beyond the prohibition of the Fifteenth Amendment by suspending all changes to state election law—however innocuous—until they have been precleared by federal authorities in Washington, D. C. The preclearance requirement applies broadly, NAACP v. Hampton County Election Comm’n, 470 U.S. 166, 175–176 (1985), and in particular to every political subdivision in a covered State, no matter how small, United States v. Sheffield Bd. of Comm’rs, 435 U.S. 110, 117–118 (1978). Some of the conditions that we relied upon in upholding this statutory scheme in Katzenbach and City of Rome have unquestionably improved. Things have changed in the South. Voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels. See generally H. R. Rep. No. 109–478, at 12–18. These improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success. Past success alone, however, is not adequate justification to retain the preclearance requirements. See Issacharoff, Is Section 5 of the Voting Rights Act a Victim of Its Own Success? 104 Colum. L. Rev. 1710 (2004). It may be

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that these improvements are insufficient and that conditions continue to warrant preclearance under the Act. But the Act imposes current burdens and must be justified by current needs. The Act also differentiates between the States, despite our historic tradition that all the States enjoy “equal sovereignty.” United States v. Louisiana, 363 U.S. 1, 16 (1960) (citing Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845)); see also Texas v. White, 7 Wall. 700, 725–726 (1869). Distinctions can be justified in some cases. “The doctrine of the equality of States . . . does not bar . . . remedies for local evils which have subsequently appeared.” Katzenbach, supra, at 328–329 (emphasis added). But a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets. These federalism concerns are underscored by the argument that the preclearance requirements in one State would be unconstitutional in another. See Georgia v. Ashcroft, 539 U.S. 461, 491–492 (2003) (KENNEDY, J., concurring) (“Race cannot be the predominant factor in redistricting under our decision in Miller v. Johnson, 515 U.S. 900 (1995). Yet considerations of race that would doom a redistricting plan under the Fourteenth Amendment or §2 seem to be what save it under §5”). Additional constitutional concerns are raised in saying that this tension between §§2 and 5 must persist in covered jurisdictions and not elsewhere. The evil that §5 is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance. The statute’s coverage formula is based on data that is now more than thirty-five years old, and there is considerable evidence that it fails to account for current political conditions. For example, the racial gap in voter registration and turnout is lower in the States originally covered by §5 than it is nationwide. E. Blum & L. Campbell, Assessment of Voting Rights Progress in Jurisdictions Covered Under Section Five of the Voting Rights Act 3–6 (American Enterprise Institute, 2006). Congress heard warnings from supporters of extending §5 that the evidence in the record did not address “systematic differences between the covered and the noncovered areas of the United States[,] . . . and, in fact, the evidence that is in the record suggests that there is more similarity than difference.” The Continuing Need for Section 5 Pre-Clearance: Hearing before the Senate Committee on the Judiciary, 109th Cong.,

2dSess., 10 (2006) (statement of Richard H. Pildes); see also Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L. J. 174, 208 (2007) (“The most one can say in defense of the [coverage] formula is that it is the best of the politically feasible alternatives or that changing the formula would . . . disrupt settled expectations”). In assessing those questions, we are keenly mindful of our institutional role. We fully appreciate that judging the constitutionality of an Act of Congress is “the gravest and most delicate duty that this Court is called on to perform.” Blodgett v. Holden, 275 U.S. 142, 147–148 (1927) (HOLMES, J., concurring). “The Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States.” Rostker v. Goldberg, 453 U.S. 57, 64 (1981). The Fifteenth Amendment empowers “Congress,” not the Court, to determine in the first instance what legislation is needed to enforce it. Congress amassed a sizable record in support of its decision to extend the preclearance requirements, a record the District Court determined “document[ed] contemporary racial discrimination in covered states.” 573 F. Supp. 2d, at 265. The District Court also found that the record “demonstrat[ed] that Section 5 prevents discriminatory voting changes” by “quietly but effectively deterring discriminatory changes.” Id., at 264. We will not shrink from our duty “as the bulwar[k] of a limited constitution against legislative encroachments,” The Federalist No. 78, p. 526 (J. Cooke ed. 1961) (A. Hamilton), but “[i]t is a wellestablished principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case,” Escambia County v. McMillan, 466 U.S. 48, 51 (1984) (per curiam). Here, the district also raises a statutory claim that it is eligible to bail out under §§4 and 5. III Section 4(b) of the Voting Rights Act authorizes a bailout suit by a “State or political subdivision.” 42 U.S. C. §1973b(a)(1)(A). There is no dispute that the district is a political subdivision of the State of Texas in the ordinary sense of the term. See, e.g., Black’s Law Dictionary 1197 (8th ed. 2004) (“A division of a state that exists primarily to discharge some function of local government”). The district was created under Texas law with “powers of government”

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relating to local utilities and natural resources. Tex. Const., Art. XVI, §59(b); Tex. Water Code Ann. §54.011 (West 2002); see also Bennett v. Brown Cty. Water Improvement Dist. No. 1, 272 S. W. 2d 498, 500 (Tex. 1954) (“[W]ater improvement district[s] . . . are held to be political subdivisions of the State” (internal quotation marks omitted)).The Act, however, also provides a narrower statutory definition in §14(c)(2): “‘[P]olitical subdivision’ shall mean any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting.” 42 U.S. C. §1973l(c)(2). The District Court concluded that this definition applied to the bailout provision in §4(a), and that the district did not qualify, since it is not a county or parish and does not conduct its own voter registration. “Statutory definitions control the meaning of statutory words, of course, in the usual case. But this is an unusual case.” Lawson v. Suwannee Fruit & S. S. Co., 336 U.S. 198, 201 (1949); see also Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 764 (1949); Philko Aviation, Inc. v. Shacket, 462 U.S. 406, 412 (1983). Were the scope of§4(a) considered in isolation from the rest of the statute and our prior cases, the District Court’s approach might well be correct. But here specific precedent, the structure of the Voting Rights Act, and underlying constitutional concerns compel a broader reading of the bailout provision. . . . [T]he statutory definition of “political subdivision” in §14(c)(2) does not apply to every use of the term “political subdivision” in the Act. Even the intervenors who oppose the district’s bailout concede, for example, that the definition should not apply to §2, which bans racial discrimination in voting by “any State or political subdivision,” 42 U.S. C. §1973(a). See Brief for Intervenor-Appellee Texas State Conference of NAACP Branches et al. 17 (citing Smith v. Salt River Project Agricultural Improvement and Power Dist., 109 F. 3d 586, 592–593 (CA9 1997)); see also United States v. Uvalde Consol. Independent School Dist., 625 F. 2d 547, 554 (CA5 1980) (“[T]he Supreme Court has held that this definition [in §14(c)(2)] limits the meaning of the phrase ‘State or political subdivision’ only when it appears in certain parts of the Act, and that it does not confine the phrase as used elsewhere in the Act”). In light of our holdings that the statutory definition does not constrict the scope of 636

preclearance required by §5, the district argues, it only stands to reason that the definition should not constrict the availability of bailout from those preclearance requirements either. ... In 1982, however, Congress expressly repudiated City of Rome and instead embraced “piecemeal” bailout. As part of an overhaul of the bailout provision, Congress amended the Voting Rights Act to expressly provide that bailout was also available to “political subdivisions” in a covered State, “though [coverage] determinations were not made with respect to such subdivision as a separate unit.” Voting Rights Act Amendments of 1982, 96 Stat. 131, codified at 42 U.S. C. §1973b(a)(1) (emphasis added). In other words, Congress decided that a jurisdiction covered because it was within a covered State need not remain covered for as long as the State did. If the subdivision met the bailout requirements, it could bail out, even if the State could not. In light of these amendments, our logic for denying bailout in City of Rome is no longer applicable to the Voting Rights Act—if anything, that logic compels the opposite conclusion. Bailout and preclearance under §5 are now governed by a principle of symmetry. “Given the Court’s decision in Sheffield that all political units in a covered State are to be treated for §5 purposes as though they were ‘political subdivisions’ of that State, it follows that they should also be treated as such for purposes of §4(a)’s bailout provisions.” City of Rome, supra, at 192 (STEVENS, J., concurring). The Government contends that this reading of Sheffield is mistaken, and that the district is subject to §5 under our decision in Sheffield not because it is a “political subdivision” but because it is a “State.” That would mean it could bail out only if the whole State could bail out. The assertion that the district is a State is at least counterintuitive. We acknowledge, however, that there has been much confusion over why Sheffield held the city in that case to be covered by the text of §5. See City of Rome, 446 U.S., at 168–169; id., at 192 (STEVENS, J., concurring); see also Uvalde Consol. Independent School Dist. v. United States, 451 U.S. 1002, 1004, n. 4 (1981) (REHNQUIST, J., dissenting from denial of certiorari) (“[T]his Court has not yet settled on the proper construction of the term ‘political subdivision’”). But after the 1982 amendments, the Government’s position is untenable. If the district is considered the

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State, and therefore necessarily subject to preclearance so long as Texas is covered, then the same must be true of all other subdivisions of the State, including counties. That would render even counties unable to seek bailout so long as their State was covered. But that is the very restriction the 1982 amendments overturned. Nobody denies that counties in a covered State can seek bailout, as several of them have. See Voting Rights Act: Section 5 of the Act—History, Scope, and Purpose: Hearing Before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., 1st Sess., 2599–2834 (2005) (detailing bailouts). Because such piecemeal bailout is now permitted, it cannot be true that §5 treats every governmental unit as the State itself. The Government’s contrary interpretation has helped to render the bailout provision all but a nullity. Since 1982, only 17 jurisdictions—out of the more than 12,000 covered political subdivisions—have successfully bailed out of the Act. App. to Brief for Jurisdictions That Have Bailed Out as Amici Curiae 3; Dept. of Commerce, Bureau of Census,2002 Census of Governments, Vol. 1, No. 1, pp. 1, 22–60. It is unlikely that Congress intended the provision to

have such limited effect. See United States v. Hayes, 555 U.S. ___, ____ (2009) (slip op., at 10). We therefore hold that all political subdivisions— not only those described in §14(c)(2)—are eligible to file a bailout suit. *** More than forty years ago, this Court concluded that “exceptional conditions” prevailing in certain parts of the country justified extraordinary legislation otherwise unfamiliar to our federal system. Katzenbach, 383 U.S., at 334. In part due to the success of that legislation, we are now a very different Nation. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today. We conclude instead that the Voting Rights Act permits all political subdivisions, including the district in this case, to seek relief from its preclearance requirements. The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

SELECTED REFERENCES Alfange, Dean, Jr. “Gerrymandering and the Constitution: Into the Thorns of the Thicket at Last,” 1986 Supreme Court Review 175 (1986). Anderson, John M. “Politics and Purpose: Hide and Seek in the Gerrymandering Thicket after Davis v. Bandemer,” 136 University of Pennsylvania Law Review 183 (November 1987). Ansolabehere, Stephen. The End of Inequality: One Person, One Vote, and the Transformation of American Politics. New York: Norton, 2008. Ansolabehere, Stephen, and Issacharoff, Samuel. “The Story of Baker v. Carr,” in Dorf, Michael C., ed., Constitutional Law Stories. New York: Foundation Press (2004), 297–324. Avery, James M. “Race, Partisanship, and Political Trust following Bush versus Gore,” Political Behavior, Vol. 29, No. 3 (2007), 327–342. Ballard, Gregory G. “Application of Section 2 of the Voting Rights Act to Runoff Election Laws,” 91 Columbia Law Review 1127 (June 1991). Banks, Christopher P., Cohen, David B., and Green, John Clifford, eds. The Final Arbiter: The Consequences of Bush v. Gore for Law and Politics. Albany: State University of New York Press, 2006.

Banks, Taunya Lovell. “Trampling Whose Rights? Democratic Majority Rule and Racial Minorities: A Response to Chin and Wagner,” 43 Harvard Civil Rights/Civil Liberties Law Review 127–164 (2008). Barber, Steve, et al. “The Purging of Empowerment: Voter Purge Laws and the Voting Rights Act,” 23 Harvard Civil Rights/Civil Liberties Law Review 483 (Summer 1988). Briffault, Richard. “Race and Representation after Miller v. Johnson,” University of Chicago Legal Forum, 23–82 (1995). Chang, Felix B. “After Georgia v. Ashcroft: The Primacy of Proportionality,” Michigan Journal of Race and Law, Vol. 11 (2005), 219. Chin, Gabriel J., and Randy Wagner. “The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty,” 43 Harvard Civil Rights/Civil Liberties Law Review 65–125 (2008). Cipollone, Pasquale A. “Section 2 of the Voting Rights Act and Judicial Elections: Application and Remedy,” 58 University of Chicago Law Review 733 (Spring 1991). Cox, A. B., and T. J. Miles. “Judging the Voting Rights Act,” 108 Columbia Law Review, 1–54 (2008). Crea, Robert M. “Racial Discrimination and Baker v. Carr,” Journal of Legislation, Vol. 30 (2004), 289.

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Davidson, Chandler, and Bernard Grofman, eds. Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965–1990. Princeton, NJ: Princeton University Press, 1994. Ely, John Hart. “Commentary: Standing to Challenge ProMinority Gerrymanders,” Harvard Law Review, 576–595 (1997). Foley, Edward B. “The Future of Bush v. Gore?” Ohio State Law Journal, Vol. 68 (2007), 925–1006. Grofman, Bernard. “Race and Redistricting in the Twentyfirst Century,” in Segura, Gary M. and Bowler, Shaun, eds., Diversity in Democracy: Minority Representation in the United States. Charlottesville, VA: University Press of Virginia, 2006. Guinier, Lani. “More Democracy,” University of Chicago Legal Forum, 1–22 (1995). Guinier, Lani. “The Triumph of Tokenism: The Voting Rights Act and the Theory of Black Electoral Success,” 89 Michigan Law Review 1077 (March 1991). Hamilton, Charles V. The Bench and the Ballot: Southern Federal Judges and Black Voters. New York: Oxford University Press, 1973. Hasen, Richard. The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore. New York: New York University Press, 2003. Haydel, Judith. “Section 2 of the Voting Rights Act of 1965: A Challenge to State Judicial Election Systems,” 73 Judicature 68 (August–September 1989). Issacharoff, Samuel, Pamela S. Karlan, and Richard H. Pildes. The Law of Democracy: Legal Structure of the Political Process. Westbury, NY: Foundation Press, 1998. Karlan, Pamela S. “Lessons Learned: Voting Rights and the Bush Administration,” Duke Journal of Constitutional Law and Public Policy, Vol. 4 (2008), 17–30. Martin, Philip L. “Supreme Court and State Legislative Reapportionment: The Retreat from Absolutism,” 9 Valparaiso University Law Review 31 (Fall 1974). McKenzie, Roy, and Ronald Krauss. “Section 2 of the Voting Rights Act: An Analysis of the 1982

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Amendment,” 19 Harvard Civil Rights/Civil Liberties Law Review 155 (Winter 1984). Miller, Binny. “Who Shall Rule and Govern? Local Legislative Delegations, Rural Politics, and the Voting Rights Act,” 102 Yale Law Journal 105 (October 1992). Montague, Bill. “The Voting Rights Act Today,” 74 ABA Journal 52 (August 1988). Pildes, Richard. “Is Voting-Rights Law at War with Itself? Social Science and Voting Rights in the 2000s,” 80 North Carolina Law Review 1517 (Feb. 6, 2006). Pitts, Michael J. “Georgia v. Ashcroft: It’s the End of Section 5 as We Know It (and I Feel Fine),” Pepperdine Law Review, Vol. 32 (2005), 265. Ramirez, Steven, and Organik, Aliza. “Taking Voting Rights Seriously: Race and the Integrity of Democracy in America,” Northern Illinois University Law Review, Vol. 27 (2007), 427. Saks, Richard. “Redemption or Exemption: Racial Discrimination in Judicial Elections under the Voting Rights Act,” 66 Chicago-Kent Law Review 245 (1990). Schuck, Peter H. “The Thickest Thicket: Partisan Gerrymandering and Judicial Regulation of Politics,” 87 Columbia Law Review 1325 (November 1987). Simpson, William. “The Primary Runoff: Racism’s Reprieve?” 65 North Carolina Law Review 359 (January 1987). Spears, Ellen. “High Court Rules Dismantling of Minority Districts to Continue,” Voting Rights Review (Summer 1996). Swain, Carol M. “Reauthorization of the Voting Rights Act: How Politics and Symbolism Failed America,” Georgia Journal of Law and Public Policy, Vol. 29, No. 1 (2007), 29. Valelly, Richard M., ed. The Voting Rights Act: Securing the Ballot. Washington, DC: CQ Press, 2006. Weiss, Matthew M. “Where Do We Draw the Line? The Justiciability of Political Gerrymandering Claims in Light of League of United Latin American Citizens v. Perry,” Georgia Law Review, Vol. 41 (2007), 1053.

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CHAPTER 15

NATIVE AMERICANS—RACE AND CULTURE: PROMISES MADE, PROMISES BROKEN

FEATURED CASES Johnson v. McIntosh; City of Sherrill v. Oneida Indian Nation of New York; Carcieri v. Salazar

T

VARIED ENCOUNTERS BETWEEN NATIVE Americans and settlers in the area that became the United States illuminate the salient role that culture and race play in shaping legal–constitutional structures. A web of numerous treaties, statutes, and regulations and hundreds of Supreme Court decisions have produced a very complex jurisprudential system. The combination of these factors with tribal government and Native American sovereignty has developed America’s most complex arrangement of laws. The complex legal- constitutional understanding is illustrated in Indian treaties; criminal jurisdictions in Indian county; Indian religion and cultural issues; water rights; trust responsibility of the federal government; hunting, fishing, and gathering rights; natural resources issues; tribal property; Indian self-determination; and traditional civil rights and liberties. This legal–constitutional system also includes a host of definitions and characterizations: Who is an Indian, what is an Indian tribe, what is Indian country, and what is meant by Indian sovereignty? For tribes, the Constitution is not the primary foundation of Indian rights. Treaties constitute the fulcrum of HE

the rights and power of Native Americans in Indian country. Indian country, for example, refers to “all land under the supervision of the United States that has been set aside primarily for the use of Indians” (Pevar, 1992: 16). The construction of treaties and the enactment of statutes have not generally benefited Indian nations (or tribes). The initial encounters between Indians and Europeans did not terminate Indian nations’ governing of themselves. The constriction of the authority and power of the Indian tribes reflects the European (and later the United States of America) strategy of colonizing greater portions of the land. Political, military, and economic necessities produced the treaty system. Cultural and religious prejudices also were contributing factors in treaties and negotiated arrangements. These legal and treaty promises were and are still broken and abrogated to advance non-Native American interests. Unlike historical conflicts between African Americans and states, Indian affairs have been dominated by the federal government, which has dictated the ground rules that govern clashes between Indians and others interests.

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DOCTRINES OF DISCOVERY AND CONQUEST FEATURED CASE

Johnson v. McIntosh The doctrines of discovery and conquest have been a foundational and a compelling influence on the status and rights of Native Americans. The doctrine of discovery asserted that the European nations who “discovered” lands in the possession of nonChristians vested title in the discovering nation. The doctrine granted European nations the authority to divide the so-called new world among themselves. Europeans recognized and adhered to the discovery doctrine even when it did not serve them personally. Discovery is integrally connected to conquest. The distinction between friendly and perpetual aliens is informed by the doctrine of conquest. The conquest doctrine provided that in an infidel kingdom conquered by a Christian one laws were abrogated. The laws of the infidel kingdom were determined to be in violation of Christianity and the laws of God. The conquering European nation established laws that denied the conquered infidel kingdom property rights and the legitimate authority to rule. The morality and application of this concept gave the conquerors little pause. The two doctrines of discovery and conquest guided the colonization of North America by Spanish, French, English, Dutch, Swedish, and Russian colonists. From the early seventeenth century to the American Revolutionary War, the doctrine of conquest constituted “a vital legacy for those English-Americans” as they established a nation that would eventually extend from the Atlantic to the Pacific Ocean. These doctrines were used to incorporate Native American nations, to dispose of the political and military authority of Native Americans and their leaders, and to ignore the civil liberties and rights of individual Native Americans. The legal regality of the doctrines of discovery and conquest concealed Europeans’ belief in the moral and cultural superiority of Eurocentric values, understandings, approaches, and law. The two doctrines tied Christianity and the right and authority of European nations to their cultural and legal descendants. This concept resulted in the elimination (and restriction) of the sovereignty of American Indians; in the retardation of their interests; and in the advancement of the political, legal, and constitutional rights of non-Indian people and businesses over Native Americans and 640

their interests. The sovereignty of American Indians has been largely reduced to the possessory rights of the soil. The Supreme Court has used the Constitution, treaties, and statutes to Americanize the doctrines of discovery and conquest, with vituperative consequences for Native Americans. The Commerce Clause of the Constitution creates three classifications: (1) foreign nations, (2) the several states, and (3) Indian tribes. The American Indian nations are accorded the status of neither a foreign nation nor a state. The Supreme Court has accepted its assignment of defining and bounding this third status of Indian tribes. This status has affected and framed the totality of the legal, political, and social relations of Native Americans, including treaties, criminal jurisdiction in Indian country, the fiduciary relationship of Congress, and civil rights and liberties. The Supreme Court has not announced a single case in which the constitutional status of Native American is defined. The Court has pursued an approach that is characterized by gradualism. The development of case law in Indian law has primarily served the interests of non-Indian settlers and businesses, the federal policy of Western expansion, and the political, social, and cultural domination of American Indians. In Fletcher v. Peck (10 U.S. [6 Cranch] 87, 1810), Chief Justice John Marshall issued a conclusion, speaking for the Court, that had chilling consequences for Native Americans. The central issue revolved around the Contract Clause of the Constitution. Marshall reached a brokered decision that appeared to benefit all key interests. Marshall argued that the rescission of the land grants by the Georgia legislature constituted an impairment of contract. Third parties would lose their private property. He termed the agreement between American Indians and England “a temporary arrangement, suspending, for a time, the settlement of the country reserved.” Chief Justice Marshall explained “that the nature of the Indian Title, which is certainly to be respected by all courts, until it be legitimately extinguished, is not such as to be absolutely repugnant to seizing in fee on the part of the state.” Marshall largely discounted the interests of Native Americans; suggested that only a Europeanderived sovereign could alienate fee-simple interest in the land occupied by Indian tribes; and, touching on the issue of the ownership of the land, suggested that American Indians were under the “dominion and protection of the crown” and that the United States, not Native Americans, owned the land.

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The presence of American Indians and the legal–constitutional structure blocked the western expansion of the territory of the United States of America. In Johnson v. McIntosh (21 U.S. [8 Wheat] 548, 1823), the Supreme Court reached a definitive decision on the ownership of the land. Before McIntosh, federal and state officials focused closely on the land occupied by Native Americans. White citizens viewed the land with envy. The McIntosh Court was asked to resolve the issue of who owned the land that was still occupied by Indian nations. Chief Justice John Marshall employed the doctrines of discovery and conquest to answer that question. Marshall expounded that the treaty which brought the American Revolutionary War to a close also passed “the power of government, and the right to the states, which had previously been in Great Britain . . . to the states.” He struck a near-lethal blow to the contention of sovereignty of American Indians. Chief Justice Marshall insisted, “It has never been doubted that either the United States, or the several states, has a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right to occupying.” Like the decisions issued by Marshall in Marbury v. Madison (5 U.S. [1 Cranch] 137, 1803) and McCulloch v. Maryland (17 U.S. 4 [Wheat] 316, 1819), McIntosh expanded the power and authority of the federal government vis-a-vis state government in relationships with American Indian nations. Chief Justice Marshall claimed that the doctrine of discovery gave the United States “an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest.” Marshall provided clarification on title by conquest. He indicated that the conqueror prescribes the limits of the title. The demands of human rights prevent the conqueror from engaging in wanton oppression, and the conditions of the conquered “remain as eligible as is compatible with the objects of the conquest.” Chief Justice Marshall advanced the position that “the Europeans were under necessity either of abandoning the country, and relinquishing their [American Indians’] pompous claim to it, or of enforcing those claims by the sword, and by the adoption of principles, adopted to the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct society, or of remaining in their neighborhood, and exposing themselves and their families to the perpetual hazard of being massacred.” Marshall embraced the view that American Indians were “fierce savages,” that their “occupation

was war,” and that their “subsistence was drawn chiefly from the forest.” He suggested that American Indians were not culturally prepared to rule the land, nor were they prepared to be assimilated or accepted within the American nation. This tension between separation and assimilation governed the conflict over federal Indian policy and the status of Native Americans in the United States into the twentyfirst century. In McIntosh, the Supreme Court contended that the American Indian nations’ title gave them possessor interest in the land and obligated the federal government “to protect [them], . . . while in peace.” The possessor title did not, however, empower American Indians to transfer the absolute title to others. In addition, the land claims of Native Americans were thought to be subordinate to those of the federal government, suggesting that western expansion was the unofficial policy of the United States. The doctrines of discovery and conquest concomitantly stressed “a theory of Indian subservience to the federal government” and referred to Indian autonomy. The McIntosh Court constitutionally gave “[w]hite settlers ownership and title to Indian Lands” (Deloria and Lytle, 1983: 26). In fact, Chief Justice Marshall offered a dualistic interpretation of the law—pro-American Indian and anti-American Indian. Marshall created a “[l]andlordtenant relationship between the [federal] government and the Indian tribes” (Deloria and Lytle, 1983: 26). One scholar commented: “White society’s exercise of power over Indian tribes received the sanction of the Rule of Law in McIntosh. . . . While the tasks of conquest and colonization had not yet been fully actualized on the entire American continent, the ordinary legal rules and principles of federal Indian law drawn by Marshall in Johnson v. McIntosh and its course of conquest ensured that future acts of genocide would proceed on a rationalized, legal basis.” (Williams, 1990: 317)

Although McIntosh was one of the first instances in which the Supreme Court constitutionalized the federal government’s power and authority over Indian affairs and the semi-independent status of the American Indian nations, it certainly was not the last. The dualism of Chief Justice Marshall’s ruling quickly evolved into an anti-Indian position by the Supreme Court and the federal government. The rights and interests of American Indians were dwarfed in importance by the constitutional and legal rights and political and economic interests of the western expansion federal policy.

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In the Cherokee Nation cases, for example, Chief Justice Marshall outlined the limitations of the sovereignty of Native Americans. In the first case, Marshall indicated that the tribes were under the protection of the federal government and lacked the necessary sovereignty to claim political independence (Cherokee Nation v. Georgia). This case was one of the first references to the trust doctrine. In the second case, however, Chief Justice Marshall insisted that American Indian nations possessed sufficient sovereignty to prohibit the states from intruding on them and that the federal government retained sovereignty over American Indian nations (Worcester v. Georgia). At issue in the first Cherokee Nation case (Cherokee Nation v. Georgia, 30 U.S. 1, 1831) was whether the Cherokee Nation constituted a foreign state in the sense of the Constitution. Chief Justice Marshall concluded that it did not; he argued that American Indian nations “may, more correctly, . . . be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases.” Marshall described the relationship between American Indians and the federal government and American people in this way: “[T]hey are in a state of pupilage. Their relation to the United States resembled that of a ward to his guardian.” He rejected the plaintiff’s suggestion concerning the purpose of the introduction of “Indian Tribes.” Interpreting the Indian Commerce clause, Marshall argued that the Court perceives “plainly that the Constitution in this article, does not comprehend Indian tribes in the general term ‘foreign nations.’” The narrow construction of the meaning of “Indian tribes” in the Constitution had serious repercussions for American Indian nations. Because the American Indian nations had not been constitutionally considered foreign nations by the U.S. government, Marshall argued that American Indian nations “cannot maintain an action in the courts of the United States.” Denying the motion for an injunction, Marshall concluded, “If it be true that the Cherokee Nation have rights, this is not the tribunal in which those rights are to be asserted. If it be true that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future.” The case did not fall under the Supreme Court’s original jurisdiction. 642

If by judicial sleight-of-hand Marshall avoided a confrontation with President Andrew Jackson and the policy thrust of removal, the chief justice could not do so in Worcester v. Georgia (31 U.S. 515, 1832). Chief Justice John Marshall, seventy-six years old and in poor health at the time, took just two weeks to write the opinion in Worcester (Getches, Wilkinson, and Williams, 1993). He concluded that Georgia’s state laws were not enforceable within the Cherokee reservation. Specifically, Marshall connected the U.S. government’s sovereignty over American Indian nations with arrangements that existed between Native American nations and European nations before 1787. Marshall wrote: “This general principle, acknowledged by all Europeans, because it was the interest of all to acknowledge it, gave to the nation making discovery, as its inevitable consequence, the sale right of acquiring the soil and of making settlement on it. . . . It was an exclusive principle which shut out the right of competition among those who had agreed to it; not one which could annul the previous rights of those who had not agreed to it. It regulates the right given by discovery among European discoverers; but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man.”

As he constitutionalized the preconstitutional arrangements of European nations, Marshall placed limitations on the arrangements. He believed that agreements among European nations did not revive or negate the sovereignty of American Indian nations. Chief Justice Marshall insisted: [The American Indian’s] “nations had always been considered as distinct, independent political communities retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded from intercourse with other European potentate than the first discoverer of the coastal of the particular region claimed.”

Thus, Marshall adjudged that the weaker power did not surrender its independence “by associating with a strong [power], and taking its protection.” Marshall reached a conclusion that denied Georgia and other states the right to exert political or legal authority over American Indian nations. States may exercise no force or sovereignty over American Indian nations. The federal government alone possesses

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sovereignty over American Indian nations. As was expected, the Worcester decision did not abate the western expansion of the United States. Prior to Worcester, the political groundwork had already been laid. Worcester represented the limitation of judicial decision making. Before the Supreme Court considered the case, other decision makers had already formed a coalition that was favorably disposed toward the federal policy of Indian removal. Seldom can an announcement from the Supreme Court withstand the policy thrust of the president and Congress. Before Worcester, both the president and Congress had already consented to and enacted the Indian Removal Act of 1830, which authorized the presi-

dent to remove Native Americans west of the Mississippi River. Worcester also represented the efforts of the Supreme Court to speak for the unrepresented and to be a moral force. However, this role is difficult to perform when the public, the Congress, and the president are unwilling to listen. Finally, Worcester represented how precedents are applied by later justices to the disadvantage of groups who were originally intended to be benefited. Worcester could not withstand the removal policy that had already gained the support of those who coveted American Indian lands, as well as non-American Indian citizens who were concerned about American Indians’ well-being (Getches et al., 1993).

JOHNSON V. MCINTOSH 21 U.S. 543; 5 L. Ed. 681; 8 Wheat. 543 (1823) CHIEF JUSTICE MARSHALL delivered the opinion of the Court. The plaintiffs in this cause claim the land . . . under two grants, purporting to be made, the first in 1773, and the last in 1775, by the chiefs of certain Indian tribes, constituting the Illinois and the Piankeshaw nations; and the question is, whether this title can be recognized in the Courts of the United States? The facts, as stated in the case agreed, show the authority of the chiefs who executed this conveyance, so far as it could be given by their own people; and likewise show, that the particular tribes for whom these chiefs acted were in rightful possession of the land they sold. The inquiry, therefore, is, in a great measure, confined to the power of Indians to give, and of private individuals to receive, a title which can be sustained in the Courts of this country. As the right of society, to prescribe those rules by which property may be acquired and preserved is not, and cannot be drawn into question; as the title to lands, especially, is and must be admitted to depend entirely on the law of the nation in which they lie; it will be necessary, in pursuing this inquiry, to examine, not singly those principles of abstract justice, which the Creator of all things has impressed on the mind of his creature man, and which are admitted to

regulate, in a great degree, the rights of civilized nations, whose perfect independence is acknowledged; but those principles also which our own government has adopted in the particular case, and given us as the rule for our decision. On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was

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made, against all other European governments, which title might be consummated by possession. The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented. Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them. In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy. The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles. . . .

ment, the king claimed and exercised the right of granting lands, and of dismembering the government at his will. The grants made out of the two original colonies, after the resumption of their charters by the crown, are examples of this. The governments of New England, New York, New Jersey, Pennsylvania, Maryland, and a part of Carolina, were thus created. In all of them, the soil, at the time the grants were made, was occupied by the Indians. Yet almost every title within those governments is dependent on these grants. In some instances, the soil was conveyed by the crown unaccompanied by the powers of government, as in the case of the northern neck of Virginia. It has never been objected to this, or to any other similar grant, that the title as well as possession was in the Indians when it was made, and that it passed nothing on that account. These various patents cannot be considered as nullities; nor can they be limited to a mere grant of the powers of government. A charter intended to convey political power only, would never contain words expressly granting the land, the soil, and the waters. Some of them purport to convey the soil alone; and in those cases in which the powers of government, as well as the soil, are conveyed to individuals, the crown has always acknowledged itself to be bound by the grant. Though the power to dismember regal governments was asserted and exercised, the power to dismember proprietary governments was not claimed; and, in some instances, even after the powers of government were revested in the crown, the title of the proprietors to the soil was respected. . . . Further proofs of the extent to which this principle has been recognized, will be found in the history of the wars, negotiations, and treaties, which the different nations, claiming territory in America, have carried on, and held with each other. . . .

[Here CHIEF JUSTICE MARSHALL provides an account of how the various European powers respected the right of discovery even while they competed fiercely to colonize the Americas during the seventeenth and eighteenth centuries.]

[Here CHIEF JUSTICE MARSHALL describes the competition among England, Spain, and France for North America.]

Thus has our whole country been granted by the crown while in the occupation of the Indians. These grants purport to convey the soil as well as the right of dominion to the grantees. In those governments which were denominated royal, where the right to the soil was not vested in individuals, but remained in the crown, or was vested in the colonial govern644

Thus, all the nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognized in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians. Have the American States rejected or adopted this principle? By the treaty which concluded the war of our revolution, Great Britain relinquished all claim, not only to the government, but to the “propriety and

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territorial rights of the United States,” whose boundaries were fixed in the second article. By this treaty, the powers of government, and the right to soil, which had previously been in Great Britain, passed definitively to these States. We had before taken possession of them, by declaring independence; but neither the declaration of independence, nor the treaty confirming it, could give us more than that which we before possessed, or to which Great Britain was before entitled. It has never been doubted, that either the United States, or the several States, had a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right, was vested in that government which might constitutionally exercise it. Virginia, particularly, within whose chartered limits the land in controversy lay, passed an act, in the year 1779, declaring her “exclusive right of preemption from the Indians, of all the lands within the limits of her own chartered territory, and that no person or persons whatsoever, have, or ever had, a right to purchase any lands within the same, from any Indian nation, except only persons duly authorized to make such purchase; formerly for the use and benefit of the colony, and lately for the Commonwealth.” The act then proceeds to annul all deeds made by Indians to individuals, for the private use of the purchasers. Without ascribing to this act the power of annulling vested rights, or admitting it to countervail the testimony furnished by the marginal note opposite to the title of the law, forbidding purchases from the Indians, in the revisals of the Virginia statutes, stating that law to be repealed, it may safely be considered as an unequivocal affirmance, on the part of Virginia, of the broad principle which had always been maintained, that the exclusive right to purchase from the Indians resided in the government. . . . The States, having within their chartered limits different portions of territory covered by Indians, ceded that territory, generally, to the United States, on conditions expressed in their deeds of cession, which demonstrate the opinion, that they ceded the soil as well as jurisdiction, and that in doing so, they granted a productive fund to the government of the Union. The lands in controversy lay within the chartered limits of Virginia, and were ceded with the whole country northwest of the river Ohio. This grant contained reservations and stipulations, which could only be made by the owners of the soil; and concluded with a stipulation, that “all the lands in the

ceded territory, not reserved, should be considered as a common fund, for the use and benefit of such of the United States as have become, or shall become, members of the confederation,” &c. “according to their usual respective proportions in the general charge and expenditure, and shall be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatsoever.” The ceded territory was occupied by numerous and warlike tribes of Indians; but the exclusive right of the United States to extinguish their title, and to grant the soil, has never, we believe, been doubted. . . . The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise. The power now possessed by the government of the United States to grant lands, resided, while we were colonies, in the crown, or its grantees. The validity of the titles given by either has never been questioned in our Courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative the existence of any right which may conflict with, and control it. An absolute title to lands cannot exist, at the same time, in different persons, or in different governments. An absolute, must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognize the absolute title of the crown, subject only to the Indian right of occupancy, and recognize the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians. . . . Although we do not mean to engage in the defence of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them. The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition

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shall remain as eligible as is compatible with the objects of the conquest. Most usually, they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one people. Where this incorporation is practicable, humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connexions, and united by force to strangers. When the conquest is complete, and the conquered inhabitants can be blended with the conquerors, or safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes these restraints upon him; and he cannot neglect them without injury to his fame, and hazard to his power. But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence. What was the inevitable consequence of this state of things? The Europeans were under the necessity either of abandoning the country, and relinquishing their pompous claims to it, or of enforcing those claims by the sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct society, or of remaining in their neighbourhood, and exposing themselves and their families to the perpetual hazard of being massacred. Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued. European policy, numbers, and skill, prevailed. As the white population advanced, that of the Indians necessarily receded. The country in the immediate neighbourhood of agriculturists became unfit for them. The game fled into thicker and more unbroken forests, and the Indians followed. The soil, to which the crown originally claimed title, being no longer occupied by its ancient inhabitants, was parcelled 646

out according to the will of the sovereign power, and taken possession of by persons who claimed immediately from the crown, or mediately, through its grantees or deputies. That law which regulates, and ought to regulate in general, the relations between the conqueror and conquered, was incapable of application to a people under such circumstances. The resort to some new and different rule, better adapted to the actual state of things, was unavoidable. Every rule which can be suggested will be found to be attended with great difficulty. However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice. . . . Another view has been taken of this question, which deserves to be considered. The title of the crown, whatever it might be, could be acquired only by a conveyance from the crown. If an individual might extinguish the Indian title for his own benefit, or, in other words, might purchase it, still he could acquire only that title. Admitting their power to change their laws or usages, so far as to allow an individual to separate a portion of their lands from the common stock, and hold it in severalty, still it is a part of their territory, and is held under them, by a title dependent on their laws. The grant derives its efficacy from their will; and, if they choose to resume it, and make a different disposition of the land, the Courts of the United States cannot interpose for the protection of the title. The person who purchases lands from the Indians, within their territory, incorporates himself with them, so far as respects the property purchased;

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holds their title under their protection, and subject to their laws. If they annul the grant, we know of no tribunal which can revise and set aside the proceeding. We know of no principle which can distinguish this case from a grant made to a native Indian, authorizing him to hold a particular tract of land in severalty. As such a grant could not separate the Indian from his nation, nor give a title which our Courts could distinguish from the title of his tribe, as it might still be conquered from, or ceded by his tribe, we can perceive no legal principle which will authorize a Court to say, that different consequences are attached to this purchase, because it was made by a stranger. By the treaties concluded between the United States and the Indian nations, whose title the plaintiffs claim, the country comprehending the lands in controversy has been ceded to the United States, without any reservation of their title. These nations had been at war with the United States, and had an unquestionable right to annul any grant they had made to American citizens. Their cession of the country, without a reservation of this land, affords a fair presumption, that they considered it as of no validity. They ceded to the United States this very property, after having used it in common with other lands, as their own, from the date of their deeds to the time of cession; and the attempt now made, is to set up their title against that of the United States. The proclamation issued by the King of Great Britain, in 1763, has been considered, and, we think, with reason, as constituting an additional objection to the title of the plaintiffs. By that proclamation, the crown reserved under its own dominion and protection, for the use of the Indians, “all the land and territories lying to the westward of the sources of the rivers which fall into the sea from the west and northwest,” and strictly forbade all British subjects from making any purchases or settlements whatever, or taking possession of the reserved lands. It has been contended, that, in this proclamation, the king transcended his constitutional powers. . . . It is supposed to be a principle of universal law, that, if an uninhabited country be discovered by a number of individuals, who acknowledge no connexion with, and owe no allegiance to, any government whatever, the country becomes the property of the discoverers, so far at least as they can use it.

They acquire a title in common. The title of the whole land is in the whole society. It is to be divided and parcelled out according to the will of the society, expressed by the whole body, or by that organ which is authorized by the whole to express it. If the discovery be made, and possession of the country be taken, under the authority of an existing government, which is acknowledged by the emigrants, it is supposed to be equally well settled, that the discovery is made for the whole nation, that the country becomes a part of the nation, and that the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national domains, by that organ in which all vacant territory is vested by law. According to the theory of the British constitution, all vacant lands are vested in the crown, as representing the nation; and the exclusive power to grant them is admitted to reside in the crown, as a branch of the royal prerogative. It has been already shown, that this principle was as fully recognized in America as in the island of Great Britain. All the lands we hold were originally granted by the crown; and the establishment of a regal government has never been considered as impairing its right to grant lands within the chartered limits of such colony. In addition to the proof of this principle, . . . the continuing right of the crown to grant lands lying within that colony was always admitted. So far as respected the authority of the crown, no distinction was taken between vacant lands and lands occupied by the Indians. The title, subject only to the right of occupancy by the Indians, was admitted to be in the king, as was his right to grant that title. The lands, then, to which this proclamation referred, were lands which the king had a right to grant, or to reserve for the Indians. According to the theory of the British constitution, the royal prerogative is very extensive, so far as respects the political relations between Great Britain and foreign nations. The peculiar situation of the Indians, necessarily considered, in some respects, as a dependent, and in some respects as a distinct people, occupying a country claimed by Great Britain, and yet too powerful and brave not to be dreaded as formidable enemies, required, that means should be adopted for the preservation of peace; and that their friendship should be secured by quieting their alarms for their property. This was to be effected by restraining

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the encroachments of the whites; and the power to do this was never, we believe, denied by the colonies to the crown. . . . In the argument of this cause, the counsel for the plaintiffs have relied very much on the opinions expressed by men holding offices of trust, and on various proceedings in America, to sustain titles to land derived from the Indians. The collection of claims to lands lying in the western country . . . has been referred to; but we find nothing in that collection to support the argument. Most of the titles were derived from persons professing to act under the authority of the government existing at the time; and the two grants under which the plaintiffs claim, are supposed, by the person under whose inspection the collection was made, to be void, because forbidden by the royal proclamation of 1763. It is not unworthy of remark, that the usual mode adopted by the Indians for granting lands to individuals, has been to reserve them in a treaty, or to grant them under the sanction of the commissioners with whom the treaty was negotiated. The practice, in such case, to grant to the crown, for the use of the individual, is some evidence of a general understanding, that the validity even of such a grant depended on its receiving the royal sanction. . . . It has been stated, that in the memorial transmitted from the Cabinet of London to that of Versailles, during the controversy between the two nations, respecting boundary, which took place in 1755, the Indian right to the soil is recognized. But this recognition was made with reference to their character as Indians, and for the purpose of showing that they were fixed to a particular territory. It was made for the purpose of sustaining the claim of his Britannic majesty to dominion over them. . . . Much reliance is also placed on the fact, that many tracts are now held in the United States under the Indian title, the validity of which is not questioned. [Here CHIEF JUSTICE MARSHALL argues that the Indian grant of title to land did not convey a title that equaled that of the English crown.] It has never been contended, that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of 648

acquiring that right. The object of the crown was to settle the seacoast of America; and when a portion of it was settled, without violating the rights of others, by persons professing their loyalty, and soliciting the royal sanction of an act, the consequences of which were ascertained to be beneficial, it would have been as unwise as ungracious to expel them from their habitations, because they had obtained the Indian title otherwise than through the agency of government. The very grant of a charter is an assertion of the title of the crown, and its words convey the same idea. The country granted, is said to be “our island called Rhode Island;” and the charter contains an actual grant of the soil, as well as of the powers of government. The letter was written a few months before the charter was issued, apparently at the request of the agents of the intended colony, for the sole purpose of preventing the trespasses of neighbours, who were disposed to claim some authority over them. The king, being willing himself to ratify and confirm their title, was, of course, inclined to quiet them in their possession. This charter, and this letter, certainly sanction a previous unauthorized purchase from Indians, under the circumstances attending that particular purchase, but are far from supporting the general proposition, that a title acquired from the Indians would be valid against a title acquired from the crown, or without the confirmation of the crown. The acts of the several colonial assemblies, prohibiting purchases from the Indians, have also been relied on, as proving, that, independent of such prohibitions, Indian deeds would be valid. But, we think this fact, at most, equivocal. While the existence of such purchases would justify their prohibition, even by colonies which considered Indian deeds as previously invalid, the fact that such acts have been generally passed, is strong evidence of the general opinion, that such purchases are opposed by the soundest principles of wisdom and national policy. After bestowing on this subject a degree of attention which was more required by the magnitude of the interest in litigation, and the able and elaborate arguments of the bar, than by its intrinsic difficulty, the Court is decidedly of opinion, that the plaintiffs do not exhibit a title which can be sustained in the Courts of the United States; and that there is no error in the judgment which was rendered against them in the District Court of Illinois. Judgment affirmed.

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SEVEN PERIODS OF BROKEN PROMISES: THE HISTORICAL BACKGROUND FOR THE TWENTY-FIRST CENTURY The policy of the Supreme Court, the Congress, and the president may be divided into seven periods that reflect tremendous fluctuations. One scholar suggested that federal policy has shifted from “regarding tribes [Nations] as sovereign . . ., to relocating nations, to attempts to exterminate or assimilate them, and currently, to encouraging tribal self-determination” (Pevar, 1992: 2). The Tribal Independence Era (1492–1787) was characterized by some semblance of cooperation. The arriving Europeans needed the help of American Indians; treaties and agreements were made between equals. But as the European presence grew and they became entrenched, cooperation gave way to conflict over the control of the land. The treaty of Hopewell with the Cherokees is a good example of this conflict. In Article III of the Hopewell Treaty, the Cherokees are said to be “under the protection of the United States of America, and of no other sovereign whatsoever.” The Agreements between Equals era (1787–1828) is characterized by the United States’ enactment of laws that “regarded the Indian tribes as having the same status as foreign nations” (Pevar, 1992: 3). The Trade and Intercourse Act of 1802 used the nomenclature “nation” and “tribe” interchangeably. Although these laws employed the language of equals, few of the laws were enforced. And both the language and outcomes of treaties suggest that the United States was the greater beneficiary of the treaty arrangement. The United States government did little to prevent the forcible and illegal taking of Indian land. The Relocation of the Native Americans (1828–1887) was championed by President Andrew Jackson and his administration. This period was marked by the passage of several pieces of legislation. The Indian Removal Act of 1830 and the Major Crimes Act of 1885 were passed. The latter made several criminal offenses in Indian country federal crimes (e.g., murder, rape, assault). Jurisdiction for these crimes was transferred from Indian courts to federal courts. This period was marked by the attempted extermination of American Indians. In 1871 Congress discontinued the making of treaties with Indians; instead, statutes and executive agreements were made that required no input from the American Indians. The reservation system also became a touchstone of federal policy.

The Allotment and Assimilation Era (1887–1934) seemed to be influenced by social Darwinism, which was noted for its insensitivity towards the downtrodden. The concept of survival of the fittest was borrowed from the biological sciences and applied to human interactions The passage of the Dawes Act of 1887 initiated this period. Briefly, the Dawes Act sought the assimilation of the American Indian nations through the breakup of tribal governments, the abolition of reservations, and the coercion of the assimilation of American Indians into white society. Reservation land was divided so that individual American Indians owned the land if they kept it for twenty-five years. In 1924, the Indian Citizenship Act declared that all noncitizen Indians born within the territorial limits of the United States were citizens. The decisions of the Supreme Court generally were in agreement with the Congress and president (see Ex parte Crow Dog [1883], United States v. Kagama [1886], and Lone Wolf v. Hitchcock [1903]). The Indian Reorganization period (1934–1953) began with the passage of the Indian Reorganization Act of 1934, also known as the Wheeler-Howard Act. This legislation endeavored to reverse the damage and harm that had been done during the Allotment era, such as the reduction in Indian lands by about 65 percent from approximately 138 million acres to 48 million acres. of the act prohibited the allotment of reservation in severalty to any American Indian, the extension of the trust responsibility of the federal government over American Indian lands, the restoration to tribal ownership of such lands, the remaking surplus lands of any reservation, the acquisition of water or surface rights to lands for the purpose of providing lands to Indians, and the establishment of self-government on the reservations. Section 15 of the Act seemed to encourage litigation on the part of Native Americans. In addition to the Indian Reorganization Act, Congress passed Public Law 280, which gave criminal and civil jurisdiction to five states in Indian country (California, Minnesota, Nebraska, Oregon, and Wisconsin) and to Alaska after it was admitted into the Union. By the 1950s, the Termination period (1954–1968) was initiated. Termination policy endeavored to discontinue the federal–tribal relationship, eliminate the reservations, turn over Indian affairs to the states, and destroy Indian culture. The period was largely ushered in with the enactment of Indian Termination Acts of 1954, which terminated federal supervision over the property and members of

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the Menominee Indians of Wisconsin. Termination soon became the official policy of the United States. At issue in Tee-Hei-Ton Indians v. United States (348 U.S. 272, 1955) was compensation for a taking by the United States of timber from Indian land. The Warren Court held that Indian occupancy of lands “. . . may be extinguished by the government without just compensation.” Speaking for the Court, Justice Reed argued that an examination of the statutes and the pertinent legislative history revealed that Congress did not intend to grant to the Indians any permanent rights in the lands of Alaska that were occupied by them. In another case, Menominee Tribe of Indians v. United States (391 U.S. 404, 1968), the Supreme Court was asked to decide whether the Menominees were subject to Wisconsin’s hunting and fishing regulations. Justice Douglas noted that the Treaty of Wolf River in 1854 granted the Menominee Tribe of Indians a reservation in Wisconsin. The treaty made no reference to hunting and fishing rights, but Douglas held that the language “to be held as Indian lands are held” reserved the tribe’s right to fish and hunt. Douglas declined to “construe the Termination Act of 1954 as a backhanded way of abrogating the hunting and fishing rights” of the Menominee Tribe of Indians. Menominee Tribe of Indians was a breakthrough case for several reasons. First, the Supreme Court held that the Termination Act of 1954 did not abrogate the fishing and hunting rights of the Indians even if the treaties did not explicitly mention such rights. And second, the Court recognized a residual of sovereignty that was retained by the Native Americans. Finally, the period of Self-Determination (1968–present) became the federal American Indian policy. This policy was strongly supported by President Lyndon B. Johnson in economic terms. The Civil Rights Act of 1968 has endured as the touchstone of the Self-Determination period. It authorized the American Indian tribes to exercise selfgovernment and required tribes that were exercising the powers of self-government to observe free exercise of religion, freedom of speech, freedom of assembly, right to petition for a redress of grievance, privilege against unreasonable search and seizures, freedom from double jeopardy, privilege against self-incrimination, right to a speedy and public trial, right to confront witnesses, and freedom from excessive bail and cruel and unusual punishment. It also provided for the codification of American law into tribal law and permitting states criminal and civil jurisdiction within Indian country with the consent of 650

the Indian tribes that occupied the particular Indian country or part thereof which could be affected by such assumption. Self-Determination was also noted for the enactment of the Indian Self-Determination and Education Assistance Act of 1975, the Indian Crimes Act of 1976, and the Indian Health Care Improvement Act of 1976. Another signal highlight of this period was the founding of the American Indian Movement in 1968. Largely in the 1960s and 1970s, the Supreme Court brought about several major transformations in Indian legal policy. (See United States v. Wheeler [435 U.S. 322, 1978] and Santa Clara Pueblo v. Martinez [436 U.S. 56, 1978].) In Morton v. Mancari (417 U.S. 535, 1974), the issue was the grant of preference to qualified Indians in hiring and promotion decisions in the Bureau of Indian Affairs. Speaking for the Supreme Court, Justice Blackmun argued that Indian preference was permissible. First, such preferences were not in violation of Title VII of the Civil Rights Act of 1964, and the preferences were exempted in executive orders forbidding government employment discrimination. Blackmun argued that the Indian preference did not constitute racial discrimination. Blackmun also insisted that, as applied, the preference is not granted to a discrete racial group but to members of quasi-sovereign tribes. Finally, Blackmun concluded that the Indian Preference Policy was designed to advance American Indian self-government. The salient point is that Indians as a group are a political and a racial group. The seven periods demonstrate the many changes in the focus and thrust of federal Indian policy. The policy reflects a haunting, forbidding continuity. Regretfully, the lives and culture of American Indians were disrupted not to advance their own interests, but to advance the rights of others. The federal policy seldom sought or desired the participation or the consent of Native Americans.

THE RIGHTS OF NATIVE AMERICANS AND TREATIES: THE CIVIL RIGHTS OF GROUPS (NATIONS) FEATURED CASES

City of Sherrill v. Oneida Indian Nation of New York; Carcieri v. Salazar In twenty-first century America, the majority of American Indians reside in cities, not on reservations. Still, the treaty system defines the relationship

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between American Indians and U.S. government and exerts enormous influence on the definition and content of their rights. Through interpretations of the Constitution, treaties, and statutes, the Supreme Court has carved out a system of group rights—the civil liberties and rights of groups designated as nations or tribes. The concept of individual rights did not apply to American Indians until the Citizenship Act of 1924 naturalized “all non-citizen Indians born within the territorial limits of the United States” (43 Stat. 253, 1924). Before that time, citizenship was premised on the view that Indians should be removed from federal protection, should break tribal ties, and should renounce tribal citizenship (Cohen, 2005). The focus of treaties and statutes that permitted American Indian citizenship was conditioned on their assimilation into the broader society and their renouncement of tribal conditions and culture (Getches et al., 1993). The reservation system emerged in the 1800s. The system resulted from the establishment of treaties between American Indians and the federal government. The treaty system allowed (1) the maintenance of separate peoplehood of American Indians, (2) the successful western expansion of the United States, and (3) the legalization and the constitutionalization of the taking of American Indian land without express military means. Prior to the end of the War of 1812, the American Indian nations and the federal government negotiated some treaties almost as equals. However, there were many treaties in which Indians were at a distinct disadvantage in negotiations. The conclusion of the War of 1812 meant that the British were virtually driven from the continent. This development had a detrimental impact on treaty negotiations from the point of view of American Indians. Such negotiations became largely one-sided. The withdrawal of the British, French, and Spanish from North America meant that the American Indian nations no longer had potentially powerful allies. Even so, the treaty approach continued until 1871. As we have noted, the treaty approach reflected political and militaristic convenience. It allowed the federal government to carry out the complicated and exploitative task of managing Indian affairs. After 1871, the Congress managed American Indian nations’ affairs through legislation. Unlike Indian treaties, statutes did not require the consent nor the participation of the American Indians in the deliberative process.

The negotiation of hundreds of treaties did not conclude the conflict between American Indians and the federal government, nor did the treaties extinguish the animosity between American Indians and the states. Eventually, many of these conflicts were translated into legal and constitutional issues that required the attention of the Supreme Court. The Court was forced to address issues such as treaty construction, treaty abrogation, treaties and criminal jurisdiction in Indian country, and the civil rights of American Indians. In Jones v. Meehan (175 U.S. 1, 1899), the Supreme Court was asked to decide which branch of the federal government was assigned the task of constructing treaties. The Court insisted that it possessed the constitutional responsibility to interpret and construe treaties between American Indian nations and the United States. The Court concluded that “the construction of treaties is the province of the judiciary and except in cases purely political, Congress has no constitutional power to settle the rights under a treaty; or to affect the title already granted by the treaty itself.” And in United States v. Winans (198 U.S. 371, 1905), the Supreme Court held that treaties were to be construed as Indians understood them. In Alaska Pac. Fisheries v. United States (248 U.S. 78, 1918), the Supreme Court also held that ambiguities in treaties must be resolved in favor of the American Indians. Although the Supreme Court advanced the understanding that the American Indian nations are semidependent nations in the formulation of treaties, in Lone Wolf v. Hitchcock, the Court rendered the treaties a unilateral affair, which made it easier for Congress to dispose of its obligations under treaties. The Court reasoned that Congress has always exercised plenary authority over American Indian nations’ relations. The Congressional power “has always been deemed a political one, not subject to . . . the control of the judicial department of the government.” Congress possessed the powers to abrogate treaties and administer the property of Native American nations. (See The Trust Doctrine, 1989.) The Supreme Court said that “. . . it was never doubted that the power to abrogate existed in Congress.” The Court employed the good faith standard in the evaluation of the abrogation action of Congress, refusing to question or inquire into the motives that prompted the enactment of the treaty abrogation legislation. The Court argued,

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“we must presume that Congress acted in perfect good faith in the dealings with the Indians of which complaint is made, and that the legislative branch of the government exercised its best judgment in the premises.” In more recent decisions, the good faith standard of Lone Wolf v. Hitchcock has not received consistent support from the Supreme Court. In Mattz v. Arnett (412 U.S. 481, 505, 1973), the Supreme Court put into place an intent standard. The Mattz Court used the surrounding circumstances and legislative history to determine intent, holding that the Klamath River Reservation in California was not terminated by an 1892 Act. The Supreme Court in Morton v. Mancari (417 U.S. 535, 1974) set forth another standard. The Court said that the legislature judgment should not be disturbed “as long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation towards the Indians. . . .” This standard “allows the federal government broad authority to terminate reservations” (Cohen, 1982). In Rosebud Sioux Tribe v. Kneip (430 U.S. 584, 1972), legal ambiguities were not resolved to advance the interest of the American Indian nation. Speaking for the majority, Justice Rehnquist sustained the unilateral authority of Congress to diminish the size of reservations. The American Indians argued that “cession” required bilateral consent, but the Supreme Court rejected the contention. The provisions of the various statutes did not clearly state congressional intent to do so. Quoting DeCoteau v. District Court (420 U.S. 425, 449, 1975), Rehnquist concluded, “Our task here is a narrow one. . . . We cannot remake history.” The decisions of the Supreme Court suggested that indeed the Court has not endeavored to remake history. In fact, the decisions have not established a consistent pattern nor a desire to represent the interest of American Indians. The next several cases demonstrate this observation. At issue in United States v. Sioux Nation (488 U.S. 371, 1980) was the manner in which the federal government took land in the Black Hills of South Dakota from the Sioux Nation. For more than a century, the Sioux Nation had claimed that the United States unlawfully abrogated the Fort Laramie Treaty of 1868, taking the Black Hills in violation of the Fifth Amendment. Speaking for the majority, Justice Blackmun began by chronicling the history of treaty making between the Sioux 652

Nation and the United States. In the recitation of this history, Blackmun noted: [The executive branch clandestinely abandoned the] “Nation’s treaty obligation to preserve the integrity of the Sioux territory and that the Congress enacted an appropriation measure providing ‘that hereafter there shall be no appropriation made for the subsistence’ of the Sioux, unless they first relinquish their rights to the hunting grounds outside the reservation, ceded the Black Hills to the United States, and reached some accommodation with the Government that would be calculated to enable them to become self-supporting.”

The Supreme Court concluded that the taking of the Black Hills implied “an obligation on the part of the Government to make just compensation to the Sioux, and that obligation, including an award of interest, must now, at last, be paid.” Before reaching this conclusion, Blackmun had to navigate the precedent of Lone Wolf v. Hitchcock. He distinguished the Sioux Nation case from Lone Wolf on four grounds. First, in Lone Wolf, Congress purportedly had given adequate consideration to the situation. But in Sioux Nation, the background of the Act of 1877 revealed inadequate congressional consideration, the absence of any meaningful negotiation or arm’s-length bargaining, and the failure of Congress to consider the payment of a fair price. Second, in Lone Wolf, the Act at issue was “a mere change in the form of investment of Indian tribal property.” But the historical background to the opening of the Black Hills and the terms of the 1877 Act, which abrogated the Fort Laramie Treaty of 1868, prevented a similar conclusion. Third, in Lone Wolf, the Court held the view that Congress possessed full power in the matter. However, since Lone Wolf, this view has been discredited in taking cases. Fourth, in Lone Wolf, the opinion suggested that when the exercise of “congressional power results in injury to Indian rights, ‘relief must be sought by an appeal to that body for redress and not the Courts’.” In the more recent case, the Sioux Nation turned to Congress for redress and the legislative branch referred the matter to the courts for resolution, waived the government’s sovereign immunity, and directed the courts to resolve the taking claim on the merits. In Montana v. United States (450 U.S. 544, 1981), at issue was the source and scope of the power of an American Indian nation to regulate hunting and fishing by non-Indians on lands within its reservation owned in fee simple by non-Indians.

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Writing for the Court, Justice Stewart held that the Crow treaties failed to overcome the established presumption that the beds of navigable waters remain in trust for future states and pass to the new states when they assume sovereignty. The Court concluded that the title to the bed of the river in question, the Big Horn River, passed to the state of Montana when it was admitted into the Union. Stewart also noted that historically the Crow had not relied on the use of the waters. At the time of the treaty, the Crow nation was nomadic and depended chiefly on buffalo rather than on fishing. The fishing and hunting rights of Indians clashed with off-reservations state law in Puyallup Tribe v. Department of Game (391 U.S. 392, 1968). The laws of the state of Washington specified the time when fishing might take place, the areas that were open to fishing, the gear that might be used, and the requirement of a fishing license. Washington forbade set nets or fixed nets in any waters for the catching of salmon or steelhead. The Puyallup Indians fished with nets in Commencement Bay and at the mouth of the Puyallup River and in areas upstream. Speaking for the Supreme Court, Justice William Douglas established the power of the state of Washington to regulate federal treaty fishing. Douglas noted that Washington could not regulate the right of the tribe to fish “at all usual and accustomed places,” but “the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the state in the interest of conservation . . . provided the regulation meets appropriate standards and does not discriminate against the Indians.” In Department of Game v. Puyallup Tribe (414 U.S. 44, 1973), Justice Douglas held that the state of Washington could not ban all Indian net fishing for steelhead. Douglas argued that the state’s priority for hook-and-line sport fishing constituted discrimination because “all Indian net fishing is barred and only hook-and-line fishing . . . is allowed.” In the third installment of the Puyallup cases (Puyallup Tribe v. Department of Game, 433 U.S. 165, 1977), the Supreme Court seemed more deferential to the interests of non-Indians. The Court seemingly was persuaded by the survival of steelhead and the rights of non-Indians to fish. The Supreme Court permitted the regulation of Indian fishing on and off the reservation. In Puyallup Tribe of Indians v. Port of Tacoma, 717 F.2d 1251 (9th cir. 1983), cert. denied (465 U.S.

1049, 1984), tribal ownership of a riverbed was upheld. The construction of tribal ownership of the riverbed seemed to stem from two factors: (1) The grant of real property to the tribe included within its boundaries a navigable water, and (2) the grant of real property is made to a tribe that is dependent on the fishery resource in that water for survival. This analysis suggests that neither the formulation nor the application of treaties seemed to advance the interest of American Indian nations consistently. The legal and political forces that gave rise to the treaty system continue to operate as the Supreme Court construes these treaties, perpetuating the exploited status of American Indians. Seemingly, “we cannot remake history.” The Supreme Court also dealt with treaties and executive orders and hunting, fishing, and gathering. For example, at issue in Minnesota v. Mille Lacs Band of Chippewa Indians (526 U.S. 172, 1999) was the impact of a subsequent treaty and an executive order on the hunting, fishing, and gathering rights that had been reserved in an earlier treaty. An 1837 treaty between the Mille Lacs Band and the United States “ceded land in presentday Wisconsin and Minnesota to the United States, and the United States guaranteed to [this group] certain hunting, fishing, and gathering rights on the ceded land.” The state of Minnesota argued the Mille Lacs Band lost the rights through an executive order in 1850, an 1855 treaty, and the admission of Minnesota into the Union in 1858. Speaking for a sharply divided Court, Justice O’Connor concluded that the Mille Lacs Band retain the usufructuary rights that had been guaranteed to them under the 1837 treaty. O’Connor held that President Taylor’s 1850 executive order was “ineffective to terminate Chippewa usufructary rights under the 1837 Treaty.” Next, O’Connor rejected the state of Minnesota’s contention that the Mille Lacs Band of Chippewa Indians relinquished its usufructuary rights under the 1855 treaty with the Chippewa. The 1855 treaty was “designed primarily to transfer Chippewa land to the United States, not to terminate rights.” O’Connor stated that an analysis of the “history, purpose, and negotiations of this treaty leads us to conclude that the Mille Lacs Band did not relinquish their 1837 Treaty rights in the 1855 Treaty.” Finally, Justice O’Connor rejected the state of Minnesota’s contention that the usufructary rights of the Mille Lacs Band of Chippewa Indians under the 1837 treaty

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were extinguished when Minnesota was admitted to the Union in 1858. O’Connor noted that the 1837 treaty itself defined the circumstances under which the rights would terminate: “When the exercise of those rights was no longer the pleasure of the President. There is no suggestion in the Treaty that the President would have to conclude that the privileges should end when a state was established in the area . . . there is nothing inherent in the nature of reserved treaty rights to suggest that they can be extinguished by implication at statehood. Treaty rights are not impliedly terminated upon statehood.”

The Supreme Court also considered the extent statutes that authorize the federal government to assume control and exclude tribal control in leasing coal, oil, gas, timber, and gravel. In United States v. Navajo Nation (537 U.S. 588, 2003), the Court focused on the Navajo Tribe’s compensation under the Indian Mineral Leasing Act of 1938 (IMLA), contending that the Secretary of the Interior violated the federal government’s trust (fiduciary) obligation to the Tribe. The Navajo Tribe brought suit in 1993 against the United States in the Courts of Federal Claims, alleging that the Secretary of Interior’s approval of the amendments to a lease constituted a breach of trust. The Tribe sought $600 million in damages. A key element to the suit was that in July 1985, during a break-off in negotiations between the Navajo Tribe and the Peabody Coal Company, Peabody representatives met privately with Secretary Hodel. No representative of the Tribe was present at or received notice of that meeting. The Tribe was never informed of Secretary Hodel’s memorandum to Deputy Assistant Secretary Fritz, but the Tribe “learned that ‘someone from Washington had urged a return to the bargaining table.’ Facing ‘severe economic pressure, the Tribe resumed negotiations with Peabody in August 1985.’” Peabody and the Navajo Tribe agreed to raise the royalty rate to 12.5 percent of monthly gross proceeds, the customary rate for leases of mine coal on federal lands and on Indian lands, and to make the new agreement retroactive to February 1, 1984. The Court of Federal Claims granted summary judgment for the U.S. and the Court of Appeals for the Federal Circuit reversed. Writing for a 6–3 majority, Justice Ginsburg rejected the claim of the Navajo Tribe for compensation due to breach of trust. Ginsburg concluded that 654

“the Tribe’s claim for compensation from the Federal Government fails, for it does not derive from any liability-imposing provision of the IMLA or its implementing regulations.” She argued that the IMLA aimed to foster tribal self-determination by “giv[ing] Indians a greater say in the use and disposition of the resources found on Indian lands.” Ginsburg claimed that the “IMLA, designed to advance tribal independence, empowers Tribes to negotiate mining leases themselves and, as to coal leasing, assigns primarily an approval role to the Secretary.” Justice Ginsburg held, “However one might appraise the Secretary’s intervention in this case, we have no warrant from any relevant statute or regulation to conclude that his conduct implicated a duty enforceable in an action for damages under the Indian Tucker Act.” The dissenting opinion of Justice Souter, joined by Justices Stevens and O’Connor, argued for the affirmation of the judgment of the Federal Circuit. Souter believed that the 12.5 percent rate was merely a general standard “which may be a bargain rate when applied to extractable materials of high quality . . .” He insisted that the legislative history and purposes of the IMLA “. . . illuminated by the Secretary’s historical role in reviewing conveyance in Indian lands, point to a fiduciary responsibility to make a more ambitious assessment of the best interest of the Tribe before signing off.” Six years later, in United States v. Navajo Nation (556 U.S. ___, 2009) (Navajo II), the Supreme Court reversed the Federal Circuit Court. The Navajo Tribe’s claim for compensation was denied in this case as well. Delivering the opinion for the Court, Justice Scalia noted for more than fifteen years the Navajo Nation has been pursuing a claim of money damages against the federal government on the basis of an asserted breach of trust by the Secretary of the Interior in connection with his approval of amendments to a coal lease executed by the Tribe. Scalia intimated that this “matter should now be regarded as closed.” Justice Scalia concluded: “None of the sources of law [Indian Mineral Leasing Act of 1938, Indian Mineral Development Act of 1982, Navajo-Hope Rehabilitation Act of 1950, Surface Mining Control and Reclamation of 1977] cited by the Federal Circuit and relied upon the Tribe provides any more sound basis for its breach-of-trust lawsuit against the Federal Government than those we analyzed in Navajo I. This case is at an end.”

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FEDERAL POWER TO RECOGNIZE AND TERMINATE INDIAN COUNTRY STATUS In the first decade of the twenty-first century, the Supreme Court construed federal power to recognize and terminate Indian country status. Across the several centuries of Indian and federal relations, the national government has recognized certain Indian nations for assorted reasons or purposes. A legal– constitutional framework governs federal power to recognize Indian nations: (1) The Indian Commerce Clause grants Congress power to do so; (2) under the Constitution, the executive branch enjoys diplomatic and administrative actions; and (3) courts have concluded that federal authority in Indian affairs derives from federal common law (Newton, 2005). Carcieri v. Salazar (555 U.S. ___, 2009) focused on the construction of the term “now under Federal jurisdiction” of the Indian Reorganization Act (IRA), which was enacted in 1934. Specifically, the IRA authorizes the Secretary of the Interior to acquire land and hold it in trust to provide land for Indians, who are defined as all persons of Indian descent who are members of any recognized tribe that is now under federal jurisdiction. The Narragansett Tribe was under the Colony of Rhode Island’s formal guardianship in 1709. In 1880, the state of Rhode Island pursued efforts to assimilate tribal members into the local population and convinced the Narragansett Tribe to relinquish its tribal authority. The Narragansett Tribe also agreed to sell all but 2 acres of its remaining reservation land for $5000. Almost immediately, the Tribe regretted its decision and pursued a campaign to regain its land and tribal status. From 1927 to 1937, the federal government declined the Narragansett Tribe’s request for economic support and assistance. The federal government granted recognition to the Tribe in 1983. The Tribe purchased 1,800 acres of settlement lands and the Secretary of the Interior accepted the Tribe’s land in trust. The state of Rhode Island argued that “now under the Federal jurisdiction” refers to a tribe that was under federal jurisdiction at the time of the IRA enactment. Justice Thomas agreed with Rhode Island. He used Webster’s International Dictionary (1934), and Blacks’ Law Dictionary (1933): “At this time, or at the present moment”; “now as used in a statute ordinarily refers to the date of its taking effect . . . ” Thomas insisted that such a definition was “consistent with interpretations given to ‘now’ by this

Court, both before and after passage of the IRA, with respect to its use in other statutes.” He also contended that the definition of “now” aligned with the natural reading of the word within the context of the IRA. Justice Thomas alleged that the “Secretary’s current interpretation is at odds with the Executive Branch’s construction of this provision at the time of enactment.” In sum, the Court concluded that “‘now under Federal jurisdiction’ in sec. 479 unambiguously refers to those tribes that were under the federal jurisdiction of the United States when the IRA was enacted in 1934.” The National Congress of American Indians (NCAI) has been a key force in contesting the Carcieri decision in testimony before Congress. The NCAI contends that Carcieri is at odds with the federal policy thrust of tribal self-determination. The ruling has made it unclear whether the Department of the Interior may continue to take lands into trust for tribes that were not recognized by the federal government after 1934. The NCAI urges Congress to amend the Indian Reorganization Act of 1934 to incorporate tribes that received recognition after 1934. In City of Sherrill, New York v. Oneida Indian Nation of New York (554 U.S. 197, 2005), the Oneida Tribe purchased separate parcels of land in Sherrill, New York, in 1997 and 1998. The properties were once within the historic Oneida Reservation, which was last possessed by the Tribe as a tribal entity in 1805. The Oneida Tribe resisted paying property taxes on the ground that the Oneida Nation’s acquisition of fee title to discrete parcels of historic reservation land revived its ancient sovereignty piecemeal over each parcel, thus regulatory authority over the newly purchased properties no longer resided in Sherrill. Justice Ginsburg pointed out that generations “have passed during which non-Indians have owned and developed the area that once composed the Tribe’s historic reservation.” Ginsburg noted that most of the Oneidas have resided elsewhere. She emphasized the Tribe’s long delay in seeking judicial relief against parties other than the United States. Justice Ginsburg concluded that the “Tribe cannot unilaterally revive its ancient sovereignty, in whole or in part, over the parcels at issue. The Oneidas long ago relinquished the reins of government and cannot regain them through open-market purchases from current titleholders.” Ginsburg’s opinion for the Court tracked the changes in federal policy. The federal government’s policy shifted from protection of New York and

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other East Coast reservations to opening reservation lands to white settlers and removing the tribes westward. She noted that eventually the federal government abandoned its policy of Indian removal. Justice Ginsburg argued that the “passage of time can preclude relief has deep roots in our law, and this Court has recognized this prescription in various guises,” including laches doctrine, the acquiescence doctrine, and impossibility doctrine. Laches, “a doctrine [that] focused on one side’s inaction and

the other’s legitimate reliance, may bar long-dormant claims for equitable relief.” The acquiescence doctrine “does not depend on the original validity of a boundary line; rather, it attaches legal consequences to acquiescence in the observance of the boundary.” Ginsburg opted for a political solution over a judicial one: “Section 465 provides the proper avenue for OIN [the Oneida Indian Nation] to reestablish sovereign authority over territory last held by the Oneidas 200 years ago.”

CITY OF SHERRILL V. ONEIDA INDIAN NATION OF NEW YORK 544 U.S. 197 (2005) JUSTICE GINSBURG delivered the opinion of the Court, to which CHIEF JUSTICE REHNQUIST, and JUSTICES O’CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS, and BREYER, joined. JUSTICE SOUTER filed a concurring opinion. JUSTICE STEVENS filed a dissenting opinion. JUSTICES GINSBURG delivered the opinion of the Court. This case concerns properties in the city of Sherrill, New York, purchased by the Oneida Indian Nation of New York (OIN or Tribe) in 1997 and 1998. The separate parcels of land in question, once contained within the Oneidas’ 300,000-acre reservation, were last possessed by the Oneidas as a tribal entity in 1805. For two centuries, governance of the area in which the properties are located has been provided by the State of New York and its county and municipal units. In County of Oneida v. Oneida Indian Nation of N.Y., 470 U.S. 226 (1985) (Oneida II), this Court held that the Oneidas stated a triable claim for damages against the County of Oneida for wrongful possession of lands they conveyed to New York State in 1795 in violation of federal law. In the instant action, OIN resists the payment of property taxes to Sherrill on the ground that OIN’s acquisition of fee title to discrete parcels of historic reservation land revived the Oneidas’ ancient sovereignty piecemeal over each parcel. Consequently, the Tribe maintains, regulatory authority over OIN’s newly purchased properties no longer resides in Sherrill. 656

Our 1985 decision recognized that the Oneidas could maintain a federal common-law claim for damages for ancient wrongdoing in which both national and state governments were complicit. Today, we decline to project redress for the Tribe into the present and future, thereby disrupting the governance of central New York’s counties and towns. Generations have passed during which non-Indians have owned and developed the area that once composed the Tribe’s historic reservation. And at least since the middle years of the 19th century, most of the Oneidas have resided elsewhere. Given the longstanding, distinctly non-Indian character of the area and its inhabitants, the regulatory authority constantly exercised by New York State and its counties and towns, and the Oneidas’ long delay in seeking judicial relief against parties other than the United States, we hold that the Tribe cannot unilaterally revive its ancient sovereignty, in whole or in part, over the parcels at issue. The Oneidas long ago relinquished the reins of government and cannot regain them through open-market purchases from current titleholders. I A OIN is a federally recognized Indian Tribe and a direct descendant of the Oneida Indian Nation (Oneida Nation), “one of the six nations of the Iroquois, the most powerful Indian Tribe in the

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Northeast at the time of the American Revolution.” Id., at 230. At the birth of the United States, the Oneida Nation’s aboriginal homeland comprised some six million acres in what is now central New York. Ibid.; Oneida Indian Nation of N. Y. v. County of Oneida, 414 U.S. 661, 664 (1974) (Oneida I). In the years after the Revolutionary War, “the State of New York came under increasingly heavy pressure to open the Oneidas’ land for settlement.” Oneida II, 470 U.S., at 231. Reflective of that pressure, in 1788, New York State and the Oneida Nation entered into the Treaty of Fort Schuyler. For payments in money and kind, the Oneidas ceded to New York “all their lands.” App. to Pet. for Cert. A136. Of the vast area conveyed, “[t]he Oneidas retained a reservation of about 300,000 acres,” Oneida II, 470 U.S., at 231, “for their own use and cultivation,” App. to Pet. For Cert. A137 (internal quotation marks omitted).1 OIN does not here contest the legitimacy of the Fort Schuyler conveyance or the boundaries of the reserved area. The Federal Government initially pursued a policy protective of the New York Indians, undertaking to secure the Tribes’ rights to reserved lands. See Oneida II, 470 U.S., at 231–232; Oneida I, 414 U.S., at 667; F. Cohen, Handbook of Federal Indian Law 418–419 (1942 ed.); F. Cohen, Handbook of Federal Indian Law 73–74 (1982 ed.) (hereinafter Handbook). In 1790, Congress passed the first Indian Trade and Intercourse Act, commonly known as the Nonintercourse Act. Act of July 22, 1790, ch. 33, 1 Stat. 137. Periodically renewed, see Oneida I, 414 U.S., at 667–668, and n. 4, and remaining substantially in force today, see Rev. Stat. § 2116, 25 U.S.C. § 177, the Act bars sales of tribal

1 Under the “doctrine of discovery,” Oneida II, 470 U.S. 226, 234 (1985), “fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign-first the discovering European nation and later the original States and the United States,” Oneida I, 414 U.S. 661, 667 (1974). In the original 13 States, “fee title to Indian lands,” or “the pre-emptive right to purchase from the Indians, was in the State.” Id., at 670; see Oneida Indian Nation of N. Y. v. New York, 860 F. 2d 1145, 1159–1167 (CA2 1988). Both before and after the adoption of the Constitution, New York State acquired vast tracts of land from Indian tribes through treaties it independently negotiated, without National Government participation. See Gunther, Governmental Power and New York Indian Lands—A Reassessment of a Persistent Problem of Federal-State Relations, 8 Buffalo L. Rev. 1, 4–6 (1958–1959) (hereinafter Gunther).

land without the acquiescence of the Federal Government.2 In 1794, in further pursuit of its protective policy, the United States entered into the Treaty of Canandaigua with the Six (Iroquois) Nations. Act of Nov. 11, 1794, 7 Stat. 44. That treaty both “acknowledge[d]” the Oneida Reservation as established by the Treaty of Fort Schuyler and guaranteed the Oneidas’ “free use and enjoyment” of the reserved territory. Id., at 45, Art. II. The Oneidas in turn agreed they would “never claim any other lands within the boundaries of the United States.” Id., at 45, Art. IV. New York State nonetheless continued to purchase reservation land from the Oneidas. The Washington administration objected to New York’s 1795 negotiations to buy 100,000 acres of the Oneidas’ Reservation without federal supervision. Oneida II, 470 U.S., at 229, 232. Later administrations, however, “[made not] even a pretense of interfer[ing] with [the] State’s attempts to negotiate treaties [with the Oneidas] for land cessions.” Oneida Nation of N. Y. v. United States, 43 Ind. Cl. Comm’n 373, 385 (1978); see also id., at 390; Campisi, The Oneida Treaty Period, 1783–1838, in The Oneida Indian Experience: Two Perspectives 48, 59 (J. Campisi & L. Hauptman eds. 1988) (hereinafter Campisi). See generally Gunther 6 (“New York acquired much land from Indians through treaties-perhaps as many as 200-not participated in, though apparently known and not objected to, by the national government.” (footnote omitted)). The Federal Government’s policy soon veered away from protection of New York and other east coast reservations. In lieu of the commitment made 2 By its terms, the 1790 Nonintercourse Act governed Indian lands within the boundaries of the original 13 States. The Act provided “[t]hat no sale of lands made by any Indians, or any nation or tribe of Indians within the United States, shall be valid to any person or persons, or to any state, whether having the right of pre-emption to such lands or not, unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.” Act of July 22, 1790, ch. 33, § 4, 1 Stat. 138 (emphasis added). Our prior decisions state in this regard that, “[w]ith the adoption of the Constitution, Indian relations became the exclusive province of federal law.” Oneida II, 470 U.S., at 234 (citing Oneida 1, 414 U.S., at 670). See generally Clinton & Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims, 31 Me. L. Rev. 17, 23–38 (1979) (discussing Indian relations under the Articles of Confederation and the Constitution).

