Cases by Issue - Sex Discrimination

Jackson v. Birmingham Board of Education - Oral Argument

Fri, 09 Jan 2009 14:49:01 +0000

Case:

Jackson v. Birmingham Board of Education

Media File:

02-1672_20041130-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Walter E. Dellinger, III

Justice Stevens: We'll hear argument in Jackson against the Birmingham Board of Education.

Mr. Dellinger.

Mr. Dellinger: Justice Stevens, and may it please the Court:

Under the decision below, title IX stands alone as the only major civil rights statute that would permit retaliation against those who complain that the law is being violated.

There are at least a half a dozen anti-discrimination laws that do not contain a separate retaliation provision, and every one of them has been found to prohibit retaliation as one kind of discrimination.

There's a reason for that.

Anti-discrimination laws simply can't be effective if threats of retaliation are allowed to chill those who would seek to bring their institutions into compliance.

Justice Kennedy: Of course, the question is whether... that... that may be true, but there would be an administrative remedy.

The question here is a private cause of action for damages.

Mr. Dellinger: That is true, Justice Kennedy.

Justice Kennedy: Even... even assuming the... the validity of your premise, you still have another step.

Mr. Dellinger: I understand that other step, and I think that was largely resolved in Cannon v. the City of Chicago, a decision which this Court upheld a right of action to enforce title IX, even though there was also administrative remedies available and which was validated by Congress, as this Court... every member of this Court recognized in... in Sandoval.

Justice Scalia: Yes, but I thought... I thought that Cannon... we've... we've allowed Cannon to stay on the books, but I thought we have sworn off the kind of creation of... of implied remedies that Cannon exemplifies.

Mr. Dellinger: In this case, there is no doubt that the two established principles together that are settled support this cause of action.

The first is that there is a cause of action to enforce title IX.

That's Cannon through Congress, through Sandoval, through... your opinion in Sandoval acknowledges that Cannon is solid law and, the second point, that the statute itself is violated.

Title IX is violated by retaliatory action against Coach Jackson.

He's... and... and this is an important part of title IX because, particularly here, people like Coach Jackson need to come forward because students are often minors.

They're not in the best position to know the budgets.

It is people like Coach Jackson who make it work, and indeed, I think what is recognized about the... about the cause of action for retaliation is that it is very important to enable people to bring their institutions into compliance without resorting to litigation.

Justice Scalia: It's very... it's very useful, I'm sure, but it... it could be very disruptive also, I am sure.

If I were... if I were a coach, one of the first things... especially a coach of a women's team in high school, one of the first things I would do would be to complain about not... not getting enough facilities.

This would make it a lot more difficult to fire me whether... whether I'm a lousy coach or not.

You... you would have to think twice before you fire me because I would have a retaliation claim.

Mr. Dellinger: Justice Scalia, the burden, of course, is on the plaintiff to demonstrate causation.

And you should take great comfort from the fact, the Court can take great comfort from the fact that retaliation has been established as a violation of all of the major civil rights statutes, going back to 30 years to title VI--

Justice Scalia: Some of them specifically provide for retaliation, don't they?

Mr. Dellinger: --That is correct.

Justice Scalia: Why do they do that if, as you assert, the mere word discrimination embraces it?

Mr. Dellinger: Well, Congress has taken a different approach.

In some cases, there would be a textual problem.

Title VII, for example, speaks of discrimination based on such individual's race or national origin.

Title... and... and therefore, it might need a specific retaliation provision.

Title IX speaks upon... about discrimination on the basis of sex.

And here I think to... to allay your concern about the coach, we have had... title IX's retaliation provision has been the established law.

It was the law at the time Congress... it was understood, at the time Congress enacted title IX, that the identical wording of title VI had been construed by the administrative agency to include a cause of action for retaliation.

Congress enacted title IX against the background of the Sullivan decision, which had recognized that discrimination can include retaliation.

So that it comes as no surprise that every court of appeals that has addressed this issue has found that there's retaliation under title IX.

In over 30 years, there... at most we can find 140 reported cases in the Federal system where there is a claim for retaliation under title IX, and under title IX and all of the other discrimination provisions, courts have found it perfectly satisfactory to work out the causation requirements and... in... in dealing with retaliation cases.

Now, here, what the respondent did is they discharged the coach who was seeking equal treatment for girls.

When it singled Coach Jackson out for adverse treatment, it was discriminating, and when it did so, because he was seeking equal treatment for girls, it was discriminating on the basis of sex.

Justice Scalia: Do you think that it... it is a reasonable description of what happened... he was fired for complaining about his girls' team not getting enough facilities... that he was, on the basis of sex, excluded from participation in, denied benefits of, or subjected to discrimination under an education program?

Mr. Dellinger: Absolutely.

Justice Scalia: Do you think that... that remotely describes what happened to this coach?

Mr. Dellinger: Absolutely.

First of all, the... the court of appeals correctly says... in the petition appendix at 3a, the court of appeals says we assume for the purposes of this appeal that the board retaliated against Jackson for complaining about perceived title IX violations.

But for the discrimination on the basis of sex, he would not have complained, and he not... had he not made a complaint about sex discrimination, he wouldn't have lost his position.

He is denied the benefit of coaching in the program.

He's denied the ability to participate in this federally funded program as a coach, and he is discriminated against by being singled out for retaliation.

And this is not a case in which... that has concern... I mean, Justice Kennedy raised the question about this being a funding case, and I understand the special sensitivity that the Court has about rules that are based upon spending requirements where you want to be sure that States understand what they're agreeing to when they accept the Federal funds.

This is not a case in which it could not have been anticipated when those funds were accepted.

At that time, at the time these funds were accepted, which would have been about 1999 or 2000, title IX's ban on sex discrimination was itself, of course, universally known.

Retaliation was understood to be part and parcel of that.

We had had 30 years where both the Department of Education and--

Justice Kennedy: But... but that's again the question of the substantive scope of the provision, and that's different from whether there was a congressional intent to create a private cause of action for this sort of violation.

And was it... Virginia Bankshares and so forth tells us that this is not the heyday of prior cause of actions anymore.

You have to show that there's a congressional intent in the Spending Clause to create a private cause of action for damages.

Mr. Dellinger: --I think the Court--

Justice Kennedy: And that's... that's quite separate from--

Mr. Dellinger: --Yes.

I... I--

Justice Kennedy: --from this... from the question of substantive liability.

Mr. Dellinger: --I understand that.

Here, first of all, when Congress acted, unlike the earlier time when it passed title VI, when Congress passed title IX, it was a background in the law from Sullivan v. Little Hunting Park that... that retaliation was considered a part of discrimination.

The title VI regulations were themselves well known based on identical language, virtually verbatim language.

It provided for retaliation.

And moreover, this Court has recently as the Davis case, Franklin and Davis, and in the North Haven case has found that employment discrimination, sexual harassment by teachers and peer-on-peer sexual harassment all come within title IX and have, therefore, agreed that Cannon v. the City of... v. the University of Chicago creates that cause of action.

Now, this case is actually a lot easier than Davis, even taking into account the concerns that... that you and other Justices expressed there, because this is not a case where liability is being imposed, you know, for the acts of third parties like students over whom you may have limited control.

This is deliberately undertaken actions by the responsible officials acting intentionally.

It's not a novel concept the way one could argue that peer-on-peer sexual harassment was as a part of discrimination.

But it's been accepted for more than 30 years by the responsible Federal agency.

Justice Scalia: Yes, but it's separate enough from discrimination that in other statutes, although Congress does create a cause of action for discrimination, it goes out of its way to create a separate cause of action for retaliation.

It's sufficiently separate, and if it is that sufficiently separate, it doesn't seem to me that you could clearly say that... that when the State signed on to receiving Federal funds under title IX, they should have known that this door to litigation was being opened to them.

Yes, litigation for... for discrimination against... against female athletes, but not... not discrimination suits alleging retaliation.

That's a whole, new area.

Mr. Dellinger: Justice Scalia, with... with all due respect, I don't think there's any way, when the district accepted these funds, that they could have reasonably relied on the assumption that they would be free to retaliate against people who tried to comply--

Justice O'Connor: Well, but there was... there was... let's go back to this for just a moment... an administrative remedy available for retaliation expressly under the regs?

Mr. Dellinger: --That is correct.

Justice O'Connor: And did this petitioner seek an administrative remedy at all?

Mr. Dellinger: He did not seek an administrative remedy.

He went through the school system itself at every level.

He went through five different levels, following the chain of command.

Justice O'Connor: What would the administrative remedy have allowed here--

Mr. Dellinger: Well--

Justice O'Connor: --had it been sought?

Mr. Dellinger: --Here, as in Franklin, as in Davis, as in Cannon v. the University of Chicago, as in every one of this Court's title IX cases, indeed, as in all of its title VI cases involving Federal funds with race, you can call this to attention of the office of civil rights of the relevant agency and they can begin an inquiry.

Ultimately they have the authority of the draconian sanction of cutting off the funds to the--

Justice Ginsburg: Do they have any other sanction?

Because the notion of an administrative remedy ordinarily would be a remedy for the individual who's complaining.

But as I understand it, this administrative process, this detailed administrative process, leads only to one sanction, the one you have described as draconian.

Mr. Dellinger: --That is correct.

Justice O'Connor: So that's it.

It would not have permitted a restoration of the job to the--

Mr. Dellinger: That is correct.

Justice O'Connor: --petitioner.

Mr. Dellinger: That is not part of the... the administrative process is only about institutional funding, which is why the Court has consistently upheld the right to bring these actions for what are violations of the statute itself.

Justice Souter: Well, if we don't accept... let's assume, just for the sake of argument, that... that we're having trouble accepting the... the analysis that it is a violation of the statute in the statute's own terms.

You then made the argument that, in fact, you should recognize retaliation as a claim because in the context of... of school students and so on, if you don't allow retaliation, the teachers are not going to blow the whistle, and if the teachers blow the whistle, the statute is going to be a dead letter.

Mr. Dellinger: That is--

Justice Souter: So... so the... the argument is you... you should recognize this as a necessity.

That, it seems to me, still goes back to Justice O'Connor's question.

Why do we have to recognize a private cause of action as opposed to the government allowing an administrative remedy?

And I thought you were leading up to saying the administrative remedy simply isn't effective because it's so draconian that, in fact, they don't impose it, or for some other reason.

So my question is, is there an argument to say that the administrative remedy simply is not good enough to preclude... to... to deter retaliation and that's why you've got to have a private cause of action?

Mr. Dellinger: --That... that is absolutely right.

Justice Souter: What's... what are the facts?

What's the empirical evidence for that?

Mr. Dellinger: Well--

Justice O'Connor: Do you know if administrative sanctions have been imposed under title IX against schools?

Mr. Dellinger: --Well, I'm sure there have been some instances in which there have been administrative sanctions under title IX.

And I don't... I do not have figures on those, Justice O'Connor.

But let me--

Justice Ginsburg: Have funds--

Mr. Dellinger: --let me suggest--

Justice Ginsburg: --have funds... Mr. Dellinger, have funds ever been withdrawn from any school because of a violation of--

Mr. Dellinger: --Not to my knowledge.

Justice Ginsburg: --title IX?

Mr. Dellinger: But I think--

Justice Scalia: That could be because--

Mr. Dellinger: --I actually have--

Justice Scalia: --the sanction is so draconian that nobody in his right mind is not going to rehire the coach.

Of course, they're going to rehire.

I... I find it hard to believe why a draconian sanction is ineffective.

Mr. Dellinger: --Well, if it's never... I... I--

Justice Scalia: It seems to me it's... it's overwhelmingly effective.

You tell the school you either rehire the coach or we're cutting off your money.

Mr. Dellinger: --Justice--

Justice Scalia: Is it hard to decide what they're going to do?

Mr. Dellinger: --I do have an answer, first, for Justice Ginsburg's question from Ms. Greenberger.

The sanction has never been imposed under title IX of cutting off funds.

And it--

Justice Ginsburg: And I can't imagine anyone who would want such a sanction.

It doesn't help--

Mr. Dellinger: --That is certainly not what--

Justice Ginsburg: --the girls on the team.

Mr. Dellinger: --Coach... Coach Jackson would have sought, and... and because that process is not one that's responsive to the individual case... if you're down in Birmingham, Alabama, the idea that there is some office that has control over Federal funds that's never imposed a sanction, the fact of the matter is... and it's the reason--

Justice Kennedy: Well, you're saying the coach cares more about it than the Government does?

Mr. Dellinger: --That may well be the case, absolutely.

And Coach Jackson--

Justice Kennedy: Well, if... if the Government is charged with... with just spending the funds and doesn't think that this is worth its time, why should there be a private cause of action--

Mr. Dellinger: --Because--

Justice Kennedy: --when... when a private cause of action is harder for us to imply than it... than it is to an administrative remedy?

Mr. Dellinger: --Because in this case people like Coach Jackson... it's hard enough for Coach Jackson to come forward.

If he's not able to... if he's not protected and able to come forward, if retaliation is possible, then you can't expect the... the teenagers themselves to carry this burden.

And in fact, it's the reason this Court recognizes a private cause of action in Franklin and in Davis and in Cannon itself, that you're not going to protect the whistle blower and they're not going to be able to come forward.

And it's not just whistle blowers, Justice Kennedy.

It's people that want to make their institutions comply and when those efforts at compliance result in penalties against them.

It has not led to an excessive amount of litigation, but it has been very effective in giving people comfort to know that they can't be retaliated against.

And... and I... I understand the... going to the necessity, but I do think I'm very comfortable with the statute because it is a form of discrimination on the basis of sex.

It is part and parcel.

The history of discrimination, on which title VI drew, was that firing people from their jobs is what you did when they complained about discrimination, when they tried to vote, when they tried to enroll their students in schools, and it is part and parcel of that discrimination.

