Bias Claims Get Same 5-4 Answer From Justices: No

On matters of job discrimination and civil rights, the U.S. Supreme Court has built a record of remarkable consistency over the last two years.

In seven recent rulings, all decided by the same 5-4 margin, the court has rejected discrimination claims and narrowed the scope of civil rights law.

The claims have come from African Americans, Latinos, women, gay men, older workers and people with disabilities.

Some of the decisions--including last week’s ruling in an Alabama case that trimmed part of the landmark 1964 Civil Rights Act--invoke states’ rights as the basis for rejecting a federal civil rights claim. Others use federal law to overturn civil rights claims brought under state law. In another ruling, the court said that Congress did not have the power to protect bias victims from private violence.

Despite these differing rationales, the outcome was the same in all the cases: The discrimination victim lost. None of the decisions is sweeping in its effect, but together they have limited enforcement of civil rights across the board.

Two California law professors, one conservative and one liberal, agreed that the court has consistently rejected civil rights claims of late but they differ on the significance of its decisions.

“Clearly, this court feels some civil rights litigation has gone too far,” said UC Berkeley law professor John C. Yoo, formerly a clerk to conservative Justice Clarence Thomas. “But a lot of decisions are incremental and at the margins. They are just insulating the states from paying damages.” He said the stakes will be much higher next term when the court hears a challenge to federal affirmative action.

Erwin Chemerinsky, a liberal law professor at USC, said the court seems determined to chip away at civil rights. “With regard to every federal civil rights law, we have seen a substantial narrowing. And I don’t think we’re done. This is just a signal of where they are headed.”

Indeed, the Rehnquist Court has become a mirror image of the Warren Court of the 1960s.

Then, the liberal court allied itself with civil rights advocates and intervened repeatedly in the Southern states to enforce guarantees of equality under the law.

These days, the court has been moving energetically to revive the notion of states’ rights and to shield the Southern states from civil rights claims.

As if to symbolize the change, the state of Alabama already has won two major victories in civil rights cases this year.

In the first, lawyers for the state went to the high court arguing that Alabama had a “sovereign immunity” that shielded it from the Americans With Disabilities Act.

The state had been sued by two of its employees. Patricia Garrett, a nursing supervisor, was demoted after she was diagnosed with breast cancer. Milton Ash, a prison guard with asthma, asked to be reassigned to an area where smoking was prohibited. His supervisor refused.

The case, Alabama vs. Garrett, raised the broader question of whether state agencies could discriminate against people with disabilities.

The Constitution says no state may “deny to any person the equal protection of the laws.” The Americans With Disabilities Act is more specific, forbidding employers from discriminating against people with disabilities. And another section of the Constitution says “the laws of the United States shall be the supreme law of the land . . . the laws of any state to the contrary notwithstanding.”

But the high court rejected these bases for upholding the federal antidiscrimination law. Instead, it focused on the 11th Amendment, which says, “The Judicial power of the United States shall not be construed to extend to any suit . . . commenced or prosecuted against one of the United States by Citizens of another State or . . . any Foreign State.”

By its language, this amendment, adopted in 1794 to cope with suits over debts from the Revolutionary War, would seem inapt, since Garrett and Ash are citizens of Alabama. Nonetheless, Chief Justice William H. Rehnquist, speaking for the court, said the amendment stands for the principle of “state sovereign immunity” from federal lawsuits.

On Feb. 21, the court ruled for Alabama and threw out the claims brought by Garrett and Ash. “States are not required . . . to make special accommodations for the disabled,” Rehnquist said. “They could quite hardheadedly--and perhaps hardheartedly--hold to job qualification requirements which do not make allowance for the disabled,” he said. His opinion was joined by Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Thomas.

A year earlier, the court had handed down a nearly identical decision involving older workers. A Florida State University physics professor, J. Daniel Kimel, had filed an age bias suit against the university. The justices did not consider the merits of his claim. Instead, in Kimel vs. Florida, the 5-4 majority said that the states are shielded from federal age-discrimination claims.