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in the Treaty of Canandaigua, the United States pursued a policy designed to open reservation lands to white settlers and to remove tribes westward. D. Getches, C. Wilkinson, & R. Williams, Cases and Materials on Federal Indian Law 94 (4th ed. 1998) (After the Louisiana Purchase in 1803, federal policymakers “began to debate the tactics of inducing [eastern Indians] to exchange their remaining ancestral lands for a permanent territory in the West.”). As recounted by the Indian Claims Commission in 1978, early 19th-century federal Indian agents in New York State did not simply fail to check New York’s land purchases, they “took an active role . . . in encouraging the removal of the Oneidas . . . to the west.” Oneida Nation of N. Y., 43 Ind. Comm’n, at 390; see id.; at 391 (noting that some federal agents were “deeply involved” in “plans . . . to bring about the removal of the [Oneidas]” and in the State’s acquisition of Oneida land). Beginning in 1817, the Federal Government accelerated its efforts to remove Indian tribes from their east’ coast homelands. Handbook 78–79, and n. 142. Pressured by the removal policy to leave their ancestral lands in New York, some 150 Oneidas, by 1825, had moved to Wisconsin. Horsman, The Wisconsin Oneidas in the Preallotment Years, in The Oneida Indian Experience, supra, at 65, 67. In 1838, the Oneidas and the United States entered into the Treaty of Buffalo Creek, which envisioned removal of all remaining New York Indians, including the Oneidas, to Kansas. Act of Jan. 15, 1838, 7 Stat. 550. By this time, the Oneidas had sold all but 5,000 acres of their original reservation. 337 F. 3d 139, 149 (CA2 2003). Six hundred of their members resided in Wisconsin, while 620 remained in New York State. 7 Stat. 556 (Sched. A). In Article 13 of the Buffalo Creek Treaty, the Oneidas agreed to remove to the Kansas lands the United States had set aside for them “as soon as they c[ould] make satisfactory arrangements” for New York State’s “purchase of their lands at Oneida.” Id., at 554. As a condition of the treaty’s ratification, the Senate directed that a federal commissioner “fully and fairly explai[n]” the terms to each signatory tribe and band. New York Indians v. United States, 170 U.S. 1, 21–22 (1898). Commissioner Ransom H. Gillet, who had originally negotiated the treaty terms with the Oneidas, met with them again and assured them they would not be forced to move but could remain on “their 658

lands where they reside,” i.e., they could “if they ch[ose] to do so remain where they are forever.” App. 146 (emphases added). The Oneidas who stayed on in New York after the proclamation of the Buffalo Creek Treaty continued to diminish in number and, during the 1840’s, sold most of their remaining lands to the State. New York Indians v. United States, 40 Ct. Cl. 448, 458, 469–471 (1905). A few hundred Oneidas moved to Canada in 1842, id., at 458, and “by the mid-1840s, only about 200 Oneidas remained in New York State,” Introduction to Part I, The Oneida Indian Journey: From New York to Wisconsin, 1784–1860, pp. 9, 13 (L. Hauptman & L. McLester eds. 1999). By 1843, the New York Oneidas retained less than 1,000 acres in the State. Campisi 61. That acreage dwindled to 350 in 1890; ultimately, by 1920, only 32 acres continued to be held by the Oneidas. Ibid. The United States eventually abandoned its efforts to remove the New York Indians to Kansas. In 1860, the Federal Government restored the Kansas lands to the public domain, and sold them thereafter. New York Indians, 170 U.S., at 24, 28–29, 31. B Early litigation concerning the Oneidas’ land claims trained on monetary recompense from the United States for past deprivations. In 1893, the United States agreed to be sued for disposing of the Kansas lands to settlers, and the Oneidas in New York shared in the resulting award of damages. See New York Indians, 170 U.S. 1; New York Indians, 40 Ct. Cl. 448 (identifying the Tribes qualified to share in the distribution of the sum recovered). Seeking further compensation from the United States a half century later, the New York and Wisconsin Oneidas initiated proceedings before the Indian Claims Commission in 1951. Oneida Indian Nation of N. Y. v. County of Oneida, 622 F. 2d 624, 626 (CA2 1980). They sought redress for lands New York had acquired through 25 treaties of cession concluded between 1795 and 1846. The Oneidas alleged, and the Claims Commission agreed, that under the Nonintercourse Act of 1790 and successor statutes, the Federal Government had a fiduciary duty to ensure that the Oneidas received from New York “conscionable consideration” for the lands in question. Oneida Nation of N. Y. v. United States, 26 Ind. Cl. Comm’n 138, 145 (1971). The Court of Claims

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affirmed the Commission’s core determination, but held that the United States’ duty extended only to land transactions of which the Government had knowledge.’ United States v. Oneida Nation of N. Y., 201 Ct. Cl. 546, 554, 477 F. 2d 939, 944 (1973). Accordingly, the Court of Claims directed the Commission to determine whether the Government actually or constructively knew of the land transactions at issue. Id., at 555, 477 F. 2d, at 945. On remand, the Commission found that the Federal Government had actual or constructive knowledge of all of the treaties and would be liable if the Oneidas had not received conscionable consideration. Oneida Nation of N. Y, 43 Ind. Cl. Comm’n, at 375, 406–407. The Commission anticipated further proceedings to determine the Federal Government’s ultimate liability, but the Oneidas had by then decided to pursue a different course. On the Oneidas’ request, the Court of Claims dismissed the proceedings. See Oneida Nation of N. Y. v. United States, 231 Ct. Cl. 990, 991 (1982) (per curiam). In lieu of concentrating on recovery from the United States, the Oneidas pursued suits against local governments. In 1970, the Oneidas of New York and Wisconsin, asserting federal-question jurisdiction under 28 U.S.C. § 1331 or § 1362, instituted a “test case” against the New York Counties of Oneida and Madison. They alleged that the cession of 100,000 acres to New York State in 1795, see supra, at 205, violated the Nonintercourse Act and thus did not terminate the Oneidas’ right to possession under the applicable federal treaties and statutes. In this initial endeavor to gain compensation from governmental units other than the United States, the Oneidas confined their demand for relief. They sought only damages measured by the fair rental value, for the years 1968 and 1969, of 872 acres of their ancestral land owned and occupied by the two counties. The District Court, affirmed by the Court of Appeals, dismissed the Oneidas’ complaint for failure to state a claim arising under federal law. We reversed that determination, holding that federal jurisdiction was properly invoked. Oneida I, 414 U.S., at 675, 682. In the next round, the Oneidas prevailed in the lower courts. On review in Oneida II, we rejected various defenses the counties presented that might have barred the action for damages, 470 U.S., at 240–250, and held that the Oneidas could maintain

their claim to be compensated “for violation of their possessory rights based on federal common law,” id., at 236. While upholding the judgment of the Court of Appeals regarding the counties’ liability under federal common law, we noted that “[t]he question whether equitable considerations should limit the relief available to the present day Oneida Indians was not addressed by the Court of Appeals or presented to this Court.” Id., at 253, n. 27. Accordingly, “we express[ed] no opinion as to whether other considerations m[ight] be relevant to the final disposition of this case.” Ibid. On remand, the District Court entered a final judgment which fixed the amount of damages payable by the counties. Allowing setoffs for the counties’ goodfaith improvements to the land, the court ordered recoveries of $15,994 from Oneida County and $18,970 from Madison County, plus prejudgment interest. Oneida Indian Nation of N. Y. v. County of Oneida, 217 F. Supp. 2d 292, 310 (NDNY 2002). In 2000, litigation resumed in an action held in abeyance during the pendency of the test case. In that revitalized action, the Oneidas sought damages from Oneida and Madison Counties for a period spanning over 200 years. The amended complaint alleged that, through a series of agreements concluded during the years 1795 to 1846, approximately 250,000 acres of the Oneidas’ ancestral land had been unlawfully conveyed to New York. Oneida Indian Nation of N. Y. v. County of Oneida, 199 F. R. D. 61, 66–68 (NDNY 2000). The Oneidas further sought to enlarge the action by demanding recovery of land they had not occupied since the 1795–1846 conveyances.3 They attempted to join as defendants, inter alia, approximately 20,000 private landowners, and to obtain declaratory relief that would allow the Oneidas to 3 In contrast, United States v. Boylan, 265 F. 165 (CA2 1920), involved land the Oneidas never left. Boylan concerned the 1885 conveyances by individual Oneida Indians of a 32-acre tract of reservation land to non-Indians. Despite the conveyances, a band of Oneidas continued to live on the land. After a non-Indian gained a state-court order ejecting the remaining Oneidas, the United States brought suit on behalf of the Oneidas to reclaim the land. The Second Circuit observed that the Oneidas were “actually in possession” of the 32 acres in question, id., at 167, and had occupied the land continuously for over a century, id., at 171. Given that occupation and the absence of Federal Government approval for the individual Oneidas’ conveyances, the Second Circuit upheld the District Court’s “decree restoring the ejectedIndians to possession.” Id., at 173–174.

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eject these landowners. Id., at 67–68.4 The District Court refused permission to join the landowners so late in the day, resting in part on the Oneidas’ bad faith and undue delay. Id., at 79–85. Further, the court found the proposed amendment “futile.” Id., at 94. In this regard, the court emphasized the “sharp distinction between the existence of a federal common law right to Indian homelands,” a right this Court recognized in Oneida II, “and how to vindicate that right.” 199 F. R. D., at 90. That distinction “must be drawn,” the court stated, ibid., for in the two centuries since the alleged wrong, “development of every type imaginable has been ongoing,” id., at 92. Referring to the “practical concerns” that blocked restoration of Indians to their former lands, the court found it high time “to-transcend the theoretical.” Ibid. Cases of this genre, the court observed, “cr[ied] out for a pragmatic approach.” Ibid. The District Court therefore excluded the imposition of any liability against private landowners. Id., at 93–95. This brings us to the present case, which concerns parcels of land in the city of Sherrill, located in Oneida County, New York. According to the 2000 census, over 99 percent of the population in the area is non-Indian: American Indians represent less than 1 percent of the city of Sherrill’s population and less than 0.5 percent of Oneida County’s population. U.S. Dept. of Commerce, Census Bureau, 2000 Census of Population and Housing, Summary Population and Housing Characteristics: New York, 2000 PHC-1-34, Table 3, p. 124 (July 2002), available at www.census.gov/prod/cen2000/phc-1-34.pdf (as visited Mar. 24, 2005, and available in Clerk of Court’s case file). OIN owns approximately 17,000 acres of land scattered throughout the Counties of Oneida and Madison, representing less than 1.5 percent of the counties’ total area. OIN’s predecessor, the Oneida Nation, had transferred the parcels at issue to one of its members in 1805, who sold the land to a non-Indian in 1807. The properties thereafter remained in non-Indian hands until OIN’s

4 In another lawsuit, commenced in 1978, the Oneidas sought from the State of New York and others both damages and recovery of land New York had purchased from the Oneidas in 1785 and 1788. Oneida Indian Nation of N. Y., 860 F. 2d, at 1148. The Second Circuit affirmed the District Court’s dismissal of that action, holding that treaties between New York and the Oneidas during the years in which the Articles of Confederation were operative did not require the assent of Congress. Id., at 1167; see supra, at 203–204, n. 1.

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acquisitions in 1997 and 1998 in open-market transactions. See 337 F. 3d, at 144, n. 3. OIN now operates commercial enterprises on these parcels: a gasoline station, a convenience store, and a textile facility. Id., at 144. Because the parcels lie within the boundaries of the reservation originally occupied by the Oneidas, OIN maintained that the properties are exempt from taxation, and accordingly refused to pay the assessed property taxes. The city of Sherrill initiated eviction proceedings in state court, and OIN sued Sherrill in federal court. In contrast to Oneida I and II, which involved demands for monetary compensation, OIN sought equitable relief prohibiting, currently and in the future, the imposition of property taxes. OIN also sued Madison County, seeking a declaration that the Tribe’s properties in Madison are tax exempt. The litigation involved a welter of claims and counterclaims. Relevant here, the District Court concluded that parcels of land owned by the Tribe in Sherrill and Madison are not taxable. See 145 F. Supp. 2d 226, 254–259 (NDNY 2001). A divided panel of the Second Circuit affirmed. 337 F. 3d 139. Writing for the majority, Judge Parker ruled that the parcels qualify as “Indian country,” as that term is defined in 18 U.S.C. § 1151, because they fall within the boundaries of a reservation set aside by the 1794 Canandaigua Treaty for Indian use under federal supervision. 337 F. 3d, at 155–156; see supra, at 204–205. The court further held that the Buffalo Creek Treaty did not demonstrate a clear congressional purpose to disestablish or diminish the Oneida Reservation. 337 F. 3d, at 161, 165; see supra, at 206. Finally, the court found no legal requirement “that a federally recognized tribe demonstrate its continuous existence in order to assert a claim to its reservation land.” 337 F. 3d, at 165. In any case, the court held, the record demonstrated OIN’s continuous tribal existence. Id., at 166–167. Judge Van Graafeiland dissented as to the majority’s primary holding. In his view, the record raised a substantial question whether OIN had “forfeited” its aboriginal rights to the land because it abandoned “its tribal existence . . , for a discernable period of time.” Id., at 171. We granted the city of Sherrill’s petition for a writ of certiorari, 542 U.S. 936 (2004), and now reverse the judgment of the Court of Appeals. I Titled “Indian country defined,” 18 U.S.C. § 1151 provides, in relevant part, that “the term ‘Indian country’ . . . means (a) all land within the limits of any Indian

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reservation under the jurisdiction of the United States Government.” II OIN and the United States argue that because the Court in Oneida II recognized the Oneidas’ aboriginal title to their ancient reservation land and because the Tribe has now acquired the specific parcels involved in this suit in the open market, it has unified fee and aboriginal title and may now assert sovereign dominion over the parcels. Brief for Respondents 1, 12–19; Brief for United States as Amicus Curiae 9–10. When the Oneidas came before this Court 20 years ago in Oneida II, they sought money damages only. 470 U.S., at 229; see also id., at 244, n. 16 (recognizing that the suit was an “action at law”). The Court reserved for another day the question whether “equitable considerations” should limit the relief available to the present-day Oneidas. Id., at 253, n. 27; supra, at 9. “The substantive questions whether the plaintiff has any right or the defendant has any duty, and if so what it is, are very different questions from the remedial questions whether this remedy or that is preferred, and what the measure of the remedy is.” D. Dobbs, Law of Remedies § 1.2, p. 3 (1973); see also Navajo Tribe of Indians v. New Mexico, 809 F. 2d 1455, 1467 (CA10 1987) (“The distinction between a claim or substantive right and a remedy is fundamental.”). “[Sltandards of federal Indian law and federal equity practice” led the District Court, in the litigation revived after Oneida II, see supra, at 210–211, to reject OIN’s plea for ejectment of 20,000 private landowners. Oneida Indian Nation of N. Y., 199 F. R. D., at 90 (internal quotation marks omitted); ibid. (“[T]here is a sharp distinction between the existence of a federal common law right to Indian homelands and how to vindicate that right. . . .”). In this action, 6 The United States acknowledged in its brief to the Court in Oneida II that equitable considerations unaddressed by the Court of Appeals in that suit might limit the relief available to the present-day Oneidas. Brief for United States as Amicus Curiae in County of Oneida v. Oneida Indian Nation of N. Y., 0. T. 1984, No. 83–1065 etc., pp. 33–40. OIN seeks declaratory and injunctive relief recognizing its present and future sovereign immunity from local taxation on parcels of land the Tribe purchased in the open market, properties that had been

subject to state and local taxation for generations. We now reject the unification theory of OIN and the United States and hold that “standards of federal Indian law and federal equity practice” preclude the Tribe from rekindling embers of sovereignty that long ago grew cold.8 The appropriateness of the relief OIN here seeks must be evaluated in light of the long history of state sovereign control over the territory. From the early 1800’s into the 1970’s, the United States largely accepted, or was indifferent to, New York’s governance of the land in question and the validity vel non of the Oneidas’ sales to the State. See generally Gunther 23–25 (attributing much of the confusion and conflict in the history of New York Indian affairs to “Federal inattention and ambivalence”). In fact, the United States’ policy and practice through much of the early 19th century was designed to dislodge east coast lands from Indian pos-session. See supra, at 205–207. Moreover, the properties here involved have greatly increased in value since the Oneidas sold them 200 years ago. Notably, it was not until lately that the Oneidas sought to regain ancient sovereignty over land converted from wilderness to become part of cities like Sherrill. See supra, at 210–212; Oneida II, 470 U.S., at 264–265 (STEVENS, J., dissenting in part). This Court has observed in the different, but related, context of the diminishment of an Indian reservation that “[t]he longstanding assumption of jurisdiction by the State over an area that is over 90 percent non-Indian, both in population and in land use,” may create “justifiable expectations.” Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 604–605 (1977); accord Hagen v. Utah, 510 U.S. 399, 421 (1994) (“jurisdictional history” and “the current population situation . . . demonstrat[e] a practical acknowledgment” of reservation diminishment; “a contrary conclusion would seriously disrupt the justifiable expectations of the people living in the area” (internal quotation marks omitted)). Similar justifiable expectations, grounded in two centuries of New York’s exercise of regulatory jurisdiction, until recently uncontested by OIN, merit heavy weight here. The wrongs of which OIN complains in this action occurred during the early years of the Republic. For the past two centuries, New York and its county and municipal units have continuously governed the territory. The Oneidas did not seek to regain possession of their aboriginal lands by court decree until the 1970’s.

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See supra, at 210, n. 4. And not until the 1990’s did OIN acquire the properties in question and assert its unification theory to ground its demand for exemption of the parcels from local taxation. 337 F. 3d, at 144. This long lapse of time, during which the Oneidas did not seek to revive their sovereign control through equitable relief in court, and the attendant dramatic changes in the character of the properties, preclude OIN from gaining the disruptive remedy it now seeks. The principle that the passage of time can preclude relief has deep roots in our law, and this Court has recognized this prescription in various guises. It is well established that laches, a doctrine focused on one side’s inaction and the other’s legitimate reliance, may bar long-dormant claims for equitable relief. See, e.g., Badger v. Badger, 2 Wall. 87, 94 (1865) (“[C]ourts of equity act upon their own inherent doctrine of discouraging, for the peace of society, antiquated demands, refuse to interfere where there has been gross laches in prosecuting the claim, or long acquiescence in the assertion of adverse rights.” (internal quotation marks omitted)); Wagner v. Baird, 7 How. 234, 258 (1849) (same); Bowman v. Wathen, 1 How. 189, 194 (1843) (“[The] doctrine of an equitable bar by lapse of time, so distinctly announced by the chancellors of England and Ireland, . . . should now be regarded as settled law in this court.”). This Court applied the doctrine of laches in Felix v. Patrick,145 U.S. 317 (1892), to bar the heirs of an Indian from establishing a constructive trust over land their Indian ancestor had conveyed in violation of a statutory restriction. In the nearly three decades between the conveyance and the lawsuit, “[a] large part of the tract ha[d] been platted and recorded as an addition to the city of Omaha, and . . . sold to purchasers.” Id., at 326. “[A]s the case stands at present,” the Court observed, “justice requires only what the law . . . would demand-the repayment of the value of the [illegally conveyed] scrip.” Id., at 334. The Court also recognized the disproportion between the value of the scrip issued to the Indian ($150) and the value of the property the heirs sought to acquire (over $1 million). Id., at 333. The sort of changes to the value and character of the land noted by the Felix Court are present in even greater magnitude in this suit. Cf. Galliher v. Cadwell, 145 U.S. 368, 373 (1892) (“[L]aches is not . . . a mere matter of time; but principally a question of the inequity of permitting the claim to be enforced an inequity founded upon some change in the condition or relations of the property or the parties.”). 662

As between States, long acquiescence may have controlling effect on the exercise of dominion and sovereignty over territory. Ohio v. Kentucky, 410 U.S. 641, 651 (1973) (“The rule, long-settled and never doubted by this court, is that long acquiescence by one state in the possession of territory by another and in the exercise of sovereignty and dominion over it is conclusive of the latter’s title and rightful authority.” (quoting Michigan v. Wisconsin, 270 U.S. 295, 308 (1926))); Massachusetts v. New York, 271 U.S. 65, 95 (1926) (“Long acquiescence in the possession of territory and the exercise of dominion and sovereignty over it may have a controlling effect in the determination of a disputed boundary.”). The acquiescence doctrine does not depend on the original validity of a boundary line; rather, it attaches legal consequences to acquiescence in the observance of the boundary. California v. Nevada, 447 U.S. 125, 131 (1980) (No relationship need exist “between the origins of a boundary and the legal consequences of acquiescence in that boundary. . . . Longstanding acquiescence by California and Nevada can give [the boundary lines] the force of law whether or not federal authorities had the power to draw them.”). This Court’s original-jurisdiction state-sovereignty cases do not dictate a result here, but they provide a helpful point of reference: When a party belatedly asserts a right to present and future sovereign control over territory, longstanding observances and settled expectations are prime considerations. There is no dispute that it has been two centuries since the Oneidas last exercised regulatory control over the properties here or held them free from local taxation. Parcel-by-parcel revival of their sovereign status, given the extraordinary passage of time, would dishonor “the historic wisdom in the value of repose.” Oneida II, 470 U.S., at 262 (STEVENS, J., dissenting in part). Finally, this Court has recognized the impracticability of returning to Indian control land that generations earlier passed into numerous private hands. See Yankton Sioux Tribe v. United States, 272 U.S. 351, 357 (1926) (“It is impossible . . . to rescind the cession and restore the Indians to their former rights because the lands have been opened to settlement and large portions of them are now in the possession of innumerable innocent purchasers. . . .”); Felix, 145 U.S., at 334 (observing, in declining to award equitable relief, “[t]hat which was wild land thirty years ago is now intersected by streets, subdivided into blocks and lots, and largely occupied by

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persons who have bought upon the strength of Patrick’s title, and have erected buildings of a permanent character”). The District Court, in the litigation dormant during the pendency of Oneida II, see supra, at 209–211, rightly found these pragmatic concerns about restoring Indian sovereign control over land “magnified exponentially here, where development of every type imaginable has been ongoing for more than two centuries.” Oneida Indian Nation of N.Y., 199 F. R. D., at 92. In this case, the Court of Appeals concluded that the “impossibility” doctrine had no application because OIN acquired the land in the open market and does not seek to uproot current property owners. 337 F. 3d, at 157. But the unilateral reestablishment of present and future Indian sovereign control, even over land purchased at the market price, would have disruptive practical consequences similar to those that led this Court in Yankton Sioux to initiate the impossibility doctrine. The city of Sherrill and Oneida County are today overwhelmingly populated by nonIndians. See supra, at 211. A checkerboard of alternating state and tribal jurisdiction in New York State-created unilaterally at OIN’s behest-would “seriously burde[n] the administration of state and local governments” and would adversely affect landowners neighboring the tribal patches. Hagen, 510 U.S., at 421 (quoting Solem v. Bartlett, 465 U.S. 463, 471–472, n. 12 (1984)). If OIN may unilaterally reassert sovereign control and remove these parcels from the local tax rolls, little would prevent the Tribe from initiating a new generation of litigation to free the parcels from local zoning or other regulatory controls that protect all landowners in the area. See Felix, 145 U.S., at 335 (“decree prayed for in this case, if granted, would offer a distinct encouragement to . . . similar claims”); cf. Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U.S. 408, 433–437 (1989) (opinion of STEVENS, J.) (discussing tribal land-use controls); post, at 226, n. 6 (STEVENS, J., dissenting) (noting that “the balance of interests” supports continued state zoning jurisdiction). Recognizing these practical concerns, Congress has provided a mechanism for the acquisition of lands for tribal communities that takes account of the interests of others with stakes in the area’s governance and well-being. Title 25 U.S.C. § 465 authorizes the Secretary of the Interior to acquire land in trust for Indians and provides that the land “shall be exempt from State and local taxation.” See Cass County v.

Leech Lake Band of Chippewa Indians, 524 U.S. 103, 114–115 (1998). The regulations implementing § 465 are sensitive to the complex interjurisdictional concerns that arise when a tribe seeks to regain sovereign control over territory. Before approving an acquisition, the Secretary must consider, among other things, the tribe’s need for additional land; “[t]he purposes for which the land will be used”; “the impact on the State and its political subdivisions resulting from the removal of the land from the tax rolls”; and “[j]urisdictional problems and potential conflicts of land use which may arise.” 25 CFR § 151.10(f) (2004). Section 465 provides the proper avenue for OIN to reestablish sovereign authority over territory last held by the Oneidas 200 years ago. In sum, the question of damages for the Tribe’s ancient dispossession is not at issue in this case, and we therefore do not disturb our holding in Oneida II. However, the distance from 1805 to the present day, the Oneidas’ long delay in seeking equitable relief against New York or its local units, and developments in the city of Sherrill spanning several generations, evoke the doctrines of laches, acquiescence, and impossibility, and render inequitable the piecemeal shift in governance this suit seeks unilaterally to initiate. ... For the reasons stated, the judgment of the Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE SOUTER, concurring. I join the opinion of the Court with one qualification that goes to the appropriateness of considering the long dormancy of any claim to tribal authority over the parcels in question, as a basis to hold that the Oneida Indian Nation is not now immune from the taxing authority of local government. The Tribe’s claim, whether affirmative or defensive, see ante, at 214, n. 7, is one of territorial sovereign status entitled to recognition by the territorial state sovereign and its subdivisions. The claim of present sovereign status turns not only on background law and the provisions of treaties, but also on the Tribe’s behavior over a long period of time: the absence of the Tribe and tribal members from the particular lots of land, and the Tribe’s failure to assert sovereignty over them. The Tribe’s inaction cannot, therefore, be ignored here as affecting only a remedy to be considered

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later; it is, rather, central to the very claims of right made by the contending parties. Since the subject of inaction was not expressly raised as a separate question presented for review, see ante, at 214, n. 8, there is some question whether we should order reargument before dealing with it. I think that is unnecessary; the issue was addressed by each side in the argument prior to submission of the case, notwithstanding the terms of the questions on which review was granted. JUSTICE STEVENS, dissenting. This case involves an Indian tribe’s claim to tax immunity on its own property located within its reservation. It does not implicate the tribe’s immunity from other forms of state jurisdiction, nor does it concern the tribe’s regulatory authority over property owned by non-Indians within the reservation. For the purposes of its decision the Court assumes that the District Court and the Court of Appeals correctly resolved the major issues of fact and law that the parties debated in those courts and that the city of Sherrill (City) presented to us in its petition for certiorari. Thus, we accept those courts’ conclusions that the Oneida Indian Nation of New York (Tribe) is a federally recognized Indian Tribe; that it is the successor-in-interest to the original Oneida Nation; that in 1788 the Treaty of Fort Schuyler created a 300,000-acre reservation for the Oneida; that in 1794 the Treaty of Canandaigua established that tract as a federally protected reservation; and that the reservation was not disestablished or diminished by the Treaty of Buffalo Creek in 1838. It is undisputed that the City seeks to collect property taxes on parcels of land that are owned by the Tribe and located within the historic boundaries of its reservation. Since the outset of this litigation it has been common ground that if the Tribe’s properties are “Indian Country,” the City has no jurisdiction to tax them without express congressional consent. For the reasons set forth at length in the opinions of the District Court and the Court of Appeals, it is abundantly clear that all of the land owned by the Tribe within the boundaries of its reservation qualifies as Indian country. Without questioning the accuracy of that conclusion, the Court today nevertheless decides that the fact that most of the reservation has been occupied and governed by non-Indians for a long period of time precludes the Tribe “from rekindling embers 664

of sovereignty that long ago grew cold.” Ante, at 214. This is a novel holding, and in my judgment even more unwise than the Court’s holding in County of Oneida v. Oneida Indian Nation of N. Y., 470 U.S. 226 (1985), that the Tribe may recover damages for the alleged illegal conveyance of its lands that occurred in 1795. In that case, I argued that the “remedy for the ancient wrong established at trial should be provided by Congress, not by judges seeking to rewrite history at this late date,” id., at 270 (opinion dissenting in part). In the present case, the Tribe is not attempting to collect damages or eject landowners as a remedy for a wrong that occurred centuries ago; rather, it is invoking an ancient immunity against a city’s present-day attempts to tax its reservation lands. Without the benefit of relevant briefing from the parties, the Court has ventured into legal territory that belongs to Congress. Its decision today is at war with at least two bedrock principles of Indian law. First, only Congress has the power to diminish or disestablish a tribe’s reservation. Second, as a core incident of tribal sovereignty, a tribe enjoys immunity from state and local taxation of its reservation lands, until that immunity is explicitly revoked by Congress. Far from revoking this immunity, Congress has specifically reconfirmed it with respect to the reservation lands of the New York Indians. Ignoring these principles, the Court has done what only Congress may do-it has effectively proclaimed a diminishment of the Tribe’s reservation and an abrogation of its elemental right to tax immunity. Under our precedents, whether it is wise policy to honor the Tribe’s tax immunity is a question for Congress, not this Court, to decide. As a justification for its lawmaking decision, the Court relies heavily on the fact that the Tribe is seeking equitable relief in the form of an injunction. The distinction between law and equity is unpersuasive because the outcome of the case turns on a narrow legal issue that could just as easily, if not most naturally, be raised by a tribe as a defense against a state collection proceeding. In fact, that scenario actually occurred in this case: The City brought an eviction proceeding against the Tribe based on its refusal to pay property taxes; that proceeding was removed to federal court and consolidated with the present action; the District Court granted summary judgment for the Tribe; and the Court of Appeals affirmed on the basis of tribal tax immunity. Either this defensive use of tax immunity should still be available to

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the Tribe on remand, but see ante, at 214, n. 7, or the Court’s reliance on the distinctions between law and equity and between substantive rights and remedies, see ante, at 213–214,is indefensible. In any event, as a matter of equity I believe that the “principle that the passage of time can preclude relief,” ante, at 217, should be applied sensibly and with an even hand. It seems perverse to hold that the reliance interests of non-Indian New Yorkers that are predicated on almost two centuries of inaction by the Tribe do not foreclose the Tribe’s enforcement of judicially created damages remedies for ancient wrongs, but do somehow mandate a forfeiture of a tribal immunity that has been consistently and uniformly protected throughout our history. In this case, the Tribe

reacquired reservation land in a peaceful and lawful manner that fully respected the interests of innocent landowners-it purchased the land on the open market. To now deny the Tribe its right to tax immunity-at once the most fundamental of tribal rights and the least disruptive to other sovereigns-is not only inequitable, but also irreconcilable with the principle that only Congress may abrogate or extinguish tribal sovereignty. I would not decide this case on the basis of speculation about what may happen in future litigation over other regulatory issues. For the answer to the question whether the City may require the Tribe to pay taxes on its own property within its own reservation is pellucidly clear. Under settled law, it may not. Accordingly, I respectfully dissent.

CARCIERI V. SALAZAR 555 U.S. ____ (2009) JUSTICE THOMAS delivered the opinion of the Court, in which CHIEF JUSTICE ROBERTS and JUSTICES SCALIA, KENNEDY, BREYER, and ALITO joined. JUSTICE BREYER filed a concurring opinion. JUSTICE SOUTER filed an opinion concurring in part and dissenting in part, in which JUSTICE GINSBURG joined. JUSTICE STEVENS filed a dissenting opinion. JUSTICE THOMAS delivered the opinion of the Court. The Indian Reorganization Act (IRA or Act) authorizes the Secretary of the Interior, a respondent in this case, to acquire land and hold it in trust “for the purpose of providing land for Indians.” Ch. 576, § 5, 48 Stat. 985, 25 U.S.C. § 465. The IRA defines the term “Indian” to “include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” § 479. The Secretary notified petitioners-the State of Rhode Island, its Governor, and the town of Charlestown, Rhode Island-that he intended to accept in trust a parcel of land for use by the Narragansett Indian Tribe in accordance with his claimed authority under the statute. In proceedings before the Interior Board of Indian Appeals (IBIA), the District Court,

and the Court of Appeals for the First Circuit, petitioners unsuccessfully challenged the Secretary’s authority to take the parcel into trust. In reviewing the determination of the Court of Appeals, we are asked to interpret the statutory phrase “now under Federal jurisdiction” in § 479. Petitioners contend that the term “now” refers to the time of the statute’s enactment, and permits the Secretary to take land into trust for members of recognized tribes that were “under Federal jurisdiction” in 1934. The respondents argue that the word “now” is an ambiguous term that can reasonably be construed to authorize the Secretary to take land into trust for members of tribes that are “under Federal jurisdiction” at the time that the land is accepted into trust. We agree with petitioners and hold that, for purposes of § 479, the phrase “now under Federal jurisdiction” refers to a tribe that was under federal jurisdiction at the time of the statute’s enactment. As a result, § 479 limits the Secretary’s authority to taking land into trust for the purpose of providing land to members of a tribe that was under federal jurisdiction when the IRA was enacted in June 1934. Because the record in this case establishes that the Narragansett Tribe was not under federal jurisdiction when the

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IRA was enacted, the Secretary does not have the authority to take the parcel at issue into trust. We reverse the judgment of the Court of Appeals. I At the time of colonial settlement, the Narragansett Indian Tribe was the indigenous occupant of much of what is now the State of Rhode Island. See Final Determination of Federal Acknowledgement of Narragansett Indian Tribe of Rhode Island, 48 Fed. Reg. 6177 (1983) (hereinafter Final Determination). Initial relations between colonial settlers, the Narragansett Tribe, and the other Indian tribes in the region were peaceful, but relations deteriorated in the late seventeenth century. The hostilities peaked in 1675 and 1676 during the two-year armed conflict known as King Philip’s War. Hundreds of colonists and thousands of Indians died. The Narragansett Tribe, having been decimated, was placed under formal guardianship by the Colony of Rhode Island in 1709. Not quite two centuries later, in 1880, the State of Rhode Island convinced the Narragansett Tribe to relinquish its tribal authority as part of an effort to assimilate tribal members into the local population. The Tribe also agreed to sell all but two acres of its remaining reservation land for $5,000. Ibid. Almost immediately, the Tribe regretted its decisions and embarked on a campaign to regain its land and tribal status. Ibid. In the early twentyieth century, members of the Tribe sought economic support and other assistance from the Federal Government. But, in correspondence spanning a ten-year period from 1927 to 1937, federal officials declined their request, noting that the Tribe was, and always had been, under the jurisdiction of the New England States, rather than the Federal Government. Having failed to gain recognition or assistance from the United States or from the State of Rhode Island, the Tribe filed suit in the 1970’s to recover its ancestral land, claiming that the State had misappropriated its territory in violation of the Indian Non-Intercourse Act, 25 U.S.C. § 177. The claims were resolved in 1978 by enactment of the Rhode Island Indian Claims Settlement Act, 92 Stat. 813, 25 U.S.C. § 1701 et seq. Under the agreement codified by the Settlement Act, the Tribe received title to 1,800 acres of land in Charlestown, Rhode Island, in exchange for relinquishing its past and future claims to land based on aboriginal title. The Tribe also agreed that the 1,800 acres of land received under the Settlement Act “shall be subject to the civil and 666

criminal laws and jurisdiction of the State of Rhode Island.” § 1708(a); see also § 1712(a). The Narragansett Tribe’s ongoing efforts to gain recognition from the United States Government finally succeeded in 1983. In granting formal recognition, the Bureau of Indian Affairs (BIA) determined that “the Narragansett community and its predecessors have existed autonomously since first contact, despite undergoing many modifications.” Id., at 6178. The BIA referred to the Tribe’s “documented history dating from 1614” and noted that “all of the current membership are believed to be able to trace to at least one ancestor on the membership lists of the Narragansett community prepared after the 1880 Rhode Island ‘detribalization’ act.” Ibid. After obtaining federal recognition, the Tribe began urging the Secretary to accept a deed of trust to the 1,800 acres conveyed to it under the Rhode Island Indian Claims Settlement Act. The Secretary acceded to the Tribe’s request in 1988. In 1991, the Tribe’s housing authority purchased an additional 31 acres of land in the town of Charlestown adjacent to the Tribe’s 1,800 acres of settlement lands. Soon thereafter, a dispute arose about whether the Tribe’s planned construction of housing on that parcel had to comply with local regulations. Narragansett Indian Tribe v. Narragansett Elec. Co., 89 F. 3d 908, 911–912 (CAI 1996). The Tribe’s primary argument for noncompliance that its ownership of the parcel made it a “dependent Indian community” and thus “Indian country” under 18 U.S.C. § 1151-ultimately failed. 89 F. 3d, at 913–922. But, while the litigation was pending, the Tribe sought an alternative solution to free itself from compliance with local regulations: It asked the Secretary to accept the 31-acre parcel into trust for the Tribe pursuant to 25 U.S.C. § 465. By letter dated March 6, 1998, the Secretary notified petitioners of his acceptance of the Tribe’s land into trust. Petitioners appealed the Secretary’s decision to the IBIA, which upheld the Secretary’s decision. Petitioners sought review of the IBIA decision pursuant to the Administrative Procedure Act, 5 U.S.C. § 702. The District Court granted summary judgment in favor of the Secretary and other Department of Interior officials. As relevant here, the District Court determined that the plain language of 25 U.S.C. § 479 defines “Indian” to include members of all tribes in existence in 1934, but does not require a tribe to have been federally recognized on that date.

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According to the District Court, because it is currently “federally-recognized” and “existed at the time of the enactment of the IRA,” the Narragansett Tribe “qualifies as an ‘Indian tribe’ within the meaning of § 479.” Id., at 181. As a result, “the secretary possesses authority under § 465 to accept lands into trust for the benefit of the Narragansetts.” Ibid. The Court of Appeals for the First Circuit affirmed, first in a panel decision, Carcieri v. Norton, 423 F. 3d 45 (2005), and then sitting en banc, 497 F. 3d 15 (CAI 2008). Although the Court of Appeals acknowledged that “[o]ne might have an initial instinct to read the word ‘now’ [in § 479] . . . to mean the date of [the] enactment of the statute, June 18, 1934,” the court concluded that there was “ambiguity as to whether to view the term . . . as operating at the moment Congress enacted it or at the moment the Secretary invokes it.” Id., at 26. The Court of Appeals noted that Congress has used the word “now” in other statutes to refer to the time of the statute’s application, not its enactment. Id., at 26–27. The Court of Appeals also found that the particular statutory context of § 479 did not clarify the meaning of “now.” On one hand, the Court of Appeals noted that another provision within the IRA, 25 U.S.C. § 472, uses the term “now or hereafter,” which supports petitioners’ argument that “now,” by itself, does not refer to future events. But on the other hand, § 479 contains the particular application date of “June 1, 1934,” suggesting that if Congress had wanted to refer to the date of enactment, it could have done so more specifically. 497 F. 3d, at 27. The Court of Appeals further reasoned that both interpretations of “now” are supported by reasonable policy explanations, id., and it found that the legislative history failed to “clearly resolve the issue,” id., at 28. Having found the statute ambiguous, the Court of Appeals applied the principles set forth in Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984), and deferred to the Secretary’s construction of the provision. 497 F. 3d, at 30. The court rejected petitioners’ arguments that the Secretary’s interpretation was an impermissible construction of the statute. Id., at 30–34. It also held that petitioners had failed to demonstrate that the Secretary’s interpretation was inconsistent with earlier practices of the Department of Interior. Furthermore, the court determined that even if the interpretation were a departure from the Department’s prior practices, the decision should be affirmed based on the

Secretary’s “reasoned explanation for his interpretation.” Id., at 34. We granted certiorari, 552 U.S. __ (2008), and now reverse. II This case requires us to apply settled principles of statutory construction under which we must first determine whether the statutory text is plain and unambiguous. If it is, we must apply the statute according to its terms. See, e.g., Dodd v. United States, 545 U.S. 353, 359 (2005); Lamie v. United States Trustee, 540 U.S. 526, 534 (2004); Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S. 1, 6 (2000); Caminetti v. United States, 242 U.S. 470, 485 (1917). The Secretary may accept land into trust only for “the purpose of providing land for Indians.” 25 U.S.C. § 465. “Indian” is defined by statute as follows: “The term ‘Indian’ as used in this Act shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. . . . The term ‘tribe’ wherever used in this Act shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation. . . . .” § 479 (emphasis added). The parties are in agreement, as are we, that the Secretary’s authority to take the parcel in question into trust depends on whether the Narragansetts are members of a “recognized Indian Tribe now under Federal jurisdiction.” Ibid. That question, in turn, requires us to decide whether the word “now under Federal jurisdiction” refers to 1998, when the Secretary accepted the 31-acre parcel into trust, or 1934, when Congress enacted the IRA. We begin with the ordinary meaning of the word “now,” as understood when the IRA was enacted. At that time, the primary definition of “now” was “[a]t the present time; at this moment; at the time of speaking.” Webster’s New International Dictionary 1671 (2d ed. 1934); see also Black’s Law Dictionary 1262 (3d ed. 1933) (defining “now” to mean “[a]t this time, or at the present moment” and noting that “‘[n]ow’ as used in a statute ordinarily refers to the date of its taking effect . . .” (emphasis added)). This definition is consistent with interpretations given to the word “now” by this Court, both before and after passage of the IRA, with respect to

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its use in other statutes. See, e.g., Franklin v. United States, 216 U.S. 559, 568–569 (1910). . . . It also aligns with the natural reading of the word within the context of the IRA. For example, in the original version of 25 U.S.C. § 465, which provided the same authority to the Secretary to accept land into trust for “the purpose of providing land for Indians,” Congress explicitly referred to current events, stating “It]hat no part of such funds shall be used to acquire additional land outside of the exterior boundaries of [the] Navajo Indian Reservation . . . in the event that the proposed Navajo boundary extension measures now pending in Congress . . . become law.” IRA, § 5, 48 Stat. 985 (emphasis added). In addition, elsewhere in the IRA, Congress expressly drew into the statute contemporaneous and future events by using the phrase “now or hereafter.” See 25 U.S.C. § 468 Congress’ use of the word “now” in this provision, without the accompanying phrase “or hereafter,” thus provides further textual support for the conclusion that the term refers solely to events contemporaneous with the Act’s enactment. See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002) (“[W]hen Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion”). Furthermore, the Secretary’s current interpretation is at odds with the Executive Branch’s construction of this provision at the time of enactment. In correspondence with those who would assist him in implementing the IRA, the Commissioner of Indian Affairs, John Collier, explained that: “Section 19 of the Indian Reorganization Act of June 18, 1934 (48 Stat. L., 988), provides, in effect, that the term ‘Indian’ as used therein shall include-() all persons of Indian descent who are members of any recognized tribe that was under Federal jurisdiction at the date of the Act. . . .” Letter from John Collier, Commissioner, to Superintendents (Mar. 7, 1936), Lodging of Respondents (emphasis added). Thus, although we do not defer to Commissioner Collier’s interpretation of this unambiguous statute, see Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 476 (1992), we agree with his conclusion that the word “now” in § 479 limits the definition of “Indian,” and therefore limits the exercise of the Secretary’s trust authority under § 465 to those members of tribes that were under federal jurisdiction at the time the IRA was enacted. The Secretary makes 668

two other arguments in support of his contention that the term “now” as used in § 479 is ambiguous. We reject them both. First, the Secretary argues that although the “use of ‘now’ can refer to the time of enactment” in the abstract, “it can also refer to the time of the statute’s application.” Brief for Respondents 18. But the susceptibility of the word “now” to alternative meanings “does not render the word . . . whenever it is used, ambiguous,” particularly where “all but one of the meanings is ordinarily eliminated by context.” Deal v. United States, 508 U.S. 129, 131–132 (1993). Here, the statutory context makes clear that “now” does not mean “now or hereafter” or “at the time of application.” Had Congress intended to legislate such a definition, it could have done so explicitly, as it did in §§468 and 472, or it could have omitted the word “now” altogether. Instead, Congress limited the statute by the word “now” and “we are obliged to give effect, if possible, to every word Congress used.” Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979). Second, the Secretary argues that § 479 left a gap for the agency to fill by using the phrase “shall include” in its introductory clause. The Secretary, in turn, claims to have permissibly filled that gap by defining “‘Tribe”’ and “‘Individual Indian”’without reference to the date of the statute’s enactment. But, as explained above, Congress left no gap in 25 U.S.C. § 479 for the agency to fill. Rather, it explicitly and comprehensively defined the term by including only three discrete definitions:“[1] members of any recognized Indian tribe now under Federal jurisdiction, and [2] all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and . . . [3] all other persons of one-half or more Indian blood.” Ibid. In other statutory provisions, Congress chose to expand the Secretary’s authority to particular Indian tribes not necessarily encompassed within the definitions of “Indian” set forth in § 479. Had it understood the word “include” in §479 to encompass tribes other than those satisfying one of the three § 479 definitions, Congress would have not needed to enact these additional statutory references to specific Tribes. The Secretary and his amici also go beyond the statutory text to argue that Congress had no policy justification for limiting the Secretary’s trust authority to those tribes under federal jurisdiction in 1934, because the IRA was intended to strengthen Indian communities as a whole, regardless of their status in 1934. Petitioners counter that the main purpose of

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§ 465 was to reverse the loss of lands that Indians sustained under the General Allotment Act, see Atkinson Trading Co. v. Shirley, 532 U.S. 645, 650, n. 1 (2001), so the statute was limited to tribes under federal jurisdiction at that time because they were the tribes who lost their lands. We need not consider these competing policy views, because Congress’ use of the word “now” in § 479 speaks for itself and “courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–254 (1992). III The Secretary and his supporting amici also offer two alternative arguments that rely on statutory provisions other than the definition of “Indian” in § 479 to support the Secretary’s decision to take this parcel into trust for the Narragansett Tribe. We reject both arguments. First, the Secretary and several amici argue that the definition of “Indian” in § 479 is rendered irrelevant by the broader definition of “tribe” in § 479 and by the fact that the statute authorizes the Secretary to take title to lands “in the name of the United States in trust for the Indian tribe or individual Indian for which the land is acquired.” § 465 (emphasis added); Brief for Respondents 12–14. But the definition of “tribe” in § 479 itself refers to “any Indian tribe” (emphasis added), and therefore is limited by the temporal restrictions that apply to § 479’s definition of “Indian.” See § 479. And, although § 465 authorizes the United States to take land in trust for an Indian tribe, § 465 limits the Secretary’s exercise of that authority “for the purpose of providing land for Indians.” There simply is no legitimate way to circumvent the definition of “Indian” in delineating the Secretary’s authority under §§ 465 and 479. Second, amicus National Congress of American Indians (NCAI) argues that 25 U.S.C. § 2202, which was enacted as part of the Indian Land Consolidation Act (ILCA), Title II, 96 Stat. 2517, overcomes the limitations set forth in § 479 and, in turn, authorizes the Secretary’s action. . . . . . NCAI argues that the “ILCA independently grants authority under Section 465 for the Secretary to execute the challenged trust acquisition.” NCAI Brief 8. We do not agree. The plain language of § 2202 does not expand the power set forth in § 465, which requires that the Secretary take land into trust only “for the purpose of providing land for Indians.” Nor does § 2202 alter the definition of “Indian” in § 479, which is limited

to members of tribes that were under federal jurisdiction in 1934. See supra, at 7–12. Rather, § 2202 by its terms simply ensures that tribes may benefit from § 465 even if they opted out of the IRA pursuant to § 478, which allowed tribal members to reject the application of the IRA to their tribe. § 478. As a result, there is no conflict between § 2202 and the limitation on the Secretary’s authority to take lands contained in § 465. Rather, § 2202 provides additional protections to those who satisfied the definition of “Indian” in § 479 at the time of the statute’s enactment, but opted out of the IRA shortly thereafter. NCAI’s reading of § 2202 also would nullify the plain meaning of the definition of “Indian” set forth in § 479 and incorporated into § 465. Consistent with our obligation to give effect to every provision of the statute, Reiter, 442 U.S., at 339, we will not assume that Congress repealed the plain and unambiguous restrictions on the Secretary’s exercise of trust authority in §§465 and 479 when it enacted § 2202. IV We hold that the term “now under Federal jurisdiction” in § 479 unambiguously refers to those tribes that were under the federal jurisdiction of the United States when the IRA was enacted in 1934. None of the parties or amici, including the Narragansett Tribe itself, has argued that the Tribe was under federal jurisdiction in 1934. And the evidence in the record is to the contrary. 48 Fed. Reg. 6177. Moreover, the petition for writ of certiorari filed in this case specifically represented that “[i]n 1934, the Narragansett Indian Tribe . . . was neither federally recognized nor under the jurisdiction of the federal government.” Pet. for Cert. 6. The respondents’ brief in opposition declined to contest this assertion. Under our rules, that alone is reason to accept this as fact for purposes of our decision in this case. See this Court’s Rule 15.2. We therefore reverse the judgment of the Court of Appeals. It is so ordered. JUSTICE BREYER, concurring. I join the Court’s opinion with three qualifications. First, I cannot say that the statute’s language by itself is determinative. Linguistically speaking, the word “now” in the phrase “now under Federal jurisdiction,” 25 U.S.C. § 479, may refer to a tribe’s jurisdictional status as of 1934. But one could also read it to refer to the time the Secretary of the Interior exercises

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his authority to take land “for Indians.” § 465. Compare Montana v. Kennedy, 366 U.S. 308, 311–312 (1961) (“now” refers to time of statutory enactment), with Difford v. Secretary of HHS, 910 F. 2d 1316, 1320 (CA6 1990) (“now” refers to time of exercise of delegated authority); In re Lusk’s Estate, 336 Pa. 465, 467–468, 9 A. 2d 363, 365 (1939) (property “now” owned refers to property owned when a will becomes operative). I also concede that the Court owes the Interior Department the kind of interpretive respect that reflects an agency’s greater knowledge of the circumstances in which a statute was enacted, cf. Skidmore v. Swift & Co., 323 U.S. 134 (1944). Yet because the Department then favored the Court’s present interpretation, see infra, at 2, that respect cannot help the Department here. Neither can Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), help the Department. The scope of the word “now” raises an interpretive question of considerable importance; the provision’s legislative history makes clear that Congress focused directly upon that language, believing it definitively resolved a specific underlying difficulty; and nothing in that history indicates that Congress believed departmental expertise should subsequently play a role in fixing the temporal reference of the word “now.” These circumstances indicate that Congress did not intend to delegate interpretive authority to the Department. Consequently, its interpretation is not entitled to Chevron deference, despite linguistic ambiguity. See United States v. Mead Corp., 533 U.S. 218, 227, 229–230 (2001). Second, I am persuaded that “now” means “in 1934” not only for the reasons the Court gives but also because an examination of the provision’s legislative history convinces me that Congress so intended. As I read that history, it shows that Congress expected the phrase would make clear that the Secretary could employ § 465’s power to take land into trust in favor only of those tribes in respect to which the Federal Government already had the kinds of obligations that the words “under Federal jurisdiction” Simply. See Hearings on S. 2755 et al.: A Bill to Grant to Indians Living Under Federal Tutelage the Freedom to Organize for Purposes of Local SelfGovernment and Economic Enterprise, before the Senate Committee on Indian Affairs, 73d Cong., 2d Sess., pt. 2, pp. 263–266 (1934). Indeed, the very Department official who suggested the phrase to Congress during the relevant legislative hearings subsequently explained its meaning in terms that the 670

Court now adopts. See Letter from John Collier, Commissioner, to Superintendents (Mar. 7, 1936), Lodging of Respondents (explaining that § 479 included “persons of Indian descent who are members of any recognized tribe that was under Federal jurisdiction at the date of the Act”). Third, an interpretation that reads “now” as meaning “in 1934” may prove somewhat less restrictive than it at first appears. That is because a tribe may have been “under Federal jurisdiction” in 1934 even though the Federal Government did not believe so at the time. We know, for example, that following the Indian Reorganization Act’s enactment, the Department compiled a list of 258 tribes covered by the Act; and we also know that it wrongly left certain tribes off the list. The Department later recognized some of those tribes on grounds that showed that it should have recognized them in 1934 even though it did not. And the Department has sometimes considered that circumstance sufficient to show that a tribe was “under Federal jurisdiction” in 1934-even though the Department did not know it at the time. The statute, after all, imposes no time limit upon recognition. See § 479 (“The term ‘Indian’. . . shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction . . . (emphasis added)). And administrative practice suggests that the Department has accepted this possibility. The Department, for example, did not recognize the Stillaguamish Tribe until 1976, but its reasons for recognition in 1976 included the fact that the Tribe had maintained treaty rights against the United States since 1855. Consequently, the Department concluded that land could be taken into trust for the Tribe. See Memorandum from Associate Solicitor, Indian Affairs to Assistant Secretary, Indian Affairs, Request for Reconsideration of Decision Not to Take Land in Trust for the Stillaguamish Tribe (Oct. 1, 1980), Lodging of Respondents 6–7. Similarly, in 1934 the Department thought that the Grand Traverse Band of Ottawa and Chippewa Indians had long since been dissolved. Grand Traverse Band of Ottawa & Chippewa Indians v. Office of U.S. Attorney for Western Dist. of Mich., 369 F. 3d 960, 961, and n. 2 (CA6 2004). But later the Department recognized the Tribe, considering it to have existed continuously since 1675. 45 Fed. Reg. 19321 (1980). Further, the Department in the 1930’s thought that an anthropological study showed that the Mole Lake Tribe no longer existed. But the Department later decided that the study was wrong,

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and it then recognized the Tribe. See Memorandum from the Solicitor to the Commissioner of Indian Affairs 2758, 2762–2763 (Feb. 8, 1937) (recognizing the Mole Lake Indians as a separate tribe). ... With the qualifications here expressed, I join the Court’s opinion and its judgment. [The opinion of JUSTICE SOUTER, with whom JUSTICE GINSBURG joins, concurring in part and dissenting in part, is not reprinted here.] JUSTICE STEVENS, dissenting: Congress has used the term “Indian” in the Indian Reorganization Act of 1934 to describe those individuals who are entitled to special protections and benefits under federal Indian law. The Act specifies that benefits shall be available to individuals who qualify as Indian either as a result of blood quantum or as descendants of members of “any recognized Indian tribe now under Federal jurisdiction.” 25 U.S.C. § 479. In contesting the Secretary of the Interior’s acquisition of trust land for the Narragansett Tribe of Rhode Island, the parties have focused on the meaning of “now” in the Act’s definition of “Indian.” Yet to my mind, whether “now” means 1934 (as the Court holds) or the present time (as respondents would have it) sheds no light on the question whether the Secretary’s actions on behalf of the Narragansett were permitted under the statute. The plain text of the Act clearly authorizes the Secretary to take land into trust for Indian tribes as well as individual Indians, and it places no temporal limitation on the definition of “Indian tribe.” Because the Narragansett Tribe is an Indian tribe within the meaning of the Act, I would affirm the judgment of the Court of Appeals. I This case involves a challenge to the Secretary of the Interior’s acquisition of a 31-acre parcel of land in Charlestown, Rhode Island, to be held in trust for the Narragansett Tribe. That Tribe has existed as a continuous political entity since the early seventeenth century. Although it was once one of the most powerful tribes in New England, a series of wars, epidemics, and difficult relations with the State of Rhode Island sharply reduced the Tribe’s ancestral landholdings. Two blows, delivered centuries apart, exacted a particularly high toll on the Tribe. First, in 1675, King

Philip’s War essentially destroyed the Tribe, forcing it to accept the Crown as sovereign and to submit to the guardianship of the Colony of Rhode Island. Then, in 1880, the State of Rhode Island passed a “detribalization” law that abolished tribal authority, ended the State’s guardianship of the Tribe, and attempted to sell all tribal lands. The Narragansett originally assented to detribalization and ceded all but two acres of its ancestral land. In return, the Tribe received $5,000. See Memorandum from the Deputy Assistant Secretary-Indian Affairs (Operations) to Assistant Secretary-Indian Affairs (Operations) 4 (July 19, 1982) (Recommendation for Acknowledgment). Recognizing that its consent to detribalization was a mistake, the Tribe embarked on a century-long campaign to recoup its losses.3 Obtaining federal recognition was critical to this effort. The Secretary officially recognized the Narragansett as an Indian tribe in 1983, Final Determination for Federal Acknowledgement of Narragansett Indian Tribe of Rhode Island, 48 Fed. Reg. 6177, and with that recognition the Tribe qualified for the bundle of federal benefits established in the Indian Reorganization Act of 1934 (IRA or Act), 4 25 U.S.C. § 461 et seq. The Tribe’s attempt to exercise one of those rights, the ability to petition the Secretary to take land into trust for the Tribe’s benefit, is now vigorously contested in this litigation. II The Secretary’s trust authority is located in 25 U.S.C. § 465. That provision grants the Secretary power to take “in trust for [an] Indian tribe or individual Indian” “any interest in lands . . . for the purpose of providing land for Indians.” The Act’s language could not be clearer: To effectuate the Act’s broad mandate to revitalize tribal development and cultural self-determination, the Secretary can take land into trust for a tribe or he can take land into trust for an individual Indian. ... Having separate definitions for “Indian” and “tribe” is essential for the administration of IRA benefits. The statute reflects Congress’ intent to extend certain benefits to individual Indians, e.g., 25 U.S.C. § 471 (offering loans to Indian students for tuition at vocational and trade schools); § 472 (granting hiring preferences to Indians seeking federal employment related to Indian affairs), while directing

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other benefits to tribes, e.g., § 476 (allowing tribes to adopt constitutions and bylaws); § 470 (giving loans to Indian-chartered corporations). Section 465, by giving the Secretary discretion to steer benefits to tribes and individuals alike, is therefore unique. But establishing this broad benefit scheme was undoubtedly intentional: The original draft of the IRA presented to Congress directed the Secretary to take land into trust only for entities such as tribes. Compare H. R. 7902, 73d Cong., 2d Sess., 30 (1934) (“Title to any land acquired pursuant to the provisions of this section shall be taken in the name of the United States in trust for the Indian tribe or community for whom the land is acquired” [emphasis added)), with 25 U.S.C. § 465. The Secretary has long exercised his § 465 trust authority in accordance with this design. In the years immediately following the adoption of the IRA, the Solicitor of the Department of the Interior repeatedly advised that the Secretary could take land into trust for federally recognized tribes and for individual Indians who qualified for federal benefits by lineage or blood quantum. . . . . The tribal trust and individual trust options were similarly outlined in other post-1934 opinion letters, including those dealing with the Shoshone Indians of Nevada, the St. Croix Chippewa Indians of Wisconsin, and the Nahma and Beaver Island Indians of Michigan. See 1 Dept. of Interior, Opinions of the Solicitor Relating to Indian Affairs,1917–1974, pp. 706–707, 724–725, 747–748 (1979). Unless and until a tribe was formally recognized by the Federal Government and therefore eligible for trust land, the Secretary would take land into trust for individual Indians who met the blood quantum threshold. Modern administrative practice has followed this well trodden path. Absent a specific statute recognizing a tribe and authorizing a trust land acquisition, the Secretary has exercised his trust authority-now governed by regulations promulgated in 1980 after notice-and-comment rulemaking, 25 CFR § 151 et seq.; 45 Fed. Reg. 62034-to acquire land for federally recognized Indian tribes like the Narragansett. The Grand Traverse Band of Ottawa and Chippewa Indians, although denied federal recognition in 1934 and 1943, see Dept. of Interior, Office of Federal Acknowledgement, Memorandum from Acting Deputy Commissioner to Assistant Secretary 4 (Oct. 3, 1979) (GTB-V001-D002), was the first tribe the Secretary recognized under the 1980 regulations, see 45 Fed. Reg. 19322. Since then, the Secretary has 672

used his trust authority to expand the Tribe’s land base. See, e.g., 49 Fed. Reg. 2025–2026 (1984) (setting aside a 12.5-acre parcel as reservation land for the Tribe’s exclusive use). The Tunica-Biloxi Tribe of Louisiana has similarly benefited from administrative recognition, 46 Fed. Reg. 38411 (1981), followed by tribal trust acquisition. And in 2006, the Secretary took land into trust for the Snoqualmie Tribe which, although unrecognized as an Indian tribe in the 1950’s, regained federal recognition in 1999. See 71 Fed. Reg. 5067 (taking land into trust for the Tribe); 62 Fed. Reg. 45864 (1997) (recognizing the Snoqualmie as an Indian tribe). ... III Despite the clear text of the IRA and historical pedigree of the Secretary’s actions on behalf of the Narragansett, the majority holds that one word (“now”) nestled in one clause in one of § 479’s several definitions demonstrates that the Secretary acted outside his statutory authority in this case. The consequences of the majority’s reading are both curious and harsh: curious because it turns “now” into the most important word in the IRA, limiting not only some individuals’ eligibility for federal benefits but also a tribe’s; harsh because it would result in the unsupportable conclusion that, despite its 1983 administrative recognition, the Narragansett Tribe is not an Indian tribe under the IRA. In the Court’s telling, when Congress granted the Secretary power to acquire trust land “for the purpose of providing land for Indians,” 25 U.S.C. § 465 (emphasis added), it meant to permit land acquisitions for those persons whose tribal membership qualify them as “Indian” as defined by § 479. In other words, the argument runs, the Secretary can acquire trust land for “persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” § 479. This strained construction, advanced by petitioners, explains the majority’s laser-like focus on the meaning of “now”: If the Narragansett Tribe was not recognized or under federal jurisdiction in 1934, the Tribe’s members do not belong to an Indian tribe “now under Federal jurisdiction” and would therefore not be “Indians” under § 465 by virtue of their tribal membership. Petitioners’ argument works only if one reads “Indians” (in the phrase in § 465 “providing land for Indians”) to refer to individuals, not

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an Indian tribe. To petitioners, this reading is obvious; the alternative, they insist, would be “nonsensical.” Reply Brief for Petitioner State of Rhode Island 3. This they argue despite the clear evidence of Congress’ intent to provide the Secretary with the option of acquiring either tribal trusts or individual trusts in service of “providing land for Indians.” And they ignore unambiguous evidence that Congress used “Indian tribe” and “Indians” interchangeably in other parts of the IRA. See § 475 (discussing “any claim or suit of any Indian tribe against the United States” in the first sentence and “any claim of such Indians against the United States” in the last sentence (emphasis added)). In any event, this much must be admitted: Without the benefit of context, a reasonable person could conclude that “Indians” refers to multiple individuals who each qualify as “Indian” under the IRA. An equally reasonable person could also conclude that “Indians” is meant to refer to a collective, namely, an Indian tribe. Because “[t]he meaning-or ambiguity-of certain words or phrases may only become evident when placed in context,” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000), the proper course of action is to widen the interpretive lens and look to the rest of the statute for clarity. Doing so would lead to § 465’s last sentence, which specifies that the Secretary is to hold land in trust “for the Indian tribe or individual Indian for which the land is acquired.” Put simply, in § 465 Congress used the term “Indians” to refer both to tribes and individuals. The majority nevertheless dismisses this reading of the statute. The Court notes that even if the Secretary has authority to take land into trust for a tribe, it must be an “Indian tribe,” with § 479’s definition of “Indian” determining a tribe’s eligibility. The statute’s definition of “tribe,” the majority goes on to state, itself makes reference to “Indian tribe.” Thus, the Court concludes, “It]here simply is no legitimate way to circumvent the definition of ‘Indian’ in delineating the Secretary’s authority under § 479.” Ante, at 13. . . . Recognition, then, is the central requirement for being considered an “Indian tribe” for purposes of the Act. If a tribe satisfies the stringent criteria established by the Secretary to qualify for federal recognition, including the requirement that the tribe prove that it “has existed as a community from historical times until the present,” 25 CFR § 83.7(b) (2008), it is a fortiori an “Indian tribe” as a matter of law. The Narragansett Tribe is no different. In 1983, upon meeting the criteria for recognition, the

Secretary gave notice that “the Narragansett Indian Tribe . . . exists as an Indian tribe.” 48 Fed. Reg. 6177 (emphasis added). How the Narragansett could be an Indian tribe in 1983 and yet not be an Indian tribe today is a proposition the majority cannot explain. The majority’s retort, that because “tribe” refers to “Indian,” the definition of “Indian” must control which groups can be considered a “tribe,” is entirely circular. Yes, the word “tribe” is defined in part by reference to “Indian tribe.” But the word “Indian” is also defined in part by reference to “Indian tribe.” Relying on one definition to provide content to the other is thus “completely circular and explains nothing.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992). The Governor of Rhode Island, for his part, adopts this circular logic and offers two examples of why reading the statute any other way would be implausible. He first argues that if § 479’s definition of “Indian” does not determine a tribe’s eligibility, the Secretary would have authority to take land into trust “for the benefit of any group that he deems, at his whim and fancy, to be an ‘Indian tribe.”’ Reply Brief for Petitioner Carcieri 7. The Governor caricatures the Secretary’s discretion. This Court has long made clear that Congress-and therefore the Secretary-lacks constitutional authority to “bring a community or body of people within [federal jurisdiction] by arbitrarily calling them an Indian tribe.” United States v. Sandoval, 231 U.S. 28, 46 (1913). The Governor’s next objection, that condoning the acquisition of trust land for the Narragansett Tribe would allow the Secretary to acquire land for an Indian tribe that lacks Indians, is equally unpersuasive. As a general matter, to obtain federal recognition, a tribe must demonstrate that its “membership consists of individuals who descend from a historical Indian tribe or from historical Indian tribes which combined and functioned as a single autonomous political entity.” 25 CFR § 83.7(e) (2008). If the Governor suspects that the Narragansett is not an Indian tribe because it may lack members who are blood quantum Indians, he should have challenged the Secretary’s decision to recognize the Tribe in 1983 when such an objection could have been properly received. In sum, petitioners’ arguments-and the Court’s conclusion-are based on a misreading of the statute. “[N]ow,” the temporal limitation in the definition of “Indian,” only affects an individual’s ability to qualify for federal benefits under the IRA. If this case were about the Secretary’s decision to take land into trust for an individual who

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was incapable of proving her eligibility by lineage or blood quantum, I would have no trouble concluding that such an action was contrary to the IRA. But that is not the case before us. By taking land into trust for a validly recognized Indian tribe, the Secretary acted well within his statutory authority. IV The Court today adopts a cramped reading of a statute Congress intended to be “sweeping” in scope. Morton v. Mancari, 417 U.S. 535, 542 (1974). In so doing, the Court ignores the “principle deeply rooted in [our] Indian jurisprudence” that “‘statutes are to be construed liberally in favor of the Indians.”’ County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U.S. 251, 269 (1992) (quoting Montana v. Blackfeet Tribe, 471 U.S. 759, 767–768 (1985)); see also Cohen § 2.02[1], p. 119. Given that the IRA plainly authorizes the Secretary to take land into trust for an Indian tribe, and in light of the Narragansett’s status as such, the Court’s decision can be best understood as protecting one sovereign (the State) from encroachment from another (the Tribe). Yet in matters of Indian law, the political branches have been entrusted to mark the proper boundaries between tribal and state jurisdiction. See U.S. Const., Art. I, § 8, cl. 3; Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989); Worcester v. Georgia, 6 Pet. 515, 559 (1832). With the IRA, Congress drew the boundary in a manner that favors the Narragansett. I respectfully dissent.

CRIMINAL JURISDICTION: ISSUES OF CULTURE AND POWER In Worcester v. Georgia (31 U.S. 515, 1832), the Supreme Court limited the exercise of jurisdiction in American Indians lands to the American Indian nations and the government of the United States. Chief Justice Marshall said that state laws “have no force” within the boundaries of Indian lands. However, during the western expansion and the creation of an elaborate reservation system, the Worcester rule met intense opposition from the states and supporters of states’ interests in Congress and the White House. The Worcester decision fostered intense antagonism between American Indian nations and the states in which they were located. The retained sovereignty of Native American 674

nations as recognized by the Congress prevented states from exercising authority on reservations, including in the area of criminal law. Only American Indian nations possessed the power to punish Native American offenders. However, the U.S. Congress had the power to authorize states to apply their laws and regulations within American Indian reservations and Indian county. As the western expansion of the United States occurred, interests that desired to reduce the retained sovereignty of American Indians also gained political support. In United States v. McBratney (104 U.S. 621, 1882), the Supreme Court codified and perhaps extended state criminal jurisdiction in Indian country. Under the McBratney standard, a non-Indian charged with the commission of crimes against other non-Indians in Indian country was subject to prosecution under state law. The support was galvanized after the Supreme Court decided Ex parte Crow Dog (109 U.S. 556, 1883). In that case, the Supreme Court provided “one of [its] strongest affirmation[s] of the principle of tribal sovereignty announced in the Marshall trilogy” (Getches et al., 1993). At issue in Ex parte Crow Dog was whether the district court for the Territory of Dakota had the jurisdiction to try an American Indian for the murder of another American Indian in Indian country within a place and district of the country that was under the exclusive jurisdiction of the United States. Speaking for the Court, Justice Matthews held that the District Court did not have jurisdiction to find or try the indictment against the prisoner. He voided the conviction and sentence and contended that his imprisonment was illegal. Justice Matthews construed statutes to support the sovereignty of American Indians. Matthews noted that the statute expressly excepts from its operation “crimes committed by one Indian against the person or property of another Indian.” In conclusion, he noted: [The statutes provided that] “offenses committed by Indians against white persons and by white persons against Indians were specifically enumerated and defined, and those by Indians against each other were left to be dealt with by each tribe for itself, according to its local customs.”

Getches, Wilkinson, and Williams suggested that Ex parte Crow Dog stood for the embracement of the Indians’ own value system and their exercise of

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self-government. However, the ruling in Ex parte Crow Dog was not warmly received among many decision makers. The decision underscored cultural differences between Indians and whites, the restitution approach of the Indians, and the revenge approach of the United States. Moreover, Ex parte Crow Dog was employed by eastern Indian reformers to gain public support of extension of federal criminal law over the reservation (Getches et al., 1993). A year later, in reaction to Ex parte Crow Dog, Congress enacted the Major Crimes Act of 1885, which extended the jurisdiction of federal courts to murder, manslaughter, rape, assault with intent to kill, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, and larceny. Persons committing those offenses within Indian country were subject to the same law and penalties as all other persons within the exclusive jurisdiction of the United States. The following year, the Supreme Court was requested to rule on the constitutionality of the Major Crimes Act. In United States v. Kagama (118 U.S. 375, 1886), two American Indians, who were indicted under the act for murdering another Indian on the Hoopa Valley Reservation in California, challenged the constitutionality of the statute. The Supreme Court upheld the constitutionality of the Major Crimes Act of 1885, which often provided harsher punishment for American Indians than for non-American Indians who committed the same crimes on Indian reservations. Nearly 100 years after the enactment of the Major Crimes Act of 1885, the issue came before the Supreme Court again. In United States v. Antelope (430 U.S. 641, 1977), the Supreme Court concluded that the Major Crimes Act of 1885 is constitutional even though it may provide more severe punishment for an American Indian than for a non-American Indian who commits the same crime. The Court argued that the statute did not constitute an impermissible racial classification. Such classifications were “expressly provided for in the Constitution and supported by . . . [the] history of the Federal Government’s relations with Indians.” The Court noted that Native Americans had only a possessory right to the soil and that the United States held the “paramount authority.” The Court reasoned that the Major Crimes Act of 1885 was “within the competency of Congress.” It continued, “These Indian tribes are the wards of the nation. They are communities dependent on the United States.”

Neither the Major Crimes Act of 1885 nor later Supreme Court decisions that construed the act have limited or restricted American Indian courts’ exclusive jurisdiction over all other crimes committed by Native Americans against other Native Americans on Indian reservations or in Indian country (see U.S. v. Antelope, 430 U.S. 641, 1977, footnote 2; Pevar, 1992). The decisions of the Supreme Court and federal Indian policy left open the question of whether Congress could relinquish criminal jurisdiction over American Indians to the states. The Kagama Court noted that the Major Crimes Act of 1885 did not interfere “with the operation of state laws upon white people found there.” But the Worcester v. Georgia rule continued to deny state jurisdiction over criminal offenses in Indian country in which one Native American committed a crime against another. To further convolute the issue, in 1953 Congress enacted Public Law 280, which expressly authorized certain states (California, Minnesota, Nebraska, Oregon, and Wisconsin) to assume full criminal jurisdiction in criminal and civil cases. When Alaska entered the Union, it was granted the same authority. Without the express authorization of Congress, states are not permitted to prosecute American Indians for crimes committed in Indian country (U.S. v. John, 437 U.S. 634, 1978; Worcester v. Georgia, 31 U.S. 515, 1832). In United States v. Wheeler (435 U.S. 313, 1978), the Supreme Court reaffirmed the most basic principle of all Indian law, the retained sovereignty of American Indian nations. Delivering the opinion of the Court, Justice Stewart concluded that “the power to punish offenses against tribal law committed by tribe members, . . . has never been taken away from them, either explicitly or implicitly, and is attributable in no way to any delegation to them of federal authority.” This statement clarified that American Indian nations retained sovereignty. In Oliphant v. Suquamish Indian Tribe (435 U.S. 191, 1978), the Suquamish Indian Nation requested the Supreme Court to rule on whether American Indian Courts possessed the inherent criminal jurisdiction to try and punish non-Indians. The Supreme Court denied their request. The Suquamish argued that the criminal jurisdiction flowed from their “retained inherent powers of government over the [reservation].” Speaking for the majority, Rehnquist argued that from “the earliest treaties with these tribes, it was apparently assumed that the tribes did

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not have criminal jurisdiction over non-Indians absent a congressional statute or treaty provision to that effect.” Rehnquist insisted that since the Trade and Intercourse Act of 1790 (1 Stat. 137), “Congress assumed federal jurisdiction over offenses by non-Indians against Indians.” Rehnquist conceded, “Congress never expressly forbade Indian tribes to impose criminal penalties on nonIndians . . . We now make express our implicit conclusion of nearly a century ago that Congress consistently believed this to be a necessary result of its repeated legislative action.” Rehnquist also suggested, “such an exercise of jurisdiction over nonIndian citizens of the United States would belie the tribes’ forfeiture of full sovereignty in return for the protection of the United States.” In dissent, Justice Thurgood Marshall argued: “In the absence of affirmative withdrawal by treaty and statute, I am of the view that Indian tribes enjoy as a necessary aspect of their retained sovereignty the right to try and punish all persons who commit offenses against tribal law within the reservation.”

Oliphant represents how the precedents of the Supreme Court severely disadvantage American Indians. Precedents often perpetuate disadvantages and exploitation of the past—and precedents regarding Native Americans are no exception. In Duro v. Reina (495 U.S. 676, 1990), the Supreme Court continued its assault on American Indian tribal jurisdiction in criminal cases. Specifically at issue in Duro v. Reina was whether Indian tribal court jurisdiction extended to a nonmember Indian who committed a crime on the reservation. The Supreme Court argued that criminal trial and punishment constitute such an intrusion on personal liberty that its exercise over non-Indian citizens is power that is necessarily surrendered by the Indian tribes in their submission to the overriding sovereignty of the United States. The Court reasoned that the sovereignty retained by tribes is limited to internal relations and is used to preserve their own unique customs and social order. The justices made no distinction between nonmember Indians and nonIndians who commit crimes on the reservations. In conclusion, the Supreme Court noted that the Major Crimes Act of 1885 precluded the exercise of such jurisdiction by the tribes. Duro was overridden by the U.S. Congress in 1991, authorizing the tribes to exercise criminal jurisdiction within their reservations over all “Indians” (Getches et al., 1993). 676

AMERICAN INDIANS’ SELF-GOVERNMENT AND THE CONSTITUTION In large measure, the provisions of the Bill of Rights and the Equal Protection and Due Process clauses of the Fourteenth Amendment only limit the powers of federal and state governments. This fact poses a constitutional problem in the context of American Indian self-government and for the citizens of Indian country. Both the Supreme Court and the enactments of Congress have accepted and propagated the distinction between Indian tribes and states. The Supreme Court has held that constitutional provisions do not limit the exercise of self-government by Native Americans. In Talton v. Mayes (163 U.S. 387, 1896), the Supreme Court held that the Fifth Amendment requirement of a grand jury did not limit the “powers of local self-government enjoyed” by American Indians. The Court noted that American Indians predate the ratification of the Fifth Amendment, which was intended solely to control the powers of the national government. Talton accepted the plenary authority of Congress to limit, modify, and eliminate powers exercised by American Indians. In the Civil Rights Act of 1968, Congress decided to limit the powers exercised by the local governments of American Indians, a decision that received a mixed response among Native Americans. Title II prohibited intrusion in free exercise of religion; abridgement of the freedom of speech, press, the right to peaceably assemble, or the right to petition for the redress of grievances; violation of the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, and the requirement for warrants to be issued on the basis of probable cause; violation of privilege against self-incrimination; the taking of property without just compensation; violation of speedy and public trial, confrontation of hostile witnesses; requirement of excessive bail, or cruel and unusual punishment; and violation of equal protection of the law. In United States v. Wheeler (435 U.S. 313, 1978), the Supreme Court addressed whether a federal prosecution after conviction by an American Indian court was barred by the double jeopardy clause of the Fifth Amendment. The Court noted that American Indians exercised retained sovereignty rather than the delegation of sovereignty by the federal government. As American Indian and federal prosecution are brought

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by separate sovereigns, the double jeopardy clause does not prohibit either prosecution merely because an individual has already been prosecuted for an offense by the other. In Santa Clara Pueblo v. Martinez (436 U.S. 49, 1978), the Supreme Court stated a fundamental principle of Indian law: “As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority.” Justice Marshall argued that Title I of the Indian Civil Rights Act of 1968 represented an exercise of Congress’s plenary authority. Although the Indian Civil Rights Act of 1968 is designed to “modify the effect of Talton and its progeny by imposing certain restrictions upon tribal governments [it] is similar, but [it is] not identical to those contained in the Bill of Rights and the Fourteenth Amendment.”

AMERICAN INDIANS AND CIVIL RIGHTS: THE STRUGGLE FOR CULTURAL RECOGNITION Prior to the enactment of the Indian Citizenship Act of 1924, American Indians born in this country were not automatically granted citizenship. Instead they gained citizenship in quite unusual ways. Some American Indians gained citizenship through the provisions of the Dawes Act of 1887. Under the Dawes Act, Indians “who [were] born within the territorial limits of the United States who voluntarily [took] up residence separate and apart from their tribe and who adopted the habits of civilized life” were declared citizens of the United States. Indians also received citizenship by participating in World War I. Prior to the Indian Citizenship Act, most American Indians were members of tribes or nations that were termed political bodies and that exercised substantial powers of self-government. They constituted members of separate dependent political communities (Newton, 2005). The Fourteenth Amendment did not apply to American Indians. Because of their unique constitutional status, during the nineteenth century American Indians were deprived of most of the protections that were offered to non-Indian citizens and aliens. Racial discrimination was a constant in the lives of American Indians. In Elk v. Wilkins (112 U.S. 94, 1884), the Supreme Court refused to apply the citizenship provisions of the Fourteenth Amendment to an American Indian

who was living in Omaha apart from his tribe. The Court argued that the petitioner did not meet the jurisdiction requirement of the Fourteenth Amendment. He was not born in a territory subject to the jurisdiction of the United States; rather, Elk was born under tribal authority. The Court also implied that the Fourteenth Amendment was not intended to cover or apply to American Indians. In the 1880s, with great emphasis on the policy of assimilation, citizenship was granted to some American Indians. The policy created classes among American Indians. The Dawes Act of 1887 contained an equal protection provision, granting citizenship to those who entered the allotment programs. Specifically, Section Six of the act said: “Every Indian born within the territorial limits of the United States who has voluntarily taken up, within said limits, his residence separate and apart from any tribes of Indian therein, and has adopted the habits of civilized life, is hereby declared to be a citizen of the United States.”

In Matter of Heff (197 U.S. 488, 1905), the Supreme Court suggested that citizenship was incompatible with the guardianship status of Indian vis-a-vis the federal government. In United States v. Nice (241 U.S. 59, 1916), the Court overruled Matter of Heff. The citizenship of American Indians seemed in doubt until the Indian Citizenship Act of 1924 was passed. On the whole, citizenship grants seemed tied to the condition of an American Indian who conformed to the cultural dictates of non-Indian society. The Bill of Rights and the Fourteenth and Fifteenth Amendments did not protect Native Americans. Except for the Indian Commerce clause, the citizenship requirement meant that the Constitution did not apply to American Indians. The exclusion of American Indians from the American political community stemmed from both culture and race. Treaties and Supreme Court decisions made references to their way of life and their being in pupilage to whites. Culturally, the politics of condescension governed the political, legal, and social relations of Americans Indians and whites. Racially, American Indians were denied the protection of the many antidiscrimination measures that were enacted during the Reconstruction era (e.g., Civil Rights Act of 1866, Fourteenth Amendment, Fifteenth Amendment). Like blacks, American Indians realized few long-lasting benefits from the Reconstruction enactments.

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In the 1960s, Congress enacted the Civil Rights Act of 1964, which was meant to apply to American Indians who were living away from Indian country. The Supreme Court has held that it is impermissible to discriminate against Native Americans on the basis of race, ancestry, national origin, or as a “discrete and insular minority (Ely v. Klahr, 403 U.S. 108, 1971; Newton, 2005; Rice v. Sioux City Memorial Park Cemetery, Inc., 349 U.S. 70, 1955; United States v. Carolene Product Co., 304 U.S. 144, N.4, 1938). In the area of voting rights and related issues, American Indians are protected under the Voting Rights Act of 1965, Baker v. Carr (369 U.S. 186, 1962), and the Fourteenth Amendment. The Supreme Court has supported such an understanding. Consider, for example, Goodluck v. Apache County (417 F. Supp 13, 1975), affirmed on app. Apache County et al. v. United States (429 U.S. 876, 1976). Here the Supreme Court affirmed on appeal a three-judge district court holding that Congress acted “constitutionally in granting citizenship to the reservation Indians, and since, under the Fourteenth Amendment, the Indians are also citizens of Arizona, and since the Arizona Constitution allows the Indians to vote” they could not be subject to state taxes before citizenship might be granted. Moreover, American Indians were entitled to reapportionment of the county supervisional district according to population. In Arizona v. Reno (887 F. Supp. 318, 1995; considered of juris postponed to hearing on merits, 64 U.S. L.W. 3410, 3414 [U.S. Dec. 8, 1995] [no. 95–299]), Arizona sought a declaratory judgment from a three-panel District Court that the addition of four judgeships to the Arizona Superior Court in Coconino and Navajo counties “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or [on account of membership in a language minority group],” namely Native Americans. The Attorney General had denied preclearance for the four judgeships to the Arizona Superior Court in Coconine and Navajo counties. The district court held that the Voting Rights Act of 1965 did not require Arizona to prove that the proposal would not result in the denial or abridgement of the right to vote on account of color. The District Court also held that the Justice Department was entitled to reasonable discovery “into the historical background of its judicial election scheme and past discrimination against Native Americans in Coconino and Navajo counties,” to establish whether evidence existed to 678

support inference of discriminatory purpose. The inference of discriminatory purpose can be made absent the existence of an electoral system that is “blatantly” or “starkly racist.”

AMERICAN INDIANS’ CULTURE AS A CIVIL RIGHT Since the American Indians experienced the intrusion of a foreign culture, their culture has experienced a frontal assault. As we have noted, many of the laws of this nation have actively endeavored to devalue and/or destroy the culture of Native Americans. The presumed dominance of white America included both the principle of conquest and the assumption that white culture was superior. In Cherokee Nation v. Georgia, Chief Justice Marshall characterized Native Americans as being in a state of “pupilage,” and in the position of “a ward to his guardians.” One might argue that western expansion, the policy of extermination, the policy of assimilation, and the policy of termination are expressions of cultural and racial discrimination supported by the legitimacy and authority of law. However, from time to time, federal enactments have possessed the purpose and potential to sustain and reinvigorate the cultural distinctiveness of the Native Americans. These enactments include the Indian Reorganization Act of 1934, the Indian Civil Rights Act of 1968, the Indian Education Act of 1972, the Indian Self-Determination and Education Act of 1975, and the Indian Child Welfare Act of 1978. For example, two of the purposes of the Indian Child Welfare Act of 1978 are to establish standards to place Indian children in Indian foster or adoptive homes and to prevent the breakup of Indian families. The American Indian Religious Freedom Act of 1978 was proposed to protect the religion of American Indians. The act embraced the free exercise of religion by Native Americans, recognizing the contribution of the American Indians’ heritage to America, the salience of religious practices to the American Indian identity and value systems, the importance of traditional American Indian religion as indispensable and irreplaceable to their lives, and the use and possession of sacred objects that were necessary to the exercise of religious rites and ceremonies. In Lyng v. Northwest Indian Cemetery Protection Association (485 U.S. 439, 1988), the Supreme Court was asked to apply the American Indian

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Religious Freedom Act of 1978. At the lower court level, the litigation initiated by an American Indian organization, individualized American Indians, and others challenged the U.S. Forest Service’s construction of a road through an area used by members of three Indian nations for conducting various religious rituals and for the purpose of personal spiritual development. Speaking for the majority, Justice O’Connor, joined by Chief Justice Rehnquist and Justices White, Stevens, and Scalia, ruled that the free exercise of religion did not prohibit the federal government from permitting timber harvest in, or constructing around the area, in the Chimney Rock area. O’Connor argued that the case did not significantly differ from Bowen v. Roy (476 U.S. 693, 1986), a challenge to a federal statute that required the states to use social security numbers in administering welfare programs. She said: “We cannot say that the one form of incidental interference with an individual’s spiritual activities should be subjected to a different constitutional analysis than the other . . . Incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs [do not] require government to bring forward a compelling justification.”

The pivotal question for O’Connor was “prohibit.” Next O’Connor contended that “government simply could not operate if it were required to satisfy every citizen’s religious needs and desires.” O’Connor also suggested that sustaining the American Indian claims would result in the “diminution of the Government’s property rights, and the concomitant subsidy of the [American] Indian religions.” Finally, O’Connor noted that the argument that the American Indian Religious Freedom Act of 1978 (AIRFA) created a cause of action or authorized the District Court to enjoin the construction of the road is without merit. In a dissenting opinion joined by Justices Marshall and Blackmun, Justice Brennan argued that the Free Exercise clause is “directed against any form of governmental action that frustrates or inhibits religious practices.” Brennan endeavored to educate his colleagues and the American people about the cultural differences between Native Americans’ religion and Western religions. He noted that American Indians view “creation as an ongoing procession in which they are morally and religiously obligated to participate” and that American Indian

belief systems, unlike traditional Western religions, “do not rely on doctrines, creeds, or dogmas. . . . [They] play no part in [their] faith.” Brennan emphasized the significance of ceremonies and the land for American Indians: “Ceremonies are communal efforts undertaken for specific purposes in accordance with instructions handed down from generation to generation . . . Native American faith is inextricably bound to the use of land. The site specific nature of Indian religious practice derives from the Native American perception that land is itself a sacred, living being . . . For the respondent Indians, the most sacred of lands is the high county where, they believe, prehuman spirits moved with the coming of humans to the earth.”