And it is discrimination against Coach Jackson for his actions on behalf of sex.

Thank you.

Justice Ginsburg: Mr.--

Mr. Dellinger: I'll reserve the balance of my time.

Justice O'Connor: Mr. Gornstein, do you have any light to shed on the extent to which administrative sanctions have ever been imposed against schools and... and the feasibility of going that route?

Argument of Irving L. Gornstein

Mr. Gornstein: Administrative sanction has never been imposed under title IX.

Justice Kennedy: They have been under title VI?

Mr. Gornstein: There has been one case in which an administrative sanction was imposed under title VI, Justice Kennedy.

It... the agency does have some flexibility to attempt to get voluntary resolutions that are short of the sanction, the final sanction, but--

Justice O'Connor: Do you take the position that what occurred here can amount to a direct violation of the statute as discrimination?

Mr. Gornstein: --We do, Justice... Justice O'Connor.

I'm sorry.

Retaliation against a person because that person has complained about sex discrimination under title IX is itself discrimination within the meaning of title IX.

And that conclusion flows from four considerations, beginning with the Court's decision critically in Sullivan because in that case, the Court held that a person subjected to retaliation because he complained about racial discrimination against his lessee could sue under section 1982's prohibition, which only prohibits racial discrimination.

Against the backdrop of that decision in Sullivan, Congress would have understood its prohibition against sex discrimination to afford comparable protection against retaliation.

So a person who is subjected--

Justice O'Connor: Why would Congress then in some statutes expressly cover retaliation and in others not?

I mean, that's a little odd, isn't it?

Mr. Gornstein: --It is, Justice O'Connor, but the explanation for that for... in title VII, for example, is that the core prohibitions in title VII refer to discrimination based on such individual's race, sex, or national origin, and that such individual's language rules out the kind of retaliation claim we are talking about here.

Justice Scalia: Oh, it rules out this one, but it doesn't rule out the main... look it, this is a weird kind of retaliation claim.

Usually the retaliation claim is the person who has been discriminated against complains about the discrimination, and for that complaint, the person who was discriminated against is demoted or not promoted, or whatever.

That's... that's the classic retaliation claim.

And that classic claim is surely covered by... on the basis of that person's sex.

Mr. Gornstein: If... if it's based on the fact that the... that the person is complaining about sex discrimination and not on the sex of the complainer, it's exactly the same theory of discrimination that we have here, Justice Scalia.

And that theory of discrimination was recognized in the Sullivan decision.

Discrimination occurs when there is retaliation against a person because he's complaining about racial discrimination.

Justice Scalia: What was the date of the Sullivan case?

Mr. Gornstein: It was 3 years before Congress enacted section... I think it was '68... '69.

I'm sorry.

'69.

Justice Scalia: '69.

Mr. Gornstein: It was '69, Justice Scalia.

Justice Scalia: And... and you think that we take the same approach to implied causes of action today that we took in 1969?

Mr. Gornstein: You do not, Justice Scalia, when you are starting afresh, but--

Justice Kennedy: And we certainly did not with a Spending Clause case.

Mr. Gornstein: --That's true, Justice Kennedy.

But to answer Justice Scalia's question, first, you operate in the legal context in which Congress was operating at the time, and Congress would have understood... and this Court has twice relied on the Sullivan decision in interpreting title IX, once in deciding that there was a private right of action and once in deciding that the private right of action included a claim for damages.

Justice Scalia: I don't know what case it is, but one of our cases, the argument was precisely made that the statute before us had been enacted by Congress before we had set our face against implied causes of action, and therefore, we should interpret that statute the way we used to in 1969, and we rejected that argument.

We said that our new rule, as to when you find implied causes of action, will be applied to all statutes, whether they were enacted by a Congress that... that thought we would go skipping along forever as we did in 1969 or... or not.

And... and that's what you're asking us to do here.

Mr. Gornstein: Justice--

Justice Scalia: Just because Congress in... in the... at the time this statute was enacted believed in the existence of a Supreme Court that would readily find implied causes of action, we... we have to do that for all these old statutes.

Mr. Gornstein: --Let... let me talk about the cases that I think the principle that you're talking about emerges from.

One is the Central Bank case, and what you were asked to do there was to add the words, aiders and abetters, to the statute.

We're not asking you to add words to this statute.

We're asking you to interpret the words that are there--

Justice Kennedy: But what about Virginia--

Mr. Gornstein: --in light of the relevant context.

Justice Kennedy: --What about Virginia Bankshares?

Mr. Gornstein: I'm... I'm not sure about Virginia Bankshares, but I don't think it... it states a principle.

The other case that I was thinking about, Justice Kennedy, is the... is the Sandoval case.

And again, there somebody was asking you to afford a private right of action for something that the statute did not itself prohibit.

And what we are saying here is, interpret this statute in light of the legal context that Congress had it, which is--

Justice O'Connor: Well, it... it's arguable except that Mr. Jackson was not discriminated against because of his gender.

Mr. Gornstein: --That's correct.

But this statute does not require discrimination because of such individual's sex.

It require--

Justice O'Connor: --exactly like title VII, but--

Mr. Gornstein: --It's... it's written exactly not like title VII, Justice O'Connor, and it's written far more like section 1982, which was at issue at Sullivan, which doesn't have a such individual's limitation.

And in... and section 1982 was interpreted to mean discrimination on the basis of race in depriving people of interests of property violates that statute and affords a private right of action of the victim of retaliation.

And so too here.

And a person who is victimized by retaliation because that person has been subjected before... because he complained about sex discrimination is a victim of discrimination within the meaning of this statute.

Justice Scalia: And that's where you hang.

You... you really think Congress, when it enacted title IX, paid close attention and said... instead of saying no person in the United States shall on the basis of that person's sex be excluded from participation, you think somebody had... had suggested that language, and they said, oh, no, no, no, that would make it too narrow.

We have to take out that person's.

I... I don't... it doesn't strike me as a... as an obvious import of not including the word that person's sex.

It's a very natural way to write it: no person in the United States shall on the basis of sex.

Mr. Gornstein: But this is... it opens it up to this interpretation, and then you have to look at all the relevant considerations.

Inserting the words, such individual's, would foreclose that kind of retaliation claim, and it's not here.

And so it's... then you have to look at all the other relevant considerations, including Sullivan, including the fact that this is of vital importance to promoting the purposes of the act, including the fact that the agencies responsible for enforcing this provision have both interpreted... the key agencies have interpreted it to encompass protection against retaliation, and including the fact that there's absolutely no legitimate interest that a... a recipient has in retaliating against somebody simply because he's filed a title IX sex discrimination complaint.

Justice Ginsburg: Mr. Gornstein, what implication would there be, if we took the view of the circuit here, for Federal employment?

Title VII does have a discrete retaliation provision, but it doesn't with respect to Federal employees, if I understand.

Mr. Gornstein: That's correct.

In... it... we... we have taken the position that there is, based on a textual argument within the Federal sector provision, a basis for finding a retaliation prohibition over and above the use of discrimination.

We have not taken that position with respect to the... to some other statutes.

So we do think this is a statute-by-statute analysis and that you just can't adopt an automatic principle that because there's an anti-discrimination provision, it automatically always picks up retaliation protection.

You have to look at it on a statute-by-statute basis.

And here, though, all the relevant considerations, including Sullivan, including the need for this kind of protection to further the purposes of the statute, including the agencies' interpretation of this statute which, by the way, does provide fair notice that this was prohibited, included in... I think I wanted to get back to Justice Kennedy's question about the Spending Clause.

What the Spending Clause does not require is that it specifically refer to retaliation any more than it required that it specifically refer to peer-on-peer harassment.

What it does require, though, is fair notice, and that fair notice is supplied by the Sullivan decision, this Court's cases saying that Sullivan is an important backdrop principle against which title IX was enacted, and finally the regulations themselves, which specifically forbid retaliation.

Justice Scalia: Are punitive damages available under title IX?

Mr. Gornstein: I'm sorry.

Punitive damages would not be available against a municipality or against a... but it could be available against some other private recipients.

Justice Stevens: Thank you, Mr. Gornstein.

Mr. Thomas.

Argument of Kenneth L. Thomas

Mr. Thomas: Justice Stevens, may it please the Court:

Justice O'Connor, I would like to respond to the question that you raised immediately.

I can't think of any school board lawyer who is called by his superintendent and told that I had a letter from OCR and they want to know why you aren't doing this and that who would not be in that superintendent's office that moment because when OCR comes in, they canvas everything.

I mean, and as a part of negotiating and their investigative teams, they're lay people.

They're not lawyers.

They come in demanding, and what they prepare for compliance, I can't even begin to articulate how overreaching it is.

And so I say I wanted you to--

Justice Ginsburg: How often has OCR come to the school district in question under title IX?

There are many statutes that--

Mr. Thomas: --And I would want to suggest--

Justice Ginsburg: --OCR administers.

Mr. Thomas: --In 1996, we had a conclusion of an OCR title IX investigation because it dealt with boys' football as it related to related sports offered for girls.

So we... we know about OCR, and they're in Atlanta.

They are about 167 miles away and when... and when they come, they come, Your Honors.

If I may, I'd like to get right now to what I had raised as the issue here, and that's whether or not an implied private right of action under title IX for retaliation for petitioner who himself says that he's not a victim of discrimination, but merely an advocate.

He's an advocate of gender equity, and we say no.

Justice Ginsburg: How does he differ... how does he differ from the renter in Sullivan who was complaining about the refusal to sell or lease property to African Americans?

He wanted to lease his property, and as a result, he was thrown out of the club.

And this Court said he could maintain that suit.

Mr. Thomas: Justice Ginsburg, I offer this one observation.

Under 1982, there is not a corollary administrative remedy.

So in the Sullivan situation, the only advocate available at that time was the owner of the home.

And... but I would comment that as he continued in his litigation, he continued to advocate.

Under title IX, as we have discussed, for the advocate is the phone call, the toll-free call to OCR and express your concerns and your issues about what's happening.

And we find significance in that because the ultimate benefit is for the designated class, which would be the basketball team.

In a private lawsuit filed by Mr. Jackson, the damage award goes directly to him.

If he's successful in getting injunctive relief, it goes only to him.

In other words, school board, you can't retaliate or you're enjoined from retaliating against him in the future, but nothing from that Federal court would go to benefit the girls' basketball team.

Justice Souter: Well, what... what do you make of the... the point that Mr. Dellinger stressed and others have stressed that, in fact, there is no administrative remedy in the real world?

It's... it's... there... there have never... there has never been an instance in which funds have been withheld.

Mr. Thomas: Well, again, Justice Souter, no, the funds have not been terminated.

But I can only share with you my experiences with dealing with these people.

Justice Ginsburg: May I ask you with respect to that, is OCR so different from other agencies that have to pick and choose because they simply don't have the resources to enforce?

Now, how often does OCR, in fact, go in and investigate?

How many times do they say, well, it's low priority for us, girls' soccer or girls' basketball, and we have bigger fish to fry?

Mr. Thomas: Justice Ginsburg, the only thing that I can say is that on my watch, the number one priority is to keep OCR out.

So... so therefore--

Justice Ginsburg: But that wasn't my question.

My question is of the universe of complaints that are made under title IX, how many does OCR actually follow up, or isn't it strapped for resources so that it can't, however much it may want to, come in the way you described?

Mr. Thomas: --Well, Your Honor, that was something that was recognized in Cannon.

I... I think that was cited in several of the footnotes.

Justice Ginsburg: And that was the very reason for recognizing a private right of action because the... the requirement, the anti-discrimination requirement, would be a dead letter if you didn't have people who could enforce it.

Mr. Thomas: But... but again, stay mindful.

Geraldine Cannon, though, she said, I did not get admission to the... the med school because of my sex, and she is clearly within the proviso of no discrimination on the basis of sex.

So--

Justice Souter: Yes, but the... the argument that's being raised is whether we're talking about the person who is listed in the statute as the primary beneficiary of the anti-discrimination statute or whether we're talking about the teacher who blows the whistle and so on... the... the argument is unless you allow this teacher or this whistle blower to... to bring the private action, your statute is a dead letter, that the... that if... if... once you recognize a private action, you've either got to recognize this kind of private action or you can forget the whole thing.

That's the argument, and... and so simply to say, well, they're not within the... the primary ambit of benefit of the statute is... is not to the point of the argument.

Mr. Thomas: --Justice Souter, let me offer this in two ways.

One, it's not realistic.

In... in other words, when... when you have a scenario about the private cause of action, teachers aren't... I mean, these parents and... and the... and especially in Birmingham, we have an athletic director at the school.

We have a director of athletics for the whole school system.

And so that... that's not realistic, I mean, because at the end of the day, the administration is very conscientious about all of its programs.

Justice Ginsburg: Well, that's... to say trust me is... is not an answer.

Cannon is one thing, a woman in her 30's.

A sixth-grader who is told she can't play on a team because there's none for girls is hardly similarly situated and the law won't be enforced as to her unless you have someone who is best positioned to know what is going on, who is the coach.

Mr. Thomas: But, Justice Ginsburg, we get back to the point who really benefits because... and especially in this scenario, if the advocate sues and receives the monetary damages, that goes to the advocate.

Justice Ginsburg: The... the point is if you say to the school, you cannot retaliate against someone because a complaint has been made, that's a powerful incentive for the school not to retaliate against someone and to do something about the discrimination.

Mr. Thomas: Well, but again, though, Justice Ginsburg, the other side of that would be when under the spending legislation, the school board had a right to know what the terms and conditions of the financial assistance would be, and I respectfully submit to you that there was nowhere on the landscape that--

Justice Ginsburg: Why wasn't it in the regulations of the agency spelled out rather clearly... the... the agency that says, Congress has told us to implement this statute, here are our regulations and our regulations are you don't retaliate?

