equal protection clause

Alexander v. South Carolina NAACP

Issues

Did the South Carolina redistricting process violate the Equal Protection Clause in setting a racial target in the design process for one of its districts?

This case asks the Supreme Court to determine whether the district court panel erred in ruling that South Carolina’s Congressional District 1 (“CD1”) was a racial gerrymander prohibited by the Equal Protection Clause of the Fourteenth Amendment. Appellee the South Carolina State Conference of the NAACP (“the NAACP”) asserts that the panel correctly found that the redistricting board set a 17% black voting age population (“BVAP”) target for their new map of CD1 to create a partisan tilt favoring Republican candidates. Appellant Thomas Alexander (“Alexander”) asserts that racial data was not a factor in the redistricting process and that, instead, the designers of CD1 relied on political data, mainly the precinct-level voting patterns from the 2020 election. Thus, Alexander argues that CD1 does not violate equal protection jurisprudence which permits a political, but not racial, gerrymander. Because of the small majority the Republican Party holds in the US House of Representatives, this case has the potential to have a major shift on both South Carolina’s congressional delegation, but also the political tilt of the House as a whole.

Questions as Framed for the Court by the Parties

(1) Whether the district court erred when it failed to apply the presumption of good faith and to holistically analyze South Carolina Congressional District 1 and the South Carolina General Assembly’s intent;

(2) whether the district court erred in failing to enforce the alternative-map requirement in this circumstantial case;

(3) whether the district court erred when it failed to disentangle race from politics;

(4) whether the district court erred in finding racial predominance when it never analyzed District 1’s compliance with traditional districting principles;

(5) whether the district court clearly erred in finding that the General Assembly used a racial target as a proxy for politics when the record showed only that the General Assembly was aware of race, that race and politics are highly correlated, and that the General Assembly drew districts based on election data; and

(6) whether the district court erred in upholding the intentional-discrimination claim when it never even considered whether—let alone found that—District 1 has a discriminatory effect.

In 2022, the South Carolina Senate adopted a reapportionment plan (“Senate Plan”) to redesign the congressional districts.  South Carolina State Conf. of the NAACP v Alexander at 6-7.  Although Congressional districts should have almost equal population, Congressional District No.

Additional Resources

  • Zack Montellaro, Supreme Court to hear racial redistricting case from South Carolina, Politico (May 15, 2023).
  • Caitlin Byrd, Federal judges strike down SC’s 1st Congressional District as racial gerrymandering, The Post and Courier (Jan. 6, 2023).
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Bethune-Hill v. Virginia State Board of Elections, et al.

Issues

Does a state board of elections violate the Equal Protection Clause if it uses a one-size-fits-all black voting age population floor as part of its redistricting process in an effort to comply with the Voting Rights Act?

This case gives the Supreme Court the opportunity to determine whether a state’s use of a black voting age population (“BVAP”) floor in crafting new legislative districts is permissible if the state also considers other race-neutral criteria. Appellants, Bethune-Hill et al. (“Bethune-Hill”), argue that the Virginia State Board of Elections’ (“BOE”) use of a 55% BVAP floor violated the Equal Protection Clause because the BOE acknowledged that complying with the racial target was the most important factor in the redistricting process. Bethune-Hill argues that racial targets demean minorities, regardless of whether the state also considers race-neutral factors. Appellees, the BOE, contend that their use of the BVAP floor was a lawful way of complying with the demands of the Voting Rights Act. The BOE claims that the fact that the challenged districts conform to traditional race-neutral redistricting standards illustrates that minority voters were not harmed in the way the Equal Protection Clause contemplates because the state grouped them according to communities of interest, not solely according to their skin color. This case will impact what measures states can take in order to comply with the Voting Rights Act.