The two rulings affect the nearly 5 million state government employees across the nation.

Last week, Alabama also prevailed in a case that tested the reach of the Civil Rights Act. From the outset, Justice Department lawyers had said the law bars agencies that get federal funds from adopting policies that “have the effect of subjecting individuals to discrimination” because of race or national origin.

Alabama had been sued on behalf of Martha Sandoval and other Spanish-speaking residents who protested the state’s switch to offering driver’s exams in English only. After the state lost in two lower courts, its lawyers asked the high court to change the law.

Jeffrey S. Sutton, the former Scalia clerk hired by the state to argue its case, described Alabama as a “co-equal sovereign” with the United States. As an equal partner, the state should not be subjected to discrimination suits brought under federal law, he said.

Tuesday’s decision in Alexander vs. Sandoval was written by Scalia. He said the civil rights law covers only “intentional” discrimination, not policies, such as the English-only driver’s exam, that have a harsher effect on racial or ethnic minorities.

States that adopt liberal civil rights laws have not fared well in the Rehnquist Court.

New Jersey’s civil rights law, unlike federal measures, forbids discrimination based on a person’s sexual orientation. So when James Dale, an openly gay Scoutmaster, was kicked out by the Boy Scouts, he sued and won in the state courts. But last year, the Supreme Court took up the appeal from the Scouts and overruled the New Jersey courts (Boy Scouts vs. Dale).

California also has antidiscrimination laws that are broader than the federal laws. Gays and lesbians who say they are victims of job discrimination can sue their employers and get a jury trial, for example.

In 1997, St. Clair Adams, a computer salesman, sued Circuit City Stores in a California Superior Court asserting that he had been forced out of his job at a store in Napa because of harassment. He is gay.

His employer appealed to the high court, and, on a 5-4 vote, the justices said the Federal Arbitration Act of 1925 trumps the California law. Because the employee had signed an agreement promising to arbitrate disputes, he could be barred from going to court, the court ruled March 21 (Circuit City vs. Adams).

Even when state officials have championed strong federal civil rights measures, they have been rebuffed in the high court.

In 1994, Congress passed the Violence Against Women Act and gave victims of sexual assaults a right to sue their attackers in federal court. All people have a “right to be free of gender-motivated violence,” the law says.

A test case arose when Christy Brzonkala, a Virginia Tech student, sued football star Antonio Morrison, who allegedly raped her in a dormitory. The attorneys general from California and 37 other states filed a brief endorsing the law, saying it gave them another weapon against sexual violence. Only Alabama’s attorney general filed a brief opposing the law.

By a 5-4 vote, the Supreme Court ruled last year that Congress had no power to regulate “purely private” acts of violence that do not cross state lines (U.S. vs. Morrison). “It is not the least irony of these cases that the states will be forced to enjoy this new federalism whether they want it or not,” Justice David H. Souter said in dissent.

To be sure, some kinds of discrimination claims have fared well in recent years. In a series of sexual harassment cases, the justices have sided with victims. For example, O’Connor joined with the four liberal justices in June 1999 to rule that school officials can be sued when they know a student is being sexually abused in school and do not act to stop it.

O’Connor also joined the liberal bloc two weeks ago to uphold a North Carolina congressional district that favors a black Democrat.

Heading into this term’s final two months, only one more discrimination case is awaiting a decision: disabled golfer Casey Martin’s challenge to the PGA Tour rule that forbids the use of electric golf carts.

In the fall, the court will take up two potentially far-reaching civil rights issues. In a case that tests the constitutionality of federal affirmative action, a white contractor from Colorado is opposing a program that gives an edge to businesses owned by blacks, Latinos and other minorities (Adarand Constructors vs. Mineta).

The second case seeks to clarify what is a disability under federal law. Toyota Motors is arguing that an assembly line worker who develops carpal tunnel syndrome does not have a true disability and, therefore, is not protected from being fired (Toyota vs. Williams).