Mr. Thomas: --But that's a part of the complaint and investigatory process.

Now, Justice Ginsburg--

Justice Scalia: The regulations didn't say anything about a private cause of action, did it?

Mr. Thomas: --No, it did not.

Justice Scalia: And the statute didn't say anything about a private cause of action.

Mr. Thomas: It's not on the face.

Justice O'Connor: But the regulation did tell the school not to retaliate in effect.

Tell me, does the record disclose what happened to the petitioner, Jackson?

What... what has been the result of all this?

Does the record tell us that?

Mr. Thomas: No, it does not, Justice O'Connor.

And... and again, it's on a motion to dismiss, and obviously, once it was--

Justice O'Connor: Does it tell us that he was removed as coach?

Mr. Thomas: --Yes.

Justice O'Connor: Does the record tell us that?

Mr. Thomas: It... it does say that he was relieved.

Justice Breyer: Can I ask you a legal question, nothing to do with, you know, practicalities?

Mr. Thomas: Yes.

Justice Breyer: But suppose you go back to the very old, bad days of the 1950's in the South, the '60's.

They pass some civil rights legislation.

A lot of legislation was passed in the '60's.

Now, under that civil rights legislation, imagine an individual had been kept out of a restaurant or he'd been treated physically badly, not because of his race.

He was white, but he was associating with people who were black.

And they both go into the restaurant and they both are refused service.

Maybe they're beaten up.

I mean, both of them.

Now, can the white individual bring a lawsuit under the... the civil rights statute?

I've always thought the answer to that question is, of course, he can.

Would you... do you think it's the contrary answer?

Mr. Thomas: Justice Breyer, in that context--

Justice Breyer: Yes.

Mr. Thomas: --I... I would say yes.

Justice Breyer: Yes, of course.

Mr. Thomas: But again--

Justice Breyer: So therefore--

Justice Scalia: Is this a civil rights statute that provides for a private cause of action?

I... I want to know what the hypothetical is.

Justice Breyer: --I'd... I'd like to... I'm thinking of various civil rights statutes which make it unlawful to describe... to... to discriminate.

And now, I agree with you on that answer.

The white person could bring a lawsuit on the basis of someone else's race because he's being discriminated against not because of his own race, but because he's being... he's associated with people who are being discriminated against.

I agree with your answer.

And so my question is if that's so and if we have a long history here of the words, on the basis of sex, including retaliation not on the basis of my sex, but retaliation on the basis of someone else's sex... that's what I've complained of... why isn't this the same thing And to get out my whole question... there are two parts... why isn't this the same thing?

And the second part is, because I think it is the same thing... the second part is once it is included in 1981... in... is it 1681(a)?

Mr. Thomas: --Yes.

Justice Breyer: Once we include this in 1681(a), that's the end of this case because Sandoval then supports the other side.

It doesn't support you.

All right.

That's my question.

Mr. Thomas: Justice Breyer, don't we have to consider at some point in time what the congressional intent was?

Justice Breyer: Well, yes.

Mr. Thomas: And again... and I submit to you--

Justice Breyer: So you... you go ahead.

I'm doing it purely as a matter of logic.

I'm saying the old civil rights cases make clear it doesn't have to be on the basis of your own race.

History makes clear that retaliation on the basis of someone else's race does fit within... or gender does fit within 1681, and then that's the end of the case.

So I would like your response to that logic.

Mr. Thomas: --And I would want to submit to you interveningly you have had the passing of the Voting Rights Act of 1965.

So everybody now has access to Congress.

The whole spectrum of American society is in Congress.

So if Congress is being well represented, when it passes the law in 1972, as it did here, it had a different perspective on it.

Going back to 1969, some things were foreclosed to some of the citizens of the United States.

So, obviously, the scenario of someone advocating, like in Sullivan, would make sense.

But I submit to you respectfully, that's not the case now.

Over there in Congress is where this debate needs to be, and on the face of this statute, it's not there.

Retaliation is not there.

If I may, though, Justice Breyer, let me also add as a practical consideration--

Justice Stevens: Of course, you say it's not there, but the agencies interpreting the statute thought it was there.

Isn't that correct?

Mr. Thomas: --But... but that's an... an investigatory... the administrative enforcement scenario.

Justice Ginsburg: But it's the--

Justice Stevens: No, but their reading of the statute was that the word discrimination included a retaliation claim.

That's the kind of regulations they drafted on the basis of their understanding of what Congress intended by using the word... the words in this statute.

Mr. Thomas: But don't we go... Justice Stevens, don't we go back to Sandoval?

Can you in a regulation do more than what the statute requires?

Justice Stevens: You cannot use the regulation that goes beyond the meaning of the statute.

That's what that holds.

But a regulation interpreting what the statute itself provides is in a different ball park.

And that's what I understand these regulations to have done, to say what the agencies thought the statute itself meant.

Mr. Thomas: But... but again, that's retaliation after someone has filed a complaint with the appropriate office.

Justice Breyer: Well... I mean, Sandoval is very clear.

It's a very clear opinion in my view.

Very clear.

And the key language I thought is, the language statutes that focus on the person regulated rather than individuals protected create no implication of an intent to confer the private right.

So they're looking at disparate impact and disparate impact, according to the majority... I was in the dissent... did not intend to protect the person discriminated against, but was a way of regulating people so they wouldn't intentionally discriminate.

I can understand that.

But I apply the same... I didn't agree with it, but I can understand it.

The... the... I apply the same reasoning here.

The reasoning here is that this retaliation thing is not trying to protect university behavior one whit more than the whole underlying thing is trying to protect university behavior.

This is about victims.

Retaliation and being fired is about victims.

And so given Sandoval, then we have the history, we have the language, and we have that sentence from Sandoval.

And all that suggests... it goes into 1681(a), in which case Sandoval says, a private right of action, given Cannon, would be inferred.

Now, what's... what's... that's how... I'm tracing out the logic of the thing.

So I want to see what you say.

Mr. Thomas: Well, Justice Breyer, on the face of the statute, I just can't get there.

I apologize for that, respectfully, but... but I can't.

And Justice O'Connor, as a follow-up, interestingly enough, in a case on all fours in 1995, Holt v. Lewis, the United States District Dourt for the Northern District of Birmingham... for the Northern District of Alabama made very clear that an implied private right of action was not cognizable under title IX, and that the regulation was not a basis to follow it.

And... and I submit to you on that basis, that in Birmingham, at the very least, because the case was affirmed by the Eleventh Circuit and this Court denied cert in 1997, so anyone who would go--

Justice O'Connor: We... we can't... you don't base your argument on giving some legal effect to denial of certiorari--

Mr. Thomas: --No, no, I don't, Justice O'Connor.

Justice O'Connor: --Thank you.

Mr. Thomas: But... but to say... I was trying to emphasize was the notice and the mind set of the board when it accepted these Federal funds.

It had no way of anticipating that retaliation--

Justice Stevens: It had never anticipated a private right of action, even though it read the Cannon opinion, which was written some 20 years ago?

Maybe more than that.

I don't remember.

Mr. Thomas: --Justice Cannon, your opinion there is going to be around for a long time.

The scholars are going to have to debate it for years.

Justice Scalia: There were some later cases that cast a good deal of doubt on whether we would apply Cannon anymore.

Justice Stevens: But Congress itself has adopted the rule set forth in Cannon.

Mr. Thomas: But... but if I may, but then Justice Rehnquist cautioned very clearly that the Court... in his concurring opinion, that the Court in the future should be extremely reluctant to imply a cause of action absent such specificity on the part of the legislative branch.

And that just speaks volumes to me.

Justice Ginsburg: --It said in this statute we do, having in mind that title VI would be interpreted in the identical way--

Mr. Thomas: Yes, ma'am.

Justice Ginsburg: --title VII... VI proscribing race discrimination in all Federal programs.

So it said these statutes aimed at race discrimination, sex discrimination do have a... a private right of action, and that was the holding of this Court.

Mr. Thomas: Yes, ma'am.

Well, but... but again, it goes... goes back to... but would that include retaliation?

And... and--

Justice Ginsburg: Well, it seems to me that if you're talking about the sixth grade soccer team, realistically the only one who is going to know anything... enough and be brave enough to complain will be the teacher.

And if you cut the teacher out, then forget it.

You have nice words on paper and they'll never be enforced.

Mr. Thomas: --But, Justice Ginsburg, that teacher could easily, if they don't get a positive response from the administration, they can call OCR.

Justice Ginsburg: And OCR says, as it usually does, we're too busy.

Sorry.

Mr. Thomas: No.

They... no--

Justice Ginsburg: Congress didn't give us enough money to do the job.

Justice Scalia: Do we know that?

I mean, do we have any idea how effective the enforcement of OCR is?

Just because they haven't cut off funds--

Mr. Thomas: --I... I--

Justice Scalia: --they may well not have cut off funds because anybody who gets a directive from them will hop to it.

Mr. Thomas: --Justice Scalia, that's exactly it.

I mean, I have firsthand knowledge that when they call, we're supposed to jump.

It's no doubt about it.

Justice Scalia: And do they call more than infrequently?

Mr. Thomas: All the time.

And... and the other side of that coin--

Justice Ginsburg: This is your personal testimony.

Mr. Thomas: --Yes, ma'am.

Yes, it is.

[Laughter]

And... and Justice--

Justice Ginsburg: There is... there is much testimony on the other side that says we call and call and they don't come.

Mr. Thomas: --Well, I've been in educational law now almost 27 years, representing both teachers and school boards.

So I have firsthand knowledge. I mean... and I've experienced it both at the secondary level and higher ed.

I mean, when they come in, they come in.

Justice Ginsburg: How many title IX complaints in your... in your experience?

You mentioned one.

Is there any other?

Mr. Thomas: Two.

Justice Ginsburg: Two?

In how many years?

Mr. Thomas: In 26.

Justice Ginsburg: Two in 20-something years.

Mr. Thomas: Yes, ma'am.

But they're all memorable.

[Laughter]

They're all... thank you.

Justice Stevens: Thank you, Mr. Thomas.

Mr. Newsom.

Argument of Kevin C. Newsom

Mr. Newsom: Thank you, Justice Stevens, and may it please the Court:

I'd like to address, if I may, several concerns that have been raised during the... the preceding arguments.

One is to clarify some things about the scope of the administrative remedy.

The other side, with respect, wants you to think that without the implied right of action for damages and fees, whistle blowers are left out in the cold.

That is not true.

The administrative remedy... it's not just about funding termination.

34 C.F.R. 106.3 says that the OCR may use any remedy that it deems necessary.

The OCR, as we say in our brief, has itself touted its flexible approach to enforcement which includes, among other things, as this Court noted in Gebser, citing back to its earlier... pardon me... decision in North Haven, individualized relief in appropriate circumstances.

So the point, as Senator Bayh himself noted on the floor of the Senate, is that it is the threat of... of funding termination.

So while the OCR is wielding the club of funding termination, they can extract or leverage individualized relief in appropriate cases.

Justice Souter: Do we... do we have any... any empirical evidence as to... as to what they have thus leveraged?

Mr. Newsom: None that I am aware of, Your... Your Honor, but--

Justice Souter: The... the other side says, look, dead letter.

What do we know about such life as there may be in the letter?

Mr. Newsom: --Well... well, I will, I assume, perhaps foolishly, defer to the Solicitor General's office to tell you what... what the DOJ has and hasn't done.

What I can tell you is that... that the DOJ manual that the other side cites throughout its briefs expressly encourages agencies, when enforcing these... these things, to leverage even damage awards on behalf of individual claimants.

So I can tell you that, as a matter of policy, this is far from a dead letter.

Justice Scalia: You... you don't concede the point that it is the role of this Court to determine whether agencies are inefficient or not--

Mr. Newsom: Of course not.

Justice Scalia: --and if they are inefficient to... to raise up private attorneys general to... to fill the void?

Mr. Newsom: Of course not, Justice Scalia, and... and the Court knows very well from my brief that our position is that when you're talking about implied rights of action, this Court has made clear, in the cases leading up to Sandoval, culminating in Sandoval, that these sorts of policy considerations really are not relevant.

Justice Breyer: All right.

If they're not relevant, do you think that the regulation which provides... do you think it's unlawful?

Mr. Newsom: We do not contest the validity of the regulation.

Justice Breyer: Okay.

If you don't contest the validity of it and you think it's lawful, do you think it's doing something other than interpreting 1681(a)?

Mr. Newsom: Absolutely, Your Honor.

Justice Breyer: What... what is it doing?

Mr. Newsom: It... section 100.7(e), the regulation upon which Jackson chiefly relies, we readily concede is a valid, effectuating 902 regulation, but all... all it does by its text... and its structure makes clear all it does... is to govern the internal processes of official OCR investigations.

It does not go further than that.

This Court in Sandoval was very clear that it was... that it was only authoritative interpretations of a statute's terms that can be enforced pursuant to that statute's implied right of action.

Another point I want to make about the administrative remedy.

Justice Ginsburg asked whether funds had ever been withdrawn, and even there, again, if the answer is no, the point is not whether funds have been withdrawn, but that as Senator Bayh himself noted, that the threat of funds is where the heavy lifting is done in administrative enforcement.

Another point about administrative enforcement is whether or not there are sufficient resources.

That, obviously, was a valid concern in Cannon, given presumably the inordinate number of complaints about core, traditional discrimination.

But as the other side has made clear in its briefing in this case, at page 26 of the petitioner's brief... and then there's a brief filed on behalf of the Southern Poverty Law Center that spins this out in some detail... there just aren't many of these retaliation claims out there, either in the... either... either in the judicial system or at OCR.