Questions as Framed for the Court by the Parties

  1. Did the court below err in holding that race cannot predominate even where it is the most important consideration in drawing a given district unless the use of race results in “actual conflict” with traditional redistricting criteria?
  2. Did the court below err by concluding that the admitted use of a one-size-fits-all 55% black voting age population floor to draw twelve separate House of Delegates districts does not amount to racial predominance and trigger strict scrutiny?
  3. Did the court below err in disregarding the admitted use of race in drawing district lines in favor of examining circumstantial evidence regarding the contours of the districts?
  4. Did the court below err in holding that racial goals must negate all other districting criteria in order for race to predominate?
  5. Did the court below err in concluding that the General Assembly’s predominant use of race in drawing House District 75 was narrowly tailored to serve a compelling government interest?

In anticipation of the 2010 census results, the Virginia General Assembly began preparing to redraw the legislative districts for the Virginia House of Delegates and the Virginia Senate. See Bethune-Hill v. Virginia State Bd. of Elections, No. 3:14-cv-852, at 3 (E.D. Va. Oct. 22, 2015). Delegate Chris Jones, who had been substantially involved in the 2001 redistricting process, led the effort.

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Carson v. Makin

Issues

Can a state restrict students’ access to a state-sponsored financial assistance program when the aid would fund attending private religious schools with religious teaching?

This case asks the Supreme Court to balance state public school funding schemes and First Amendment religious freedoms. Maine enacted a law for School Administrative Units without public secondary schools that allows them to provide tuition assistance for students to attend approved, nonsectarian private schools. Carson, Gillis, and Nelson (collectively “Carson”) contend that the nonsectarian requirement constitutes religious discrimination in violation of the Free Exercise Clause of the First Amendment. Makin, in her official capacity as the Commissioner of the Maine Department of Education, counters that Maine’s public school funding scheme is permissible because its purpose of funding secular public education implicates only religious “use” and not religious “status.” The outcome of this case has heavy implications for religious freedom, state school funding schemes, and accessibility to schooling.

Questions as Framed for the Court by the Parties

Whether a state violates the religion clauses or equal protection clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction.

Maine’s constitution mandates the state legislature to require towns to provide “support and maintenance” of public schools at the towns’ own expenses. Carson v. Makin at 25. To do so, the legislature divided the state into 260 school administrative units (“SAUs”) and required that each SAU “make suitable provisions” to maintain and support public schools. Id. Less than half of the SAUs contain a public secondary school. Id.

Acknowledgments

The authors would like to thank Professor Nelson Tebbe for his guidance and insights into this case.

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equal protection

Fitzgerald v. Barnstable School Committee

Issues

Does Title IX’s implied right of action provide an exclusive remedy for claims of gender discrimination in federally-funded academic institutions, therefore limiting the right to bring a separate claim for a violation of constitutional right to Equal Protection?

 

Lisa and Robert Fitzgerald brought suit against the Barnstable School Committee (“Barnstable”) under both § 1983 and Title IX, claiming the district was deliberately indifferent to their daughter’s claims of sexual harassment by an older student on her school bus. Neither the police nor the school’s own investigation found enough evidence to charge or punish the alleged perpetrator. The federal district court dismissed the Fitzgeralds’ Title IX sexual discrimination claim on summary judgment. The court indicated that because Title IX prescribed the remedy for allegations of sexual discrimination in federally funded educational institutions, it foreclosed a separate § 1983 claim alleging a violation of a constitutional right to Equal Protection. The Fitzgeralds claim there are fundamental differences between the rights of action in § 1983 and Title IX, and that a statute intended to expand rights would never limit a constitutional right of action. Barnstable, however, maintains that Congress’s efforts to pass Title IX represented an entirely separate standard to govern sex discrimination in schools. Women’s rights groups claim that a decision to foreclose liability under § 1983 will make it more difficult to bring claims of sexual discrimination in educational institutions, while Barnstable claims that maintaining both causes of action would overexpose educational institutions to suits for violations committed by individuals, rather than just the institution itself.