Brennan concluded that the federal government’s proposed road through the high county constituted a burden on the American Indians practices of religion recognized by the free exercise clause. He distinguished “between governmental actions that compel affirmative conduct inconsistent with religious belief, and those actions that present conduct consistent with religious belief” and stated: “Adherents challenging a proposed use of federal land should be required to show that the decision poses a substantial and realistic threat of frustrating their religious practices. Once such a showing is made, the burden should shift to the Government to come forward with compelling state interest sufficient to justify the infringement of those practices.”

He further concluded that the federal government failed to demonstrate a compelling interest. In Lyng, the Supreme Court seemed to truncate the impact of AIRFA on American Indian claims. The Court construction of the act meant that the statute would do little to expand or protect the religious freedom of Native Americans. In addition, the Lyng Court reduced the AIRFA to an educational function (Getches et al., 1993). The religious freedom of Native Americans had suffered another devastating setback the previous year in Employment Division, Department of Human Resources of the State of Oregon v. Smith (485 U.S. 660, 1987). At issue was the use of peyote for sacramental purposes during a religious ceremony of the Native American Church by two drug and alcohol abuse rehabilitation counselors, one Native American and one non-Indian. The two counselors were discharged and denied unemployment compensation by the Employment Division under Oregon law. The

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Oregon Supreme Court affirmed the state court of appeals reversal of the Employment Division discharge of the two counselors. Speaking for the majority, Justice Stevens did not decide the question of whether the use of peyote is protected by the U.S. Constitution. Before answering the federal question, Stevens desired “further guidance concerning the status of the practices as a matter of Oregon law.” Although a substantial number of jurisdictions have exempted the use of peyote in religious ceremonies from legislatures’ prohibitions against the use and possession of controlled substance, Stevens argued that the pivotal issue was the status of the ceremony in Oregon: “[I]f Oregon does prohibit the religious use of peyote, and if that prohibition is consistent with the Federal Constitution, there is no federal right to engage in that conduct.” In a dissenting opinion, Justice Brennan, joined by Justices Marshall and Blackmun, contended that

the two counselors “were discharged from their employment because their religious practices conflicted with their employer’s interests.” He took the majority to task because it offered “no reason to discount the Oregon Supreme Court’s disavowal of the validating purpose.” Brennan felt that the majority should have followed the leadership of the Oregon Supreme Court, which “both introduced and concluded the relevant passage by stressing the similarity between the state interests asserted here and those asserted in Sherbert and Thomas.” After the Smith decision, the state of Oregon joined eleven other states that permit an affirmative defense to a criminal change of using peyote in religious ceremony. Oregon responded in support of the religious freedom of religion by American Indians. The Smith decision demonstrated a tendency of the Rehnquist Court to allow majoritarian politics to resolve issues of the rights of racial groups.

SELECTED REFERENCES Bragaw, Stephen G. “Thomas Jefferson and the American Indian Nations: Native American Sovereignty and the Marshall Court,” Journal of Supreme Court History, Vol. 31, No. 2 (2006), 155–180. Carpenter, Kristen A. “The Interests of ‘Peoples’ in the Cooperative Management of Sacred Sites,” 42 Tulsa Law Review 37–55 (2006). Cohen, Felix. Handbook of Federal Indian Law, 1982 ed. Charlottesville, VA: The Michie Company, 1982. Core, M. Allen. “Tribal Sovereignty: Federal Court Review of Tribal Court Decisions—Judicial Intrusion in to Tribal Sovereignty,” 13 American Indian Law Review 175. Deloria, Vine, Jr., and Clifford M. Lytle. American Indians, American Justice. Austin: University of Texas Press, 1983. Elra, Jeri Beth. “The Trust Doctrine: A Source of Protection for Native American Sacred Sites,” 38 Catholic University Law Review 705 (1989). Fishel, Julie A. “United States Called to Task on Indigenous Rights: The Western Shoshone Struggle and Success at the International Level,” 31 American Indian Law Review 619–50 (2006/2007). Fletcher, Matthew L. M. “The Supreme Court’s Indian Problem.” 59 Hastings Law Journal 579–642 (2008). Frickey, Philip P. “(Native) American Exceptionalism in Federal Public Law,” Harvard Law Review, Vol. 119, No. 2 (2005), 431–490. Getches, David H., Charles F. Wilkinson, and Robert A. Williams, Jr. Cases and Materials on Federal Indian Law. St. Paul, MN: West Publishing Co., 1993. 680

Hemmer, Joseph J., Jr. “Exploitation of American Indian Symbols: A First Amendment Analysis,” American Indian Quarterly, Vol. 32, No. 2 (2008), 121–140. Hermann, John R., and O’Connor, Karen. “American Indians and the Burger Court,” Social Science Quarterly, Vol. 77, No. 1 (1997), 127–144. Kievel, Shira. “Discerning Discrimination in State Treatment of American Indians Going Beyond Reservation Boundaries,” Columbia Law Review, Vol. 109 (2009), 94. Koenig, Alexa, and Jonathan Stein. “Federalism and the State Recognition of Native American Tribes and State Recognition Processes across the United States,” 48 Santa Clara Law Review 79–153 (2008). Magliocca, Gerard N. “The Cherokee Removal and the Fourteenth Amendment,” Duke Law Journal, Vol. 53, No. 3 (2003), 875–965. McDonald, Laughlin. “The Voting Rights Act in Indian Country: South Dakota, a Case Study,” American Indian Law Review, Vol. 29, No. 1 (2004), 43–74. Newton, Nell Jessup. 2005. Cohen’s Handbook of Federal Indian Law (2005 ed.). Danvers, MA: LexisNexis. Perdue, Kimberly C. “The Changing Scope of the United States’ Trust Duties to American Indian Tribes: Navajo Nation v. United States,” University of Colorado Law Review, Vol. 80 (2009), 487. Pevar, Stephan. The Rights of Indians and Tribes. Carbondale: Southern Illinois University Press, 1992. Pommersheim, Frank. Broken Landscape: Indians, Indian Tribes, and the Constitution. New York: Oxford University Press, 2009.

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Prucha, Francis Paul. “Education of American Indians in the Age of Brown v. Board of Education,” Marquette Law Review, Vol. 89, No. 1 (2005), 87–93. Prucha, Francis Paul, ed. Documents of United States Indian Policy (2nd ed.). Lincoln: University of Nebraska Press, 1990. Sunderlin, Jennifer R. “One Nation, Indivisible: American ‘Indian Country’ in the Wake of City of Sherrill v. Oneida Indian Nation,” Albany Law Review, Vol. 70, No. 4 (2007), 1563–1587. Tepher, Harry F. “Hallucinations of Neutrality in the Oregon Peyote Case,” 16 American Indian Law Review 1 (1991). Wadley, James B. “Indian Citizenship and the Privileges and Immunities Clauses of the United States Constitution: An Alternative to the Problems of the Full Faith and Credit and Comity?” Southern Illinois University Law Journal, Vol. 31, No. 1 (2006), 31. Wilkins, David E. American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice. Austin: University of Texas Press, 1997. Wilkinson, Charles F., and Eric R. Biggs. “The Evolution of the Termination Policy,” 5 American Indian Law Review 139 (1977).

Wilkinson, Charles F., and John M. Volkman. “Judicial Review of Indian Treaty Abrogation: ‘As Long as Water Flows, or Grass Grows upon the Earth’—How Long a Time Is That?” 63 California Law Review 601 (1975). Williams, David C. “The Borders of the Equal Protection Clause: Indians as Peoples,” 38 University of California at Los Angeles Law Review 759 (1991). Williams, Robert A., Jr. “Columbus’s Legacy: The Rehnquist Court’s Perpetuation of European Cultural Racism against American Indian Tribes,” 39 Federal Bar News and Journal 58 (July 1992). Williams, Robert A., Jr. The American Indian in Western Legal Thought: The Discourse of Conquest. New York: Oxford University Press, 1990. Williams, Robert A., Jr. “Documents of Barbarism: The Contemporary Legacy of European Racism and Colonialism in the Narrative Traditions of Federal Indian Law,” 31 Arizona Law Review 237 (1989). Williams, Robert A., Jr. Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America. Minneapolis: University of Minnesota Press, 2005. Wunder, John. Retained by the People. New York: Oxford University Press, 1994.

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

PART VI GENDER-BASED DISCRIMINATION, PRIVACY, POVERTY, AND AGE DISABILITY One of the immediate and long-lasting effects of the formal civil rights movement of the 1960s and early 1970s was the awakening of other minorities as well as women and white Americans to the racism, sexism, poverty, and other injustices that existed and continue to exist in the United States. Women as a group have long suffered from “minority” deprivations, for they encounter inequities in education, employment, and legal status. Although they finally secured the right to vote in 1920, by virtue of the Nineteenth Amendment, women are still fighting for equal rights by way of constitutional interpretation and legislative enactment. But some men charge that they also are being discriminated against because of gender. As a result, the legal battle over women’s rights is now being fought within the more general context of “gender-based discrimination,” which, as we shall see, holds important implications for the law and politics of gender-based classifications under the Constitution. Similarly, the right of privacy, which came to the fore in the mid-1960s, is clearly on the center stage of law and politics. While this right is deeply ingrained in our constitutional and legal history, much of its constitutional development and application, particularly in recent years, has evolved in the context of issues that relate to contraception and abortion. These “personal autonomy” issues, however, have triggered conflicts with other rights and concerns involving fetuses and surrogate mothers, partial-birth abortions, homosexual intercourse and marriage, sexual orientation, and the right to die.

In International Union, UAW v. Johnson Controls (1991) there was a direct conflict of such rights. The employer had a “fetal protection” policy that barred all fertile women from holding jobs that involved actual or potential lead exposure which exceeded Occupational Safety and Health Administration standards. The Supreme Court ruled that such a policy was facially discriminatory on the basis of gender and violated Title VII of the Civil Rights Act of 1964 because it was not a bona fide occupational qualification that would have been an exception to Title VII restrictions on discrimination. In Johnson Controls, the Court chose to protect the “autonomy” of women to choose their employment over the rights of employers to make discriminations that would minimize potential liability from suits stemming from “injured pregnant women.” As the preceding chapters (in Part V) demonstrated, people of color (e.g., African Americans, Latinos, Native Americans) as well as women have endured disproportionate deprivations with respect to education, employment, and political participation. The difficulties suffered by these groups have been compounded by the fact that many of them also belong to another group that has long been ignored— the poor. Although it is true that according to raw numbers the largest group of poor people is “white,” on a proportionate basis Americans of color and women continue to shoulder a much heavier burden of the pains and problems of being poor. Indeed, despite changing definitions of poverty, almost one out 683

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of every three blacks in this country lives in poverty. However, unlike the Supreme Court’s application of rationality and strict scrutiny standards with regard to race and gender, the Court has remained unwilling to label the poor a “suspect class” (San Antonio Independent School District v. Rodriguez, 1973). Today, the Supreme Court increasingly is being asked to choose among different interests that are represented in the range of possible legal institutional circumstances, a range that is now being adjusted to take into account the increasing demands of women, gays and lesbians, and the poor. Employment and job security, military service, fair and equal access to education, housing, and health care are among the many contexts in which the Court has had (and is likely to continue to have) to make difficult choices. Here, in Part VI, we study these and similar conflicts of interests that reflect an increasingly diverse demographic society by focusing on three major themes. In Chapter 16 we focus on equal rights for women and men under the context of gender-based discrimination. Among the myriad historic and emerging genderbased issues covered in the chapter, we focus particularly on the Supreme Court’s constitutional interpretations concerning the different treatment of women from men in job opportunities and conditions of employment (Bradwell v. Illinois, 1872; Muller v. Oregon, 1908); state laws that give preference to men over women in determining the administrator of estates (Reed v. Reed, 1972); state laws that impose alimony obligations on husbands but not on wives (Orr v. Orr, 1979); military draft (Rostker v. Goldberg, 1981) and military service regulations that treat dependents of female members of the armed forces differently than they do dependents of male members (Frontiero v. Richardson, 1973); state statutes that give preference to veterans over nonveterans (Personnel Administrator of Massachusetts v. Feeney, 1979); state laws that require different drinking ages for males and females (Craig v. Boren, 1976); male-only statutory rape laws and prosecutions (Michael M. v. Superior Court of Sonoma County, 1981); the constitutionality of admissions policies of state-operated single-sex schools and military training institutions (Grove City College v. Bell, 1984; Mississippi University for Women v. Hogan, 1982; United States v. Virginia, 1996); and federal statutes favoring mothers in citizenship cases (Miller v. Albright, 1998). In Chapter 17, we explore the definition and development of the right of privacy, including special focus on themes such as reproductive contraceptives 684

(Griswold et al. v. Connecticut, 1965), abortion rights (Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992; Roe v. Wade, 1973; Stenberg v. Carhart, 2000; Webster v. Reproductive Health Services, 1989); privacy and sexual orientation (Bowers v. Hardwick, 1986; Boy Scouts of America v. Dale, 2000; Romer v. Evans, 1996); sex discrimination consisting of same-sex sexual harassment (Lawrence v. Texas, 2003; Oncale v. Sundowner Offshore Services, Inc., 1998); assisted suicides (Cruzan v. Director, Missouri Department of Health, 1990; Washington v. Glucksberg, 1997); and the random urinalysis drug testing of student athletes (Veronica School District v. Wayne Action, 1995). In Chapter 18, we focus on the emerging body of law that attempts to deal with the rights of the poor. How courts address poverty holds special significance, as it points to a tension between the formal rights that are guaranteed to all Americans and the ability of the poorest Americans to have those rights vindicated in practice. This tension manifests itself most notably in controversies over access to the courts, but it also appears in judicial responses to attempts to enlist courts in efforts to alter the opportunity structures that low-income persons face. During the Warren and Burger Courts, these efforts paid some dividends in the form of procedural protections for welfare recipients (Goldberg v. Kelly, 1970; Saenz v. Roe, 1999; Shapiro v. Thompson, 1969). The Court, however, did uphold some state regulations that adversely affected recipients of Aid to Families with Dependent Children (Wyman v. James, 1971). Of greater jurisprudential significance was the Court’s unwillingness to treat either wealth as a “suspect classification” or education as a “fundamental right,” thereby precluding equal protection challenges to systems of funding public education that rely substantially on local property taxes (San Antonio Independent School District v. Rodriguez, 1973). This unwillingness later underpinned the Court’s decision to uphold a North Dakota statute that permitted some local school boards to charge a fee for transporting students to and from public schools (Kadrmas v. Dickinson Public Schools, 1988). Finally, Chapter 19 looks at discrimination on the basis of age and disability in the twenty-first century. The chapter provides a detailed discussion of the creation of policy that applies the antidiscrimination and egalitarianism principles to victims of age and disability discrimination. In the 1960s, Congress enacted the first pieces of legislation that sought to

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remove the employment barriers of older workers. As in other areas, the Court has had the responsibility of interpreting and applying the statutes. The enactment of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 (ADA) provided federal protection to persons with disabilities in the workplace. Both statutes represented benchmarks in America’s evolving view of the difficulties experienced by persons with disabilities. The Supreme Court has labored to define the scope of disability legislation: What constitutes a disability? What is a reasonable accommodation? What is discrimination under the legislation? On several occasions, the Supreme Court has expanded

the rights of persons with disabilities. In Bragdon v. Abbott (118 U.S. 2196, 1998), the Court addressed whether the ADA applies to persons who are infected with Human Immunodeficiency Virus (HIV) when the infection has not yet progressed to the symptomatic phase. The case also concerned whether the Court of Appeal, in affirming a grant of summary judgment, cited sufficient material in the record to determine, as a matter of law, that the respondent’s infection with HIV posed no direct threat to the health and safety of the dentist who treated her. Delivering the opinion of the Court, Justice Kennedy concluded that Abbott’s HIV infection did constitute a disability under the ADA.

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CHAPTER 16

EQUAL RIGHTS FOR WOMEN AND GENDER-BASED DISCRIMINATION

FEATURED CASES Bradwell v. Illinois; Frontiero v. Richardson; Rostker v. Goldberg; United States v. Virginia

SEX DISCRIMINATION AND THE EVOLUTION OF JUDICIAL POLICIES Early decisions of the Supreme Court indicated that the Court found “reasonable” justifications to conclude that women could be treated differently from men, especially in matters such as job opportunities and conditions of employment. See, for example, Bradwell v. Illinois, 83 U.S. (16 Wall) 130, 1873, especially the concurring opinion of Justice Bradley at pp. 141–142, in which the Supreme Court upheld an action by the Illinois Supreme Court denying Myra Bradwell a license to practice law solely because she was female. Justice Joseph P. Bradley, writing a concurring opinion in Bradwell, wrote, “. . . the paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.” And in 1880, the Court ruled that the state could prohibit women from jury duty (Strauder v. West Virginia, 100 U.S. 303). In 1880, nearly thirty-five years after Bradwell, in Muller v. Oregon (208 U.S. 412, 1908), the Supreme Court upheld a maximum work hour law that applied only to women. In Muller, Justice Brewer even attempted to justify discriminatory legislation due to sexual stereotypes of women as the “weaker sex,” noting that

“The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done standing. . . . This difference justifies a difference in legislation and upholds that which is designed to compensate for some of the burdens which rest upon her.”

Most importantly, the Court held that such differential treatment did not abridge the federal Constitution. For example, in Minor v. Happersett (88 U.S. 162, 1875), the Court dismissed the claim that women had the right to vote. Moreover, the theories advanced in these earlier decisions were reflected in a Supreme Court decision as late as 1948. In Goesaert v. Cleary (335 U.S. 464, 1948), the Court rejected an equal protection challenge and upheld a Michigan law that denied issuance of a bartender’s license to any woman unless she were “the wife or daughter of the male owner” of a licensed liquor establishment. Speaking for the majority, Justice Frankfurter maintained that the statutory classification scheme was “not without a basis in reason.” The legislature, he contended, had a reasonable basis for believing that serious moral and social problems could result from women tending bars. Consequently, legislatures were not without power

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to “devise preventive measures.” Justifying the “wife or daughter” exemption, Frankfurter concluded that “the legislature need not go to the full length of the prohibition if it believes that as to a defined group of females other factors are operating which either eliminate or reduce the moral and social problems otherwise calling for prohibition.” But Justice Rutledge, joined by Justices Douglas and Murphy, dissented. Although he noted that the equal protection clause does not require a legislature to devise classification schemes with mathematical precision, Rutledge argued that it “does require lawmakers to refrain from invidious distinctions of the sort drawn by the statute challenged in this case.” Indeed, he continued, the “inevitable result of the classification (some, not all, women are prevented from becoming bartenders) belies the assumption that the statute was motivated by a legislative solicitude for the moral and physical well-being of women, who, but for the law, would be employed as barmaids.” And, as late as 1961, the Court in Hoyt v. Florida (368 U.S. 57), unanimously held that the equal protection clause of the Fourteenth Amendment did not prohibit Florida from excluding women from jury service. Writing for the majority in Hoyt, Justice John Harlan stated “We cannot say that it is constitutionally impermissible for a State, acting in pursuit of the general welfare, to conclude that a woman should be relieved from the civic duty of jury service unless she herself determines that such service is consistent with her own special responsibilities.” (368 U.S. 57, at 62)

However, spurred by the generally egalitarian mood of the 1960s, as well as by the Civil Rights Act of 1964, litigation involving women’s rights began to increase. Certainly it would be difficult for any court today to maintain the theories that underlay Goesaert and earlier cases such as Muller v. Oregon, supra. As the California Supreme Court put it in 1971, Goesaert was decided “well before the recent and major growth of public concern about and opposition to sex discrimination,” Sail’er Inn, Inc. v. Kirby (485 P.2d 529, fn. 15). In Sail’er Inn, the California Supreme Court struck down a statute that was similar to the one involved in the 1948 Goesaert case as violative of the California constitution, the 1964 Civil Rights Act, and the Fourteenth Amendment. The statute in question forbade women to work as bartenders. If such statutes applied to racial or ethnic minorities, said the court, they would

“readily be recognized as invidious and impermissible.” Consequently, the California Supreme Court concluded that sexual classifications should be “properly treated as suspect, particularly when . . . made with respect to employment.” Beginning in 1971, the U.S. Supreme Court also started to scrutinize and recognize gender-based discrimination more carefully. Women’s rights advocates began to win victories in the Supreme Court. A watershed victory came in Reed v. Reed (404 U.S. 71, 1972), in which the Court declared for the first time that sex discrimination was violative of the equal protection clause of the Fourteenth Amendment. In Reed, applying the rationality standard, the Court held as violative of the equal protection clause a provision of the Idaho Probate Code that “males must be preferred to females” as administrator of estates from among persons in the same class. Speaking for a unanimous court in Reed, Chief Justice Burger said: “to give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause.”

In another case, Stanton v. Stanton (421 U.S. 7, 1975), involving a Utah statute in which child support payments were extended until age twenty-one for male children but only until age eighteen for females, the Supreme Court, in an 8–1 decision, ruled that the gender-based classification had no rational relationship to the objective of the statute. Consequently, it was a denial of equal protection under the Fourteenth Amendment. The Court primarily relied on Reed in deciding Stanton. Similarly, in Craig v. Boren (429 U.S. 190, 1976), the Supreme Court held unconstitutional an Oklahoma statute that prohibited the sale of 3.2 percent beer to males under age twenty-one and to females under age eighteen. Reed again was controlling, as the Oklahoma beer statute in this instance invidiously discriminated against eighteen to twentyone-year-old males. “[T]he relationship between gender and traffic safety becomes far too tenuous to satisfy Reed’s requirement that the gender-based difference be substantially related to achievement of the statutory objective,” said Justice Brennan. In a 1973 decision, the Court indicated that military service regulations cannot treat dependents of female members of the armed forces differently from the way they treat dependents of male members

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(Frontiero v. Richardson, 411 U.S. 671, 1973). An important aspect of the case is that a plurality of the justices in Frontiero concluded that sex was a “suspect” classification and should be treated accordingly. The Frontiero decision was cited by the Court in Weinberger v. Weisenfeld (420 U.S. 636, 1975) as justification to declare unconstitutional § 402(g) of the Social Security Act. This section provided survivors’ benefits, calculated on the basis of earnings, to the widow and minor children of a deceased husband, but not to the widower of a deceased wife and mother. Writing for a unanimous Court, Justice Brennan concluded that the gender-based distinction was “entirely irrational” and therefore a denial of equal protection. Similarly, in a 1977 ruling, Califano v. Goldfarb (430 U.S. 199), the Court by a 5–4 majority held unconstitutional a requirement of the Social Security system that widowers, but not widows, had to prove their financial dependence on their deceased spouses in order to be eligible for survivors’ benefits. Writing for the majority in Goldfarb, Justice Brennan concluded: “. . . the differential treatment of nondependent widows and widowers results not . . . from a deliberate congressional intention to remedy the arguably greater needs of the former, but rather from an intention to aid the dependent spouses of deceased wage earners, coupled with a presumption that wives are usually dependent. . . . The only conceivable justification for writing the presumption of wives’ dependency into the statute is the assumption, not verified by the Government in Frontiero, . . . or here, but based simply on “archaic and overbroad” generalizations, Schlesinger v. Ballard, . . . that it would save the Government time, money, and effort simply to pay benefits to all widows, rather than to require proof of dependency of both sexes. We held in Frontiero, and again in Wiesenfeld, and therefore hold again here, that such assumptions do not suffice to justify a gender-based discrimination in the distribution of employment-related benefits.”

However, in Califano v. Webster (430 U.S. 313, 1977), the Court upheld a provision of the Social Security Act that could provide women with higher old-age benefits than men. In a per curiam opinion, the Court found “that the statutory scheme here bears a closer analogy to Kahn (Kahn v. Shervin, 416 U.S. 351, 1974) and Ballard, infra (Schlesinger v. Ballard, 419 U.S. 498, 1975) than to the schemes found invalid in Weisenfeld and Goldfarb, supra.” Rather than “archaic and overbroad generalizations” or “role-typing” based on stereotypes, the Court 688

found that “the only discernable purpose” of the provision involved in Webster was to redress “society’s longstanding disparate treatment of women.” It was not, said the Court, the “accidental byproduct of a traditional way of thinking about females.” In early 1974, the Supreme Court sought to resolve the confused state of the law on maternity leaves for women. In Lafleur v. Cleveland Board of Education (414 U.S. 632), a Court of Appeals (465 F.2d 1184, 1972) had held that a school board rule requiring pregnant teachers to take unpaid leaves of absence beginning 3 months before the child’s birth was “arbitrary and unreasonable.” The appeals court said that “pregnant women teachers have been singled out for unconstitutionally unequal restrictions upon their employment” because of their sex. On the other hand, a federal district court in Connecticut had upheld a teaching contract clause that required pregnant teachers to apply for and take leaves of absence to begin not less than 4 months prior to the expected date of birth of the child (Green v. Waterford Bd. of Education, 349 F. Supp. 687, D. Conn., 1972). In Green, the district court indicated that the traditional standard of equal protection review “whether the classification at issue is without any reasonable basis”—was to be applied in the case and concluded that the maternity leave section of the contract was “not so lacking in rational basis as to constitute a denial of equal protection.” However, the U.S. Supreme Court majority agreed with the Court of Appeals ruling in the Lafleur case. Justice Potter Stewart, who delivered the opinion for the Court, held that the arbitrary cutoff dates in maternity leave regulations were violative of due process “since they create a conclusive presumption that every teacher who is four or five months pregnant is physically incapable of continuing her duties . . . Such a rule [contains the] irrebuttable presumption of physical incompetency” and ignores the differences among individuals in their capacities to perform their duties during pregnancy. Stewart concluded that “neither the necessity for continuity of instruction nor the state interest in keeping physically unfit teachers out of the classroom can justify the sweeping mandatory leave regulations involved.” Chief Justice Burger and Justice William Rehnquist dissented because they felt that the board’s regulation was well within permissible limits of legislative classification statutes. Justice Rehnquist, joined by Justice Burger in dissent, stated that “if legislative bodies are to be permitted

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to draw a general line anywhere short of the delivery room,” they could “find no judicial standard of measurement” that would invalidate the standard involved in this case. Furthermore, Rehnquist concluded that the Court’s “disenchantment with irrebuttable presumptions and its preference for individualized determination is in the last analysis nothing less than an attack upon the very notion of lawmaking itself.” (In light of Lafleur and Green, Johnson Controls may be reconsidered as an indication of the current evolution of the law in addressing and balancing the complex issues surrounding pregnancy and employment interests.) The Supreme Court continued to support women’s rights in Taylor v. Louisiana (419 U.S. 522, 1975). In that case the appellant, a male convicted in 1972 for aggravated kidnapping, challenged the Louisiana jury selection procedure under which he had been tried and convicted, in which women were excluded from service in a jury trial unless they had previously filed for it.1 The question before the Court was whether the presence of a fair crosssection of the community is essential to fulfillment of the Sixth Amendment’s guarantee of an impartial jury trial in criminal prosecutions. Writing for an 8–1 majority, Justice White declared: “restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial. . . . [I]t is no longer tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequence is that criminal jury venires are almost totally male.” (419 U.S. 522 at 537) (Cf. Duren v. Missouri, 439 U.S. 357, 1979, holding inconsistent with the Sixth Amendment fair cross-section requirement a state scheme affording “any woman” exemption from jury duty.)

In J. E. B. v. Alabama ex rel T. B. (511 U.S. 127, 1994), the Court addressed the issue of preemptory challenges. Speaking for a 6–3 majority, Justice Blackmun stated: “We granted certiorari, . . . to resolve a question that has created a conflict of authority—whether the Equal Protection Clause forbids peremptory challenges on the basis of gender as well as on the basis of race. Today we reaffirm what, by now, should be axiomatic: intentional discrimination on the basis of 1 On December 31, 1974, the Louisiana constitution eliminated the special provision for female service.

gender by state actors violates the Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women . . . Discrimination in jury selection, whether based on race or on gender, causes harm to the litigants, the community, and the individual jurors who are wrongfully excluded from participation in the judicial process. The litigants are harmed by the risk that the prejudice which motivated the discriminatory selection of the jury will infect the entire proceeding.”

The Court struck down gender-based discrimination in several other modern-day decisions. In Califano v. Westcott (443 U.S. 76, 1979), the Court held unconstitutional under the due process clause of the Fifth Amendment a provision of the Social Security Act that “provides benefits to families whose dependent children have been deprived of parental support because of the unemployment of the father, but does not provide such benefits when the mother becomes unemployed.” The Court found the provision was not substantially related to the attainment of any important and valid statutory goals, but “it is, rather, part of the ‘baggage of sexual stereotypes’ . . . that presumes the father has ‘primary responsibility to provide a home and its essentials’” . . . while the mother is the “center of home and family life.” In Caban v. Mohammed (441 U.S. 380, 1979), the Court held unconstitutional (5–4) a New York statutory scheme that permitted an unwed mother, but not an unwed father, to prevent the adoption of the parent’s child simply by withholding her consent. Justice Powell, who spoke for the Court, stated that the “undifferentiated distinction between unwed mothers and unwed fathers applicable in all circumstances where adoption of a child of theirs is at issue, does not bear a substantial relationship” to any important state interest. Accordingly, the Court found the New York law violative of the equal protection clause of the Fourteenth Amendment. In Orr v. Orr (440 U.S. 268, 1979), the Court found violative of equal protection an Alabama law imposing alimony obligations on husbands but not on wives. Similarly, in a 1982 decision, the Court held that refusal of a state’s nursing school to admit a qualified male applicant violated the equal protection clause of the Fourteenth Amendment (Mississippi University for Women v. Hogan, 458 U.S. 718). Overall, the decisions in Reed, Frontiero, Stanton, Boren, Weisenfeld, Taylor, Goldfarb, Duren, Westcott,

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Caban, Orr, and Hogan represent the interests of those wishing to overturn gender-based classifications. (And, although the Court upheld such a classification in Califano v. Webster, that case can be read as an attempt “to compensate women for past economic discrimination.”) On the other hand, the Court has also represented the interests of those who believe that they have important and sufficient reasons to maintain gender-based classifications. For example, in Geduldig v. Aiello (417 U.S. 484, 1974), the Supreme Court (6–3) reversed a federal district court’s judgment that California’s disability insurance program, which excluded disabilities resulting from normal pregnancy and childbirth, was violative of the equal protection clause of the Fourteenth Amendment. The Court said that it could “not agree that the exclusion of this disability from coverage amounts to invidious discrimination under the Equal Protection Clause.” Writing for the majority, Justice Stewart observed: [The state] “does not discriminate with respect to persons or groups who are eligible for disability insurance protection . . . [The] classification challenged in this case relates to the asserted underinclusiveness of the set of risks that the State has selected to insure . . . There is nothing in the Constitution . . . that requires the State to subordinate or compromise its legitimate interests solely to create a more comprehensive social insurance program than it already has. There is no evidence in the record that the selection of the risks insured by the program worked to discriminate against any definable group or class from the program. There is no risk from which men are protected and women are not. Likewise, there is no risk from which women are protected and men are not.”

Justice Brennan, joined by Justices Douglas and Marshall, dissented. Brennan wrote: “[T]he economic effects caused by pregnancyrelated disabilities are functionally indistinguishable from the effects caused by any other disability. . . . [B]y singling out for less favorable treatment a genderlinked disability peculiar to women, the State has created a double standard for disability compensation: a limitation is imposed upon the disabilities for which women workers may recover, while men receive full compensation for all disabilities suffered, including those that affect only or primarily their sex, such as prostatectomies, circumcision, hemophilia, and gout.” 690

Brennan chided the majority for not applying a more strict standard of judicial scrutiny to such genderbased classification programs. He continued: “Yet, by its decision today, the Court appears willing to abandon that higher standard of review without satisfactorily explaining what differentiates the gender-based classification employed in this case from those found unconstitutional in Reed and Frontiero . . . The Court’s decision threatens to return men and women to a time when ‘traditional’ equal protection analysis sustained legislation classification that treated differently members of a particular sex solely because of their sex . . . I cannot join the Court’s apparent retreat.”

Citing his position in Frontiero v. Richardson, Brennan concluded that he continued to hold the “view that classifications based upon sex, like classification based upon race, alienage, or national origin, are inherently suspect.” In another decision, the Court upheld (6–3) a Florida statute that granted widows a $500 property tax exemption and no analogous benefit for widowers (Kahn v. Shevin, 416 U.S. 361, 1974). In an opinion by Justice Douglas, the Court stated that the Florida state tax law was “reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for whom that loss imposes a disproportionately heavy burden.” The Court has “long held,” said Douglas, that “. . . where taxation is concerned and no specific federal right, apart from equal protection, is imperiled, the states have large leeway in making classifications and drawing lines which in their judgment produce reasonable systems of taxation.” But Justice Brennan, joined in his opinion by Marshall, stated that “gender-based classifications cannot be sustained merely because they promote legitimate governmental interests.” Justice White, in a separate dissent, said that he found the “discrimination invidious and violative of the Equal Protection Clause.” In Schlesinger v. Ballard (419 U.S. 498, 1975), the Supreme Court ruled (5–4) that the U.S. Navy’s mandatory discharge procedures requiring separation of male line officers who had been twice passed over for promotion, but allowing female line officers to serve thirteen years regardless of promotions, did not constitute unlawful discrimination on the basis of sex in violation of the due process clause of the Fifth Amendment. Writing for the majority, Justice Stewart said:

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“The different treatment of men and women . . . reflects, not archaic and overbroad generalizations, but, instead, the demonstrable fact that male and female line officers in the Navy are not similarly situated with respect to opportunities for professional service . . . In both Reed and Frontiero, the reason asserted to justify the challenged gender-based classifications was administrative convenience, and that alone . . . Here, on the contrary, the operation of statutes in question results in a flow of promotions commensurate with the Navy’s current needs and serves to motivate qualified commissioned officers to so conduct themselves that they may realistically look forward to higher levels of command.”

Justice Brennan, joined by Justices Douglas and Marshall, dissented. Brennan held to the belief “. . . that a legislative classification that is premised solely upon gender must be subjected to close judicial scrutiny.” Further, he said that the Court had gone “far to conjure up a legislative purpose which may have underlain the gender-based distinction here attached.” “I find nothing in the statutory scheme or the legislative history,” reasoned Brennan, “to support the supposition that Congress intended, by assuring women but not men line lieutenants in the Navy a thirteen-year tenure, to compensate women for other forms of disadvantage visited upon them by the Navy.” Several other decisions indicate that the Court is reluctant to invalidate all gender-based classification. In General Electric v. Gilbert (429 U.S. 125, 1976), the Court held that a disability insurance plan that failed to cover pregnancy-related disabilities was not sex discrimination under Title VII of the Civil Rights Act of 1964. But the Court’s interpretation of Title VII was overturned by Congress. In 1978, Congress amended Title VII by passing the Pregnancy Discrimination Act, indicating that discrimination on account of “pregnancy, child-birth, and related conditions” was impermissible sex discrimination, and that in terms of employment, pregnancy “shall be treated the same” as other temporary disabilities. Subsequently, in a 1983 case (Newport News Shipbuilding v. EEOC, 462 U.S. 669), the Court stated that the 1978 act “makes clear that it is discriminatory to treat pregnancy-related conditions less favorably than other medical conditions.” But in 1987 the Court was faced with the question of whether Title VII preempts statutes that give preferential treatment to pregnancy. Here, however, despite claims that Title VII did preempt such laws, the

Court upheld a California law requiring employers to provide pregnancy leaves for employees (California Federal Savings and Loan Association v. Guerra, 107 S. Ct. 683, 1987). In Personnel Administrator of Massachusetts v. Feeney (442 U.S. 256, 1979), the Court upheld a Massachusetts law that gave a lifetime preference to all veterans over nonveterans who qualify for state civil service positions, despite the fact that such preference had a disproportionate impact on women. Justice Stewart, speaking for the majority, viewed the statute as “a preference for veterans of either sex over nonveterans of either sex, not for men over women.” In addition, the Court upheld a California statutory rape law against the charge that the statute unlawfully discriminated on the basis of gender, as men alone were held criminally liable thereunder (Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 1981. Cf. Kirchberg v. Feinstra, 450 U.S. 455, in which the decision was the same as in Michael M.). Justice Rehnquist announced the judgment of the Court and delivered an opinion in which he said that gender-based classifications are not “inherently suspect” and “thus we do not apply socalled ‘strict scrutiny’ to those classifications.” Such classifications, he continued, will be upheld if they bear a “substantial relationship” to “important governmental objectives.”2 Justice Rehnquist used similar reasoning in speaking for a 6–3 Court majority in Rostker v. Goldberg (453 U.S. 57, 1981), which upheld the constitutionality of the “male-only” military draft registration. No one, said Rehnquist, could deny that “the government’s interest in raising and supporting armies is an ‘important governmental interest.’” In addition, Rehnquist found that under “established policy” and congressional statutes, “women as a group, . . . unlike men, are not eligible for combat.” He continued: “The existence of the combat restrictions clearly indicates the basis for Congress to exempt women

2 Consider also the implications for women’s rights in McCarty v. McCarty (453 U.S. 210, 1981), in which the Court held that the military retirement system confers no entitlement to retired pay upon the retired member’s spouse, and does not embody even a limited “community property concept.” Because military personnel are overwhelmingly male, the ruling’s negative effects fall “almost entirely on women.” (See Linda Greenhouse, “Court’s Sex Rulings: A Subtle Step Backward,” New York Times, July 1, 1981, p. 1, col. 2, and p. 9, col. 1.)

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from registration . . . The purpose of registration was to prepare for a draft of combat troops, [and] since women are excluded from combat, Congress concluded that they would not be needed in event of a draft, and therefore decided not to register them . . . The reason women are exempt from registration is not because military needs can be met by drafting men. This is not a case of Congress arbitrarily choosing to burden one of two similarly situated groups, such as would be the case with an all-black or all-white, or an all-Catholic or all-Lutheran, or an all-Republican or an allDemocratic registration. Men and women, because of the combat restrictions on women, are simply not similarly situated for purposes of a draft or registration for a draft (453 U.S., at p. 80).”

Consequently, Rehnquist held that the decision of Congress to authorize the registration of men only did not violate the equal protection of the laws as guaranteed by the due process clause of the Fifth Amendment. Overall, then, Geduldig, Kahn, Schlesinger, General Electric, Guerra, Feeney, Michael M., and Rostker reflect that the Court majority is far from ready to treat sex as a “suspect class” and to subject it to “strict scrutiny” analysis. Rather, the cases represent the continuing conflict in the Court over attempts to apply an “in-between” or intermediate standard as opposed to the “strict scrutiny” and “rational-basis” standards to adjudge gender-based statutes that are alleged to run afoul of the equal protection clause of the Fourteenth Amendment or the due process clause of the Fifth Amendment. It also seems likely that, in the future, statutory rather than constitutionally based rights could prove crucial to the continuing quest for equal rights for women. This certainly was reflected in a 1981 decision (County of Washington, Oregon et al. v. Gunther, 452 U.S. 161). Here the Court, by a narrow 5–4 vote, held that the Civil Rights Act of 1964, which forbids discrimination in employment on the basis of sex as well as race, is not limited to the “equal pay for equal work” standard approved by Congress in the Equal Pay Act of 1963. Justice Brennan, who spoke for the Court, declared explicitly that the Court was not deciding whether the Civil Rights Act countenanced litigation on the basis of the “comparative worth” theory, which holds that work of comparable difficulty and value to an organization should warrant comparable pay. Nonetheless, some groups did view the Court ruling as holding 692

important potential for women, in that, as a result of the decision “the door is now open to challenge employers who keep women in the kinds of jobs that are low paid solely because they are traditionally held by women.”3 In Johnson v. Transportation Agency of Santa Clara County, California (480 U.S. 616, 1987), the Court upheld an affirmative action plan that permitted qualified women, even if they scored slightly lower on certain tests than white males, to be promoted to jobs that in the past had been closed to them. Other decisions illuminate the possible importance of statutory rights for the future of the women’s movement. In Hishon v. King & Spalding (104 S. Ct. 2229, 1984) the Court held that Title VII of the Civil Rights Act of 1964 was applicable to allegations brought by a woman associate charging that her employer law firm had denied her partnership status because of sex discrimination. Chief Justice Burger, who spoke for a unanimous Court, said that “once a contractual relationship of employment is established, the provisions of Title VII attach [and forbid unlawful discrimination as to the] ‘terms, conditions, or privileges of employment’ which clearly include benefits that are part of an employment contract.” The interests of women’s rights did not fare as well in the 1984 case Grove City College v. Bell (104 S. Ct. 1211). Here the Court narrowly construed a 1972 federal statute so as to limit the scope and effect of its antisex discrimination provisions. But in subsequent legislation, the Civil Rights Restoration Act of 1988, Congress was able to overcome the Grove City ruling. Fourteen years after the Court’s ruling in Mississippi University for Women v. Hogan, one of the most closely watched cases decided by the Court in 1996 was United States v. Virginia (116 S. Ct. 2264). The issue before the Court involved the constitutionality of admissions policies of the state’s sole single-sex institution, Virginia Military Institute (VMI), which excluded female students from the unique military training opportunities offered by VMI to male students. In a 7–1 decision written by Justice Ginsburg, the Court struck down VMI’s 3

“High Court Widens Grounds for Women to Seek Equal Pay,” New York Times, June 9, 1981, p. 1, col. 1, and p. 10, col. 3. Statement of Judith Lichtman, Executive Director of Women’s Legal Defense Fund.

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single sex admission policy (and Virginia’s creation of a separate all-female institute), stating that the state had failed to provide any “comparable singlegender women’s institution” in violation of the Fourteenth Amendment. However, despite contemporary but limited efforts to remove sexual stereotypes from our modern-day politics and law, the Supreme Court divided sharply (6–3) in Miller v. Albright (1998) in rejecting an equal-rights challenge to one of the “few remaining federal statutes that treats people differently depending on their gender.” The federal law in question, 8 U.S.C. § 1409, requires that children who are born abroad and out of wedlock to citizen fathers, but not to citizen mothers, obtain formal proof of paternity by age 18. Justice Stevens, in upholding 1409’s different treatment of citizen fathers and mothers “presumed” that there is a “closer connection between a mother and her child than a father and child and that § 1409 does not violate the father’s [Mr. Miller] Fifth Amendment rights.” Said Justice Stevens:

“The child’s blood relationship to its birth mother is immediately obvious, and is typically established by hospital records and birth certificates, but the relationship to the unmarried father may often be undisclosed and unrecorded in any contemporary public record. Similarly, the child’s birth mother certainly knows of the child’s existence, and typically will have immediate custody, whereas, due to the normal interval of nine months between conception and birth, an unmarried father may not even know that his child exists, and the child may not know the father’s identity . . . The biological differences between single men and single women provide a relevant basis for differing rules governing their ability to confer citizenship on children born out of wedlock in foreign lands, and an impartial analysis of those differences rebuts the strong presumption that gender-based legal distinctions are suspect.”

Dissenting, Justices Ginsberg, Breyer, and Souter criticized the majority—and Justice Stevens in particular—for upholding unfair stereotypes of parental roles and insisted that the statute was unconstitutional sex discrimination.

BRADWELL V. ILLINOIS* 83 U.S. 130 (1872) JUSTICE MILLER delivered the opinion of the Court. JUSTICE BRADLEY filed a concurring opinion, in which JUSTICES SWAYNE and FIELD joined. CHIEF JUSTICE CHASE dissented from the judgment of the Court, and from all the opinions.* JUSTICE MILLER delivered the opinion of the Court. * Myra Bradwell, a resident of Illinois and prominent women’s rights activist, had earned a law degree and had passed the Illinois bar exam. In 1869, she applied to the Superior Court of Chicago requesting that she be granted a license to practice law in Illinois courts. The Superior Court forwarded the application to the Illinois Supreme Court with the recommendation that Bradwell be issued a license. The Illinois Supreme Court denied the application, stating in part that “as a married woman [Bradwell] would be bound neither by her express contracts nor by those implied contracts which it is the policy of the law to create between attorney and client,” and because the state legislature had not authorized women to practice law. Myra Bradwell then petitioned the U.S. Supreme Court for a writ of error.

The record in this case is not very perfect, but it may be fairly taken that the plaintiff [Myra Bradwell] asserted her right to a license on the grounds, among others, that she was a citizen of the United States, and that having been a citizen of Vermont at one time, she was, in the State of Illinois, entitled to any right granted to citizens of the latter State. The court having overruled these claims of right founded on the clauses of the Federal Constitution before referred to, those propositions may be considered as properly before this court. As regards the provision of the Constitution that citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States, the plaintiff in her affidavit has stated very clearly a case to which it is inapplicable. The protection designed by that clause, as has been repeatedly held, has no application to a citizen of the State whose laws are complained of. If the

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plaintiff was a citizen of the State of Illinois, that provision of the Constitution gave her no protection against its courts or its legislation. ... The fourteenth amendment declares that citizens of the United States are citizens of the State within which they reside; therefore the plaintiff was, at the time of making her application, a citizen of the United States and a citizen of the State of Illinois. ... . . . We agree . . . that there are privileges and immunities belonging to citizens of the United States, in that relation and character, and that it is these and these alone which a State is forbidden to abridge. But the right to admission to practice in the courts of a State is not one of them. This right in no sense depends on citizenship of the United States. It has not, as far as we know, ever been made in any State, or in any case, to depend on citizenship at all. Certainly many prominent and distinguished lawyers have been admitted to practice, both in the State and Federal courts, who were not citizens of the United States or of any State. But, on whatever basis this right may be placed, so far as it can have any relation to citizenship at all, it would seem that, as to the courts of a State, it would relate to citizenship of the State, and as to Federal courts, it would relate to citizenship of the United States. The opinion just delivered in the Slaughter-House Cases (16 Wall. 36, 1873) renders elaborate argument in the present case unnecessary; for, unless we are wholly and radically mistaken in the principles on which those cases are decided, the right to control and regulate the granting of license to practice law in the courts of a State is one of those powers which are not transferred for its protection to the Federal government, and its exercise is in no manner governed or controlled by citizenship of the United States in the party seeking such license. It is unnecessary to repeat the argument on which the judgment in those cases is founded. It is sufficient to say they are conclusive of the present case. Judgment Affirmed. JUSTICE BRADLEY, joined by JUSTICES SWAYNE and FIELD, concurring: I concur in the judgment of the court in this case, by which the judgment of the Supreme Court of Illinois 694

is affirmed, but not for the reasons specified in the opinion just read. The claim of the plaintiff, who is a married woman, to be admitted to practice as an attorney and counselor-at-law, is based upon the supposed right of every person, man or woman, to engage in any lawful employment for a livelihood. The Supreme Court of Illinois denied the application on the ground that, by the common law, which is the basis of the laws of Illinois, only men were admitted to the bar, and the legislature had not made any change in this respect, but had simply provided that no person should be admitted to practice as attorney or counselor without having previously obtained a license for that purpose from two justices of the Supreme Court, and that no person should receive a license without first obtaining a certificate from the court of some county of his good moral character. In other respects it was left to the discretion of the court to establish the rules by which admission to the profession should be determined. The court, however, regarded itself as bound by at least two limitations. One was that it should establish such terms of admission as would promote the proper administration of justice, and the other that it should not admit any persons, or class of persons, not intended by the legislature to be admitted, even though not expressly excluded by statute. In view of this latter limitation the court felt compelled to deny the application of females to be admitted as members of the bar. Being contrary to the rules of the common law and the usages of Westminster Hall from time immemorial, it could not be supposed that the legislature had intended to adopt any different rule. The claim that, under the fourteenth amendment of the Constitution, which declares that no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, the statute law of Illinois, or the common law prevailing in that State, can no longer be set up as a barrier against the right of females to pursue any lawful employment for a livelihood (the practice of law included), assumes that it is one of the privileges and immunities of women as citizens to engage in any and every profession, occupation, or employment in civil life. It certainly cannot be affirmed, as an historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman.

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Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband’s consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counselor. It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount

destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases. The humane movements of modern society, which have for their object the multiplication of avenues for woman’s advancement, and of occupations adapted to her condition and sex, have my heartiest concurrence. But I am not prepared to say that it is one of her fundamental rights and privileges to be admitted into every office and position, including those which require highly special qualifications and demanding special responsibilities. In the nature of things it is not every citizen of every age, sex, and condition that is qualified for every calling and position. It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the State; and, in my opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex. For these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of abridging any of the privileges and immunities of citizens of the United States.

FRONTIERO V. RICHARDSON 411 U.S. 671 (1973) JUSTICE BRENNAN announced the Court’s judgment and delivered an opinion, in which JUSTICES DOUGLAS, WHITE, and MARSHALL joined. JUSTICE STEWART filed a statement concurring in the judgment. JUSTICE POWELL filed an opinion concurring in the judgment, in which CHIEF JUSTICE BURGER and JUSTICE BLACKMUN joined. JUSTICE REHNQUIST filed a dissenting statement.

JUSTICE BRENNAN announced the judgment of the Court. The question before us concerns the right of a female member of the uniformed services to claim her spouse as a “dependent” for the purposes of obtaining increased quarters allowances and medical and dental benefits under 36 U.S.C. Sections 401, 403,

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and 10 U.S.C. Sections 1072, 1076, on an equal footing with male members. Under these statutes, a serviceman may claim his wife as a “dependent” without regard to whether she is in fact dependent upon him for any part of her support. A servicewoman, on the other hand, may not claim her husband as a “dependent” under these programs unless he is in fact dependent upon her for over one-half of his support. Thus, the question for decision is whether this difference in treatment constitutes an unconstitutional discrimination against servicewomen in violation of the Due Process Clause of the Fifth Amendment. A three-judge District Court for the Middle District of Alabama, one judge dissenting, rejected this contention and sustained the constitutionality of the provisions of the statutes making this distinction. . . . In an effort to attract career personnel through reenlistment, Congress established . . . a scheme for the provision of fringe benefits to members of the uniformed services on a competitive basis with business and industry. Thus, . . . a member of the uniformed services with dependents is entitled to an increased “basic allowance for quarters” and . . . a member’s dependents are provided comprehensive medical and dental care. Appellant Sharron Frontiero, a lieutenant in the United States Air Force, sought increased quarters allowances, and housing and medical benefits for her husband, appellant Joseph Frontiero, on the ground that he was her “dependent.” Although such benefits would automatically have been granted with respect to the wife of a male member of the uniformed services, appellant’s application was denied because she failed to demonstrate that her husband was dependent on her for more than one-half of his support. Appellants then commenced this suit, contending that, by making this distinction, the statutes unreasonably discriminate on the basis of sex in violation of the Due Process Clause of the Fifth Amendment. In essence, appellants asserted that the discriminatory impact of the statutes is two-fold: first, as a procedural matter, a female member is required to demonstrate her spouse’s dependency, while no such burden is imposed upon male members; and second, as a substantive matter, a male member who does not provide more than one-half of his wife’s support receives benefits, while a similarly situated female member is denied such benefits. Appellants therefore sought a permanent injunction against the continued enforcement 696

of these statutes and an order directing the appellees to provide Lieutenant Frontiero with the same housing and medical benefits that a similarly situated male member would receive. Although the legislative history of these statutes sheds virtually no light on the purposes underlying the differential treatment accorded male and female members, a majority of the three-judge District Court surmised that Congress might reasonably have concluded that, since the husband in our society is generally the “breadwinner” in the family and the wife typically the “dependent” partner—“it would be more economical to require married female members claiming husbands to prove actual dependency than to extend the presumption of dependency to such members.” Indeed, given the fact that approximately 99 percent of all members of the uniformed services are male, the District Court speculated that such differential treatment might conceivably lead to a “considerable saving of administrative expense and manpower.” Ibid. II At the outset, appellants contend that classifications based upon sex, like classifications based upon race, alienage, and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny. We agree and, indeed, find at least implicit support for such an approach in our unanimous decision only last Term in Reed v. Reed, 404 U.S. 71 (1971). In Reed, the Court considered the constitutionality of an Idaho statute providing that, when two individuals are otherwise equally entitled to appointment as administrator of an estate, the male applicant must be preferred to the female. Appellant, the mother of the deceased, and appellee, the father, filed competing petitions for appointment as administrator of their son’s estate. Since the parties, as parents of the deceased, were members of the same entitlement class, the statutory preference was invoked and the father’s petition was therefore granted. Appellant claimed that this statute, by giving a mandatory preference to males over females without regard to their individual qualifications, violated the Equal Protection Clause of the Fourteenth Amendment. The Court noted that the Idaho statute “provides that different treatment be accorded to the applicants on the basis of their sex; it thus establishes a

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classification subject to scrutiny under the Equal Protection Clause.” Under “traditional” equal protection analysis, a legislative classification must be sustained unless it is “patently arbitrary” and bears no rational relationship to a legitimate governmental interest. . . . In an effort to meet this standard, appellee contended that the statutory scheme was a reasonable measure designed to reduce the workload on probate courts by eliminating one class of contests. Moreover, appellee argued that the mandatory preference for male applicants was in itself reasonable since “men [are] as a rule more conversant with business affairs than . . . women.” Indeed, appellee maintained that “it is a matter of common knowledge, that women still are not engaged in politics, the professions, business or industry to the extent that men are.” And the Idaho Supreme Court, in upholding the constitutionality of this statute, suggested that the Idaho Legislature might reasonably have concluded that in general men are better qualified to act as administrators than are women. Despite these contentions, however, the Court held the statutory preference for male applicants unconstitutional. . . . The Court . . . held that, even though the State’s interest in achieving administrative efficiency “is not without some legitimacy,” “[t]o give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the [Constitution]. . . .” This departure from “traditional” rational basis analysis with respect to sex-based classifications is clearly justified. There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of “romantic paternalism” which, in practical effect, put women not on a pedestal, but in a cage. Indeed, this paternalistic attitude became so firmly rooted in our national consciousness that, exactly 100 years ago, a distinguished member of this Court was able to proclaim: Man is, or should be, a woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of

things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests, and views which belong, or should belong, to the family institution is repugnant to the ideas of a woman adopting a distinct and independent career from that of her husband. . . . . . . The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. Bradwell v. Illinois, 83 US [16 Wall] 130 (JUSTICE BRADLEY, concurring). As a result of notions such as these, our statute books gradually became laden with gross, stereotypical distinctions between the sexes and, indeed, throughout much of the nineteenth century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children. . . . It is true, of course, that the position of women in America has improved markedly in recent decades. Nevertheless, it can hardly be doubted that, in part because of the high visibility of the sex characteristic, women still face pervasive, although at times more subtle, discrimination in our educational institutions, on the job market and, perhaps most conspicuously, in the political arena. . . . Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate “the basic concept of our system that legal burdens should bear some relationship to individual responsibility. . . .” And what differentiates sex from such nonsuspect statutes as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members. We might also note that, over the past decade, Congress has itself manifested an increasing sensitivity to sex-based classifications. In Title VII of

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the Civil Rights Act of 1964, for example, Congress expressly declared that no employer, labor union, or other organization subject to the provisions of the Act shall discriminate against any individual on the basis of “race, color, religion, sex, or national origin.” Similarly, the Equal Pay Act of 1963 provides that no employer covered by the Act “shall discriminate . . . between employees on the basis of sex.” And Section 1 of the Equal Rights Amendment, passed by Congress on March 22, 1972, and submitted to the legislatures of the States for ratification, declares that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Thus, Congress has itself concluded that classifications based upon sex are inherently invidious, and this conclusion of a coequal branch of government is not without significance to the question presently under consideration. . . . With these considerations in mind, we can only conclude that classifications based on sex, like classifications based upon race, alienage, or national origin, are inherently suspect and must therefore be subjected to strict judicial scrutiny. Applying the analysis mandated by that stricter standard of review, it is clear that the statutory scheme now before us is constitutionally invalid. . . . III . . . [T]he Government concedes that the differential treatment accorded men and women under these statutes serves no purpose other than mere “administrative convenience.” In essence, the Government maintains that, as an empirical matter, wives in our society frequently are dependent upon their husbands, while husbands rarely are dependent upon their wives. Thus, the Government argues that Congress might reasonably have concluded that it would be both cheaper and easier simply conclusively to presume that wives of male members are financially dependent upon their husbands, while burdening female members with the task of establishing dependency in fact. The Government offers no concrete evidence, however, tending to support its view that such differential treatment in fact saves the Government any money. In order to satisfy the demands of strict judicial scrutiny, the Government must demonstrate, for example, that it is actually cheaper to grant in698

creased benefits with respect to all male members, than it is to determine which male members are in fact entitled to such benefits and to grant increased benefits only to those members whose wives actually meet the dependency requirement. Here, however, there is substantial evidence that, if put to the test, many of the wives of male members would fail to qualify for benefits. And in light of the fact that the dependency determination with respect to the husbands of female members is presently made solely on the basis of affidavits, rather than through the more costly hearing process, the Government’s explanation of the statutory scheme is, to say the least, questionable. In any case, our prior decisions make clear that, although efficacious administration of governmental programs is not without some importance, “the Constitution recognizes higher values than speed and efficiency.” . . . And when we enter into the realm of “strict judicial scrutiny,” there can be no doubt that “administrative convenience” is not a shibboleth, the mere recitation of which dictates constitutionality. . . . On the contrary, any statutory scheme which draws a sharp line between the sexes, solely for the purpose of achieving administrative convenience, necessarily commands “dissimilar treatment for men and women who are . . . similarly situated,” and therefore involves the “very kind of arbitrary legislative choice forbidden by the [Constitution]. . . .” We therefore conclude that, by according differential treatment to male and female members of the uniformed services for the sole purpose of achieving administrative convenience, the challenged statutes violate the Due Process Clause of the Fifth Amendment insofar as they require a female member to prove the dependency of her husband. Reversed. JUSTICE STEWART concurs in the judgment, agreeing that the statutes before us work an invidious discrimination in violation of the Constitution. Reed v. Reed, 404 U.S. 71 (1971). JUSTICE REHNQUIST dissents for the reasons stated by Judge Rives in his opinion for the District Court. Frontiero v. Laird, 341 F. Supp. 201 (1972). [The concurring opinion of JUSTICE POWELL, joined by CHIEF JUSTICE BURGER and JUSTICE BLACKMUN, is not reprinted here.]

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ROSTKER V. GOLDBERG 453 U.S. 57 (1981)

JUSTICE REHNQUIST delivered the opinion of the Court, in which CHIEF JUSTICE BURGER and JUSTICES STEWART, BLACKMUN, POWELL, and STEVENS joined. JUSTICES WHITE and MARSHALL filed dissenting opinions, in which JUSTICE BRENNAN joined. JUSTICE REHNQUIST delivered the opinion of the Court. The question presented is whether the Military Selective Service Act, 50 U.S.C. App. § 451 et seq. (1976 ed. and Supp. III), violates the Fifth Amendment to the United States Constitution in authorizing the President to require the registration of males and not females. I Congress is given the power under the Constitution “To raise and support Armies,” “To provide and maintain a Navy,” and “To make Rules for the Government and Regulation of the land and naval Forces.” Art. I, § 8, cls. 12–14. Pursuant to this grant of authority Congress has enacted the Military Selective Service Act, 50 U.S.C. App. § 451 et seq. . . . (the MSSA or the Act). Section 3 of the Act, 62 Stat. 605, as amended, 50 U.S.C. App. § 453, empowers the President, by proclamation, to require the registration of “every male citizen” and male resident aliens between the ages of 18 and 26. The purpose of this registration is to facilitate any eventual conscription . . . [of] those persons required to register . . . for . . . training and service in the Armed Forces. The MSSA registration provision serves no other purpose beyond providing a pool for subsequent induction. Registration for the draft under 3 was discontinued in 1975. Presidential Proclamation No. 4360, 3 CFR 462 (1971–1975 Comp.). . . . In early 1980, President Carter determined that it was necessary to reactivate the draft registration process. . . . According to the administration’s witnesses before the Senate Armed Services Committee, the resulting crisis in Southwestern Asia convinced the President that the “time has come” “to use his present author-

ity to require registration . . . as a necessary step to preserving or enhancing our national security interests.” . . . The President . . . also recommended that Congress take action to amend the MSSA to permit the registration and conscription of women as well as men. . . . Congress agreed that it was necessary to reactivate the registration process, and allocated funds for that purpose in a Joint Resolution. . . . The Resolution did not allocate all the funds originally requested by the President, but only those necessary to register males. . . . Although Congress considered the question at great length . . . it declined to amend the MSSA to permit the registration of women. . . . ... II Whenever called upon to judge the constitutionality of an Act of Congress—“the gravest and most delicate duty that this Court is called upon to perform,” . . . the Court accords “great weight to the decisions of Congress.”. . . The Congress is a coequal branch of government whose Members take the same oath we do to uphold the Constitution of the United States. . . . This is not, however, merely a case involving the customary deference accorded congressional decisions. The case arises in the context of Congress’ authority over national defense and military affairs, and perhaps in no other area has the Court accorded Congress greater deference. In rejecting the registration of women, Congress explicitly relied upon its constitutional powers under Art. I, § 8, cls. 12–14. The “specific findings” section of the Report of the Senate Armed Services Committee, later adopted by both Houses of Congress, began by stating: Article I, Section 8 of the Constitution commits exclusively to the Congress the powers to raise and support armies, provide and maintain a Navy, and make rules for Government and regulation of the

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land and naval forces, and pursuant to these powers it lies within the discretion of the Congress to determine the occasions for expansion of our Armed Forces, and the means best suited to such expansion should it prove necessary. (S. Rep. No. 96-826, supra, at 160.

... Not only is the scope of Congress’ constitutional power in this area broad, but the lack of competence on the part of the courts is marked. In Gilligan v. Morgan, 413 U.S. 1, 10 (1973), the Court noted: [I]t is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.

... None of this is to say that Congress is free to disregard the Constitution when it acts in the area of military affairs. In that area, as any other, Congress remains subject to the limitations of the Due Process Clause, see Ex parte Milligan, 4 Wall. 2 (1866); Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156 (1919), but the tests and limitations to be applied may differ because of the military context. We of course do not abdicate our ultimate responsibility to decide the constitutional question, but simply recognize that the Constitution itself requires such deference to congressional choice. See Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S., at 103. In deciding the question before us we must be particularly careful not to substitute our judgment of what is desirable for that of Congress, or our own evaluation of evidence for a reasonable evaluation by the Legislative Branch. ... III This case is quite different from several of the gender-based discrimination cases we have considered in that, despite appellees’ assertions, Congress did not act “unthinkingly” or “reflexively and not for any considered reason.” Brief for Appellees 35. The question of registering women for the draft not only 700

received considerable national attention and was the subject of wide-ranging public debate, but also was extensively considered by Congress in hearings, floor debate, and in committee. Hearings held by both Houses of Congress in response to the President’s request for authorization to register women adduced extensive testimony and evidence concerning the issue. . . . ... The foregoing clearly establishes that the decision to exempt women from registration was not the “accidental byproduct of a traditional way of thinking about females.”. . . The cause for rejecting the argument is considerably stronger here. The issue was considered at great length, and Congress clearly expressed its purpose and intent. . . . For the same reasons we reject appellees’ of the MSSA solely on the basis of the views expressed by Congress in 1948, when the MSSA was first enacted in its modern form. . . . Congress did not change the MSSA in 1980, but it did thoroughly reconsider the question of exempting women from its provisions, and its basis for doing so. The 1980 legislative history is, therefore, highly relevant in assessing the constitutional validity of the exemption. The MSSA established a plan for maintaining “adequate armed strength . . . to insure the security of [the] Nation.” 50 U.S.C. App. 451 (b). Registration is the first step “in a united and continuous process designed to raise an army speedily and efficiently,” . . . and Congress provided for the reactivation of registration in order to “provid[e] the means for the early delivery of inductees in an emergency.” S. Rep. No. 96-826, supra, at 156. Although the three-judge District Court often tried to sever its consideration of registration from the particulars of induction, see, e.g., 509 F. Supp., at 604–605, Congress rather clearly linked the need for renewed registration with its views on the character of a subsequent draft. The Senate Report specifically found that “[a]n ability to mobilize rapidly is essential to the preservation of our national security. . . . A functioning registration system is a vital part of any mobilization plan.” S. Rep. No. 96-826, supra, at 160. As Senator Warner put it, “I equate registration with the draft.”. . . Such an approach is certainly logical, since under the MSSA induction is interlocked with registration: only those registered may be drafted, and registration serves no purpose beyond providing a pool for the draft. . . .

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Women as a group, however, unlike men as a group, are not eligible for combat. The restrictions on the participation of women in combat in the Navy and Air Force are statutory. Under 10 U.S.C. 6015 (1976 ed., Supp. III), “women may not be assigned to duty on vessels or in aircraft that are engaged in combat missions,” and under 10 U.S.C. 8549 female members of the Air Force “may not be assigned to duty in aircraft engaged in combat missions.” The Army and Marine Corps preclude the use of women in combat as a matter of established policy. . . . Congress specifically recognized and endorsed the exclusion of women from combat in exempting women from registration. In the words of the Senate Report: . . . The principle that women should not intentionally and routinely engage in combat is fundamental, and enjoys wide support among our people. It is universally supported by military leaders who have testified before the Committee. . . . Current law and policy exclude women from being assigned to combat in our military forces, and the Committee reaffirms this policy.” S. Rep. No. 96-826. . . .

The existence of the combat restrictions clearly indicates the basis for Congress’ decision to exempt women from registration. The purpose of registration was to prepare for a draft of combat troops. Since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore decided not to register them. . . . ... In the first place, assuming that a small number of women could be drafted for noncombat roles, Congress simply did not consider it worth the added burdens of including women in draft and registration plans. . . . Congress also concluded that whatever the need for women for noncombat roles during mobilization, whether 80,000 or less, it could be met by volunteers. . . . Most significantly, Congress determined that staffing noncombat positions with women during a mobilization would be positively detrimental to the important goal of military flexibility. . . . [T]here are other military reasons that preclude very large numbers of women from serving. Military flexibility requires that a commander be able to move units or ships quickly. Units or ships not located at the front or not previously scheduled for the front nevertheless must be able to move into action if necessary. In peace and war, significant ro-

tation of personnel is necessary. We should not divide the military into two groups—one in permanent combat and one in permanent support. Large numbers of non-combat positions must be available to which combat troops can return for duty before being redeployed.” S. Rep. No. 96-826. . . . ... In light of the foregoing, we conclude that Congress acted well within its constitutional authority when it authorized the registration of men, and not women, under the Military Selective Service Act. The decision of the District Court holding otherwise is accordingly Reversed. JUSTICE WHITE, joined by JUSTICE BRENNAN, dissenting: I assume what has not been challenged in this case— that excluding women from combat positions does not offend the Constitution. Granting that, it is selfevident that if during mobilization for war, all noncombat military positions must be filled by combatqualified personnel available to be moved into combat positions, there would be no occasion whatsoever to have any women in the Army, whether as volunteers or inductees. The Court appears to say . . . that Congress concluded as much and that we should accept that judgment even though the serious view of the Executive Branch, including the responsible military services, is to the contrary. The Court’s position in this regard is most unpersuasive. I perceive little, if any, indication that Congress itself concluded that every position in the military, no matter how far removed from combat, must be filled with combatready men. Common sense and experience in recent wars, where women volunteers were employed in substantial numbers, belie this view of reality. . . . ... . . . I cannot agree that the record supports the view that all positions for which women would be eligible in wartime could and would be filled by female volunteers. The Court also submits that because the primary purpose of registration and conscription is to supply combat troops and because the great majority of noncombat positions must be filled by combattrained men ready to be rotated into combat, the absolute number of positions for which women would be eligible is so small as to be de minimis and of no

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moment for equal protection purposes, especially in light of the administrative burdens involved in registering all women of suitable age. There is some sense to this; but at least on the record before us, the number of women who could be used in the military without sacrificing combat readiness is not at all small or insubstantial, and administrative convenience has not been sufficient justification for the kind of outright gender-based discrimination involved in registering and conscripting men but no women at all. ... Accordingly, with all due respect, I dissent. JUSTICE MARSHALL, joined by JUSTICE BRENNAN, dissenting: The Court today places its imprimatur on one of the most potent remaining public expressions of “ancient canards about the proper role of women,” Phillips v. Martin Marietta Corp., 400 U.S. 542, 545 (1971) (JUSTICE MARSHALL, concurring). It upholds a statute that requires males but not females to register for the draft, and which thereby categorically excludes women from a fundamental civic obligation. Because I believe the Court’s decision is inconsistent with the Constitution’s guarantee of equal protection of the laws, I dissent. I ... A . . . [T]he only question presented by this case is whether the exclusion of women from registration under the Military Selective Service Act . . . (MSSA), contravenes the equal protection component of the Due Process Clause of the Fifth Amendment. Although the purpose of registration is to assist preparations for drafting civilians into the military, we are not asked to rule on the constitutionality of a statute governing conscription. . . . Consequently, we are not called upon to decide whether either men or women can be drafted at all, whether they must be drafted in equal numbers, in what order they should be drafted, or, once inducted, how they are to be trained for their respective functions. In addition, this case does not involve a challenge to the statutes or policies that prohibit female members of the Armed Forces from serving in combat. It is with this understanding that I turn to the task at hand. 702

B By now it should be clear that statutes like the MSSA, which discriminate on the basis of gender, must be examined under the “heightened” scrutiny mandated by Craig v. Boren, 429 U.S. 190 (1976). Under this test, a gender-based classification cannot withstand constitutional challenge unless the classification is substantially related to the achievement of an important governmental objective. . . . The party defending the challenged classification carries the burden of demonstrating both the importance of the governmental objective it serves and the substantial relationship between the discriminatory means and the asserted end. . . . Consequently before we can sustain the MSSA, the Government must demonstrate that the gender-based classification it employs bears “a close and substantial relationship to [the achievement of] important governmental objectives,” Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 273 (1979). C The MSSA states that “an adequate armed strength must be achieved and maintained to insure the security of this Nation. . . . I agree with the majority . . . that “[n]o one could deny that . . . the Government’s interest in raising and supporting armies is an ‘important governmental interest.” Consequently, the first part of the Craig v. Boren test is satisfied. But the question remains whether the discriminatory means employed itself substantially serves the statutory end. In concluding that it does, the Court correctly notes that Congress enacted (and reactivated) the MSSA pursuant to its constitutional authority to raise and maintain armies. The majority also notes, that “the Court accords ‘great weight to the decisions of Congress,’” . . . and that the Court has accorded particular deference to decisions arising in the context of Congress’ authority over military affairs. I have no particular quarrel with these sentiments in the majority opinion. I simply add that even in the area of military affairs, deference to congressional judgments cannot be allowed to shade into an abdication of this Court’s ultimate responsibility to decide constitutional questions. . . . ... . . . When, as here, a federal law that classifies on the basis of gender is challenged as violating this constitutional guarantee, it is ultimately for this

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Court, not Congress, to decide whether there exists the constitutionally required “close and substantial relationship” between the discriminatory means employed and the asserted governmental objective. . . . In my judgment, there simply is no basis for concluding in this case that excluding women from registration is substantially related to the achievement of a concededly important governmental interest in maintaining an effective defense. The Court reaches a contrary conclusion only by using an “[a]nnounced degre[e] of ‘deference’ to legislative judgmen[t]” as a “facile abstractio[n] . . . to justify a result.”. . . II A The Government does not defend the exclusion of women from registration on the ground that preventing women from serving in the military is substantially related to the effectiveness of the Armed Forces. Indeed, the successful experience of women serving in all branches of the Armed Services would belie any such claim. Some 150,000 women volunteers are presently on active service in the military, and their number is expected to increase to over 250,000 by 1985. . . . Congress has never disagreed with the judgment of the military experts that women have made significant contributions to the effectiveness of the military. . . . ... VI ... In concluding that the Government has carried its burden in this case, the Court adopts “an appropriately

deferential examination of Congress’ evaluation of [the] evidence. . . .” The majority then proceeds to supplement Congress’ actual findings with those the Court apparently believes Congress could (and should) have made. Beyond that, the Court substitutes hollow shibboleths about “deference to legislative decisions” for constitutional analysis. It is as if the majority has lost sight of the fact that “it is the responsibility of this Court to act as the ultimate interpreter of the Constitution.” Powell v. McCormack, 395 U.S., at 549. See Baker v. Carr, 369 U.S., at 211. Congressional enactments in the area of military affairs must, like all other laws, be judged by the standards of the Constitution. For the Constitution is the supreme law of the land, and all legislation must conform to the principles it lays down. As the Court has pointed out, “the phrase ‘war power’ cannot be invoked as a talismanic incantation to support any exercise of congressional power which can be brought within its ambit.” United States v. Robel, 389 U.S., at 263–264. Furthermore, “[w]hen it appears that an Act of Congress conflicts with [a constitutional] provisio[n], we have no choice but to enforce the paramount commands of the Constitution. We are sworn to do no less. We cannot push back the limits of the Constitution merely to accommodate challenged legislation.” Trop v. Dulles, 356 U.S. 86, 104 (1958) (plurality opinion). In some 106 instances since this Court was established it has determined that congressional action exceeded the bounds of the Constitution. I believe the same is true of this statute. In an attempt to avoid its constitutional obligation, the Court today “pushes back the limits of the Constitution” to accommodate an Act of Congress. I would affirm the judgment of the District Court.

UNITED STATES V. VIRGINIA 518 U.S. 515 (1996) JUSTICE GINSBURG delivered the opinion of the Court, in which JUSTICES STEVENS, O’CONNOR, KENNEDY, SOUTER, and BREYER joined. CHIEF JUSTICE REHNQUIST filed an opinion concurring in the judgment. JUSTICE SCALIA filed a dissenting opinion.

JUSTICE THOMAS took no part in the consideration or decision of the case. JUSTICE GINSBURG delivered the opinion of the Court.

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Virginia’s public institutions of higher learning include an incomparable military college, Virginia Military Institute (VMI). The United States maintains that the Constitution’s equal protection guarantee precludes Virginia from reserving exclusively to men the unique educational opportunities VMI affords. We agree.

required of VMI cadets,” . . . the equal protection of the laws guaranteed by the Fourteenth Amendment? Second, if VMI’s “unique” situation, . . . as Virginia’s sole single-sex public institution of higher education—offends the Constitution’s equal protection principle, what is the remedial requirement?

I

IV

Founded in 1839, VMI is today the sole single-sex school among Virginia’s 15 public institutions of higher learning. VMI’s distinctive mission is to produce “citizen-soldiers,” men prepared for leadership in civilian life and in military service. VMI pursues this mission through pervasive training of a kind not available anywhere else in Virginia. Assigning prime place to character development, VMI uses an “adversative method” modeled on English public schools and once characteristic of military instruction. VMI constantly endeavors to instill physical and mental discipline in its cadets and impart to them a strong moral code. The school’s graduates leave VMI with heightened comprehension of their capacity to deal with duress and stress, and a large sense of accomplishment for completing the hazardous course. VMI has notably succeeded in its mission to produce leaders; among its alumni are military generals, Members of Congress, and business executives. The school’s alumni overwhelmingly perceive that their VMI training helped them to realize their personal goals. VMI’s endowment reflects the loyalty of its graduates; VMI has the largest per-student endowment of all undergraduate institutions in the Nation. Neither the goal of producing citizen-soldiers nor VMI’s implementing methodology is inherently unsuitable to women. And the school’s impressive record in producing leaders has made admission desirable to some women. Nevertheless, Virginia has elected to preserve exclusively for men the advantages and opportunities a VMI education affords.

We note, once again, the core instruction of this Court’s pathmarking decisions in J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127, . . . (1994), and Mississippi University for Women, . . . : Parties who seek to defend gender-based government action must demonstrate an “exceedingly persuasive justification” for that action. Today’s skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history. As a plurality of this Court acknowledged a generation ago, “our Nation has had a long and unfortunate history of sex discrimination.” Frontiero v. Richardson, 411 U.S. 677, 684 (1973). Through a century plus three decades and more of that history, women did not count among voters composing “We the People”; not until 1920 did women gain a constitutional right to the franchise. Id., at 685. And for a half century thereafter, it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any “basis in reason” could be conceived for the discrimination. See, e.g., Goesaert v. Cleary, 335 U.S. 464, . . . (1948). . . . In 1971, for the first time in our Nation’s history, this Court ruled in favor of a woman who complained that her State had denied her the equal protection of its laws. Reed v. Reed, 404 U.S. 71, 73 (holding unconstitutional Idaho Code prescription that, among “‘several persons claiming and equally entitled to administer [a decedent’s estate], males must be preferred to females’”). Since Reed, the Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature—equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities. . . . Without equating gender classifications, for all purposes, to classifications based on race or national origin, the Court, in post-Reed decisions, has carefully inspected official action that closes a door or denies

... III The cross-petitions in this case present two ultimate issues. First, does Virginia’s exclusion of women from the educational opportunities provided by VMI—extraordinary opportunities for military training and civilian leadership development—deny to women “capable of all of the individual activities 704

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opportunity to women (or to men). . . . To summarize the Court’s current directions for cases of official classification based on gender: Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is “exceedingly persuasive.” The burden of justification is demanding and it rests entirely on the State. See Mississippi University for Women. . . . The State must show “at least that the [challenged] classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’”. . . The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females. . . . The heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed “inherent differences” are no longer accepted as a ground for race or national origin classifications. See Loving v. Virginia, 388 U.S. 1 (1967). Physical differences between men and women, however, are enduring: “[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both.” Ballard v. United States, 329 U.S. 187, 193 (1946). “Inherent differences” between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity. Sex classifications may be used to compensate women “for particular economic disabilities [they have] suffered,” . . . to “promot[e] equal employment opportunity,” . . . to advance full development of the talent and capacities of our Nation’s people. But such classifications may not be used, as they once were, . . . to create or perpetuate the legal, social, and economic inferiority of women. Measuring the record in this case against the review standard just described, we conclude that Virginia has shown no “exceedingly persuasive justification” for excluding all women from the citizensoldier training afforded by VMI. We therefore affirm the Fourth Circuit’s initial judgment, which held that Virginia had violated the Fourteenth Amendment’s Equal Protection Clause. Because the remedy proffered by Virginia—the Mary Baldwin VWIL program—does not cure the constitutional violation, i.e., it does not provide equal opportunity, we reverse the Fourth Circuit’s final judgment in this case.

V The Fourth Circuit initially held that Virginia had advanced no state policy by which it could justify, under equal protection principles, its determination “to afford VMI’s unique type of program to men and not to women.”. . . Virginia challenges that “liability” ruling and asserts two justifications in defense of VMI’s exclusion of women. First, the Commonwealth contends, “single-sex education provides important educational benefits,” . . . and the option of single-sex education contributes to “diversity in educational approaches,” . . . Second, the Commonwealth argues, “the unique VMI method of character development and leadership training,” the school’s adversative approach, would have to be modified were VMI to admit women. . . . We consider these two justifications in turn. A Single-sex education affords pedagogical benefits to at least some students, Virginia emphasizes, and that reality is uncontested in this litigation. Similarly, it is not disputed that diversity among public educational institutions can serve the public good. But Virginia has not shown that VMI was established, or has been maintained, with a view to diversifying, by its categorical exclusion of women, educational opportunities within the State. In cases of this genre, our precedent instructs that “benign” justifications proffered in defense of categorical exclusions will not be accepted automatically; a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded. . . . Mississippi University for Women is immediately in point. There the State asserted, in justification of its exclusion of men from a nursing school, that it was engaging in “educational affirmative action” by “compensat[ing] for discrimination against women.”. . . Undertaking a “searching analysis, . . . the Court found no close resemblance between “the alleged objective” and “the actual purpose underlying the discriminatory classification,”. . . . Pursuing a similar inquiry here, we reach the same conclusion. Neither recent nor distant history bears out Virginia’s alleged pursuit of diversity through singlesex educational options. In 1839, when the State established VMI, a range of educational opportunities for men and women was scarcely contemplated. Higher education at the time was considered dangerous for women; reflecting widely held views about

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women’s proper place, the Nation’s first universities and colleges—for example, Harvard in Massachusetts, William and Mary in Virginia– admitted only men. . . . VMI was not at all novel in this respect: In admitting no women, VMI followed the lead of the State’s flagship school, the University of Virginia, founded in 1819. “[N]o struggle for the admission of women to a state university,” a historian has recounted, “was longer drawn out, or developed more bitterness, than that at the University of Virginia.”. . . In 1879, the State Senate resolved to look into the possibility of higher education for women, recognizing that Virginia “has never, at any period of her history,” provided for the higher education of her daughters, though she “has liberally provided for the higher education of her sons.” Despite this recognition, no new opportunities were instantly open to women. Virginia eventually provided for several women’s seminaries and colleges. Farmville Female Seminary became a public institution in 1884. . . . Two women’s schools, Mary Washington College and James Madison University, were founded in 1908; another, Radford University, was founded in 1910. . . . By the mid-1970s, all four schools had become coeducational. . . . Debate concerning women’s admission as undergraduates at the main university continued well past the century’s midpoint. Familiar arguments were rehearsed. If women were admitted, it was feared, they “would encroach on the rights of men; there would be new problems of government, perhaps scandals; the old honor system would have to be changed; standards would be lowered to those of other coeducational schools; and the glorious reputation of the university, as a school for men, would be trailed in the dust.”. . . Ultimately, in 1970, “the most prestigious institution of higher education in Virginia,” the University of Virginia, introduced coeducation and, in 1972, began to admit women on an equal basis with men. See Kirstein v. Rector and Visitors of University of Virginia . . . (1970). . . . Virginia describes the current absence of public single-sex higher education for women as “an historical anomaly.”. . . But the historical record indicates action more deliberate than anomalous: First, protection of women against higher education; next, schools for women far from equal in resources and stature to schools for men; finally, conversion of the separate schools to coeducation. The state legisla706

ture, prior to the advent of this controversy, had repealed “[a]ll Virginia statutes requiring individual institutions to admit only men or women.”. . . And in 1990, an official commission, “legislatively established to chart the future goals of higher education in Virginia,” reaffirmed the policy “of affording broad access” while maintaining “autonomy and diversity.”. . . (quoting Report of the Virginia Commission on the University of the twenty-first Century). Significantly, the Commission reported: Because colleges and universities provide opportunities for students to develop values and learn from role models, it is extremely important that they deal with faculty, staff, and students without regard to sex, race, or ethnic origin. . . . This statement, the Court of Appeals observed, “is the only explicit one that we have found in the record in which the Commonwealth has expressed itself with respect to gender distinctions.”. . . Our 1982 decision in Mississippi University for Women prompted VMI to reexamine its male-only admission policy. . . . Virginia relies on that reexamination as a legitimate basis for maintaining VMI’s single-sex character. . . . A Mission Study Committee, appointed by the VMI Board of Visitors, studied the problem from October 1983 until May 1986, and in that month counseled against “change of VMI status as a single-sex college.”. . . Whatever internal purpose the Mission Study Committee served—and however well-meaning the framers of the report—we can hardly extract from that effort any state policy evenhandedly to advance diverse educational options. As the District Court observed, the Committee’s analysis “primarily focuse[d] on anticipated difficulties in attracting females to VMI,” and the report, overall, supplied “very little indication of how th[e] conclusion was reached.”. . . In sum, we find no persuasive evidence in this record that VMI’s male-only admission policy “is in furtherance of a state policy of ‘diversity.’”. . . However “liberally” this plan serves the State’s sons, it makes no provision whatever for her daughters. That is not equal protection. B Virginia next argues that VMI’s adversative method of training provides educational benefits that cannot be made available, unmodified, to women. Alterations to accommodate women would necessar-

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ily be “radical,” so “drastic,” Virginia asserts, as to transform, indeed “destroy,” VMI’s program. . . . Neither sex would be favored by the transformation, Virginia maintains: Men would be deprived of the unique opportunity currently available to them; women would not gain that opportunity because their participation would “eliminat[e] the very aspects of [the] program that distinguish [VMI] from . . . other institutions of higher education in Virginia.”. . . ... The United States does not challenge any expert witness estimation on average capacities or preferences of men and women. Instead, the United States emphasizes that time and again since this Court’s turning point decision in Reed v. Reed, 404 U.S. 71 (1971), we have cautioned reviewing courts to take a “hard look” at generalizations or “tendencies” of the kind pressed by Virginia, and relied upon by the District Court. . . . State actors controlling gates to opportunity, we have instructed, may not exclude qualified individuals based on “fixed notions concerning the roles and abilities of males and females.”. . . ... The notion that admission of women would downgrade VMI’s stature, destroy the adversative system and, with it, even the school, is a judgment hardly proved, a prediction hardly different from other “self-fulfilling prophec[ies],” . . . once routinely used to deny rights or opportunities. . . . ... Women’s successful entry into the federal military academies, and their participation in the Nation’s military forces, indicate that Virginia’s fears for the future of VMI may not be solidly grounded. The State’s justification for excluding all women from “citizensoldier” training for which some are qualified, in any event, cannot rank as “exceedingly persuasive,” as we have explained and applied that standard. Virginia and VMI trained their argument on “means” rather than “end,” and thus misperceived our precedent. Single-sex education at VMI serves an “important governmental objective,” they maintained, and exclusion of women is not only “substantially related,” it is essential to that objective. By this notably circular argument, the “straightforward” test Mississippi University for Women described, . . . was bent and bowed.