Justice O'Connor: Why is that, do you think?

Mr. Newsom: Well, my... I'm sorry.

Justice O'Connor: Is it because no remedy is available, or is it because there are just very few instances giving rise to such?

Mr. Newsom: Well, I think in all likelihood, it is the latter.

Certainly I would think that the Court would presume... would not presume ill of local school districts and... and even State universities, but would presume that they are complying with, if not clearly articulated law, certainly good public policy.

The second point is that what the... the absence of private actions for retaliation shows is that title IX's remedial apparatus is kicking along just fine without the implied right of action.

Justice O'Connor: Do we decide this case on the assumption that there was retaliation here by virtue of a complaint of violation of title IX?

Mr. Newsom: Certainly, Your Honor--

Justice O'Connor: We should decide it on that assumption.

Mr. Newsom: --You have to take as true, of course, the facts as pledged in the... as pleaded in the complaint.

Another point I'd like to make briefly is about the comparison to title VII.

The other side wants you to look very closely at title VII when you're... whether it's on the basis of sex or on the basis of such individual's sex, but they want you to ignore title VII and the fact that it very clearly and expressly deals with retaliation in a separate subsection, a separate provision.

And I didn't... I'll have to confess I didn't hear much during the first argument.

I had my head in my own book, but what I did hear is Justice Souter referring to the... the... an instance in which Congress has a choice of two models for... for constructing a statute, and it chooses one over the other, and isn't it a reasonable inference to allow Congress to make that choice.

That's what happened here.

Justice Ginsburg: Like the choice it made in 1982, very spare statute.

When Congress got to title IX, it knew about Sullivan and so it... this... this statute in its breadth and its simplicity bears a striking resemblance to the old pattern in 1981 and 1982 and 1983.

So if you say to me, look at the closest model, it would be that and not the more detailed civil rights legislation that came in '64 and '65.

Mr. Newsom: Well, if... if I could answer in two parts.

First, to say that I think what was going on in 1964 in the Civil Rights Act, obviously, you have Congress in title VII addressing itself both to discrimination and to retaliation separately; in title VI, passed as part of the same piece of legislation, addressing itself solely to discrimination.

And to use Justice Souter's analogy, in '72 Congress takes the title VI model and not the title VII model.

Now, to get to your question specifically, I think, about Sullivan is at the heart of your question, Sullivan... I think there are a number of problems with the other side's reliance on Sullivan.

First, with all due respect to this Court, Sullivan itself is pretty opaque.

It certainly does not announce with flashing lights a principle that every anti-discrimination provision necessarily entails a subsidiary or corollary--

Justice Ginsburg: It says if you're thrown out of the club because you champion the rights of a black man, you have a right to sue under this statute.

Mr. Newsom: --Even if I were to grant your assumption of clarity in Sullivan, which Justice Harlan, I presume, would not agree with... he was left sort of scratching his head trying to figure out what the Court was trying to do.

But even granting your assumption, if 1982 can be construed that way, that... that construction does not necessarily carry over to every anti-discrimination provision.

1982, of course, uses different language to begin with and, more importantly, is... is passed under Congress' power under the Thirteenth Amendment, which is the broadest conceivable--

Justice Stevens: Yes, but it did construe the word discrimination, didn't it?

Mr. Newsom: --No, sir.

Discrimination is not even in... is not even in title... rather, in 1982.

So the language is very different--

Justice Ginsburg: On account of race is in it.

Right?

Mr. Newsom: --I'll have to confess I don't... it does say something like every person shall have the same right as... dot, dot, dot, as white persons.

But so the... the language frankly is pretty different, and the more fundamental point I'm trying to make is that even if that's true for... for that statute passed under that constitutional power, here we are talking, as Justice Kennedy made clear at the very outset of the argument about a Spending Clause statute, where it is required that conditions on the acceptance of Federal funds be express, and it is not clear to me where the Birmingham Board would have gotten its clear notice in this case.

If you can imagine--

Justice Ginsburg: It seems to me they would get it when Congress says, and here's the statute, very spare, and agency, you get up guidelines, that any responsible school board would say, well, we've got only one sentence in the statute.

We better look at the regulations to find out what's required.

Mr. Newsom: --I agree, and... and if... and if the Birmingham Board, which I trust it did, looked to the regulation here, what it would have found is a regulation not that clarifies the substantive scope of title IX, but instead that... that manages the internal operating procedures for official agency investigations.

So to be sure, the Birmingham Board was on notice that it could not retaliate in... in the business of an official OCR investigation, and if it did, it would be subject to administrative enforcement, but it was... it was not on notice either of the fact that there was a generic anti-retaliation prohibition, much less the fact that if it violated any such nonexistent--

Justice Ginsburg: But it's... we're not talking about the procedure, I mean, what procedural moves.

What must you do to comply?

And it has in there you don't retaliate.

So you mean that a board could responsibly take the position, well, the... the regulations tell us we don't retaliate, but when we're not faced with any agency breathing down our neck, all we have is a teacher in front of us, then we can retaliate?

I mean, they must have known the statute meant don't retaliate.

Mr. Newsom: --And... and with respect, I think there is a difference, particularly given the clear notice requirements that this Court has... has used in Spending Clause cases between retaliation in the context of an OCR investigation and retaliation generally, but... I'm sorry.

Justice Ginsburg: I... I really don't get that.

If the rule is don't retaliate and if we investigate, that's one of the things we're going... that's going to be on our checklist.

But the substantive rule is don't retaliate.

Mr. Newsom: Justice Stevens, may I respond?

Justice Stevens: Yes.

Mr. Newsom: Even granting your assumption, Justice Ginsburg, what is painfully not clear is that the... is that the Birmingham Board would be subject to... to a private right of action for damages and fees even in... in the event that there were some generally applicable anti-retaliation provision.

Justice Stevens: Thank you, Mr. Newsom.

Mr. Newsom: Thank you, Justice Stevens.

Justice Stevens: Mr. Dellinger, you have about 3 and a half minutes.

Rebuttal of Walter E. Dellinger, III

Mr. Dellinger: I should make it clear that we're not asking this Court to create or infer a new cause of action.

We're asking the Court to interpret the cause of action that the Court itself recognized in Cannon v. the University of Chicago, that was validated by Congress.

It was reaffirmed in the Court's opinion in Sandoval.

And when you look at the scope of that... of that prohibition, that cause of action, why would it not extend to retaliation?

The idea that you--

Justice Scalia: Other statutes do it separately.

Mr. Dellinger: --I understand.

Justice Scalia: Other statutes don't view the one as... as being incorporated in the other.

Mr. Dellinger: The practice of Congress has not been consistent on incorporating express provisions sometimes because of language differences, but there are half a dozen major statutes that the courts of appeal have consistently assumed included retaliation as part of discrimination.

Section 1981, section 1982, title VI, 1982 as determined by this Court, parts of the Rehabilitation Act have all been construed that way.

And why would they not?

The notion that you have to admit Geraldine Cannon to the University of Chicago medical school, you can't discriminate against her on the basis of sex, but then you could turn around and expel her for complaining about your admissions policy makes no sense.

In this case, relying upon the vagaries of what any administration might do about enforcement is not necessarily what Congress wanted, and that was this Court's decision in Cannon.

And it's reaffirmed it frankly--

Justice Scalia: There are no vagaries in private enforcement.

Private attorneys general always act in the interest of the whole polity.

There are no vagaries there.

Mr. Dellinger: --Well, in this case, it has been known to effectuate anti-discrimination laws in order to bring them about by allowing people to step forward.

The last point they make is that even if there's a cause of action, and even if the cause of action covers retaliation, it cannot be brought by Coach Jackson because he's not also the victim of the underlying discrimination.

That makes no sense in law or in logic.

If the captain of the boys' basketball team joins with the captain of the girls' basketball team in a supportive way to say, they're just not treating girls' basketball equally and fairly, and they're both suspended from their teams or dropped from the honor society in retaliation, it makes no sense.

Either they both have... they've both been discriminated against on the basis of sex because they're trying to rectify sex discrimination or neither is.

And in this case, it's going to be critically important that this valuable statute, which has meant so much for athletic and academic opportunities for women, to have people like Coach Jackson able to be confident that they've got a right that they can enforce that will allow them to come forward within the school itself and try to rectify these anomalies in and under title IX.

Thank you.

Justice Stevens: Thank you, Mr. Dellinger.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow morning at ten o'clock.

Attribution:

The Oyez Project

Featured:

Tuan Anh Nguyen v. INS - Oral Argument

Fri, 09 Jan 2009 14:50:36 +0000

Case:

Tuan Anh Nguyen v. INS

Media File:

99-2071_20010109-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Martha F. Davis

Chief Justice Rehnquist: We'll hear argument now in Tuan Anh Nguyen and Boulais versus Immigration and Naturalization Service.

Ms. Davis.

Ms Davis: Mr. Chief Justice, and may it please the Court:

This case raises the question of whether differential treatment of mothers and fathers under federal citizenship law violates the equal protection component of the due process clause of the Fifth Amendment.

Joseph Boulais has raised his out of wedlock son from infancy.

Under 8 USC Section 1409, an out of wedlock mother of a foreign-born child can establish her child's citizenship at birth upon proof of three things: U.S. nationality at the time of the child's birth, parentage of the child, and prior physical presence in the United States

Joseph Boulais meets all of these criteria.

However, solely because he's the male parent, the law imposes two additional criteria.

First, Mr. Boulais, as a father, must produce a signed statement that he will support the child until his 18th birthday.

The father here supported his son, but he never signed a statement.

Second, the father must before his child's 18th birthday, either legitimate, adjudicate paternity or formally acknowledge paternity, and here the father has formally acknowledged paternity, but not until his son was in his 20s.

Justice O'Connor: Miss Davis, is this an as-applied or a facial challenge?

Ms Davis: Justice O'Connor, this is a facial challenge.

We do not believe there is any constitutional basis on which this statute could be applied to individuals.

Justice O'Connor: How do you deal with the Fiallo case?

Ms Davis: Your Honor, the Fiallo case concerns the situation of some individuals who are citizens applying for special immigration preferences for children of those citizens or relatives of those citizens.

The Court here ruled that that was covered by the plenary power.

Here the issue concerns only citizens applying for trying to transmit citizenship at birth, benefits to... to parents, and so the difference is the question of what the extent of plenary power is.

And we believe that plenary power should stop, at the very least, before it reaches a situation where a citizen, here Mr. Boulais, is seeking to transmit citizenship benefits to a child who, as the statute indicates, once citizenship is recognized will relate back to the date of birth.

So I guess there are two basic distinctions.

One, that there's a relation back issue, so the citizen's child... the child here, once his citizenship is recognized, will have been deemed to have been a citizen from birth, and therefore there isn't any of the concern about transfer of allegiances that's the case in naturalization or also potentially the case in immigration sorts of situations.

Justice Scalia: Well, wait.

Why is there no problem with transfer of allegiances?

I mean, it's fine to make it retroactive as far as the law is concerned, but that doesn't change the reality of it.

The reality of it is he's not an American citizen until these conditions are... are met, and he's proclaimed to be such.

Prior to that he's not an American citizen, is he?

Ms Davis: As soon as those conditions are met, then his citizenship is recognized at the time of birth.

That's recognized under statute...

Justice Scalia: But he was a citizen of some other country before then.

Ms Davis: And once his citizenship is recognized, he will be deemed to have been a dual citizen of the country from the date of birth, but the statute itself recognizes that there isn't a transfer of allegiances by virtue of the fact that there isn't an oath of allegiance that's required for, to establish citizenship at birth, unlike naturalization, where that's a substantive requirement of the... of the recognition of the status.

Justice Ginsburg: Miss Davis, do I take... do I understand correctly the point you're making is that the people who are being brought in or sought to be brought in in Fiallo were coming in as aliens who might never become citizens, they were not coming in as citizens?

They were coming in as preference, preference-eligible aliens, and now you're saying, the distinction that you're making, if I grasp it correctly, is these people, if you are correct, will never come in as aliens.

The application is that the citizenship should be recognized immediately.

That's the distinction you're making?

Ms Davis: That's correct, Your Honor.

Chief Justice Rehnquist: No, but Miss Davis, you're not suggesting that there's a constitutional right to have your citizenship conferred on an American, the child of an American parent brought abroad?

Ms Davis: Not at all, Your Honor.

What we're saying is the immigration statute makes a distinction between citizenship at birth and other forms of immigration status, and that because of that distinction, the plenary power that shields in some instances immigration actions from full constitutional review should not apply here.

It should stop short of barring full constitutional review or ordinary constitutional review of transmission of citizenship from a citizen to a plenary citizen.

Justice Kennedy: But the plenary... can you explain to me why, why that is?

I assume that the plenary power has its basis, its rationale in the interest that the United States has with its relations with foreign powers.

And why is that inapplicable in... in any case arising under this particular statute?

Ms Davis: Justice Kennedy...

Justice Kennedy: And why... to say that plenary power stops puzzles me.

Ms Davis: Yes.

Justice Kennedy, this Court has never extended plenary power to every statute that potentially implicates foreign relations.

There's only... there are many, many that do that, including child support and environmental laws.

This Court has also never extended plenary power to every action under even the Immigration Nationality Act in INS versus Chadha, for example.

Justice Kennedy: What's the rationale for extending plenary power to the alien cases?

Ms Davis: The rationale that this Court has offered is the idea that foreign relations is directly implicated, I presume in part because of this transfer of allegiances.

Justice Scalia: You say... you say Fiallo would have come out differently if these aliens were not only admitted but having been once they are admitted are proclaimed to have been American citizens from birth?

That would wash out the plenary power of the federal government?

Ms Davis: Your Honor, then they would be in the same category as the citizens here.