Questions as Framed for the Court by the Parties

Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), has been interpreted to provide an implied private right of action for sex discrimination by federally funded educational institutions. Section 1983 of Title 42 of the United States Code creates an express remedy for violations of the U.S. Constitution. Three courts of appeals have held that Title IX’s implied remedy does not foreclose Section 1983 claims to enforce the Constitution’s prohibition against invidious sex discrimination. In contrast, four circuits, including the First Circuit in this case, have held that Title IX’s implied right of action is the exclusive remedy for sex discrimination by federally funded educational institutions.

The question presented is:

Whether Title IX’s implied right of action precludes Section 1983 constitutional claims to remedy sex discrimination by federally funded educational institutions.

After several months of displaying atypical behavior, kindergartner Jacqueline Fitzgerald reported to her parents (the “Fitzgeralds”) in February 2001 that an older student on her school bus was harassing her by forcing her to lift her skirt when she wore dresses. See Fitzgerald v. Barnstable School Committee, 504 F.3d 165, 169 (1st Cir.

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Additional Resources

· U.S. Department of Education—Title IX and Sexual Discrimination http://www.ed.gov/about/offices/list/ocr/docs/tix_dis.html

· Workplace Prof Blog: Another Right Without a Remedy on the Way: Court Grants Cert in the Title IX Preclusion/Peer Sex Harassment Case (June 9, 2008)

· Comment from Lisa and Robert Fitzgerald in The Flat Hat, student newspaper at The College of William & Mary http://flathatnews.com/content/68983/supreme-court-will-hear-title-ix-case

· Criticism of U.S. Supreme Court’s decision to grant certiorari in Fitzgerald v. Barnstable School Committee: http://www.openmarket.org/2008/07/22/fitzgerald-v-barnstable-school-committee-a-stealth-assault-on-the-state-action-doctrine/

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Meredith v. Jefferson County Board of Education,

Issues

Can school districts constitutionally use percentage-based range plans to assign students to public schools based on race in order to capture the benefits of educational diversity?

 

The Jefferson County Public School District in Jefferson County, Kentucky, requires that 15 to 50 percent of all students in each school be African-American. Petitioner Crystal Meredith claims that the district violated the Fourteenth Amendment when it rejected her application to enroll her son at a nearby school on the basis of race. To decide this case, the Supreme Court will have to determine whether racial diversity in K–12 public education is a compelling state interest and whether the district’s racial range mandate is narrowly tailored to further that interest. The decision will determine the extent to which schools are permitted to consider race in school assignment policies.

Questions as Framed for the Court by the Parties

  1. Should Grutter v. Bollinger, 539 U.S. 306 (2003) and Regents of University of California v. Bakke, 438 U.S. 265 (1978) and Gratz v. Bollinger, 539 U.S. 244 (2003) be overturned and/or misapplied by the Respondent, the Jefferson County Board of Education to use race as the sole factor to assign students to the regular (non-traditional) schools in the Jefferson County Public Schools?
  2. Whether the race-conscious Student Assignment Plan with mechanical and inflexible quota systems of not less than 15% nor greater than 50% of African American students without individually or holistic review of any student, meets the Fourteenth Amendment requirement of the use of race which is a compelling interest narrowly tailored with strict scrutiny.
  3. Did the District Court abuse and/or exceed its remedial judicial authority in maintaining desegregative attractiveness in the Public Schools of Jefferson County, Kentucky?

Desegregation of Schools in Jefferson County

The backdrop for this case was set in 1954. In Brown v. Board of Education, 347 U.S. 483 (1954), the Supreme Court mandated the desegregation of public schools. Over subsequent decades, federal courts ordered school districts with institutionalized segregation plans to desegregate through a system of redistricting and busing. See Swann v. Charlotte-Mecklenburg Bd.

Acknowledgments

The authors would like to thank Professors Sherri Lynn Johnson, Trevor Morrison, and Michael Heise for their insights into this case.