The State’s misunderstanding and, in turn, the District Court’s, is apparent from VMI’s mission: to produce “citizen-soldiers,” individuals imbued with love of learning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready . . . to defend their country in time of national peril. . . .

Surely that goal is great enough to accommodate women, who today count as citizens in our American democracy equal in stature to men. Just as surely, the State’s great goal is not substantially advanced by women’s categorical exclusion, in total disregard of their individual merit, from the State’s premier “citizen-soldier” corps. Virginia, in sum, “has fallen far short of establishing the ‘exceedingly persuasive justification,” . . . that must be the solid base for any gender-defined classification. VI In the second phase of the litigation, Virginia presented its remedial plan—maintain VMI as a maleonly college and create VWIL as a separate program for women. . . . ... A A remedial decree, this Court has said, must closely fit the constitutional violation; it must be shaped to place persons unconstitutionally denied an opportunity or advantage in “the position they would have occupied in the absence of [discrimination].” See Milliken v. Bradley, 433 U.S. 267, 280 (1977). . . . The constitutional violation in this case is the categorical exclusion of women from an extraordinary educational opportunity afforded men. A proper remedy for an unconstitutional exclusion, we have explained, aims to “eliminate [so far as possible] the discriminatory effects of the past” and to “bar like discrimination in the future.” Louisiana v. United States, 380 U.S. 145, 154 (1965). Virginia chose not to eliminate, but to leave untouched, VMI’s exclusionary policy. For women only, however, Virginia proposed a separate program, different in kind from VMI and unequal in tangible and intangible facilities. . . . Having violated the Constitution’s equal protection requirement, Virginia was obliged to show that its remedial proposal “directly address[ed] and relate[d] to” the

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violation, . . . i.e., the equal protection denied to women ready, willing, and able to benefit from educational opportunities of the kind VMI offers. . . . ... B In myriad respects other than military training, VWIL does not qualify as VMI’s equal. VWIL’s student body, faculty, course offerings, and facilities hardly match VMI’s. Nor can the VWIL graduate anticipate the benefits associated with VMI’s 157year history, the school’s prestige, and its influential alumni network. . . . ... Virginia, in sum, while maintaining VMI for men only, has failed to provide any “comparable singlegender women’s institution.”. . . Instead, the Commonwealth has created a VWIL program fairly appraised as a “pale shadow” of VMI in terms of the range of curricular choices and faculty stature, funding, prestige, alumni support and influence. . . . Virginia’s VWIL solution is reminiscent of the remedy Texas proposed fifty years ago, in response to a state trial court’s 1946 ruling that, given the equal protection guarantee, African Americans could not be denied a legal education at a state facility. See Sweatt v. Painter, 339 U.S. 629 (1950). Reluctant to admit African Americans to its flagship University of Texas Law School, the State set up a separate school for Herman Sweatt and other black law students. . . . As originally opened, the new school had no independent faculty or library, and it lacked accreditation. . . . Nevertheless, the state trial and appellate courts were satisfied that the new school offered Sweatt opportunities for the study of law “substantially equivalent to those offered by the State to white students at the University of Texas.”. . .

a ‘prestige’ factor [not paralleled in] other Virginia educational institutions.”. . . VMI, too, offers an educational opportunity no other Virginia institution provides, and the school’s “prestige”—associated with its success in developing “citizen-soldiers”—is unequaled. Virginia has closed this facility to its daughters and, instead, has devised for them a “parallel program,” with a faculty less impressively credentialed and less well paid, more limited course offerings, fewer opportunities for military training and for scientific specialization. Cf. Sweatt, 339 U.S., at 633. VMI, beyond question, “possesses to a far greater degree” than the VWIL program “those qualities which are incapable of objective measurement but which make for greatness in a . . . school,” including “position and influence of the alumni, standing in the community, traditions and prestige.”. . . Women seeking and fit for a VMIquality education cannot be offered anything less, under the State’s obligation to afford them genuinely equal protection. A prime part of the history of our Constitution, historian Richard Morris recounted, is the story of the extension of constitutional rights and protections to people once ignored or excluded. VMI’s story continued as our comprehension of “We the People” expanded. . . . There is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the “more perfect Union.” ... For the reasons stated, the initial judgment of the Court of Appeals, 976 F.2d 890 (CA4 1992), is affirmed, the final judgment of the Court of Appeals, 44 F.3d 1229 (CA4 1995), is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

... VII . . . Commencing in 1970, Virginia opened to women “educational opportunities at the Charlottesville campus that [were] not afforded in other [State-operated] institutions.”. . . A federal court approved the State’s innovation, emphasizing that the University of Virginia “offer[ed] courses of instruction . . . not available elsewhere.”. . . The court further noted: “[T]here exists at Charlottesville 708

[JUSTICE THOMAS took no part in the consideration or decision of this case. The opinion of CHIEF JUSTICE REHNQUIST, concurring in the judgment, is not reprinted here. The dissenting opinion of JUSTICE SCALIA is not reprinted here.] CONSTITUTIONAL POLITICS: THE SAGA OF THE ERA As we close the first decade of the twenty-first century, the struggle for equal rights for women remains

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key in American politics and society. And those interested in women’s rights have not been content to leave their cause to statutes alone. Feminist advocates and their supporters have persisted in their drive to secure women’s rights on a more fundamental basis by pushing for a constitutional amendment. Popularly called the Equal Rights Amendment (ERA), the amendment simply states that “equality of rights under the law shall not be denied or abridged by the United States or by any other state on account of sex.” Under its terms, Congress is authorized to pass appropriate legislation to enforce its provisions. ERA supporters have prevailed in the Congress, which passed a proposal for such an amendment in 1972, but they have been unable to negotiate the tough terrain of ratification politics. Even though Congress approved an extended period

for ratification of the amendment (June 30, 1982), the ERA still fell 3 states short of the 38 states needed for ratification. Nevertheless, the equal rights battle remains alive today. Proponents continue to hold that neither existing constitutional and statutory protections nor incremental expansions of these protections is adequate. On the other hand, ERA opponents contend that the amendment is unnecessary in view of existing and developing federal and state law and that it could be used against the best interests of women. (For example, it could subject women to compulsory selective service and could more generally disrupt family and home life.) Regardless of the ERA’s fate, however, the battle over equal rights for women, and gender-based classifications more generally, seems likely to continue.

SELECTED REFERENCES Bacchi, C. “Pregnancy, the Law, and the Meaning of Inequality.” In Elizabeth M. Meehan and Selma Sevenhuijsen, eds., Equality Politics and Gender. London: Sage Publications, 1991. Baer, Judith A. “Women’s Rights and the Constitution.” The Social Science Journal, Vol. 44, No. 1 (2007), 57–66. Baines, Beverly, and Rubio-Marin, Ruth. The Gender of Constitutional Jurisprudence. New York: Cambridge University Press, 2005. Baldez, Lisa, Epstein, Lee, and Martin, Andrew D. “Does the U.S. Constitution Need an ERA?” Journal of Legal Studies, Vol. 35, No. 1 (2006), 243–283. Cohen, David S. “No Boy Left Behind? Single Sex Education and the Essentialist Myth of Masculinity.” Indiana Law Journal, Vol. 84 (2009), 135–188. Crosby, Faye J., Stockdale, Margaret S., and Ropp, S. Ann., eds. Sex Discrimination in the Workplace. Malden, MA: Blackwell Publishing, 2007. Irving, Helen. Gender and the Constitution: Equity and Agency in Comparative Constitutional Design. Cambridge, MA: Cambridge University Press, 2008.

Kirkland, Anna. “What’s at Stake in Transgender Discrimination as Sex Discrimination?” Signs: Journal of Women in Culture and Society, Vol. 32, No. 1 (2006), 83–111. Manley, Katie. “The BFOQ Defense: Title VII’s Concession to Gender Discrimination.” Duke Journal of Gender, Law and Policy, Vol. 16 (2009), 169–210. Norton, Michael I., Sommers, Samuel R., and Brauner, Sara. “Bias in Jury Selection: Justifying Prohibited Peremptory Challenges.” Journal of Behavioral Decision Making, Vol. 20 (2007), 467–479. Novkov, Julie. “Bringing the States Back In: Understanding Legal Subordination and Identity through Political Development.” Polity, Vol. 40, No. 1 (2008), 24–48. Smith, Tyson, and Kimmel, Michael. “The Hidden Discourse of Masculinity in Gender Discrimination Law.” Signs: Journal of Women in Culture and Society. Vol. 30, No. 3 (2005), 1827–1849.

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CHAPTER 17

PRIVACY AND INDIVIDUAL RIGHTS IN VARIED CONTEXTS

FEATURED CASES Griswold v. Connecticut; Roe v. Wade; Oncale v. Sundowner Offshore Services, Inc.; Lawrence v. Texas; Washington v. Glucksberg

T

HE CONSTITUTIONAL RIGHT OF PRIVACY IS DEEPLY

rooted in American history. The adoption of the Fourth Amendment in 1791, with its prohibition against unreasonable searches and seizures, was an implicit recognition of the right of privacy. Since then, technological advances and other pressures on privacy have led to more explicit recognition in our public law of the importance of safeguarding the right of privacy against competing interests such as public morality and law enforcement. In their 1890 seminal article on the right of privacy, for example, Samuel Warren and Louis Brandeis called attention to new and increasing threats to privacy.1 And after his appointment to the Supreme Court in 1916, Brandeis continued to champion the cause of privacy. Then and now, “wiretapping” and other search and seizure cases have caused lively debates about the right to privacy (e.g., Katz v. United States, 389 U.S. 347, 1967; California v. Ciraolo, 476 U.S. 207, 1986). A fundamental question in such situations is whether governmental intrusion for purposes of crime control is a necessary evil consistent with 1

The Right of Privacy, 4 Harvard Law Review 193 (1980).

the needs of a changing society or an unacceptable infringement on the privacy and freedom to which individuals have a constitutional right. The issue of privacy versus governmental intrusion has illuminated additional dimensions of the rights and freedoms of individuals in their social behavior and relations. The discussion has involved relations and behavior patterns with respect to such hotly contested subjects as contraception, reproduction, and sexual orientation. On one side of the debate is the view that activities involving individual autonomy and relations among consenting adults are (or at least should be) outside the scope of government regulation. On the other side is the opinion that government must (and should) play a role in regulating sexual behavior under the rationale either of promoting social morality or of regulating conduct to protect third parties, ranging from fetuses to the terminally ill. In this chapter, we examine the discussion on the range of possible governmental involvement in such matters. Although the most hotly contested controversies have been over abortion and gay and lesbian rights, the conceptual (and actual) stress on the rights of privacy has increased as technological changes

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have forced society (and government) to deal with issues such as surrogate motherhood, the use of fetal tissue to treat diseases, and the public health dimensions regarding the transmission of AIDS (e.g., compulsory testing).

BEYOND THE FOURTH AMENDMENT: PRIVACY AS A CONSTITUTIONAL RIGHT AND THE ABORTION CONTROVERSY FEATURED CASES

Griswold v. Connecticut; Roe v. Wade In 1965, the Supreme Court took a major step toward recognizing a constitutional right of privacy. By a 7–2 vote, the Court held in Griswold v. Connecticut (381 U.S. 479) that a Connecticut law which forbade the dissemination of birth control information was violative of the right of marital privacy. Justice Douglas, who spoke for the majority, said that the Connecticut law interfered with “a right of privacy older than the Bill of Rights.” Douglas spoke of “zones of privacy” and admitted that privacy as a specific right is not protected by the Constitution. However, he thought it lay within a “penumbra” of certain fundamental guarantees such as those enunciated in the First, Third, Fourth, and Fifth Amendments. In this formulation, Douglas also cited the Ninth Amendment, which declares that the delineation of certain rights in the Bill of Rights does not mean that there are not other rights “retained by the people.” Justice Black, in a sharp dissent, attacked the majority for creating a constitutional right of privacy when there was nothing in the Constitution to warrant such a development. Moreover, Black disagreed with the manner in which the Court had developed its own notion of the right of privacy and incorporated it into the meaning of the due process clause of the Fourteenth Amendment. Black had long warned the Court that the due process clause was meant to include only the provisions of the first eight amendments as limitations on the states. To do otherwise, Black said, allowed the Court to write its own notions of due process rather than those intended by the framers of the Fourteenth Amendment. (Griswold was also cited with approval in Eisenstadt v. Baird, 405 U.S. 438, 1972.) The celebrated 1973 “abortion cases” gave the Court a most visible opportunity to review whether

there is a constitutional right of privacy. The Court used this opportunity to reaffirm its Griswold position, namely that there is a constitutional right of privacy that limits the states in their actions. Justice Blackmun, who spoke for the Court in a 7–2 decision in Roe v. Wade (410 U.S. 113, 1973), admitted that “the Constitution does not explicitly mention any right of privacy.” However, he indicated that “in a line of decisions (. . . going back perhaps as far as . . . 1891, the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy does exist under the Constitution.” Justices White and Rehnquist dissented. Justice Rehnquist’s dissent and Justice Blackmun’s discussion of how to balance this constitutional right of privacy against competing state interests are reprinted in this chapter. Several 1977 Supreme Court decisions bear directly on the abortion issue. In one case, Maher v. Roe (432 U.S. 464), a 6–3 Court majority ruled that neither the Constitution nor current federal law require states to spend Medicaid funds for elective (i.e., nontherapeutic) abortions in the first trimester. (Also see Beal v. Doe, 432 U.S. 438.) By the same majority, the Court also ruled in a St. Louis case, Poelker v. Doe (432 U.S. 519), that city public hospitals were under no constitutional obligation to provide or permit elective abortions. And in Harris v. McRae (448 U.S. 297, 1980), the Court held that under the Social Security Act, which provided federal financial assistance to cover certain medical costs of needy people, participating states are not obligated to pay for medically necessary abortions for which Congress has withheld federal funds. Thus the Court in Harris was able to uphold the well-publicized Hyde amendment, which permits Medicaid funds to be used only for abortions performed to save the life of the mother and under certain other special circumstances. Justices Stevens, Brennan, and Marshall gave strong dissents. Brennan said that “both by design and in effect [the Hyde amendment] serves to coerce indigent pregnant women to bear children they would otherwise not elect to have.” Overall, the impact of Maher, Poelker, and Harris does appear, to quote from Marshall’s dissent in Harris, “to deny to the poor the constitutional right recognized in Roe v. Wade (1973). . . .” This trend that Marshall saw in Harris has not abated. State and city regulations continue to mandate procedures and conditions under which abortions may take place. To be sure, some of these Privacy and Individual Rights in Varied Contexts

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regulations have been declared invalid, but others have been upheld. (Cf. City of Akron v. Akron Center for Reproductive Health, 1983; Planned Parenthood Assn. of Kansas City v. Ashcroft, 1983.) In Thornburgh v. American College of Obstetricians and Gynecologists (1986), the Court dealt once again with state regulations that sought to narrow or restrict a woman’s right to an abortion. Here the Court held that six provisions of a Pennsylvania statute impermissibly deterred a woman’s right to an abortion. Although Thornburgh strongly reaffirms Roe v. Wade, its narrow 5–4 majority indicated vividly the eroding support in the Court for the principles of the 1973 decision in Roe v. Wade. By its 1989 decision in Webster v. Reproductive Health Services, however, a new and vibrant Rehnquist Court majority signaled that the Court was prepared to uphold state restrictions on abortion that it had held unconstitutional in the past. Here, by a narrow 5–4 vote, the Court held that Missouri could ban the use of public funds, employees, or facilities in assisting or performing a nontherapeutic abortion. Although the Court’s decision placed additional pressure on the Roe v. Wade edifice, it did not topple Roe; Justice O’Connor blocked the push led by Scalia and Rehnquist to reconsider Roe. In Planned Parenthood of Southeastern Pennsylvania v. Casey (112 S. Ct. 2791, 1992), the Supreme Court surprised legal and political analysts by upholding the basic guarantees of Roe. The Court, however, upheld most of Pennsylvania’s statutory restrictions, including a 24-hour waiting period. A plurality of Justices O’Connor, Kennedy, and Souter announced an important new test—a state statute would be deemed violative of Roe and thus unconstitutional if it placed an “undue burden” on a woman’s abortion rights. Casey was surprising in that after several appointments by Presidents Reagan and Bush, and an especially confrontational confirmation of Justice Thomas, Roe still remained standing. The debate among legal scholars is whether the new standard of an “undue burden” is a workable conceptual structure. Also, as Justice Scalia noted in Casey, echoing a concern that he voiced in Webster, the evaluation of the “undue burden” standard keeps the Court in the business of evaluating abortion rights, a role that he believes is best left to the political branches. As manifest in recent cases, the Supreme Court seems to have reached a “compromise” position that is based on a distinction between private and public 712

activity. States may regulate, albeit minimally, the private provision of abortions through the use, for example, of a waiting period. Regulation would be justified on the basis that restrictions would only be used to allow the woman to make an “informed” decision, as occurs in typical doctor–patient relations. However, the basic right to obtain an abortion outside the purview of government would remain intact. In contrast with the regulation of a private service, especially as seen by Webster, states may try to get out of the business of providing abortions. Although this evolution in Supreme Court jurisprudence may seem to fit better with societal notions of privacy, it does raise some fundamental questions. For example, how tightly may the public and private spheres be drawn? In 1991, in Rust v. Sullivan (111 S. Ct. 1759), the Court upheld the Department of Health and Human Services’ interpretation of Title X of the Public Health Service Act of 1970. The affirmed interpretation, issued in 1988, required that health care recipients of governmental funds under Title X could not counsel clients on matters regarding abortion. In fact, all abortion activities had to be kept “physically and financially separate” from other family counseling activities available in Title X projects. The petitioners argued that such restrictions violated the free speech rights of health care providers to inform the patient of all relevant options. The Court rejected this position, arguing that any restrictions arose as a consequence of accepting public money for the Title X program. The majority made it clear that the regulations did not restrict individuals who chose to act privately. By contrast, Justice Blackmun dissented, arguing that the Court was upholding the viewpoint-based suppression of speech solely because it was imposed on people who were dependent on the government for economic support. On balance, the flood of litigation following the Court’s 1973 Roe v. Wade decision reflects the continuing intensity of the abortion rights controversy. That intensity is also seen in recent Court decisions that uphold measures designed to protect women who seek to exercise their constitutional right to abortion from attempts by antiabortion protesters to block access to or otherwise shut down abortion clinics (e.g., Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 1993; National Organization for Women Inc. v. Scheidler, 114 S. Ct. 798, 1994; Madsen v. Women’s Health Center, 114 S. Ct. 2516, 1994; Schenck v. Pro-Choice Network of Western New York, 117 S. Ct. 855, 1997).

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In Schenck (1997), a divided court struck down a “floating” buffer zone around individuals and vehicles entering and leaving an abortion clinic as violative of the First Amendment, but upheld a “fixed” buffer zone as a valid restriction to protect the access rights of clinic patients. The Court has also struggled with the “partial birth” abortion issue. The term “partial birth” is often used to describe a procedure to remove a fetus, the medical term for which is intact dilation and extraction. In 2000, the Supreme Court in Stenberg v. Carhart (530 U.S. 914) split five to four in striking down Nebraska’s partial-birth abortion law that did not provide an exception for the health of women. But, three years later, on November 5, 2003, President George W. Bush signed into law the Partial-birth Abortion Ban Act. In contrast with its ruling in Stenberg, the Court upheld the constitutionally of the Act four years later in Gonzales v. Carhart (2007). The Court explained: “The Act responded to Stenberg in two ways. First, Congress found that unlike this Court in Stenberg, it was not required to accept the District Court’s factual

findings, and that there was a moral, medical, and ethical consensus that partial-birth abortion is a gruesome and inhumane procedure that is never medically necessary and should be prohibited. Second, the Act’s language differs from that of the Nebraska statute struck down in Stenberg. Among other things, the Act prohibits ‘knowingly perform[ing] a partialbirth abortion . . . that is [not] necessary to save the life of a mother,’ 18 U.S. C. §1531(a). It defines “partial-birth abortion,” §1531(b)(1), as a procedure in which the doctor: ‘(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the [mother’s] body . . ., or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the [mother’s] body . . ., for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus’; and ‘(B) performs the overt act, other than completion of delivery that kills the fetus’”.

Because the 5–4 majority found that the Act applied only to a specific method of abortion, it held that the ban was not unconstitutionally vague, overbroad, or an undue burden on the decision to obtain an abortion.

GRISWOLD V. CONNECTICUT 381 U.S. 479; 14 L. Ed. 510; 85 S. Ct. 1678 (1965) JUSTICE DOUGLAS delivered the opinion of the Court. JUSTICE GOLDBERG filed a concurring opinion, in which CHIEF JUSTICE WARREN and JUSTICE BRENNAN joined. JUSTICE HARLAN filed a concurring opinion. JUSTICE WHITE filed a concurring opinion. JUSTICE BLACK filed a dissenting opinion, in which JUSTICE STEWART joined. JUSTICE STEWART filed a dissenting opinion, in which JUSTICE BLACK joined. JUSTICE DOUGLAS delivered the opinion of the Court. Appellant Griswold is Executive Director of the Planned Parenthood League of Connecticut. Appellant Buxton is a licensed physician and a professor at the Yale Medical School, who served as Medical Director for the League at its Center in New Haven—a center open and operating from November 1 to November 10, 1961, when appellants were arrested.

They gave information, instructions, and medical advice to married persons as to the means of preventing conception. They examined the wife and prescribed the best contraceptive device or material for her use. Fees were usually charged, although some couples were serviced free. The statutes whose constitutionality is involved in this appeal are §§ 53–32 and 54–196 of the General Statutes of Connecticut (1958 rev.). The former provides: Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days nor more than one year or be both fined and imprisoned.

Section 54–196 provides: Any person who assists, abets, counsels, causes, hires, or commands another to commit any offense Privacy and Individual Rights in Varied Contexts

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may be prosecuted and punished as if he were the principal offender.

The appellants were found guilty as accessories and fined $100 each, against the claim that the accessory statute as so applied violated the Fourteenth Amendment. . . . We think that appellants have standing to raise the constitutional rights of the married people with whom they had a professional relationship. . . . Certainly the accessory should have standing to assert that the offense which he is charged with assisting is not, or cannot constitutionally be, a crime. ... Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment. Overtones of some arguments suggest that Lochner v. New York, 198 U.S. 45, 1905, should be our guide. But we decline that invitation as we did in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 1937. We do not sit as a superlegislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions. This law, however, operates directly on an intimate relation of husband and wife and their physician’s role in one aspect of that relation. The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice— whether public or private or parochial—is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights. By Pierce v. Society of Sisters, supra, the right to educate one’s children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska . . . the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read . . . and freedom of inquiry, freedom of thought, and freedom to teach . . .—indeed the freedom of the entire university community. . . . Without those peripheral rights the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases. 714

In NAACP v. Alabama . . . we protected the “freedom to associate and privacy in one’s associations,” noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid “as entailing the likelihood of a substantial restraint upon the exercise by petitioner’s members of their right to freedom of association.” In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of “association” that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members. NAACP v. Button. . . . In Schware v. Board of Bar Examiners . . . we held it not permissible to bar a lawyer from practice because he had once been a member of the Communist Party. The man’s “association with that Party” was not shown to be “anything more than a political faith in a political party” . . . and was not action of a kind proving bad moral character. . . . Those cases involved more than the “right of assembly”—a right that extends to all irrespective of their race or ideology. De Jonge v. Oregon. . . . The right of “association,” like the right of belief (Board of Education v. Barnette), is more than the right to attend a meeting; it includes the right to express one’s attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful. The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. . . . Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides:

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“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Fourth and Fifth Amendments were described in Boyd v. United States . . . as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.” We recently referred in Mapp v. Ohio . . . to the Fourth Amendment as creating a “right to privacy, no less important than any other right carefully and particularly reserved to the people.”. . . We have had many controversies over these penumbral rights of “privacy and repose.” See, e.g., Breard v. Alexandria . . .; Public Utilities Comm’n v. Pollak. . . . These cases bear witness that the right of privacy which presses for recognition here is a legitimate one. The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a “governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama. . . . Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship. We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. Reversed. JUSTICE GOLDBERG, joined by CHIEF JUSTICE WARREN and JUSTICE BRENNAN, concurring: I agree with the Court that Connecticut’s birth-control law unconstitutionally intrudes upon the right of

marital privacy, and I join in its opinion and judgment. Although I have not accepted the view that “due process” as used in the Fourteenth Amendment incorporates all of the first eight amendments, . . . I do agree that the concept of liberty protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights. My conclusion that the concept of liberty is not so restricted and that it embraces the right of marital privacy though that right is not mentioned explicitly in the Constitution is supported both by numerous decisions of this Court, referred to in the Court’s opinion, and by the language and history of the Ninth Amendment. In reaching the conclusion that the right of marital privacy is protected, as being within the protected penumbra of specific guarantees of the Bill of Rights, the Court refers to the Ninth Amendment. I add these words to emphasize the relevance of that Amendment to the Court’s holding. ... The Court, in a series of decisions, has held that the Fourteenth Amendment absorbs and applies to the States those specifics of the first eight amendments which express fundamental personal rights. The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. The Ninth Amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”. . . ... While this Court has had little occasion to interpret the Ninth Amendment, “[i]t cannot be presumed that any clause in the Constitution is intended to be without effect.” Marbury v. Madison. In interpreting the Constitution, “real effect should be given to all the words it uses.” Myers v. United States, 272 U.S. 52. The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right Privacy and Individual Rights in Varied Contexts

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is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (Emphasis added.) . . . I do not take the position of my Brother Black . . . that the entire Bill of Rights is incorporated in the Fourteenth Amendment, and I do not mean to imply that the Ninth Amendment is applied against the States by the Fourteenth. Nor do I mean to state that the Ninth Amendment constitutes an independent source of rights protected from infringement by either the States or the Federal Government. Rather, the Ninth Amendment shows a belief of the Constitution’s authors that fundamental rights exist that are not expressly enumerated in the first eight amendments and an intent that the list of rights included there not be deemed exhaustive. . . . The Ninth Amendment simply shows the intent of the Constitution’s authors that other fundamental personal rights should not be denied such protection or disparaged in any other way simply because they are not specifically listed in the first eight constitutional amendments. I do not see how this broadens the authority of the Court; rather it serves to support what this Court has been doing in protecting fundamental rights. Nor am I turning somersaults with history in arguing that the Ninth Amendment is relevant in a case dealing with a State’s infringement of a fundamental right. While the Ninth Amendment—and indeed the entire Bill of Rights—originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the “liberty” protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not 716

restricted to rights specifically mentioned in the first eight amendments. . . . ... Although the Constitution does not speak in so many words of the right of privacy in marriage, I cannot believe that it offers these fundamental rights no protection. The fact that no particular provision of the Constitution explicitly forbids the State from disrupting the traditional relation of the family—a relation as old and as fundamental as our entire civilization— surely does not show that the Government was meant to have the power to do so. Rather, as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution. ... [The concurring opinions of JUSTICES HARLAN and WHITE are not reprinted here.] JUSTICE BLACK, joined by JUSTICE STEWART, dissenting: The Court talks about a constitutional “right of privacy” as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the “privacy” of individuals. But there is not. There are, of course, guarantees in certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities. Such, for example, is the Fourth Amendment’s guarantee against “unreasonable searches and seizures.” But I think it belittles that Amendment to talk about it as though it protects nothing but “privacy.” To treat it that way is to give it a niggardly interpretation, not the kind of liberal reading I think any Bill of Rights provision should be given. The average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. He simply wants his property left alone. And a person can be just as much, if not more, irritated, annoyed and injured by an unceremonious public arrest by a policeman as he is by a seizure in the privacy of his office or home. One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional

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guarantee another word or words, more or less flexible and more or less restrictive in meaning. This fact is well illustrated by the use of the term “right of privacy” as a comprehensive substitute for the Fourth Amendment’s guarantee against “unreasonable searches and seizures.” “Privacy” is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things other than searches and seizures. I have expressed the view many times that First Amendment freedoms, for example, have suffered from a failure of the courts to stick to the simple language of the First Amendment in construing it, instead of invoking multitudes of words substituted for those the Framers used. . . . For these reasons I get nowhere in this case by talk about a constitutional “right of privacy” as an emanation from one or more constitutional provisions. I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to

invade it unless prohibited by some specific constitutional provision. For these reasons I cannot agree with the Court’s judgment and the reasons it gives for holding this Connecticut law unconstitutional. ... The late Judge Learned Hand, after emphasizing his view that judges should not use the due process formula suggested in the concurring opinions today or any other formula like it to invalidate legislation offensive to their “personal preferences,” made the statement, with which I fully agree, that: For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not. So far as I am concerned, Connecticut’s law as applied here is not forbidden by any provision of the Federal Constitution as that Constitution was written, and I would therefore affirm. [The dissenting opinion of JUSTICE STEWART is not reprinted here.]

ROE V. WADE 410 U.S. 113; 35 L. Ed. 2d 147; 93 S. Ct. 705 (1973) JUSTICE BLACKMUN delivered the opinion of the Court, in which CHIEF JUSTICE BURGER and JUSTICES DOUGLAS, BRENNAN, STEWART, MARSHALL, and POWELL joined. CHIEF JUSTICE BURGER and JUSTICES DOUGLAS and STEWART filed concurring opinions. JUSTICE WHITE filed a dissenting opinion, in which JUSTICE REHNQUIST joined. JUSTICE REHNQUIST filed a dissenting opinion. JUSTICE BLACKMUN delivered the opinion of the Court. This Texas federal appeal and its Georgia companion, Doe v. Bolton, present constitutional challenges to state criminal abortion legislation. The Texas statutes under attack here are typical of those that have been in effect in many States for approximately a century. The Georgia statutes, in contrast, have a modern cast and are a legislative product that, to an extent at least, obviously reflects the influences of recent attitudinal change, of advancing medical

knowledge and techniques, and of new thinking about an old issue. . . . The Texas statutes that concern us . . . make it a crime to “procure an abortion,” as therein defined, or to attempt one, except with respect to “an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.” Similar statutes are in existence in a majority of the States. . . . [Appellant] Roe alleged that she was unmarried and pregnant; that she wished to terminate her pregnancy by an abortion “performed by a competent, licensed physician, under safe, clinical conditions”; that she was unable to get a “legal” abortion in Texas because her life did not appear to be threatened by the continuation of her pregnancy; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of Privacy and Individual Rights in Varied Contexts

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personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. . . . . . . On the merits, the District Court held that the “fundamental right of single women and married persons to choose whether to have children is protected by the Ninth Amendment, through the Fourteenth Amendment,” and that the Texas criminal abortion statutes were void on their face because they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiffs’ Ninth Amendment rights. The court then held that abstention was warranted with respect to the requests for an injunction. It therefore dismissed the Doe complaint, declared the abortion statutes void, and dismissed the application for injunctive relief. The plaintiffs . . . have appealed to this Court from that part of the District Court’s judgment denying the injunction. . . . The principal thrust of appellant’s attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal “liberty” embodied in the Fourteenth Amendment’s Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, . . . or among those rights reserved to the people by the Ninth Amendment. . . . Before addressing this claim, we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws. [The Court here reviews the history of abortion in terms of Ancient Attitudes, The Hippocratic Oath, The Common Law, The English Statutory Law, and The American Law. The Court also summarizes the positions of the American Medical Association, the American Public Health Association, and the American Bar Association.] It is thus apparent that at common law, at the time of adoption of our Constitution, and throughout the major portion of the nineteenth century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in 718

this country well into the nineteenth century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy. . . . Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the nineteenth century and to justify their continued existence. It has been argued occasionally that these laws were the product of a Victorian social concern to discourage illicit sexual conduct. Texas, however, does not advance this justification in the present case, and it appears that no court or commentator has taken the argument seriously. The appellants and amici contend, moreover, that this is not a proper state purpose at all and suggest that, if it were, the Texas statutes are overbroad in protecting it since the law fails to distinguish between married and unwed mothers. A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws were first enacted, the procedure was a hazardous one for the woman. . . . Thus it has been argued that a State’s real concern in enacting a criminal abortion law was to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy. Modern medical techniques have altered this situation. Appellants and various amici refer to medical data, indicating that abortion in early pregnancy, that is, prior to the end of first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth. Consequently, any interest of the State in protecting the woman from an inherently hazardous procedure, except when it would be equally dangerous for her to forgo it, has largely disappeared. Of course, important state interests in the area of health and medical standards do remain. The State has a legitimate interest in seeing to it that abortion, like any other medical procedure, is performed under circumstances that insure maximum safety for the patient. . . . The prevalence of high mortality rates at illegal “abortion mills” strengthens, rather than weakens, the State’s interest in regulating the conditions under which abortions are performed. Moreover, the risk to the woman increases as her pregnancy continues. . . . The third reason is the State’s interest—some phrase it in terms of duty—in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from

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the moment of conception. The State’s interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some point prior to live birth. In assessing the State’s interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone. . . . It is with these interests and the weight to be attached to them, that this case is concerned. The Constitution does not explicitly mention any rights of privacy. In a line of decisions, however, . . . the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts the Court or individual justices have indeed found at least the roots of that right in the First Amendment, Stanley v. Georgia (1969); in the Fourth and Fifth Amendments, Terry v. Ohio (1968), Katz v. United States (1967); . . . in the penumbras of the Bill of Rights, Griswold v. Connecticut (1965); in the Ninth Amendment, or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, procreation, Skinner v. Oklahoma, contraception, Eisenstadt v. Baird, family relationships, Prince v. Massachusetts, and child rearing and education, Pierce v. Society of Sisters, Meyer v. Nebraska. This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity,

or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation. On the basis of elements such as these, appellants and some amici argue that the woman’s right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellants’ arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman’s sole determination, is unpersuasive. The Court’s decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a state may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past. Jacobson v. Massachusetts (1905) (vaccination); Buck v. Bell (1927) (sterilization). We therefore conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation. . . . Where certain “fundamental rights” are involved, the Court has held that regulation limiting these rights may be justified only by a “compelling state interest,” . . . and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake. . . . The District Court held that the appellee failed to meet his burden of demonstrating that the Texas Privacy and Individual Rights in Varied Contexts

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statute’s infringement upon Roe’s rights was necessary to support a compelling state interest, and that, although the defendant presented “several compelling justifications for state presence in the area of abortions,” the statutes outstripped these justifications and swept “far beyond any areas of compelling state interest.” Appellant and appellee both contest that holding. Appellant, as has been indicated, claims an absolute right that bars any state imposition of criminal penalties in the area. Appellee argues that the State’s determination to recognize and protect prenatal life from and after conception constitutes a compelling state interest. As noted above, we do not agree fully with either formulation. The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. In support of this they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’s right to life is then guaranteed specifically by the Amendment. The appellant conceded as much on reargument. On the other hand, the appellee conceded on reargument that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment. The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” The first, in defining “citizens,” speaks of “persons born or naturalized in the United States.” The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution. . . . But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible prenatal application. All this, together with our observation, supra, that throughout the major portion of the nineteenth century prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn. . . . This conclusion, however, does not of itself fully answer the contentions raised by Texas, and we pass on to other considerations. The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. . . . The situation therefore is inherently different from marital intimacy, or 720

bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt, Griswold, Stanley, Loving, Skinner, Pierce, and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman’s privacy is no longer sole, and any right of privacy she possesses must be measured accordingly. Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that therefore the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer. . . . In areas other than criminal abortion the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. . . . [T]he unborn have never been recognized in the law as persons in the whole sense. In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes “compelling.” With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now established medical fact . . . that until the end of the first trimester mortality in abortion is less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to

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the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like. This means, on the other hand, that, for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that in his medical judgment the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State. With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period except when it is necessary to preserve the life or health of the mother. Measured against these standards, the Texas Penal Code, in restricting legal abortions to those “procured or attempted by medical advice for the purpose of saving the life of the mother,” sweeps too broadly. The statute makes no distinction between abortions performed later, and it limits to a single reason, “saving” the mother’s life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here. . . . Affirmed in part and reversed in part. [The concurring opinions of CHIEF JUSTICE BURGER and JUSTICES DOUGLAS and STEWART are not reprinted here.] JUSTICE REHNQUIST, dissenting: The Court’s opinion brings to the decision of this troubling question both extensive historical fact and a wealth of legal scholarship. While its opinion thus commands my respect, I find myself nonetheless in fundamental disagreement with those parts of it which invalidate the Texas statute in question, and therefore dissent. . . .

I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. Texas by the statute here challenged bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” which the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution which the Court has referred to as embodying a right of privacy. If the Court means by the term “privacy” no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of “liberty” protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of JUSTICE STEWART in his concurring opinion that the “liberty,” against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, but only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit on legislative power to enact laws such as this, albeit a broad one. If the Texas statute were to prohibit an abortion even where the mother’s life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated supra. But the Court’s sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors which the Court’s opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one. The Court eschews the history of the Fourteenth Amendment in its reliance on the “compelling state interest” test. But the Court adds a new wrinkle to this test by transposing it from the legal considerations associated with the Equal Protection Clause of the Fourteenth Amendment to this case arising under the Due Process Clause of the Fourteenth Amendment. Unless I misapprehend the consequences of this transplanting of the “compelling state interest test,” the Privacy and Individual Rights in Varied Contexts

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Court’s opinion will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it. While the Court’s opinion quotes from the dissent of JUSTICE HOLMES in Lockner v. New York (1905), the result it reaches is more closely attuned to the majority opinion of JUSTICE PECKHAM in that case. As in Lockner and similar cases applying substantive due process standards to economic and social welfare legislation, the adoption of the compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be “compelling.” The decision here to break the term of pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment. The fact that a majority of the States, reflecting after all the majority sentiment in those States, have had restrictions on abortions for at least a century seems to me as strong an indication there is that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellants would have us believe. . . .

PRIVACY IN VARIED CONTEXTS: SEXUAL ORIENTATION, SEXUAL HARASSMENT, THE RIGHT TO DIE, AND SO ON FEATURED CASES

Oncale v. Sundowner Offshore Services, Inc.; Boy Scouts of America v. Dale; Lawrence v. Texas; Washington v. Glucksberg The notion of privacy has also been present in other contexts. Take, for example, the issues in Public Utilities Commission v. Pollak (343 U.S. 451, 1952). Here the Capital Transit Company, with the approval of the Public Utilities Commission of the District of Columbia, arranged with an FM radio station for special programs to be piped in over a streetcar radio. The special programs consisted of about 90 percent music, 5 percent news announce722

ments, and 5 percent commercial advertisements. Two passengers thought that this practice infringed on their constitutional right of privacy under the Fifth Amendment. But Justice Burton, speaking for the Court majority, said: “This position wrongly assumes that the Fifth Amendment secures to each passenger on a public vehicle regulated by the Federal Government a right of privacy substantially equal to the privacy to which he is entitled in his own home. However complete his right of privacy may be at home, it is substantially limited by the rights of others when its possessor travels on a public thoroughfare or rides in a public conveyance.”

Justice Douglas dissented, and Justice Black dissented in part. Justice Frankfurter did not participate in the case because “[his] feelings [were] so strongly engaged as a victim of the practice in controversy. . . .” Justice Douglas’s dissent emphasized “the right to be let alone,” which he argued “is . . . the beginning of all freedom.” He said: “The present case involves a form of coercion to make people listen. The listeners are of course in a public place; they are on streetcars, traveling to and from home. In one sense it can be said that those who ride streetcars do so voluntarily. Yet in a practical sense they are forced to ride, since this mode of transportation is today essential for many thousands. Compulsion which comes from circumstances can be as real as compulsion which comes from a command. . . . When we force people to listen to another’s ideas, we give the propagandist a powerful weapon. . . . Once a man is forced to submit to one type of radio program, he can be forced to submit to another. It may be but a short step from a cultural program to a political program.”

Twenty-two years later, Justice Douglas saw his Pollak dissent largely vindicated by the Court in Lehman v. City of Shaker Heights (418 U.S. 298, 1974). Here the Court upheld the constitutionality of a transit system’s advertising policy that provided space for commercial ads and public service messages but not for political advertising. In his plurality opinion, Justice Blackmun said that the decision to forbid political advertising was a “managerial decision . . . little different from deciding to impose a 10-, 25-, or 35-cent fare or from changing schedules or the location of bus stops.” The selling of advertisement space was incidental to the company’s primary function, and the ban served to avoid administrative problems such as space allocations

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to different political candidates, the public impression of favoritism toward a particular candidate, and the invasion of privacy of the transit company’s passengers. Addressing the equal protection question, Justice Blackmun found the objectives of the political advertisement prohibition to be “reasonable legislative objectives”; hence, discrimination between nonpolitical and political advertising was justified. Justice Douglas gave the judgment a fiveperson majority, but he would have reached the conclusion entirely on the basis of the “captive audience” and “right to privacy” arguments reminiscent of his dissent in Pollak. Dissenting, Justice Brennan argued that principles of free speech and equal protection prohibited discrimination solely on the basis of content. How much privacy can a person have in his or her own home? The door-to-door canvasser has long been an irritant to the late sleeper, the night-shift worker, or the person who just wants to be let alone. Some, but not all, door-to-door canvassing seems to be protected by the First Amendment. Noncommercial canvassing, for example, came within the First Amendment guarantees in Martin v. Struthers (319 U.S. 141, 1943). Here the Court was faced with an ordinance that made it unlawful: “for any person distributing handbills, circulars, or other advertisements to ring the doorbell, sound the doorknocker, or otherwise summon the inmate or inmates to the door for the purpose of receiving such handbills, circulars, or other advertisements they or any person with them may be distributing.”

When a Jehovah’s Witness was convicted under this ordinance for distributing advertisements for a religious meeting, the Supreme Court declared the ordinance to be invalid as a denial of free speech and press. Justice Black delivered the opinion for the 5–4 majority. Justices Reed, Roberts, and Jackson dissented. On the other side of the ledger, some Court decisions suggested that commercial canvassing is clearly subject to local regulation (Breard v. Alexandria, 341 U.S. 622, 1951; Bunger v. Green River, 300 U.S. 638, 1937; Green River v. Bunger, 58 P.2d 456). The Court held to this view in Breard despite the free speech and free press problem that had been raised by an Alexandria, Louisiana, city ordinance against door-to-door commercial canvassing as applied in this instance to magazine solicitors. Justice Reed, who had dissented in Struthers, now spoke for the Court majority in Breard. To Reed, the

constitutionality of the ordinance turned on “a balancing of the conveniences between some householders’ desires for privacy and the publisher’s right to distribute publications in the precise way that those soliciting for him think brings the best results.” But Justice Black dissented in an opinion joined by Justice Douglas, stating that “[t]he constitutional sanctuary for the press must necessarily include liberty to publish and circulate . . . In view of our economic system, it must also include freedom to solicit paying subscribers.” In recent years, the Black–Douglas position has come to represent the prevailing view of the Court. Indeed, the noncommercial/commercial distinction suggested in Struthers and Breard appears now to be all but obliterated. (See Bigelow v. Virginia, 1975; and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 1976.) The Court has also considered privacy in the context of other First Amendment issues, including the matter of obscenity. The Court decision in Stanley v. Georgia (394 U.S. 557, 1969) seems to have turned primarily on the right of privacy. Here the Court upheld the right of the private possession of obscene materials for private use in one’s home. (See the general discussion on obscenity in Chapter 4.) Another interesting case involving obscenity and the right of privacy was Supreme Court in Rowan v. United States Post Office Department (397 U.S. 728, 1970), in which the right to be let alone versus the right to communicate (under the First Amendment) was before the Court. At issue was a provision of the Postal Revenue and Salary Act of 1967 under which householders could insulate themselves from advertisements that offer for sale “matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative.” After an addressee gives notice of having received ads that he or she believes to be within this statutory category and states a desire not to receive them, the postmaster general is obliged to order the sender “to refrain from other mailings” to that addressee. The postmaster general must also order the sender to delete the addressee’s name from all mailing lists owned or controlled by the sender and prohibit the sender from selling or renting any mailing lists that include the addressee’s name. A federal district court upheld the act, construing it to prohibit future mailings that are similar to the ones originally sent to the addressee. Chief Justice Burger, speaking for the Court, gave the act a more Privacy and Individual Rights in Varied Contexts

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restrictive scope, but upheld its constitutionality. He found that the act’s purpose was “to allow the addressee complete and unfettered discretion in electing whether or not he desired to receive further material from a particular sender.” By focusing on the prohibition of any further mailings rather than of similar mailings, Burger relieved the addressee of the “further burdens of scrutinizing the [sender’s] mail for objectionable material” and avoided a situation that “would interpose the Postmaster General between the sender and the addressee and, at the least, create the appearance if not the substance of governmental censorship.” Thus, Burger held that the statute did not violate the sender’s constitutional right to communicate. “Without doubt,” he concluded, “the public postal system is an indispensable adjunct of every civilized society and communication is imperative to a healthy social order. But the right of every person ‘to be let alone’ must be placed on the scales with the right of others to communicate.” The notion of the right of privacy was also involved in the New York Times v. Sullivan sequence of cases concerning damage to one’s reputation and defamation of character. Particular attention should be called to Time, Inc. v. Hill (385 U.S. 374, 1967), in which the Court in effect held that the right of privacy under a New York privacy statute was insufficient to overcome the free press and speech guarantees of the First Amendment. The right of privacy has also been discussed in the context of family life and family living arrangements. For example, in Moore v. East Cleveland (431 U.S. 494, 1977), the Court held invalid a housing ordinance that restricted occupancy to single families and defined “family” in such a way as to prevent two grandsons of the appellant from living with her. (Cf. Village of Belle Terre v. Boraas, 416 U.S. 1, 1974, which upheld an ordinance on the types of unrelated individuals that could occupy a single dwelling unit.) Justice Powell announced the judgment of the Court and wrote an opinion that was joined by Justices Brennan, Marshall, and Blackmun. Powell said that the ordinance on its face “selects certain categories of relatives who may live together and declares that others may not,” in this instance “making it a crime for a grandmother to live with a grandson.” Powell noted the “intrusive” nature of the ordinance and said that the Court “had long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the . . . Fourteenth Amendment.” Under such circumstances, Powell 724

said, the Court “must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the regulation.” After doing so, Powell found the ordinance to be unconstitutional and indicated that it serves “marginally, at best,” the objectives cited by the city— preventing overcrowding, minimizing traffic and parking congestion, and avoiding an undue financial burden on East Cleveland’s school system. Does a uniformed police officer have a right of privacy to his personal appearance when his choices conflict with a police regulation that prescribes the “style and length” of a male police officer’s hair? In Kelly v. Johnson (425 U.S. 238, 1976), the Court held that such a police regulation did not infringe any “liberty” interest protected by the Fourteenth Amendment. Justice Rehnquist, who spoke for the Court, distinguished Kelly from Roe, Eisenstadt, and Griswold. “Each of those cases,” said Rehnquist, “involved a substantial claim of infringement on the individual’s freedom of choice with respect to certain basic matters of procreation, marriage, and family life.” Moreover, continued Rehnquist, the respondent seeks “the protection of the Fourteenth Amendment, not as a member of the citizenry at large, but on the contrary as an employee of the police department. . . .” Given the importance of the law enforcement function, and the relation of organization, dress, and equipment to that function, Rehnquist concluded that “the regulation . . . did not violate any right guaranteed by the Fourteenth Amendment.” Justice Marshall, joined by Justice Brennan, issued a sharp dissent: “To say that the liberty guarantee of the Fourteenth Amendment does not encompass matters of personal appearance would be fundamentally inconsistent with the values of privacy, self-identity, autonomy, and personal integrity that I have always assumed the Constitution was designed to protect.”

In general, the recent clamor to “return the country to law and order” has also increased pressures on those who champion the right of privacy. Official actions designed to stop “coddling” criminals and protect society (such as “stop and frisk” searches, the use of undercover agents, bugging, wiretapping, and other measures) certainly portend to collide sooner or later with the right of privacy. Issues that are related to the right of privacy are raised especially by those who see a relationship between law and order

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and the need to maintain certain moral standards. Much of this controversy concerns “morals” legislation that involves “crimes without victims” (such as prostitution, homosexual relations among consenting adults, adultery, and abortion). There is no consensus on whether such activities should be “crimes” and thus subject to criminal penalties, or whether they should be primarily left to matters of individual choice. Obviously, it is with respect to these “crimes without victims” that the “right of privacy” is more forcefully raised. Indeed, some “victims” of such “victimless” crimes (e.g., homosexuals) are no longer willing to accept the verdict imposed by restrictive “morals” legislation, and they now openly organize to protect their rights. But in 1986, gay rights were dealt a setback when the Supreme Court, in Bowers v. Hardwick (478 U.S. 186, 1986), decided that the constitutional right of privacy did not include homosexual sodomy. The Court in fact limited the constitutional right of privacy to cover activities that manifested a connection to “family, marriage or procreation,” and it accepted the right of a state to pass legislation reflecting a set of moral beliefs. In doing so, the Court explicitly distinguished among “victimless” activities, and grouped homosexual behavior with such restricted activities as the possession and use of illegal drugs, adultery, and incest. Moreover, the Court acknowledged that about twenty-five States had statutes restricting sodomy, thus undercutting the argument that sodomy was historically accepted in the United States. Nearly ten years after its decision in Hardwick, the Court struck yet another blow against laws that were viewed as discriminating against homosexuals. In Romer v. Evans (1996), the majority struck down an amendment to the Colorado state constitution that had been adopted by a statewide referendum. This amendment, known as Amendment 2, stated: “. . . Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. . . .”

In Romer, the majority found that Amendment 2 did not meet even the “rational basis” level of

scrutiny and thus that it violated the equal protection clause of the Fourteenth Amendment. Clearly, the Court’s decision in Romer will have a lasting effect on public policy affecting homosexual rights. Over a decade before Romer, a unanimous Court had held in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986) that Title VII of the Civil Rights Act of 1964 prohibits “sexual harassment” in the workplace. And two years after Romer, in 1998, a unanimous Court held in Oncale v. Sundowner Offshore Services, Inc. (523 U.S.75, 1998) that sex discrimination consisting of same-sex sexual harassment is also actionable under Title VII. Writing for the Court in Oncale, Justice Scalia called for a “common sense” approach in determining “an appropriate sensitivity to social context,” to “enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person . . . would find severely hostile or abusive.” On balance, Hardwick, Romer, and Oncale suggested that the battle over homosexual rights, and sexual harassment generally, is far from over. In 2000, the Supreme Court held in Boy Scouts of America v. Dale that homosexuals may be excluded from the Boy Scouts under the latter’s First Amendment right to “expressive association.” (See Chapter 5.) In 2003, the Court moved a step closer to protecting homosexual sodomy—but not under the right of privacy. As described in the Court in Lawrence v. Texas (539 U.S. 558), Houston police officers responded to a reported weapons disturbance in a private residence. They entered petitioner Lawrence’s apartment and saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. The petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute that forbade two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held, inter alia, that the statute was not unconstitutional under the due process clause of the Fourteenth Amendment. The Court considered Bowers v. Hardwick, 478 U.S. 186, to be controlling on that point. However, the Supreme Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the due process clause. In another context, the regulation of so-called victimless activity entered a new area in 1990. In Privacy and Individual Rights in Varied Contexts

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Cruzan v. Missouri (110 S. Ct. 2841, 1990), the Supreme Court had to decide whether a comatose individual had a constitutional right to be free of governmental interference that maintained her on life-support technology. In denying the patient’s “right to die” by being removed from life support, the Court upheld Missouri’s interest in requiring “clear and convincing” evidence of the patient’s wishes, something that was not furnished by her family. Justice Brennan, in dissent, argued that the individual’s right to be free from governmental interference was impermissibly burdened by the procedural obstacles of evidence that the state had put in place. In reaction, Justice Scalia’s concurrence made it clear that this field, like abortion, was yet another one that the Supreme Court should not enter. The turmoil over “physician-assisted suicide” ushered in yet another highly explosive round in the right-to-die controversy before the Court in 1997. Whether terminally ill persons have a constitutional right to commit suicide with their physician’s help captured the attention of the U.S. Supreme Court in Washington v. Glucksberg, 117 S. Ct. 2258 (1997). In Glucksberg, four Washington state physicians brought suit in the U.S. District Court on the behalf of three terminally ill patients. Essentially, the issue before the Court was whether Washington Revised Code § 9A.36.060, which prohibits causing or aiding in a suicide, violates the due process clause of the Fourteenth Amendment. Glucksberg was consolidated with a New York case, Vacco v. Quill, that raised a similar constitutional question. Writing for the Court in Glucksberg, Chief Justice Rehnquist upheld the Washington statute and provided an extensive examination of “our Nation’s history” which concluded that “legal traditions, and practices . . .” have prohibited assisting suicides “for over 700 years.” The 1995 case of Vernonia School District 47J v. Acton helps to further define the nature and scope of the right of privacy under the Constitution. In Vernonia the Court considered the validity under the Fourth and Fourteenth Amendments of a public school district policy (the Student Athlete Drug Policy) that authorized random urinalysis drug testing of students who participated in the District’s school athletics programs.

PRIVACY AND CONGRESSIONAL LEGISLATION Although our focus here has been mainly on the judiciary system, we should mention pertinent actions 726

in other governmental arenas. For example, in an apparent response to revelations made during the Watergate hearings, Congress attempted to protect citizens’ privacy by passing the Privacy Act of 1974. As enacted, the law provides individuals with access to personal information about themselves that may be contained in agency files. It authorizes people to challenge such information and to seek injunctive relief if necessary to correct or amend what is contained in the files. Except as authorized by statute or approval by the individual, or as pursuant to an official law enforcement activity, the Privacy Act also prohibits government agencies from keeping records that describe an individual’s exercise of his or her rights under the First Amendment. Moreover, it forbids agencies that maintain files for one purpose to make such files available to other agencies for a second purpose without the consent of the individual involved. In addition, the act requires federal agencies to keep records only if they are lawful and necessary, as well as current and accurate. Agencies must also disclose the existence of all their data banks and files that contain information on individuals. Also in 1974, Congress overrode a presidential veto and passed the Freedom of Information Act Amendments. In effect, the amendments are designed to overcome certain deficiencies in the Freedom of Information Act of 1966 by increasing public access to government information. For example, although classified materials remain exempt, the amendments tighten the reins on government agencies that improperly classify or otherwise restrict public access to information. Under the 1974 provisions, federal judges may review, in camera, contested agency decisions to determine whether the classification of certain documents is appropriate within the terms of the legislation. The 1974 amendments also set definite time limits within which agencies must respond to requests for information. Congress also passed the Family Educational Rights and Privacy Act of 1974. Essentially, the law was designed to protect the confidentiality and privacy of student records in educational institutions. It required educational institutions to allow parents or students over the age of eighteen to see student files. Further, such institutions were required to obtain the consent of parents or students before they released information in student files to third parties. Certain clarifying amendments to the law were subsequently made to sharpen and further delineate provisions on the disclosure of student records.

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The 1978 Supreme Court decision in Zurcher v. Stanford Daily (436 U.S. 547) spurred Congress to pass additional privacy legislation in 1980. Referred to as the Privacy Protection Act of 1980, the law was designed to overcome the Zurcher ruling, which held that the Constitution posed no barrier to police officials’ use of warrants to make unannounced searches of newspaper offices for evidence. The third-party search had been made pursuant to a warrant in a situation where state authorities had “probable cause” to believe that relevant evidence was located in the Stanford Daily’s office, although neither the newspaper nor its reporters were suspected of criminal activity. The Court decision sparked sharp protests and broad concern not only from newspapers and news organizations, but from other professional groups (lawyers, physicians, and psychiatrists) who thought that their confidential records and relationships with clients could be jeopardized by the decision.2 Although the search was found to be constitutional, the Court in Zurcher nonetheless contemplated that future legislation might be passed to prohibit such searches. In its opinion, the Court said: “Of course, the Fourth Amendment does not prevent or advise against legislative or executive efforts to establish nonconstitutional protections against possible abuses of the search warrant procedure, but we decline to reinterpret the Amendment to impose a general constitutional barrier against warrants to search newspaper premises, to require resort to subpoenas as a general rule, or to demand prior notice and hearing in connection with the issuance of search warrants.”

Thus, the Privacy Protection Act of 1980 may be viewed as an attempt to establish these “non-constitutional protections.” The act bars federal, state, and local law enforcement officers from searching and seizing documentary materials from news organizations and others who are engaged in First Amendment activities. Moreover, the law prohibits such officials from using warrants to search newsrooms and offices of other organizations that are working in the First Amendment area. Rather than using warrants, which are generally executed without prior warning, law enforcement officials must now go to court and obtain subpoenas requiring certain mate2 For example, see the views of the American Medical Association, the American Psychiatric Association, and the City Bar of New York in Hearings on the Privacy Protection Act, Comm. on the Judiciary, 96th Cong., 2d Sess., on S. 115., S. 1790, and S. 1816, March 28, 1980.

rials to be produced by those holding them. Subpoenas are generally viewed as less intrusive and may be challenged in court before they are enforced. To be sure, the law provides several exceptions to the new subpoena rule, for example, if there is reason to believe that giving notice of a subpoena would result in the destruction, alteration, or concealment of the materials in question. The law also mandates the attorney general to issue guidelines and procedures for federal officials to use in searches for evidence that is held by people who are not suspected of crime nor working in First Amendment areas. This provision and the resulting guidelines may serve to quiet the concerns of medical groups and others about protecting confidential and privileged relationships.

THE ISSUE OF PRIVACY: A CONCEPTUAL FRAMEWORK Privacy, as this brief overview demonstrates, is a somewhat amorphous, elusive issue. It is hard to harness and understand. However, in their 1976 work The Right to Privacy, P. Allan Dionisopoulos and Craig Ducat have provided “three conceptual cores about which the doctrine might usefully be spun.”3 The first of these “conceptual cores” or contexts is “place-oriented conceptions of privacy,” or “privacy that inheres in the place or property.” This definition, of course, expresses the right of privacy in spatial terms: One’s home is one’s castle. In this regard, the Fourth Amendment was used to carve out certain “constitutionally protected areas,” such as those exemplified by the Court in the Olmstead line of cases (Olmstead v. U.S., 277 U.S. 438, 1928). Other examples of “privacy inhering in the place” are illustrated by court decisions such as Stanley v. Georgia, Public Utilities Commission v. Pollak, and Erznoznik v. City of Jacksonville (422 U.S. 205, 1975). The second conceptual core or context in which privacy may be viewed is referred to by Dionisopoulos and Ducat as “person-oriented conceptions of privacy,” or “privacy inhering in the person.” Here the attempt is to “define the right of privacy in terms of the person.” In short, the emphasis is shifted from place or property to the person involved. Supreme Court decisions that exemplify this “person-oriented” conception of privacy include the abortion cases, as well as Time, Inc. v. Hill, Kelly v. Johnson, and Schmerber v. California (384 U.S. 757, 1966). 3

Materials in this section are based largely on their book.

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Just as in the other conceptual cores, a number of lower court decisions exemplify this person-oriented conception of privacy. One of the most complicated and touching cases in this regard addressed whether a person in a persistent moribund state of life, such as Karen Quinlan, had a “right to die.” (See Matter of Quinlan, 355 A.2d 647, 1976.) Another interesting and well-publicized situation was that of freelance photographer Ronald Galella, whose tactics in attempting to photograph Jacqueline Onassis (formerly Mrs. John F. Kennedy) and her minor children led to litigation that imposed certain restrictions on Galella’s activities. Mrs. Onassis charged, among other things, that Galella’s activities constituted harassment and an invasion of privacy (Galella v. Onassis, 353 F. Supp. 196, 1972; 487 F.2d 986, 1973). Finally, a New Jersey court held that “surrogate mother” contracts were void against the public policy of the state (In the Matter of Baby M, 537 A.2d 1227, 1988). In that case, William Stern and Mary Beth Whitehead had entered into a contract in which Whitehead was artificially inseminated with Stern’s sperm in an effort to produce a child for the Sterns. The conflict arose out of Whitehead’s refusal to abide by the contract and give up the child as the contract required. Although the contract was void, the court awarded custody of the child to the father with visitation rights for Whitehead. To be sure, the legal and social issues of this case are complex. However, with advances in medical technology, reproductive rights issues will create a host of problems that will present the Supreme Court with profound questions about person-oriented rights of privacy in future years. The third conceptual context suggested by Dionisopoulos and Ducat for analyzing privacy has to do with how the right “inheres in certain relationships.” Some of these relationships enjoy special constitutional and legal protections, such as the marital relationship in Griswold v. Connecticut (381 U.S. 479, 1965). But others may not enjoy such protection, such as same-sex marriages (Singer v. Hara, 522 P.2d 1187, 1974) and homosexuality (Doe v. Commonwealth’s Attorney for City of Richmond, 403 F. Supp. 1199, 425 U.S. 901, 1976. Also see Bd. 4 For a perceptive analysis of the constitutional basis on which more protection should be afforded certain groups, see Jose Gomez, “The Public Expression of Lesbian/Gay Personhood as Protected Speech,” 1 Law and Inequality 121 (1983). 5 See Rubenfeld, “The Right of Privacy,” 102 Harvard Law Review 737 (1989).

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of Ed. of Okla. City v. Nat’l Gay Rights Task Force, 729 F.2d 1270; 105 S. Ct. 1858, 1985.).4 In Bowers v. Hardwick (1986), the Court explicitly upheld for the first time state criminal laws outlawing consensual sexual conduct between homosexuals. The Court held that such conduct is not protected by the constitutional right of privacy. In general, these three conceptual cores suggested by Dionisopoulos and Ducat provide a more tangible framework by which to analyze the right of privacy. But it remains to be seen whether this or any other framework can lead us or the Court to better assess the increasing problems of privacy in a constitutional context. In this regard, Jed Rubenfeld has suggested an interesting and undoubtedly provocative framework by which to understand the right of privacy.5 Rather than using the concept of “privacy” to justify the restraints on government conduct, as in the constitutional prohibition on laws banning abortion, he suggests that we consider the right to privacy in terms of what the law brings about “affirmatively.” Laws implicate privacy because of their consequences for shaping the course of a person’s life. Moreover, because the conflicts over the scope of the right of privacy usually cluster around sexual expression in such matters as contraception, abortion, and sexual orientation, they touch the very essence of defining one’s personhood. Thus laws that force people along certain paths, such as bearing children, are deemed totalitarian in nature and against our shared conception of government. This “path-shaping” view of the law that privacy seeks to limit may have profound implications for our reading of various of the Supreme Court holdings discussed here. Under this conception, the self-determination of one’s life path would argue that women should have complete control over their reproductive destiny, whether in terms of abortion or surrogate motherhood, that homosexuals should have complete control over their sexual expression, and that terminally ill patients should have complete control over their right to refuse treatment. One might argue that the state, in this scheme, is obligated not to interfere until requested to do so. Although this underpinning idea of self-determination has intuitive appeal, we have seen in a variety of chapters in this book that one’s behavior, no matter how self-fulfilling, influences and affects the destinies of others. In this context, it is useful to consider the limits of individualism and the rule of law.

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ONCALE V. SUNDOWNER OFFSHORE SERVICES, INC. 523 U.S. 75 (1998) JUSTICE SCALIA delivered the opinion for a unanimous Court. JUSTICE THOMAS filed a concurring opinion. JUSTICE SCALIA delivered the opinion for a unanimous Court. This case presents the question whether workplace harassment can violate Title VII’s prohibition against “discriminat[ion] . . . because of . . . sex,” . . . when the harasser and the harassed employee are of the same sex. I . . . In late October 1991, Oncale was working for respondent Sundowner Offshore Services on a Chevron U.S.A., Inc., oil platform in the Gulf of Mexico. He was employed as a roustabout on an eight-man crew which included respondents John Lyons, Danny Pippen, and Brandon Johnson. Lyons, the crane operator, and Pippen, the driller, had supervisory authority. . . . On several occasions, Oncale was forcibly subjected to sex related, humiliating actions against him by Lyons, Pippen and Johnson in the presence of the rest of the crew. Pippen and Lyons also physically assaulted Oncale in a sexual manner, and Lyons threatened him with rape. Oncale’s complaints to supervisory personnel produced no remedial action; in fact, the company’s Safety Compliance Clerk, Valent Hohen, told Oncale that Lyons and Pippen “picked [on] him all the time too,” and called him a name suggesting homosexuality. . . . Oncale eventually quit—asking that his pink slip reflect that he “voluntarily left due to sexual harassment and verbal abuse.”. . . When asked at his deposition why he left Sundowner, Oncale stated “I felt that if I didn’t leave my job, that I would be raped or forced to have sex.”. . . Oncale filed a complaint against Sundowner in the United States District Court for the Eastern District of Louisiana, alleging that he was discriminated against in his employment because of his sex.

II Title VII of the Civil Rights Act of 1964 provides, in relevant part, that “[i]t shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”. . . We have held that this not only covers “terms” and “conditions” in the narrow contractual sense, but “evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment.” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986). . . . “When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). . . . Title VII’s prohibition of discrimination “because of . . . sex” protects men as well as women, Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682 (1983), and in the related context of racial discrimination in the workplace we have rejected any conclusive presumption that an employer will not discriminate against members of his own race. “Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of that group.” Castaneda v. Partida, 430 U.S. 482, 499 (1977). . . . In Johnson v. Transportation Agency, Santa Clara Cty., 480 U.S. 616 (1987), a male employee claimed that his employer discriminated against him because of his sex when it preferred a female employee for promotion. Although we ultimately rejected the claim on other grounds, we did not consider it significant that the supervisor who made that decision was also a man. . . . If our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars a claim of discrimination “because of . . . sex” merely because the plaintiff and the defendant (or the person charged with acting on behalf of the Privacy and Individual Rights in Varied Contexts

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defendant) are of the same sex. Courts have had little trouble with that principle in cases like Johnson, where an employee claims to have been passed over for a job or promotion. But when the issue arises in the context of a “hostile environment” sexual harassment claim, the state and federal courts have taken a bewildering variety of stances. ... We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, maleon-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements. Respondents and their amici contend that recognizing liability for same-sex harassment will transform Title VII into a general civility code for the American workplace. But that risk is no greater for same-sex than for opposite-sex harassment, and is adequately met by careful attention to the requirements of the statute. Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at “discriminat[ion] . . . because of . . . sex.” We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” Harris. . . . Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was 730

homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sexspecific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted “discrimina[tion] . . . because of . . . sex.” And there is another requirement that prevents Title VII from expanding into a general civility code: As we emphasized in Meritor and Harris, the statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the “conditions” of the victim’s employment. “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview.”. . . Harris . . . citing Meritor. . . . We have always regarded that requirement as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace—such as male-on-male horseplay or intersexual flirtation—for discriminatory “conditions of employment.” We have emphasized, moreover, that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering “all the circumstances.” Harris. . . . In same-sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field—even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office. The real social impact of workplace behavior often depends on a constellation of surrounding

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circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff’s position would find severely hostile or abusive. III Because we conclude that sex discrimination consisting of same-sex sexual harassment is actionable

under Title VII, the judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE THOMAS, concurring: I concur because the Court stresses that in every sexual harassment case, the plaintiff must plead and ultimately prove Title VII’s statutory requirement that there be discrimination “because of . . . sex.”

LAWRENCE ET AL. V. TEXAS 539 U.S. 558 (2003) J USTICE K ENNEDY delivered the opinion of the Court, in which J USTICES S TEVENS , S OUTER , GINSBURG, and BREYER joined. JUSTICE O’CONNOR filed an opinion concurring in the judgment. J USTICE S CALIA filed a dissenting opinion, in which C HIEF J USTICE R EHNQUIST and J USTICE THOMAS joined. JUSTICE THOMAS filed a dissenting opinion. JUSTICE KENNEDY delivered the opinion of the Court. Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody over night, and charged and convicted before a Justice of the Peace. The complaints described their crime as “deviate sexual intercourse, namely anal sex, with a member of the same sex (man).” App. to Pet. for Cert. 127a, 139a. The applicable state law is Tex. Penal Code Ann. §21.06(a) (2003). It provides: “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.” The statute defines “[d]eviate sexual intercourse” as follows:

I

“(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or “(B) the penetration of the genitals or the anus of another person with an object.” §21.01(1).

The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.

The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment Privacy and Individual Rights in Varied Contexts

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and of a like provision of the Texas Constitution. Tex. Const., Art. 1, §3a. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere, were each fined $200 and assessed court costs of $141.25. App. to Pet. for Cert. 107a–110a. The Court of Appeals for the Texas Fourteenth District considered the petitioners’ federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. 41 S. W. 3d 349 (Tex. App. 2001). The majority opinion indicates that the Court of Appeals considered our decision in Bowers v. Hardwick, 478 U.S. 186 (1986), to be controlling on the federal due process aspect of the case. Bowers then being authoritative, this was proper. We granted certiorari, 537 U.S. 1044 (2002), to consider three questions: “1. Whether Petitioners’ criminal convictions under the Texas “Homosexual Conduct” law—which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples—violate the Fourteenth Amendment guarantee of equal protection of laws? “2. Whether Petitioners’ criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? “3. Whether Bowers v. Hardwick, 478 U.S. 186 (1986), should be overruled?” Pet. for Cert. i.

The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual. II We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court’s holding in Bowers. There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 U.S. 390 (1923); but the most pertinent beginning point is our decision in Griswold v. Connecticut, 381 U.S. 479 (1965). 732

In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom. Id., at 485. After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird, 405 U.S. 438 (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, id., at 454; but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights, ibid. It quoted from the statement of the Court of Appeals finding the law to be in conflict with fundamental human rights, and it followed with this statement of its own: “It is true that in Griswold the right of privacy in question inhered in the marital relationship. . . . If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Id., at 453.

The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade, 410 U.S. 113 (1973). As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other States were affected as well. Although the Court held the woman’s rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person. In Carey v. Population Services Int’l, 431 U.S. 678 (1977), the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under sixteen years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be

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confined to the protection of rights of married adults. This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers v. Hardwick. The facts in Bowers had some similarities to the instant case. A police officer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male. The conduct was in violation of a Georgia statute making it a criminal offense to engage in sodomy. One difference between the two cases is that the Georgia statute prohibited the conduct whether or not the participants were of the same sex, while the Texas statute, as we have seen, applies only to participants of the same sex. Hardwick was not prosecuted, but he brought an action in federal court to declare the state statute invalid. He alleged he was a practicing homosexual and that the criminal prohibition violated rights guaranteed to him by the Constitution. The Court, in an opinion by JUSTICE WHITE, sustained the Georgia law. CHIEF JUSTICE BURGER and JUSTICE POWELL joined the opinion of the Court and filed separate, concurring opinions. . . . . The Court began its substantive discussion in Bowers as follows: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.” Id., at 190. That statement, we now conclude, discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent in-

jury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: “Proscriptions against that conduct have ancient roots.” Id., at 192. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. Brief for Cato Institute as Amicus Curiae 16–17; Brief for American Civil Liberties Union et al. as Amici Curiae 15–21; Brief for Professors of History et al. as Amici Curiae 3–10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance. At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. . . . See, e.g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting “mankind” in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime against-nature statutes as criminalizing certain relations between men and women and between men and men. . . . The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late nineteenth century. See, e.g., J. Katz, The Invention of Heterosexuality 10 (1995); J. D’Emilio & E. Freedman, Intimate Matters: A History of Privacy and Individual Rights in Varied Contexts

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Sexuality in America 121 (2d ed. 1997) (“The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions”). Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons. Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. Thus the model sodomy indictments presented in a nineteenth-century treatise, see 2 Chitty, supra, at 49, addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of targeting relations between consenting adults in private, nineteenth century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals. To the extent that there were any prosecutions for the acts in question, nineteenth-century evidence rules imposed a burden that would make a conviction more difficult to obtain even taking into account the problems always inherent in prosecuting consensual acts committed in private. Under thenprevailing standards, a man could not be convicted of sodomy based upon testimony of a consenting partner, because the partner was considered an accomplice. A partner’s testimony, however, was admissible if he or she had not consented to the act or was a minor, and therefore incapable of consent. See, e.g., F. Wharton, Criminal Law 443 (2d ed. 1852); 1 F. Wharton, Criminal Law 512 (8th ed. 1880). The rule may explain in part the infrequency of these prosecutions. In all events that infrequency makes it difficult to say that society approved of a rigorous and systematic punishment of the consensual acts committed in private and by adults. The longstanding crimi734

nal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character. The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosecutions, there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing “ancient roots,” Bowers, 478 U.S., at 192, American laws targeting same-sex couples did not develop until the last third of the twentieth century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880–1995 are not always clear in the details, but a significant number involved conduct in a public place. See Brief for American Civil Liberties Union et al. as Amici Curiae 14–15, and n. 18. It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. See 1977 Ark. Gen. Acts no. 828; 1983 Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977 Mo. Laws p. 687; 1973 Mont. Laws p. 1339; 1977 Nev. Stats. p. 1632; 1989 Tenn. Pub. Acts ch. 591; 1973 Tex. Gen. Laws ch. 399; see also Post v. State, 715 P. 2d 1105 (Okla. Crim. App. 1986) (sodomy law invalidated as applied to differentsex couples). Post-Bowers even some of these States did not adhere to the policy of suppressing homosexual conduct. Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them. See, e.g., Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Gryczan v. State, 283 Mont. 433, 942 P. 2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992); see also 1993 Nev. Stats. p. 518 (repealing Nev. Rev. Stat. §201.193). In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by CHIEF JUSTICE BURGER indicate. Their historical premises are not without doubt and, at the very least, are overstated. It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices

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to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992). *** This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for “criminal penalties for consensual sexual relations conducted in private.” ALI, Model Penal Code §213.2, Comment 2, p. 372 (1980). It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail. ALI, Model Penal Code, Commentary 277–280 (Tent. Draft No. 4, 1955). In 1961 Illinois changed its laws to conform to the Model Penal Code. Other States soon followed. Brief for Cato Institute as Amicus Curiae 15–16. In Bowers the Court referred to the fact that before 1961 all fifty States had outlawed sodomy, and that at the time of the Court’s decision twenty-four States and the District of Columbia had sodomy laws. 478 U.S., at 192–193. JUSTICE POWELL pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. Id., at 197–198, n. 2 (“The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct”). The sweeping references by CHIEF JUSTICE BURGER to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British

Parliament recommended in 1957 repeal of laws punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations ten years later. Sexual Offences Act 1967, §1. Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today’s case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization. In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The twenty-five States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to thirteen, of which four enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales, 869 S. W. 2d 941, 943. Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, Privacy and Individual Rights in Varied Contexts

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are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid.

Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right. The second post-Bowers case of principal relevance is Romer v. Evans, 517 U.S. 620 (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado’s constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by “orientation, conduct, practices or relationships,” id., at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was “born of animosity toward the class of persons affected” and further that it had no rational relation to a legitimate governmental purpose. Id., at 634. As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants. Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in 736

question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons. The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. Just this Term we rejected various challenges to state laws requiring the registration of sex offenders. Smith v. Doe, 538 U.S. __ (2003); Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003). We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of a least four States were he or she to be subject to their jurisdiction. . . . This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example. The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer. When our precedent has been thus weakened, criticism from other sources is of greater significance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. See, e.g., C. Fried, Order and Law: Arguing the Reagan Revolution—A Firsthand Account 81–84 (1991); R. Posner, Sex and Reason 341–350 (1992). The courts of five different States have declined to follow it in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment, . . . *** The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Payne v. Tennessee, 501 U.S. 808, 828 (1991) (“Stare decisis is not an inexorable command; rather, it ‘is a principle of policy and not a mechanical formula of adherence to the latest decision’”) (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940))). In Casey we noted that when a Court is

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asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course. 505 U.S., at 855–856; see also id., at 844 (“Liberty finds no refuge in a jurisprudence of doubt”). The holding in Bowers, however, has not induced detrimental reliance comparable to some instances where recognized individual rights are involved. Indeed, there has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so. Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding. The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers JUSTICE STEVENS came to these conclusions: “Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.” 478 U.S., at 216 (footnotes and citations omitted).

JUSTICE STEVENS’ analysis, in our view, should have been controlling in Bowers and should control here. Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled. The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for

their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. JUSTICE O’CONNOR, concurring in the judgment. The Court today overrules Bowers v. Hardwick, 478 U.S. 186 (1986). I joined Bowers, and do not join the Court in overruling it. Nevertheless, I agree with the Court that Texas’ statute banning same-sex sodomy is unconstitutional. See Tex. Penal Code Ann. §21.06 (2003). Rather than relying on the substantive component of the Fourteenth Amendment’s Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment’s Equal Protection Clause. *** We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships. In Department of Agriculture v. Moreno, for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to “‘discriminate against hippies.’” 413 U.S., at 534. Privacy and Individual Rights in Varied Contexts

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The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review. Id., at 535–538. In Eisenstadt v. Baird, 405 U.S. 438, 447–455 (1972), we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne v. Cleburne Living Center, supra, we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences—like fraternity houses and apartment buildings—did not have to obtain such a permit. And in Romer v. Evans, we disallowed a state statute that “impos[ed] a broad and undifferentiated disability on a single named group”—specifically, homosexuals. 517 U.S., at 632. The dissent apparently agrees that if these cases have stare decisis effect, Texas’ sodomy law would not pass scrutiny under the Equal Protection Clause, regardless of the type of rational basis review that we apply. See post, at 17–18 (opinion of SCALIA, J.). The statute at issue here makes sodomy a crime only if a person “engages in deviate sexual intercourse with another individual of the same sex.” Tex. Penal Code Ann. §21.06(a) (2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by §21.06. The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct— and only that conduct—subject to criminal sanction. It appears that prosecutions under Texas’ sodomy law are rare. See State v. Morales, 869 S. W. 2d 941, 943 (Tex. 1994) (noting in 1994 that §21.06 “has not been, and in all probability will not be, enforced against private consensual conduct between adults”). This case shows, however, that prosecutions under §21.06 do occur. And while the penalty imposed on petitioners in this case was relatively minor, the consequences of conviction are not. As the Court notes, see ante, at 15, petitioners’ convictions, if upheld, would disqualify them from or restrict their ability to engage in a variety of professions, including medicine, athletic training, and interior design. See, e.g., Tex. Occ. Code Ann. §164.051(a)(2)(B) (2003 Pamphlet) (physician); §451.251 (a)(1) (athletic trainer); §1053.252(2) (interior designer). Indeed, were petitioners to move to one of four States, their 738

convictions would require them to register as sex offenders to local law enforcement. See, e.g., Idaho Code §18–8304 (Cum. Supp. 2002); La. Stat. Ann. §15:542 (West Cum. Supp. 2003); Miss. Code Ann. §45–33–25 (West 2003); S. C. Code Ann. §23–3–430 (West Cum. Supp. 2002); cf. ante, at 15. And the effect of Texas’ sodomy law is not just limited to the threat of prosecution or consequence of conviction. Texas’ sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else. Indeed, Texas itself has previously acknowledged the collateral effects of the law, stipulating in a prior challenge to this action that the law “legally sanctions discrimination against [homosexuals] in a variety of ways unrelated to the criminal law,” including in the areas of “employment, family issues, and housing.” State v. Morales, 826 S. W. 2d 201, 203 (Tex. App. 1992). *** This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. See, e.g., Department of Agriculture v. Moreno, supra, at 534; Romer v. Evans, 517 U.S., at 634–635. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons. Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be “drawn for the purpose of disadvantaging the group burdened by the law.” Id., at 633. Texas’ invocation of moral disapproval as a legitimate state interest proves nothing more than Texas’ desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating “a classification of persons undertaken for its own sake.” Id., at 635. And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law “raise[s] the inevitable inference that the

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disadvantage imposed is born of animosity toward the class of persons affected.” Id., at 634. Texas argues, however, that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas’ sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. “After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal.” Id., at 641 (SCALIA, J., dissenting) (internal quotation marks omitted). When a State makes homosexual conduct criminal, and not “deviate sexual intercourse” committed by persons of different sexes, “that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 14. Indeed, Texas law confirms that the sodomy statute is directed toward homosexuals as a class. In Texas, calling a person a homosexual is slander per se because the word “homosexual” “impute[s] the commission of a crime.” Plumley v. Landmark Chevrolet, Inc., 122 F. 3d 308, 310 (CA5 1997) (applying Texas law); see also Head v. Newton, 596 S. W. 2d 209, 210 (Tex. App. 1980). The State has admitted that because of the sodomy law, being homosexual carries the presumption of being a criminal. See State v. Morales, 826 S. W. 2d, at 202–203 (“[T]he statute brands lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law”). Texas’ sodomy law therefore results in discrimination against homosexuals as a class in an array of areas outside the criminal law. See ibid. In Romer v. Evans, we refused to sanction a law that singled out homosexuals “for disfavored legal status.” 517 U.S., at 633. The same is true here. The Equal Protection Clause “‘neither knows nor tolerates classes among citizens.’” Id., at 623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (HARLAN, J. dissenting)). A State can of course assign certain consequences to a violation of its criminal law. But the State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law. The Texas sodomy statute subjects homosexuals to “a lifelong penalty and stigma. A legislative classification that threatens the creation of an

underclass . . . cannot be reconciled with” the Equal Protection Clause. Plyler v. Doe, 457 U.S., at 239 (POWELL, J., concurring). Whether a sodomy law that is neutral both in effect and application, see Yick Wo v. Hopkins, 118 U.S. 356 (1886), would violate the substantive component of the Due Process Clause is an issue that need not be decided today. I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a law would not long stand in our democratic society. In the words of JUSTICE JACKSON: “The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected.” Railway Express Agency, Inc. v. New York, 336 U.S. 106, 112–113 (1949) (concurring opinion).