They would have been citizens from birth.

Justice Scalia: That doesn't make any sense to me.

If... if... if... if you admit them without making them citizens from birth, you have plenary power, but if you do even the greater thing, admit them and make them citizens from birth, suddenly your plenary power disappears.

It seems to me, if anything, it ought to be the opposite.

Ms Davis: Your Honor, here what we base our argument on is the structure of the statute as well as the long history of jus sanguinis citizenship, and this Court's ruling in Rogers versus Bellei which also indicated that citizenship at birth was subject to ordinary constitutional scrutiny, even though there isn't a right under the Fourteenth Amendment to that citizenship, even though Congress could change the rules of citizenship tomorrow, still the statute itself, the history of jus sanguinis citizenship and this Court's construction of that, of that law in Rogers versus Bellei we believe supports limiting the extension of plenary power authority to a situation where a citizen here is seeking to transmit citizenship to his child who will be a citizen at birth at the time that citizenship is recognized.

Justice Souter: Let's assume the statute was slightly different and the citizenship to be conferred did not recognize... did not relate back to birth.

Would you then say that the statute with that one change in it exceeded Congress' plenary power under the naturalization clause?

Ms Davis: Your Honor, I guess I'm...

Justice Souter: Maybe it would be simpler if I asked the... I think I can ask the question a different way.

Do you think that the... the... the act of recognizing citizenship here for children born abroad is naturalization within the meaning of the naturalization clause?

Ms Davis: Yes, Your Honor, it is naturalization within the meaning of the constitutional naturalization clause.

However, Congress, in implementing that clause, has made choices about how to implement it that we believe...

Justice Souter: Right, that's what I wanted to get at.

Ms Davis: that we believe implicate the extent of the plenary power.

Justice Souter: So that Congress, so far as the clause is concerned, Congress could do this, leaving aside equal protection.

Congress can do this if it simply did not have the relation back provision?

Ms Davis: That's... that's correct.

Justice Stevens: Yeah.

Ms Davis: Your Honor, I mean, we certainly wouldn't be able to argue that the transfer of allegiances and those issues no longer implicated foreign relations, and that's a critical part of our argument here.

Let me turn...

Justice Breyer: Well, I wonder, suppose there were no naturalization clause, suppose it didn't exist.

Wouldn't Congress still have the power to enact this statute?

No one is being naturalized.

They are simply stating who is a citizen.

Just as, after all, no one in 1789 had been born in the United States of America or very few, and there had to be rules as to who was a citizen and who isn't...

Ms Davis: Your Honor...

Justice Breyer: so what is this to do with naturalization?

Ms Davis: Your Honor, this Court has held in the past, most notably in Rogers versus Bellei, that the authority to grant citizenship at birth, jus sanguinis citizenship, derives from the naturalization clause.

Now, whether in the absence of that clause Congress could still go forward I don't know because we, you know... the Court hasn't had to confront that issue.

Justice Breyer: If Congress said everyone in 1780 who has been born in the United States is a citizen of the United States, would that have been naturalizing everybody?

Ms Davis: Your Honor, I think it would depend upon what the term naturalization meant even at that time.

We know what it means now because Congress itself has defined it in the statute to apply only to those individuals who have citizenship that is prospective only, and here Mr. Boulais and his son come forward with a claim for citizenship that relates back to birth, so it's clearly not in the same category as naturalization is defined under the current statute.

Justice O'Connor: But it is... it is naturalization in the broader sense of referring to the constitutional authority?

Ms Davis: That's correct, but in implementing...

Justice O'Connor: And to that extent I think it makes it somewhat difficult to distinguish Fiallo.

Are you arguing that we need to reverse Fiallo if necessary?

Ms Davis: Your Honor, we don't believe that Fiallo must be reversed in order to rule in our favor because of the distinction that we just discussed.

However, as we indicate in our brief, there are reasons to reassess Fiallo, given, in particular, the subsequent development of equal protection law that might suggest that the result in that case is one that the Court would no longer...

Justice Stevens: But if you were to reexamine Fiallo, I suppose under your view, the amendment in 1986 to the statute involved in Fiallo that adopted the position of the dissenters in Fiallo would also be unconstitutional because it basically followed the same pattern as this statute does.

Ms Davis: That's correct, Your Honor, yes, because it retains the sex-based classifications.

Of course, there the Congress was not responding to a finding on constitutionality, so they weren't bound by that kind of a ruling.

Justice Ginsburg: Miss Davis, may we go back a few steps because you said something that surprised me.

I know that the Solicitor General took the line in its brief that there are only two kinds of citizens... born in the United States, and everybody else for constitutional purposes is naturalized.

My grandson was born in Paris of U.S. citizen parents.

I had never considered him a naturalized citizen of the United States, but is that his correct status?

Ms Davis: Your Honor, we don't quarrel with the construction that Rogers versus Bellei adopted, which is that citizenship at birth is a form of naturalization.

However what we argue is that the Congress in implementing that power has made a distinction between naturalization under the statute and citizenship at birth under the statute, and the implications of that distinction are that the plenary power of Congress to regulate immigration does not extend to citizenship at birth because citizenship at birth relates back to the date of birth because naturalization is defined to be prospective only because there isn't a requirement of an oath of allegiance in order to have citizenship at birth acknowledged.

Justice Ginsburg: Can such a person be denaturalized?

Ms Davis: Your Honor, I believe that that person would be covered in the same way that those citizens concerned in Afroyim and those cases whereby the Constitution for denaturalization purposes, that person could have additional conditions placed on citizenship that would not be appropriate for a jus soli citizen.

Or... yes, for a jus soli citizen.

So, for example, the conditions placed on the individual in Rogers versus Bellei, who was a citizen at birth, the residency conditions are permissible under the Constitution even though if those conditions are not filled, the individual will lose citizenship at the time that they fail to comply with those conditions.

Justice Scalia: Miss Davis, I gather your position would be different if in addition to the three conditions that you mentioned there were a fourth condition, and that is that the child of the American father swear allegiance to the United States.

Ms Davis: If the child of the American?

Justice Scalia: Yes, yes.

Before he could retroactively be deemed a United States citizen from birth, in addition to the other three factors, he must swear allegiance to the United States.

Ms Davis: Your Honor, no, our argument would not be different.

I'm raising that because it's an indication of the fact that Congress...

Justice Scalia: Well, I thought your argument hinged entirely upon the fact that there's no problem about changing allegiances, and this would require him to change allegiance, to swear allegiance to the United States over whatever other country he had come from.

Ms Davis: Yes.

No, Your Honor, our argument doesn't hinge entirely on that, no, but I raise that...

Justice Scalia: I don't know what opinions... it seems to me so artificial to say that simply because you make the admission retroactive and say he shall be deemed to have been a citizen from birth, somehow the power of Congress to make people who are not born in this country and therefore automatically citizens, citizens somehow becomes abridged.

I don't... I just don't see how the retroactivity... it's such an artificial device.

Congress could make it retroactive or not retroactive.

Ms Davis: Your Honor, I believe that the argument that I'm making reflects the construction of the statute.

The statute itself makes a distinction between citizenship and citizenship at birth and naturalization.

It lists in the section 1401 jus soli citizenship along with citizenship at birth.

Justice Scalia: I understand that, but we're not talking about the statute.

I can agree that you can... you can make a statutory distinction between those two situations, but does that convert into a constitutional distinction?

And that's what you're arguing before us, that there is some things you can constitutionally do when you make the person retroactively from birth a United States citizen or things that you can't do when you do that that you could do if you didn't make him retroactively.

Ms Davis: Yes, Justice Scalia, the issue is the extent of the plenary power doctrine, which this Court has, as I suggested earlier, has not always applied in the immigration area, and we believe that...

Justice Ginsburg: And has never been applied in that whole line of cases.

They are all cases of people who are admitted as aliens, so if it were to extend to such a case, it would be an extension.

Ms Davis: That... that's correct, Your Honor.

Applying it to citizens and citizens at birth, would extend the plenary power doctrine beyond where it has ever been extended in the... in the past.

Justice Scalia: Well, that assumes the person is not an alien simply because Congress says the person shall be retroactively deemed a citizen.

But for constitutional purposes, it seems to me, as opposed to statutory purposes, whether the person is an alien or not should depend upon whether the person is a natural born citizen of the United States or whether citizenship must be conferred by Congress.

Ms Davis: Right.

Well, in fact, Your Honor, you mentioned natural born citizen, and many commentators believe that citizens at birth are deemed to be natural born citizens, so this is a category of citizenship that traditionally has had a different status than naturalized citizenship for many, many years, for centuries.

Justice Ginsburg: The debate over whether someone born abroad could be a candidate for President?

Ms Davis: President, correct, Your Honor.

Chief Justice Rehnquist: But someone... someone born abroad is not in the same class as someone born jus solus here in the United States, which they are citizens by virtue of the Fourteenth Amendment, are they not?

Ms Davis: That's correct, Your Honor.

However, the statute, the immigration and naturalization statute, treats those jus soli citizenship... citizens and citizens at birth in the same section, so they clearly are contemplating that many of the same protections are going to apply to those citizens.

Justice Stevens: May I just clarify one thing?

Your view is the statute is invalid on its face, which, as I take it, means that the requirements as to the children of female parents have to be applied in the same way to children of male American citizen parents born abroad?

Ms Davis: That's correct.

Justice Stevens: So that anyone anywhere in the world at any time can prove that his parent, his father was an American citizen, has been a citizen since that person's birth, even if it was 60 years ago?

Ms Davis: Your Honor, there... according to the remedy that we've proposed, there would still be some criteria to be met, yes, but the remedy...

Justice Stevens: Okay, criteria other than those applied to children of mother... of mother... whose mother was an American citizen.

Ms Davis: A mother currently can sponsor a child, transmit citizenship at any time during the child's life.

Justice Stevens: Correct.

Ms Davis: Our argument is that a father, that...

Justice Stevens: Has precisely the same right?

Ms Davis: Should have the same right, the remedy that this Court should impose should be one that gives the...

Justice Stevens: Well, he doesn't have the right.

It's whether he has... he has already done it, merely by virtue of being a citizen and by having lived in the United States for a certain period of time.

Ms Davis: What this Court has indicated, both in Rogers v. Bellei and also in a majority of the justices in the Miller case...

Justice Stevens: But that's your position is all I wanted to...

Ms Davis: stated that it's recognition of existing citizenship and continuing citizenship.

Chief Justice Rehnquist: Well, if we agreed with your equal protection argument, I suppose we would have the alternative to say not simply that the father is pushed into the same favorable position as the mother, but the mother is pushed into the same unfavorable position as the father.

Ms Davis: Your Honor, that would remedy the equal protection issue, but we believe that it would run contrary to what we know about the Court's principles in crafting a remedy.

Justice Ginsburg: Has the Court ever in those extension versus invalidation cases, has it ever taken the route of lessening the benefits instead of equalizing up?

Has it ever equalized down instead of up?

Ms Davis: We have not been able to find a case where there has been equalization down, as you say.

Chief Justice Rehnquist: But there is always a first time.

Justice Kennedy: In this case the government's argument, the stateless person problem, takes much more prominence than it did in our earlier case, and that would seem to state a rational basis for this distinction.

Would you comment on the government's argument in this regard?

Ms Davis: Certainly.

I mean, our position is that they need to meet the heightened scrutiny standard.

But even...

Justice Kennedy: Well, and I think it might meet that as well, but would you comment on that?

Ms Davis: Sure.

The issue is whether or not... well, to start out, we believe that that issue is not properly in the case because we haven't challenged the physical presence requirements here, and the government as well as Congress have indicated that the way they have dealt with statelessness, concerns about statelessness is to have differential physical presence requirements for mothers and fathers.

Mr. Boulais doesn't have standing to challenge those.

He meets both those physical presence requirements.

If the remedy that we seek is imposed, those physical presence requirements will remain and will continue to do the job that the government says they are needed for in terms of addressing the potential for statelessness, but even beyond that, even assuming that it is in the case, the risk of statelessness is not gender specific.

The... there are a number of nations that... and this is set out in the Equality Now amicus brief which was submitted to the Court, there are a number of countries which have laws that are gender neutral so that there isn't any greater risk of statelessness for children of mothers than there is of fathers.

Some of those laws are avail...

Justice Kennedy: Well, but there are some nations that are not in that classification, are there not?

Ms Davis: There are some nations that are not at that level.

There are some nations where there's a greater risk of statelessness for children of fathers, and those children are currently not getting the benefit of the generous physical presence requirements.

For example, Canada has a provision that says that if a child is born abroad and doesn't maintain connections with Canada that they will lose their citizenship by age 28.

Well, by age 28, the child of a U.S. father, the father can no longer transmit the citizenship to the child, so in fact that child of U.S. father is at much greater risk of statelessness than a child of a U.S. mother who had a child with a Canadian citizen abroad.

So the government could much better address its concerns about statelessness by either having a more generous physical presence requirements across the board because it's... any requirement increases the risk of statelessness, so it could have more generous require... more generous provisions across the board or it could have one that's tailored to the specific countries where statelessness is at issue for mothers or for fathers instead of...

Justice Ginsburg: Do I understand though that we are now engaged in an academic discussion?

Because in this case he has no standing to raise that problem since he amply meets the residence requirements, so he can't raise somebody else's case.

Ms Davis: Exactly right.

I mean, the remedy that we seek... the Court would have to go beyond the four corners of the complaint or of the issue here, the case here in order to address the physical presence requirements.

Justice Ginsburg: And the things that hold him back, the two things, seem to me to have nothing to do with the statelessness concern anyway, the formal acknowledgment of paternity and proof of support, of 418.

Ms Davis: That's correct, Justice Ginsburg.