The Supreme Court will hear this case in tandem with a companion case, Parents Involved in Community Sch. v. Seattle Sch. District ,  which involves a student assignment plan that uses race as a tiebreaker to balance high schools that differ by more than 15 percent from the racial  make up  of the Seattle public school system.

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Parents Involved in Community Schools v. Seattle School District No. 1*

Issues

Whether a school district’s decision to admit a student to a desegregated high school based on that student’s race, in an effort to achieve a racial balance within the school and therefore foster diversity in the educational setting, violates that student’s Equal Protection rights given by the Fourteenth Amendment.

Seattle School District No. 1 uses an “open choice” plan in which students rank their preferred schools. When a student’s first choice cannot be accommodated, the District uses race as a tiebreaker in order to achieve a desired racial balance in each individual school. Parents Involved in Community Schools, a non-profit organization, argues that the District’s policy amounts to unconstitutional racial balancing under the Supreme Court’s 2003 decisions in Grutter v. Bollinger, 539 U.S. 306 (2003) and Gratz v. Bollinger, 539 U.S. 244 (2003). The District, however, argues that its consideration of race is to further the compelling state interest of achieving the beneficial effects of racial diversity. The Court of Appeals for the Ninth Circuit held that the District had a compelling state interest in achieving the benefits of racial diversity and that its plan was narrowly tailored. The Supreme Court will now review that determination in light of its Equal Protection decisions in Grutter and Gratz and is asked to decide whether racial diversity in high schools is a compelling state interest.

Questions as Framed for the Court by the Parties

  1. How are the Equal Protection rights of public high school students affected by the jurisprudence of Grutter v. Bollinger, 539 U.S. 306 (2003), and Gratz v. Bollinger, 539 U.S. 244 (2003)?
  2. Is racial diversity a compelling interest that can justify the use of race in selecting students for admission to public high schools?
  3. May a school district that is not racially segregated and that normally permits a student to attend any high school of her choosing deny a child admission to her chosen school solely because of her race in an effort to achieve a desired racial balance in particular schools, or does such racial balancing violated the Equal Protection Clause of the Fourteenth Amendment?

This case was brought by a non-profit organization, Parents Involved in Community Schools (“PICS”), representing parents of students in the Seattle School District (“District”) who objected to the school district’s use of race as a tiebreaker for admission to schools as violating the Equal Protection Clause.

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Rucho v. Common Cause

Issues

Do voters targeted by partisan gerrymandering have standing to bring a constitutional claim; is such a claim justiciable, or is it barred by the political question doctrine; and, how would voters then prove a constitutional violation?

In this case, the Supreme Court will determine whether claims of partisan gerrymandering may be heard by the courts, and if so, upon what standards such claims should be evaluated. In 2016, North Carolina adopted a new congressional district map with the express purpose of protecting Republican congressional delegates. Federal district court judges from the Middle District of North Carolina invalidated the map after voters and related groups claimed that the new district map violated voters’ rights under the First Amendment, the Equal Protection Clause, and the Elections Clause. As part of this ruling, the lower court determined that there was an injury sufficient to give the voters standing while also holding that the issue of partisan gerrymandering is not barred from judicial review by the political question doctrine. The case was then appealed directly to the Supreme Court, which will seek to answer the procedural and substantive questions while wrestling with a large body of competing jurisprudence. The decision could potentially open the courts to additional challenges by voters in several states and have implications for the scope of lawful electoral redistricting.

Questions as Framed for the Court by the Parties

  1. Whether plaintiffs have standing to press their partisan gerrymandering claims.
  2. Whether plaintiffs’ partisan gerrymandering claims are justiciable.
  3. Whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.

North Carolina’s congressional redistricting takes place every ten years in a process overseen by both chambers of the state’s General Assembly. Common Cause v. Rucho, 279 F. Supp. 3d 587, 599 (M.D.N.C.

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