That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations—the asserted state interest in this case—other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group. A law branding one class of persons as criminal solely based on the State’s moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review. I therefore concur in the Court’s judgment that Texas’ sodomy law banning “deviate sexual intercourse” between consenting adults of the same sex, but not between consenting adults of different sexes, is unconstitutional. JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting. *** Privacy and Individual Rights in Varied Contexts

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JUSTICE THOMAS, dissenting. I join JUSTICE SCALIA’s dissenting opinion. I write separately to note that the law before the Court today “is . . . uncommonly silly.” . . . If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to “decide cases ‘agreeably to the Constitution and laws of the United States.’” And, just like JUSTICE STEWART, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions.”

WASHINGTON V. GLUCKSBERG 521 U.S. 702 (1997) CHIEF JUSTICE REHNQUIST delivered the opinion of the Court, in which JUSTICES O’CONNOR, SCALIA, KENNEDY, and THOMAS joined. JUSTICE O’CONNOR filed a concurring opinion, in which JUSTICES GINSBURG and BREYER joined in part. JUSTICES STEVENS, SOUTER, GINSBURG, and BREYER filed opinions concurring in the judgment.

a declaration that Wash Rev. Code 9A.36.060(1) (1994) is, on its face, unconstitutional. . . . The plaintiffs asserted “the existence of a liberty interest protected by the Fourteenth Amendment which extends to a personal choice by a mentally competent, terminally ill adult to commit physician assisted suicide.”. . .

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

...

The question presented in this case is whether Washington’s prohibition against “caus[ing]” or “aid[ing]” a suicide offends the Fourteenth Amendment to the United States Constitution. We hold that it does not. It has always been a crime to assist a suicide in the State of Washington. . .. Petitioners in this case are the State of Washington and its Attorney General. Respondents Harold Glucksberg, M.D., Abigail Halperin, M.D., Thomas A. Preston, M.D., and Peter Shalit, M.D., are physicians who practice in Washington. These doctors occasionally treat terminally ill, suffering patients, and declare that they would assist these patients in ending their lives if not for Washington’s assisted suicide ban. In January 1994, respondents, along with three gravely ill, pseudonymous plaintiffs who have since died and Compassion in Dying, a nonprofit organization that counsels people considering physician assisted suicide, sued in the United States District Court, seeking

. . . In almost every State—indeed, in almost every western democracy—it is a crime to assist a suicide. The States’ assisted suicide bans are not innovations. Rather, they are longstanding expressions of the States’ commitment to the protection and preservation of all human life. . . . (“[T]he States—indeed, all civilized nations—demonstrate their commitment to life by treating homicide as a serious crime. Moreover, the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide”); . . . (“[T]he primary and most reliable indication of [a national] consensus is . . . the pattern of enacted laws”). Indeed, opposition to and condemnation of suicide—and, therefore, of assisting suicide—are consistent and enduring themes of our philosophical, legal, and cultural heritages.

740

I

... Though deeply rooted, the States’ assisted suicide bans have in recent years been reexamined and,

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generally, reaffirmed. Because of advances in medicine and technology, Americans today are increasingly likely to die in institutions, from chronic illnesses. President’s Comm’n for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Deciding to Forego Life Sustaining Treatment 16–18 (1983). Public concern and democratic action are therefore sharply focused on how best to protect dignity and independence at the end of life, with the result that there have been many significant changes in state laws and in the attitudes these laws reflect. Many States, for example, now permit “living wills,” surrogate health care decisionmaking, and the withdrawal or refusal of life sustaining medical treatment. See Vacco v. Quill, . . . People v. Kevorkian, 447 Mich. 436, 478–480, . . . (1994). At the same time, however, voters and legislators continue for the most part to reaffirm their States’ prohibitions on assisting suicide. The Washington statute at issue in this case, Wash. Rev. Code § 9A.36.060 (1994), was enacted in 1975 as part of a revision of that State’s criminal code. Four years later, Washington passed its Natural Death Act, which specifically stated that the “withholding or withdrawal of life sustaining treatment . . . shall not, for any purpose, constitute a suicide” and that “[n]othing in this chapter shall be construed to condone, authorize, or approve mercy killing. . . .” In 1991, Washington voters rejected a ballot initiative which, had it passed, would have permitted a form of physician assisted suicide. Washington then added a provision to the Natural Death Act expressly excluding physician assisted suicide. . . . California voters rejected an assisted suicide initiative similar to Washington’s in 1993. On the other hand, in 1994, voters in Oregon enacted, also through ballot initiative, that State’s “Death With Dignity Act,” which legalized physician assisted suicide for competent, terminally ill adults. Since the Oregon vote, many proposals to legalize assisted suicide have been and continue to be introduced in the States’ legislatures, but none has been enacted. And just last year, Iowa and Rhode Island joined the overwhelming majority of States explicitly prohibiting assisted suicide. . . . Also, on April 30, 1997, President Clinton signed the Federal Assisted Suicide Funding Restriction Act of 1997, which prohibits the use of federal funds in support of physician assisted suicide. . . . Thus, the States are currently engaged in serious, thoughtful examinations of physician assisted suicide and other similar issues. For example, New York

State’s Task Force on Life and the Law—an ongoing, blue ribbon commission composed of doctors, ethicists, lawyers, religious leaders, and interested laymen—was convened in 1984 and commissioned with “a broad mandate to recommend public policy on issues raised by medical advances.” New York Task Force. . . . Over the past decade, the Task Force has recommended laws relating to end of life decisions, surrogate pregnancy, and organ donation. . . . After studying physician assisted suicide, however, the Task Force unanimously concluded that “[l]egalizing assisted suicide and euthanasia would pose profound risks to many individuals who are ill and vulnerable. . . . [T]he potential dangers of this dramatic change in public policy would outweigh any benefit that might be achieved.”. . . Attitudes toward suicide itself have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, assisting suicide. Despite changes in medical technology and notwithstanding an increased emphasis on the importance of end of life decisionmaking, we have not retreated from this prohibition. Against this backdrop of history, tradition, and practice, we now turn to respondents’ constitutional claim. II The Due Process Clause guarantees more than fair process, and the “liberty” it protects includes more than the absence of physical restraint. Collins v. Harker Heights, 503 U.S. 115, 125 (1992) (Due Process Clause “protects individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them’”) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. Reno v. Flores, 507 U.S. 292, 301–302 (1993); Casey, 505 U.S., at 851. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the “liberty” specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia, 388 U.S. 1 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); to direct the education and upbringing of one’s children, Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); to marital privacy, Griswold v. Connecticut, 381 U.S. 479 (1965); to use contraception, ibid; Eisenstadt v. Baird, 405 U.S. 438 (1972); to bodily integrity, Rochin v. California, 342 U.S. 165 (1952), and to abortion, Privacy and Individual Rights in Varied Contexts

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Casey, supra. We have also assumed, and strongly suggested, that the Due Process Clause protects the traditional right to refuse unwanted lifesaving medical treatment. Cruzan, 497 U.S., at 278–279. But we “ha[ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this uncharted area are scarce and open ended.” Collins, 503 U.S., at 125. By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore “exercise the utmost care whenever we are asked to break new ground in this field,” ibid, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the members of this Court. . . . Our established method of substantive due process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, “deeply rooted in this Nation’s history and tradition,” . . . Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) (“so rooted in the traditions and conscience of our people as to be ranked as fundamental”), and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed,” Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937). Second, we have required in substantive due process cases a “careful description” of the asserted fundamental liberty interest. Our Nation’s history, legal traditions, and practices thus provide the crucial guideposts for responsible decisionmaking,” that direct and restrain our exposition of the Due Process Clause. . . . ... Turning to the claim at issue here, the Court of Appeals stated that “[p]roperly analyzed, the first issue to be resolved is whether there is a liberty interest in determining the time and manner of one’s death,” . . . , or, in other words, “[i]s there a right to die?”. . . Similarly, respondents assert a “liberty to choose how to die” and a right to “control of one’s final days.”. . . And describe the asserted liberty as “the right to choose a humane, dignified death,” . . . , and “the liberty to shape death.”. . . As noted above, we have a tradition of carefully formulating the interest at stake in substantive due process cases. For example, although Cruzan is often described as a “right to die” . . . we were, in fact, more precise: we 742

assumed that the Constitution granted competent persons a “constitutionally protected right to refuse lifesaving hydration and nutrition.” Cruzan, . . . (“[A] liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions”). The Washington statute at issue in this case prohibits “aid[ing] another person to attempt suicide,” Wash. Rev. Code § 9A.36.060(1) (1994), and, thus, the question before us is whether the “liberty” specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so. We now inquire whether this asserted right has any place in our Nation’s traditions. Here, . . . we are confronted with a consistent and almost universal tradition that has long rejected the asserted right, and continues explicitly to reject it today, even for terminally ill, mentally competent adults. To hold for respondents, we would have to reverse centuries of legal doctrine and practice, and strike down the considered policy choice of almost every State. . . . Respondents contend, however, that the liberty interest they assert is consistent with this Court’s substantive due process line of cases, if not with this Nation’s history and practice. Pointing to Casey and Cruzan, respondents read our jurisprudence in this area as reflecting a general tradition of “self sovereignty,” Brief of Respondents, and as teaching that the “liberty” protected by the Due Process Clause includes “basic and intimate exercises of personal autonomy,” . . . Casey, . . . (“It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter”). According to respondents, our liberty jurisprudence, and the broad, individualistic principles it reflects, protects the “liberty of competent, terminally ill adults to make end of life decisions free of undue government interference.”. . . The question presented in this case, however, is whether the protections of the Due Process Clause include a right to commit suicide with another’s assistance. ... Respondents contend that in Cruzan we “acknowledged that competent, dying persons have the right to direct the removal of life sustaining medical treatment and thus hasten death,” . . . and that “the constitutional principle behind recognizing the patient’s liberty to direct the withdrawal of artificial life support applies at least as strongly to the choice to hasten impending death by consuming lethal medication.”. . .

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The right assumed in Cruzan, however, was not simply deduced from abstract concepts of personal autonomy. Given the common law rule that forced medication was a battery, and the long legal tradition protecting the decision to refuse unwanted medical treatment, our assumption was entirely consistent with this Nation’s history and constitutional traditions. The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. Indeed, the two acts are widely and reasonably regarded as quite distinct. . . . In Cruzan itself, we recognized that most States outlawed assisted suicide—and even more do today—and we certainly gave no intimation that the right to refuse unwanted medical treatment could be somehow transmuted into a right to assistance in committing suicide. . . . Respondents also rely on Casey. There, the Court’s opinion concluded that “the essential holding of Roe v. Wade should be retained and once again reaffirmed.”. . . . . . [T]he Court’s opinion in Casey described, in a general way and in light of our prior cases, those personal activities and decisions that this Court has identified as so deeply rooted in our history and traditions, or so fundamental to our concept of constitutionally ordered liberty, that they are protected by the Fourteenth Amendment. The opinion moved from the recognition that liberty necessarily includes freedom of conscience and belief about ultimate considerations to the observation that “though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise.” Casey. . . . That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected, San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 33–35 (1973), and Casey did not suggest otherwise. The history of the law’s treatment of assisted suicide in this country has been and continues to be one of the rejection of nearly all efforts to permit it. That being the case, our decisions lead us to conclude that the asserted “right” to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause. The Constitution also requires, however, that Washington’s assisted suicide ban be rationally related to legitimate government interests. See Heller v. Doe, 509 U.S. 312, 319–320 (1993); Flores, 507 U.S., at 305. This requirement is

unquestionably met here. As the court below recognized, . . . Washington’s assisted suicide ban implicates a number of state interests. . . . First, Washington has an “unqualified interest in the preservation of human life.” Cruzan, 497 U.S., at 282. The State’s prohibition on assisted suicide, like all homicide laws, both reflects and advances its commitment to this interest. ... Relatedly, all admit that suicide is a serious public health problem, especially among persons in otherwise vulnerable groups. . . . The State has an interest in preventing suicide, and in studying, identifying, and treating its causes. . . . Those who attempt suicide—terminally ill or not—often suffer from depression or other mental disorders. . . . Research indicates, however, that many people who request physician assisted suicide withdraw that request if their depression and pain are treated. . . . The New York Task Force, however, expressed its concern that, because depression is difficult to diagnose, physicians and medical professionals often fail to respond adequately to seriously ill patients’ needs. . . . Thus, legal physician assisted suicide could make it more difficult for the State to protect depressed or mentally ill persons, or those who are suffering from untreated pain, from suicidal impulses. The State also has an interest in protecting the integrity and ethics of the medical profession. In contrast to the Court of Appeals’ conclusion that “the integrity of the medical profession would [not] be threatened in any way by [physician assisted suicide],” . . . the American Medical Association, like many other medical and physicians’ groups, has concluded that “[p]hysician assisted suicide is fundamentally incompatible with the physician’s role as healer.”. . . And physician assisted suicide could, it is argued, undermine the trust that is essential to the doctor patient relationship by blurring the time honored line between healing and harming. . . . Next, the State has an interest in protecting vulnerable groups—including the poor, the elderly, and disabled persons—from abuse, neglect, and mistakes. The Court of Appeals dismissed the State’s concern that disadvantaged persons might be pressured into physician assisted suicide as “ludicrous on its face.”. . . We have recognized, however, the real risk of subtle coercion and undue influence in end of life situations. . . . Similarly, the New York Task Force warned that “[l]egalizing physician assisted Privacy and Individual Rights in Varied Contexts

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suicide would pose profound risks to many individuals who are ill and vulnerable. . . . The risk of harm is greatest for the many individuals in our society whose autonomy and well being are already compromised by poverty, lack of access to good medical care, advanced age, or membership in a stigmatized social group.”. . . If physician assisted suicide were permitted, many might resort to it to spare their families the substantial financial burden of end of life health care costs. The State’s interest here goes beyond protecting the vulnerable from coercion; it extends to protecting disabled and terminally ill people from prejudice, negative and inaccurate stereotypes, and “societal indifference.”. . . The State’s assisted suicide ban reflects and reinforces its policy that the lives of terminally ill, disabled, and elderly people must be no less valued than the lives of the young and healthy, and that a seriously disabled person’s suicidal impulses should be interpreted and treated the same way as anyone else’s. . . . Finally, the State may fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia. The Court of Appeals struck down Washington’s assisted suicide ban only “as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors.”. . . Washington insists, however, that the impact of the court’s decision will not and cannot be so limited. . . . If suicide is protected as a matter of constitutional right, it is argued, “every man and woman in the United States must enjoy it.”. . . The Court of Appeals’ decision, and its expansive reasoning, provide ample support for the State’s concerns. The court noted, for example, that the “decision of a duly appointed surrogate decision maker is for all legal purposes the decision of the patient himself,” . . .; that “in some instances, the patient may be unable to self administer the drugs and . . . administration by the physician . . . may be the only way the patient may be able to receive them,” . . .; and that not only physicians, but also family members and loved ones, will inevitably participate in assisting suicide. . . . Thus, it turns out that what is couched as a limited right to “physician assisted suicide” is likely, in effect, a much broader license, which could prove extremely difficult to police and contain. . . . ... We need not weigh exactingly the relative strengths of these various interests. They are unques744

tionably important and legitimate, and Washington’s ban on assisted suicide is at least reasonably related to their promotion and protection. We therefore hold that Wash. Rev. Code § 9A.36.060(1) (1994) does not violate the Fourteenth Amendment, either on its face or “as applied to competent, terminally ill adults who wish to hasten their deaths by obtaining medication prescribed by their doctors.”. . . ... Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician assisted suicide. Our holding permits this debate to continue, as it should in a democratic society. The decision of the en banc Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE O’CONNOR, concurring:* Death will be different for each of us. For many, the last days will be spent in physical pain and perhaps the despair that accompanies physical deterioration and a loss of control of basic bodily and mental functions. Some will seek medication to alleviate that pain and other symptoms. . . . I join the Court’s opinions because I agree that there is no generalized right to “commit suicide.” But respondents urge us to address the narrower question whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death. I see no need to reach that question in the context of the facial challenges to the New York and Washington laws at issue here. . . . The parties and amici agree that in these States a patient who is suffering from a terminal illness and who is experiencing great pain has no legal barriers to obtaining medication, from qualified physicians, to alleviate that suffering, even to the point of causing unconsciousness and hastening death. . . . In this light, even assuming that we would recognize such an interest, I agree that the State’s interests in protecting those who are not truly competent or facing imminent death, or those whose decisions to hasten death would not truly be voluntary, are sufficiently weighty to justify a prohibition against physician assisted suicide. . . . *JUSTICE GINSBURG concurs in the Court’s judgments substantially for the reasons stated in this opinion. JUSTICE BREYER joins this opinion except insofar as it joins the opinions of the Court.

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Every one of us at some point may be affected by our own or a family member’s terminal illness. There is no reason to think the democratic process will not strike the proper balance between the interests of terminally ill, mentally competent individuals who would seek to end their suffering and the State’s interests in protecting those who might seek to end life mistakenly or under pressure. As the Court recognizes, States are presently undertaking extensive and serious evaluation of physician assisted suicide and other related issues. . . . In such circumstances, “the . . . challenging task of crafting appropriate procedures for safeguarding . . . liberty interests is entrusted to the ‘laboratory’ of the States . . . in the first instance.”. . . In sum, there is no need to address the question whether suffering patients have a constitutionally cognizable interest in obtaining relief from the suffering that they may experience in the last days of their lives. There is no dispute that dying patients in Washington and New York can obtain palliative care, even when doing so would hasten their deaths. The difficulty in defining terminal illness and the risk that a dying patient’s request for assistance in ending his or her life might not be truly voluntary justifies the prohibitions on assisted suicide we uphold here. JUSTICE STEVENS, concurring in the judgments: . . . I write separately to make it clear that there is also room for further debate about the limits that the Constitution places on the power of the States to punish the practice. Today, the Court decides that Washington’s statute prohibiting assisted suicide is not invalid “on its face,” that is to say, in all or most cases in which it might be applied. That holding, however, does not foreclose the possibility that some applications of the statute might well be invalid. ... There remains room for vigorous debate about the outcome of particular cases that are not necessarily resolved by the opinions announced today. How such cases may be decided will depend on their specific facts. In my judgment, however, it is clear that the so called “unqualified interest in the preservation of human life,” . . . is not itself sufficient to outweigh the interest in liberty that may justify the only possible means of preserving a dying patient’s dignity and alleviating her intolerable suffering.

JUSTICE SOUTER, concurring in the judgment: ... . . . The question is whether the statute sets up one of those “arbitrary impositions” or “purposeless restraints” at odds with the Due Process Clause of the Fourteenth Amendment. . . . I conclude that the statute’s application to the doctors has not been shown to be unconstitutional, but I write separately to give my reasons for analyzing the substantive due process claims as I do, and for rejecting this one. ... In my judgment, the importance of the individual interest here, as within that class of “certain interests” demanding careful scrutiny of the State’s contrary claim, . . . cannot be gainsaid. Whether that interest might in some circumstances, or at some time, be seen as “fundamental” to the degree entitled to prevail is not, however, a conclusion that I need draw here, for I am satisfied that the State’s interests described in the following section are sufficiently serious to defeat the present claim that its law is arbitrary or purposeless. ... One must bear in mind that the nature of the right claimed, if recognized as one constitutionally required, would differ in no essential way from other constitutional rights guaranteed by enumeration or derived from some more definite textual source than “due process.” An unenumerated right should not therefore be recognized, with the effect of displacing the legislative ordering of things, without the assurance that its recognition would prove as durable as the recognition of those other rights differently derived. To recognize a right of lesser promise would simply create a constitutional regime too uncertain to bring with it the expectation of finality that is one of this Court’s central obligations in making constitutional decisions. . . . Legislatures, however, are not so constrained. The experimentation that should be out of the question in constitutional adjudication displacing legislative judgments is entirely proper, as well as highly desirable, when the legislative power addresses an emerging issue like assisted suicide. The Court should accordingly stay its hand to allow reasonable legislative consideration. While I do not decide for all time that respondents’ claim should not be recognized, I acknowledge the legislative institutional competence as the better one to deal with that claim at this time. Privacy and Individual Rights in Varied Contexts

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SELECTED REFERENCES Allen, Anita L. Uneasy Access: Privacy for Women in a Free Society. Totowa, NJ: Rowman and Littlefield, 1988. Baer, Judith A. “Sexual Equality and the Burger Court,” 31 Western Political Quarterly 470 (1978). Balkin, Jack. What Roe v. Wade Should Have Said. New York: New York University Press. 2007. Barnett, Walter. Sexual Freedom and the Constitution. Albuquerque: University of New Mexico Press, 1973. Brigham, John. Civil Liberties and American Democracy. Washington, D.C.: Congressional Quarterly, 1984, Ch. 4. Bums, Michael M. “The Exclusion of Women from Influential Men’s Clubs: The Inner Sanctum and the Myth of Full Equality,” 18 Harvard Civil Rights/Civil Liberties Law Review 321 (Summer 1983). Calabrisi, Steven G. “Substantive Due Process after Gonzales v. Carhart.” Michigan Law Review, Vol. 106, No. 8 (June, 2008), 1517–1541. Cohen, Sherrill, and Nadine Taub, eds. Reproductive Laws for the 1990s. Clifton, NJ: Humana Press, 1989. Colb, Sherrie F. When Sex Counts: Making Babies and Making Law. Landham, MD: Rowman & Littlefield Publishers, 2007. Crowley, Donald. “Implementing Serrano: A Study in Judicial Impact,” 4 Law and Policy Quarterly 299 (July 1982). Dionisopoulos, P. Allan, and Craig Ducat. The Right to Privacy Essays and Cases. St. Paul, MN: West Publishing Co., 1976. Donaldson, J. F. “Life, Liberty and the Pursuit of Urinalysis: The Constitutionality of Random Suspicionless Drug Testing in Public Schools.” Valparaiso University Law Review, Vol. 41 (2006), 815–858. Eisenstein, Zillah A. The Female Body and the Law. Berkeley: University of California Press, 1988. Epstein, Cynthia Fuchs. Women in Law. Champaign, IL: University of Illinois Press, 1993. “Equal Rights for Women: A Symposium on the Proposed Constitutional Amendment,” 6 Harvard Civil Rights/Civil Liberties Law Review 2 (1971). Farber, Daniel A. Retained by the People: The ‘Silent’ Ninth Amendment and the Constitutional Rights Americans Don’t Know They Have. New York: Basic Books, 2007. Faux, Marian. Crusaders: Voices from the Abortion Front. New York: Birch Lane Press, 1990. Franklin, Charles H., and Liane C. Kosaki. “The Republican Schoolmaster: The Supreme Court, Public Opinion, and Abortion,” 83 American Political Science Review 751 (1989). Frug, Mary Joe. Women and the Law. Westbury, NY: The Foundation Press, 1992. 746

Garrow, David J. Liberty and Sexuality. New York: MacMillan Publishing Company, 1994. Gee, Graham. “Regulating Abortion in the United States after Gonzales v. Carhart.” Modern Law Review, Vol. 70, No. 6 (October 23, 2007), 979–992. Ginsburg, Ruth Bader. “Gender and the Constitution,” University of Cincinnati Law Review 44 (1975). Goldstein, Leslie Friedman. Contemporary Cases in Women’s Rights. Madison: The University of Wisconsin Press, 1994. Gomez, Jose. “The Public Expression of Lesbian/Gay Personhood as Protected Speech,” 1 Law and Inequality 121 (1983). “Government Drug Testing and Individual Privacy Rights: Crying Wolf in the Workplace,” 5 Yale Law and Policy Review 235 (Fall/Winter 1986). Hamers, Jill. “Reeling in the Outlier: Gonzales v. Carhart and the End of Facial Challenges to Abortion Statutes.” Boston University Law Review, Vol. 89 (May 23, 2009), 1069–1101. Hansen, Susan B. “State Implementation of Supreme Court Decisions: Abortion Since Roe v. Wade,” 42 Journal of Politics 372 (May 1980). Hyman, Rodney, Betty Sarvis, and Joy Walker. The Abortion Question. New York: Columbia University Press, 1987. Jaffe, Frederick S., Barbara L. Lindheim, and Philip R. Lee. Abortion Politics: Private Morality and Public Policy. New York: McGraw-Hill, 1981. Johnson, John W. Griswold v. Connecticut: Birth Control and the Constitutional Right of Privacy. Lawrence: University Press of Kansas, 2005. Kamisar, Yale. “Foreword: Can Glucksberg Survive Lawrence? Another Look at the End of Life and Personal Autonomy.” Michigan Law Review, Vol. 106, No. 8 (June 2008), 1453–1478. Knowles, Helen J. “From a Value to a Right: The Supreme Court’s Oh-So-Conscious Move from ‘Privacy’ to ‘Liberty.’” Ohio Northern University Law Review, Vol. 33 (August 8, 2006), 595–621. Lewis, David A. “The Fourteenth Amendment through Roe Colored Glasses: Unenumerated Rights and the ‘Imperial Judiciary.’” Polity, Vol. 39, No. 1 (2007), 103–124. Mansbridge, Jane J. Why We Lost the ERA. Chicago, IL: University of Chicago Press, 1986. McCloskey, Herbert, and Alida Brill. Dimensions of Tolerance: What Americans Believe about Civil Liberties. New York: Russell Sage Foundation, 1963, Ch. 5. Meyer, David D. “A Privacy Right to Public Recognition of Family Relationships? The Cases of Marriage and Adoption.” Villanova Law Review, Vol. 51 (2006), 891–920.

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Nossiff, Rosemary. “Gendered Citizenship: Women, Equality, and Abortion Policy.” New Political Science, Vol. 29, No. 1 (March 2007), 61–76. O’Connor, Karen. Women’s Organizations’ Use of Courts. Lexington, MA: Lexington Books, 1980. Otten, Laura A. Women’s Rights and the Law. Westport, CT: Praeger, 1993. Paul, Eve W., and Paula Schaap. “Abortion and the Law in 1980,” 25 New York Law School Review 497 (1980). Posner, R. A. “Uncertain Protection of Privacy by the Supreme Court,” 1979 Supreme Court Review 173 (1979). Rhode, Deborah L. Justice and Gender: Sex Discrimination and the Law. Cambridge, MA: Harvard University Press, 1989. Richards, David A. J. The Case for Gay Rights: From Bowers to Lawrence and Beyond. Lawrence: University Press of Kansas. 2005. Rubenfeld, Jed. “The Right of Privacy,” 102 Harvard Law Review 737 (1989).

Rubin, Eva R. Abortion, Politics, and the Courts: Roe v. Wade and Its Aftermath (rev. ed.). Westport, CT: Greenwood Press, 1987. Subcommittee of the Committee on Government Operations House of Representatives. Privacy and 1984: Public Opinions on Privacy Issues. Hearings, 98th Cong., 1st Sess., April 4, 1984. Tatalovich, Raymond, and Byron W. Daynes. The Politics of Abortion. New York: Praeger, 1981. “The Supreme Court as Superlegislature Emasculates the Right to Privacy: Bowers v. Hardwick,” 21 Suffolk University Law Review 853 (Fall 1987). Turner, Ronald. “Gonzales v. Carhart and the Court’s ‘Women’s Regret’ Rationale.” Wake Forest Law Review, Vol. 43, No. 1 (2008) 1–43. Weddington, Sara. A Question of Choice. New York: G. P. Putnam’s Sons, 1992. Wildman, Stephanie. “The Legitimation of Sex Discrimination: A Critical Response to Supreme Court Jurisprudence,” Oregon Law Review 63 (1984), 265–307.

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CHAPTER 18

THE POOR IN COURT: EXPANDING AND CONTRACTING RIGHTS

FEATURED CASES Shapiro v. Thompson; San Antonio Independent School District v. Rodriguez

P

OVERTY IS ONE OF THE MOST PERVASIVE AND VEXING

problems in American society. Poor people in United States experience deprivation and discrimination solely because of their low socioeconomic status. In the most affluent nation on earth, the poor barely subsist. In their everyday lives they face the challenges of inadequate food and clothing, dilapidated housing, high unemployment, grossly inferior schools, inadequate access to health care, and high crime rates. It is as if they live in another country, another world—and most of them do! In actual numbers, whites form the majority of poor people in this country. Nonetheless, because blacks, Latinos, and other persons of color constitute a disproportionate number of the people who live in poverty, the drive to eliminate poverty and provide opportunities for people to live a decent life may be viewed as part of the overall civil rights struggle. This perception, of course, can engender support and arouse opposition. Consequently, like other groups, the nation’s poor have resorted to the judiciary in attempts to achieve their objectives. Much of this activity has centered on safeguarding the rights of the poor in the criminal justice system, an area in which their plight and problems have been well documented. These matters are discussed in Part IV, which deals with the rights of the accused. Our

major concern here is with the stance of the Supreme Court on problems of poverty in noncriminal areas. As we review cases in this chapter, it is important not only to understand the path that the law has taken, but also to imagine the alternative paths not chosen. One might argue that each path represents the public commitments made by the American people about the kind of society they want to live in. In this context, issues surrounding the poor and other marginalized groups are difficult to understand using traditional methods of constitutional interpretation, because, as we have seen in other chapters, such methods usually focus on the restraints on governmental power and not on the possible affirmative obligations of the government to achieve a more just society. One reason for the current failure to go down the jurisprudential path of actively promoting a more just society through law is the difficulty that governmental bodies, especially courts, have in choosing the proper goals and in getting concrete support for such goals from prevailing interests. As our case law exemplifies, the transfer of resources from those who “have” to those who “have not” presents vexing problems in translating public commitment into reality. An important question is which, if any, of our governmental institutions—the executive branch, Congress, or especially the Supreme Court—has the

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appropriate institutional competence and ability to provide the leadership to overcome such problems. Before we examine the various lines of cases, it may be useful to consider the incisive and provocative views of Yale Law School professor Charles L. Black, Jr. Black argues that the public commitments to safeguard “life, liberty, and the pursuit of happiness” made by the American people in the Declaration of Independence are hypocritical given the reality of poverty in United states. He states simply and directly that “the possession of a decent material basis for life is an indispensable condition, to almost all people and at almost all times, to this ‘pursuit.’” Moreover, Black argues that the Preamble and Article I, Section 8, of the Constitution “carry forward the very themes of the pursuit of happiness” by empowering and creating in Congress an affirmative obligation to tax and spend for the general welfare. Although he acknowledges the problem of articulating the “level of general welfare” that should be satisfied, he points out that circumstances in which “half of our black children under six lived in poverty in 1984” are clearly not a level from which happiness may be pursued (Black, 1986). Black sets forth a variety of bases for the proposition that Congress is bound by affirmative obligations to give content to a constitutional right to a decent livelihood. He is, however, less certain of the institutional competence of courts to effectuate these affirmative obligations. Yet Black, although less certain, still offers hope: “I believe that there has been no Supreme Court Justice in this century who has not voted to support some right that could on no commonsense basis be said to be named in the Constitution; the great majority have cast such votes in some numbers over a wide range.” Yet to go from this possibility to the affirmative use of judicial power to overcome poverty and to change the socioeconomic circumstances of such marginalized persons remains a distant hope that seems especially difficult to realize. Indeed, in the cases of Spallone v. United States (110 S. Ct. 625, 1990) and Missouri v. Jenkins (110 S. Ct. 1651, 1990), the Court defined some rather sharp limits on the use of judicial power to promote a more just society. Nonetheless, Black does challenge us to imagine that in the generations since the founding of our country, the public commitments of the nation, especially with respect to race relations, have shown some, albeit slow, progress. He suggests that we have progressed away from the hypocrisy between, on one hand, the noble words and commitments embodied in

the Declaration of Independence and the Constitution, and, on the other, the stark reality and practice in the everyday lives of many Americans who seem to be trapped in poverty. The question remains as to which institution will lead the way. Articles such as Black’s challenge us to rethink contemporary problems in ways that permit a more just balancing of rights and obligations. As we discuss the matter of poverty, consider whether the Supreme Court could (or should) have fostered a more affirmative obligation of government to fulfill our national commitments for a more just society.

STRUCTURAL OBSTACLES FACING THE POOR What factors prevent lower income people from vindicating their legal rights and achieving their policy objectives through the courts, to which they have formal access? To paraphrase the title of Marc Galanter’s seminal article, why is it that the “haves come out ahead” (Galanter, 1974) Several factors explain this tendency. The first factor is that low-income status itself imposes certain obstacles to legal success. Criminal defendants have a constitutional right to courtappointed counsel in both federal (Johnson v. Zerbst, 1938) and state trials (Gideon v. Wainwright, 1963). (See Chapter 9.) This protection disproportionately benefits indigent defendants who otherwise could not afford to retain counsel. Court-appointed counsel need not be effective counsel, however. In Strickland v. Washington (1984), the Court set stringent standards for determining when counsel’s performance is so ineffective that it undermines the defendant’s Sixth Amendment rights and thus requires that the conviction be set aside. A second factor relates to disparities in familiarity with legal processes. Galanter distinguishes “oneshotters” who are infrequent or inexperienced participants from “repeat players” who litigate similar issues repeatedly over time. Low-income litigants fall into the category of one-shotters, and, as a result, they suffer certain disadvantages. Most notably, their cases involve stakes that are either very high relative to their overall wealth (e.g., costs of eviction from public housing) or are too small, relative to the costs of litigating, to make litigation worthwhile (e.g., price gouging by supermarkets in low-income communities). Repeat players, however, have less at stake in the outcome of any individual case, and they have both the wherewithal and the motivation to pursue long-

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term strategies. They can structure future transactions to their advantage, they have ready access to expertise and specialists, they benefit from economies of scale that enable them to spread risk over a series of cases, they can develop informal relations with judges, and they have incentives to play for rules in both the legal and legislative arenas. (Galanter does note that repeat players are not necessarily “haves,” and one-shotters are not necessarily “have-nots.”) Organized group litigants and other repeat players, such as the solicitor general, can and do parlay these characteristics into various advantages, including enhanced access to the Supreme Court’s docket (Perry, 1991; Provine, 1980; Scigliano, 1971). The Legal Services Program (LSP) combines features of both the one-shot player and the repeat player (Galanter, 1974; Lawrence, 1990). For example, while the LSP as a whole has brought numerous cases before the Court, each local LSP project typically brings very few cases before the Court. As a result, LSP attorneys tend to lack the experience in Supreme Court litigation that they need in order to figure out the Court’s selection processes. In addition, the LSP’s caseload resulted not from a conscious litigation strategy, like the one pursued by the NAACP Legal Defense Fund in challenging restrictive covenants and segregated schooling, but from an accumulation of cases that provided individualized client service. Despite these disadvantages, the LSP provides low-income litigants with some of the specialized expertise and resources of the repeat player, thereby mitigating some of the problems such litigants face as one-shotters. Nonetheless, low-income oneshotters still face an uphill battle when they confront better endowed repeat players. Successful individual-level actions, such as fighting recalcitrant landlords, provide tangible and relatively immediate benefits to lower-income litigants, but these actions have marginal effects on the existing societal distribution of resources.

WELFARE BENEFITS FEATURED CASE

Shapiro v. Thompson In a series of cases, the Court dealt with the requirements and conditions under which welfare benefits are administered to the poor. In King v. Smith (392 750

U.S. 309, 1968), for example, the Court held invalid an Alabama regulation that denied federally provided benefits, Aid to Families with Dependent Children (AFDC), “to the children of a mother who ‘cohabits’ in or outside her home with any single or married able-bodied man.” Chief Justice Earl Warren’s majority opinion striking down the regulation first cited the AFDC program’s definition of a “dependent child”: “an age-qualified [a nonstudent under age 18 or a student under age 21] needy child . . . who has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapability of a parent, and who is living with any one of several listed relatives.”

In this case, Mrs. Smith’s children lost benefits in 1966 because “a Mr. Williams came to her home on weekends and had sexual relations with her.” By viewing a “substitute father” as “a nonabsent parent within the federal statute,” said Chief Justice Warren, Alabama “denies aid to an otherwise eligible needy child on the basis that his substitute parent is not absent from the home.” Warren examined two justifications that Alabama gave for its interpretation of the “nonabsent” wording. Alabama first said that its regulation “discourages illicit sexual relationships and illegitimate births.” Further, the state contended that the regulation “puts families in which there is an informal ‘marital’ relationship on a par with those in which there is an ordinary marital relationship, because families of the latter sort are not eligible for AFDC assistance.” In response to the first argument, Warren said: “Congress has determined that immorality and illegitimacy should be dealt with through rehabilitative measures rather than measures that punish dependent children, and that protection of such children is the paramount goal of AFDC . . . It is simply inconceivable that Alabama is free to discourage immorality and illegitimacy by the device of absolute disqualification of needy children.”

In response to the second argument, Warren said that it: “fails to take account of the circumstance that children of fathers living in the home are in a very different position from children of mothers who cohabit with men not their fathers: The child’s father has a legal duty to support him, while the unrelated substitute father, at least in Alabama, does not . . . Congress intended the term ‘parent’ in [the AFDC statute] to include only those persons with a legal duty of support.”

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A different type of state regulation was at issue in Shapiro v. Thompson (394 U.S. 618, 1969). Several states and the District of Columbia required welfare recipients to reside within their jurisdiction for one year before receiving benefits. These rules, intended to discourage the poor from moving to such jurisdictions, were held in Shapiro to create classifications that constituted invidious discrimination which violated the equal protection clause of the Fourteenth Amendment. In his majority opinion, Justice William J. Brennan noted: [the] “waiting period device is well-suited to discourage the influx of poor families in need of assistance . . . An indigent who desires to migrate, resettle, find a new job, start a new life will doubtless hesitate if he knows that he must risk making the move without the possibility of falling back on state welfare assistance during his first year of residence, when his need may be most acute.”

For Brennan, such purposeful action to inhibit migration by the poor is “irrational and unconstitutional” under traditional equal protection tests. One of the most cited justifications supporting the residency classification policy is that it is essential to protect the state’s welfare resources from the claims of indigents who move to a state only to get larger benefits. But Brennan stated that “a State may no more try to fence out those indigents who seek higher benefits than it may try to fence out indigents generally.” He further noted that “the fundamental right of interstate movement” was affected by the classification and that therefore “its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest.” “Under this standard,” he concluded, “the waiting period requirement clearly violates the Equal Protection Clause.” Justice John M. Harlan, in dissent, was extremely critical of the majority’s use of the “compelling interest” equal protection doctrine. He was especially upset because the majority could make a statutory classification subject to the compelling interest test “if the result of the classification may be to affect a fundamental right, regardless of the basis of the classification.” Harlan felt that such a doctrine was “unfortunate because it creates an exception which threatens to swallow the standard equal protection rule,” and it was “unnecessary” because “the right affected is one assured by the Federal Constitution” and “any infringement can be dealt with under the Due Process Clause.”

Overall, the Shapiro holding, especially when examined in light of Dunn v. Blumstein (405 U.S. 336, 1972, prohibiting lengthy residency requirements for voting in state and local elections), has considerable importance for the poor. At least two of the onerous burdens that the poor encounter when they move from one state to another—lack of welfare benefits when they are most acutely needed and exclusion from voting—are eliminated by these decisions. (Cf. Memorial Hospital v. Maricopa County, 415 U.S. 250, 1974, where the Court held violative of the equal protection clause an Arizona law that required a one-year residence in a county as a condition for an indigent to receive nonemergency hospitalization or medical care at the county’s expense.) The Court returned to the residency requirements in 1999 in Saenz v. Roe. The basic issue in Saenz was whether a particular state statute violated the Fourteenth’s Amendment’s right-to-travel protections. The statute authorized states that received Temporary Assistance to Needy Families (TANF) to pay the benefit amount of another State’s TANF to its first-year residents. In a 7–2 decision, the Court held that the Fourteenth Amendment “protects the right to travel in three ways by: allowing citizens to move freely between states, securing the right to be treated equally in all states when visiting, and securing the rights of new citizens to be treated like longtime citizens of a state.” The Court explained that by paying first-year residents the same TANF benefits they had received in their state of origin, states treated new residents differently from others who had lived in their borders for over one year and thus unconstitutionally discriminated among residents. In Goldberg v. Kelly (397 U.S. 254, 1970), the Court held that procedural due process requires a state to afford a welfare recipient an opportunity for an evidentiary hearing prior to the termination of public assistance payments. Speaking for the majority, Justice Brennan noted that whereas some governmental benefits may be terminated administratively without affording the recipient a pretermination evidentiary hearing, welfare benefits were outside this category. Indeed, said Brennan: “For qualified recipients, welfare provides the means to obtain essential food, clothing, housing and medical care. Thus, the crucial factor in this context—a factor not present in the case of the blacklisted governmental contractor, the discharged government employee, the taxpayer denied a tax exemption, or virtually anyone else whose government

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entitlements are ended—is that the termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate.”

To meet the requisites of due process in this context, concluded Brennan, a recipient must “have timely and adequate notice detailing the reasons for a proposed termination and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally.” Chief Justice Warren Burger and Justices Hugo Black and Potter Stewart dissented. Their position was best articulated by Justice Black, who suggested that the new procedure would “lead to constitutionally imposed, time-consuming delays of a full adversary process of administrative and judicial review.” Black was also concerned about persons receiving aid without being eligible. He said that officials probably erroneously added names to the welfare lists: “in order to alleviate immediate suffering, and undoubtedly some people are drawing relief who are not entitled under the law to do so . . . In other words, although some recipients might be on the lists for payment wholly because of deliberate fraud on their part, the Court holds that the government is helpless and must continue, until after an evidentiary hearing, to pay money that it does not owe, never has owed, and never could owe.”

The views of the dissenters did not go completely unheeded, however, for in Mathews v. Eldridge (424 U.S. 319, 1976) the Court somewhat tempered the potential impact of Goldberg by holding that social security benefits could be terminated without holding evidentiary hearings. Other regulations imposed by states in the administration of welfare programs indicate that the poor face additional problems. For example, in Dandridge v. Williams (397 U.S. 471, 1970), which was decided only 2 weeks after Goldberg, the Court upheld a Maryland regulation under which most families received AFDC benefits in accordance with their standard of need (determined by family size), but which imposed a ceiling of $250 per month on the grant “regardless of the size of the family and its actual need.” In his majority opinion, Justice Potter Stewart said: [The Court] “need not explore all the reasons that the State advances in justification of the regulation . . . It is enough that a solid foundation for the regulation can be found in the State’s legitimate interest in 752

encouraging employment and in avoiding discrimination between welfare families and the families of the working poor . . . The Equal Protection Clause does not require a State to choose between attacking every aspect of a problem or not attacking the problem at all . . . [The Maryland rule is] rationally based and free from invidious discrimination.”

Justices Douglas, Brennan, and Marshall dissented. They believed that the Maryland regulation was inconsistent with the Social Security Act which created the AFDC program. Justice Marshall was particularly concerned about “the Court’s emasculation of the Equal Protection Clause as a constitutional principle applicable to the area of social welfare administration.” He argued that the appellees here were: “needy dependent children and families who are discriminated against by the State . . . The basis of that discrimination—the classification of individuals into large and small families is too arbitrary and too unconnected to the asserted rationale, the impact on those discriminated against—the denial of even a subsistence existence—too great, and the supposed interests served too contrived and attenuated to meet the requirements of the Constitution.”

A year later, in Wyman v. James (400 U.S. 309, 1971), the Court upheld a New York regulation that required—as a condition to continuance of public assistance—periodic caseworker visitations to homes of AFDC recipients. Mrs. James, who began receiving AFDC assistance shortly after her son’s birth in 1967, refused such a visit by a caseworker in her home, and, as a consequence, lost her AFDC benefits. Justice Harry Blackmun, speaking for the Court, concluded that “the home visitation as structured by the New York statutes and regulations is a reasonable administrative tool [which] serves a valid and proper administrative purpose for the dispensation of the AFDC program.” Hence, he asserted, “it is not an unwarranted invasion of personal privacy and violates no right guaranteed by the Fourth Amendment,” because such visits do “not descend to the level of unreasonableness.” Blackmun distinguished several other cases that turned on Fourth Amendment issues, including one case (See v. City of Seattle, 387 U.S. 541, 1967) in which a commercial warehouse owner refused to let a fire department representative enter his warehouse as a part of a “routine, periodic citywide” inspection. The Court in See held that such administrative entry can be prevented unless it is carried out pursuant to a warrant.

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This distinction did not impress Justice Thurgood Marshall, who issued a sharp dissent that was joined by Justices Douglas and Brennan. He did not understand “why a commercial warehouse deserves more protection than this poor woman’s home.” He also attacked the two explanations set forth to justify the home visit rule. The first, “to protect dependent children from ‘abuse’ and ‘exploitation,’” is concededly to prevent “heinous crimes,” said Marshall, “but [such interests] are not confined to indigent households.” Marshall wondered whether “the majority [would] sanction, in the absence of probable cause, compulsory visits to all American homes for the purpose of discovering child abuse.” The second justification was based on the contention that home visits were necessary to determine whether the family was eligible for AFDC benefits. Marshall noted that “federal [AFDC] regulations do not require the home visit.” Marshall concluded that he found “no little irony in the fact that the burden of today’s departure from principled adjudication is placed upon the lowly poor.” In Jefferson v. Hackney (406 U.S. 535, 1972), the Court upheld a Texas scheme (necessitated by a state constitutional ceiling on welfare assistance grants) under which AFDC benefits were reduced by greater proportions than other welfare assistance programs. The Texas system provided for 100 percent implementation of the old-age assistance benefit and 95 percent of aid to the blind and to the disabled, but only 75 percent to AFDC recipients. The appellants claimed a violation of equal protection “because the proportion of AFDC recipients who are black or Mexican-American is higher than the proportion of the aged, blind or disabled welfare recipients who fall within these minority groups.” (Although fewer than 40 percent of those who were on old-age assistance were blacks or Mexican-Americans, 87 percent of those who were on AFDC were in these minority groups.) Justice William Rehnquist’s majority opinion rejected the equal protection argument, stating that the Court “cannot say that Texas’s decision to provide somewhat lower welfare benefits for AFDC recipients is invidious or irrational.” Rehnquist described the allegations of racial discrimination as “unproven” and cited the district court’s finding that “payment by Texas of a lesser percentage of unmet needs to the recipients of AFDC than to other recipients of other welfare programs is not the result of racial or ethnic prejudice.”

In order to compute benefits, Texas employed a percentage reduction procedure that resulted in lower benefits that tended to penalize people who earned outside income. Some other states used alternative computation procedures that, using the same factual base, resulted in higher benefits to the recipient. Acknowledging that “the two systems of accounting for outside income yield somewhat different results,” and demonstrating that the Texas method resulted in lower actual benefits paid to recipients, Rehnquist nevertheless contended that: “if Texas were to switch to the alternative system of recognizing outside income, it would be forced to lower its percentage reduction factor, in order to keep down its welfare budget . . . Lowering the percentage would result in less money for those who need the welfare benefits the most—those with no outside income—and the State has been unwilling to do this.”

Justices Douglas, Brennan, and Marshall dissented, indicating that in their view the Texas AFDC computation scheme was violative of the Social Security Act. Douglas, for example, said that the majority “ignores the explicit congressional policy in favor of work incentives and upholds a system which provides penalties and disincentives for those who seek employment.” Marshall not only presented strong statutory arguments against the majority’s position on reduction computations but also indicated that “the disparity [in the percentage reductions] between the various social welfare programs is not permissible under the federal statutory framework.” Assessing the record of the Burger Court in welfare law litigation, Professor Gayle Binion has suggested that although recipients have achieved some successes, especially in the early years of the Burger Court, in later terms (1976–80) there has been a “precipitous decline” in the level of support for welfare claims (Binion, 1982). Binion offers two explanations for this declining support: “First and most apparent is that the Court has simply become ideologically less disposed to support the interests of those dependent on welfare, whether out of change in personal convictions or a perception that public support for these interests has declined.”

Second, Binion attributes the decline to the increasing deference of the Burger Court during the same period to the political branches of the federal government, that is, “to both the Congress and the Secretary of HEW.”

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SHAPIRO V. THOMPSON 394 U.S. 618; 89 S. CT. 1322; 22 L. ED. 2D 600 (1969) JUSTICE BRENNAN delivered the opinion of the Court. These three appeals were restored to the calendar for reargument. Each is an appeal from a decision of a three-judge District Court holding unconstitutional a State or District of Columbia statutory provision which denies welfare assistance to residents of the State or District who have not resided within their jurisdictions for at least one year immediately preceding their applications for such assistance. We affirm the judgments of the District Courts in the three cases. In No. 9, the Connecticut Welfare Department invoked § 17-2d of the Connecticut General Statutes to deny the application of appellee Vivian Marie Thompson for assistance under the program for Aid to Families with Dependent Children (AFDC). She was a nineteenth-year-old unwed mother of one child and pregnant with her second child when she changed her residence in June 1966 from Dorchester, Massachusetts, to Hartford, Connecticut, to live with her mother, a Hartford resident. She moved to her own apartment in Hartford in August 1966, when her mother was no longer able to support her and her infant son. Because of her pregnancy, she was unable to work or enter a work training program. Her application for AFDC assistance, filed in August, was denied in November solely on the ground that, as required by § 17-2d, she had not lived in the State for a year before her application was filed. She brought this action in the District Court for the District of Connecticut where a three-judge court, one judge dissenting, declared § 17-2d unconstitutional. 270 F. Supp. 331 (1967). The majority held that the waiting-period requirement is unconstitutional because it “has a chilling effect on the right to travel.” The majority also held that the provision was a violation of the Equal Protection Clause of the Fourteenth Amendment because the denial of relief to those resident in the State for less than a year is not based on any permissible purpose but is solely designed, as “Connecticut states quite frankly,” “to protect its fisc by discour754

aging entry of those who come needing relief.” We noted probable jurisdiction. [The Court consolidated similar cases involving the one-year residency requirement from Pennsylvania and the District of Columbia.] II There is no dispute that the effect of the waitingperiod requirement in each case is to create two classes of needy resident families indistinguishable from each other except that one is composed of residents who have resided a year or more, and the second of residents who have resided less than a year, in the jurisdiction. On the basis of this sole difference the first class is granted and the second class is denied welfare aid upon which may depend the ability of the families to obtain the very means to subsist— food, shelter, and other necessities of life. In each case, the District Court found that appellees met the test for residence in their jurisdictions, as well as all other eligibility requirements except the requirement of residence for a full year prior to their applications. On reargument, appellees’ central contention is that the statutory prohibition of benefits to residents of less than a year creates a classification which constitutes an invidious discrimination denying them equal protection of the laws. We agree. The interests which appellants assert are promoted by the classification either may not constitutionally be promoted by government or are not compelling governmental interests. III Primarily, appellants justify the waiting-period requirement as a protective device to preserve the fiscal integrity of state public assistance programs. It is asserted that people who require welfare assistance during their first year of residence in a State are likely to become continuing burdens on state welfare programs. Therefore, the argument runs, if such people can be deterred from entering the jurisdiction by denying them welfare benefits during the first

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year, state programs to assist long-time residents will not be impaired by a substantial influx of indigent newcomers. There is weighty evidence that exclusion from the jurisdiction of the poor who need or may need relief was the specific objective of these provisions. In the Congress, sponsors of federal legislation to eliminate all residence requirements have been consistently opposed by representatives of state and local welfare agencies who have stressed the fears of the States that elimination of the requirements would result in a heavy influx of individuals into States providing the most generous benefits. The sponsor of the Connecticut requirement said in its support: “I doubt that Connecticut can and should continue to allow unlimited migration into the state on the basis of offering instant money and permanent income to all who can make their way to the state regardless of their ability to contribute to the economy.” In Pennsylvania, shortly after the enactment of the oneyear requirement, the Attorney General issued an opinion construing the one-year requirement strictly because “[a]ny other conclusion would tend to attract the dependents of other states to our Commonwealth.” In the District of Columbia case, the constitutionality of § 3-203 was frankly defended in the District Court and in this Court on the ground that it is designed to protect the jurisdiction from an influx of persons seeking more generous public assistance than might be available elsewhere. We do not doubt that the one-year waiting-period device is well suited to discourage the influx of poor families in need of assistance. An indigent who desires to migrate, resettle, find a new job, and start a new life will doubtless hesitate if he knows that he must risk making the move without the possibility of falling back on state welfare assistance during his first year of residence, when his need may be most acute. But the purpose of inhibiting migration by needy persons into the State is constitutionally impermissible. This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement. That proposition was early stated by CHIEF JUSTICE TANEY in the Passenger Cases (1849): For all the great purposes for which the Federal government was formed, we are one people, with

one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.

We have no occasion to ascribe the source of this right to travel interstate to a particular constitutional provision. It suffices that, as Mr. JUSTICE STEWART said for the Court in United States v. Guest (1966): The constitutional right to travel from one State to another . . . occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized. . . . [T]he right finds no explicit mention in the Constitution. The reason, it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.

Thus, the purpose of deterring the in-migration of indigents cannot serve as justification for the classification created by the one-year waiting period, since that purpose is constitutionally impermissible. If a law has “no other purpose . . . than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it [is] patently unconstitutional.” United States v. Jackson (1968). Alternatively, appellants argue that even if it is impermissible for a State to attempt to deter the entry of all indigents, the challenged classification may be justified as a permissible state attempt to discourage those indigents who would enter the State solely to obtain larger benefits. We observe first that none of the statutes before us is tailored to serve that objective. Rather, the class of barred newcomers is all-inclusive, lumping the great majority who come to the State for other purposes with those who come for the sole purpose of collecting higher benefits. In actual operation, therefore, the three statutes enact what in effect are nonrebuttable presumptions that every applicant for assistance in his first year of residence came to the jurisdiction solely to obtain higher benefits. Nothing whatever in any of these records supplies any basis in fact for such a presumption. More fundamentally, a State may no more try to fence out those indigents who seek higher welfare benefits than it may try to fence out indigents generally. Implicit in any such distinction is the notion that indigents who enter a State with the hope of securing

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higher welfare benefits are somehow less deserving than indigents who do not take this consideration into account. But we do not perceive why a mother who is seeking to make a new life for herself and her children should be regarded as less deserving because she considers, among other factors, the level of a State’s public assistance. Surely such a mother is no less deserving than a mother who moves into a particular State in order to take advantage of its better educational facilities. Appellants argue further that the challenged classification may be sustained as an attempt to distinguish between new and old residents on the basis of the contribution they have made to the community through the payment of taxes. We have difficulty seeing how long-term residents who qualify for welfare are making a greater present contribution to the State in taxes than indigent residents who have recently arrived. If the argument is based on contributions made in the past by the long-term residents, there is some question, as a factual matter, whether this argument is applicable in Pennsylvania where the record suggests that some 40 percent of those denied public assistance because of the waiting period had lengthy prior residence in the State. But we need not rest on the particular facts of these cases. Appellants’ reasoning would logically permit the State to bar new residents from schools, parks, and libraries or deprive them of police and fire protection. Indeed it would permit the State to apportion all benefits and services according to the past tax contributions of its citizens. The Equal Protection Clause prohibits such an apportionment of state services. We recognize that a State has a valid interest in preserving the fiscal integrity of its programs. It may legitimately attempt to limit its expenditures, whether for public assistance, public education, or any other program. But a State may not accomplish such a purpose by invidious distinctions between classes of its citizens. It could not, for example, reduce expenditures for education by barring indigent children from its schools. Similarly, in the cases before us, appellants must do more than show that denying welfare benefits to new residents saves money. The saving of welfare costs cannot justify an otherwise invidious classification. In sum, neither deterrence of indigents from migrating to the State nor limitation of welfare benefits to those regarded as contributing to the State is a constitutionally permissible state objective. 756

IV Appellants next advance as justification certain administrative and related governmental objectives allegedly served by the waiting-period requirement. They argue that the requirement (1) facilitates the planning of the welfare budget; (2) provides an objective test of residency; (3) minimizes the opportunity for recipients fraudulently to receive payments from more than one jurisdiction; and (4) encourages early entry of new residents into the labor force. At the outset, we reject appellants’ argument that a mere showing of a rational relationship between the waiting period and these four admittedly permissible state objectives will suffice to justify the classification. The waiting-period provision denies welfare benefits to otherwise eligible applicants solely because they have recently moved into the jurisdiction. But in moving from State to State or to the District of Columbia appellees were exercising a constitutional right, and any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional. . . . The argument that the waiting-period requirement facilitates budget predictability is wholly unfounded. The records in all three cases are utterly devoid of evidence that either State or the District of Columbia in fact uses the one-year requirement as a means to predict the number of people who will require assistance in the budget year. None of the appellants takes a census of new residents or collects any other data that would reveal the number of newcomers in the State less than a year. Nor are new residents required to give advance notice of their need for welfare assistance. Thus, the welfare authorities cannot know how many new residents come into the jurisdiction in any year, much less how many of them will require public assistance. In these circumstances, there is simply no basis for the claim that the one-year waiting requirement serves the purpose of making the welfare budget more predictable. . . . ... Similarly, there is no need for a State to use the one-year waiting period as a safeguard against fraudulent receipt of benefits; for less drastic means are available, and are employed, to minimize that hazard. Of course, a State has a valid interest in preventing fraud by any applicant, whether a newcomer or a long-time resident. . . .

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Pennsylvania suggests that the one-year waiting period is justified as a means of encouraging new residents to join the labor force promptly. But this logic would also require a similar waiting period for long-term residents of the State. A state purpose to encourage employment provides no rational basis for imposing a one-year waiting-period restriction on new residents only. We conclude therefore that appellants in these cases do not use and have no need to use the oneyear requirement for the governmental purposes suggested. Thus, even under traditional equal protection tests a classification of welfare applicants according to whether they have lived in the State for one year would seem irrational and unconstitutional. But, of course, the traditional criteria do not apply in these cases. Since the classification here touches on the fundamental right of interstate movement, its constitutionality must be judged by the stricter standard of whether it promotes a compelling state interest. Under this standard, the waiting-period requirement clearly violates the Equal Protection Clause. V Connecticut and Pennsylvania argue, however, that the constitutional challenge to the waiting-period requirements must fail because Congress expressly approved the imposition of the requirement by the States as part of the jointly funded AFDC program. ... But even if we were to assume, arguendo, that Congress did approve the imposition of a one-year waiting period, it is the responsive state legislation which infringes constitutional rights. By itself § 402 (b) has absolutely no restrictive effect. It is therefore not that statute but only the state requirements which pose the constitutional question. Finally, even if it could be argued that the constitutionality of § 402 (b) is somehow at issue here, it follows from what we have said that the provision, insofar as it permits the one-year waiting-period requirement, would be unconstitutional. Congress may not authorize the States to violate the Equal Protection Clause. Perhaps Congress could induce wider state participation in school construction if it authorized the use of joint funds for the building of segregated schools. But could it seriously be contended that Congress would be constitutionally

justified in such authorization by the need to secure state cooperation? Congress is without power to enlist state cooperation in a joint federal-state program by legislation which authorizes the States to violate the Equal Protection Clause. VI The waiting-period requirement in the District of Columbia Code involved in No. 33 is also unconstitutional even though it was adopted by Congress as an exercise of federal power. In terms of federal power, the discrimination created by the one-year requirement violates the Due Process Clause of the Fifth Amendment. “While the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is ‘so unjustifiable as to be violative of due process.’” Schneider v. Rusk (1964); Bolling v. Sharpe (1954). For the reasons we have stated in invalidating the Pennsylvania and Connecticut provisions, the District of Columbia provision is also invalid—the Due Process Clause of the Fifth Amendment prohibits Congress from denying public assistance to poor persons otherwise eligible solely on the ground that they have not been residents of the District of Columbia for one year at the time their applications are filed. Accordingly, the judgments in Nos. 9, 33, and 34 are Affirmed. [The concurring opinion of JUSTICE STEWART is not reprinted here.] CHIEF JUSTICE WARREN, joined by JUSTICE BLACK, dissenting: In my opinion the issue before us can be simply stated: May Congress, acting under one of its enumerated powers, impose minimal nationwide residence requirements or authorize the States to do so? Since I believe that Congress does have this power and has constitutionally exercised it in these cases, I must dissent. ... The Court’s decision reveals only the top of the iceberg. Lurking beneath are the multitude of situations in which States have imposed residence requirements including eligibility to vote, to engage in certain professions or occupations or to attend a state-supported university. Although the Court takes pains to avoid acknowledging the ramifications of

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its decision, its implications cannot be ignored. I dissent. JUSTICE HARLAN, dissenting: ... In upholding the equal protection argument, the Court has applied an equal protection doctrine of relatively recent vintage: the rule that statutory classifications which either are based upon certain “suspect” criteria or affect “fundamental rights” will be held to deny equal protection unless justified by a “compelling” governmental interest. The “compelling interest” doctrine, which today is articulated more explicitly than ever before, constitutes an increasingly significant exception to the long-established rule that a statute does not deny equal protection if it is rationally related to a legitimate governmental objective. The “compelling interest” doctrine has two branches. The branch which requires that classifications based upon “suspect” criteria be supported by a compelling interest apparently had its genesis in cases involving racial classifications, which have, at least since Korematsu v. United States, been regarded as inherently “suspect.” The criterion of “wealth” apparently was added to the list of “suspects” as an alternative justification for the rationale in Harper v. Virginia Bd. of Elections (1966), in which Virginia’s poll tax was struck down. The criterion of political allegiance may have been added in Williams v. Rhodes (1968). Today the list apparently has been further enlarged to include classifications based upon recent interstate movement, and perhaps those based upon the exercise of any constitutional right. ... I think that this branch of the “compelling interest” doctrine is sound when applied to racial classifications, for historically the Equal Protection Clause was largely a product of the desire to eradicate legal distinctions founded upon race. However, I believe that the more recent extensions have been unwise. For the reasons stated in my dissenting opinion in Harper v. Virginia Bd. of Elections, I do not consider wealth a “suspect” statutory criterion. . . . The second branch of the “compelling interest” principle is even more troublesome. For it has been held that a statutory classification is subject to the “compelling interest” test if the result of the 758

classification may be to affect a “fundamental right,” regardless of the basis of the classification. . . . I think this branch of the “compelling interest” doctrine particularly unfortunate and unnecessary. It is unfortunate because it creates an exception which threatens to swallow the standard equal protection rule. Virtually every state statute affects important rights. This Court has repeatedly held, for example, that the traditional equal protection standard is applicable to statutory classifications affecting such fundamental matters as the right to pursue a particular occupation, the right to receive greater or smaller wages or to work more or less hours, and the right to inherit property. Rights such as these are in principle indistinguishable from those involved here, and to extend the “compelling interest” rule to all cases in which such rights are affected would go far toward making this Court a “super-legislature.” This branch of the doctrine is also unnecessary. When the right affected is one assured by the Federal Constitution, any infringement can be dealt with under the Due Process Clause. But when a statute affects only matters not mentioned in the Federal Constitution and is not arbitrary or irrational, I must reiterate that I know of nothing which entitles this Court to pick out particular human activities, characterize them as “fundamental,” and give them added protection under an unusually stringent equal protection test. If the issue is regarded purely as one of equal protection, then, for the reasons set forth, this nonracial classification should be judged by ordinary equal protection standards. The applicable criteria are familiar and well established. A legislative measure will be found to deny equal protection only if “it is without any reasonable basis and therefore is purely arbitrary.” . . . For reasons hereafter set forth, a legislature might rationally find that the imposition of a welfare residence requirement would aid in the accomplishment of at least four valid governmental objectives. . . . . . . First, it is evident that a primary concern of Congress and the Pennsylvania and Connecticut Legislatures was to deny welfare benefits to persons who moved into the jurisdiction primarily in order to collect those benefits. . . . A second possible purpose of residence requirements is the prevention of fraud. . . . Third, the requirement of a fixed period of residence may help in predicting the budgetary amount which will be needed for public assistance in the future. . . . Fourth, the residence requirements conceivably may

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have been predicated upon a legislative desire to restrict welfare payments financed in part by state tax funds to persons who have recently made some contribution to the State’s economy, through having been employed, having paid taxes, or having spent money in the State. This too would appear to be a legitimate purpose. The next question is the decisive one: whether the governmental interests served by residence requirements outweigh the burden imposed upon the right to travel. In my view, a number of considerations militate in favor of constitutionality. First, as just shown, four separate, legitimate governmental interests are furthered by residence requirements. Second, the impact of the requirements upon the freedom of individuals to travel interstate is indirect and, according to evidence put forward by the appellees themselves, insubstantial. Third, these are not cases in which a State or States, acting alone, have attempted to interfere with the right of citizens to travel, but one in which the States have acted within the terms of a limited authorization by the National Government, and in which Congress itself has laid down a like rule for the District of Columbia. Fourth, the legislatures which enacted these statutes have been fully exposed to the arguments of the appellees as to why these residence requirements are unwise, and have rejected them. This is not, therefore, an instance in which legislatures have acted without mature deliberation. Fifth, and of longer-range importance, the field of welfare assistance is one in which there is a widely recognized need for fresh solutions and consequently for experimentation. . . . Sixth and finally, a strong presumption of constitutionality attaches to statutes of the types now before us. Congressional enactments come to this Court with an extremely heavy presumption of validity. A similar presumption of constitutionality attaches to state statutes, particularly when, as here, a State has acted upon a specific authorization from Congress. I do not consider that the factors which have been urged to outweigh these considerations are sufficient to render unconstitutional these state and federal enactments. It is said, first, that this Court, in the opinions discussed, has acknowledged that the right to travel interstate is a “fundamental” freedom. Second, it is contended that the governmental objectives mentioned above either are ephemeral or could be accomplished by means which do not impinge as

heavily on the right to travel, and hence that the requirements are unconstitutional because they “sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama (1964). The appellees claim that welfare payments could be denied those who come primarily to collect welfare by means of less restrictive provisions, such as New York’s Welfare Abuses Law; that fraud could be prevented by investigation of individual applicants or by a much shorter residence period; that budgetary predictability is a remote and speculative goal; and that assurance of investment in the community could be obtained by a shorter residence period or by taking into account prior intervals of residence in the jurisdiction. Taking all of these competing considerations into account, I believe that the balance definitely favors constitutionality. In reaching that conclusion, I do not minimize the importance of the right to travel interstate. However, the impact of residence conditions upon that right is indirect and apparently quite insubstantial. On the other hand, the governmental purposes served by the requirements are legitimate and real, and the residence requirements are clearly suited to their accomplishment. To abolish residence requirements might well discourage highly worthwhile experimentation in the welfare field. The statutes come to us clothed with the authority of Congress and attended by a correspondingly heavy presumption of constitutionality. Moreover, although the appellees assert that the same objectives could have been achieved by less restrictive means, this is an area in which the judiciary should be especially slow to fetter the judgment of Congress and of some forty-six state legislatures in the choice of methods. Residence requirements have advantages, such as administrative simplicity and relative certainty, which are not shared by the alternative solutions proposed by the appellees. In these circumstances, I cannot find that the burden imposed by residence requirements upon ability to travel outweighs the governmental interests in their continued employment. Nor do I believe that the period of residence required in these cases—one year—is so excessively long as to justify a finding of unconstitutionality on that score. I conclude with the following observations. Today’s decision, it seems to me, reflects to an unusual degree the current notion that this Court possesses a peculiar wisdom all its own whose capacity

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to lead this Nation out of its present troubles is contained only by the limits of judicial ingenuity in contriving new constitutional principles to meet each problem as it arises. For anyone who, like myself, believes that it is an essential function of this Court to maintain the constitutional divisions between state and federal authority and among the three branches of the Federal Government, today’s decision is a step in the wrong direction. This resurgence of the expansive view of “equal protection” carries the seeds of more judicial interference with the state and federal legislative process, much more indeed than does the judicial application of “due process” according to traditional concepts (see my dissenting opinion in Duncan v. Louisiana (1968)), about which some members of this Court have expressed fears as to its potentialities for setting us judges “at large.” I consider it particularly unfortunate that this judicial roadblock to the powers of Congress in this field should occur at the very threshold of the current discussions regarding the “federalizing” of these aspects of welfare relief.

POVERTY, PUBLIC SCHOOLS, AND THE PROPERTY TAX FEATURED CASE

San Antonio Independent School District v. Rodriguez In San Antonio Independent School District v. Rodriguez (411 U.S. 1, 1973), the Supreme Court rejected challenges to the Texas system of financing public school education. Rodriguez contended that the Texas system of supplementing state aid to school districts by means of an ad valorem tax on property within the jurisdiction of the individual school district violated the equal protection clause. Rodriguez, whose children attended schools in a district with lower per-pupil expenditures but higher property tax rates than in other area districts, argued that substantial differences in per-pupil expenditures among the districts resulted from the differences in the value of the property that was taxed within each district. Justice Lewis Powell, speaking for a 5–4 majority of the Court, said that the financing system, although not perfect, “abundantly satisfies” the constitutional standard for equal protection because the system “rationally furthers a legitimate state purpose

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or interest.” Powell said that the traditional equal protection standard applied, as “the Texas system does not operate to the peculiar disadvantage of any suspect class” and as education, although it is an important state service, is not a “fundamental” right because it is not “explicitly or implicitly guaranteed by the Constitution.” Justices Brennan, White, Douglas, and Marshall dissented. The Rodriguez decision displayed the limits of the Court’s willingness to identify fundamental rights that would trigger strict scrutiny under the Fourteenth Amendment’s equal protection clause. As the Court noted in an earlier holding, “Education presents a myriad of ‘intractable economic, social, and even philosophical problems’.” (Dandridge v. Williams, 397 U.S. 471, 1970) Rodriguez, in particular, had powerful repercussions on the education of lower income children and poor communities generally. Within the prevailing American ethos, education is portrayed as an enabler of social mobility and an inculcator of civic values. Defenders of funding education through local property taxes argue that differences in spending reflect a differential willingness to pay for quality education. But lower income communities, by virtue of their relatively small tax bases, simply lack the wherewithal to fund their schools on a par with more affluent communities, even when both groups have common priorities regarding education funding. But Rodriguez was not the last word on the subject. Indeed, a number of state supreme courts have ruled on the constitutionality of their states’ school financing systems. Although some state supreme courts have found their school financing systems to be constitutional, other state supreme courts have held that the system which was utilized in their state violates educational provisions in the state constitution. To some extent, the trend toward litigating civil rights issues at the state, rather than the federal, level reflects a response to a federal judiciary that many suggest has become more conservative. Pursuing equalized funding claims at the state level is but one manifestation of a broader move to take advantage of state constitutions that grant rights which exceed the rights specified in the Constitution (e.g., the right to equal education) or that define provisions of the latter document more expansively than have federal courts (e.g., the right of privacy). (See the discussion of state constitutions in Chapter 2.)

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SAN ANTONIO INDEPENDENT SCHOOL DISTRICT V. RODRIGUEZ 411 U.S. 1; 36 L. ED. 2D 16; 93 S. CT. 1278 (1973) JUSTICE POWELL delivered the opinion of the Court, in which CHIEF JUSTICE BURGER and JUSTICES STEWART, BLACKMUN, and REHNQUIST joined. JUSTICE STEWART filed a concurring opinion. JUSTICE BRENNAN filed a dissenting opinion. JUSTICE WHITE filed a dissenting opinion, in which JUSTICES DOUGLAS and BRENNAN joined. JUSTICE MARSHALL filed a dissenting opinion, in which JUSTICE DOUGLAS joined. JUSTICE POWELL delivered the opinion of the Court. This suit attacking the Texas system of financing public education was initiated by MexicanAmerican parents whose children attend the elementary and secondary schools in the Edgewood Independent School District, an urban school district in San Antonio, Texas. They brought a class action on behalf of schoolchildren throughout the State who are members of minority groups or who are poor and reside in school districts having a low property tax base. . . . In December 1971 [a 3judge federal district court held] the Texas school finance system unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. The State appealed, and . . . for the reasons stated in this opinion, we reverse the decision of the District Court. I Until recent times, Texas was a predominantly rural State and its population and property wealth were spread relatively evenly across the State. Sizable differences in the value of assessable property between local school districts became increasingly evident as the State became more industrialized and as rural-tourban population shifts became more pronounced. The location of commercial and industrial property began to play a significant role in determining the amount of tax resources available to each school district. These growing disparities in population and taxable property between districts were responsible in part for increasingly notable differences in levels of local expenditure for education.

In due time it became apparent to those concerned with financing public education that contributions from the Available School Fund were not sufficient to ameliorate these disparities. . . . Recognizing the need for increased state funding to help offset disparities in local spending and to meet Texas’ changing educational requirements, the state legislature in the late 1940s undertook a thorough evaluation of public education with an eye toward major reform. In 1947, an 18-member committee, composed of educators and legislators, was appointed to explore alternative systems in other States and to propose a funding scheme that would guarantee a minimum or basic educational offering to each child and that would help overcome interdistrict disparities in taxable resources. The Committee’s efforts led to the passage of . . . bills . . . establishing the Texas Minimum Foundation School Program. Today, this Program accounts for approximately half of the total educational expenditures in Texas. . . . The design of this complex system was twofold. First, it was an attempt to assure that the Foundation Program would have an equalizing influence on expenditure levels between school districts by placing the heaviest burden on the school districts most capable of paying. Second, the Program’s architects sought to establish a Local Fund Assignment that would force every school district to contribute to the education of its children but that would not by itself exhaust any district’s resources. Today every school district does impose a property tax from which it derives locally expendable funds in excess of the amount necessary to satisfy its Local Fund Assignment under the Foundation Program. . . . The school district in which appellees reside, the Edgewood Independent School District, has been compared throughout this litigation with the Alamo Heights Independent School District. This comparison between the least and most affluent districts in the San Antonio area serves to illustrate the manner in which the dual system of finance operates and to

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indicate the extent to which substantial disparities exist despite the State’s impressive progress in recent years. Edgewood is one of seven public school districts in the metropolitan area. Approximately 22,000 students are enrolled in its twenty-five elementary and secondary schools. The district is situated in the core-city sector of San Antonio in a residential neighborhood that has little commercial or industrial property. The residents are predominantly of Mexican-American descent: approximately 90 percent of the student population is Mexican-American and over 6 percent is Negro. The average assessed property value per pupil is $5,960—the lowest in the metropolitan area—and the median family income ($4,686) is also the lowest. At an equalized tax rate of $1.05 per $100 of assessed property—the highest in the metropolitan area—the district contributed $26 to the education of each child for the 1967–1968 school year above its Local Fund Assignment for the Minimum Foundation Program. The Foundation Program contributed $222 per pupil for a state-local total of $248.31. Federal funds added another $108 for a total of $356 per pupil. Alamo Heights is the most affluent school district in San Antonio. Its six schools, housing approximately 5,000 students, are situated in a residential community quite unlike the Edgewood District. The school population is predominantly “Anglo,” having only 18 percent Mexican-Americans and less than 1 percent Negroes. The assessed property value per pupil exceeds $49,000, and the median family income is $8,001. In 1967–1968 the local tax rate of $.85 per $100 of valuation yielded $333 per pupil over and above its contribution to the Foundation Program. Coupled with the $225 provided from that Program, the district was able to supply $558 per student. Supplemented by a $36 per-pupil grant from federal sources, Alamo Heights spent $594 per pupil. Although the 1967–1968 school year figures provide the only complete statistical breakdown for each category of aid, more recent partial statistics indicate that the previously noted trend of increasing state aid has been significant. For the 1970–1971 school year, the Foundation School Program allotment for Edgewood was $356 per pupil, a 62 percent increase over the 1967–1968 school year. Indeed, state aid alone in 1970–1971 equaled Edgewood’s entire 1967–1968 school budget from local, state, and federal sources. Alamo Heights enjoyed a similar increase under the Foundation Program, netting 762

$491 per pupil in 1970–1971.* These recent figures also reveal the extent to which these two districts’ allotments were funded from their own required contributions to the Local Fund Assignment. Alamo Heights, because of its relative wealth, was required to contribute out of its local property tax collections approximately $100 per pupil, or about 20 percent of its Foundation grant. Edgewood, on the other hand, paid only $8.46 per pupil, which is about 2.4 percent of its grant. It appears then that, at least as to these two districts, the Local Fund Assignment does reflect a rough approximation of the relative taxpaying potential of each. Despite these recent increases, substantial interdistrict disparities in school expenditures found by the District Court to prevail in San Antonio and in varying degrees throughout the State still exist. And it was these disparities, largely attributable to differences in the amounts of money collected through local property taxation, that led the District Court to conclude that Texas’ dual system of public school financing violated the Equal Protection Clause. The District Court held that the Texas system discriminates on the basis of wealth in the manner in which education is provided for its people. Finding that wealth is a “suspect” classification and that education is a “fundamental” interest, the District Court held that the Texas system could be sustained only if the State could show that it was premised upon some compelling state interest. On this issue the court concluded that “[n]ot only are defendants unable to demonstrate compelling state interests . . .

*Although the Foundation Program has made significantly greater contributions to both school districts over the last several years, it is apparent that Alamo Heights has enjoyed a larger gain. The sizable difference between the Alamo Heights and Edgewood grants is due to the emphasis in the state’s allocation formula on the guaranteed minimum salaries for teachers. Higher salaries are guaranteed to teachers who have more years of experience and possess more advanced degrees. Therefore, Alamo Heights, which has a greater percentage of experienced personnel with advanced degrees, receives more state support. Because more dollars have been given to districts that already spend more per pupil, such Foundation formulas have been described as “anti-equalizing.” The formula, however, is anti-equalizing only if it is viewed in absolute terms. The percentage disparity between the two Texas districts is diminished substantially by state aid. Alamo Heights derived in 1967–1968 almost 13 times as much money from local taxes as Edgewood did. The state aid grants to each district in 1970–1971 lowered the ratio to approximately two to one (i.e., Alamo Heights had a little more than twice as much money to spend per pupil from its combined state and local resources).

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they fail even to establish a reasonable basis for these classifications.” Texas virtually concedes that its historically rooted dual system of financing education could not withstand the strict judicial scrutiny that this Court has found appropriate in reviewing legislative judgments that interfere with fundamental constitutional rights or that involve suspect classifications. If, as previous decisions have indicated, strict scrutiny means that the State’s system is not entitled to the usual presumption of validity, that the State rather than the complainants must carry a “heavy burden of justification,” that the State must demonstrate that its educational system has been structured with “precision,” and is “tailored” narrowly to serve legitimate objectives and that it has selected the “less drastic means” for effectuating its objectives, the Texas financing system and its counterpart in virtually every other State will not pass muster. The State candidly admits that “[n]o one familiar with the Texas system would contend that it has yet achieved perfection.” Apart from its concession that educational financing in Texas has “defects” and “imperfections,” the State defends the system’s rationality with vigor and disputes the District Court’s finding that it lacks a “reasonable basis.” This, then, establishes the framework for our analysis. We must decide, first, whether the Texas system of financing public education operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny. If so, the judgment of the District Court should be affirmed. If not, the Texas scheme must still be examined to determine whether it rationally furthers some legitimate, articulated state purpose and therefore does not constitute an invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. II The District Court’s opinion does not reflect the novelty and complexity of the constitutional questions posed by appellees’ challenge to Texas’ system of school financing. In concluding that strict judicial scrutiny was required, that court relied on decisions dealing with the rights of indigents to equal treatment in the criminal trial and appellate processes, and on cases disapproving wealth restrictions on the right to vote. Those cases, the District Court

concluded, established wealth as a suspect classification. Finding that the local property tax system discriminated on the basis of wealth, it regarded those precedents as controlling. It then reasoned, based on decisions of this Court affirming the undeniable importance of education, that there is a fundamental right to education and that, absent some compelling state justification, the Texas system could not stand. We are unable to agree that this case, which in significant aspects is sui generis, may be so neatly fitted into the conventional mosaic of constitutional analysis under the Equal Protection Clause. Indeed, for the several reasons that follow, we find neither the suspect-classification nor the fundamental-interest analysis persuasive. A The wealth discrimination discovered by the District Court in this case, and by several other courts that have recently struck down school-financing laws in other States, is quite unlike any of the forms of wealth discrimination heretofore reviewed by this Court. Rather than focusing on the unique features of the alleged discrimination, the courts in these cases have virtually assumed their findings of a suspect classification through a simplistic process of analysis: since, under the traditional systems of financing public schools, some poorer people receive less expensive educations than other more affluent people, these systems discriminate on the basis of wealth. This approach largely ignores the hard threshold questions, including whether it makes a difference for purposes of consideration under the Constitution that the class of disadvantaged “poor” cannot be identified or defined in customary equal protection terms, and whether the relative—rather than absolute— nature of the asserted deprivation is of significant consequence. Before a State’s laws and the justifications for the classifications they create are subjected to strict judicial scrutiny, we think these threshold considerations must be analyzed more closely than they were in the court below. The case comes to us with no definitive description of the classifying facts or delineation of the disfavored class. Examination of the District Court’s opinion and of appellees’ complaint, briefs, and contentions at oral argument suggests, however, at least three ways in which the discrimination claimed here might be described. The Texas system of school financing might be regarded as discriminating

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(1) against “poor” persons whose incomes fall below some identifiable level of poverty or who might be characterized as functionally “indigent,” or (2) against those who are relatively poorer than others, or (3) against all those who, irrespective of their personal incomes, happen to reside in relatively poorer school districts. Our task must be to ascertain whether, in fact, the Texas system has been shown to discriminate on any of these possible bases. . . . [Here follows an examination of the Court’s precedents that consider discrimination against indigents.] Only appellees’ first possible basis for describing the class disadvantaged by the Texas school-financing system—discrimination against a class of definably “poor” persons—might arguably meet the criteria established in these prior cases. Even a cursory examination, however, demonstrates that neither of the two distinguishing characteristics of wealth classifications can be found here. First, in support of their charge that the system discriminates against the “poor,” appellees have made no effort to demonstrate that it operates to the peculiar disadvantage of any class fairly definable as indigent, or as composed of persons whose incomes are beneath any designated poverty level. Indeed, there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts. A recent and exhaustive study of school districts in Connecticut concluded that “[i]t is clearly incorrect . . . to contend that the ‘poor’ live in ‘poor’ districts.” . . . [T]he Connecticut study found, not surprisingly, that the poor were clustered around commercial and industrial areas—those same areas that provide the most attractive sources of property tax income for school districts. Whether a similar pattern would be discovered in Texas is not known, but there is no basis on the record in this case for assuming that the poorest people—defined by reference to any level of absolute impecunity—are concentrated in the poorest districts. Second, neither appellees nor the District Court addressed the fact that . . . lack of personal resources has not occasioned an absolute deprivation of the desired benefit. The argument here is not that the children in districts having relatively low assessable property values are receiving no public education; rather, it is that they are receiving a poorer quality education than that available to children in districts having more assessable wealth. Apart from the unsettled and disputed question whether the quality of education may be determined by the amount of 764

money expended for it, a sufficient answer to appellees’ argument is that, at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages. Nor, indeed, in view of the infinite variables affecting the educational process, can any system assure equal quality of education except in the most relative sense. Texas asserts that the Minimum Foundation Program provides an “adequate” education for all children in the State. By providing twelve years of free public-school education, and by assuring teachers, books, transportation, and operating funds, the Texas Legislature has endeavored to “guarantee, for the welfare of the state as a whole, that all people shall have at least an adequate program of education. This is what is meant by ‘A Minimum Foundation Program of Education.’” The State repeatedly asserted in its briefs in this Court that it has fulfilled this desire and that it now assures “every child in every school district an adequate education.” No proof was offered at trial persuasively discrediting or refuting the State’s assertion. For these two reasons—the absence of any evidence that the financing system discriminates against any definable category of “poor” people or that it results in the absolute deprivation of education—the disadvantaged class is not susceptible of identification in traditional terms. Appellees and the District Court may have embraced a second or third approach, the second of which might be characterized as a theory of relative or comparative discrimination based on family income. Appellees sought to prove that a direct correlation exists between the wealth of families within each district and the expenditures therein for education. That is, along a continuum, the poorer the family the lower the dollar amount of education received by the family’s children. The principal evidence adduced in support of this comparative-discrimination claim is an affidavit submitted by Professor Joel S. Berke of Syracuse University’s Educational Finance Policy Institute. The District Court, relying in major part upon this affidavit and apparently accepting the substance of appellees’ theory, noted, first, a positive correlation between the wealth of school districts, measured in terms of assessable property per pupil, and their levels of per-pupil expenditures. Second, the court found a similar correlation between district wealth and the personal wealth of its residents, measured in terms of median family income.