Justice Ginsburg: It has nothing to do with statelessness.

Ms Davis: And as I said, in fact, may increase the risk of statelessness because any barrier that's placed on transmittal of citizenship increases the risk of statelessness, especially absolute cutoff at age 18.

Justice Breyer: Are you saying that children of American parents born abroad, of whom there are millions and millions, are naturalized citizens and could never be President like George Romney couldn't have run for President?

Ms Davis: I'm sorry, the children of parents born abroad are naturalized?

Justice Breyer: Yes, I mean, their... their citizenship is conferred by statute, and they are citizens from birth, and there are probably tens of millions of them, and George Romney was one of them, and I had not thought that they were naturalized citizens.

I thought they were citizens who were citizens by virtue of their birth, and they're citizens from birth, but you were saying they're the same as naturalized.

Or maybe I misunderstood.

Ms Davis: Yes.

Your Honor, the wording of the Constitution is natural born citizens for purposes of being President or Vice President.

And what... I haven't done the research myself.

What commentators say is that natural born is the equivalent of... includes, encompasses jus soli and jus sanguinis.

But that's a different term than naturalized.

Justice Breyer: If that's so, then those who... then those who are born abroad of an American parent are natural born citizens in your view?

Ms Davis: That's correct.

Justice Breyer: Contrasted with naturalized citizens who would have been aliens who previously were aliens and would have become citizens by virtue of a naturalization law; is that right?

Ms Davis: Your Honor, I guess the question is whether the term naturalized in the Constitution also encompasses natural born citizens.

In Rogers versus Bellei suggested that it did.

Justice Breyer: Well, I... for present purposes what we're interested in is what standard of review to apply, and whether the extremely deferential standard applies to these natural born citizens.

Ms Davis: I think it's... I think it's totally clear that jus sanguinis citizenship has a different history than naturalized citizenship and has traditionally by this Court as well as by Congress been treated differently.

Justice Scalia: But has not been called natural born citizenship?

I mean, isn't it clear that the natural born requirement in the Constitution was intended explicitly to exclude some Englishmen who had come here and spent some time here and then went back and raised their families in England?

They did not want that.

They wanted natural born Americans.

Ms Davis: Yes, by the same token...

Justice Scalia: That is jus soli, isn't it?

Ms Davis: By the same token, one could say that the provision would apply now to ensure that Congress can't apply suspect classifications to keep certain individuals from aspiring to those offices.

Justice Scalia: Well, maybe.

I'm just referring to the meaning of natural born within the Constitution.

I don't think you're disagreeing.

It requires jus soli, doesn't it?

Ms Davis: No, Your Honor, I do disagree with that.

I believe that it encompasses jus sanguinis citizenship.

Justice Ginsburg: And any academic right is... there's a debate over that?

Ms Davis: Is a debate over it, that's correct...

Justice Ginsburg: There is a debate over whether my grandson is a natural born citizen.

I think he is.

Ms Davis: whether he can be Vice President.

Justice Stevens: Of course the interesting thing about that provision, it requires that he be natural born at the time of the adoption of the Constitution.

That's what it literally says.

Unidentified Justice: [Laughter]

Ms Davis: To return to that issue briefly, I want to make sure that the Court understands that applying heightened scrutiny does not mean that the government then does not get to make its case, that the concerns about dual citizenship or concerns about statelessness might meet heightened scrutiny.

They can still come forward and in those unusual instances where they can establish that they meet that standard, apply classifications that would otherwise be suspect.

We believe those would be rare cases, but it's not that there is no review.

What it means is simply that you're saying, or that the citizens transmitting citizenship would be able to invoke the same constitutional standards as are usually invoked.

I reserve the remainder of my time for rebuttal.

Argument of Edwin S. Kneedler

Chief Justice Rehnquist: Very well, Miss Davis.

Mr. Kneedler, we will hear from you.

Mr. Kneedler: Mr. Chief Justice, and may it please the Court, the naturalization clause of the United States Constitution commits to Congress the plenary power inherent in the sovereignty of every nation to determine which aliens will be granted United States citizenship.

As this Court said in the Ginsburg case, no alien has the slightest right to naturalization unless all statutory requirements are complied with.

Justice O'Connor: Well, you've heard all these arguments this morning that this isn't a case of naturalization and not part of Congress' plenary power when a child is born of a parent that's a U.S. citizen.

Mr. Kneedler: With respect to that, I think this Court's decision in Wong Kim Ark is dispositive.

There the Court traced the history of United States citizenship with reference to the common law of England prior to the adoption of the Constitution, and in that case the Court pointed out that at common law, in order to be a citizen at common law, it was necessary for the person to be born in England.

The citizenship conferred on people who were born abroad to British subjects was conferred only by statute.

In other words, it was not regarded historically in England as a fundamental...

Justice Breyer: That's not so.

I mean, you're right in saying by statute.

Normally in all countries citizenship was conferred by statute.

The Fourteenth Amendment was passed to the problem of slavery.

But statutes traditionally transmitted citizenship most cases through blood.

Isn't that true?

And so would you say that when the United States passes a statute like any other country that transmits citizenship through blood that they treat that person who results as a citizen the same way precisely as a naturalized citizen?

Mr. Kneedler: Yes, I'm not disputing that.

The point I'm making is that this Court held in Wong Kim Ark and also held in Rogers v. Bellei that the conferral of citizenship on someone born abroad to a United States citizen is encompassed in the naturalization clause, and the important thing about Wong Kim Ark is the Court distinguished persons born to U.S. citizens abroad not on the ground that that was a more fundamental form of citizenship, but if anything, a less fundamental form of citizenship.

Justice Breyer: So, in other words, in your view, the hundreds of millions of people by now who may have been born abroad of American parents are suddenly subject, when their constitutional rights are at stake, to a less basic review by the courts than citizens who are born in the United States?

Mr. Kneedler: No, once...

Justice Breyer: Citizens of service people, citizens of millions of people who have lived abroad?

Mr. Kneedler: Once the person is a citizen, of course, then that citizen, like every other citizen, is entitled to all the rights of a citizen under the United States Constitution.

But the question here is who will be entitled to enter the citizenship of the United States to begin with, and in that respect we think this case is identical to... at least as strong as Fiallo versus Bell, and, if anything, stronger, because it is not merely the question of who will be entitled to physically enter the United States, but who will be regarded as a member of our society on a permanent basis.

Citizenship is essentially irreversible.

An alien can be expelled.

A citizen is a permanent member of the community.

Chief Justice Rehnquist: Mr. Kneedler, when you say, when you say in effect that all citizens are treated alike, certainly a naturalized citizen in the nonargumentative use, someone who has been an alien and comes here, can have his citizenship revoked.

Mr. Kneedler: Oh, absolutely.

No, I didn't mean to suggest... yes.

It's absolutely clear that a naturalized citizen can have his naturalization revoked.

For example, if it was procured by fraud, but the other important... and this was significant in Rogers v. Bellei, which had to do with the constitutionality of a condition subsequent for a citizen, a person who was born abroad to United States citizens.

In that case, it was the parallel provision here in 1401 (g) until, I believe, it was 1978, someone in that situation had... the child had to reside in the United States for some period of time after birth in order to establish the requisite connection with the United States, and that was challenged on the ground that the person having been declared a citizen at birth, there could not be a condition subsequent to perfecting it.

And this Court upheld that provision in Rogers v. Bellei, and importantly, it did so by distinguishing the children of U.S. parents born abroad from those who are born in the United States with the suggestion that Congress has greater latitude with respect to the naturalization of those persons than it does to others, precisely because they are not encompassed by the terms of the Fourteenth Amendment.

The Fourteenth Amendment refers to citizens who are born or naturalized in the United States, and the Court pointed out that persons who are born to United States citizens abroad do not fall within that description and therefore are not citizens for Fourteenth Amendment purposes.

Justice Stevens: So, if any... may I ask just a question.

Are there any statistics anywhere that tell us the size of either of the classes of children born abroad of an unmarried female parent and those born abroad of an unmarried male parent?

Do we have any idea how many people are going to be affected by this decision?

Mr. Kneedler: I'm sorry, I do not know the totals.

I think the statistics that were cited in this Court's opinion in Miller v. Albright suggest that the pool is probably larger for the U.S. citizen, children of U.S. citizen fathers rather than mothers, which I think, by the way...

Justice Scalia: That's unquestionable, isn't it?

And isn't that perhaps one of the reasons behind the differentiation in this statute?

There are large populations of children of United States servicemen in the Far East and in Germany, and... service personnel.

And I expect very few of these are the children of female service personnel.

Mr. Kneedler: I think that's true.

And one point I wanted to make, Justice, an aside here, that goes, that would go critically to the question of remedy in this case.

If we were...

Justice Ginsburg: Mr. Kneedler, before we get to that, why would it?

You said it in your brief.

It seems to me you have a tremendous hurdle in the beginning.

If the notion is that there are these men out there who are being Johnny Appleseed around, to prove by clear and convincing evidence that they are the father, for the person to even... the woman even to identify this person seems to me an... but most of the cases of men who don't want to be fathers who have in fact have sired children abroad, it isn't difficult at all to escape that obligation.

All they have to do is say, you know, I have nothing to do with this person.

I met her once, and that was it.

Mr. Kneedler: Well, I think there is probably a wide variation of the fact pattern.

I took the question to mean...

Justice Stevens: I thought we were assuming it was not... I thought we were assuming with modern techniques that it's very easy to establish the relationship now.

What is our assumption, it's difficult or it's easy?

Mr. Kneedler: Well, I took the question to be identifying the father who is...

Justice Ginsburg: Once we find out who he is...

Mr. Kneedler: Right, right, and even...

Justice Ginsburg: It may even take an awful lot of resources to find out who he is, to get him to take it.

Mr. Kneedler: It may or may not, but if the possibility of citizenship was available to people who had no prior assumption that they had any claim to United States citizenship, it is valuable enough in the world community that we would expect people to look for it.

Justice Stevens: In many, many cases, all the child would have to do is ask his mother.

Mr. Kneedler: In many cases that is correct.

I would like to go back to the point about Fiallo v. Bell because, as I said, I do believe this case is controlled by Fiallo v. Bell, if anything, the reasons for the deference to congressional powers are stronger here than they were in Fiallo v. Bell.

Justice Ginsburg: Before you do that, Mr. Kneedler, you did say something.

I keep worrying about this grandson of mine.

You said that he's not a citizen for purposes of the Fourteenth Amendment, but I assume he had the same equal protection rights and due process rights...

Mr. Kneedler: Absolutely.

Once a person is a citizen, they are a member of our national community and entitled to all of the rights of any other citizen.

Justice Ginsburg: But you think he might be denaturalized, the way a naturalized citizen could be?

Mr. Kneedler: There would have to be, certainly as a statutory matter and perhaps as a constitutional matter, some defect in the original naturalization or the original...

Justice Ginsburg: But there was no naturalization.

Mr. Kneedler: No, but that's why I think the prospect... I mean, I suppose if in a situation like this the child was recognized as a U.S. citizen on the ground that the parent was a U.S. citizen and then it turned out that the parent was not a U.S. citizen after all, then the child's citizenship could be revoked on the ground that it was fraudulently or improperly procured, so it would be a situation with a factual predicate for the grant of citizenship in the first place.

Justice Breyer: The problem with those things is usually, is insofar as you get a lesser degree of, for example, procedural protections, in certain instances there are conflicts about what the facts are, and insofar, if it is ever true that a person who is involved in naturalization gets less than full judicial review, would that same be true of, say, my daughter or millions of others, say, servicemen's children who are born abroad and who the children of servicemen and women who are abroad and not born in the United States?

Mr. Kneedler: I would think...

Justice Breyer: Naturalized people get lesser protection, less than full review.

Mr. Kneedler: I believe that if the question ever arose of the denaturalization of someone who was born abroad to United States citizens, the same standards would apply to anyone who was naturalized in the United States and therefore is a Fourteenth Amendment citizen, and I believe the standard for denaturalization is clear and convincing evidence.

I'm not sure of that, but I believe that's correct.

Justice O'Connor: I'm concerned that your time will expire before you've addressed either point that may be critical here... the application of Fiallo and if we disagree with you and think there's some equal protection problem, what about the remedy?

Will you try to touch on both of those.

Mr. Kneedler: I will.

In fact, with respect to Fiallo, we think that all of the reasons why deference to the political branches in this area applied to immigration in Fiallo apply equally here, first of all in Fiallo itself, the Court lumped together immigration and naturalization at page 79, I believe it's 792 of its opinion, in describing Congress' plenary powers.

And also first of all a reason why Fiallo applies is it's a question of who is going to enter our society.

Certainly the children or parents in Fiallo were seeking to come into the United States with the hope eventually of being citizens.

In Fiallo it was a two-step task.

Here it's a one-step, but we don't think that the analysis in Fiallo should change on that.

And therefore deciding who should be a citizen is also an aspect of who is an alien.

They are flip side to the same question.

And Congress has plenary power to control which aliens will be entitled to enter the United States.

Third, it's intimately tied up with foreign relations, and again this is a point that was made in Fiallo itself.

There the Court rejected the proposition at page 730 that the concerns about foreign relations only have to do with situations where there are grave threats to the national security or the general welfare of the United States.

The Court said it had never deferred to the branches depending upon whether there was some threat of that nature or some more individualized determination as to who will be entitled to enter the United States.

Justice Ginsburg: Mr. Kneedler, I have this problem with it.

You would surely have a huge statelessness problem if you didn't recognize that the child born abroad to U.S. citizens is a U.S. citizen because, as you point out in most countries in the world, they go by blood, not by land of birth.

So... but you don't have that situation with... an alien coming to our shores is a citizen of someplace.

So the... you call the child born abroad an alien, but in most places in the world that child would not be a citizen of the place in which that person is born; isn't that so?

Mr. Kneedler: Well, again, that may depend.

I mean, if you have a child born abroad to two U.S. citizen parents, that may be true, it may not be true, depending on the country.

Justice Ginsburg: Well, I thought you said in your brief that in most places, and I think it's right, they do not go on just solely, they go on the parentage.

Mr. Kneedler: Yes, there are countries that go both ways, but what...

Justice Ginsburg: But the person coming in in Fiallo is a citizen of someplace.

Mr. Kneedler: That is true, and of course someone declared to be a citizen under this statute may also be a citizen of someplace else as well.

There are questions of dual nationality that can arise.

Justice Ginsburg: But you brought up the problem, you said one of the reasons for this is that the child and the mother will be a citizen of no place if not of the United States.

Mr. Kneedler: That is the justification for the shorter residency requirement because that is apt to be true in many cases, but the broader point...

Justice Kennedy: And on that point, you heard obviously the colloquy between me and the petitioner's counsel.

Petitioner's counsel indicates, oh, well, there are statements, problems on the side of the father, too, just as great.

Mr. Kneedler: They are certainly not just as great.

There may be an isolated country here and there where the problem would arise, but your question and Justice Ginsburg's questions highlight another reason for deference to Congress in that area, and that is that Congress has to strive to make the laws of this nation with respect to immigration and naturalization respond or make sense vis-a-vis the laws of not just one other nation, but many, many other nations.

Justice Ginsburg: Mr. Kneedler, if Congress went back to the way it when was everything was determined by the father's citizenship, go back before 1934, suppose Congress accepts your argument or we accept your argument and say plenary power, they can do whatever they damn please, so they say children born abroad of fathers who are U.S. citizens can become U.S. citizens, but not children who are born abroad of U.S. citizen mothers where the father is an alien.

That's the way it used to be in the bad old days.

I take it from your argument if Congress wanted to go back to that, it would not offend anything in the U.S. Constitution to do so.

Mr. Kneedler: It would be subject to judicial review, and under the facially legitimate bona fide standard of Kleindienst v. Mandel and Fiallo, it would be necessary to ask what Congress was up to in a situation like that, so we are not suggesting that there is...

Justice Ginsburg: Suppose Congress wants to restore the way it was, the way it was for most of our Nation's history, that the father's citizenship gets transferred to the child, not the mother's?

Mr. Kneedler: Given the developments of equal protection under the law in this country, this Court might well conclude that it would not be facially legitimate for Congress simply to decide to go back to as you described it, the bad old days where all rights were thought to derive from the father or the husband.

So we are not suggesting that.

But this law, this law is fundamentally different from the situation that you are positing.

This law...

Justice Ginsburg: You said that might violate equal protection, but even under some plenary power notion.

Mr. Kneedler: The standard that the Court applied in Fiallo v. Bell was that... was the facially legitimate standard drawn from Kleindienst v. Mandel.

The law is subject to scrutiny, and whatever rationale is posited has to be regarded by this Court as legitimate.

Justice Ginsburg: Is there any case in all the area where they do apply the lesser standard that has ever come out against the government, against the classification that Congress made?

Mr. Kneedler: I believe the Wauchope decision that struck down the provision that you're referring to, the pre-1934 decision, if I'm remembering correctly, the Ninth Circuit decision I believe invalidated it under that standard.

Justice O'Connor: Could the statute we're considering here meet heightened scrutiny to think that applied?

Mr. Kneedler: We believe it could because fundamentally what this is about is trying to put fathers of children born out of wedlock abroad in a position where they can do the same thing that a mother can in order to put them on an equal plane with women.

It is not a product of trying to discriminate.

It is a product of trying to put men or fathers in a position where they can do the same thing that mothers can do.

And let me explain why...

Justice Souter: Why wouldn't the simpler way to do that be simply to have one uniform support or recognition standard?

I mean why do you have to have differential standards in the statute if that's all you want to do?

On your... on the factual assumptions that you are making, which may well be true, it would be easier for the children of American mothers born abroad to satisfy the standard, but that doesn't seem to be an argument for having differential standards.

Mr. Kneedler: Well, if I may explain what, as we understand it, is going on here precisely, and that is that Congress made a judgment that it wanted, while the child is still a minor, for there to be established a legal, formal recognized relationship between parent and child.

After the child is no longer a minor, at that point the child is an adult and can seek citizenship in his own right.

In this very case, petitioner Nguyen could have applied for citizenship in his own right after he became an adult and did not do so.

The idea is that under these naturalization... this naturalization provision, while one is still a child, one is under the care of the parent.

After adulthood, that's not so.

So what Congress was focusing on was not just biological paternity, but a recognized formal relationship that outside people could look at and say, yes, that is a father-child or mother-child relationship.

Justice Souter: So why not have the same criteria to determine whether that relationship, if proven, is adequate for citizenship purposes?

Mr. Kneedler: We believe that... let me start by explaining what the situation is for married parents.

When you have a child born to married parents, you have a legal relationship with mother and father at the moment of birth.

With the mother by virtue of the birth and with the father by virtue of the marriage to the mother.

That marriage legitimates the child and establishes a legal father-child relationship.

Where you do not have married children, there is no lawful relationship... or legal relationship between man and woman, that in turn creates a legal relationship between father and child.

Something else needs to be done.

In the case of the mother, the mother's relationship to the child, the legal relationship is established at the moment of birth in the same way as it is for a married mother.

The mother's name will typically be on a birth certificate or, at the very least, the birth will be witnessed by all present.

There will not be any question, just to the biological maternity...

Justice Souter: But all goes to, it seems to me that this all goes to matters of proof.

What you're pointing out is that it would be much easier for the child of the American mother to prove the things that perhaps we would all agree should be proven if citizenship is to be recognized, but I don't see how it goes to the justification of the differential standards.

Mr. Kneedler: Well, it's not a differential standard.

With all respect, it is an attempt by Congress to equalize two situations that start out quite unequal because, as I described, at the moment of birth the mother has a legal relationship with the child, that is true in the United States.

It is true virtually throughout the world.

The child is born to the mother, the mother has custody as a legal matter, and before that child can be taken away from the mother, the mother would have to give it up, relinquish rights, legal rights, or they would have to be taken away from her.

In the case of the father that is not true until paternity is established in some formal or legal way, and all that Congress has done here is said that that has to be done before the age of 18, and as this Court's...

Justice Ginsburg: You're talking to children not born to a marriage because...

Mr. Kneedler: Yes.

Justice Ginsburg: It used to be in the old days, even though the mother bore the child, she was not the parent that counted.

Mr. Kneedler: Right.

Prior to 1986 the only way that that legal relationship could be established with respect to the child who was born out of wedlock was by legitimization, and...

Justice Breyer: Why before 18?

1986.

Mr. Kneedler: Because Congress...

Justice Breyer: Either way.

Mr. Kneedler: Because Congress decided that derivative citizenship from a U.S. citizen should only apply while the child is, in fact, a child.

You have the formal legal relationship which can then be a springboard for a practical relationship between parent and child, but not only that, citizenship itself is a formal relationship between the citizen and the country, and Congress could reasonably conclude that in order to recognize a formal legal relationship between a child in the United States, a central element of that, the relationship of the child to parent should have a comparable formality and recognition so that it is recognized by the father and child and by those looking at that relationship as not just a biological relationship, perhaps even a deep biological relationship, but a lawful, formal recognized one that the rest of the world and this country can look to, because citizenship, in fact, carries rights and responsibilities on behalf of both the citizen and the nation, rights of protection, rights of duties to serve in the Armed Forces, and Congress could reasonably decide that it is not sufficient that out there somewhere during a child's minority there was someone who was a biological parent.

It is necessary that the formal legal relationship be regarded as in existence during the minority.

Justice Breyer: This presupposes that the father accepts all this, I mean, but just doesn't do it in the way that it's said, or suppose a mother.

I mean, you understand the problem.

You can create situations where the mother is not the caretaker, where the father is the caretaker, and you get everything the other way around.

What is the answer to that?

I mean, what's the... or you could be in a country where it doesn't descend one way or you could be in a state where they have different relationships.

I mean, why not tie it to the relation or the statelessness or to the thing you're aiming at rather than to gender?

Mr. Kneedler: Well, one of the things that Congress is aiming at is the existence of the legal relationship by 18.

That's set forth explicitly in the statute.

Justice Scalia: We do that even domestically, don't we?

I mean, we do not treat biological fathers as necessarily having any rights, whereas we do treat biological mothers as having rights from the outset.

Mr. Kneedler: That is correct, unless and until the father's paternity is formally established.

Justice Souter: Isn't that the crucial point?

Isn't it the case that if you were arguing this case 20 years ago before DNA testing had become current, one of your arguments and one that we might well accept would be, there's a terribly difficult problem of proof here, and one of the interests of the United States is to avoid fraud in claims of citizenship.

But that issue is gone now, isn't it?

Mr. Kneedler: It's not entirely gone because while DNA... it's important not to focus solely on the domestic situation in the United States in looking at this law, and that goes both with respect to assumptions about proving paternity and assumptions about what the law is or ought to be.

The other nations in the world are not necessarily living under the same availability of medical care, the same...

Justice Souter: Well, if that's the case, then the proof of the relationship is simply going to be much more difficult for the child who is in this other country without the benefit...

Mr. Kneedler: That's true, but the age 18...

Justice Souter: And how does the United States suffer simply because under a nondifferential standard the child abroad without a DNA lab nearby is going to have a tough time proving the relationship?

Mr. Kneedler: Yes, although the age 18 would help to deter some fraudulent claims, but that's not our principal submission here.

Our principal submission is that the recognition of the legal relationship is itself a legitimate interest, and in this respect we think this case is very similar...

Justice Souter: And isn't the answer to that then require the indicia of recognition to be the same for mothers and fathers?

Mr. Kneedler: Well, Congress could reasonably conclude that with respect to mothers, and this is true of both mothers in wedlock and out of wedlock, that the legal relationship is established at the moment of birth.

This Court pointed that out in the Lalli decision and pointed it out... we quoted page 34 of our brief from this Court's decision in Lehr v. Robertson which we think is very instructive.

There the Court said the mother carries and bears the child.

In this sense her parental relationship is clear.

The validity of the father's parental claims must be gauged by other measures.

And again this is not just proof.

Justice Souter: That simply means that Congress has nothing to lose by a differential standard.

It simply means that the child of the mother is going to have an easier time proving it.

Mr. Kneedler: But if Congress could conclude that in virtually every case that requirement is satisfied at the moment of birth, it would be unnecessary to require the mother to go through that, and in fact if that sort of requirement would be imposed now there could be all sorts of children of U.S. citizen mothers who would never have taken a step like that.

Justice O'Connor: Mr. Kneedler, your time is almost up.

Not a word yet about remedy.

Well, he's had no choice with all the...

I know, but I think we need to talk about it briefly if we could in any time remaining.

Mr. Kneedler: Yes.

Justice O'Connor: Suppose we think there is an equal protection problem and remedy has to be addressed.

Mr. Kneedler: On the remedy...

Justice O'Connor: You have a severability clause, so...

Mr. Kneedler: There is a severability clause, but we think the proper remedy would be to sever 1409 and put the ball in Congress' court to decide how to deal with this particular problem.

We think that's true for several reasons.

For one thing, if this Court were to broadly declare that a whole new category of persons were United States citizens there may be some question as to whether Congress could undo that.

That, coupled with the point that this Court made in Ginsberg and Pangilinan that it's questionable whether a court can ever declare someone to be a citizen when Congress has not so declared, we think way powerfully in the direction of striking section 1409 and letting Congress decide what is the proper remedy in the situation.

Justice Ginsburg: Mr. Kneedler, how does that differ from the clause of the Constitution that says no money shall be drawn from the treasury but in consequence of appropriations made by law, no money, and yet you know the whole line of cases from Frontier out to Wescott that this Court thought was compatible with that clause.

I don't see any difference, frankly, between those two.

Mr. Kneedler: Because in our view the admission to citizenship is so central to the formation of our society and... our society under the Constitution that it is fundamentally different, and this Court says...

Justice Ginsburg: No money shall be drawn from the treasury but in consequences of appropriations made by law.

Mr. Kneedler: Right, and in the situations you're describing, you're describing situations that arise wholly in the domestic context.

Here we have...

Justice Stevens: May I ask you just one brief question.

After our decision in Miller against Albright, did anyone in Congress raise this issue for further consideration, to your knowledge?

Mr. Kneedler: I'm not aware whether a bill was introduced.

I did want to point out one further, one last thing on the question of remedy.

If one thing is clear from 1940 until 1986, it is Congress did not want U.S. citizenship to pass solely by virtue of mere biological paternity.

Congress insisted on something more in 1940 and 1952 and 1986, in 1952.

In all of those situations, Congress moved to make things easier for U.S. citizen fathers to transmit citizenship.

From 1952 to 1986, only legitimization, which often meant marrying the mother, was adequate.

In 1986 Congress tried to ease things to make it easier for U.S. citizen fathers to put themselves in the same position as U.S. citizen mothers, by providing for the acknowledgment of the child in writing so that it would not be necessary to resort to the varying state laws regarding legitimization or elsewhere.

The last point I would like to make with respect to... two other points.

One, this is a transaction that occurred abroad, not in the United States.

It involved one alien and one U.S. citizen.

This is not a situation in which the heightened scrutiny under our Constitution would ordinarily be thought to apply because of a solely domestic setting, but I should point out that...

Rebuttal of Martha F. Davis

Chief Justice Rehnquist: Thank you, Mr. Kneedler.

Ms. Davis, you have two minutes remaining.

Ms Davis: Thank you.