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If, in fact, these correlations could be sustained, then it might be argued that expenditures on education—equated by appellees to the quality of education—are dependent on personal wealth. Appellees’ comparative-discrimination theory would still face serious unanswered questions, including whether a bare positive correlation or some higher degree of correlation is necessary to provide a basis for concluding that the financing system is designed to operate to the peculiar disadvantage of the comparatively poor, and whether a class of this size and diversity could ever claim the special protection accorded “suspect” classes. These questions need not be addressed in this case, however, since appellees’ proof fails to support their allegations or the District Court’s conclusions. . . . This brings us, then, to the third way in which the classification scheme might be defined—district wealth discrimination. Since the only correlation indicated by the evidence is between district property wealth and expenditures, it may be argued that discrimination might be found without regard to the individual income characteristics of district residents. Assuming a perfect correlation between district property wealth and expenditures from top to bottom, the disadvantaged class might be viewed as encompassing every child in every district except the district that has the most assessable wealth and spends the most on education. Alternatively, as suggested in JUSTICE MARSHALL’S dissenting opinion, the class might be defined more restrictively to include children in districts with assessable property which falls below the statewide average, or median, or below some other artificially defined level. However described, it is clear that appellees’ suit asks this Court to extend its most exacting scrutiny to review a system that allegedly discriminates against a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts. The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness: the class is not saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process. We thus conclude that the Texas system does not operate to the peculiar disadvantage of any suspect class. But in recognition of the fact that this Court

has never heretofore held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny, appellees have not relied solely on this contention. They also assert that the State’s system impermissibly interferes with the exercise of a “fundamental” right and that accordingly the prior decisions of this Court require the application of the strict standard of judicial review. It is this question— whether education is a fundamental right, in the sense that it is among the rights and liberties protected by the Constitution—which has so consumed the attention of courts and commentators in recent years. B . . . The lesson of [our] cases in addressing the question now before the Court is plain. It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws. Thus, the key to discovering whether education is “fundamental” is not to be found in comparisons of the relative societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing whether education is as important as the right to travel. Rather, the answer lies in assessing whether there is a right to education explicitly or implicitly guaranteed by the Constitution. . . . Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected. As we have said, the undisputed importance of education will not alone cause this Court to depart from the usual standard for reviewing a State’s social and economic legislation. It is appellees’ contention, however, that education is distinguishable from other services and benefits provided by the State because it bears a peculiarly close relationship to other rights and liberties accorded protection under the Constitution. Specifically, they insist that education is itself a fundamental personal right because it is essential to the effective exercise of First Amendment freedoms and to intelligent utilization of the right to vote. In asserting a nexus between speech and education, appellees urge that the right to speak is meaningless unless the speaker is capable of articulating his thoughts intelligently and persuasively. The “marketplace of ideas” is an empty forum for those lacking basic communicative tools. Likewise, they argue that the corollary right to receive information

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becomes little more than a hollow privilege when the recipient has not been taught to read, assimilate, and utilize available knowledge. A similar line of reasoning is pursued with respect to the right to vote. . . . We need not dispute any of these propositions. The Court has long afforded zealous protection against unjustifiable governmental interference with the individual’s rights to speak and to vote. Yet we have never presumed to possess either the ability or the authority to guarantee to the citizenry the most effective speech or the most informed electoral choice. That these may be desirable goals of a system of freedom of expression and of a representative form of government is not to be doubted. These are indeed goals to be pursued by a people whose thoughts and beliefs are freed from governmental interference. But they are not values to be implemented by judicial intrusion into otherwise legitimate state activities. . . . We have carefully considered each of the arguments supportive of the District Court’s finding that education is a fundamental right or liberty and have found those arguments unpersuasive. . . . C . . . We need not rest our decision, however, solely on the inappropriateness of the strict-scrutiny test. A century of Supreme Court adjudication under the Equal Protection Clause affirmatively supports the application of the traditional standard of review, which requires only that the State’s system be shown to bear some rational relationship to legitimate state purposes. This case represents far more than a challenge to the manner in which Texas provides for the education of its children. We have here nothing less than a direct attack on the way in which Texas has chosen to raise and disburse state and local tax revenues. We are asked to condemn the State’s judgment in conferring on political subdivisions the power to tax local property to supply revenues for local interests. In so doing, appellees would have the Court intrude in an area in which it has traditionally deferred to state legislatures. This Court has often admonished against such interferences with the State’s fiscal policies under the Equal Protection Clause. . . . Thus, we stand on familiar ground when we continue to acknowledge that the Justices of this Court lack both the expertise and the familiarity with local problems so necessary to the making of wise decisions 766

with respect to the raising and disposition of public revenues. . . . No scheme of taxation, whether the tax is imposed on property, income, or purchases of goods and services, has yet been devised which is free of all discriminatory impact. In such a complex arena in which no perfect alternatives exist, the Court does well not to impose too rigorous a standard of scrutiny lest all local fiscal schemes become subjects of criticism under the Equal Protection Clause. In addition to matters of fiscal policy, this case also involves the most persistent and difficult questions of educational policy, another area in which this Court’s lack of specialized knowledge and experience counsels against premature interference with the informed judgments made at the state and local levels. Education, perhaps even more than welfare assistance, presents a myriad of “intractable economic, social, and even philosophical problems.” The very complexity of the problems of financing and managing a statewide public school system suggests that “there will be more than one constitutionally permissible method of solving them,” and that, within the limits of rationality, “the legislature’s efforts to tackle the problems” should be entitled to respect. . . . In such circumstances, the judiciary is well advised to refrain from imposing on the States inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions. . . . III Appellees further urge that the Texas system is unconstitutionally arbitrary because it allows the availability of local taxable resources to turn on “happenstance.” They see no justification for a system that allows, as they contend, the quality of education to fluctuate on the basis of the fortuitous positioning of the boundary lines of political subdivisions and the location of valuable commercial and industrial property. But any scheme of local taxation—indeed the very existence of identifiable local governmental units—requires the establishment of jurisdictional boundaries that are inevitably arbitrary. It is equally inevitable that some localities are going to be blessed with more taxable assets than others. Nor is local wealth a static quantity. Changes in the level of taxable wealth within any district may result from any number of events, some of which local residents can and do influence. For

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instance, commercial and industrial enterprises may be encouraged to locate within a district by various actions—public and private. Moreover, if local taxation for local expenditures were an unconstitutional method of providing for education then it might be an equally impermissible means of providing other necessary services customarily financed largely from local property taxes, including local police and fire protection, public health and hospitals, and public utility facilities of various kinds. We perceive no justification for such a severe denigration of local property taxation and control as would follow from appellees’ contentions. It has simply never been within the constitutional prerogative of this Court to nullify statewide measures for financing public services merely because the burdens or benefits thereof fall unevenly depending upon the relative wealth of the political subdivisions in which citizens live. In sum, to the extent that the Texas system of school financing results in unequal expenditures between children who happen to reside in different districts, we cannot say that such disparities are the product of a system that is so irrational as to be invidiously discriminatory. . . . We are unwilling to assume for ourselves a level of wisdom superior to that of legislators, scholars, and educational authorities in fifty States, especially where the alternatives proposed are only recently conceived and nowhere yet tested. The constitutional standard under the Equal Protection Clause is whether the challenged state action rationally furthers a legitimate state purpose or interest. We hold that the Texas plan abundantly satisfies this standard. . . . Reversed. [The concurring opinion of JUSTICE STEWART and the dissenting opinions of JUSTICES BRENNAN and WHITE are not reprinted here.] JUSTICE MARSHALL, joined by JUSTICE DOUGLAS, dissenting: The Court today decides, in effect, that a State may constitutionally vary the quality of education which it offers its children in accordance with the amount of taxable wealth located in the school districts within which they reside. The majority’s decision represents an abrupt departure from the mainstream of recent state and federal court decisions concerning the unconstitutionality of state educational

financing schemes dependent upon taxable local wealth. More unfortunately, though, the majority’s holding can only be seen as a retreat from our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens. The Court does this despite the absence of any substantial justification for a scheme which arbitrarily channels educational resources in accordance with the fortuity of the amount of taxable wealth within each district. In my judgment, the right of every American to an equal start in life, so far as the provision of a state service as important as education is concerned, is far too vital to permit state discrimination on grounds as tenuous as those presented by this record. Nor can I accept the notion that it is sufficient to remit these appellees to the vagaries of the political process which, contrary to the majority’s suggestion, has proved singularly unsuited to the task of providing a remedy for this discrimination. I, for one, am unsatisfied with the hope of an ultimate “political” solution sometime in the indefinite future while, in the meantime, countless children unjustifiably receive inferior educations that “may affect their hearts and minds in a way unlikely ever to be undone.” I must therefore respectfully dissent. I The Court acknowledges that “substantial interdistrict disparities in school expenditures” exist in Texas. . . . But instead of closely examining the seriousness of these disparities and the invidiousness of the Texas financing scheme, the Court undertakes an elaborate exploration of the efforts Texas has purportedly made to close the gaps between its districts in terms of levels of district wealth and resulting educational funding. Yet, however praiseworthy Texas’ equalizing efforts, the issue in this case is not whether Texas is doing its best to ameliorate the worst features of a discriminatory scheme but, rather, whether the scheme itself is in fact unconstitutionally discriminatory in the face of the Fourteenth Amendment’s guarantee of equal protection of the laws. When the Texas financing scheme is taken as a whole, I do not think it can be doubted that it produces a discriminatory impact on substantial numbers of the school-age children of the State of Texas. . . .

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A It is clear . . . that the disparity of per-pupil revenues cannot be dismissed as the result of lack of local effort—that is, lower tax rates—by property-poor districts. To the contrary, . . . data . . . indicate that the poorest districts tend to have the highest tax rates and the richest districts tend to have the lowest tax rates. Yet, despite the apparent extra effort being made by the poorest districts, they are unable even to begin to match the richest districts in terms of the production of local revenues. . . . Without more, this state-imposed system of educational funding presents a serious picture of widely varying treatment of Texas school districts, and thereby of Texas schoolchildren, in terms of the amount of funds available for public education. . . . [T]he majority continually emphasizes how much state aid has, in recent years, been to property-poor Texas school districts. What the Court fails to emphasize is the cruel irony of how much more state aid is being given to property-rich Texas school districts on top of their already substantial local property tax revenues. Under any view, then, it is apparent that the state aid provided by the Foundation School Program fails to compensate for the large funding variations attributable to the local property tax element of the Texas financing scheme. And it is these stark differences in the treatment of Texas school districts and school children inherent in the Texas financing scheme, not the absolute amount of state aid provided to any particular school district, that are the crux of this case. There can, moreover, be no escaping the conclusion that the local property tax which is dependent upon taxable district property wealth is an essential feature of the Texas scheme for financing public education. . . . B . . . At the very least, in view of the substantial interdistrict disparities in funding and in resulting educational inputs shown by appellees to exist under the Texas financing scheme, the burden of proving that these disparities do not in fact affect the quality of children’s education must fall upon the appellants. . . . [T]he appellants and the majority may believe that the Equal Protection Clause cannot be offended by substantially unequal state treatment of persons who are similarly situated so long as the State provides everyone with some unspecified amount of education which evidently is “enough.” The basis for 768

such a novel view is far from clear. It is, of course, true that the Constitution does not require precise equality in the treatment of all persons. . . . But this Court has never suggested that because some “adequate” level of benefits is provided to all, discrimination in the provision of services is therefore constitutionally excusable. The Equal Protection Clause is not addressed to the minimal sufficiency but rather to the unjustifiable inequalities of state action. It mandates nothing less than that “all persons similarly circumstanced shall be treated alike.” . . . In my view, then, it is inequality—not some notion of gross inadequacy—of educational opportunity that raises a question of denial of equal protection of the laws. I find any other approach to the issue unintelligible and without directing principle. Here, appellees have made a substantial showing of wide variations in educational funding and the resulting educational opportunity afforded to the schoolchildren of Texas. This discrimination is, in large measure, attributable to significant disparities in the taxable wealth of local Texas school districts. This is a sufficient showing to raise a substantial question of discriminatory state action in violation of the Equal Protection Clause. . . . C . . . I believe it is sufficient that the overarching form of discrimination in this case is between the schoolchildren of Texas on the basis of the taxable property wealth of the districts in which they happen to live. To understand both the precise nature of this discrimination and the parameters of the disadvantaged class it is sufficient to consider the constitutional principle which appellees contend is controlling in the context of educational financing. In their complaint appellees asserted that the Constitution does not permit local district wealth to be determinative of educational opportunity. This is simply another way of saying, as the District Court concluded, that consistent with the guarantee of equal protection of the laws, “the quality of public education may not be a function of wealth, other than the wealth of the state as a whole.” Under such a principle, the children of a district are excessively advantaged if that district has more taxable property per pupil than the average amount of taxable property per pupil considering the State as a whole. By contrast, the children of a district are disadvantaged if that district has less taxable property per pupil than the state average. The majority attempts to disparage such a definition of the

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disadvantaged class as the product of an “artificially defined level” of district wealth. But such is clearly not the case, for this is the definition unmistakably dictated by the constitutional principle for which appellees have argued throughout the course of this litigation. And I do not believe that a clearer definition of either the disadvantaged class of Texas schoolchildren or the allegedly unconstitutional discrimination suffered by the members of that class under the present Texas financing scheme could be asked for, much less needed. Whether this discrimination, against the schoolchildren of property-poor districts, inherent in the Texas financing scheme, is violative of the Equal Protection Clause is the question to which we must now turn. II A . . . To begin, I must once more voice my disagreement with the Court’s rigidified approach to equal protection analysis. The Court apparently seeks to establish today that equal protection cases fall into one of two neat categories which dictate the appropriate standard of review—strict scrutiny or mere rationality. But this Court’s decisions in the field of equal protection defy such easy categorization. A principled reading of what this Court has done reveals that it has applied a spectrum of standards in reviewing discrimination allegedly violative of the Equal Protection Clause. This spectrum clearly comprehends variations in the degree of care with which the Court will scrutinize particular classifications, depending, I believe, on the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn. I find in fact that many of the Court’s recent decisions embody the very sort of reasoned approach to equal protection analysis for which I previously argued—that is, an approach in which “concentration [is] placed upon the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the asserted state interests in support of the classification.” I therefore cannot accept the majority’s labored efforts to demonstrate that fundamental interests, which call for strict scrutiny of the challenged classification, encompass only established rights which we are somehow bound to recognize from the text of

the Constitution itself. To be sure, some interests which the Court has deemed to be fundamental for purposes of equal protection analysis are themselves constitutionally protected rights. . . . But it will not do to suggest that the “answer” to whether an interest is fundamental for purposes of equal protection analysis is always determined by whether that interest “is a right . . . explicitly or implicitly guaranteed by the Constitution.” . . . C . . . We are told that in every prior case involving a wealth classification, the members of the disadvantaged class have “shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.” I cannot agree. . . . This is not to say that the form of wealth classification in this case does not differ significantly from those recognized in the previous decisions of this Court. Our prior cases have dealt essentially with discrimination on the basis of personal wealth. Here, by contrast, the children of the disadvantaged Texas school districts are being discriminated against not necessarily because of their personal wealth or the wealth of their families, but because of the taxable property wealth of the residents of the district in which they happen to live. The appropriate question, then, is whether the same degree of judicial solicitude and scrutiny that has previously been afforded wealth classifications is warranted here. As the Court points out, no previous decision has deemed the presence of just a wealth classification to be sufficient basis to call forth rigorous judicial scrutiny of allegedly discriminatory state action. That wealth classifications alone have not necessarily been considered to bear the same high degree of suspectness as have classifications based on, for instance, race or alienage may be explainable on a number of grounds. The “poor” may not be seen as politically powerless as certain discrete and insular minority groups. Personal poverty may entail much the same social stigma as historically attached to certain racial or ethnic groups. But personal poverty is not a permanent disability; its shackles may be escaped. Perhaps most importantly, though, personal wealth may not necessarily share the general irrelevance as a basis for legislative action that race or nationality is recognized to have. While the “poor” have frequently been

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a legally disadvantaged group, it cannot be ignored that social legislation must frequently take cognizance of the economic status of our citizens. Thus, we have generally gauged the invidiousness of wealth classifications with an awareness of the importance of the interests being affected and the relevance of personal wealth to those interests. When evaluated with these considerations in mind, it seems to me that discrimination on the basis of group wealth in this case likewise calls for careful judicial scrutiny. First, it must be recognized that while local district wealth may serve other interests, it bears no relationship whatsoever to the interest of Texas schoolchildren in the educational opportunity afforded them by the State of Texas. Given the importance of that interest, we must be particularly sensitive to the invidious characteristics of any form of discrimination that is not clearly intended to serve it, as opposed to some other distinct state interest. Discrimination on the basis of group wealth may not, to be sure, reflect the social stigma frequently attached to personal poverty. Nevertheless, insofar as group wealth discrimination involves wealth over which the disadvantaged individual has no significant control, it represents in fact a more serious basis of discrimination than does personal wealth. For such discrimination is no reflection of the individual’s characteristics or his abilities. And thus— particularly in the context of a disadvantaged class composed of children—we have previously treated discrimination on a basis which the individual cannot control as constitutionally disfavored. . . . In the final analysis, then, the invidious characteristics of the group wealth classification present in this case merely serve to emphasize the need for careful judicial scrutiny of the State’s justifications for the resulting interdistrict discrimination in the educational opportunity afforded to the schoolchildren of Texas. . . .

THE POOR AND HOUSING Several decisions of the Supreme Court held considerable importance for the poor with respect to housing. In James v. Valtierra (402 U.S. 137, 1971), for example, the Court upheld a California statute that “provided that no low-rent [federally financed] housing project should be developed, constructed or acquired in any manner by a state public body until the project was approved by a majority of those voting at a community election.” A federal district court 770

agreed with the plaintiffs, who contended that the statute denied them equal protection of the laws and enjoined its enforcement. But on appeal, the Supreme Court reversed. In his opinion for the majority, Justice Black rejected the plaintiff’s argument “that the mandatory nature of the . . . referendum constitutes unconstitutional discrimination because it hampers persons desiring public housing from achieving their objective when no such roadblock faces other groups seeking to influence other public decisions to their advantage . . .[The referendum procedure] ensures that all the people of a community will have a voice in a decision which may lead to large expenditures of local governmental funds for increased public services and to lower tax revenues.”

The California referendum statute, he concluded, is a “procedure for democratic decisionmaking” that does not violate the equal protection clause. Justice Marshall, joined by Justices Brennan and Blackmun, dissented. Marshall said that the California statute “on its face constitutes invidious discrimination which the Equal Protection Clause of the Fourteenth Amendment plainly prohibits.” He contended further that “singling out the poor to bear a burden not placed on any other class of citizens tramples the values the Fourteenth Amendment was designed to protect.” At issue in Warth v. Seldin (422 U.S. 490, 1975) was the allegedly discriminatory zoning laws of Penfield, New York, a Rochester suburb, which prevented low- and middle-income blacks and Puerto Ricans from moving in. The suit was brought by several groups, including several area residents with low or middle incomes who were members of racial minorities, several Rochester taxpayers who claimed that the discriminatory practices of Penfield resulted in higher taxes, and a nonprofit organization whose purpose was to alleviate the housing shortage of the Rochester area for lower income people. In a 5–4 decision, the Court ruled that the groups did not have the standing requisite to bring such action. Justice Powell, who wrote the majority opinion, held that none of the petitioners had met the “threshold requirement” of “clearly . . . demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court’s remedial powers.” The decision in Warth, especially in light of San Antonio, illustrates the plight of the poor in trying to achieve parity with their wealthier “neighbors.” First, the poor are denied relief with respect to financial inequities that exist between school districts or

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communities. In addition, it is possible for the wealthy to exclude the poor through certain zoning regulations. Thus, the options for poor people to achieve some sense of parity on the local level have been greatly narrowed by these Court actions. A long-standing concern of the poor, the rights of indigent renters, came before the Supreme Court in the 1970s. In Lindsey v. Normet (405 U.S. 56, 1972), Lindsey and other tenants refused to pay their monthly rent unless certain substandard conditions were remedied, and their landlord Normet threatened to evict them. The appellants filed a class action suit seeking a declaratory judgment that three provisions of the Oregon Forcible Entry and Wrongful Detainer (FED) statute were unconstitutional. The appellants attacked primarily (1) the requirement of a trial no later than 6 days after service of the complaint unless security for the accruing rent is provided, (2) the limitation of triable issues to the tenant’s default (the landlord’s breach of duty to maintain the premises was excluded), and (3) the requirement of posting bond on appeal that amounted to twice the rent expected to accrue pending the appellate decision. The entire bond was forfeited if the lower court decision was affirmed. Justice White, delivering the opinion of the Court, noted that the appellants contended: “that the ‘need for decent shelter’ and the ‘right to retain peaceful possession of one’s home’ are fundamental interests which are particularly important to the poor and which may be trenched upon only after the State demonstrates a superior interest. . . .”

The appellants felt that the Court should apply the “strict scrutiny” standard of equal protection, but Justice White disagreed, and in doing so reflected a reluctance of the Court to declare a “constitutional war” on poverty: We do not denigrate the importance of decent, safe, and sanitary housing. But the Constitution does not provide judicial remedies for every social and economic ill. We are unable to perceive in that document any constitutional guarantee of access to dwellings of a particular quality or any recognition of the right of a tenant to occupy the real property of his landlord beyond the terms of his lease, without payment of rent or otherwise contrary to the terms of the relevant agreement. Absent constitutional mandate, the assurance of adequate housing and the definition of landlord-tenant relationships is a legislative and not a judicial function. Nor should we forget that the Constitution expressly protects

against confiscation of private property or the income therefrom.

Consequently, White used the “rationality standard” and found that the first two issues raised by the appellants did not violate either the equal protection clause or the due process clause. However, White found that the double bond prerequisite for appealing a FED action violated the equal protection clause because it arbitrarily discriminated against tenants who wished to appeal adverse FED decisions without effectuating the state’s purpose of preserving the property issue. He wrote: “The discrimination against the poor who could pay their rent pending an appeal but cannot post the double bond is particularly obvious . . . For them, as a practical matter, appeal is foreclosed, no matter how meritorious their case may be . . . [The] nonindigent FED appellant also is confronted by a substantial barrier to appeal faced by no other civil litigant in Oregon . . . [Consequently,] the discrimination against the class of FED appellants is arbitrary and irrational, and the double-bond requirement . . . violates the Equal Protection Clause.”

Also at issue was the refusal of a judge to allow a jury trial to a renter who was being sued by his landlord for repossession of property (Pernell v. Southhall Realty, 416 U.S. 363, 1974). The appellant refused payments to defray costs he had incurred in performing certain repair work and for the landlord’s failure to maintain the premises in compliance with District of Columbia housing regulations. In the majority opinion, Justice Marshall stated that either party has the right to a jury trial by the Seventh Amendment. In general, Pernell and to an extent Lindsey recognize that renters, too, have certain rights and are entitled to seek redress on constitutional grounds.

ACCESS TO THE COURTS In Boddie v. Connecticut (401 U.S. 371, 1971), the Court held that states cannot deny people seeking divorces access to their courts solely because the people cannot pay court costs. The case involved indigent welfare recipients who desired divorces but who were unable to pay the necessary filing and other court fees (about $60 in all) in order to obtain a hearing. They claimed that the due process and equal protection clauses required Connecticut to grant them access to courts. In accepting Boddie’s due process contention, Justice John Harlan’s opinion for The Poor in Court: Expanding and Contracting Rights

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the Court emphasized the state’s authority over the marriage status: “Given the basic position of the marriage relationship in this society’s hierarchy of values and the concomitant state monopolization of the means for legally dissolving [it], due process does prohibit the State from denying, solely because of inability to pay, access to its courts to individuals who seek judicial dissolution of their marriages.”

Harlan’s opinion in Boddie, however, is self-limiting, as two important factors must be present in cases that attempt to use the result as a binding precedent: (1) the presence of a fundamental or basic interest and (2) “state monopolization” over resolution of the dispute. Several of the opinions in Boddie were not so limited. Justice Douglas concurred, saying that the decision should have rested on the broader base of equal protection. “An invidious discrimination based on property,” said Douglas, “is adequate for this case.” Justice Brennan, in another concurring opinion, said that “[t]he right to be heard in some way at some time extends to all proceedings entertained by courts.” He cautioned that “the possible distinctions suggested by the Court today will not withstand analysis.” Brennan was concerned about the “state monopolization” language used by Harlan in the majority opinion. But the Burger Court moved away from this “access” trend in civil matters with two 5–4 decisions in 1973. First, United States v. Kras (409 U.S. 434, 1973) dealt with the inability of an unemployed indigent to pay the $50 filing fee in a bankruptcy petition. A federal district court had agreed with the petitioner’s argument that denying him the opportunity to file for bankruptcy because of his inability to pay the filing fee violated the due process and equal protection guarantees of the Fifth Amendment. Relying on the Boddie decision, the district court concluded that “a discharge in bankruptcy was a ‘fundamental interest’ that could be denied only when a ‘compelling government interest’ was demonstrated.” But a 5-member majority of the Supreme Court rejected this reliance on Boddie as misplaced. Speaking for them, Justice Harry Blackmun maintained that bankruptcy should not be regarded as a fundamental right that demands the showing of a “compelling governmental interest” to justify significant regulation. Furthermore, he contended, this subject does not touch upon “the suspect criteria of race, nationality or alienage.” Hence, he argued, “rational justification” 772

was the appropriate standard and Congress had met it. For example, although the court action that had been sought in Boddie was the only way to dissolve the marriage, the statute involved in Kras permitted “negotiated agreements” and very low installment payments. In short, the indigent bankrupt is offered effective alternatives. In the end, he held, any extension of the Boddie principle to bankruptcy proceedings should start with Congress. The dissenting justices (Douglas, Stewart, Brennan, and Marshall) were critical of the majority for holding, as Justice Stewart remarked, “that some of the poor are too poor even to go bankrupt.” Because they believed that access to the courts to determine the claim of a legal right is fundamental, any denial of that access because of inability to pay filing fees constituted for them the kind of invidious discrimination between rich and poor that is contrary to equal protection. The second case, Ortwein v. Schwab (410 U.S. 656, 1973), involved an action by welfare recipients, without payment of the required $25 filing fee, to have a court review of an Oregon administrative action that would reduce their benefits. The Supreme Court affirmed the Oregon court’s denial of relief. In its per curiam opinion, the Court cited Kras rather than Boddie as the governing precedent, noting that the interest which was alleged by the welfare recipients (to have administrative action reducing their benefits judicially reviewed), was far less significant than the interest asserted by the indigent divorce seekers in Boddie. The same four dissenters restated the argument that they had advanced in Kras. As Justice William O. Douglas noted, the majority’s action simply “broadens and fortifies the ‘private preserve’ for the affluent . . . [by upholding] a scheme of judicial review whereby justice remains a luxury for the wealthy.” Furthermore, Douglas noted, Kras should not be considered applicable to this case because relief through “nonjudicial accommodation” was not available. Even more crucial was the fact that the majority’s ruling permitted a state to deny “initial access to the courts for review of an adverse administrative determination.” The Supreme Court did not show this deference to state procedures that permitted prejudgment garnishing of wages (in Wisconsin and about 20 other states) and prejudgment seizure of goods under writs of replevin (in Pennsylvania and Florida) without prior hearing. In Sniadach v. Family Finance Corporation (395 U.S. 337, 1969), the Court indicated that wages were “a specialized

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type of property” and that the consequences of wage garnishment (hardship on wage earners with families to support) were quite severe. Justice Douglas’s brief majority opinion stated that “[w]here the taking of one’s property is so obvious, it needs no extended argument to conclude that absent notice and a prior hearing this prejudgment garnishment procedure violates the fundamental principles of due process.” Three years later, in Fuentes v. Shevin (407 U.S. 67, 1972), the Court ruled in a 4–3 decision that due process requires an opportunity for a hearing to be provided before the state can authorize its agents to seize property that is in the possession of a debtor upon the application of his or her creditor. Justice Stewart’s majority opinion noted that the: “essential reason for the hearing requirement is to prevent unfair and mistaken deprivations of property . . . Due process is afforded only by the kinds of ‘notice’ and ‘hearing’ that are aimed at establishing the validity, or at least the probable validity, of the underlying claim against the alleged debtor before he can be deprived of his property.”

Chief Justice Burger and Justices White and Blackmun did not believe that the Constitution guarantees such a right to a defaulting buyer/debtor. In Justice White’s dissenting opinion, joined by Burger and Blackmun, the creditor’s property interest is considered to be “as deserving as that of the debtor.” White argued that under the Court’s historic view of what procedures due process requires “under any given set of circumstances,” the creditors had the right under state laws to take possession of the property pending final hearing. White told the majority that it should leave such legislative matters to the experts who are employed by legislative bodies. By 1974, Justice White’s dissent in Fuentes was accepted by the Court majority in Mitchell v. W. T. Grant Co. (416 U.S. 600, 1974). The Court upheld a Louisiana sequestration statute that permitted creditors to secure a court order for their immediate repossession of goods without prior notice to the defaulting debtor. But the statute gives the debtor the opportunity for a full hearing subsequent to the repossession. Speaking for a 5–4 Court majority, Justice White said: [We reject the] “petitioner’s broad assertion that the Due Process Clause of the United States Constitution guaranteed to him the use and possession of the goods until all issues in the case were

judicially resolved after full adversary proceedings had been completed . . .The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation . . . The question is not whether a debtor’s property may be seized by his creditors, pendente lite, where they hold no present interest in the property sought to be seized. The reality is that both seller and buyer had rights as a matter of state law. Resolution of the due process question must take account not only of the interests of the buyer of the property but those of the seller as well.”

Prior cases upon which the petitioner relied, reasoned White, “merely stand for the proposition that a hearing must be had before one is finally deprived of his property” (emphasis added). “Considering the Louisiana procedure as a whole,” said White, “we are convinced that the State has reached a constitutional accommodation of the respective interests of buyer and seller.” Justice Stewart, in a dissent joined by Justices Douglas and Marshall, strongly attacked the majority for not following Fuentes. Said Stewart: “The only perceivable change that has occurred since Fuentes is in the makeup of this Court.” Stewart pinpointed this membership change by indicating in a footnote that although Justices Powell and Rehnquist had been on the Court when Fuentes was announced, they were not on the Court when the case was argued and hence did not participate in its consideration or decision: “A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government . . . No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve.”

Overall, and after her well-developed empirically based study of “The Disadvantaged before the Burger Court,” Binion suggests “that the Court’s jurisprudence is to be faulted as much for its inappropriate application of principle as for its application of inappropriate principle.” She then outlines and describes a “newest equal protection” standard intended to overcome pitfalls of earlier standards. Binion believes that this “newest” standard “which questions the contextual reasonableness of the classifications rather than only their effectiveness, [would] restore judicial protection to equal protection.” However, without minimizing the role of tests or standards in judicial

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decision making, we should remain constantly alert to the observation made by political scientist Jack Peltason some time ago that in the final analysis judges, not tests, standards, or doctrines, determine judicial outcomes (Peltason, 1955).

LAWYERS, LEGAL SERVICES, AND RIGHTS OF THE POOR The availability of legal services is key in order for poor persons to use the law and courts to attain their objectives. They need lawyers to negotiate the legal terrain, draft legislation, phrase issues, develop arguments, and suggest strategies and rationales. But legal services cost money, a resource that is limited for those in poverty. Consequently, going to court to vindicate their rights is a luxury that poor people cannot afford. Early on, the primary burden of providing legal services for the poor fell on privately funded and operated legal aid societies. But the services which these groups could provide, including some that were offered by local bar associations, were not enough to meet the need. This situation posed some serious dilemmas. For example, in a country that prides itself on having a “government of laws” where all persons are subject to the rule of law, those in poverty are effectively denied access and participation in our legal justice system solely because they are too poor to use it. Could (and can) we afford to ignore the linkages between race and poverty, which show that a very large and disproportionate number of blacks (about 1 out of every 3) live in poverty, compared with whites (about 1 out of every 10)? To do so, of course, would mean that access to courts and to the legal justice system is effectively determined along wealth and poverty lines that are very much tainted by a lingering racism. In any event, the egalitarian sentiments of the 1960s led President Lyndon B. Johnson and Congress to declare a “War on Poverty” in which the full range of the nation’s resources, including law and courts, would be used. As a result, a new federally funded Legal Services Program (LSP) was established in 1965 that represented the most important development in providing legal services for the poor. Free legal services that provide representation for indigent defendants in the criminal justice area have generally met with widespread approval and support. To be sure, decisions of the Supreme Court, such as Gideon v. Wainwright (372 U.S. 335, 1963), have spurred and kindled this support. However, many 774

people recognized that the poor need legal services to protect and promote their interests in noncriminal areas as well. Federally funded legal services were intended to meet more of these needs by allowing poor persons to begin actively to use the legal justice system to achieve their rights and policy objectives— improving their access to food, decent housing, good educational opportunities, and jobs. And rather than relying exclusively on “band-aid” approaches (i.e., attending the needs of individual clients with the present structure of the law), more aggressive LSP lawyers began to use more general approaches, such as class action suits and other law reform activities, that would “revise the structure of the world in which the poor live,” according to Earl Johnson, second director of the LSP (Johnson, 1976). However, this law reform posture of the federal LSP, not unexpectedly, met with trouble. In vindicating and promoting the rights and interests of poor people, LSP lawyers were almost inevitably led to attack the “system,” and they became embroiled in issues (e.g., school desegregation, landlord–tenant rights) that affected the futures and fortunes not only of the poor, but of those (e.g., the wealthy) who had long used the courts and legal system to protect their interests and to preserve the status quo. As a result, the federally funded LSP has increasingly come under attack, so various restrictions and limitations have been placed on LSP functions and attorneys. This anti-LSP trend accelerated during the Nixon administration and by the time of the Reagan years had reached such proportions that the matter of federally funded Legal Services was no longer a problem of reorganization, limitations, or budget cuts, but rather one of whether to maintain or fund a legal services program at all. In fact, President Reagan recommended eliminating funds for the Legal Services Corporation (LSC) entirely, which would have effectively killed the program. This recommendation created sharp divisions and fierce debate. Republican Senator Orrin Hatch of Utah, chairman of the Labor and Human Resources Committee, within whose jurisdiction LSC falls, supported the president and favored abolishing the LSP. “Though I have supported legal services in the vain hope they will concentrate on really helping the poor,” said Hatch, “personally I have come to the conclusion that they will never do that.” The senator stated that legal aid lawyers had spent “millions of dollars in what we call lawyer activism for liberal social programs instead of working for the common needs of the poor.” (Congressional Quarterly, 1981)

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However, Attorney F. William McCalpin, chairman of the LSC board of directors, speaking in support of the program, placed the matter in broad political perspective. In testimony before a congressional committee, he warned that President Reagan’s overall budget cuts affecting the poor “will raise feelings of alienation and frustration to a level we have not seen in fifteen years . . . In those circumstances, we need equal access to justice to keep the controversies in balance, within the system . . . That’s what legal services is all about, [and] I urge you not to retreat from the principle of equal justice under law.” But President Reagan did not give up on his fight to curtail the LSP sharply or even to kill it outright. As Senator Thomas Eagleton of Missouri aptly put it:

establishment types (e.g., the American Bar Association) to save the program, express the relationship between the goals of the LSC and the general values of our nation. They also attest to how lawyers can use the law and the court system as avenues to achieve particular objectives, even for poor people. However, although Legal Services lawyers have been successful in some important respects, such as Shapiro v. Thompson, they can also attest to the difficulties involved in attempts to “constitutionalize” and win more rights for poor people (Krislov, 1973).

“There are three ways to kill a program, and the president with respect to legal services has tried all three. One way is to kill it outright. That didn’t succeed. Another is to fund it at such a low level as to make it inoperative. From Reagan’s point of view he made a little progress on that, he got the budget cut. And the third way is to put the management and oversight of the program in unfriendly hands.” (Taylor, 1984)

Given the budgetary cutbacks and key appointments of justices and administration officials, the Reagan and Bush administrations clearly did not focus on how to overcome the problems of the poor and marginalized. As realized in the jurisprudence of the decade, the 1980s were marked by an increasing concern with self-interest and the perspective that social justice was not a value which could be promoted through the rule of law. This tone, grudging in its views of public commitments toward the collective “pursuit of happiness,” contrasted with the attitude in the 1970s, when the legal debate, as we have seen, focused on the scope of the distribution of benefits. A significant trend in some of the cases of the 1980s was an emphasis on the limitations of judicial authority to give content to the demands of the poor and marginalized, given the increasing reluctance of the political branches to do so. Looking back on the Clinton and George W. Bush administrations and considering the banking, housing, and other financial woes that mark the early years of the Obama administration reveals little evidence that the Court will return soon to the attitudes of the 1970s. Earlier we looked at the path that society took in regulating welfare benefits during the 1970s. In Goldberg and Dandridge, respectively, we saw that the receipt of welfare benefits was to be accompanied by due process safeguards. However, receipt could also be restricted by conditions which reinforced a state interest in promoting employment and nondiscrimination between welfare recipients and the working poor. During the 1980s and beyond, when fewer resources were available, greater pressures were put on legislatures to cut back on public assistance or, at the very minimum, to restrict its receipt. These cut

Civil rights advocates and others suggested that Eagleton’s comments applied only to the LSP but to the overall record and attitude of the Reagan administration with respect to programs affecting civil rights and the poor. The effort to hamstring the efforts of the LSP gained momentum in the wake of the 1994 congressional elections, in which Republicans gained control of both houses of Congress. Conservatives seized an opportunity to decimate Legal Services, if not eliminate it outright. In 1996, the program’s funding was slashed by approximately 30 percent, and Legal Services attorneys faced new restrictions on the kinds of cases and clients they would be permitted to accept. These cutbacks and restrictions led many Legal Services chapters to practice a form of triage. In Georgia, for example, Legal Services attorneys have focused their efforts on certain services (helping women in violently abusive marriages, keeping tenants from being evicted from public housing, and helping clients sue for federally guaranteed entitlements) and have stopped performing other actions (intervening in private landlord–tenant disputes, pursuing consumer fraud cases, and preventing summary expulsion of students from school) (Booth, 1996). The nature and sharpness of the LSC debate, especially when coupled with the disposition of many

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backs were in full swing in the first decade of the twenty-first century and especially during the beginning of the Obama presidency. But by and large, Congress and the courts have tried to ensure that, although conditions are placed on the receipt of public benefits, such conditions do not require the sacrifice of fundamental constitutional rights. A few specific cases illustrate the results of the sea change that marked the 1980s. In Lyng v. International Union, UAW (108 S. Ct. 1184, 1988), the Court, by a 5–3 vote, held that the 1981 amendments to the Food Stamp Act of 1977 did not interfere with the recipient’s First Amendment right to association. In 1981, Congress amended the Food Stamp Act to restrict the level of eligibility for benefits for certain households if such eligibility arose after a drop in income due to participation in a labor strike. The plaintiffs argued that the statute’s restrictions were unconstitutionally coercive in limiting union participation. In writing for the Court, Justice White reinforced the notion that welfare benefits were a privilege, not a right, by holding that the First Amendment did not require the federal government to provide food stamps to lessen the “economic hardship” that would accompany a labor dispute (108 S. Ct., at 1191). In dissent, Justice Marshall rejected the Court’s rational basis analysis of the statute, arguing that the amendments were too broad to meet the government’s interest in limiting the receipt of food stamps to those who wanted to work. He argued that the amendments were not neutral in that employers received governmental benefits during strikes and felt that the amendments reflected a “public animus” toward a particular group—strikers (108 S. Ct., at 1198)—that thus violated the equal protection clause of the Fourteenth Amendment. The Supreme Court also used a rational basis test to uphold a North Dakota statute that allowed school districts to charge students for transportation to a school. In Kadrmas v. Dickinson Public Schools (108 S. Ct. 2481, 1988), a family near the poverty level sued to enjoin the school system from enforcing the transportation fee because it would violate the equal protection clause of the Fourteenth Amendment. In a 5–4 decision, the United States Supreme Court affirmed the Supreme Court of North Dakota’s rejection of the family’s claims. Justice O’Connor argued that the Court had dismissed prior attempts to classify wealth, or more appropriately, the lack of it, as a category that required “strict 776

scrutiny” by courts. She asserted that the statute was rationally related to the goals of the state in fulfilling the expectations of the families that had supported school reorganization plans. In dissent, Justice Marshall found that even though the statute did not prevent the Kadrmas child from attending school, the transportation fee effectively denied the child access to basic education, which he considered to be a fundamental right. In both Lyng and Kadrmas, the Court indirectly displayed benign neglect, if not some hostility, to the working and nonworking poor by permitting an increase in the costs of obtaining welfare benefits. The decision in Lyng meant that the poor would have to make choices that those who were better off did not have to make regarding the exercise of other constitutional rights. In Kadrmas, the exercise of the disputed right itself, in that case public education, was made more difficult by the imposition of a transportation fee. In both cases, the Court displayed a cramped view of the affirmative obligation of government to enable people to achieve selfdetermination. Clearly the poor can do very little about their lot if their chosen activities, such as association or public education, require them to sacrifice subsistence. The limitations on using law to promote social justice have affected the legal system. Perhaps the most striking example of the emphasis in the 1980s on self-interest and the economics of using law to promote social justice was Mallard v. United States District Court (109 S. Ct. 1814, 1991). Mallard required the Supreme Court to interpret Congress’s intent in 28 U.S.C. § 1915, which authorized federal courts to use their judicial authority to enable the poor to sue without incurring costs and fees. At the heart of the conflict was a provision of the statute that was ambiguous regarding whether attorney compliance in representing the poor client at the request of the judge was mandatory or voluntary. At stake was the public commitment toward representing the poor, which went beyond the simple economics of such representation. It is obvious that an effective attorney could always earn more money by selling services to a private client than to a court in order to assist the poor. In Mallard, an attorney was requested by a court to represent two prison inmates and one former inmate in a civil rights matter. The attorney made an unsuccessful motion to withdraw, claiming lack of expertise. The lower courts had interpreted Section

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1915(d) to allow for compulsory appointment. In a 5–4 decision, Justice Brennan held that the statute did not authorize a federal court to require an attorney to represent an indigent person. Justice Kennedy concurred, emphasizing that the role of the Supreme Court was to separate out the requirements of the statute from the general obligations of the profession and of society. By contrast, Justice John Paul Stevens, in dissent, argued that the duty of attorneys was instead defined by a tradition of providing legal assistance to the poor and the marginalized. In FTC v. Superior Court Trial Lawyers Association (110 S. Ct. 768, 1990), criminal defense lawyers in Washington, D.C., who represented indigent people, organized a boycott of their legal services in an effort to force the local government to increase their hourly rates. Over time, inadequate compensation had led to a diminishing supply of lawyers to assist indigents. Moreover, the ones that remained were overburdened with huge caseloads, little administrative support, and, as a result, little time to research any case effectively. By increasing their fees, the boycotters hoped to obtain better and more effective representation for the poor. It is ironic that the focus on the poor was lost from the litigation of this case. The case was framed in terms of the First Amendment rights of the boycotters to be heard versus the antitrust laws that tried to preserve competition for services. In a 6–3 decision, the Supreme Court concluded that the boycott was a per se violation of the Sherman Antitrust Act because it constituted a “naked restraint” on trade. The Supreme Court rejected the boycotters’ claim that their action deserved protection because it constituted political speech that sought to vindicate the rights of indigent defendants. The thrust of the Court’s argument was that groups could not be permitted to avoid the antitrust laws by substituting their own conception about the public welfare (110 S. Ct., at 777). In making such an argument, the Court reinforced the prevailing economic ideology of competition and self-interest at the expense of trying to find alternative ways to commit the public to the representation of indigent people. Mallard and Superior Court Trial Lawyers Association both focused on the role of lawyers in the administration of justice for the poor and the marginalized. By contrast, in Spallone v. United States (110 S. Ct. 625, 1990) and Missouri v. Jenkins (110 S. Ct. 1651, 1990), the Supreme Court focused on the role of federal judges in encouraging the legal

system to fulfill its public commitments to socioeconomic justice. In Spallone, a federal district judge used his contempt powers to impose sanctions on the city of Yonkers, New York, and on individual council members in order to coerce them to remedy his earlier finding that the city had intentionally created and maintained racial segregation in housing. Because of severe public opposition to court-mandated remedies, the City Council had refused to build public housing. The Supreme Court, in a 5–4 decision, overturned the personal contempt citations of the council members and limited federal courts’ powers to apply coercive remedies. Chief Justice Rehnquist argued that courts were obliged to tailor their remedies narrowly to use the “least possible power adequate to the end proposed” (110 S. Ct., at 632). In his dissent, Justice Brennan feared that this decision would only signal recalcitrant local officials to resist the remedial powers of federal courts. In Jenkins, a federal district court found that Kansas City had created and maintained a segregated school system. The federal judge ordered an ambitious remedial program consisting of magnet schools, capital improvements, and new educational programs. Because the local district lacked the funds to pay for its share of the remedies, the district court judge both levied an increase in the property tax rate that was prohibited by the state constitution and imposed a surcharge on the incomes of people who were living and working in the district. The Court of Appeals for the Eighth Circuit reversed only the surcharge on income. The Supreme Court, on the other hand, went further, holding unanimously that the district court’s direct imposition of a property tax was an abuse of discretion. In concurring, Justice Kennedy wanted the Court to assert clearly that “taxation is not a judicial function” and that the role of judges was limited to deciding controversies between parties before the court and not to remedying social ills (110 S. Ct., at 1669–70).

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Our discussion of poverty illuminates the capacity and limits of courts in American politics. Poverty reflects well the intimate relation between success in the political arena and success in the judicial arena. A combination of factors during the 1950s and 1960s gave rise to a political climate more favorable to the poor. These factors included the egalitarian

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thrust of Martin Luther King, Jr.; the Civil Rights Movement’s broad-based appeal; key decisions of the Warren Court relating to racial segregation, reapportionment, and rights of the accused; and strong presidential leadership by Lyndon B. Johnson. This political climate led to increased use of the full panoply of the nation’s resources, including courts and law, in an attempt to alleviate the burdens of those in poverty. In this climate the federally funded LSP was established, providing more opportunities for the poor in their perennial quest for basic resources such as food, decent housing, good education systems, and jobs. As Susan Lawrence aptly put it, “[t]he same political climate that led the political branches to create the LSP also led the Court to accept its claims.” (Lawrence, 1990) Lawrence quotes Robert Dahl:

of Reagan/Bush legacy could be seen in the more moderate mainstream positions that were taken by President Clinton in the 1992 and 1996 campaigns. It was also apparent in certain of Clinton’s initiatives, exemplified vividly by his support of major reforms in the welfare system. President Obama’s controversial attempts to reform health care policy suggest that the debate over the proper role of government, including the judiciary, will remain at the forefront of American politics. These changes in the political climate affect the access of the poor to the judiciary. Clearly, expanding access to the court will exacerbate the caseload problem that faces courts. But, as Susan Lawrence suggests:

“Policy views dominant on the Court are never long out of line with the policy views dominant among the [national] lawmaking majorities of the United States . . . not simply because presidents select justices that share their policy views, but because the justices are shaped and influenced by many of the same forces that affect our other national political leaders.”

“Restricting the access of the poor may not be the best way to deal with caseload pressures. First, it generates too much conflict with our other ideals. Second, LSP sponsored appeals to the Supreme Court constituted less than 0.008 percent (164) of all cases the Court was asked to review during the October terms of 1966 through 1974. We should look very closely before we trade justice and democracy for efficiency.” (Lawrence, 1990)

Unlike the 1950s and 1960s, since the 1970s the political (and hence judicial) climate has not been as supportive of the poor in their fight to overcome poverty. The determination of the Reagan, George H.W. Bush, and George W. Bush administrations to contract the role of government constituted a clear setback to the aspirations of those who saw a necessary role for government in efforts to eliminate poverty. This general sentiment of the Reagan and two Bush administrations visibly affected attempts of the poor to use courts and law to promote their policy goals. This effect was manifested in the growing controversy over attempts by LSP lawyers to seek reforms and was most tangibly felt by subsequent cuts in the LSP budgets and authority. Clearly, these developments affected the access of the poor to the judiciary. But the political climate that was ushered in during the Reagan and Bush years affected the judiciary even more directly by judicial appointments that subscribed to the overall policy goals of the presidential administrations. Thus, the limited role of government that was embraced in the political arena came to be embraced in the judiciary as well and was reflected in the Burger, Rehnquist, and Roberts Courts. Although the Clinton era proved more favorable to the aspirations of the poor, the continuing strength

The Court and the judiciary can contribute to representativeness and can enhance the participatory role of individuals (especially the poor) in realization of democracy. Nonelected, life-tenured judges can, by nature of their status, allow courts to represent interests that elective political institutions may be unable to further. And judicial decision making is ostensibly based on law and reasoned discourse rather than on public opinion polls and election returns. Thus, as Justice Brennan put it, the courts might well be the only “practicable avenue” that allows disadvantaged minority groups to achieve their objectives in the political arena. As Martin Shapiro and others posit, the Court might well contribute to American democracy by representing people who are unrepresented or underrepresented in other governing institutions. The Court might well offer important, even determinative, supports to help interests that are disadvantaged in the political process to realize policy objectives which they might not otherwise be able to achieve. Thus, while the Court is not a panacea, neither is it a “hollow hope.” (Rosenberg, 1991) In reality, the past few decades have not been friendly to the poor. The funding and capacity of the LSC, the prime provider of legal services for the poor, has been slashed. Poverty rates remain high and may be increasing. As law professor Louise G.

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Trubek puts it, this may be “the worst of times.” But they may also be “the best of times” in that “effective advocacy may be possible even in a time when traditional approaches are under siege.” She goes on to examine new models of practice and new forms of advocacy that are developing through collaborations between lawyers and clients “to create more effective advocacy for battered women, low-income entrepreneurs, and nonprofit community-based organizations that serve the poor.” Trubek suggests that achieving success in these areas depends on the continuation of a “movement” that has been spurred by a “substantial interaction [and cooperation] between [and among] movement activists, clients, and lawyers.” (Trubek, 1995) Perhaps the pivotal factor in this new movement and these interactions is the development of community-based nonprofit organizations that “can link clients to other parts of the society, thus reducing the isolation of the poor.” Trubek suggests three major factors that are important to the continuation of these new developments: the explosion of scholarship on the ways that lawyering can reduce injustice and the new visions that scholars have produced, dramatic changes in the understanding of the lawyer–client relationship and the concomitant shift to greater collaboration between the lawyer and client, and the proliferation of sites for lawyers (e.g., LSPs, law school clinics, public interest law firms, private law practices, nonprofit agencies) and the corresponding proliferation of approaches to funding poverty law work. Some people are less optimistic about the future and are critical of the quality of legal services that are offered to the poor. They are particularly critical of the way that LSP lawyers themselves have conceived of their role and of the legal work that is needed to bring about creative change in the status of the poor. In a sharply critical, provocative, yet sensitive and well-developed article, Professor Marc Feldman described the situation as follows: “There is a crisis in American legal services. Legal representation for the poor satisfies neither generally prevailing professional norms, nor even more limited notions of service based on internal Legal Services’ perspectives and justifications. By no account does the legal work earn the description of progressive or reformist or effective. To be sure, during the last decade Legal Services has been subject to unrelenting and hostile political pressures. This is also a crisis of Legal Services lawyers’ own making.”

Feldman then drives his point home and pinpoints major criticisms of Legal Services lawyers and their work: “There are profound shortcomings in the legal work on behalf of the poor. Randomness pervades Legal Services lawyers’ conception of role and legal work. The Legal Services lawyer is uncertain about whether she is a social worker, community organizer, or litigator. Staff autonomy in choice of work, in generalization or specialization, and in determining how to prosecute and when to conclude legal work is the norm. Case loads reflect insufficient concentration on any particular topic or issue.”

In sum, Feldman argues for a more aggressive role for LSP lawyers in a political environment where such LSP aggressiveness is likely to: “provoke high levels of conflict [where] [j]udges and bureaucratic decisionmakers, local bars, and national elites, those entrenched in formal and informal Legal Services leadership circles, and political authorities, representatives, and administrators all have the potential to react hostilely and punitively. On the other hand, these decisionmakers also might abandon expediency in favor of ideals, or they might be bested in political struggle . . . Nevertheless, I believe we should undertake the effort and struggle to remake Legal Services, even though political defeat and retribution are real possibilities.”

To be sure, Feldman does offer some constructive suggestions for improving the quality and delivery of legal services for the poor. Among these suggestions is the creation of Legal Services Institutes in which “[f]ield programs and law schools . . . band together for the purpose of creating Legal Services training programs” whose agenda would be threefold: “service, teaching, and research and writing.” “Of all my suggestions,” concludes Feldman, “I imagine that these institutes would provide the counter-cultural setting most likely to succeed in challenging prevailing conceptions and practices, and in nurturing alternatives.” (Feldman, 1995) Overall, the aphorism cited by Feldman himself—“There is little to lose”—seems to capture well his assessment of the current quality of legal services as well as the hostility that might be engendered by his biting criticisms and constructive suggestions for offering effective legal services for the poor. The reality of the current political climate is that the scope of governmental and legal authority has shrunk with respect to the plight of the poor. The earlier tendency of judicial authority to induce the

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political system to remedy racial and economic injustice has changed, led by the Supreme Court, to a more cramped role. Unlike the judges in the 1960s–1970s, who were active participants and managers in the political process, during the last few decades the courts and judges have played a more limited role in the national political process. As a result of this limited role of governmental and legal authority to promote economic and social justice, the conception of the role of courts and law seems to have transformed. It may be argued that the country has chosen to fashion law that is sensitive to the needs and concerns of prevailing interests (i.e., law serves the interests of the middle and upper classes rather than of all Americans). The profound implication of this transformation is that law has been effectively reduced as a force to redress the inequities and concerns of emerging and aspiring interests. This is especially salient in situations that force the poor to choose between the vindication of their political rights and their subsistence, making it much more difficult for such marginalized individuals to achieve their full potential.

Despite this bleak assessment, it is useful to consider comments made by Professor Charles Black in 1986 about the dynamics of the path of law over time: “The country is now infatuated with an idol called the ‘economy,’ which most high priests seem to agree is doing real well, though millions of children are not getting enough to eat, and millions of adults who want work cannot find it. But winds change; they always have, and doubtless they always will. A period of no power is a period for the reformation of thought, to the end that when power returns it may be more skillfully, more fittingly, used. The way I want to see thought reformed is by our ceasing to view the elimination of poverty as a sentimental matter, as a matter of compassion, and our starting to look on it as a matter of justice, constitutional right.” (Black, 1986)

One might agree with Black’s comments that “winds [will] change, they always have, and doubtless they always will.” But as we enter the second decade of the twenty-first century, it seems unlikely that the “winds [will] change” enough for people “to look [on eliminating poverty] as a matter of justice, constitutional right.”

SELECTED REFERENCES Bennett, Susan. “The Threat of the Wandering Poor,” 22 Fordham Urban Law Journal 1207 (Summer 1995). Binion, Gayle. “The Disadvantaged before the Burger Court,” Law and Policy Quarterly 37 (January 1982). Black, Jr., Charles L. “Further Reflections on the Constitutional Justice of Livelihood,” 86 Columbia Law Review 1103 (1986). Booth, William. “Attacked as Left-Leaning, Legal Services Suffers Deep Cuts,” The Washington Post, June 1, 1996, p. A1+. Bussiere, Elizabeth. (Dis)Entitling the Poor. University Park: Pennsylvania State University Press, 1997. Chachere, Bernadette. “Welfare and Poverty as Roadblocks to the Civil Rights Goals of the 1980s,” 37 Rutgers Law Review 789 (1985). Chevigny, Paul G. “First Amendment: Begging and the First Amendment,” 57 Brooklyn Law Review 525 (1991). Congressional Quarterly, March 21, 1981, p. 529. Coons, John E. “Private Wealth and Public Education.” Stanford Journal of Civil Rights and Civil Liberties, Vol. 4 (October 2008), 245. Davis, Martha F. Brutal Need: Lawyers and the Welfare Rights Movement, 1960–1973. New Haven, CT: Yale University Press, 1993. 780

Ellickson, Robert C. “Controlling Chronic Misconduct in City Spaces,” 105 Yale Law Journal 1165 (1996). Emhoff, Kurt. “Jiggets v. Grinker: Does It Establish a Right to ‘Adequate Shelter Allowance’ in New York State?” 3 Cardozo Women’s Law Journal 97 (1996). Feldman, Marc. “Political Lessons: Legal Services for the Poor,” 83 Georgetown Law Journal 1529 (April 1995). Forbath, William E. “Social Rights, Courts, and Constitutional Democracy: Poverty and Welfare Rights in the United States.” Democratization, Vol. 12, No. 5 (2005), 725–748. Galanter, Marc. “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” Law and Society Review 96 (Fall 1974). Galloway, Russell W. Justice For All? The Rich and Poor in Supreme Court History, 1790–1990. Durham, NC: Carolina Academic Press, 1991. Heise, Michael. “High Poverty Schooling in United states: Lessons in Second-Class Citizenship: What are the Limits and Possibilities of Legal Remedies?” North Carolina Law Review, Vol. 85 (2007), 1419–1466. Herz, Rich. No Homeless People Allowed. Washington, D.C.: National Law Center on Homelessness and Poverty, 1994.

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Johnson, Earl. Quoted in Philip Hannon. “From Politics to Reality: An Historical Perspective of the Legal Services Corporation,” 25 Emory Law Journal 639, 642 (1976). Kahlenberg, Richard D. “Socioeconomic School Integration.” North Carolina Law Review, Vol. 85 (2007), 1545–1594. Krislov, Samuel. “OEO Lawyers Fail to Constitutionalize a Right to Welfare: A Study in Uses and Limits of the Judicial Process,” 58 Minnesota Law Review 211 (1973). Lawrence, Susan E. The Poor in Court: The Legal Services Program and Supreme Court Decision Making. Princeton, NJ: Princeton University Press, 1990, pp. 75–78. Liu, Goodwin. “Education, Equality and National Citizenship.” Yale Law Journal, Vol. 116, No. 2 (2006), 330–411. Loffredo, Stephen. “Poverty, Inequality and Class in the Structural Constitutional Law Course.” Fordham Urban Law Journa l, Vol. 34, No. 4 (2007), 1239–1268. McCann, Michael. Rights at Work: The Politics of Legal Mobilization. Chicago, IL: University of Chicago Press, 1994. Michelman, Frank I. “Welfare Rights in a Constitutional Democracy,” 1979 Washington University Law Review 659 (1979). Munzer, Stephen R. “Ellickson on ‘Chronic Misconduct’ in Urban Spaces,” 32 Harvard Civil Rights-Civil Liberties Law Review 1 (Winter 1997). Pappas, Alexia. “Welfare Reform: Child Welfare or the Rhetoric of Responsibility?” 45 Duke Law Journal 1301 (1996). Pappas, Katherine L. “Can an Equal Protection Claim Pass the Test when Educational Financing is Challenged?: A Case for the Rational Basis Standard.” Arizona State Law Journal, Vol. 41 (Summer 2009), 483–503. Peltason, Jack W. Federal Courts in the Political Process. Garden City, NY: Doubleday, 1955.

Perry, H. W. Deciding to Decide: Agenda-Setting in the U.S. Supreme Court. Cambridge, MA: Harvard University Press, 1991, pp. 352 and 380. Provine, Doris Marie. Case Selection in the United States Supreme Court. Chicago: University of Chicago Press, 1980, p. 201. Rebell, Michael A. “Poverty, ‘Meaningful Educational Opportunity,’ and the Necessary Role of the Courts.” North Carolina Law Review, Vol. 85 (2007), 1467–1543. Rosenberg, Gerald. The Hollow Hope: Can Courts Bring About Social Change? Chicago, IL: University of Chicago Press, 1991. Scheingold, Stuart A. “The Dilemmas of Legal Services,” 36 Stanford Law Review 879 (February 1984). Scigliano, Robert. The Supreme Court and the Presidency. New York: The Free Press, 1971. Siegel, Andrew M. “The Roberts Court and Equal Protection: Gender, Race and Class: From Bad to Worse?: Some Early Speculation about the Roberts Court and the Constitutional Fate of the Poor.” South Carolina Law Review, Vol. 59 (Summer 2008), 851–863. Smith, Juliette. “Arresting the Homeless for Sleeping in Public: A Paradigm for Expanding the Robinson Doctrine,” 29 Columbia Journal of Law and Social Problems 293 (Winter 1996). Sunstein, Cass R. “Why Does the American Constitution Lack Social and Economic Guarantees?” Syracuse Law Review, Vol. 56 (2005), 1–25. Taylor, Jr. Stuart, “Legal Aid for the Poor: Reagan’s Longest Brawl,” The New York Times, June 8, 1984, p. 16. Trubek, Louise G. “The Worst of Times . . . and the Best of Times: Lawyering for Poor Clients Today,” 22 Fordham Urban Law Journal (Summer 1995). Wertheimer, Alan. “The Equalization of Legal Resources,” Philosophy and Public Affairs 17 (Fall 1988), 303–322. Wilkins, Brooke. “Should Public Education be a Federal Fundamental Right?” Brigham Young University Education & Law Journal, No. 2 (2005), 261–290.

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CHAPTER 19

AGE AND DISABILITY DISCRIMINATION

FEATURED CASES Gross v. FBL Financial Services, Inc.; O’Connor v. Consolidated Coin Caterers Corp.; Florida v. Arline; Bragdon v. Abbott

AGE AND THE WORKPLACE: THE DEVELOPMENT OF THE LAW FEATURED CASE

Gross v. FBL Financial Services, Inc. Since Roosevelt’s New Deal, the public policy thrust of America in principle, if not in practice, has been an expansion of the application of antidiscrimination and egalitarianism. This thrust has reverberated in the areas of age and disability. With regard to age, efforts to prohibit discrimination were evident as Congress labored to enact the Civil Rights Act of 1964, particularly Title VII, the primary purpose of which was to end hiring on the basis of race or color. As Congress debated Title VII, Congresspersons in both the House and the Senate offered amendments to it that would have added age to the list of its prohibitions. Although Congress had access to information and materials on the nature and extent of discrimination against blacks, the majority of Congresspersons did not have the same level of information about the nature of age discrimination; thus the age amendments were defeated.

However, Congress directed the secretary of labor to study the problem of age discrimination in the workplace and report on his findings. In 1965, Secretary of Labor Willard Wirtz issued a report entitled “The Older American Worker: Age Discrimination in Employment.” When Congress received the report, Secretary Wirtz was instructed to draft legislation to address the problem of age discrimination in the workplace. As Congress held hearings on the submitted legislation, the prevalence of age discrimination became quite evident. Unlike racial and gender-based discrimination, age discrimination was not motivated by hate nor by residue of past discrimination; rather, it was based largely on stereotypes that were unsupported by evidence. Age discrimination exacted a compound cost. First, the national economy suffered because of the loss of millions of productive workers, which subsequently imposed a burden on the treasury in terms of unemployment insurance and federal Social Security benefits. And second, the victims of age discrimination suffered psychological and economic harm. The Age Discrimination in Employment proposal had the support of President Lyndon B. Johnson and the Democrat-controlled Congress. In 1967, the Age Discrimination in Employment Act

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(ADEA) was enacted with a three-fold purpose: (1) to promote employment of older workers on the basis of their ability rather than age, (2) to prohibit arbitrary age discrimination in employment, and (3) to help employers and workers find ways of meeting problems that arose from the impact of age on employment. Section VII of the ADEA outlines the prohibitions against age discrimination. First, it is unlawful to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to their compensation, terms, conditions, or privileges of employment due to the person’s age. Second, it is unlawful for employers to limit, segregate, or classify their employees in any way that would deprive any person of employment opportunities or otherwise adversely affect the person’s status as an employee due to the person’s age. Third, it is unlawful for employers to reduce the wage rate of any employee in order to comply with the ADEA. Fourth, it is unlawful for employers and/or employment agencies to discriminate in any notices or advertisements for employment because of age. Fifth, it is unlawful for labor organizations to limit, segregate, or classify their membership in any way that would deprive or tend to deprive any person of employment opportunities or that would limit such employment opportunities or adversely affect the person’s status as an employee or as an applicant for employment because of age. In general, the ADEA prohibits discrimination against workers who are forty years of age and older. The ADEA has been amended several times. In 1974, Congress extended the ADEA to government employees and lowered the required number of employees in order for a company to be subject to its regulations from 25 to 20. The ADEA has produced a large volume of cases, but most of these cases have been decided in the district courts or the Courts of Appeal. The Supreme Court has not demonstrated a large appetite for ADEA cases. Even so, the Supreme Court’s announcements have played a pivotal role in the development of age policies and the construction of the ADEA. In Massachusetts Board of Retirement v. Murgia (427 U.S. 307, 1976), the issue before the Supreme Court was whether a Massachusetts statute that forced state police officers to retire on the attainment of the age of fifty years constituted a denial of the equal protection clause of the Fourteenth Amendment. In the per curiam decision, the Court rejected the usage of the strict scrutiny standard.

The less exacting rationality standard was employed in affirming the constitutionality of the statute. Referring to San Antonio School District v. Rodriguez (411 U.S. 1, 1973), the Supreme Court argued that “equal protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right or operates to the peculiar disadvantage of a suspect class.” According to the Court, the requirement of mandatory retirement at age fifty did not involve a fundamental right nor a suspect class. The aged, although they have been the victims of discrimination, have not been “ . . . subjected to . . . a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” Thus the aged did not constitute a “discrete and insular” group. In a particularly sharp dissent, Justice Marshall took issue with the Court’s refusal to recognize that Massachusetts’s mandatory retirement law constitutes a significant deprivation for the terminated employees. First, Marshall objected to the perpetuation of the rigid two-tiered model of equal protection analysis. He said, “The model’s two fixed modes of analysis, strict scrutiny and mere rationality, simply do not describe the inquiry the Court has undertaken—or should undertake—in equal protection cases.” Marshall criticized the Court for its failure to admit the sophistication of the equal protection inquiry: “[The Court] has focused upon the character of the classification in question, relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the state interests asserted in support of the classification.” Marshall argued for a standard between strict scrutiny, which always or nearly always strikes down the statute, and the rationality test, which always upholds the challenged legislation. He would have included an intermediate test for classes that fail “the traditional suspect classes such as blacks” and “quasi-suspect” classes such as women and illegitimates. Marshall insisted that the “elderly are undoubtedly discriminated against, and when legislation denies them an important benefit— employment—I conclude that to sustain the legislation appellants must show a reasonably substantial interest and a scheme reasonably closely tailored to achieving that interest.” Age and Disability Discrimination

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In United Airlines, Inc. v. McMann (434 U.S. 192, 1977), the Supreme Court was asked whether: “under the Age Discrimination in Employment Act of 1967, retirement of an employee over his objection and prior to reaching age sixty-five is permissible under the provision of a bona fide retirement plan established by the employer in 1941 and joined by the employee in 1964.”

The Court granted certiorari to resolve the conflict between several circuits of the Court of Appeals. In an opinion joined by Justices Blackmun, Powell, Rehnquist, and Stevens, Chief Justice Burger overturned the Court of Appeals. Burger gave a narrow reading of the ADEA. The chief justice concluded that the majority found “nothing to indicate Congress intended wholesale invalidation of retirement plans instituted in good faith before its passage, or intended to require employers to bear the burden of showing a business or economic purpose to justify bona fide pre-existing plans.” Burger rejected the contention that the retirement plan was a subterfuge, defining that as a “scheme, plan, stratagem, or artifice of evasions.” He refused to accept that a plan established in 1941 could be “a subterfuge to invade an act passed twenty-six years later.” The majority also failed to establish a “per se rule requiring an employer to show an economic or business purpose in order to satisfy the subterfuge language of the act.” In a dissenting opinion that was joined by Justice Brennan, Marshall argued that the majority misconstrued “congressional intent and deprived many older workers of the protection which Congress sought to afford” under the ADEA. Marshall asked the majority to consider the fact that both the House and Senate had already passed amendments to the ADEA that were contrary to its conclusion. By 1978, Marshall’s warning proved to be prophetic. Congress amended the ADEA in a way that overturned the majority’s holding in United Airlines, Inc. v. McMann. In fact, Congress amended the ADEA several times to codify or to overturn the Court’s construction of the statute. In Lorillard v. Pons (434 U.S. 575, 1978), the Supreme Court held that a jury trial is available under the ADEA even though the statute lacked a jury-trial provision. In 1978, Congress added a specific provision that permitted a jury trial if any monetary amount was owing as a result of a violation of the ADEA. In 1988, the Congress enacted the Age Discrimination Claims Assistance Act of 1988. 784

Let us consider another example. In Public Employees Retirement System of Ohio v. Betts (429 U.S. 158, 1989), the Supreme Court decreased an employer’s liability for age discrimination in benefits. The Court concluded that benefits which were adopted prior to the enactment of the ADEA cannot be a subterfuge to evade the act. The 1978 amendment did not prohibit the basing of mandatory retirement on age and did not overturn McMann’s definition of subterfuge. Justice Kennedy also established that bona fide employee benefits plans are exempted from ADEA coverage to the extent that plans are used as a subterfuge for age discrimination in other aspects of the employment relationship. In 1990, Congress responded by enacting the Older Workers Benefit Protection Act of 1990, which prohibits discrimination against older workers in all benefits packages when the actual amount of payment made or cost incurred on behalf of an older worker is no less than the payment made or cost incurred on behalf of younger workers. On the whole, age policy in America is founded on the ADEA of 1967 and its numerous amendments. As we have seen, many of these amendments have emerged from congressional efforts to curb or to overturn policies of the Supreme Court. At other times the amendments to the ADEA reflect congressional attempts to enhance the protection that was offered to older workers (e.g., the Age Discrimination Claims Assistance Act of 1988 restored the claims of workers who had lost their right to seek redress because of delays by the Equal Employment Opportunity Commission (EEOC) in processing their claims). There is some indication, however, that the more conservative wing of the Supreme Court may attempt to diminish the reach of the ADEA. For example, on June 18, 2009, Justice Clarence Thomas delivered an opinion for the Court which suggested that plaintiffs in age discrimination cases should not get the same benefit of the doubt as in other discrimination cases. Writing for a 5–4 majority in Gross v. FBL Financial Services, Inc. (557 U.S. ___, 2009), Justice Thomas concluded: “[A] plaintiff bringing an ADEA disparate-treatment claim must prove, by a preponderance of the evidence, that age was the ‘“but-for’” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.”

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Justice John Paul Stevens dissented and was joined by Justices Souter, Ginsburg, and Breyer. Justice Stevens argued that both the Court and Congress had already rejected the “but for” standard of causation in ADEA claims, and he criticized the majority for “unnecessary lawmaking.” Justice

Breyer also wrote a separate dissenting opinion that was joined by Justices Souter and Ginsburg. He criticized the majority for adopting a standard that was inappropriate for determining mental processes like motive, a necessary element in an ADEA discrimination claim.

GROSS V. FBL FINANCIAL SERVICES, INC. 557 U.S. ____ (2009) JUSTICE THOMAS delivered the opinion of the Court, in which CHIEF JUSTICE ROBERTS and JUSTICES SCALIA, KENNEDY, and ALITO joined. JUSTICE STEVENS filed a dissenting opinion, in which JUSTICES SOUTER, GINSBURG, and BREYER joined. JUSTICE BREYER filed a dissenting opinion, in which JUSTICES SOUTER and GINSBURG joined. The question presented by the petitioner in this case is whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixedmotives jury instruction in a suit brought under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U.S.C. §621 et seq. Because we hold that such a jury instruction is never proper in an ADEA case, we vacate the decision below. I Petitioner Jack Gross began working for respondent FBL Financial Group, Inc. (FBL), in 1971. As of 2001, Gross held the position of claims administration director. But in 2003, when he was fifty-four years old, Gross was reassigned to the position of claims project coordinator. At that same time, FBL transferred many of Gross’ job responsibilities to a newly created position—claims administration manager. That position was given to Lisa Kneeskern, who had previously been supervised by Gross and who was then in her early forties. App. to Pet. for Cert. 23a (District Court opinion). Although Gross (in his new position) and Kneeskern received the same compensation, Gross considered the reassignment a demotion because of FBL’s reallocation of his former job responsibilities to Kneeskern.

In April 2004, Gross filed suit in District Court, alleging that his reassignment to the position of claims project coordinator violated the ADEA, which makes it unlawful for an employer to take adverse action against an employee “because of such individual’s age.” 29 U.S.C. §623(a). The case proceeded to trial, where Gross introduced evidence suggesting that his reassignment was based at least in part on his age. FBL defended its decision on the grounds that Gross’ reassignment was part of a corporate restructuring and that Gross’ new position was better suited to his skills. See App. to Pet. for Cert. 23a (District Court opinion). At the close of trial, and over FBL’s objections, the District Court instructed the jury that it must return a verdict for Gross if he proved, by a preponderance of the evidence, that FBL “demoted [him] to claims projec[t] coordinator” and that his “age was a motivating factor” in FBL’s decision to demote him. App. 9–10. The jury was further instructed that Gross’ age would qualify as a “ ‘motivating factor,’ if [it] played a part or a role in [FBL]’s decision to demote [him].” Id., at 10. The jury was also instructed regarding FBL’s burden of proof. According to the District Court, the “verdict must be for [FBL] . . . if it has been proved by the preponderance of the evidence that [FBL] would have demoted [Gross] regardless of his age.” Ibid. The jury returned a verdict for Gross, awarding him $46,945 in lost compensation. Id., at 8. FBL challenged the jury instructions on appeal. The United States Court of Appeals for the Eighth Circuit reversed and remanded for a new trial, holding that the jury had been incorrectly instructed under the standard established in Price Waterhouse Age and Disability Discrimination

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v. Hopkins, 490 U.S. 228 (1989). . . . In Price Waterhouse, this Court addressed the proper allocation of the burden of persuasion in cases brought under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. §2000e et seq., when an employee alleges that he suffered an adverse employment action because of both permissible and impermissible considerations—i.e., a “mixed-motives” case. 490 U.S., at 232, 244–247 (plurality opinion). The Price Waterhouse decision was splintered. Four Justices joined a plurality opinion, see id., at 231–258, JUSTICES WHITE and O’CONNOR separately concurred in the judgment, see id., at 258–261 (opinion of WHITE, J.); id., at 261–279 (opinion of O’CONNOR, J.), and three Justices dissented, see id., at 279–295 (opinion of KENNEDY, J.). Six Justices ultimately agreed that if a Title VII plaintiff shows that discrimination was a “motivating” or a “ ‘substantial’ ” factor in the employer’s action, the burden of persuasion should shift to the employer to show that it would have taken the same action regardless of that impermissible consideration. See id., at 258 (plurality opinion); id., at 259–260 (opinion of WHITE, J.); id., at 276 (opinion of O’CONNOR, J.). JUSTICE O’CONNOR further found that to shift the burden of persuasion to the employer, the employee must present “direct evidence that an illegitimate criterion was a substantial factor in the [employment] decision.” Id., at 276. In accordance with Circuit precedent, the Court of Appeals identified JUSTICE O’CONNOR’s opinion as controlling. See 526 F.3d, at 359 (citing Erickson v. Farmland Industries, Inc., 271 F.3d 718, 724 (CA8 2001)). Applying that standard, the Court of Appeals found that Gross needed to present “[d]irect evidence . . . sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the adverse employment action.” 526 F. 3d, at 359 (internal quotation marks omitted). In the Court of Appeals’ view, “direct evidence” is only that evidence that “show[s] a specific link between the alleged discriminatory animus and the challenged decision.” Ibid. (internal quotation marks omitted). Only upon a presentation of such evidence, the Court of Appeals held, should the burden shift to the employer “‘to convince the trier of fact that it is more likely than not that the decision would have been the same absent consideration of the illegitimate factor.’ ” Ibid. (quoting Price Waterhouse, supra, at 276 (opinion of O’CONNOR, J.)). 786

The Court of Appeals thus concluded that the District Court’s jury instructions were flawed because they allowed the burden to shift to FBL upon a presentation of a preponderance of any category of evidence showing that age was a motivating factor— not just “direct evidence” related to FBL’s alleged consideration of age. See 526 F.3d, at 360. Because Gross conceded that he had not presented direct evidence of discrimination, the Court of Appeals held that the District Court should not have given the mixed-motives instruction. Ibid. Rather, Gross should have been held to the burden of persuasion applicable to typical, non-mixed-motives claims; the jury thus should have been instructed only to determine whether Gross had carried his burden of “prov[ing] that age was the determining factor in FBL’s employment action.” We granted certiorari, and now vacate the decision of the Court of Appeals. II The parties have asked us to decide whether a plaintiff must “present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case.” Pet. for Cert. i. Before reaching this question, however, we must first determine whether the burden of persuasion ever shifts to the party defending an alleged mixedmotives discrimination claim brought under the ADEA. We hold that it does not. A Petitioner relies on this Court’s decisions construing Title VII for his interpretation of the ADEA. Because Title VII is materially different with respect to the relevant burden of persuasion, however, these decisions do not control our construction of the ADEA. In Price Waterhouse, a plurality of the Court and two Justices concurring in the judgment determined that once a “plaintiff in a Title VII case proves that [the plaintiff’s membership in a protected class] played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken [that factor] into account.” . . . But as we explained in Desert Palace, Inc. v. Costa, 539 U.S. 90, 94–95 (2003), Congress has since amended Title VII by explicitly authorizing discrimination claims in which an improper consideration was “a motivating

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factor” for an adverse employment decision. See 42 U.S.C. §2000e-2(m) (providing that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice” (emphasis added)); §2000e-5(g)(2)(B) (restricting the remedies available to plaintiffs proving violations of §2000e-2(m)). This Court has never held that this burden-shifting framework applies to ADEA claims. And, we decline to do so now. When conducting statutory interpretation, we “must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.” Federal Express Corp. v. Holowecki, 552 U.S. ___, ___ (2008). . . . Unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Moreover, Congress neglected to add such a provision to the ADEA when it amended Title VII to add §§2000e-2(m) and 2000e-5(g)(2)(B), even though it contemporaneously amended the ADEA in several ways, see Civil Rights Act of 1991, §115, 105 Stat. 1079; id., §302, at 1088. We cannot ignore Congress’ decision to amend Title VII’s relevant provisions but not make similar changes to the ADEA. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally. See EEOC v. Arabian American Oil Co., 499 U.S. 244, 256 (1991). Furthermore, as the Court has explained, “negative implications raised by disparate provisions are strongest” when the provisions were “considered simultaneously when the language raising the implication was inserted.” Lindh v. Murphy, 521 U.S. 320, 330 (1997). As a result, the Court’s interpretation of the ADEA is not governed by Title VII decisions such as Desert Palace and Price Waterhouse. B Our inquiry therefore must focus on the text of the ADEA to decide whether it authorizes a mixedmotives age discrimination claim. It does not. “Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.” Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 541 U.S. 246, 252 (2004) (internal quotation marks omitted). The ADEA provides, in relevant part, that “[i]t shall

be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §623(a)(1) (emphasis added). The words “because of” mean “by reason of: on account of.” 1 Webster’s Third New International Dictionary 194 (1966); see also 1 Oxford English Dictionary 746 (1933) (defining “because of” to mean “By reason of, on account of” (italics in original)); The Random House Dictionary of the English Language 132 (1966) (defining “because” to mean “by reason; on account”). Thus, the ordinary meaning of the ADEA’s requirement that an employer took adverse action “because of” age is that age was the “reason” that the employer decided to act. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993) (explaining that the claim “cannot succeed unless the employee’s protected trait actually played a role in [the employer’s decisionmaking] process and had a determinative influence on the outcome” (emphasis added)). To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the “but-for” cause of the employer’s adverse decision. . . . It follows, then, that under §623(a)(1), the plaintiff retains the burden of persuasion to establish that age was the “but-for” cause of the employer’s adverse action. Indeed, we have previously held that the burden is allocated in this manner in ADEA cases. . . . And nothing in the statute’s text indicates that Congress has carved out an exception to that rule for a subset of ADEA cases. Where the statutory text is “silent on the allocation of the burden of persuasion,” we “begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims.” . . . Hence, the burden of persuasion necessary to establish employer liability is the same in alleged mixed-motives cases as in any other ADEA disparate-treatment action. A plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the “but-for” cause of the challenged employer decision. See Reeves, supra, at 141–143, 147. III Finally, we reject petitioner’s contention that our interpretation of the ADEA is controlled by Price Waterhouse, which initially established that the Age and Disability Discrimination

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burden of persuasion shifted in alleged mixedmotives Title VII claims. In any event, it is far from clear that the Court would have the same approach were it to consider the question today in the first instance. . . . Whatever the deficiencies of Price Waterhouse in retrospect, it has become evident in the years since that case was decided that its burden-shifting framework is difficult to apply. For example, in cases tried to a jury, courts have found it particularly difficult to craft an instruction to explain its burden-shifting framework. See, e.g., Tyler v. Bethlehem Steel Corp., 958 F. 2d 1176, 1179 (CA2 1992) (referring to “the murky water of shifting burdens in discrimination cases”); Visser v. Packer Engineering Associates, Inc., 924 F.2d 655, 661 (CA7 1991) (en banc) (FLAUM, J., dissenting) (“The difficulty judges have in formulating [burden-shifting] instructions and jurors have in applying them can be seen in the fact that jury verdicts in ADEA cases are supplanted by judgments notwithstanding the verdict or reversed on appeal more frequently than jury verdicts generally”). Thus, even if Price Waterhouse was doctrinally sound, the problems associated with its application have eliminated any perceivable benefit to extending its framework to ADEA claims. . . . IV We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. Accordingly, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting. The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §621 et seq., makes it unlawful for an employer to discriminate against any employee “because of” that individual’s age, §623(a). The most natural reading of this statutory text 788

prohibits adverse employment actions motivated in whole or in part by the age of the employee. The “but-for” causation standard endorsed by the Court today was advanced in JUSTICE KENNEDY’s dissenting opinion in Price Waterhouse v. Hopkins. . . . a case construing identical language in Title VII of the Civil Rights Act of 1964. . . . Not only did the Court reject the but-for standard in that case, but so too did Congress when it amended Title VII in 1991. Given this unambiguous history, it is particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII. I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. I would simply answer the question presented by the certiorari petition and hold that a plaintiff need not present direct evidence of age discrimination to obtain a mixedmotives instruction. I The Court asks whether a mixed-motives instruction is ever appropriate in an ADEA case. As it acknowledges, this was not the question we granted certiorari to decide. Instead, the question arose for the first time in respondent’s brief, which asked us to “overrule Price Waterhouse with respect to its application to the ADEA.” Brief for Respondent 26 (boldface type deleted). In the usual course, this Court would not entertain such a request raised only in a merits brief: “‘We would normally expect notice of an intent to make so far-reaching an argument in the respondent’s opposition to a petition for certiorari, cf. this Court’s Rule 15.2, thereby assuring adequate preparation time for those likely affected and wishing to participate.’” Alabama v. Shelton, 535 U.S. 654, 660, n. 3 (2002) (quoting South Central Bell Telephone Co. v. Alabama, 526 U.S. 160, 171 (1999)). Yet the Court is unconcerned that the question it chooses to answer has not been briefed by the parties or interested amici curiae. Its failure to consider the views of the United States, which represents the agency charged with administering the ADEA, is especially irresponsible. Unfortunately, the majority’s inattention to prudential Court practices is matched by its utter disregard of our precedent and Congress’ intent. The ADEA provides that “[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge

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any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §623(a)(1) (emphasis added). As we recognized in Price Waterhouse when we construed the identical “because of” language of Title VII, see 42 U.S.C. §2000e-2(a)(1) (making it unlawful for an employer “to fail or refuse to hire or to discharge any individual . . . with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin” (emphasis added)), the most natural reading of the text proscribes adverse employment actions motivated in whole or in part by the age of the employee. In Price Waterhouse, we concluded that the words “‘because of’ such individual’s . . . sex . . . mean that gender must be irrelevant to employment decisions.” 490 U.S., at 240 (plurality opinion); see also id., at 260 (WHITE, J., concurring in judgment). To establish a violation of Title VII, we therefore held, a plaintiff had to prove that her sex was a motivating factor in an adverse employment decision. We recognized that the employer had an affirmative defense: It could avoid a finding of liability by proving that it would have made the same decision even if it had not taken the plaintiff’s sex into account. Id., at 244–245 (plurality opinion). But this affirmative defense did not alter the meaning of “because of.” As we made clear, when “an employer considers both gender and legitimate factors at the time of making a decision, that decision was ‘because of’ sex.” Id., at 241; see also id., at 260 (WHITE, J., concurring in judgment). We readily rejected the dissent’s contrary assertion. “To construe the words ‘because of’ as colloquial shorthand for ‘but-for’ causation,” we said, “is to misunderstand them.” Id., at 240 (plurality opinion). Today, however, the Court interprets the words “because of” in the ADEA “as colloquial shorthand for ‘but-for’ causation.” Ibid. That the Court is construing the ADEA rather than Title VII does not justify this departure from precedent. The relevant language in the two statutes is identical, and we have long recognized that our interpretations of Title VII’s language apply “with equal force in the context of age discrimination, for the substantive provisions of the ADEA ‘were derived in haec verba from Title VII.’” ...For this reason, JUSTICE KENNEDY’s dissent in Price Waterhouse assumed the plurality’s mixedmotives framework extended to the ADEA, see 490 U.S., at 292, and the Courts of Appeals to have

considered the issue unanimously have applied Price Waterhouse to ADEA claims. The Court nonetheless suggests that applying Price Waterhouse would be inconsistent with our ADEA precedents. In particular, the Court relies on our statement in Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993), that “[a disparate-treatment] claim ‘cannot succeed unless the employee’s protected trait actually played a role in [the employer’s decisionmaking] process and had a determinative influence on the outcome.’ “Ante, at 8. The italicized phrase is at best inconclusive as to the meaning of the ADEA’s “because of” language, however, as other passages in Hazen Paper Co. demonstrate. We also stated, for instance, that the ADEA “requires the employer to ignore an employee’s age,” id., at 612 (emphasis added), and noted that “[w]hen the employer’s decision is wholly motivated by factors other than age,” there is no violation, id., at 611 (emphasis altered). So too, we indicated the “possibility of dual liability under ERISA and the ADEA where the decision to fire the employee was motivated both by the employee’s age and by his pension status,” id., at 613—a classic mixed-motives scenario. Moreover, both Hazen Paper Co. and Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), on which the majority also relies, support the conclusion that the ADEA should be interpreted consistently with Title VII. In those non-mixedmotives ADEA cases, the Court followed the standards set forth in non-mixed-motives Title VII cases including McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). See, e.g., Reeves, 530 U.S., at 141–143; Hazen Paper Co., 507 U.S., at 610. This by no means indicates, as the majority reasons, that mixed-motives ADEA cases should follow those standards. Rather, it underscores that ADEA standards are generally understood to conform to Title VII standards. II The conclusion that “because of” an individual’s age means that age was a motivating factor in an employment decision is bolstered by Congress’ reaction to Price Waterhouse in the 1991 Civil Rights Act. As part of its response to “a number of recent decisions by the United States Supreme Court that sharply cut back on the scope and effectiveness of [civil rights] laws,” H.R. Rep. No. 102–40, pt. 2, p.2 (1991) (hereAge and Disability Discrimination

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inafter H. R. Rep.), Congress eliminated the affirmative defense to liability that Price Waterhouse had furnished employers and provided instead that an employer’s same-decision showing would limit only a plaintiff’s remedies. See §2000e-5(g)(2)(B). Importantly, however, Congress ratified Price Waterhouse’s interpretation of the plaintiff’s burden of proof, rejecting the dissent’s suggestion in that case that but-for causation was the proper standard. See §2000e-2(m) (“[A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice”). Because the 1991 Act amended only Title VII and not the ADEA with respect to mixed-motives claims, the Court reasonably declines to apply the amended provisions to the ADEA. But it proceeds to ignore the conclusion compelled by this interpretation of the Act: Price Waterhouse’s construction of “because of” remains the governing law for ADEA claims. Our recent decision in Smith v. City of Jackson, 544 U.S. 228, 240 (2005), is precisely on point, as we considered in that case the effect of Congress’ failure to amend the disparate-impact provisions of the ADEA when it amended the corresponding Title VII provisions in the 1991 Act. Noting that “the relevant 1991 amendments expanded the coverage of Title VII [but] did not amend the ADEA or speak to the subject of age discrimination,” we held that “Wards Cove’s pre-1991 interpretation of Title VII’s identical language remains applicable to the ADEA.” 544 U.S., at 240 (discussing Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989)); see also Meacham v. Knolls Atomic Power Laboratory, 554 U.S. ___, ___ (2008). . . . If the Wards Cove disparate-impact framework that Congress flatly repudiated in the Title VII context continues to apply to ADEA claims, the mixed-motives framework that Congress substantially endorsed surely applies. Curiously, the Court reaches the opposite conclusion, relying on Congress’ partial ratification of Price Waterhouse to argue against that case’s precedential value. It reasons that if the 1991 amendments do not apply to the ADEA, Price Waterhouse likewise must not apply because Congress effectively codified Price Waterhouse’s holding in the amendments. Ante, at 5-6. This does not follow. To the contrary, the fact that Congress endorsed this Court’s interpretation of the “because of” language in Price Waterhouse (even as it rejected the employer’s affirmative defense to 790

liability) provides all the more reason to adhere to that decision’s motivating-factor test. Indeed, Congress emphasized in passing the 1991 Act that the motivating-factor test was consistent with its original intent in enacting Title VII. See, e.g., H. R. Rep., pt. 2, at17 (“When enacting the Civil Rights Act of 1964, Congress made clear that it intended to prohibit all invidious consideration of sex, race, color, religion, or national origin in employment decisions”); id., at 2 (stating that the Act “reaffirm[ed] that any reliance on prejudice in making employment decisions is illegal”); see also H. R. Rep., pt. 1, at 45; S. Rep. No. 101–315, pp. 6, 22 (1990). The 1991 amendments to Title VII also provide the answer to the majority’s argument that the mixed-motives approach has proved unworkable. Ante, at 10–11. Because Congress has codified a mixed-motives framework for Title VII cases—the vast majority of antidiscrimination lawsuits—the Court’s concerns about that framework are of no moment. Were the Court truly worried about difficulties faced by trial courts and juries, moreover, it would not reach today’s decision, which will further complicate every case in which a plaintiff raises both ADEA and Title VII claims. The Court’s resurrection of the but-for causation standard is unwarranted. Price Waterhouse repudiated that standard twenty years ago, and Congress’ response to our decision further militates against the crabbed interpretation the Court adopts today. The answer to the question the Court has elected to take up—whether a mixed-motives jury instruction is ever proper in an ADEA case—is plainly yes. III Although the Court declines to address the question we granted certiorari to decide, I would answer that question by following our unanimous opinion in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). I would accordingly hold that a plaintiff need not present direct evidence of age discrimination to obtain a mixed-motives instruction. The source of the direct-evidence debate is JUSTICE O’CONNOR’s opinion concurring in the judgment in Price Waterhouse. Writing only for herself, JUSTICE O’CONNOR argued that a plaintiff should be required to introduce “direct evidence” that her sex motivated the decision before the plurality’s mixed-motives framework would apply. 490 U.S., at 276. Many courts have treated JUSTICE O’CONNOR’s opinion in Price

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Waterhouse as controlling for both Title VII and ADEA mixed-motives cases in light of our statement in Marks v. United States, 430 U.S. 188, 193 (1977), that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’ ” Unlike the cases Marks addressed, however, Price Waterhouse garnered five votes for a single rationale: JUSTICE WHITE agreed with the plurality as to the motivating-factor test, see supra, at 3, n. 3; he disagreed only as to the type of evidence an employer was required to submit to prove that the same result would have occurred absent the unlawful motivation. Taking the plurality to demand objective evidence, he wrote separately to express his view that an employer’s credible testimony could suffice. 490 U.S., at 261. Because JUSTICE WHITE provided a fifth vote for the “rationale explaining the result” of the Price Waterhouse decision, Marks, 430 U.S., at 193, his concurrence is properly understood as controlling, and he, like the plurality, did not require the introduction of direct evidence. Any questions raised by Price Waterhouse as to a direct evidence requirement were settled by this Court’s unanimous decision in Desert Palace, in which we held that a plaintiff need not introduce direct evidence to meet her burden in a mixed-motives case under Title VII, as amended by the Civil Rights Act of 1991. In construing the language of §2000e2(m), we reasoned that the statute did not mention, much less require, a heightened showing through direct evidence and that “Congress has been unequivocal when imposing heightened proof requirements.” 539 U.S., at 99. The statute’s silence with respect to direct evidence, we held, meant that “we should not depart from the ‘[c]onventional rul[e] of civil litigation . . . [that] requires a plaintiff to prove his case by a preponderance of the evidence’, . . . using ‘direct or circumstantial evidence.’ “Ibid. (quoting Price Waterhouse, 490 U.S., at 253 (plurality opinion), and Postal Service Bd. of Governors v. Aikens, 460 U.S. 711 (1983)). We also recognized the Court’s consistent acknowledgment of the utility of circumstantial evidence in discrimination cases. Our analysis in Desert Palace applies with equal force to the ADEA. Cf. ante, at 9–10, n.4. As with the 1991 amendments to Title VII, no language in the ADEA imposes a heightened direct evidence requirement, and we have specifically recognized the utility of circumstantial evidence in ADEA cases. . . .

IV The Court’s endorsement of a different construction of the same critical language in the ADEA and Title VII is both unwise and inconsistent with settled law. The but-for standard the Court adopts was rejected by this Court in Price Waterhouse and by Congress in the Civil Rights Act of 1991. Yet today the Court resurrects the standard in an unabashed display of judicial lawmaking. I respectfully dissent. JUSTICE BREYER’s, with whom JUSTICE SOUTER and JUSTICE GINSBURG joined, dissenting opinion is not reprinted here.

BONA FIDE OCCUPATIONAL QUALIFICATIONS Bona fide occupational qualifications are a key issue as age policy continues to develop. In Vance v. Bradley (440 U.S. 93, 1979), the Supreme Court was asked to decide whether Congress had violated the equal protection component of the Fifth Amendment’s due process clause by requiring federal employees covered by the Foreign Service retirement and disability system to retire at age 60 but not requiring retirement at this age for employees who were covered by the Civil Service retirement and disability system. A three-judge District Court concluded that the distinction was invalid. However, speaking for the majority, Justice White reversed the holding of the District Court. White gave substantial deference to Congress. “Congress,” he argued, “plainly intended to create a relatively small, homogeneous, and particularly able corps of Foreign Service officers.” Justice White insisted that “the judgment that the Foreign Service needs such a system more than many other departments is one of policy, and this kind of policy, under our constitutional system, ordinarily is to be ‘fixed only by the people acting through their elected representatives.’” Next Justice White turned to an examination of Congress’s action since the establishment of the requirement for the Foreign Service. He noted that the Congress retained the “lower retirement age for Foreign Service officers when it reorganized the Foreign Service in 1946, but it also lowered the age to 60.” He concluded that “in expanding the coverage of the Foreign Service retirement system to reach others than Foreign Service officers” “. . . Congress obviously reaffirmed Age and Disability Discrimination

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its own judgment that the system should provide a lower retirement age than in the Civil Service system, just as it did in 1978 when it repealed the mandatory age for the retirement of Civil Service employees but left intact the rule for those under the Foreign Service System.”

Employing the rational basis standard, White adjudged that the appellees failed to show “that Congress has no reasonable basis for believing that conditions overseas generally are more demanding than conditions in the United States and that at age 60 or before many persons begin something of a decline in mental and physical reliability.”

In dissent, Justice Marshall contended that “mandatory retirement provisions warrant more than [a rational basis] level of equal protection review.” He insisted that a closer scrutiny would topple the provisions. Justice Marshall argued for a heightened level of judicial scrutiny for several reasons. First, he said that an “individual’s interest in continued government employment . . . ranks among the most important of his personal concerns that government action would be likely to affect.” Second, the mandatory retirement provisions imposed a deprivation on the elderly who “have suffered from discrimination based upon generalizations that are inaccurate for many, if not most, of the age group affected.” Marshall wanted “proof that the Foreign Service’s mandatory retirement scheme ‘serves important governmental objectives and [is] substantially related to achievement of those objectives’” (referencing California v. Webster, 430 U.S. 313, 1977; Craig v. Boren, 429 U.S. 190, 1976; Massachusetts Board of Retirement v. Murgia, 427 U.S. at 325 [Justice Marshall dissenting]). Third, Marshall insisted that the claim was properly before the Court. Fourth, he said that the mandatory retirement system bore no substantial relationship to the articulated objective of the statutory scheme. Finally, in conclusion Marshall said “Where individuals’ livelihood, self-esteem, and dignity are so critically affected, I do not believe the Government should be relieved of that responsibility.” The Supreme Court also evaluated the permissibility of reasonable factors other than age under the ADEA. This theory assumes that no violation of the ADEA has occurred as long as the discrimination is based on reasonable factors other than age. In TransWorld Airlines, Inc. v. Thruston (469 792

U.S. 111, 1985), the Court sought to define the scope of ADEA liability and the defense of bona fide occupational qualification and liquidated damages. Speaking for the Court, Justice Powell reasoned that the TWA transfer policy which allowed captains “who become disqualified for any reason other than age to ‘bump’ less senior flight engineers is discriminatory on its face.” Next Powell argued that the TWA’s discriminatory policy violated the ADEA because age is not a bona fide occupational qualification for its “‘particular’” position of flight engineer. In other words, being under age 60 is not a bona fide occupational qualification for the position of flight engineer. Powell concluded that the ADEA’s “bona fide seniority system” defense is unavailable to TWA because the ADEA “provides that a seniority system may not ‘require or permit’ the involuntary retirement of a protected individual [due to] his age.” Powell, however, refused to permit liquidated damages to be awarded against TWA. After examining the legislative history of the ADEA, Justice Powell indicated that “Congress intended for liquidated damages to be punitive in nature.” Powell believed that there “simply is no evidence that TWA acted with ‘reckless disregard’ of the requirements of the ADEA,” meaning that TWA’s violation was not willful within the meaning of ADEA. In Johnson v. Major and City Council of Baltimore (472 U.S. 353, 1985), the Supreme Court refused to sustain Baltimore’s policy of retiring firefighters at age 55. The Court argued that the policy failed to articulate a bona fide occupational qualification for firefighters. Similarly, in Western Airlines, Inc. v. Criswell (472 U.S. 400, 1985), the employer refused to permit flight engineers to work beyond the age of sixty. The Supreme Court reasoned that Western Airlines policy did not meet the threshold of a bona fide occupational qualification. The Court also argued that “the process of psychological and physical degeneration caused by aging varies with each individual.” The Congress required management decisions to meet objective justification in a court of law, meaning that restrictive job qualifications must be more than “convenient” or “reasonable.” The Supreme Court adjudged that the job qualifications must be a reasonable necessity. In Gregory v. Ashcroft (501 U.S. 452, 1991), the Supreme Court confronted the constitutionality of

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the Missouri Constitution provision which required that “[a]ll judges other than municipal judges shall retire at the age of seventy years.” The petitioners, who were Missouri state judges, contended that the mandatory retirement provision violated the federal ADEA of 1967 and the equal protection clause of the Fourteenth Amendment. Here again, the Supreme Court exemplified a case-by-case approach and more directly a refusal to render an expansive interpretation of the ADEA and age in the context of the Fourteenth Amendment. Justice O’Connor delivered the opinion of the Court, in which she was joined by Chief Justice Rehnquist and Justices Scalia, Kennedy, and Souter. Justice White, joined by Justice Stevens, filed an opinion in which he concurred in part and dissented in part and concurred in the judgment. Justice Blackmun filed a dissenting opinion, in which he was joined by Justice Marshall. In Aschroft, both the district court and the Court of Appeals had concluded that the Missouri constitutional provision for mandatory retirement surpassed the rational basis test. Justice White noted the dual sovereignty that exists between the federal and state governments and how the federalist structure of joint sovereignty benefits the people. Benefits include (1) the assurance that decentralized government is more sensitive to the needs of a heterogenous society, (2) the creation of the opportunity for citizen involvement in the democratic process, (3) the allowance for more innovation and experimentation in government, (4) the creation of a more responsive government by making the states compete for a mobile citizenry, and (5) the establishment of a check on abuses of government power. Justice O’Connor turned her attention to the (limited) authority of the people to determine the qualifications of their most important government officials. O’Connor underscored that in 1974 Congress had “extended the substantive provisions of the ADEA to include the states as employees.” Then she argued that ambiguity surrounds ADEA and appointed judges: “In light of ADEA’s clear exclusion of most important public officials, it is at least ambiguous whether Congress intended that appointed judges nonetheless be included.” Because of the ambiguity, O’Connor said, “We will not attribute to Congress an intent to intrude on state government functions regardless of whether Congress acted pursuant to its commerce clause

powers or Section 5 of the Fourteenth Amendment.” Utilizing the rational basis standard, O’Connor found Missouri mandatory retirement at age 70 for judges, except municipal judges, to be reasonable. She noted the significant role performed by judges, “the general lack of accountability” of judges, and the fact that other state employees are more easily removed than judges. O’Connor also admitted that the “Missouri mandatory retirement provision, like all legal classification, is founded on a generalization,” concluding that neither the ADEA nor the equal protection clause prohibited the choice” Missouri had made. Justice White’s opinion, concurring in part, dissenting in part, and concurring in the judgment, was joined by Justice Stevens. White criticized O’Connor and the majority for failing to resolve the issue of statutory construction. White thought that the question in this case was “not whether Congress has outlawed age discrimination by the states, [but rather] whether petitioners fall within the definition of ‘employee’ in the ADEA, which contains exceptions for elected officials and certain appointed officials.” Because preemption was automatic, White reasoned that “the majority’s federalism concerns are irrelevant.” White accused the majority of attempting “to carve out areas of state activity that will receive special protection from federal legislation.” He insisted that the majority’s plain statement rule “violates one general practice of avoiding the unnecessary resolution of constitutional issues.” White particularly criticized the: “majority’s failure to recognize the special status of legislation enacted pursuant to Section 5 that, unlike Congress’s Commerce Clause power, ‘[w]hen Congress acts pursuant to Section 5, not only is it exercising legislative authority that is plenary within the terms of the constitutional grant, it is exercising that authority under one section of a constitutional amendment whose other sections by their own terms embody limitations on state authority.’” (quoting Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 1976)

He argued vigorously that the Civil War Amendments “were specifically designed as an expansion of federal power and an intrusion on state sovereignty” (quoting City of Rome v. United States, 446 U.S. 156, 179, 1980). Finally, White asserted that petitioners “are ‘appointed’ rather than ‘elected’ within the meaning of the ADEA, which means they are ‘on the policymaking level.’” Age and Disability Discrimination

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In a dissenting opinion joined by Justice Marshall, Justice Blackmun based his dissent on two broad arguments. First, he contended that “the structure and legislative history of the policymaking exclusion make clear that judges are not the kind of policymakers whom Congress intended to exclude from ADEA’s broad reach.” And second, Blackmun said he would “defer to the EEOC’s reasonable construction of the ADEA as covering appointed state judges.”

PROOF OF VIOLATIONS FEATURED CASE

O’Connor v. Consolidated Coin Caterers Corp. As the ADEA was litigated in courts, it was considered to be both substantively and procedurally similar to Title VII. (See, for example, Lorillard v. Pons, 434 U.S. 575, 1978.) It is difficult to establish violations in most instances of discrimination. Age discrimination is no different, because there is generally no direct evidence of an employer’s purpose to discriminate. (See ”A Rose by Any Other Name No Longer Smells as Sweet: Disparate Treatment Discrimination and the Age Proxy Doctrine after Hazen Paper Co. v. Biggins.”)

The Supreme Court has adapted the McDonnell Douglas v. Green/Burdine Formula (411 U.S. 792, 1973); see Texas Department of Community Affairs v. Burdine (450 U.S. 248, 1981). In O’Connor v. Consolidated Coin Caterers Corp. (116 S. Ct. 1307, 1996), Justice Scalia noted that in McDonnell Douglas the Court “established an allocation of the burden and an order for the presentation of proof in Title VII discriminatory treatment cases” (quoting from St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506, 1993). Scalia indicated that the McDonnell Douglas decision required the showing that (1) the claimant belonged to a racial minority; (2) the claimant applied for and was qualified for a job for which the employer was seeking an applicant; (3) the claimant was rejected despite his or her qualifications; and (4) after his or her rejection, the position remained opened and the employer continued to seek applicants who possessed the applicant’s qualifications. Scalia reasoned that in an ADEA case, in order to establish the prima facie case “there must be at least a logical connection between each element of the prima facie case and the illegal discrimination.” Scalia argued that under ADEA, it is irrelevant that one person in the protected class has lost out to another person in the protected class.

O’CONNOR V. CONSOLIDATED COIN CATERERS CORP. 517 U.S. 308 (1996) JUSTICE SCALIA delivered the opinion for a unanimous Court. This case presents the question whether a plaintiff alleging that he was discharged in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., must show that he was replaced by someone outside the age group protected by the ADEA to make out a prima facie case under the framework established by McDonnell Douglas Corp. v. Green (1973). Petitioner James O’Connor was employed by respondent Consolidated Coin Caterers Corporation from 1978 until August 10, 1990, when, at age 56, he was fired. Claiming that he had been dismissed be794

cause of his age in violation of the ADEA, petitioner brought suit in the United States District Court for the Western District of North Carolina. After discovery, the District Court granted respondent’s motion for summary judgment, and petitioner appealed. The Court of Appeals for the Fourth Circuit stated that petitioner could establish a prima facie case under McDonnell Douglas only if he could prove that (1) he was in the age group protected by the ADEA; (2) he was discharged or demoted; (3) at the time of his discharge or demotion, he was performing his job at a level that met his employer’s legitimate expectations; and (4) following his discharge or demotion, he was replaced by someone of comparable qualifications outside the protected class. Since petitioner’s replacement

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was forty years old, the Court of Appeals concluded that the last element of the prima facie case had not been made out. Finding that petitioner’s claim could not survive a motion for summary judgment without benefit of the McDonnell Douglas presumption (i.e., “under the ordinary standards of proof used in civil cases”), the Court of Appeals affirmed the judgment of dismissal. We granted O’Connor’s petition for certiorari. In McDonnell Douglas, we “established an allocation of the burden of production and an order for the presentation of proof in Title VII discriminatorytreatment cases.” St. Mary’s Honor Center v. Hicks (1993). We held that a plaintiff alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964 could establish a prima facie case by showing “(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of [the] complainant’s qualifications.” McDonnell Douglas. Once the plaintiff has met this initial burden, the burden of production shifts to the employer “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Ibid. If the trier of fact finds that the elements of the prima facie case are supported by a preponderance of the evidence and the employer remains silent, the court must enter judgment for the plaintiff. . . . In assessing claims of age discrimination brought under the ADEA, the Fourth Circuit, like others, has applied some variant of the basic evidentiary framework set forth in McDonnell Douglas. We have never had occasion to decide whether that application of the Title VII rule to the ADEA context is correct, but since the parties do not contest that point, we shall assume it. Cf. St. Mary’s Honor Center (assuming that “the McDonnell Douglas framework is fully applicable to racial-discrimination-in-employment claims under 42 U.S.C. § 1983”). On that assumption, the question presented for our determination is what elements must be shown in an ADEA case to establish the prima facie case that triggers the employer’s burden of production. As the very name “prima facie case” suggests, there must be at least a logical connection between each element of the prima facie case and the illegal discrimination for which it establishes a “legally mandatory, rebuttable presumption,” Texas Department of Community Affairs v. Burdine (1981). The element

of replacement by someone under 40 fails this requirement. The discrimination prohibited by the ADEA is discrimination “because of [an] individual’s age,” though the prohibition is “limited to individuals who are at least forty years of age.” This language does not ban discrimination against employees because they are aged forty or older; it bans discrimination against employees because of their age, but limits the protected class to those who are forty or older. The fact that one person in the protected class has lost out to another person in the protected class is thus irrelevant, so long as he has lost out because of his age. Or to put the point more concretely, there can be no greater inference of age discrimination (as opposed to “40 or over” discrimination) when a forty year-old is replaced by a thirty-nine year-old than when a fiftysix year-old is replaced by a forty year-old. Because it lacks probative value, the fact that an ADEA plaintiff was replaced by someone outside the protected class is not a proper element of the McDonnell Douglas prima facie case. Perhaps some courts have been induced to adopt the principle urged by respondent in order to avoid creating a prima facie case on the basis of very thin evidence—for example, the replacement of a sixtyeight year-old by a sixty-five year-old. While the respondent’s principle theoretically permits such thin evidence (consider the example above of a forty year-old replaced by a thirty-nine year-old), as a practical matter it will rarely do so, since the vast majority of age-discrimination claims come from older employees. In our view, however, the proper solution to the problem lies not in making an utterly irrelevant factor an element of the prima facie case, but rather in recognizing that the prima facie case requires “evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion. . . .” Teamsters v. United States (1977). In the age-discrimination context, such an inference can not be drawn from the replacement of one worker with another worker insignificantly younger. Because the ADEA prohibits discrimination on the basis of age and not class membership, the fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside the protected class. The judgment of the Fourth Circuit is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. Age and Disability Discrimination

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DISABILITY IN THE WORKPLACE FEATURED CASES

Florida v. Arline; Bragdon v. Abbott Persons with disabilities in the workplace received federal protection under the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990. Both statutes represent milestones in American views and attitudes toward persons who have physical or mental impairments and in the opportunities for these persons in the workplace. Specifically, the two statutes constitute the application of the principles of antidiscrimination and equality to persons with disabilities in employment. The Americans with Disabilities Act of 1990 straightforwardly prohibits discrimination in the workplace against qualified individuals with disabilities. It also explicitly mandates the elimination of physical barriers that serve to exclude persons with disabilities from the workplace. The act’s intent is to place an affirmative duty on employers to provide opportunities to qualified persons with disabilities through the mandate of reasonable accommodations. The Supreme Court has not issued very many pronouncements that construe the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990. Even so, it has been left to the Supreme Court and other courts to determine the scope of the legislation and the definitions of disability, major life activity, reasonable accommodation, and discrimination under the legislation. The Supreme Court provides a construction of the Rehabilitation Act of 1973 in Southeastern Community College v. Davis (442 U.S. 397, 1979). The respondent alleged that the refusal of the Southeastern Community College to admit her because of her hearing disability constituted a violation of Section 504 of the Rehabilitation Act of 1973 and a denial of equal protection and due process. Justice Powell delivered the opinion for a unanimous Court. Powell concluded that there was no violation of Section 504 of the Rehabilitation Act of 1973. He argued that Section 504 does not impose an affirmative duty on educational institutions “to disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate.” He interpreted Section 504 to prohibit the exclusion of an “otherwise qualified handicapped individual” from “participation in a federally funded program ‘solely by reason of his [or 796

her] handicap.’” In conclusion, Powell stated that “[i]t is undisputed that respondent could not participate in Southeastern’s nursing program unless the standards were substantially lowered.” In School Board of Nassau County, Florida v. Arline (480 U.S. 273, 1987), the Court construed the Rehabilitation Act of 1973. At issue was “whether a person afflicted with tuberculosis, a contagious disease, may be considered a ‘handicapped individual’ within the meaning . . . of the act, and if so, whether such an individual is ‘otherwise qualified’ to teach elementary school.” Speaking for a 7–2 majority, Justice Brennan held that such a person may be a “handicapped individual under the Act.” Brennan argued that “allowing discrimination based on the contagious effects of a physical impairment would be inconsistent with the basic purpose of [the act].” He also noted Congress’s awareness that “society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from the actual impairment.” According to Brennan, Congress sought to prevent discrimination on the basis of “simple prejudice,” “archaic attitudes and laws,” and people’s unfamiliarity with and insensitivity to the challenges that confront persons with handicaps. Regarding whether Arline was qualified for the job of elementary school teacher, Brennan said the “district court will need to conduct an individual inquiry and make appropriate findings of fact.” Brennan believed the inquiry was essential in order for the act to protect handicapped individuals from experiencing “deprivations based on prejudices, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns of grantees as avoiding exposing others to significant health and safety risks.” Brennan remanded the case to the district court. In a dissenting opinion that was joined by Justice Scalia, Chief Justice Rehnquist argued that the majority had ignored the fact that Congress had limited the scope of the Rehabilitation Act to “those who actually ‘receive’ federal financial assistance” (quoting United States Department of Transportation v. Paralyzed Veterans of America, 477 U.S. 597, 605, 1986). He accused the Court of “resting its holding on its own sense of fairness and implied support from the Act.” Rehnquist also reasoned that “Congress has . . . left significant leeway to the states.” He concluded that “Arline was discharged because of the contagious nature of tuberculosis, and not because of any diminished physical or mental capabilities resulting from the condition.”

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In Bragdon v. Abbott (118 S. Ct. 2196, 1998), the Supreme Court granted certiorari to address two issues: [whether HIV infection constitutes] “a disability under the ADA when the infection has not yet progressed to the so-called symptomatic phase” [and] “whether the Court of Appeals, in affirming a grant of summary judgment, cited sufficient material in the record to determine, as matter of law, that respondent’s infection with HIV posed no direct threat to the health and safety of her treating dentist.”

Speaking for the majority, Justice Kennedy held that HIV infection was a disability under the ADA and that it constitutes a physical impairment even though it has not yet progressed to the so-called symptomatic phase. Kennedy argued that HIV is “an impairment from the moment of infection.” He also concluded that the impairment “substantially limits a major life activity,” namely reproduction. Justice Kennedy remanded the case to the Court of Appeals

to determine whether the Supreme Court’s analysis of “some of the studies cited by the parties would change its conclusion that petitioner presented neither objective evidence nor a triable issue of fact on the question of risk.” In his dissent, Chief Justice Rehnquist, with whom Justices Scalia and Thomas joined, and with whom Justice O’Connor joined as to Part II, argued that “whether [the] respondent has a disability covered by the ADA is an individualized inquiry.” Rehnquist chided the majority for concluding “as a general matter that reproduction is a ‘major life activity.’” He insisted that the respondent “failed to demonstrate that any of her major life activities were substantially limited by her HIV infection.” On the other hand, Rehnquist felt that the petitioner had “presented more than enough evidence to avoid summary judgment on the direct threat question,” providing sufficient evidence “to create a triable issue on this question.”

BRAGDON V. ABBOTT 118 S. Ct. 2196 (1998) JUSTICE KENNEDY delivered the opinion of the Court. We address in this case the application of the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U.S.C. § 12101 et seq., to persons infected with the human immunodeficiency virus (HIV). We granted certiorari to review, first, whether HIV infection is a disability under the ADA when the infection has not yet progressed to the so-called symptomatic phase; and, second, whether the Court of Appeals, in affirming a grant of summary judgment, cited sufficient material in the record to determine, as a matter of law, that respondent’s infection with HIV posed no direct threat to the health and safety of her treating dentist. I Respondent Sidney Abbott has been infected with HIV since 1986. When the incidents we recite

occurred, her infection had not manifested its most serious symptoms. On September 16, 1994, she went to the office of petitioner Randon Bragdon in Bangor, Maine, for a dental appointment. She disclosed her HIV infection on the patient registration form. Petitioner completed a dental examination, discovered a cavity, and informed respondent of his policy against filling cavities of HIVinfected patients. He offered to perform the work at a hospital with no added fee for his services, though respondent would be responsible for the cost of using the hospital’s facilities. Respondent declined. Respondent sued petitioner under state law and § 302 of the ADA, alleging discrimination on the basis of her disability. The state law claims are not before us. Section 302 of the ADA provides: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public Age and Disability Discrimination

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accommodation by any person who . . . operates a place of public accommodation. § 12182(a).

The term “public accommodation” is defined to include the “professional office of a health care provider.” § 12181(7)(f). A later subsection qualifies the mandate not to discriminate. It provides: Nothing in this subchapter shall require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of such entity where such individual poses a direct threat to the health or safety of others. § 12182(b)(3).

The United States and the Maine Human Rights Commission intervened as plaintiffs. After discovery, the parties filed cross-motions for summary judgment. The District Court ruled in favor of the plaintiffs, holding that respondent’s HIV infection satisfied the ADA’s definition of disability. 912 F. Supp. 580, 585–587 (Me. 1995). The court held further that petitioner raised no genuine issue of material fact as to whether respondent’s HIV infection would have posed a direct threat to the health or safety of others during the course of a dental treatment. Id. . . . The court relied on affidavits submitted by Dr. Donald Wayne Marianos, Director of the Division of Oral Health of the Centers for Disease Control and Prevention (CDC). The Marianos affidavits asserted it is safe for dentists to treat patients infected with HIV in dental offices if the dentist follows the so-called universal precautions described in the Recommended Infection-Control Practices for Dentistry issued by CDC in 1993 (1993 CDC Dentistry Guidelines). 912 F. Supp. 589. The Court of Appeals affirmed. It held respondent’s HIV infection was a disability under the ADA, even though her infection had not yet progressed to the symptomatic stage. 107 F.3d 934, 939–943 (CA1 1997). The Court of Appeals also agreed that treating the respondent in petitioner’s office would not have posed a direct threat to the health and safety of others. Id. . . . Unlike the District Court, however, the Court of Appeals declined to rely on the Marianos affidavits. Id. . . . Instead the court relied on the 1993 CDC Dentistry Guidelines, as well as the Policy on AIDS, HIV Infection and the Practice of Dentistry, promulgated by the American Dental Association in 1991 (1991 American Dental Association Policy on HIV). 107 F.3d 945–946. 798

II We first review the ruling that respondent’s HIV infection constituted a disability under the ADA. The statute defines disability as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such impairment. § 12102(2).

We hold respondent’s HIV infection was a disability under subsection (A) of the definitional section of the statute. In light of this conclusion, we need not consider the applicability of subsections (B) or (C). Our consideration of subsection (A) of the definition proceeds in three steps. First, we consider whether respondent’s HIV infection was a physical impairment. Second, we identify the life activity upon which respondent relies (reproduction and child bearing) and determine whether it constitutes a major life activity under the ADA. Third, tying the two statutory phrases together, we ask whether the impairment substantially limited the major life activity. In construing the statute, we are informed by interpretations of parallel definitions in previous statutes and the views of various administrative agencies which have faced this interpretive question. A The ADA’s definition of disability is drawn almost verbatim from the definition of “handicapped individual” included in the Rehabilitation Act of 1973, and the definition of “handicap” contained in the Fair Housing Amendments Act of 1988. Congress’ repetition of a well-established term carries the implication that Congress intended the term to be construed in accordance with pre-existing regulatory interpretations. . . . In this case, Congress did more than suggest this construction; it adopted a specific statutory provision in the ADA directing as follows: Except as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or the regulations issued by Federal agencies pursuant to such title. 42 U.S.C. § 12201(a).

The directive requires us to construe the ADA to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act.

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1 The first step in the inquiry under subsection (A) requires us to determine whether respondent’s condition constituted a physical impairment. The Department of Health, Education and Welfare (HEW) issued the first regulations interpreting the Rehabilitation Act in 1977. The regulations are of particular significance because, at the time, HEW was the agency responsible for coordinating the implementation and enforcement of § 504. Consolidated Rail Corporation v. Darrone, 465 U.S. 624, 634 (1984) (citing Exec. Order No. 11914, 3 CFR 117 (1976–1980 Comp.)). The HEW regulations, which appear without change in the current regulations issued by the Department of Health and Human Services, define “physical or mental impairment” to mean: (A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine; or (B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. 45 CFR § 84.3(j)(2)(i) (1997).

In issuing these regulations, HEW decided against including a list of disorders constituting physical or mental impairments, out of concern that any specific enumeration might not be comprehensive. 42 Fed. Reg. 22685 (1977), reprinted in 45 CFR pt. 84, App. A, p. 334 (1997). The commentary accompanying the regulations, however, contains a representative list of disorders and conditions constituting physical impairments, including “such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and . . . drug addiction and alcoholism.” Ibid. In 1980, the President transferred responsibility for the implementation and enforcement of § 504 to the Attorney General. . . . The regulations issued by the Justice Department, which remain in force to this day, adopted verbatim the HEW definition of physical impairment quoted above. 28 CFR § 41.31(a)(1) (1997). In addition, the representative list of diseases and conditions originally relegated

to the commentary accompanying the HEW regulations were incorporated into the text of the regulations. Ibid. HIV infection is not included in the list of specific disorders constituting physical impairments, in part because HIV was not identified as the cause of AIDS until 1983. . . . HIV infection does fall well within the general definition set forth by the regulations, however. The disease follows a predictable and, as of today, an unalterable course. Once a person is infected with HIV, the virus invades different cells in the blood and in body tissues. Certain white blood cells, known as helper T-lymphocytes or CD4+ cells, are particularly vulnerable to HIV. The virus attaches to the CD4 receptor site of the target cell and fuses its membrane to the cell’s membrane. HIV is a retrovirus, which means it uses an enzyme to convert its own genetic material into a form indistinguishable from the genetic material of the target cell. The virus’ genetic material migrates to the cell’s nucleus and becomes integrated with the cell’s chromosomes. Once integrated, the virus can use the cell’s own genetic machinery to replicate itself. Additional copies of the virus are released into the body and infect other cells in turn. . . . Although the body does produce antibodies to combat HIV infection, the antibodies are not effective in eliminating the virus. . . . The virus eventually kills the infected host cell. CD4+ cells play a critical role in coordinating the body’s immune response system, and the decline in their number causes corresponding deterioration of the body’s ability to fight infections from many sources. Tracking the infected individual’s CD4+ cell count is one of the most accurate measures of the course of the disease. . . . The initial stage of HIV infection is known as acute or primary HIV infection. In a typical case, this stage lasts three months. The virus concentrates in the blood. The assault on the immune system is immediate. The victim suffers from a sudden and serious decline in the number of white blood cells. There is no latency period. Mononucleosis-like symptoms often emerge between six days and six weeks after infection, at times accompanied by fever, headache, enlargement of the lymph nodes (lymphadenopathy), muscle pain (myalgia), rash, lethargy, gastrointestinal disorders, and neurological disorders. Usually these symptoms abate within 14 to 21 days. HIV antibodies appear in the bloodstream within 3 weeks; circulating HIV can be detected within 10 weeks. . . . Age and Disability Discrimination

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After the symptoms associated with the initial stage subside, the disease enters what is referred to sometimes as its asymptomatic phase. The term is a misnomer, in some respects, for clinical features persist throughout, including lymphadenopathy, dermatological disorders, oral lesions, and bacterial infections. Although it varies with each individual, in most instances this stage lasts from seven to eleven years. The virus now tends to concentrate in the lymph nodes, though low levels of the virus continue to appear in the blood. . . . It was once thought the virus became inactive during this period, but it is now known that the relative lack of symptoms is attributable to the virus’ migration from the circulatory system into the lymph nodes. . . . The migration reduces the viral presence in other parts of the body, with a corresponding diminution in physical manifestations of the disease. The virus, however, thrives in the lymph nodes, which, as a vital point of the body’s immune response system, represents an ideal environment for the infection of other CD4+ cells. . . . A person is regarded as having AIDS when his or her CD4+ count drops below 200 cells/mm3 of blood or when CD4+ cells comprise less than 14 percent of his or her total lymphocytes. . . . During this stage, the clinical conditions most often associated with HIV, such as pneumocystiscarninii pneumonia, Kaposi’s sarcoma, and non-Hodgkins lymphoma, tend to appear. In addition, the general systemic disorders present during all stages of the disease, such as fever, weight loss, fatigue, lesions, nausea, and diarrhea, tend to worsen. In most cases, once the patient’s CD4+ count drops below 10 cells/mm3, death soon follows. In light of the immediacy with which the virus begins to damage the infected person’s white blood cells and the severity of the disease, we hold it is an impairment from the moment of infection. As noted earlier, infection with HIV causes immediate abnormalities in a person’s blood, and the infected person’s white cell count continues to drop throughout the course of the disease, even when the attack is concentrated in the lymph nodes. In light of these facts, HIV infection must be regarded as a physiological disorder with a constant and detrimental effect on the infected person’s hemic and lymphatic systems from the moment of infection. HIV infection satisfies the statutory and regulatory definition of a physical impairment during every stage of the disease. 800

2 The statute is not operative, and the definition not satisfied, unless the impairment affects a major life activity. Respondent’s claim throughout this case has been that the HIV infection placed a substantial limitation on her ability to reproduce and to bear children. App. 14; 912 F. Supp. 586; 107 F.3d 939. Given the pervasive, and invariably fatal, course of the disease, its effect on major life activities of many sorts might have been relevant to our inquiry. Respondent and a number of amici make arguments about HIV’s profound impact on almost every phase of the infected person’s life. . . . In light of these submissions, it may seem legalistic to circumscribe our discussion to the activity of reproduction. We have little doubt that had different parties brought the suit they would have maintained that an HIV infection imposes substantial limitations on other major life activities. From the outset, however, the case has been treated as one in which reproduction was the major life activity limited by the impairment. It is our practice to decide cases on the grounds raised and considered in the Court of Appeals and included in the question on which we granted certiorari. . . . We ask, then, whether reproduction is a major life activity. We have little difficulty concluding that it is. As the Court of Appeals held, “the plain meaning of the word ‘major’ denotes comparative importance” and “suggests that the touchstone for determining an activity’s inclusion under the statutory rubric is its significance.” 107 F.3d 939, 940. Reproduction falls well within the phrase “major life activity.” Reproduction and the sexual dynamics surrounding it are central to the life process itself. While petitioner concedes the importance of reproduction, he claims that Congress intended the ADA only to cover those aspects of a person’s life which have a public, economic, or daily character. Brief for Petitioner 14, 28, 30, 31. . . . The argument founders on the statutory language. Nothing in the definition suggests that activities without a public, economic, or daily dimension may somehow be regarded as so unimportant or insignificant as to fall outside the meaning of the word “major.” The breadth of the term confounds the attempt to limit its construction in this manner. As we have noted, the ADA must be construed to be consistent with regulations issued to implement the Rehabilitation Act. See 42 U.S.C. § 12201(a).

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Rather than enunciating a general principle for determining what is and is not a major life activity, the Rehabilitation Act regulations instead provide a representative list, defining term to include “functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 45 CFR § 84.3(j)(2)(ii) (1997); 28 CFR § 41.31(b)(2) (1997). As the use of the term “such as” confirms, the list is illustrative, not exhaustive. These regulations are contrary to petitioner’s attempt to limit the meaning of the term “major” to public activities. The inclusion of activities such as caring for one’s self and performing manual tasks belies the suggestion that a task must have a public or economic character in order to be a major life activity for purposes of the ADA. On the contrary, the Rehabilitation Act regulations support the inclusion of reproduction as a major life activity, since reproduction could not be regarded as any less important than working and learning. Petitioner advances no credible basis for confining major life activities to those with a public, economic, or daily aspect. In the absence of any reason to reach a contrary conclusion, we agree with the Court of Appeals’ determination that reproduction is a major life activity for the purposes of the ADA. 3 The final element of the disability definition in subsection (A) is whether respondent’s physical impairment was a substantial limit on the major life activity she asserts. The Rehabilitation Act regulations provide no additional guidance. 45 CFR pt. 84, App. A, p. 334 (1997). Our evaluation of the medical evidence leads us to conclude that respondent’s infection substantially limited her ability to reproduce in two independent ways. First, a woman infected with HIV who tries to conceive a child imposes on the man a significant risk of becoming infected. The cumulative results of 13 studies collected in a 1994 textbook on AIDS indicates that 20 percent of male partners of women with HIV became HIV-positive themselves, with a majority of the studies finding a statistically significant risk of infection. Second, an infected woman risks infecting her child during gestation and childbirth, i.e., perinatal transmission. Petitioner concedes that women infected with HIV face about a 25 percent risk of transmitting the virus to their children. . . .

Petitioner points to evidence in the record suggesting that antiretroviral therapy can lower the risk of perinatal transmission to about 8 percent. App. 53. . . . The Solicitor General questions the relevance of the 8 percent figure, pointing to regulatory language requiring the substantiality of a limitation to be assessed without regard to available mitigating measures. Brief for United States as Amicus Curiae 18, n. 10 (citing 28 CFR pt. 36, App. B, p. 611 (1997); 29 CFR pt. 1630, App., p. 351 (1997)). We need not resolve this dispute in order to decide this case, however. It cannot be said as a matter of law that an 8 percent risk of transmitting a dread and fatal disease to one’s child does not represent a substantial limitation on reproduction. The Act addresses substantial limitations on major life activities, not utter inabilities. Conception and childbirth are not impossible for an HIV victim but, without doubt, are dangerous to the public health. This meets the definition of a substantial limitation. The decision to reproduce carries economic and legal consequences as well. There are added costs for antiretroviral therapy, supplemental insurance, and long-term health care for the child who must be examined and, tragic to think, treated for the infection. The laws of some States, moreover, forbid persons infected with HIV from having sex with others, regardless of consent. . . . In the end, the disability definition does not turn on personal choice. When significant limitations result from the impairment, the definition is met even if the difficulties are not insurmountable. For the statistical and other reasons we have cited, of course, the limitations on reproduction may be insurmountable here. Testimony from the respondent that her HIV infection controlled her decision not to have a child is unchallenged. App. 14; 912 F. Supp. 587; 107 F.3d 942. In the context of reviewing summary judgment, we must take it to be true. Fed. Rule Civ. Proc. 56(e). We agree with the District Court and the Court of Appeals that no triable issue of fact impedes a ruling on the question of statutory coverage. Respondent’s HIV infection is a physical impairment which substantially limits a major life activity, as the ADA defines it. In view of our holding, we need not address the second question presented, i.e., whether HIV infection is a per se disability under the ADA. B Our holding is confirmed by a consistent course of agency interpretation before and after enactment of the ADA. Every agency to consider the issue under Age and Disability Discrimination

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the Rehabilitation Act found statutory coverage for persons with asymptomatic HIV. Responsibility for administering the Rehabilitation Act was not delegated to a single agency, but we need not pause to inquire whether this causes us to withhold deference to agency interpretations under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). It is enough to observe that the well-reasoned views of the agencies implementing a statute “constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Skidmore v. Swift & Co., 323 U.S. 134, 139–140, 89 L. Ed. 124, 65 S. Ct. 161 (1944). One comprehensive and significant administrative precedent is a 1988 opinion issued by the Office of Legal Counsel of the Department of Justice (OLC) concluding that the Rehabilitation Act “protects symptomatic and asymptomatic HIV-infected individuals against discrimination in any covered program.” Application of Section 504 of the Rehabilitation Act to HIV-Infected Individuals, 12 Op. Off. Legal Counsel 264–265 (Sept. 27, 1988) (preliminary print) (footnote omitted). Relying on a letter from Surgeon General C. Everett Koop stating that, “from a purely scientific perspective, persons with HIV are clearly impaired” even during the asymptomatic phase, OLC determined asymptomatic HIV was a physical impairment under the Rehabilitation Act because it constituted a “physiological disorder or condition affecting the hemic and lymphatic systems.” Id., at 271 (internal quotation marks omitted). OLC determined further that asymptomatic HIV imposed a substantial limit on the major life activity of reproduction. The Opinion said: Based on the medical knowledge available to us, we believe that it is reasonable to conclude that the life activity of procreation . . . is substantially limited for an asymptomatic HIV-infected individual. In light of the significant risk that the AIDS virus may be transmitted to a baby during pregnancy, HIVinfected individuals cannot, whether they are male or female, engage in the act of procreation with the normal expectation of bringing forth a healthy child. Id., at 273.

In addition, OLC indicated that “the life activity of engaging in sexual relations is threatened and probably substantially limited by the contagiousness of the virus.” Id., at 274. Either consideration was sufficient to render asymptomatic HIV infection a handicap for purposes of the Rehabilitation 802

Act. In the course of its Opinion, OLC considered, and rejected, the contention that the limitation could be discounted as a voluntary response to the infection. The limitation, it reasoned, was the infection’s manifest physical effect. Id., at 274, and n. 13. Without exception, the other agencies to address the problem before enactment of the ADA reached the same result. Federal Contract Compliance Manual App. 6D, 8 FEP Manual 405:352 (Dec. 23, 1988); In re David Ritter, No. 03890089, 1989 WL 609697 (EEOC, Dec. 8, 1989). . . . Agencies have adhered to this conclusion since the enactment of the ADA as well. . . . Every court which addressed the issue before the ADA was enacted in July 1990, moreover, concluded that asymptomatic HIV infection satisfied the Rehabilitation Act’s definition of a handicap. . . . We are aware of no instance prior to the enactment of the ADA in which a court or agency ruled that HIV infection was not a handicap under the Rehabilitation Act. Had Congress done nothing more than copy the Rehabilitation Act definition into the ADA, its action would indicate the new statute should be construed in light of this unwavering line of administrative and judicial interpretation. All indications are that Congress was well aware of the position taken by OLC when enacting the ADA and intended to give that position its active endorsement. H. R. Rep. No. 101-485, pt. 2, p. 52 (1990) (endorsing the analysis and conclusion of the OLC Opinion); id., pt. 3, at 28, n. 18 (same); S. Rep. No. 101–116, pp. 21, 22 (1989) (same). As noted earlier, Congress also incorporated the same definition into the Fair Housing Amendments Act of 1988. See 42 U.S.C. § 3602(h)(1). We find it significant that the implementing regulations issued by the Department of Housing and Urban Development (HUD) construed the definition to include infection with HIV. . . . We find the uniformity of the administrative and judicial precedent construing the definition significant. When administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its administrative and judicial interpretations as well. See, e.g., Lorillard v. Pons, 434 U.S. 575, 580–581, 55 L. Ed. 2d 40, 98 S. Ct. 866 (1978). The uniform body of administrative and judicial precedent confirms the conclusion we reach today as

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the most faithful way to effect the congressional design. C Our conclusion is further reinforced by the administrative guidance issued by the Justice Department to implement the public accommodation provisions of Title III of the ADA. As the agency directed by Congress to issue implementing regulations, see 42 U.S.C. § 12186(b), to render technical assistance explaining the responsibilities of covered individuals and institutions, § 12206(c), and to enforce Title III in court, § 12188(b), the Department’s views are entitled to deference. See Chevron, 467 U.S. at 844. The Justice Department’s interpretation of the definition of disability is consistent with our analysis. The regulations acknowledge that Congress intended the ADA’s definition of disability to be given the same construction as the definition of handicap in the Rehabilitation Act. 28 CFR § 36.103(a) (1997); id., pt. 36, App. B, pp. 608, 609. The regulatory definition developed by HEW to implement the Rehabilitation Act is incorporated verbatim in the ADA regulations § 36.104. The Justice Department went further, however. It added “HIV infection (symptomatic and asymptomatic)” to the list of disorders constituting a physical impairment. § 36.104(1)(iii). The technical assistance the Department has issued pursuant to 42 U.S.C. § 12206 similarly concludes that persons with asymptomatic HIV infection fall within the ADA’s definition of disability. See, e.g., U.S. Dept. of Justice, Civil Rights Division, The Americans with Disabilities Act: Title III Technical Assistance Manual 9 (Nov. 1993); Response to Congressman Sonny Callahan, 5 Nat. Disability L. Rep. (LRP), p. 1167 (Feb. 9, 1994); Response to A. Laurence Field, 5 Nat. Disability L. Rep. (LRP), p. 80 (Sept. 10, 1993). Any other conclusion, the Department reasoned, would contradict Congress’ affirmative ratification of the administrative interpretations given previous versions of the same definition. 28 CFR pt. 36, App. B, p. 609, 610 (1997) (citing the OLC Opinion and HUD regulations); 56 Fed. Reg. 7455, 7456 (1991) (same) (notice of proposed rulemaking). We also draw guidance from the views of the agencies authorized to administer other sections of the ADA. . . . Most categorical of all is EEOC’s conclusion that “an individual who has HIV infection (including asymptomatic HIV infection) is an individual with a disability.” EEOC Interpretive Manual § 902.4(c)(1), p. 902–21; accord, id., § 902.2(d),

p. 902–14, n. 18. In the EEOC’s view, “impairments . . . such as HIV infection, are inherently substantially limiting.” 29 CFR pt. 1630, App., p. 350 (1997); EEOC Technical Assistance Manual II-4; EEOC Interpretive Manual § 902.4(c)(1), p. 902–21. The regulatory authorities we cite are consistent with our holding that HIV infection, even in the socalled asymptomatic phase, is an impairment which substantially limits the major life activity of reproduction. III The petition for certiorari presented three other questions for review. The questions stated: 3. When deciding under title III of the ADA whether a private health care provider must perform invasive procedures on an infectious patient in his office, should courts defer to the health care provider’s professional judgment, as long as it is reasonable in light of then-current medical knowledge? 4. What is the proper standard of judicial review under title III of the ADA of a private health care provider’s judgment that the performance of certain invasive procedures in his office would pose a direct threat to the health or safety of others? 5. Did petitioner, Randon Bragdon, D. M. D., raise a genuine issue of fact for trial as to whether he was warranted in his judgment that the performance of certain invasive procedures on a patient in his office would have posed a direct threat to the health or safety of others? Pet. for Cert. I.

Of these, we granted certiorari only on question three. The question is phrased in an awkward way, for it conflates two separate inquiries. In asking whether it is appropriate to defer to petitioner’s judgment, it assumes that petitioner’s assessment of the objective facts was reasonable. The central premise of the question and the assumption on which it is based merit separate consideration. Again, we begin with the statute. Notwithstanding the protection given respondent by the ADA’s definition of disability, petitioner could have refused to treat her if her infectious condition “posed a direct threat to the health or safety of others.” 42 U.S.C. § 12182(b)(3). The ADA defines a direct threat to be “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services.” Ibid. Parallel provisions appear in the employment provisions of Title I. §§ 12111(3), 12113(b). Age and Disability Discrimination

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The ADA’s direct threat provision stems from the recognition in School Board of Nassau County v. Arline, 480 U.S. 273, 287, 94 L. Ed. 2d 307, 107 S. Ct. 1123 (1987), of the importance of prohibiting discrimination against individuals with disabilities while protecting others from significant health and safety risks, resulting, for instance, from a contagious disease. In Arline, the Court reconciled these objectives by construing the Rehabilitation Act not to require the hiring of a person who posed “a significant risk of communicating an infectious disease to others.” Id., at 287, n. 16. Congress amended the Rehabilitation Act and the Fair Housing Act to incorporate the language. See 29 U.S.C. § 706(8)(d) (excluding individuals who “would constitute a direct threat to the health or safety of other individuals”); 42 U.S.C. § 3604(f)(9) (same). It later relied on the same language in enacting the ADA. See 28 CFR pt. 36, App. B, p. 626 (1997) (ADA’s direct threat provision codifies Arline). Because few, if any, activities in life are risk free, Arline and the ADA do not ask whether a risk exists, but whether it is significant. Arline, supra, at 287, ald n. 16; 42 U.S.C. § 12182(b)(3). The existence, or nonexistence, of a significant risk must be determined from the standpoint of the person who refuses the treatment or accommodation, and the risk assessment must be based on medical or other objective evidence. Arline, supra, at 288; 28 CFR § 36.208(c) (1997); id., pt. 36, App. B, p. 626. As a health care professional, petitioner had the duty to assess the risk of infection based on the objective, scientific information available to him and others in his profession. His belief that a significant risk existed, even if maintained in good faith, would not relieve him from liability. To use the words of the question presented, petitioner receives no special deference simply because he is a health care professional. It is true that Arline reserved “the question whether courts should also defer to the reasonable medical judgments of private physicians on which an employer has relied.” 480 U.S. at 288, n. 18. At most, this statement reserved the possibility that employers could consult with individual physicians as objective third-party experts. It did not suggest that an individual physician’s state of mind could excuse discrimination without regard to the objective reasonableness of his actions. Our conclusion that courts should assess the objective reasonableness of the views of health care professionals without deferring to their individual 804

judgments does not answer the implicit assumption in the question presented, whether petitioner’s actions were reasonable in light of the available medical evidence. In assessing the reasonableness of petitioner’s actions, the views of public health authorities, such as the U.S. Public Health Service, CDC, and the National Institutes of Health, are of special weight and authority. Arline, supra, at 288; 28 CFR pt. 36, App. B, p. 626 (1997). The views of these organizations are not conclusive, however. A health care professional who disagrees with the prevailing medical consensus may refute it by citing a credible scientific basis for deviating from the accepted norm. . . . We have reviewed so much of the record as necessary to illustrate the application of the rule to the facts of this case. For the most part, the Court of Appeals followed the proper standard in evaluating the petitioner’s position and conducted a thorough review of the evidence. Its rejection of the District Court’s reliance on the Marianos affidavits was a correct application of the principle that petitioner’s actions must be evaluated in light of the available, objective evidence. The record did not show that CDC had published the conclusion set out in the affidavits at the time petitioner refused to treat respondent. 107 F.3d at 946, n. 7. A further illustration of a correct application of the objective standard is the Court of Appeals’ refusal to give weight to the petitioner’s offer to treat respondent in a hospital. Id., at 943, n. 4. Petitioner testified that he believed hospitals had safety measures, such as air filtration, ultraviolet lights, and respirators, which would reduce the risk of HIV transmission. App. 151. Petitioner made no showing, however, that any area hospital had these safeguards or even that he had hospital privileges. Id., at 31. His expert also admitted the lack of any scientific basis for the conclusion that these measures would lower the risk of transmission. Id., at 209. Petitioner failed to present any objective, medical evidence showing that treating respondent in a hospital would be safer or more efficient in preventing HIV transmission than treatment in a well-equipped dental office. We are concerned, however, that the Court of Appeals might have placed mistaken reliance upon two other sources. In ruling no triable issue of fact existed on this point, the Court of Appeals relied on the 1993 CDC Dentistry Guidelines and the 1991 American Dental Association Policy on HIV. 107 F.3d at 945–946. This evidence is not definitive. As

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noted earlier, the CDC Guidelines recommended certain universal precautions which, in CDC’s view, “should reduce the risk of disease transmission in the dental environment.” U.S. Dept. of Health and Human Services, Public Health Service, CDC, Recommended Infection Control Practices for Dentistry, 41 Morbidity & Mortality Weekly Rep. No. RR-18, p. 1 (May 28, 1993). The Court of Appeals determined that, “while the guidelines do not state explicitly that no further risk-reduction measures are desirable or that routine dental care for HIV-positive individuals is safe, those two conclusions seem to be implicit in the guidelines’ detailed delineation of procedures for office treatment of HIV-positive patients.” 107 F.3d at 946. In our view, the Guidelines do not necessarily contain implicit assumptions conclusive of the point to be decided. The Guidelines set out CDC’s recommendation that the universal precautions are the best way to combat the risk of HIV transmission. They do not assess the level of risk. Nor can we be certain, on this record, whether the 1991 American Dental Association Policy on HIV carries the weight the Court of Appeals attributed to it. The Policy does provide some evidence of the medical community’s objective assessment of the risks posed by treating people infected with HIV in dental offices. . . . We note, however, that the Association is a professional organization, which, although a respected source of information on the dental profession, is not a public health authority. It is not clear the extent to which the Policy was based on the Association’s assessment of dentists’ ethical and professional duties in addition to its scientific assessment of the risk to which the ADA refers. Efforts to clarify dentists’ ethical obligations and to encourage dentists to treat patients with HIV infection with compassion may be commendable, but the question under the statute is one of statistical likelihood, not professional responsibility. Without more information on the manner in which the American Dental Association formulated this Policy, we are unable to determine the Policy’s value in evaluating whether petitioner’s assessment of the risks was reasonable as a matter of law. The court considered materials submitted by both parties on the cross motions for summary judgment. The petitioner was required to establish that there existed a genuine issue of material fact. Evidence which was merely colorable or not significantly probative would not have been sufficient. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249–250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). We acknowledge the presence of other evidence in the record before the Court of Appeals which, subject to further arguments and examination, might support affirmance of the trial court’s ruling. For instance, the record contains substantial testimony from numerous health experts indicating that it is safe to treat patients infected with HIV in dental offices. App. 66–68, 88–90, 264–266, 268. We are unable to determine the import of this evidence, however. The record does not disclose whether the expert testimony submitted by respondent turned on evidence available in September 1994. See id., at 69–70 (expert testimony relied in part on materials published after September 1994). There are reasons to doubt whether petitioner advanced evidence sufficient to raise a triable issue of fact on the significance of the risk. Petitioner relied on two principal points: First, he asserted that the use of high-speed drills and surface cooling with water created a risk of airborne HIV transmission. The study on which petitioner relied was inconclusive, however, determining only that “further work is required to determine whether such a risk exists.” Johnson & Robinson, Human Immunodeficiency Virus-1 (HIV-1) in the Vapors of Surgical Power Instruments, 33 J. of Medical Virology 47, 47 (1991). Petitioner’s expert witness conceded, moreover, that no evidence suggested the spray could transmit HIV. His opinion on airborne risk was based on the absence of contrary evidence, not on positive data. App. 166. Scientific evidence and expert testimony must have a traceable, analytical basis in objective fact before it may be considered on summary judgment. See General Electric Co. v. Joiner, 522 U.S. (1997) (slip op., at 7, 9). Second, petitioner argues that, as of September 1994, CDC had identified seven dental workers with possible occupational transmission of HIV. . . . These dental workers were exposed to HIV in the course of their employment, but CDC could not determine whether HIV infection had resulted. Id., at 15, n. 3. It is now known that CDC could not ascertain whether the seven dental workers contracted the disease because they did not present themselves for HIV testing at an appropriate time after their initial exposure. Gooch et al., Percutaneous Exposures to HIV-Infected Blood Among Dental Workers Enrolled in the CDC Needlestick Study, 126 J. American Dental Assn. 1237, 1239 (1995). It is not Age and Disability Discrimination

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clear on this record, however, whether this information was available to petitioner in September 1994. If not, the seven cases might have provided some, albeit not necessarily sufficient, support for petitioner’s position. Standing alone, we doubt it would meet the objective, scientific basis for finding a significant risk to the petitioner. Our evaluation of the evidence is constrained by the fact that on these and other points we have not had briefs and arguments directed to the entire record. In accepting the case for review, we declined to grant certiorari on question five, which asked whether petitioner raised a genuine issue of fact for trial. Pet. for Cert. i. As a result, the briefs and arguments presented to us did not concentrate on the question of sufficiency in light all of the submissions in the summary judgment proceeding. “When attention has been focused on other issues, or when the court from which a case comes has expressed no views on a controlling question, it may be appropriate to remand the case rather than deal with the merits of that question in this Court.” Dandridge v. Williams, 397 U.S. 471, 476, n. 6, 25 L. Ed. 2d 491, 90 S. Ct. 1153 (1970). This consideration carries particular force where, as here, full briefing directed

at the issue would help place a complex factual record in proper perspective. Resolution of the issue will be of importance to health care workers not just for the result but also for the precision and comprehensiveness of the reasons given for the decision. We conclude the proper course is to give the Court of Appeals the opportunity to determine whether our analysis of some of the studies cited by the parties would change its conclusion that petitioner presented neither objective evidence nor a triable issue of fact on the question of risk. In remanding the case, we do not foreclose the possibility that the Court of Appeals may reach the same conclusion it did earlier. A remand will permit a full exploration of the issue through the adversary process. The determination of the Court of Appeals that respondent’s HIV infection was a disability under the ADA is affirmed. The judgment is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. [The concurring opinion of JUSTICE STEVENS, joined by JUSTICE BREYER, is not reprinted here.]

SELECTED REFERENCES “A Rose by Any Other Name No Longer Smells as Sweet: Disparate Treatment Discrimination and the Age Proxy Doctrine after Hazen Paper Co. v. Biggins,” 81 Cornell Law Review 530 (1996). Harris, Peter H. “Note, Age Discrimination, Wages, and Economics: What Judicial Standard?” 13 Harv. J.L. and Public Policy 715 (1990). Karlan, Pamela S., and George Rutherglen. “Disabilities, Discrimination, and Reasonable Accommodations,” 46 Duke Law Journal 1 (October 1996). Liang, Bryan A. “Who’s Disabled? Asymptomatic HIV, Dental Treatment, and the Americans with Disabilities

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Act.” Preview of U.S. Supreme Court Cases. 360–365 American Bar Association (1998). Saunders, Jonas. “Age Discrimination: Disparate Impact under the ADEA after Hazen Paper Co. v. Biggins: Arguments in Favor,” 73 University of Detroit Mercy Law Review 591 (1996). Tatum, Erika Perrone. “The Impact of the Americans with Disabilities Act on AIDS Discrimination in the Workplace,” 19 American Journal of Trial Advocacy 623 (1996).

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APPENDIX I

CONSTITUTION OF THE UNITED STATES

W

E THE PEOPLE OF THE UNITED STATES, IN ORDER

to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

ARTICLE I Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Section 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature. No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen. Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three. When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. Section 3. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and

807 Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies. No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen. The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States. The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. Section 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day. Section 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide. Each House may determine the Rules of its Proceedings, punish its Members for disorderly 808

Behaviour, and, with the Concurrence of two thirds, expel a Member. Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. Section 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place. No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. Section 7. All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law. Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. Section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow Money on the credit of the United States; To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States; To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; To establish Post Offices and post Roads; To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; To constitute Tribunals inferior to the supreme Court; To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;—And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. Section 9. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; Constitution of the United States

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and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State. Section 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws; and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

ARTICLE II Section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the 810

Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for

Constitution of the United States

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. Section 3. He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. Section 4. The President, Vice President and all civil Officers of the United States, shall be removed

from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

ARTICLE III Section 1. The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office. Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States, between a State and Citizens of another State, between Citizens of different States, between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. Section 3. Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. Constitution of the United States

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ARTICLE IV Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States. A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime. No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. Section 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

ARTICLE V The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and 812

Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

ARTICLE VI All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

ARTICLE VII The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same. ARTICLES IN ADDITION TO, AND AMENDMENT OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA, PROPOSED BY CONGRESS, AND RATIFIED BY THE LEGISLATURES OF THE SEVERAL STATES, PURSUANT TO THE FIFTH ARTICLE OF THE ORIGINAL CONSTITUTION.

AMENDMENT I [1791] Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the

Constitution of the United States

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

favor, and to have the Assistance of Counsel for his defence.

AMENDMENT VII [1791] AMENDMENT II [1791] A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

AMENDMENT III [1791] No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

AMENDMENT IV [1791] The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

AMENDMENT V [1791] No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

AMENDMENT VI [1791] In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

AMENDMENT VIII [1791] Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

AMENDMENT IX [1791] The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

AMENDMENT X [1791] The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

AMENDMENT XI [1798] 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.

AMENDMENT XII [1804] The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as VicePresident, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United Constitution of the United States

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States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;— The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.—The person having the greatest number of votes as VicePresident, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

AMENDMENT XIII [1865] Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT XIV [1868] Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State 814

wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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. Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twentyone years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

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AMENDMENT XV [1870] Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT XVI [1913] The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

AMENDMENT XVII [1913] The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

AMENDMENT XVIII [1919] Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years

from the date of the submission hereof to the States by the Congress.

AMENDMENT XIX [1920] The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT XX [1933] Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin. Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day. Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified. Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them. Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article. Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution of the United States

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Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

AMENDMENT XXI [1933] Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed. Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

AMENDMENT XXII [1951] Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term. Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

AMENDMENT XXIII [1961] Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District 816

would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment. Section 2. The Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT XXIV [1964] Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. Section 2. The Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT XXV [1967] Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President. Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President. Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Constitution of the United States

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his

office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

AMENDMENT XXVI [1971] Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. Section 2. The Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT XXVII [1992] No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

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APPENDIX

II

GLOSSARY OF TERMS AND KEY CONCEPTS

Prepared by Heidi Lynn Lawson, Ph.D. candidate in the Department of Political Science at the University of Illinois at Chicago. Abstention. The choice of a judge not to participate in the judgment of a case. This is commonly done because the case presents a conflict of interest for a particular judge. Acquittal. Receipt of the verdict of “not guilty” in a criminal case, absolving the defendant of responsibility for the crime. Adjudication. The legal process by which a judge or jury hears a case and renders a decision. Advisory opinion. A legally nonbinding opinion rendered by a court in a hypothetical case that is not currently before the court. The federal courts do not issue advisory opinions. Affirm. To declare the validity of the decision that was reached by a lower court in a case heard on appeal. Affirmative action. Programs that are instituted by public or private entities and that focus on remedying past discrimination against minority groups in hiring and/or admittance policies. All deliberate speed. The rate at which the Supreme Court ordered the admission of the parties (black students) to public schools on a racially nondiscriminatory basis in Brown v. Board of Education of Topeka, Kansas II (1955). Amendment. A change made to a law or the Constitution. Constitutional amendments require a two-stage process of proposal at the national level

and ratification at the state level. As described in Article V of the Constitution, a proposal can be made by two-thirds of Congress (both houses) or by a national convention called by Congress at the request of two-thirds of the states. Ratification can occur by approval of either three-fourths of state legislatures or by ratifying conventions that take place in three-fourths of the states. There are twenty-seven amendments to the U.S. Constitution. Amicus curiae. “Friend of the court.” A person or group that is not party to the case but issues an advisory brief to the court because of a perceived stake in the outcome. Ante. “Before.” Appeal. Application to a superior court to review the outcome of a case that was decided in a lower court. Appellant. The party in a case initiating the appeal to a superior court for review of the case. Generally, the appellant is the party that lost in the lower court. Appellate jurisdiction. The power of a court to hear a case to review and revise a decision that was made by a lower court. Contrast with original jurisdiction. Appellee. The party responding to an appeal of a case to a higher court (i.e., the party whose interest is counter to that of the appellant); also called the respondent. Associate justice. A member of the Supreme Court who is not a Chief Justice. There have been eight associate justices on the Supreme Court since 1869. Congress has the power to set the number of

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associate justices; the number is not mandated by the Constitution. Bail. A deposit of money made to the court on behalf of a suspect in a case who is then allowed to leave jail before a verdict is reached in the criminal trial. The Eighth Amendment prohibits the government from requiring excessive bail. Balancing test. A test that is used by a court to weigh the relative merits and importance of two or more competing legal or constitutional interests. Bill of attainder. A legislative act that inflicts punishment upon an individual or group without judicial proceedings. Capital punishment. The most severe punishment (i.e., the death penalty). Numerous challenges to capital punishment have been brought to the Supreme Court, but there has never been a case in which a majority of the Court ruled that the death penalty violates the Eighth Amendment protection against cruel and unusual punishment per se. Case. A general term for an action, cause, suit, or controversy, at law or equity; a question contested before a court. Case law. Law whose source is the accumulation of doctrine resulting from judicial decisions, as opposed to statutory law which results from the legislative process. Case or controversy. A requirement set by Article III of the Constitution that limits the power of the judiciary to issuing decisions in cases that are brought by two or more parties with opposing interests. Chief Justice. The lead justice of the Supreme Court. He presides over the Court during oral arguments and conferences. He votes first in cases and assigns the task of writing the Opinion of the Court whenever he is in the majority. At the time of the Roberts Court, there have been seventeen chief justices, all of whom have been white men. Circuit courts. Federal appellate courts having appellate jurisdiction over a particular geographical region of the United States. There are eleven circuits covering the various states, plus one covering unique federal matters in the District of Columbia. Civil law. The body of law dealing with the private rights of individuals, as distinguished from criminal law. Civil War amendments. The Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution. All

three were passed in the wake of the Civil War in an attempt to help integrate former slaves into American society. The Thirteenth Amendment prohibits slavery and involuntary servitude. The Fourteenth Amendment defines citizenship and grants citizens the privileges and immunities of citizenship, equal protection under the law, and the due process of the laws. The Fifteenth Amendment makes it unconstitutional to prohibit a person from voting based on race, color, or previous condition of servitude. Commerce clause. Article I, Section 8, Clause 2 of the U.S. Constitution gives Congress the power “to regulate commerce with foreign nations, among the several states, and with the Indian tribes.” Over the years, the Supreme Court has interpreted this power very broadly, upholding many laws that may not seem related to the regulation of interstate commerce at first glance, including the Civil Rights Act of 1964. Common law. Law that derives its authority from long usage or custom, or from court decrees, unlike statutory law, which is written and enacted by a legislative body. Compelling state interest. A term that is used by courts and that allows the government to deprive individuals of a fundamental right or permit discrimination against certain classes of people if the government can prove that a law or practice serves an extremely important or “compelling” state interest. Concurring opinion. An opinion that is issued by a member of the court and that agrees with the final judgment of the majority opinion, though it may reflect a different rationale for that decision. Contract. A legal agreement between two or more parties that requires certain action or nonaction from one or more of the parties. Contract law. Law dealing with the enforcement of contracts. Courts of Appeal. See Circuit courts. Criminal law. The body of law aimed at the protection of society and the state; distinguished from civil law. Custodial interrogation. Police questioning of a person who is suspected of committing a crime. The Supreme Court has ruled that anyone who reasonably believes that he or she is not free to leave is in police custody. The Court’s decision in Miranda v. Arizona (1966) requires that the police give a certain Glossary of Terms and Key Concepts

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

set of warnings, known as Miranda warnings, to suspects before they can be legally interrogated. Declaratory judgment. A court ruling declaring a legal right or interpretation without awarding any relief or penalty to either litigant. De facto. “In fact.” Denotes a situation as it occurs in reality regardless of any legislation, as opposed to de jure, which indicates a rule required by law. Defendant. In civil cases, the party against whom judicial relief is sought; in criminal cases, the party accused of criminal action. De jure. “By law.” Denotes a situation that occurs as a result of specific legislation or policy intending that result; opposed to de facto, which indicates a situation that occurs in fact regardless of any legislation or policy to that effect. De novo. “From the beginning.” Dicta. Writings issued by the court in excess of the official court ruling in a case. They are not binding and do not carry the weight of precedent, though the Court may quote from them in future cases where they fit a particular ruling well. Discretionary jurisdiction. Jurisdiction that allows a court the power to decide whether or not to hear a particular case. The Supreme Court has discretionary jurisdiction in all cases that come to it through appellate jurisdiction. Dismissal. A court order that disposes of a case without a hearing or ruling. Dissenting opinion. An opinion filed by a justice disagreeing with the ruling and/or reasoning of the opinion of the Court in a case. District courts. Federal courts that are empowered with original jurisdiction (i.e., trial courts). Each state has one or more districts. Diversity of citizenship. A situation in which a case involves parties from different states (e.g., Dred Scott v. Sandford, 1857). Diversity of citizenship is one circumstance that qualifies a case to be heard in federal courts. Docket. The list of cases scheduled to be heard and decided by a court. Double jeopardy. The possibility of being tried multiple times for the same offense. The Fifth Amendment prohibits the government from subjecting anyone to double jeopardy. This provision was incorporated to the states in Benton v. Maryland (1969). 820

Dual citizenship. A concept established by the Fourteenth Amendment’s declaration that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” All United States citizens residing in the country thus hold concurrent citizenship in their state. (See The Slaughterhouse Cases, 1873). Due process. A guarantee made by the Fifth and Fourteenth Amendments to a fair and regular judicial procedure. No person may be denied life, liberty, or property without the government meeting legislated judicial procedures. See also procedural due process and substantive due process. En banc. “On bench.” The full panel of appellate court judges, as opposed to the traditional three-judge panel. Some cases, particularly complex or exceptionally important cases, are heard at the appellate level en banc. Enfranchisement. To set free (from slavery), grant citizenship to, and confer the rights of citizenship upon someone. Typically denotes the granting of the right to vote. Equal Rights Amendment. The Equal Rights Amendment (ERA) was intended to explicitly guarantee equal rights to men and women. Section I read, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” It was first introduced to Congress in 1923 by the National Woman’s Party but failed to pass Congress every year through 1970. The ERA finally passed the House in 1971 and the Senate in 1972 and was submitted to the states for ratification. The amendment had a seven-year deadline for ratification by three-fourths of the states, but when that time expired, only thirty-five of the necessary thirtyeight states had ratified it, so the amendment expired. In 1982, supporters again began submitting the ERA to Congress every term, but so far without success. Establishment of religion. A prohibition made by the First Amendment and stating that the government may not make any acts “respecting” an establishment of religion. This clause was incorporated to the states in Everson v. Board of Education (1947). Ex parte. “On one side only.” Indicates that arguments were made before the court for only one party in the case. Ex post facto. “After the fact.” Ex post facto law. A law that criminalizes conduct which occurred before the passage of the law. The U.S. Constitution prohibits such laws.

Glossary of Terms and Key Concepts

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Exclusionary rule. A rule from English common law prohibiting the introduction of any evidence to trial that was obtained in an illegal manner (e.g., in a manner that was contrary to the requirements of the Fourth Amendment search and seizure clause). Though not explicitly listed in the Constitution, the exclusionary rule was incorporated to the states in Mapp v. Ohio (1961). Fair Housing Act of 1968. More formally known as the Civil Rights Act of 1968, this law expanded on previous civil rights acts to prevent discrimination in the renting, sale, and financing of housing sales on the basis of race, religion, or national origin. It was expanded to include prohibitions against discrimination on the basis of gender in 1972 and physical handicap and young age in 1988. Federal question. A question of law that involves an issue of federal statute, the U.S. Constitution, or international treaties. Cases heard in federal court must meet this criterion. Federalism. A system of government in which power is divided between the central, federal level and the state level. The U.S. Constitution outlines the powers of the federal government and reserves all other powers that are not listed to the states and to the people in the Ninth and Tenth Amendments. See also reserved powers clause. Felony. A “serious” crime. A felony may be either violent or nonviolent, but it is judged to be sufficiently severe to merit a higher level of punishment than less serious crimes, including longer terms of imprisonment, or in extreme cases, capital punishment. Contrast with misdemeanor. Free exercise of religion. A protection granted by the First Amendment. The free exercise clause was incorporated to the states in Cantwell v. Connecticut (1940). Free speech. A right that is protected by the First Amendment and that is often considered the most fundamental individual right protected by the Constitution. The Supreme Court has never considered the right to free speech to be absolute, however, and has used many different tests to balance this right against the government’s responsibility to protect itself and the populace. The free speech clause was incorporated to the states in Gitlow v. New York (1925). Freedom of press. A right that is guaranteed by the First Amendment. Though it is commonly mistaken as a corollary to the right to free speech, the freedom of the press has its own independent history dating

back to English common law This clause was incorporated to the states in Gitlow v. New York (1925). Full faith and credit clause. Article IV, Section 1 of the Constitution states, “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” This clause requires every state to honor the laws of other states, such as accepting the validity of driver’s licenses and marriage licenses from other states. One exception at the time of this publication is the Defense of Marriage Act, which exempts states from being required to honor the marriage licenses of same-sex couples that were obtained in other states. The Supreme Court has not yet (at the time of publication) heard a case challenging the Defense of Marriage Act. Gender equity amendments. See Title IX. Gerrymandering. The act of redrawing lines for electoral districts, typically with the intention of giving an advantage to a particular political group or party. The Supreme Court has heard several cases that involved gerrymandering which was done on the basis of racial considerations, mainly to limit the power of racial minorities in state and local elected bodies. The Court has struck down such practices as unconstitutional. (See Gomillion v. Lightfoot, 1960.) However, the Court initially refused to answer questions of gerrymandering because it was understood to be a political question that fell out of the Court’s jurisdiction to solve. (See Colegrove v. Green, 1946, and Baker v. Carr, 1962.) See also political question doctrine. Grand jury. A jury for criminal cases that is made up of twelve to twenty three persons for the purpose of hearing and deciding upon indictments. Grandfather clause. A rule emerging after the passage of the Civil War Amendments, especially the Fifteenth Amendment, in an effort to exclude blacks (and in Texas, Latinos), but not whites, from the right to vote without violating the provisions of the Fifteenth Amendment. Grandfather clauses held that a person could be allowed to vote even if he or she did not meet newly established voting requirements (e.g., passing a literacy test or citizenship test) if the person could prove that his or her grandfather had been allowed to vote. Blacks, most of whose grandfathers had been slaves and thus had not been allowed to vote, could not meet this exception. Habeas corpus. “You have the body.” A writ protected by the U.S. Constitution that requires a law Glossary of Terms and Key Concepts

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officer who is detaining a person as a suspected criminal to bring him or her to trial by the judiciary. Its purpose is to protect citizens against unlawful imprisonment. It is the only civil liberty listed in the original Constitution (prior to the adoption of the Bill of Rights). Hot pursuit. A term referring to an active police chase of a suspected criminal who is fleeing. The Court has ruled that police officers may engage in a warrantless search without violating the Fourth Amendment if the search is part of apprehending a suspect during hot pursuit. Impeachment. The trial of elected or appointed governmental officials, including judges and justices, for suspected misconduct while in office. The power of impeachment is a Congressional power check on the Supreme Court. A majority of the House of Representatives must vote to initiate the impeachment, and two-thirds of the Senate must vote to convict in order to achieve the removal of a judge or justice. It has been used only once against a Supreme Court justice, Samuel Chase in 1805, but the impeachment was motivated by political reasons rather than by true misconduct, so Justice Chase was not convicted or removed from the bench. Incorporation. A doctrine that makes the provisions of the Bill of Rights, which begins “Congress shall make no law. . .,” applicable to and binding on state and local government bodies as well. It is based on the due process clause of the Fourteenth Amendment, which begins, “No State shall. . . .” See also specific sub-doctrines: nonincorporation, selective incorporation, and total incorporation. Indictment. A formal charge of criminal offences that is based on evidence presented to a grand jury. In forma pauperis. “In the manner of a pauper.” A form of petitioning the court for a writ that allows an indigent person to waive the normal accompanying fees and costs of filing. Infra. “Below.” Injunction. An order from the court prohibiting a party from performing a certain action. In re. “In the affair of” or “concerning.” Interposition. A doctrine held by some political leaders which claims that if federal laws and courts infringe upon the rights of the citizens of a state, state leaders have the right and obligation to interpose 822

themselves between the federal government and citizens. The Supreme Court has rejected this doctrine on the basis of the Supremacy Clause, Article VI, clause 2 (see Cooper v. Aaron, 1958). Interstate commerce. Commerce that occurs between states, or any activity that can be understood to affect commerce between states. The Supreme Court has interpreted Congress’s power to regulate interstate commerce very broadly. For example, it ruled on cases involving regulation of wheat production on individual (intrastate) farms (Wickard v. Filburn, 1942), and in the Civil Rights Act of 1964, a private proprietor’s right to refuse service to customers on the basis of their race, color, sex, or national origin at a restaurant which served an almost exclusively local clientele (Heart of Atlanta Motel v. United States, 1964). Intestate. A death that occurs without the presence of a legal will. Involuntary servitude. Labor that is performed against the person’s will for the purpose of benefiting another. The Thirteenth Amendment prohibits involuntary servitude, except as punishment for crime. Jim Crow laws. Laws that proliferated across the South and areas of the North following the Civil War and that mandated “separate but equal” facilities for whites and nonwhites. The term “Jim Crow” comes from a Thomas D. Rice song from 1832, but the origin of its application to racially discriminatory laws and practices is unknown. The term was in use in this sense by writers from the 1890s. Judicial review. The power of a court to review acts of the legislative and executive branches and declare them to be either constitutional or unconstitutional. Jurisdiction. The power of a court to hear a particular case under particular circumstances. See also original jurisdiction, appellate jurisdiction, and discretionary jurisdiction. Jurisprudence. The philosophy of law. Jury. A body of persons who witness a trial while sworn to give their judgment as to the legal liability of the parties involved (in a civil case) or the guilt or innocence of the defendant (in a criminal case). Justiciable controversy. A controversy which meets the requirements that are necessary for a court to hear the case. It must, for example, include parties with opposing interests that are contesting an actual, not hypothetical, matter.

Glossary of Terms and Key Concepts

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Legal brief. A brief written by lawyers and submitted to a court, presenting the arguments for their client’s side of the case. Legislative intent. A doctrine that some judges and justices follow which makes consideration of the intentions of the legislators who created a law the most important factor in judging the constitutionality of that law. Some controversy exists over the extent to which it is possible to ascertain the intentions of the legislators, including questions of which legislators’ intentions matter (the drafter’s? the lawmakers who voted to pass the law?). Legislative reasonableness. A test that is used to determine whether a law is constitutional or not. If the law is not infringing on a fundamental right, then the government must prove only that the law serves some legitimate governmental interest and that its language is reasonably related to the achievement of that interest. Libel. A false, maliciously intentioned claim about a person or group that is in the form of print or an image. Libel is not protected by the First Amendment, and the courts have ruled that celebrities and other “public figures” must meet a higher burden of proof than ordinary citizens in order for libel to be proved against them. Contrast with slander. Literacy test. A test that was given to prospective voters in some locations following passage of the Fifteenth Amendment with the goal of limiting the people who were allowed to vote. Literacy tests were often specifically intended to prevent black citizens from voting. Such tests and all other means of qualification for voting were outlawed by the Voting Rights Act of 1965. Litigant. A party involved in a case. Mandamus. A writ that is issued by a court commanding a lower court or other party to take a particular action; a court order. Memorandum opinion. An opinion issued by a court that does not carry weight as precedent. It often takes the form of a decision made without written opinion or justification. Minority opinion. An opinion that obtains less than majority agreement. It can be either a concurring or a dissenting opinion. Miranda warning. A warning given to criminal suspects at the time that they enter into police custody. It was created by the Supreme Court in

Miranda v. Arizona (1966). Under this rule, suspects must be told by police that they have a right to remain silent, that anything they say may be used against them in court, that they have a right to have an attorney present during questioning, and that they have a right to have an attorney appointed to them for free if they cannot afford to hire their own. Misdemeanor. A crime that is deemed to be less serious than a felony and that is often punished by a fine, probation, or a short jail sentence, up to a maximum of twelve months. Contrast with felony. Moot. A quality of a case if the legal question that is presented is no longer amenable to remedy by court action. As a general rule, the Supreme Court does not hear moot cases, although abortion cases are a notable exception due to the amount of time that is necessary for them to rise to the highest court. Motion. An application that is made to a judge or court to obtain a rule or order. Nationalization. See incorporation. Nonincorporation. A doctrine associated with Barron v. Baltimore (1833), in which Chief Justice Marshall, speaking for the Court, held that the guarantees in the Bill of Rights were intended to apply only to the federal government and were not applicable to the states. This doctrine was voided by the passage of the Fourteenth Amendment and subsequent Court rulings that incorporated select provisions of the Bill of Rights to the states via that amendment’s due process clause. See also selective incorporation and total incorporation. Obscenity. The Court has developed several tests to distinguish obscenity, which is not constitutionally protected, from other speech, but has never been able to specifically define it. Justice Potter Stewart famously stated that although he could not produce a strict definition of obscenity, “I know it when I see it.” Opinion of the Court. The official ruling announcing the decision and reasoning on which a majority (or plurality) of the Court agrees. Original intent. A theory of interpretation of the Constitution and statutes that gives priority to what the interpreter understands to be the original intent that the framers had for the provision. Also known as originalism. Original jurisdiction. The power of a court to hear a case in the first instance. Contrast with appellate jurisdiction. Glossary of Terms and Key Concepts

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Per curiam. “By the court.” A majority opinion that is issued by a court and does not have a specifically named author. Peremptory challenge. Challenges that lawyers on both sides of a trial can use to strike jurors without stating a reason. Typically, each lawyer is allowed to make a certain number of peremptory challenges, in addition to challenges for a specific cause (i.e., reasons that a particular juror could not be impartial in a case). The Supreme Court has heard several cases that challenged the fairness of the peremptory challenges which were made in that particular case, suggesting that they were violations of due process or equal protection because they were racially or ethnically motivated. However, because lawyers are not required to give reasons for peremptory challenges, it is particularly difficult to prove invidious discrimination in these cases. Petitioner. The party in a case that files the petition for the case to be heard. Plaintiff. The party that files a complaint with a court for redress of a grievance. Plenary consideration. Full consideration. Cases granted plenary consideration by the Supreme Court include briefs that are submitted by both parties and the presentation of oral arguments before the Court makes its decision. Plurality opinion. An opinion that announces the decision of the court but which carries less than majority support. Police custody. Not being at liberty to leave the control of the police. The Supreme Court has ruled that this condition may occur prior to arrest at any point at which a reasonable person understands that he or she is not free to leave. Police power of the state. The government, through the police and judicial branch, have a monopoly on the legitimate use of force over individuals. Only the police have the power to detain and imprison a person against his or her will or (except under extreme circumstances) to kill a person without violating the law. The U.S. Constitution places some limits on these powers in the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments. Political question doctrine. A question that would require judicial intrusion into political matters which are generally considered the purview of the elected branches of government. For many years the Supreme Court refused to hear cases that it deemed 824

to involve political questions, but the Court abandoned that doctrine in Baker v. Carr (1962). Poll tax. A tax that must be paid before one can exercise the right to vote. Many states and localities instituted poll taxes following the passage of the Fifteenth Amendment as a method of preventing black citizens from voting, as many newly freed slaves were unable to pay poll taxes. The tax was selectively enforced in many states so that poor whites were not disenfranchised. The TwentyFourth Amendment, passed in 1964, prohibited poll taxes. Preemption. A judicial doctrine that holds that in matters of national importance, federal laws take precedence over state laws in the event of a conflict. Prima facie. “At first sight.” A fact that is supposed to be true on the basis of plain observation unless it is otherwise proven false. Privacy. A right that the Supreme Court has declared individuals to hold, despite the fact that it is not one of the enumerated rights of the Bill of Rights. In Griswold v. Connecticut (1965), the Court held that there is a constitutional right to privacy which can be found in the penumbras of the First, Third, Fourth, Fifth, and Ninth Amendments. Privileges and immunities. The Fourteenth Amendment grants every citizen certain privileges and immunities of citizenship that no state may infringe. However, shortly after the passage of the Fourteenth Amendment in the Slaughterhouse Cases (1873), the Supreme Court ruled that the privileges and immunities clause has no perceptible meaning or effect. Since that decision, the clause has been dormant and ignored in court, except in the 1999 case of Saenz v. Roe, in which the Court held that the right to travel is partially protected by the privileges and immunities clause. Procedural due process. A doctrine which holds that the constitutional requirements for due process are met if the formal and impartial processes of the judicial branch are followed in a case. Contrast with substantive due process. Rational basis. A judicial test that allows a law to stand if the government can demonstrate that the law has a rational relation to a legitimate governmental interest. Reapportionment. Change that is made to electoral district lines, generally to adjust for changes in population.

Glossary of Terms and Key Concepts

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Reconstruction. The era following the end of the Civil War from 1865–1877, in which the federal government made an effort to reintegrate the secessionist states into the union and to integrate the newly freed slaves into society through legislation and policies. The passage of the Civil War Amendments was part of this effort. Reconstruction officially ended in 1877 with the Great Compromise, which presidential candidate Rutherford B. Hayes had promised the South in exchange for their electoral votes. One provision of the Compromise was the removal of federal troops from all Southern states in which they remained (Louisiana, South Carolina, and Florida). Remand. To send a case back to a lower court for rehearing in light of a new ruling. Reserved powers clause. The clause in the Tenth Amendment which declares that powers not delegated to the federal government by the Constitution are reserved to the states or to the people. It is one of the powerful sources of federalism outlined in the Constitution. Respondent. The party compelled to answer or respond to the complaints of the appellant in a case. Reverse. The decision by a superior court to contradict and overturn a decision that was reached by a lower court. Right to bear arms. The Second Amendment states, “a well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Because the Supreme Court did not hear a Second Amendment case for many years, scholars and judges have long debated the meaning of the first clause and its effect on the meaning of the better known second clause. Then in 2008 the Supreme Court ruled in District of Columbia v. Heller that a ban on handguns in Washington, D.C., violated the Second Amendment. The Court held that the Second Amendment protects individuals’ right to possess firearms for lawful purposes unrelated to any military purpose. This was the most recent provision of the Bill of Rights to be incorporated to the states via the Fourteenth Amendment in McDonald v. City of Chicago (2010). Ripeness. A quality of a case that makes it ready for adjudication in court by presenting a controversy over actual occurrences that have transpired (i.e., it is not a hypothetical question). The federal courts re-

quire that a case be ripe in order for it to meet requirements of justiciability. Same-sex marriage. Marriage between two persons of the same sex. Federal law does not recognize same-sex unions, and the Defense of Marriage Act allows states the freedom not to recognize same-sex unions that were licensed in other states, despite the typical restrictions of the full faith and credit clause (see full faith and credit clause, above). As of this publication, five states (Vermont, Massachusetts, Connecticut, New Hampshire, and Iowa) and the District of Columbia have ruled that same-sex marriage is protected, and a number of other states allow same-sex unions of some sort, but do not grant them the same rights accorded to married heterosexual couples. The majority of states have either constitutional or statutory restrictions on same-sex marriage. Search and seizure. An act by police to look through personal possessions and seize them as evidence in a criminal trial. The Fourth Amendment requires police to have a search warrant issued by a judge upon demonstration of probable cause, but the Supreme Court has interpreted that requirement loosely in some circumstances, such as during hot pursuit (see supra). The Court has extended the protection against unreasonable search and seizure to nontangible effects such as phone conversations and online communication. Any evidence obtained by the police without a proper warrant is inadmissible in court due to the exclusionary rule (see supra). Selective incorporation. A doctrine that uses the Fourteenth Amendment due process clause to incorporate to the states only the provisions of the Bill of Rights that are judged to be “fundamental rights.” Selective incorporation has been the prevailing policy of the Supreme Court ever since the first right, right to compensation when the government claims private property, was incorporated in Chicago, Burlington, and Quincy R. Co. v. Chicago (1897). In Palko v. Connecticut (1937) the Court made this doctrine explicit, and it has followed it ever since. See also incorporation, nonincorporation, and total incorporation. Self-incrimination. The act of giving evidence against oneself in a criminal trial. The Fifth Amendment guarantees that no person can be forced to give self-incriminating evidence, hence the colloquial phrase “I plead the Fifth.” The protection against self-incrimination was incorporated and made binding on the states in Malloy v. Hogan in 1964. Glossary of Terms and Key Concepts

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Separate but equal. The policy during the Jim Crow era in the South which required public facilities to be segregated by race, but also required the different facilities to be “equal.” This policy prevailed from the Reconstruction Era until the Court’s ruling in Brown v. Board of Education (1954) striking down “separate. . .[as] inherently unequal” and thus a violation of the equal protection clause of the Fourteenth Amendment. Before that, in 1896, the Court specifically upheld Jim Crow laws in Plessy v. Ferguson. Separation of powers. The doctrine underlying the design of the U.S. Constitution, which separates the legislative, executive, and judicial branches into three coequal and relatively autonomous branches. This governmental design allows each branch to check the other two in some fashion and to have the other two branches check it in turn, so that no branch becomes too independently powerful. Single-member district. A system of electoral apportionment in which all eligible regions are divided into voting districts, each of which elects a single member to the governmental body. District lines drawn for the U.S. House of Representatives are single-member districts, but each state is a multimember district for the election of U.S. Senators. Slander. Intentionally defamatory speech that is malicious, known to be false at the time of utterance, and meant to cause social harm to the target. Slander is not protected speech under the First Amendment. Contrast with libel, which is malicious writings or images. Slippery slope. An argument commonly made that a small initial step in one direction will lead to additional, continually more extreme steps further in that direction, each of which would become more harmful, even though the small initial step may seem quite innocuous. Sodomy. Any act of sexual penetration other than vaginal intercourse. Prior to the Supreme Court’s ruling in Lawrence v. Texas (2003), many states had laws prohibiting homosexual sodomy (and in some cases, heterosexual sodomy as well). The Court overturned such laws in Lawrence on the basis of the right to privacy and substantive due process. Standing. A judicial requirement that a party involved in a case have a personal stake in the outcome of the case. Stare decisis. “Let the decision stand.” The judicial doctrine of following precedent, relying on earlier decisions to form the basis in a present case. 826

State action. Actions that are taken by the state, as opposed to actions taken by individuals or private companies. The state action doctrine holds that the provisions of the Fourteenth Amendment apply only to actions of the state and not to actions of private individuals. Statutory interpretation. The power of the courts to interpret and apply statutory laws. Statutory law. Law created by a legislative body. Contrast with common law. Stay. An order by a court to stop an action or desist from it. Strict constructionism. A philosophy that the Constitution and laws should be interpreted through a very close and narrow reading and interpretation of the text. Subpoena. An order to present oneself before a court or legislative hearing at a certain time and place. Substantive due process. A doctrine of the Fourteenth Amendment due process clause which holds that the clause extends beyond procedural guarantees to guarantees of substantive rights that are “implicit in the concept of ordered liberty” (Palko v. Connecticut, 1937). Contrast with procedural due process. Summary judgment. A decision that is made in a case without a full review of briefs or arguments. Contrast with plenary consideration. Supra. “Above.” Supremacy clause. Article VI, Clause 2, which states that “This Constitution, and the laws of the United States which shall be made in pursuance thereof...shall be the supreme law of the land.” Because this clause lists the Constitution before the laws, Chief Justice John Marshall interpreted it in Marbury v. Madison (1803) to mean that the Constitution must be superior to ordinary laws, and therefore any conflict between the two must be resolved by the reversal of the law. This finding allowed him to conclude that the Supreme Court has the power to overturn statutory laws if they conflict with the Constitution as the Court interprets it (the power of judicial review). Takings clause. A clause in the Fifth Amendment which prohibits the government from taking any person’s private property for public use without just compensation. It was the first right incorporated to the states in Chicago, Burlington & Quincy R. Co. v. Chicago (1897).

Glossary of Terms and Key Concepts

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Three strikes laws. Criminal laws in many states that impose increased penalties on persons who are convicted of a third felony. In some states, only certain types of felonies, such as violent crimes, trigger the laws. Three strikes laws also vary in the severity of punishment incurred on the third strike; some states require automatic life imprisonment, while others are less severe. In 2003 in Ewing v. California, the Supreme Court upheld the constitutionality of California’s three strikes law in a case where a man was sentenced to twenty-five years to life in prison for a series of four crimes, including three burglaries and one robbery. Title IX. Also known as the 1972 Gender Equity Amendments (to the Civil Rights Act of 1964) and the Patsy T. Mink Equal Opportunity in Education Act, Title IX states that “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.” Its most prominent impact has been on the increased opportunity for women to participate in sports at the high school and college levels on equal terms as men, although many violations of Title IX still occur. Total incorporation. A doctrine that was never adopted by a majority of the Supreme Court that would apply all of the enumerated rights in the Bill of Rights (Amendments 1–8) to the states. This view is often associated with Justice Hugo Black, due to his concurring opinion in Duncan v. Louisiana (1968). The Court has opted for selective incorporation instead, although nearly all the provisions of the Bill of Rights have now been applied to the states. Trial court. A federal court that has original jurisdiction and that hears the initial litigation of federal cases. Underinclusiveness. A determination by a court that a statute or policy is invalid because it limits benefits or penalties to a particular group and excludes others without valid justification. Unity of purpose. A doctrine espoused by the Supreme Court in the Slaughterhouse Cases (1873) which held that the Civil War Amendments (the Thirteenth, Fourteenth, and Fifteenth Amendments) demonstrate on their face a unity of purpose to free the slaves and incorporate them into society effectively. Vacate. To make void or annul the decision of a lower court.

Venire. “To come.” A summons for jurors. Voir dire. “To speak the truth.” Preliminary examination of a potential juror to determine the person’s competency and impartiality. Voting Rights Act of 1965. An act passed to enforce the Fifteenth Amendment. It includes the controversial provision of preclearance, requiring certain states to preclear any changes in their voting practices with the federal government before they take effect. Wall of Separation between church and state. A metaphor used by Thomas Jefferson in his letter to the Danbury Baptists, assuring them that it was his intention to keep the government out of their religious affairs. It is commonly used to express the idea behind the establishment clause of the First Amendment. Although we typically think of the establishment clause as protecting the government from the influences of religion, its original intention was to protect religion from intrusion by the government. Warrant. A writ that is issued by a judge or magistrate authorizing the arrest or search and seizure of a person who is suspected with probable cause of having committed a crime. Women’s suffrage. The right of women to vote. It was achieved by the passage of the Nineteenth Amendment in 1920. This success was the culmination of a very long struggle by a number of prominent women’s suffragists, as well as thousands of unnamed women and men across the United States. Writ. An order issued by a court commanding someone to take a particular action. Writ of certification. A request made by an appellate court to the Supreme Court to issue a written clarification on a point of case law established by an earlier decision. Writ of certiorari. An order issued by the Supreme Court to a lower court to submit all materials on record for a particular case to them for review. Writ of error. A writ issued from a superior court to a lower court to submit the record of a case so that the higher court can review it for error.

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APPENDIX

III

MEMBERS OF THE SUPREME COURT OF THE UNITED STATES

Name

State App’t From

Appointed by President

Judicial Oath Taken

Date Service Terminated

New York South Carolina Connecticut Virginia Maryland Ohio Ohio Illinois Louisiana Connecticut New York New York Kentucky California Virginia Virginia Maryland

Washington Washington Washington Adams, John Jackson Lincoln Grant Cleveland Taft Harding Hoover Roosevelt, F. Truman Eisenhower Nixon Reagan Bush, G. W.

October 19, 1789 August 12, 1795 March 8, 1796 February 4, 1801 March 28, 1836 December 15, 1864 March 4, 1874 October 8, 1888 December 19, 1910 July 11, 1921 February 24, 1930 July 3, 1941 June 24, 1946 October 5, 1953 June 23, 1969 September 26, 1986 September 29, 2005

June 29, 1795 December 15, 1795 December 15, 1800 July 6, 1835 October 12, 1864 May 7, 1873 March 23, 1888 July 4, 1910 May 19, 1921 February 3, 1930 June 30, 1941 April 22, 1946 September 8, 1953 June 23, 1969 September 26, 1986 September 3, 2005

South Carolina Massachusetts Pennsylvania Virginia North Carolina Maryland New Jersey Maryland

Washington Washington Washington Washington Washington Washington Washington Washington

February 15, 1790 February 2, 1790 October 5, 1789 February 2, 1790 May 12, 1790 August 6, 1792 March 11, 1793 February 4, 1796

March 5, 1791 September 13, 1810 August 21, 1798 October 25, 1795 October 20, 1799 January 16, 1793 September 9, 1806 June 19, 1811

CHIEF JUSTICES Jay, John Rutledge, John Ellsworth, Oliver Marshall, John Taney, Roger Brooke Chase, Salmon Portland Waite, Morrison Remick Fuller, Melville Weston White, Edward Douglass Taft, William Howard Hughes, Charles Evans Stone, Harlan Fiske Vinson, Fred Moore Warren, Earl Burger, Warren Earl Rehnquist, William H. Roberts, John G., Jr. ASSOCIATE JUSTICES Rutledge, John Cushing, William Wilson, James Blair, John Iredell, James Johnson, Thomas Paterson, William Chase, Samuel

828 Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Name Washington, Bushrod Moore, Alfred Johnson, William Livingston, Henry Brockholst Todd, Thomas Duvall, Gabriel Story, Joseph Thompson, Smith Trimble, Robert McLean, John Baldwin, Henry Wayne, James Moore Barbour, Philip Pendleton Catron, John McKinley, John Daniel, Peter Vivian Nelson, Samuel Woodbury, Levi Grier, Robert Cooper Curtis, Benjamin Robbins Campbell, John Archibald Clifford, Nathan Swayne, Noah Haynes Miller, Samuel Freeman Davis, David Field, Stephen Johnson Strong, William Bradley, Joseph P. Hunt, Ward Harlan, John Marshall Woods, William Burnham Matthews, Stanley Gray, Horace Blatchford, Samuel Lamar, Lucius Quintus C. Brewer, David Josiah Brown, Henry Billings Shiras, George, Jr. Jackson, Howell Edmunds White, Edward Douglass Peckham, Rufus Wheeler McKenna, Joseph Holmes, Oliver Wendell Day, William Rufus Moody, William Henry Lurton, Horace Harmon Hughes, Charles Evans

State App’t From

Appointed by President

Judicial Oath Taken

Date Service Terminated

Virginia North Carolina South Carolina New York Kentucky Maryland Massachusetts New York Kentucky Ohio Pennsylvania Georgia Virginia Tennessee Alabama Virginia New York New Hampshire Pennsylvania Massachusetts Alabama Maine Ohio Iowa Illinois California Pennsylvania New Jersey New York Kentucky Georgia Ohio Massachusetts New York Mississippi Kansas Michigan Pennsylvania Tennessee Louisiana New York California Massachusetts Ohio Massachusetts Tennessee New York

Adams, John Adams, John Jefferson Jefferson Jefferson Madison Madison Monroe Adams, J. Q. Jackson Jackson Jackson Jackson Jackson Van Buren Van Buren Tyler Polk Polk Fillmore Pierce Buchanan Lincoln Lincoln Lincoln Lincoln Grant Grant Grant Hayes Hayes Garfield Arthur Arthur Cleveland Harrison Harrison Harrison Harrison Cleveland Cleveland McKinley Roosevelt, T. Roosevelt, T. Roosevelt, T. Taft Taft

February 4, 1799 April 21, 1800 May 7, 1804 January 20, 1807 May 4, 1807 November 23, 1811 February 3, 1812 September 1, 1823 June 16, 1826 January 11, 1830 January 18, 1830 January 14, 1835 May 12, 1836 May 1, 1837 January 9, 1838 January 10, 1842 February 27, 1845 September 23, 1845 August 10, 1846 October 10, 1851 April 11, 1853 January 21, 1858 January 27, 1862 July 21, 1862 December 10, 1862 May 20, 1863 March 14, 1870 March 23, 1870 January 9, 1873 December 10 1877 January 5, 1881 May 17, 1881 January 9, 1882 April 3, 1882 January 18, 1888 January 6, 1890 January 5, 1891 October 10, 1892 March 4, 1893 March 12, 1894 January 6, 1896 January 26, 1898 December 8, 1902 March 2, 1903 December 17, 1906 January 3, 1910 October 10, 1910

November 26, 1829 January 26, 1804 August 4, 1834 March 18, 1823 February 7, 1826 January 14, 1835 September 10, 1845 December 18, 1843 August 25, 1828 April 4, 1861 April 21, 1844 July 5, 1867 February 25, 1841 May 30, 1865 July 19, 1852 May 31, 1860 November 28, 1872 September 4, 1851 January 31, 1870 September 30, 1857 April 30, 1861 July 25, 1881 January 24, 1881 October 13, 1890 March 4, 1877 December 1, 1897 December 14, 1880 January 22, 1892 January 27, 1882 October 14, 1911 May 14, 1887 March 22, 1889 September 15, 1902 July 7, 1893 January 23, 1893 March 28, 1910 May 28, 1906 February 23, 1903 August 8, 1895 December 18, 1910* October 24, 1909 January 5, 1925 January 12, 1932 November 13, 1922 November 20, 1910 July 12, 1914 June 10, 1916 (continued)

Members of the Supreme Court of the United States

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

State App’t From

Name Van Devanter, Willis Lamar, Joseph Rucker Pitney, Mahlon McReynolds, James Clark Brandeis, Louis Dembitz Clarke, John Hessin Sutherland, George Butler, Pierce Sanford, Edward Terry Stone, Harlan Fiske Roberts, Owen Josephus Cardozo, Benjamin Nathan Black, Hugo Lafayette Reed, Stanley Forman Frankfurter, Felix Douglas, William Orville Murphy, Frank Byrnes, James Francis Jackson, Robert Houghwout Rutledge, Wiley Blount Burton, Harold Hitz Clark, Tom Campbell Minton, Sherman Harlan, John Marshall Brennan, William J., Jr. Whittaker, Charles Evans Stewart, Potter White, Byron Raymond Goldberg, Arthur Joseph Fortas, Abe Marshall, Thurgood Blackmun, Harry A. Powell, Lewis F., Jr. Rehnquist, William H. Stevens, John Paul O’Connor, Sandra Day Scalia, Antonin Kennedy, Anthony M. Souter, David H. Thomas, Clarence Ginsburg, Ruth Bader Breyer, Stephen G. Alito, Samuel A., Jr. Sotomayor, Sonia Kagan, Elena

Wyoming Georgia New Jersey Tennessee Massachusetts Ohio Utah Minnesota Tennessee New York Pennsylvania New York Alabama Kentucky Massachusetts Connecticut Michigan South Carolina New York Iowa Ohio Texas Indiana New York New Jersey Missouri Ohio Colorado Illinois Tennessee New York Minnesota Virginia Arizona Illinois Arizona Virginia California New Hampshire Georgia New York Massachusetts New Jersey New York New York

Appointed by President Taft Taft Taft Wilson Wilson Wilson Harding Harding Harding Coolidge Hoover Hoover Roosevelt, F. Roosevelt, F. Roosevelt, F. Roosevelt, F. Roosevelt, F. Roosevelt, F. Roosevelt, F. Roosevelt, F. Truman Truman Truman Eisenhower Eisenhower Eisenhower Eisenhower Kennedy Kennedy Johnson, L. Johnson, L. Nixon Nixon Nixon Ford Reagan Reagan Reagan Bush, G. H. W. Bush, G. H. W. Clinton Clinton Bush, G. W. Obama Obama

Judicial Oath Taken

Date Service Terminated

January 3, 1911 January 3, 1911 March 18, 1912 October 12, 1914 June 5,1916 October 9, 1916 October 2, 1922 January 2, 1923 February 19, 1923 March 2, 1925 June 2, 1930 March 14, 1932 August 19, 1937 January 31, 1938 January 30, 1939 April 17, 1939 February 5, 1940 July 8, 1941 July 11, 1941 February 15, 1943 October 1, 1945 August 24, 1949 October 12, 1949 March 28, 1955 October 16, 1956 March 25, 1957 October 14, 1958 April 16, 1962 October 1, 1962 October 4, 1965 October 2, 1967 June 9, 1970 January 7, 1972 January 7, 1972 December 19, 1975 September 25, 1981 September 26, 1986 February 18, 1988 October 9, 1990 October 23, 1991 August 10, 1993 August 3, 1994 January 31, 2006 August 6, 2009 August 7, 2010

June 2, 1937 January 2, 1916 December 31, 1922 January 31, 1941 February 13, 1939 September 18, 1922 January 17, 1938 November 16, 1939 March 8, 1930 July 2, 1941* July 31, 1945 July 9, 1938 September 17, 1971 February 25, 1957 August 28, 1962 November 12, 1975 July 19, 1949 October 3, 1942 October 9, 1954 September 10, 1949 October 13, 1958 June 12, 1967 October 15, 1956 September 23, 1971 July 20, 1990 March 31, 1962 July 3, 1981 June 28, 1993 July 25, 1965 May 14, 1969 October 1, 1991 August 3, 1994 June 26, 1987 September 26, 1986* June 29, 2010 January 31, 2006

June 29, 2009

*Elevated

830

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

TABLE OF CASES

A Abate v. Mundt, 603 Abrams v. United States, 32, 35 Adamson v. California, 21, 349 Adams v. Texas, 380 Adams v. Williams, 306 Adarand v. Peña, 484, 490, 516, 532, 571 Adderley v. Florida, 110, 158 Adderly v. State of Florida, 65 Agostini v. Felton, 216, 250 Aguilar v. Felton, 215 Aguillar v. Texas, 296 Alabama v. Shelton, 788 Alaska Pac. Fisheries v. United States, 651 Albemarle Paper Co. v. Moody, 574 Alberts v. California, 111 Alexander v. Holmes County Board of Education, 468 Allegheny County v. Greater Pittsburgh ACLU, 241 Allen v. State Board of Elections, 592, 616, 633 Almeida Sanchez v. United States, 307 Amalgamated Food Employees v. Logan Valley, 7, 78 American Communications Assn. v. Douds, 200 Amicus Curiae in County of Oneida v. Oneida Indian Nation of N. Y., 661 Anderson v. Calabrezze, 197 Anderson v. Liberty Lobby Inc., 805 Anderson v. United States, 357 Anders v. California, 338 Apache County et al. v. United States, 678 Apodaca v. Oregon, 380 Apprendi v. New Jersey, 381 Aptheker v. Secretary of state, 58 A Quantity of Books v. Kansas, 122

Arbaugh v. Y & H Corp., 485 Argersinger v. Hamlin, 337 Arizona v. Fulminante, 360 Arizona v. Gant, 295, 301 Arizona v. Reno, 678 Arizona v. Rumsey, 395 Arkansas v. Sanders, 308 Arlington Heights v. Metropolitan Housing Development Corp., 623 Ashcroft v. American Civil Liberties Union, 144 Ashcroft v. Free Speech Coalition, 115 Associated Gen. Contractors of America v. Jacksonville, 550 Associated Press v. Walker, 187 Atkinson Trading Co. v. Shirley, 669 Atwater v. Lago Vista, 319n, 320, 323, 326 Avery v. Georgia, 383 Avery v. Midland County, 603

B Badger v. Badger, 662 Baehr v. Lewin, 18n Baggett v. Bullitt, 58 Baker v. Carr, 585, 603, 617, 678, 703 Bakery Drivers Local v. Wohl, 61 Baldwin v. New York, 377 Ballard v. United States, 705 Ballew v. Georgia, 377 Bantam Books, Inc. v. Sullivan, 121, 170 Barclay v. Florida, 397 Barefoot v. Estelle, 397 Barenblatt v. United States, 60 Barker v. Wingo, 372, 374, 381 831

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Barnes v. Glen Theatre, Inc., 108, 134 Barnhart v. Sigmon Coal Co., 668 Barron ex rel. Tiernan v. Mayor of Baltimore, 319 Barron v. Baltimore, 19–21, 336 Barrows v. Jackson, 457, 580 Bartels v. Iowa, 158 Bartlett v. Strickland, 613, 634 Batson v. Kentucky, 377 Baumgartner v. United States, 111 Baxter v. Palmigiano, 424 Bd. of Ed. of Westside Community Schools v. Mergens, 238 Bears v. Alabama Board of Corrections, 424n Beavers v. Haubert, 373 Beck v. Alabama, 396 Beckwith v. United States, 358, 362 Beer v. United States, 593, 605–606, 609 Bell v. School City of Gary, Ind., 468 Bell v. Wolfish, 426 Belton and Thornton v. United States, 328n Bennett v. Brown Cty, 636 Benton v. Maryland, 22 Berea v. Kentucky, 459 Bethel School District No. 403 v. Fraser, 156, 162 Betts v. Brady, 336, 340–343 Bigelow v. Virginia, 151, 723 Bivens v. Six Unknown Agents, 301 Blackwell v. Issaquena County Board of Education, 160 Blakely v. Washington, 381 Blake v. Municipal Court, 337 Block v. Rutherford, 426 Blodgett v. Holden, 635 Board of Ed. of City School Dist. of New York v. Harris, 500 Board of Ed. of Westside Community Schools v. Mergens, 245 Board of Education of Oklahoma City Public Schools v. Dowell, 466, 472, 484 Board of Education of Piscataway v. Taxman, 532 Board of Education of Westside Community Schools v. Mergens, 231 Board of Education v. Allen, 119, 209 Board of Education v. Barnette, 714 Board of Regents of Univ. of Wis. System v. Southworth, 245 Bob Jones University v. United States, 259 Boddie v. Connecticut, 771 Bolger v. Youngs Drug Products Corp., 151 Bolling v. Sharpe, 460, 570, 757 Bond v. Floyd, 58, 168 Bond v. United States, 315 832

Boos v. Barry, 94, 142, 147 Booth v. Maryland, 399, 415, 417 Boston Chapter NAACP v. Beecher, 578 Boston Firefighters Union, Local 718 v. Boston Chapter, NAACP, 528 Boston Police Patrolmen’s Association v. Castro, 528 Boulden v. Holman, 380 Bowen v. Roy, 274, 277, 679 Bowers v. Hardwick, 137–139, 684, 725, 732, 737 Bowman v. Wathen, 662 Bown v. Board of Education, 491 Boyd v. United States, 295, 298, 319n, 715 Boy Scouts of America v. Dale, 684, 722 Bradley v. School Board of the City of Richmond, 470n Bradwell v. Illinois, 684, 686, 693, 697 Bragdon v. Abbott, 685, 782, 797 Branch v. Texas, 395 Brandenburg v. Ohio, 32, 35 Branzburg v. Hayes, 182, 185 Braunfeld v. Brown, 262, 264–266 Bray v. Alexandria Women’s Health Clinic, 712 Breard v. Alexandria, 118, 151, 715, 723 Breed v. Jones, 434 Breithaupt v. Abram, 295 Brendale v.Confederated Tribes and Bands of Yakima Nation, 663 Brewer v. Williams, 303n Bridges v. California, 60 Brinegar v. United States, 320 Briscoe v. Bell, 633 Brockett v. Spokane Arcades, Inc., 114 Brooks v. Tennessee, 339 Brown v. Board of Education, 113, 218, 293, 443, 446, 459–461, 463, 466, 475–476, 480, 489, 494, 504, 510, 514, 549, 556, 586 Brown v. Louisiana, 64, 139, 158 Brown v. Mississippi, 349 Brown v. Socialist Workers, 197 Brown v. Texas, 316–318 Buchanan v. Angelone, 401 Buchanan v. Warley, 457, 570, 580 Buckley v. Valeo, 14n, 154 Buck v. Bell, 719 Bullington v. Missouri, 395 Bunger v. Green River, 723 Burlington Northern and Santa Fe Railway Co. v. White, 523 Burnside v. Byars, 158–160 Burstyn v. Wilson, 132 Bush v. Gore, 628–629 Bush v. Vera, 491, 604

Table of Cases

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Bustop, Inc. v. Los Angeles Bd. of Ed., 500 Butler v. Michigan, 129–131

C Caban v. Mohammed, 689 Cady v. Dombrowski, 306 Calderon v. Thompson, 401 Califano v. Goldfarb, 688 Califano v. Webster, 688, 690 Califano v. Westcott, 689 California Federal Savings and Loan Association v. Guerra, 691 California v. Brown, 399 California v. Ciraolo, 309n California v. Greenwood, 309, 320 California v. LaRue, 135, 142 California v. Nevada, 662 California v. Ramos, 418 California v. Stewart, 351, 355, 357 California v. Webster, 792 Camara v. Municipal Court of San Francisco, 309n Caminetti v. United States, 667 Campbell v. Grammer, 431 Campbell v. Sundquist, 734 Cantwell v. Connecticut, 21, 62, 68–70, 74, 98, 110, 261, 277, 280 Capital Square Review and Advisory Bd. v. Pinette, 246–247 Carcieri v. Norton, 667 Carcieri v. Salazar, 665 Cardwell v. Lewis, 307 Carey v. Brown, 80–81, 99 Carey v. Population Services Int’l, 732 Carroll v. President and Commissioners of Princess Anne, 66 Carroll v. United States, 304, 306 Carter v. West Feliciana Parish School Board, 468 Celotex Corp. v. Catrett 477, 568 Central Hudson Gas and Electric Corporation v. Public Service Commission, 152 Chambers v. Florida, 349 Chandler v. Florida, 184 Chaplinsky v. New Hampshire, 62, 70, 98, 102, 109, 111, 127 Chapman v. Meier, 603 Cherokee Nation v. Georgia, 642, 678 Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 667, 802 Chicago & Southern Air Lines v. Waterman Steamship Corp., 178 Chimel v. California, 305, 323, 329–330

Chisom v. Roemer, 595 Church of Lukumi Babalu Aye, Inc. v. Hialeah, Florida, 281 Citizens United v. FEC, 155 City of Akron v. Akron Center for Reproductive Health, 712 City of Boerne v. Flores, 5, 282 City of Erie v. Pap’s A.M., 134 City of Indianapolis v. Edmond, 295, 301 City of Lakewood v. Plain Dealer Pub. Co, 76 City of Lockhart v. United States, 594 City of Mobile Alabama v. Bolden, 593, 625 City of Pittsburgh v. American Civil Liberties Union Greater Pittsburgh Chapter, 253 City of Renton v. Playtime Theatres, 134 City of Richmond Va. v. United States, 594 City of Richmond v. Deans, 457 City of Richmond v. J. A. Croson Co., 515, 530 City of Rome Ga. v. United States, 594 City of Rome v. United States, 616, 633, 793 City of Sherrill v. Oneida Indian Nation of New York, 639, 650, 655–656 Clark v. Community for Creative Non-Violence, 85, 136, 139, 141 Cleburne v. Cleburne Living Center, 738 CNN v. Noriega, 184 Coates v. Cincinnati, 65 Cochran v. Louisiana State Board of Education, 209–210 Cohen and Erznoznik v. Jacksonville, 130 Cohen v. California, 108–109, 123, 129–131, 142 Cohen v. Cowles Media Co., 182, 186 Coker v. Georgia, 396 Colegrove v. Green, 590, 603, 619, 621 Coleman v. Thompson, 373 Cole v. Webster, 501 Collins v. Harker Heights, 741 Colorado v. Bertine, 309 Colorado v. Spring, 359 Columbia Broadcasting System, Inc. v. Democratic National Committee, 126 Columbus Board of Education v. Penick, 470, 494 Committee for Public Education and Religious Liberty v. Nyquist, 214, 254 Committee for Public Education and Religious Liberty v. Regan, 215, 250 Commonwealth v. Wasson, 734 Communications v. Federal Communications Commission, 125 Community Schools v. Seattle School District No. 1, 474 Connecticut Dept. of Public Safety v. Doe, 736 Connecticut Nat. Bank v. Germain, 669 Table of Cases

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Connecticut v. Barrett, 360 Connecticut v. Teal, 568 Connor v. Ortega, 309 Consolidated Edison Company of New York, Inc. v. Public Service Commission of New York, 83, 153 Consolidated Rail Corporation v. Darrone, 799 Coolidge v. New Hampshire, 305 Cooper v. Aaron, 467, 510 Cooper v. California, 320 Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 80 Corporation v. Industrial Commission of Ohio, 132 Cotton Petroleum Corp. v. New Mexico, 674 County of Allegheny v. ACLU, 238 County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 253 County of Oneida v. Oneida Indian Nation of N. Y., 664 County of Washington Oregon et al. v. Gunther, 692 County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 674 Cox Broadcasting Co. v. Conn, 184 Cox v. Louisiana, 61, 64, 111, 158, 161 Cox v. New Hampshire, 76 Coy v. Iowa, 423 Craig v. Boren, 684, 687, 702, 792 Crawford v. Board of Education of City of Los Angeles, 472 Crawford v. Marion County Election Board, 630 Crow. South Carolina v. Katzenbach, 632 Cruzan v. Director Missouri Department of Health, 684 Cruzan v. Missouri, 726 Cumming v. Board of Education of Richmond County, 462 Cumming v. Richmond County Board of Education, 459 Cummins v. Parker Seal Co., 267 Curtis Publishing Co. v. Butts, 187 Cuyler v. Sullivan, 339, 347

D Dallas v. Stanglin, 137 Dandridge v. Williams, 752, 806 Daniels v. Williams, 741 Daniel v. Paul, 583 Darville v. Dade County School Bd., 501 Davis v. Alaska, 423 Davis v. Bandemer, 604, 610, 622 Davis v. Board of School Comm’rs of Mobile Cty., 494 Davis v. United States, 360 Dayton Board of Education v. Brickman I, 470n Dayton Board of Education v. Brickman II, 470 Deal v. Cincinnati Board of Education, 468 Deal v. United States, 668 834

Deborah Morse, et al., Petitioners v. Joseph Frederick, 162 Debs v. United States, 59 DeCoteau v. District Court, 652 DeFunis v. Odegaard, 527, 542 De Jonge v. Oregon, 58, 197, 714 Delaware v. Prouse, 307, 312, 317 Delaware v. Van Arsdall, 423 Dennis v. United States, 32, 35–36, 49, 58–60 Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 149, 180 Department of Agriculture v. Moreno, 737–738 Department of Game v. Puyallup Tribe, 653 Department of Human Resources of Oregon v. Smith, 261–262, 275 Desert Palace, Inc. v. Costa, 522, 786, 790 Devenpeck v. Alfor, 320 Dickerson v. United States, 328, 331–332, 361 Difford v. Secretary of HHS, 670 Di Re. Johnson v. United States, 320 District Attorney’s Office for the Third Judicial District, et al. v. Osborne, 311 Dodd v. United States, 667 Doe v. Bolton, 717 Doe v. Commonwealth’s Attorney for City of Richmond, 728 Dombrowski v. Pfister, 149 Donovan v. Dewey, 309n Doran v. Salem Inn, Inc., 135 Douglas v. Alabama, 423 Douglas v. California, 338 Douglas v. City of Jeanette, 357 Downs v. Kansas City, 468 Dred Scott v. Sandford, 414, 448 Dun & Broadstreet v. Greenmoss Builders, 189 Duncan v. Cammell, Laird & Co., 178 Duncan v. Louisiana, 22, 377, 760 Dunn v. Blumstein, 604, 751 Duren v. Missouri, 378 Durham v. United States, 241 Duro v. Reina, 676

E Earley v. DiCenso, 213 Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 485 Easley v. Cromartie, 393, 608 Eddings v. Oklahoma, 396, 418 Edmondson v. Leesville Concrete Co., 379 Edmond v. Goldsmith, 311 Edwards v. Aguillard, 252

Table of Cases

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Edwards v. Arizona, 358n Edwards v. South Carolina, 32, 61, 63, 71, 110, 158 EEOC v. Arabian American Oil Co., 787 Eisenstadt v. Baird, 719, 732, 738, 741 Elfbrandt v. Russell, 58 Elk Grove Unified School District. v. Newdow, 252 Elkins v. United States, 296, 299, 322 Elk v. Wilkins, 667 Elrod v. Burns, 197 Ely v. Klahr, 678 Employment Division, Oregon Dept. of Human Resources v. Smith, 141, 143, 679 Engel v. Vitale, 204, 217–218, 229, 258 Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 787 Enmund v. Florida, 398 Enomoto v. Clutchette, 424 Epperson v. Arkansas, 158, 252 Erznoznik v. City of Jacksonville, 727 Erznoznik v. Jacksonville, 128–130 Escambia County v. McMillan, 635 Escobedo v. State of Illinois, 337, 351 Estate of Cowart v. Nicklos Drilling Co., 668 Estelle v. Gamble, 425, 427, 429 Estes v. Texas, 183 Euclid v. Ambler Realty Co., 128 Evans v. Newton, 78 Everson v. Board of Education, 21, 204, 207–209 Evitts v. Lucey, 338

Firefighters Union No. 1784 v. Stotts, 528 Firefighters v. City of Cleveland, 529, 576 First National Bank of Boston v. Bellotti, 153, 155, 181 Fiske v. Kansas, 21, 58 Fitzpatrick v. Bitzer, 793 Fletcher v. Peck, 640 Florida v. Arline, 782, 796 Florida v. Bostick, 309 Florida v. Riley, 309n Follett v. McCormick, 262 Food Employees v. Logan Plaza, 61 Ford v. Wainwright, 399 Forsyth County, Georgia v. Nationalist Movement, 76 Forsyth County v. Nationalist Movement, 148 Franklin v. United States, 668 Franks v. Bowman Transportation Co., 542 Frank v. Maryland, 309n Freedman v. Maryland, 133 Freeman v. Pitts, 473–474, 485, 492, 505, 556 Frisby v. Schultz, 32, 74, 78–79, 99, 143 Frohwerk v. United States, 39, 59 Frontiero v. Laird, 698 Frontiero v. Richardson, 684, 686, 688, 690, 695, 704 FTC v. Superior Court Trial Lawyers Association, 139, 777 Fuentes v. Shevin, 773 Fullilove v. Klutznick, 485, 515, 530 Furman and Jackson v. Georgia, 395n Furman v. Georgia, 395, 403, 405

F

G

Fairley v. Patterson, 592 Fair Trial v. Free Press, 182 Fare v. Michael C., 358, 358n, 364, 370, 434 Farmers Reservoir & Irrigation Co. v. McComb, 636 FCC v. League of Women Voters of California, 180 FCC v. National Citizens Committee for Broadcasting, 126 F.C.C. v. Pacifica, 108, 124–125, 146, 148, 180 FDA v. Brown & Williamson Tobacco Corp., 673 Federal Election Commission v. National Conservative Political Action Committee, 154 Federal Express Corp. v. Holowecki, 787 Feiner v. New York, 32, 61, 63, 67, 72, 74 Felix v. Patrick, 662 Felker v. Turpin, 401 Ferrell v. Dallas Independent School District, 158 Fields v. South Carolina, 64 Firebird Soc. of New Haven Inc. v. New Haven Bd. of Fire Comm’rs, 572 Firefighters Inst. for Racial Equality v. St. Louis, 578

Gaffney v. Cummings, 603 Gagnon v. Scarpelli, 428 Galella v. Onassis, 728 Gallagher v. Crown Kosher Super Market, 262 Galliher v. Cadwell, 662 Gannett v. DePasquale, 184 Garner v. Louisiana, 582 Garrison v. Louisiana, 187 Gaston County v. United States, 525 Geders v. United States, 339 Geduldig v. Aiello, 690 Geer v. Spock, 75 General Electric Co. v. Joiner, 805 General Electric v. Gilbert, 691 Gentile v. State Bar of Nev., 149 Georgia State Board of Elections v. Brooks, 595 Georgia v. Ashcroft, 444, 609, 635 Georgia v. McCollum, 379 Georgia v. United States, 592, 616, 633 Gerstein v. Pugh, 320 Table of Cases

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Gertz v. Robert Welch, Inc., 188 Giboney v. Empire Storage Co., 61, 111 Giboney v. Empire Storage & Ice Co., 161 Gideon v. Wainwright, 22, 336–337, 339, 423, 749 Gilbert v. California, 337 Gillette v. United States, 283 Ginsberg v. New York, 112, 119, 128, 130, 146, 160 Ginzburg v. United States, 112, 117, 122 Gitlow v. New York, 20, 32, 35, 42, 60 Globe Newspaper Co. v. Superior Ct., 184 Go-Bart Importing Co. v. United States, 305 Godfrey v. Georgia, 397 Goesaert v. Cleary, 704 Goldberg v. Kelly, 684, 751 Goldman v. Weinberger, 274 Goldsboro Christian Schools v. United States, 259 Gomillion v. Lightfoot, 502, 585, 587–588, 600, 603–604, 621, 624 Gong Lum v. Rice, 462 Gong Sum v. Rice, 459 Gonzales v. Carhart, 713 Gooding v. Wilson, 123 Goodluck v. Apache County, 678 Good News Club v. Milford, 231 GrandTraverse Band of Ottawa & Chippewa Indians v. Office of U.S. Attorney for Western Dist. of Mich., 670 Gratz v. Bollinger, 444, 485, 492, 511, 517, 532 Grayned v. Rockford, 75 Gray v. Sanders, 603 Gray v. State, 453 Greater New Orleans Broadcasting Association, Inc. v. United States, 152 Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 428 Green River v. Bunger, 723 Green v. County School Board of New Kent County, 467 Green v. School Bd. of New Kent Cty., 484, 493–494 Green v. Waterford Bd. of Education, 688 Gregg v. Georgia, 377, 395–396, 396n, 401, 409, 417 Gregory v. Ashcroft, 792 Gregory v. City of Chicago, 64 Griffin v. California, 338, 349, 425 Griffin v. Illinois, 338 Griffin v. Prince Edward County School Board, 467 Griggs and Albemarle Paper Co. v. Moody, 536 Griggs v. Duke Power Co., 514, 519–521, 524, 532, 536, 571, 574–575 Griswold et al. v. Connecticut, 684 Griswold v. Connecticut, 19, 710–711, 713, 718–719, 728, 732, 741 836

Grosjean v. American Press Co., 182, 341 Gross v. FBL Financial Services Inc., 782, 784–785 Grove City College v. Bell, 4, 515, 684, 692 Grovey v. Townsend, 458, 587–588 Grutter v. Bollinger, 444, 474, 485, 491, 511–512, 514, 517, 519, 527, 549, 571 Gryczan v. State, 734 Guinn v. United States, 458, 587, 625 Gustafson v. Florida, 306

H Hagen v. Utah, 661 Hague v. CIO, 74 Haines v. Kerner, 424 Haley v. Ohio, 437 Hamilton v. Alabama, 343 Hamilton v. Kentucky Distilleries & Warehouse Co., 700 Hamling v. United States, 129 Hampton v. Jefferson Cty. Bd. of Ed., 484 Ham v. South Carolina, 378 Harmelin v. Michigan, 427 Harper v. Virginia, 4 Harper v. Virginia Board of Elections, 592, 758 Harris v. Forklift Systems Inc., 729 Harris v. New York, 17n, 358 Harris v. United States, 305, 332 Harry Roberts v. Louisiana, 396 Hartford Underwriters Ins. Co. v. Union Planters Bank N. A., 667 Hartzel v. United States, 60 Haynes v. Washington, 349 Hazelwood School District v. Kuhlmeier, 157, 162, 245 Hazen Paper Co. v. Biggins, 787, 794 Head v. Newton, 739 Heart of Atlanta Motel v. United States, 583 Heffron v. International Society for Krishna Consciousness (ISKCON), 76 Heights v. Metropolitan Housing Development Corp., 358 Heller v. Doe, 743 Helling v. McKinney, 425 Helvering v. Hallock, 736 Henry v. Rock Hill, 64 Herbert v. Lando, 187 Herman v. Tyler, 457 Hernandez v. Commissioner, 278 Hernandez v. New York, 378, 389, 393, 607 Herndon v. Lowry, 58, 60 Herring v. New York, 339 Hess v. Indiana, 127 Hills v. Gautreaux, 581 Hill v. Colorado, 79, 85

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Hirabayashi v. United States, 623 Hishon v. King & Spalding, 692 Hobbie v. Unemployment Appeals Commission of Florida, 263, 276 Hobson v. Hansen, 468 Hoffa v. United States, 368, 370 Holland v. Illinois, 379 Holloway v. Arkansas, 339 Home Building & Loan Assn. v. Blaisdell, 633 Hooks v. Wainwright, 424n Hopwood v. Texas, 552 Houchins v. KQED, 184 Houston Lawyers Association v. Texas Attorney General, 595 Hoyt v. Florida, 687 Hudgens v. National Labor Relations Board, 78 Hudson v. McMillian, 377, 423, 428 Hudson v. Palmer, 426 Hughes v. Superior Court, 61 Hunter v. Erickson, 472, 580 Hunter v. Underwood, 393 Hunt v. Cromartie, 607 Hunt v. McNair, 217, 250 Hurd v. Hodge, 457, 580 Hurley v. Irish-American Gay, Lesbian, and Bisexual, 198 Hurtado v. California, 341 Hustler Magazine v. Falwell, 189 Hutto v. Finney, 425

I Illinois v. Gates, 303 Illinois v. Perkins, 336, 357, 360–361, 367 Indiana v. Edwards, 339, 361 Ingraham v. Wright, 429 In Green v. New Kent County School Board, 468 International Society for Krishna Consciousness v. Lee, 76 International Union UAW v. Johnson Controls, 683 Interstate Circuit, Inc. v. Dallas, 115, 121, 133 Interstate Ry. v. Massachusetts, 210 Irwin v. Dowd, 182

J Jackson v. Bishop, 431 Jacobellis v. Ohio, 112, 117, 122, 128 Jacobson v. Massachusetts, 719 James v. Headley, 337 James v. Valtierra, 770 J. E. B. v. Alabama ex rel. T. B., 689, 704 Jefferson v. Hackney, 753 Jegley v. Picado, 734

Jenkins v. Georgia, 114 “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Massachusetts, 112 Johnson v. Avery, 424 Johnson v. Board of Regents of Univ. of Ga., 554 Johnson v. California, 293, 485, 490, 577 Johnson v. Glick, 430 Johnson v. Louisiana, 380 Johnson v. Major and City Council of Baltimore, 792 Johnson v. McIntosh, 445, 639–641, 643 Johnson v. New Jersey, 350 Johnson v. Robinson, 283 Johnson v. Transportation Agency of Santa Clara County California, 529, 558, 575, 692, 729 Johnson v. Zerbst, 336, 340–341 Jones v. Barnes, 338 Jones v. Clear Creek Independent School Dist., 251 Jones v. Com, 453 Jones v. Mayer, 581 Jones v. Meehan, 651 Jones v. North Carolina Prisoners’ Labor Union, Inc., 428 Jones v. United States, 299, 302 Jonge v. Oregon, 21 Joseph Burstyn, Inc. v. Wilson, 127 Jurek v. Texas, 396n

K Kadrmas v. Dickinson Public Schools, 684, 776 Kahn v. Shervin, 688 Kahn v. Shevin, 690 Kansas v. Hendricks, 423 Karcher v. Daggett, 603 Karcher v. May, 232 Katzenbach v. McClung, 583 Katzenbach v. Morgan, 592 Katz v. United States, 325, 719 Kelly v. Board of Education, 467n Kelly v. Johnson, 724, 727 Kelly v. New Haven, 569 Kentucky v. Stincer, 423 Kent v. United States, 437 Ker v. California, 296 Keyes v. School District No. 1, 468 Keyishian v. Board of Regents of Univ. of State of N. Y., 58, 160, 553, 555 Kimbrough v. United States, 381 Kingsley International Pictures v. Regents of State University of New York, 132–133 King v. Smith, 750 King v. Wiseman, 733 Table of Cases

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Kirby v. Illinois, 337 Kirchberg v. Feinstra, 691 Kirkpatrick v. Preisler, 603 Kirstein v. Rector and Visitors of University of Virginia, 706 Klopfer v. North Carolina, 22, 380–381 Klstad v. American Dental Assn., 576 Knight v. State, 345 Knowles v. Iowa, 322, 326 Kolender v. Lawson, 306 Korematsu v. United States, 758 Kovacs v. Cooper, 68, 77, 130 Kunz v. New York, 70, 76

L Labor Board v. Fruit Packers, 61 Lafleur v. Cleveland Board of Education, 688 Lamb’s Chapel v. Center Moriches Union Free School District, 231 Lamie v. United States Truste, 667 Landgraf v. USI Film Products, 4 Landmark Communication, Inc. v. Virginia, 36 Lane v. Sunderland, 297n Lane v. Wilson, 458, 587, 589 Lanzetta v. New Jersey, 85 Larkin v. Grendel’s Den, Inc., 258 Larson v. Valente, 250 Lawrence et al. v. Texas, 731 Lawrence v. Texas, 328, 684, 710, 722, 725 Lawson v. Suwannee Fruit & S. S. Co., 636 League of United Latin American Citizens v. Perry, 611 Ledbetter v. The Goodyear Tire & Rubber Company, Inc., 523 Lee v. Weisman, 204, 217, 232–233, 244–245, 250–251 Lehman v. City of Shaker Hei, 722 Lehman v. Shaker Heights, 130 Lemon v. Kurtzman, 213, 234–235, 249 Lepiscopo v. United States, 424 Lessee of Pollard v. Hagan, 635 Levitt v. Committee for Public Education, 215 Lewis v. City of Chicago, 537 Liberty Lobby, Inc. v. Pearson, 177 Lindh v. Murphy, 787 Lindsey v. Normet, 771 Liquormart, Inc. v. Rhode Island, 152 Lloyd Corporation v. Tanner, 78 Lloyd v. Tanner, 7 Lochner v. New York, 714, 722 Lockett v. Ohio, 380, 396 Lockhart v. McCree, 380 Lone Wolf v. Hitchcock, 649, 651–652 838

Long v. District Court, 424 Lopez v. Monterey County, 605, 616, 633 Lorance v. American Telephone and Telegraph Co., 531 Lorillard v. Pons, 784, 794, 802 Los Angeles v. Lyons, 485 Los Angeles v. Taxpayers for Vincent, 75–76 Louisiana v. United States, 588, 707 Lovell v. Griffin, 76, 181–182 Loving v. Virginia, 541, 554, 705, 741 Ludwig v. Massachusetts, 377 Luther v. Borden, 620 Lynch v. Donnelly, 204, 245, 247, 250, 252–253 Lyng v. International Union UAW, 776 Lyng v. Northwest Indian Cemetery Protective Association, 274, 678

M Mack v. Russell County Commission, 595 Madsen v. Women’s Health Center Inc., 85, 712 Mahan v. Howell, 603 Maine v. Moulton, 368 Mallard v. United States District Court, 776 Mallory v. United States, 350 Malloy v. Hogan, 22, 349, 423 Manual Enterprises v. Day, 112 Mapp v. Ohio, 22, 295–297, 349, 715 Marbury v. Madison, 3, 13, 715 Marks v. United States, 552, 791 Marshall in Marbury v. Madison, 641 Marshall v. Barlow, 309n Marsh v. Alabama, 78 Marsh v. Alabama and Logan Valley, 78 Marsh v. Chambers, 234, 250, 252, 257 Martin v. Struthers, 77, 723 Martin v. Wilks, 531 Maryland v. Buie, 327 Maryland v. Wilson, 310 Massachusetts Board of Retirement v. Murgia, 783, 792 Massachusetts v. New York, 662 Massachusetts v. Sheppard, 303 Massachusetts v. Upton, 303n Massiah v. United States, 368 Masson v. New Yorker Magazine, Inc., 189 Mathis v. United States, 357, 368 Mattz v. Arnett, 652 Maxwell v. Bishop, 380 McCain v. Lybrand, 626 McCleskey v. Kemp, 377, 395, 397, 406 McCleskey v. Zant, 400, 408 McCollum v. Champaign Board of Education, 208 McConnell v. Federal Election Commission, 155

Table of Cases

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

McCreary County Kentucky v. ACLU, 259 McCulloch v. Maryland, 13, 601, 641 McDaniel v. Brown, 311 McDonald v. Chicago, 22 McDonald v. Santa Fe Trail Transportation Co., 541 McDonnell Douglas Corp. v. Green, 520, 571, 575, 789, 794 McDonnell Douglas v. Green/Burdine Formula, 794 McFarland v. Jefferson Cty. Public Schools, 484 McGautha v. California, 395 McGowan v. Maryland, 140, 255, 258 McKeiver v. Pennsylvania, 434 McKinney v. Walker, 386 McLaurin v. Oklahoma State Regents for Higher Ed., 460, 462, 504 McMann v. Richardson, 338, 347 McNabb v. United States, 350 McNeil v. Wisconsin, 358n, 360 Meacham v. Knolls Atomic Power Laboratory, 790 Meachum v. Fano, 425 Meek v. Pittenger, 214 Memoirs v. Massachusetts, 116–117, 122–123 Memorial Hospital v. Maricopa County, 751 Mempa v. Rhay, 428 Menominee Tribe of Indians v. United States, 650 Meritor Savings Bank FSB v. Vinson, 729 Metro Broadcasting, Inc. v. FCC, 516, 560 Metropolitan County Board of Education of Nashville v. Kelley, 472 Metro Broadcasting, Inc. v. FCC, 486 Meyer v. Holley, 582 Meyer v. Nebraska, 158–159, 714, 719, 732 Miami Herald Publishing Co. v. Tornillo, 127, 179 Michael M. v. Superior Court of Sonoma County, 684, 691 Michigan Department of State Police v. Sitz, 307, 311–312, 316 Michigan v. DeFillippo, 306, 321 Michigan v. Jackson, 358n Michigan v. Long, 24, 306, 329 Michigan v. Mosley, 358 Michigan v. Tucker, 358 Michigan v. Tyler, 309n Michigan v. Wisconsin, 662 Miller-El v. Cockrell, 389 Miller-El v. Dretke, 389–390, 392, 394 Miller v. Albright, 684, 693 Miller v. California, 105, 108, 111, 113, 115, 120, 122–123, 128, 149 Miller v. Johnson, 487, 505, 571, 604, 608, 634–635 Milliken v. Bradley, 470, 485, 493, 504, 707

Mills v. Maryland, 421 Mincey v. Arizona, 328 Minersville School Dist. Bd. of Educ. v. Gobitis, 262, 277, 280 Minneapolis Star v. Commissioner of Revenue, 182 Minnesota v. Mille Lacs Band of Chippewa Indians, 653 Minnesota v. Murphy, 358 Minnick v. Mississippi, 358n Minor v. Board of Education of Cincinnati, 225 Miranda in New York v. Quarles, 359 Miranda North Carolina v. Butler, 359 Miranda v. Arizona, 51, 331, 336, 349–351, 357, 362, 365–367, 439 Mishkin v. New York, 117 Mississippi University for Women v. Hogan, 684, 689, 692 Missouri ex rel. Gaines v. Canada, 460 Missouri v. Jenkins, 473, 749, 777 Mitchell v. Helms, 216 Mitchell v. W. T. Grant Co., 773 Monroe v. Collins, 453 Montana v. Blackfeet Tribe, 674 Montana v. Kennedy, 670 Montana v. United States, 652 Moore v. East Cleveland, 132, 724 Moran v. Burbine, 359 Morgan v. Illinois, 380 Morgan v. Virginia, 457–458 Morrissey v. Brewer, 428 Morse v. Frederick, 108, 156–157 Morton v. Mancari, 650, 652, 674 Mueller v. Allen, 215, 250 Muller v. Oregon, 684, 687 Murdock v. Pennsylvania, 210, 261, 277 Murphy v. Waterfront Commission of New York Harbor, 349 Murray v. Curlett, 218, 223 Murray v. United States, 304 Myers v. United States, 715

N NAACP v. Alabama, 715, 759 NAACP v. Button, 193, 714 NAACP v. Claiborne, 197 NAACP v. Hampton County Election Comm’n, 634 Narragansett Indian Tribe v. Narragansett Elec. Co., 666 National Association for the Advancement of Colored People v. Alabama, 169, 196–198 National Organization for Women Inc. v. Scheidle, 712 National Socialist Party of America v. Skokie, 66 Nationwide Mut. Ins. Co. v. Darden, 673 Table of Cases

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Navajo Tribe of Indians v. New Mexico, 661 Near v. Minnesota, 21, 170, 172, 175–178, 186 Nebraska Press Association v. Stuart, 182–183, 185 Negre v. Larsen, 283 Newberry Area Council v. Board of Education of Jefferson County, Kentucky, 470 Newberry v. United States, 458 Newburg Area Council, Inc. v. Board of Ed. of Jefferson Cty, 483 New Jersey v. T.L.O., 308 Newport News Shipbuilding & Dry Dock Co. v. EEOC, 729 Newport News Shipbuilding v. EEOC, 691 New York ex. rel. Bryant v. Zimmerman, 201 New York State Club Association, Inc. v. City of New York, 198 New York Times v. Sullivan, 80, 169, 172, 185–189, 724 New York Times v. United States, 169–170 New York Trust Co. v. Eisner, 96, 241 New York v. Belton, 308, 323, 325, 329–330 New York v. Burger, 309 New York v. Ferber, 102, 115 New York v. Quarles, 336, 357, 361 Nichols v. United States, 554 Niemotko v. Maryland, 70, 76, 99 Nixon v. Herndon, 587 Nixon v. Warner Communications, Inc., 184 Nix v. Williams, 303 Norris v. Alabama, 378 North Carolina State Board of Education v. Swann, 469, 493, 500 Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 484 Northwest Austin Municipal Util. Dist. No. One v. Holder, 585, 616, 626, 632 Northwest Austin Municipal Util. Dist. No. One v. Mukasey, 634 Noto v. United States, 58, 60 N.O. & T.R. Co. v. Mississippi, 452 Novak v. Beto, 424n

O O’Brien and Bowers v. Hardwick, 141 O’Connor v. Consolidated Coin Caterers Corp., 782, 794 Ohio v. Kentucky, 662 Oklahoma City Public Schools v. Dowd, 617 Olim v. Wakinekona, 425 Oliphant v. Suquamish Indian Tribe, 675 Olmstead v. U.S., 727 Oncale v. Sundowner Offshore Services Inc., 684, 710, 722, 725, 729 840

Oneida Indian Nation of N. Y. v. County of Oneida, 657 Oneida Nation of N. Y. v. United States, 658 Oregon v. Elstad, 359 Oregon v. Hass, 358, 373n Oregon v. Mathiason, 358 Oregon v. Mitchell, 604 Organization for a Better Austin v. Keefe, 66, 170, 175 Orozco v. Texas, 357 Orr v. Orr, 684, 689 Ortwein v. Schwab, 772 Osborne v. Ohio, 114

P Pacific Gas and Electric Co. v. Public Utilities Commission of California, 153 Palko v. Connecticut, 21, 32, 298, 341, 343, 719 Palmore v. Sidoti, 560 Parents Involved in Community Schools v. Seattle School District No. 1, 466, 472, 476, 482–483 Paris Adult Theater v. Slaton, 118 Paris Adult Theatre I v. Slayton, 108, 111, 113, 118, 130, 136, 139 Pasadena City Board of Education v. Spangler, 472, 479 Patterson v. McLean Credit Union, 523 Payne v. Tennessee, 8, 329, 331, 377, 395, 399, 415, 736 Payton v. New York, 305, 319 Pearson v. Murray, 459 Pennekamp v. Florida, 182 Pennsylvania v. Mimms, 310 Pennsylvania v. Schempp, 204 Penry v. Lynaugh, 399 People v. Dean, 453 People v. Defore, 299 People v. Disrow, 17n People v. Ibarra, 338 People v. Kevorkian, 741 Perkins v. Matthews, 592 Perry Education Assn. v. Perry Local Educators Assn, 75, 245 Personnel Administrator of Massachusetts v. Feeney, 570, 576, 623, 684, 702 Peters v. Kiff, 378 Peter v. United States, 282 Philko Aviation Inc. v. Shacket, 636 Phillips v. Martin Marietta Corp., 702 Pierce v. Society of Sisters, 131, 212, 269, 272, 274, 277, 714, 719, 732, 741 Pierce v. United States, 59–60 Planned Parenthood Assn. of Kansas City v. Ashcroft, 712 Planned Parenthood of Southeastern Pennsylvania v. Casey, 684, 712, 735

Table of Cases

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Plessy v. Ferguson, 414, 443, 446, 449, 451, 458, 461–463, 491, 548, 739 Plyler v. Doe, 556, 739 Pointer in Washington v. Texas, 423 Pointer v. Texas, 22, 423 Police Department of the City of Chicago v. Mosley, 84, 105 Polk County v. Dodson, 373 Pope v. Blue, 622 Pope v. Illinois, 114, 149 Porter v. Ascension Parish School Bd., 163 Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico, 152 Postal Service Bd. of Governors v. Aikens, 791 Post v. State, 734 Poulos v. New Hampshire, 76 Powell v. Alabama, 336–337, 341–342 Powell v. McCormack, 703 Powers v. Ohio, 379 Presley v. Etowah County Commission, 595 Press–Enterprise Co. v. Superior Ct., 184 Preston v. United States, 325 Price Waterhouse v. Hopkins, 522, 785 Prigg v. The Commonwealth of Pennsylvania, 447 Prince v. Massachusetts, 128, 160, 272, 274, 719 Procunier v. Martinez, 424 Profit v. Florida, 396n PruneYard Shopping Center v. Robins, 79 Public Employees Retirement System of Ohio v. Betts, 784 Public Utilities Commission v. Pollak, 715, 722, 727 Pugsley v. Sellmeyer, 158 Pulley v. Harris, 397 Pullman-Standard v. Swint, 577 Puyallup Tribe of Indians v. Port of Tacoma, 653 Puyallup Tribe v. Department of Game, 653

Q Quoting Richmond v. J. A. Croson Co., 576

R Railway Express Agency Inc. v. New York, 739 Rakas v. Illinois, 302 R.A.V. v. St. Paul, Minnesota, 32, 86, 88, 98 Rawlings v. Kentucky, 303 Rea v. United States, 299 Red Lion Broadcasting Co. v. FCC, 126–127, 148, 179 Redrup v. New York, 122 Reed v. Reed, 684, 687, 698, 704, 707 Reeves v. Sanderson Plumbing Products Inc., 789 Regents of the University of California v. Bakke, 511, 514, 527, 537

Regents of Univ. of Cal. v. Bakke, 492–493 Regina v. Hicklin, 111 Reid v. Georgia, 306 Reiter v. Sonotone Corp., 668 Reitman v. Mulkey, 580 Relying on United States v. Swift & Co., 478 Reno v. American Civil Liberties Union, 108, 143–144, 180 Reno v. Bossier Parish School Board, 605 Reno v. Flores, 741 Renton v. Playtime Theatres, Inc., 136, 143, 146 Reynolds v. United States, 261 Rhode Island v. Innis, 359, 365 Rhodes v. Chapman, 426, 430 Ricci v. DeStefano, 514, 518, 520, 527, 533–534, 561 Rice v. Cayetano, 489 Rice v. Elmore, 459, 588 Rice v. Sioux City Memorial Park Cemetery Inc., 678 Richmond Newspapers, Inc. v. Virginia, 184 Richmond v. J. A. Croson Co., 490, 555, 557, 559–560, 623 Riddick v. School Board of City of Norfolk, 472, 478 Rideau v. Louisiana, 183 Riley v. Kennedy, 632 Ristaino v. Ross, 378 Robbins v. California, 308, 328n Roberts and Board of Directors of Rotary International v. Rotary Club, 198 Roberts v. Boston, 452 Roberts v. U.S. Jaycees, 198 Robinson v. California, 22 Robinson v. DiCenso of Rhode Island, 213 Robinson v. Lorillard Corp., 578 Robinson v. Shell Oil Company, 522 Rochin v. California, 741 Roemer v. Board of Public Works of Maryland, 217 Roe v. Wade, 155, 684, 710–712, 717 Rogers v. Herman Lodge, 593 Rogers v. Paul, 467 Romer v. Evans, 684, 725, 736, 738–739 Roper v. Simmons, 435 Rosebud Sioux Tribe v. Kneip, 652, 661 Rosenberger v. Rector of the University of Virginia, 231, 245 Rosenblatt v. Baer, 187 Rosenbloom v. Metromedia, Inc., 187 Rosenfeld v. New Jersey, 129 Ross v. Moffit, 338 Rostker v. Goldberg, 635, 684, 686, 691, 699 Roth v. United States, 102, 111, 116–117, 121–122, 127, 136 Table of Cases

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Rowan v. Post Office Dept., 127, 129 Rowan v. United States Post Office Department, 723 Runyon v. McCrary, 516, 541 Rust v. Sullivan, 8, 712

S Sable Communications of California, Inc. v. FCC, 142, 148, 150 Saenz v. Roe, 684, 751 Saia v. New York, 77 Sailors v. Board of Education of Kent County, 603 San Antonio Independent School District v. Rodriguez, 17, 519, 684, 743, 748, 760–761, 783 Santa Clara Pueblo v. Martinez, 650, 667 Santa Fe Independent School District v. Doe, 204, 217, 232, 243 Scales v. United States, 60 Schad et al. v. Borough of Mount Ephraim, 134–135, 142 Schaefer v. United States, 59 Schall v. Martin, 422, 435 Schenck v. Pro-Choice Network of Western New York, 85, 712 Schenck v. United States, 32, 34–35, 37, 39, 45, 48, 59, 102, 127, 172, 178 Schlesinger v. Ballard, 688, 690 Schmerber v. California, 349, 727 Schneider v. Rusk, 757 Schneider v. State, 68 School Board of Nassau County Florida v. Arline, 796, 804 School Comm. of Springfield v. Board of Ed., 501 School District of Abington Township, Pennsylvania v. Schempp, 204, 209, 217–218, 223 Schware v. Board of Bar Examiners, 714 Scott v. Harris, 310 Scott v. Illinois, 337 Serrano v. Priest II, 17n Shapiro v. Thompson, 684, 748, 750–751, 754, 775 Shaw v. Hunt, 557, 604 Shaw v. Reno, 444, 488, 585, 604, 621 Sheet Metal Workers v. Equal Employment Opportunity Commission, 529, 557–558 Shelley v. Kraemer, 457, 540, 580 Shelton v. Tucker, 160, 197, 555 Sheppard v. Maxwell, 183 Sherbert v. Verner, 261–263, 276–277, 282–283 Shuttlesworth v. Birmingham Board of Education, 467 Sibron v. New York, 305 Sifuentes v. United States, 307 Simmons v. South Carolina, 399 Simon & Schuster, Inc. v. New York Crime Victims Board, 103 842

Singer v. Hara, 728 Sipuel v. Board of Regents of University of Oklahoma, 460, 462 Skidmore v. Swift & Co., 802 Skinner v. Oklahoma, 719 Skinner v. Oklahoma ex rel. Williamson, 741 Sloan v. Lemon, 214 Smith v. Allwright, 458, 588 Smith v. Bennett, 424 Smith v. California, 85, 194 Smith v. City of Jackson, 790 Smith v. Doe, 736 Smith v. Salt River Project Agricultural Improvement and Power Dist., 636 Smith v. University of Wash. Law School, 552 Sniadach v. Family Finance Corporation, 772 Snyder v. Louisiana, 293, 377, 379, 388 Snyder v. Massachusetts, 419 Solem v. Bartlett, 663 South Carolina v. Gathers, 399, 415, 417 South Carolina v. Katzenbach, 585, 591–592, 597 South Central Bell Telephone Co. v. Alabama, 788 South Dakota v. Neville, 350 South Dakota v. Opperman, 307 Southeastern Community College v. Davis, 796 Southeastern Promotions, Ltd. v. Conrad, 148 Spallone v. United States, 749, 777 Spangler v. Pasadena City Board of Education, 478 Spano v. New York, 349 Spaziano v. Florida, 396 Speiser v. Randall, 61, 121, 264 Spence v. Washington, 87, 139 Spinelli v. United States, 296 Splawn v. California, 112 Stack v. Boyle, 422 Stanford v. Kentucky, 400, 435 Stanislaus Roberts v. Louisiana, 396n Stanley v. Georgia, 114, 120, 130, 141, 719, 723, 727 Stansbury v. California, 361 Stanton v. Stanton, 687 State Bank v. Haskell, 119 State ex rel. Citizens Against Mandatory Bussing v. Brooks, 501 State of Missouri ex. rel. Gaines v. Canada, 462 States v. Henry, 368 States v. Rabinowitz, 299 States v. Seeger, 284 States v. Tejada, 333 States v. United States Gypsum Co., 393 State v. Baysinger, 141 State v. Belton, 325

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

State v. Chavers, 453 State v. Gibson, 452 State v. Kaluna, 17n State v. Morales, 735, 738–739 State v. Snyder, 389 Staub v. Baxley, 76 Steagold v. United States, 305 Stein v. Oshinsky, 228 Stein v. Plainwell Community Schools, 234 Stenberg v. Carhart, 684, 713 St. Mary’s Honor Center v. Hicks, 532, 794–795 Stone v. Graham, 255 Stone v. Powell, 302 Strauder v. West Virginia, 378, 382, 452, 502, 541 Street v. New York, 87, 111 Strickland v. Washington, 336, 339, 343, 749 Stromberg v. California, 58, 73, 139, 158 Strunk v. United States, 381 Sullivan v. Little Hunting Park, Inc., 523 Swain v. Alabama, 378, 382, 387 Swann v. Charlotte-Mecklenburg Board of Education, 469, 494 Sweatt v. Painter, 460, 462, 504, 544, 556–557, 708 Sweezy v. New Hampshire, 555

T Talton v. Mayes, 676 Taylor v. Louisiana, 378, 689 Teamsters v. United States, 520, 795 Tee-Hei-Ton Indians v. United States, 650 Teitel Film Corporation v. Cusak, 133 Tennessee v. Garner, 308 Terminiello v. Chicago, 63, 72, 123, 159 Terry v. Adams, 459, 588 Terry v. Ohio, 305, 327, 719 Texas Department of Community Affairs v. Burdine, 521, 789, 794–795 Texas Monthly v. Bullock, 259 Texas v. Brown, 308 Texas v. Johnson, 32, 86–87, 92, 98, 139, 142, 166 Texas v. White, 635 Thomas v. Collins, 167, 265 Thomas v. Review Board, Indiana Employment Security Div., 263, 276 Thompson v. Keohane, 361 Thompson v. Oklahoma, 400 Thornburgh v. American College of Obstetricians and Gynecologists, 712 Thornburg v. Gingles, 594, 606, 613–614 Thornhill v. Alabama, 75, 158 Thornton v. United States, 323, 329–330

Tilton v. Richardson, 214, 217 Time Inc. v. Hill, 724, 727 Times Film Corporation v. City of Chicago, 133 Time v. Firestone, 188 Tinker v. Des Moines Independent Community School District, 108, 139, 156–157, 162, 164 Tison v. Arizona, 398 Toledo Newspaper Co. v. United States, 44 Tometz v. Board of Ed., 501 Trans World Airlines, Inc. v. Hardison, 267 Trans World Airlines Inc. v. Thruston, 792 Trop v. Dulles, 403, 703 Trupiano v. United States, 306 Turner Broadcast System, Inc. v. FCC, 148, 180 Turner v. Murray, 378 Turner v. Safley, 426 Twining v. New Jersey, 349 Tyler v. Bethlehem Steel Corp., 788

U United Airlines Inc. v. McMann, 784 United Jewish Organizations of Williamsburgh Inc. v. Carey, 595, 625 United Jewish Organizations v. Carey, 542–543 United States Department of Transportation v. Paralyzed Veterans of America, 796 United States Steelworkers of America v. Weber, 528 United States v. Abdul-Saboor, 333 United States v. Albertini, 139 United States v. Antelope, 675 United States v. Ash, 337 United States v. Biswell, 309n United States v. Brignoni Ponce, 307 United States v. Calandra, 301 United States v. Caldwel, 185 United States v. Carolene Products Co., 519, 540, 678 United States v. Carter, 386 United States v. Ceccolini, 302 United States v. Chadwick, 308 United States v. Chicago Board of Education, 471 United States v. Classic, 458, 587 United States v. Concentrated Phosphate Export Assn., Inc., 485 United States v. Cronic, 339 United States v. Cruikshank, 449 United States v. Dennis, 60 United States v. Di Re, 319, 322 United States v. Eichman, 88, 139 United States v. Fordice, 466, 510 United States v. 12 200-Ft. Reels of Film, 114, 129 United States v. Grace, 74, 142 Table of Cases

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Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

United States v. Guest, 755 United States v. Hayes, 637 United States v. Henry, 370 United States v. Hensley, 306 United States v. Jackson, 755 United States v. Jefferson County Board of Education, 467 United States v. Johns, 308 United States v. Kagama, 649, 675 United States v. Knotts, 309n United States v. Kokinda, 76 United States v. Kras, 772 United States v. Lane, 390 United States v. Lee, 274 United States v. Lefkowitz, 305 United States v. Leon, 303 United States v. Louisiana, 635 United States v. MacDonald, 381 United States v. Mandujano, 358 United States v. Martin-Fuerte, 307 United States v. Martinez-Fuerte, 311, 316 United States v. McBratney, 674 United States v. McDaniels, 386 United States v. Mead Corp., 670 United States v. Mendenhall, 306 United States v. Mississippi, 588 United States v. Montoya de Hernandez, 312 United States v. Navajo Nation, 654 United States v. Nice, 667 United States v. Northwest Louisiana Restaurant Club, 583 United States v. O’Brien, 32, 61, 86, 89, 93, 136, 140 United States v. Oneida Nation of N. Y., 659 United States v. Orito, 114 United States v. Paradise, 529 United States v. Paramount Pictures, Inc., 132 United States v. Payner, 303n United States v. Place, 313 United States v. Rabinowitz, 305, 332 United States v. Raines, 591 United States v. Reidel, 114 United States v. Reynolds, 178 United States v. Robel, 58, 703 United States v. Robinson, 306, 322, 325 United States v. Ross, 308, 327 United States v. Salerno, 422 United States v. Salvucci, 302 United States v. Sandoval, 673 United States v. Scotland Neck City Board of Education, 469 United States v. Seeger, 282, 286, 288 United States v. Sheffield Bd. of Comm’rs, 634 United States v. Sioux Nation, 652 844

United States v. Thirty-Seven Photographs, 114 United States v. Thomas, 591 United States v. Uvalde Consol. Independent School Dist., 636 United States v. Vasquez-Lopez, 390 United States v. Virginia, 684, 686, 692, 703 United States v. Wade, 337 United States v. Watson, 319 United States v. Wheeler, 650, 675–676 United States v. Winans, 651 U.S. A. Inc. v. Natural Resources Defense Council Inc., 670 U.S. v. American Library Association, 144 U.S. v. Antelope, 675 U.S. v. Booker, 381 U.S. v. Reese, 449 Uvalde Consol. Independent School Dist. v. United States, 636

V Vacco v. Quill, 726, 741 Valentine v. Chrestensen, 151, 192 Vale v. Louisiana, 305 Van Orden v. Perry, 259 Vermont v. Brillon, 336, 339, 357, 361, 371 Vernonia School District 47J v. Acton, 726 Veronica School District v. Wayne Action, 684 Vieth v. Jubelirer, 610 Vignera v. New York, 351, 355, 357 Village of Arlington Heights Illinois v. Metropolitan Housing Development Corp., 581 Village of Belle Terre v. Boraas, 724 Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 100, 152, 723 Virginia v. Black, 89, 164 Virginia v. Moore, 295, 301, 318, 329 Visser v. Packer Engineering Associates, 788 Vitek v. Jones, 425 Vulcan Pioneers Inc. v. New Jersey Dept. of Civil Serv., 578

W Wagner v. Baird, 662 Wainwright v. Witt, 380, 390 Walker v. Birmingham, 66 Wallace v. Jaffree, 232, 238, 249 Walters v. Metropolitan Educational Enterprises, 522 Walz v. Tax Commission, 214, 238 Walz v. Tax Commission of City of New York, 242, 259 Wards Cove Packing Co. v. Atonio, 516, 536, 574–575, 790 Ward v. Rock Against Racism, 77, 99, 136

Table of Cases

Civil Liberties and the Constitution: Cases and Commentaries, 9th Edition by Lucius J. Barker, Michael W. Combs, Kevin L. Lyles, H.W. L. Perry Jr, and Twiley Barker. Published by Longman. Copyright © 2011 by Pearson Education.

Washington v. Davis, 520, 576 Washington v. Glucks, 726 Washington v. Glucksberg, 684, 710, 722, 740 Washington v. Seattle School District No