First, in response to Justice Stevens' question about whether or not any bill was introduced in Congress, no, there was not.

Mr. Kneedler spent a great deal of time talking about the legal relationship which he asserts is automatically established at the time of birth between a father and child.

In fact, as this Court knows, that to the extent that that exists, it's a legacy of coverture and common law discrimination which this Court has previously condemned in Frontiero versus...

Justice Stevens: Do you think Lehr against Robertson was correctly decided?

Ms Davis: I'm sorry?

Justice Stevens: Do you think Lehr against Robertson was correctly decided?

Ms Davis: Your Honor, I think it can be distinguished from this case, aside from my view of its propriety.

This... in Lehr versus Robertson the issue required the state to decide between competing parents, and to do that quickly because of the emotional trauma involved with the adoption.

Here there isn't any need to create a hierarchy between parents, any need to create those kind of classifications to make that decision proceed quickly, and so therefore, the government interests are different...

Justice Ginsburg: Is there a problem for the child in Lehr?

Lehr, one of the grave concerns I thought was holding up an adoption, holding up placing a child in a secure setting.

Here you have none of that.

It would benefit the child, surely, to be a U.S. citizen.

You're not hurting the mother.

It's worlds different from Lehr.

Ms Davis: Right.

Exactly, Your Honor.

And so, no, I don't believe that a ruling in our favor in this case would require this Court to reassess the decision in Lehr.

In addition, the Court asked about the question of the numbers that would be involved here, and there's no indication in the legislative history that the Congress has been concerned about that in looking at this statute, as Mr. Kneedler just indicated.

In fact, the statute has progressively gotten more liberal, and I think that that underscores the fact that in... as this Court looks at the intent of Congress in crafting a remedy that the Court should take into account, that Congress has progressively gotten more liberal in addressing this issue.

Most recently in 1986, the Congress eliminated the... or reduced the ten-year residency requirement down to five years.

Now, that had presumably a significant effect on the additional numbers of individuals who could seek transmission of citizenship under this law.

Yet, there was no mention of that in the legislative history as being a factor that was influencing in any way Congress' view of this.

In addition, there are other indicia of Congress' intent.

One is that Congress has itself moved away from this notion...

Chief Justice Rehnquist: Thank you, Miss Davis.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Boy Scouts of America v. Dale - Oral Argument

Fri, 09 Jan 2009 14:50:18 +0000

Case:

Boy Scouts of America v. Dale

Media File:

99-699_20000426-argument.mp3

Related Transcript:

1999_99_699_argument.xml

Clips:

Transcript:

Argument of George A. Davidson

Chief Justice Rehnquist: We'll hear argument now in Number 99-699, Boy Scouts of America and Monmouth Council v. James Dale.

Mr. Davidson.

Mr. Davidson: Mr. Chief Justice, and may it please the Court:

This case is about the freedom of a voluntary association to choose its own leaders.

The New Jersey supreme court has held that the State and not Boy Scouting may decide who will wear the Scout leader's uniform and act as a role model of Scouting's values for a group of 10 to 15 boys in a Scout troop.

Far from a business networking organization, Boy Scouting is so closely identified with traditional moral values that the phrase, he's a real Boy Scout, has entered the language.

Justice Kennedy: Do we take this case as one in which Dale was terminated because of the reasonable likelihood that he would use his position to advocate for his cause?

Mr. Davidson: Your Honor, Mr. Dale had created a reputation for himself by the newspaper article which appeared, and which... the reputation which would have carried into the troop meeting and affected his ability to be a role model to the youths in his troop.

Justice Kennedy: So if it were simply called to the Scouts' attention that he was a very private person, but had said to his family that he was a homosexual, that he could still be terminated?

Mr. Davidson: Well, as Mr. Dale alleges in his complaint and reaffirmed in his summary judgment affidavit, Scouting does not investigate the sexual orientation of applicants and only excludes those that are open about their sexual orientation.

The cases we have had have been people that have been in the newsletter, or have written a letter for Boy Scouts, were recruited as testers by Act Up and that sort of thing, so the case, Your Honor, as posited we haven't seen.

Justice Kennedy: Well, what is the position of the Scouts in the case that I have posited?

Mr. Davidson: Well, I would be prepared to defend any decision they might make in that situation.

I think that's their right under the Constitution...

Justice Kennedy: Is that on the grounds that from his status a certain amount of advocacy is likely?

That's what I'm trying to get at.

Mr. Davidson: Well, Boy Scouts is concerned about two things, expression and conduct inconsistent with the oath and law.

Boy Scouts is not concerned about status.

Justice Souter: Well, if a Boy Scout... well, let's just keep it at troop leaders for now.

If a troop leader simply said to other officials, not to the newspapers, not in any public forum anywhere, I am a homosexual, would he be excluded from his leadership position for that alone?

Mr. Davidson: If the... whoever heard whatever statement was made learned that the person intended to engage in homosexual conduct felt that that was an appropriate...

Justice Souter: That wasn't my question.

I mean, you may want to elaborate on that, but if he simply says, I am a homosexual, would he be excluded from a leadership position for that?

Mr. Davidson: As I said in response to Justice Kennedy's question, that precise question hasn't come up.

I believe that there would be the right to do that.

Justice Ginsburg: But you're defending an expressive policy, and that's one of the things that's confusing.

Are you saying the policy is don't ask, don't tell, or is the policy, if you are gay you are not wlecome in the Boy Scouts?

Which is it?

Mr. Davidson: The policy is not to inquire.

The policy is to exclude those who are open.

That's alleged in the complaint.

It's not been an issue in the case.

That's what Mr. Dale alleges...

Justice Souter: Well, do we answer the...

Justice O'Connor: Well, where do we look, though, to determine what the policy is, because it is a little confusing, and let me add another question to the mix, and maybe you can clarify for us where we look.

What about the heterosexual Scout leader who openly espouses the view that homosexuality is consistent with Scout law and oath, and that it's not immoral?

Mr. Davidson: If a...

Justice O'Connor: Now, what about that person, and where do we look to see what the Boy Scout position is on these things?

Mr. Davidson: If that person were to advocate that position through Scouting channels in an effort to change policy, that would be permissible.

As the record indicates in Mr. Bishop's affidavit and Mr. Kaye's testimony, if such a person were to advocate the morality of homosexual conduct to youth in the program, that person would be excluded and, indeed, one of Mr. Dale's affiants was excluded on that ground.

Chief Justice Rehnquist: Well, I take it from what you're saying, Mr. Davidson, that perhaps the Scouts have not adopted a comprehensive policy covering every single conceivable situation that might come up.

Mr. Davidson: Mr. Chief Justice, the Scouts have general moral principles in the morally straight and clean requirements of the oath and law, and they have to be interpreted by Scout leaders in situations as they have come up and certainly, in the case of those who have... Mr. Dale has alleged are openly homosexual are not permitted to be Scout leaders, in furtherance of the efforts to pursue those moral values in youth.

Justice Kennedy: So you want us to decide this case without reference to the likelihood of any public advocacy?

It's just not necessary for us to address when we decide this case, in your view?

Mr. Davidson: Certainly not in Mr. Dale's case, who has really constantly reiterated his intention and desire to be open, and has had considerable media attention both before the case was filed and subsequently.

Justice Kennedy: But you don't find that a necessary predicate for your case here?

That's all I'm trying to ask.

Mr. Davidson: I'm saying that the First Amendment would protect application of exclusion of other people in other circumstances, but they're not presented here today.

Justice Scalia: When you... I'm not sure what we're talking about when we say exclusion of people who are not openly homosexual.

I mean, what if someone is homosexual in the sense of having a sexual orientation in that direction but does not engage in any homosexual conduct?

Mr. Davidson: Well, if that person also were to take the view that the reason they didn't engage in that conduct would it would be morally wrong...

Justice Scalia: Right.

Mr. Davidson: and that's the view that would be communicated to youth, that case has not come up, but it's my understanding of the policy that that person would not be excluded.

Justice Ginsburg: But somebody who was homosexual and celibate, but who said, in my view it isn't morally wrong, would such a person be excluded?

Mr. Davidson: Justice Ginsburg, I'm not sure I got the nots right in that question, but if somebody said it was morally wrong, and that they didn't engage in it but did have homosexual inclinations, I believe that that person would be eligible for leadership, as I understand the policy.

Justice Ginsburg: So again you're saying it's not the status of being gay or being candid about who you are but...

Mr. Davidson: It's about the message that would go to youth in the program.

The youth... in accordance with a desire to...

Justice Ginsburg: Well, I'm... I just... I don't understand what is the Boy Scouts' policy, and I think we've all asked about that.

Is it... I took it from one of your answers that it is don't ask, don't tell.

Am I wrong about that?

Mr. Davidson: The practice is not to inquire into the sexual orientation of leaders.

The policy derives out of the morally straight and clean requirements of the law.

There's formal position statements in the record attached to Mr. Rowley's affidavit that Scouting requires homosexual conduct, regards homosexual conduct as immoral and for that reason does not appoint openly homosexual persons in the role model position of Scout master.

Justice Ginsburg: Does that go for cohabiters also?

Mr. Davidson: I'm sorry, I couldn't quite...

Justice Ginsburg: People who live together, heterosexual unions but not blessed by marriage.

Mr. Davidson: Well, there's certainly adulterers or other people that have engaged in heterosexual behavior which Boy Scouts has not regarded as morally straight who have been excluded.

Justice Ginsburg: I don't mean... just, the incidence of living together before marriage is not so uncommon these days.

I didn't refer to an adulterer.

Mr. Davidson: Right.

Justice O'Connor: Two people who live together but they're not married.

Mr. Davidson: I know of no particular instances of application of the policy in that connection.

I was just trying to give a more general answer that heterosexual conduct which is not regarded as morally straight has resulted in the termination of leadership positions, or not welcoming someone into leadership in the first place.

Justice Souter: Is it fair to say, then, that anyone who is openly homosexual and whose admission, or profession of that fact would be likely to come to the attention of the Boy Scouts themselves, be excluded?

Mr. Davidson: That's correct, Your Honor.

The boys are...

Justice Scalia: Openly homosexual in the sense of practicing homosexuality?

Mr. Davidson: Well, being openly homosexual in... communicates the concept that this is okay.

This is an alright lifestyle to pursue.

Whether the...

Justice Scalia: That the sexual expression of it is okay?

Mr. Davidson: Absent some further statement that it would be immoral to act on the impulses, in the culture in which these statements are made we talk about coming out.

We don't talk about coming out as Canadian or heterosexual or anything else.

This is a statement fraught with moral meaning.

Justice Souter: Is it... and I take it... we may have touched on this, but I take it that the position that you've just described is not stated anywhere in a Boy Scouts manual, or even a troop leader manual?

This is in effect sort of Boy Scout common law.

It's determined by the council, and the council makes individual decisions, and that's the way the policy is expressed, is that correct?

Mr. Davidson: Well, the record shows, although the actual article is not in the record, that in the magazine sent to all adult Scouters in 1992 there was an article about the policy, so it's not a stealth policy, but the general principle of morally straight is really very, very widely known in the Scouting movement.

It's...

Justice Souter: The general principle is, but this particular application of the Scouts' view of the principle I take it is not stated in any official manual, either the handbook for boys that the Scouts get, or a troop leader's manual, is that right?

Mr. Davidson: Well, in Mr. Dale's 1972 Scout master's handbook there is a reference in dealing with incidence of sexual activity that might occur in a troop that speaks disapprovingly of homosexual conduct, but there's not a...

Justice Souter: But that's...

Mr. Davidson: formal policy statement in the troop... in either of those, of the publications, nor is there anything about adultery or any other... or a number of other...

Justice Souter: And I...

Justice O'Connor: But...

Justice Souter: I take it you've just touched on something that I think... again, I think I understand your position, but I want to be clear.

I understand that the Scouts' position on this does not in any way depend on a judgment that Mr. Dale is... presents or would present an undue risk of homosexual conduct with the Scouts in his troop, is that correct?

It's not a fear of conduct?

Mr. Davidson: Absolutely not, Your Honor.

In fact, the issue of possible sexual abuse is one that's very important to Scouts.

Every Scout handbook and Scout master handbook comes with an insert which is in the record at 2248 which talks about sexual abuse at some length.

It never mentions the word homosexual.

In fact, the only thing it says about gender is that there's a rising incidence of abuse by female adults.

Justice O'Connor: But that's not at issue here.

Mr. Davidson: That's...

Justice O'Connor: It's not alleged, and that's not the basis of it.

Mr. Davidson: not alleged.

It's not the basis of policy in any way.

Justice O'Connor: All right.

Now, clarify for me, because I... it is not clear to me yet.

A heterosexual male adult who wants to be a Scout leader who openly espouses the view that homosexuality is not immoral, and that it is consistent with Scout law and oath, is that person qualified for membership as a troop leader?

Mr. Davidson: That person could take that position in Scouting Councils to urge that a change be made, but if that... unless that person were willing to... if that person were to take that position to the youth in the program and urge it on the youth in the program, that person would not be able to continue as a Scout leader, and that's why Mr. Rice was terminated.

Justice Kennedy: How about if he alleged in the community... one moment, just... how about if he just made speeches about this in the community as a whole?

Mr. Davidson: Well, I think this is a situation which, if it would be likely to come to the attention of the youth in the program, it would be open to...

Justice Kennedy: All right.

Mr. Davidson: Scouts to terminate that person's membership.

I can't cite a case that that's happened.

Justice Breyer: Did anything happen here, other than what's in the complaint, which I take it was that Mr. Dale, sometime in the past, was a member of the Gay Alliance at a university, gave some seminars, was interviewed then, and it was in the newspaper.

Then he received a letter of termination.

Mr. Davidson: Right.

He was then and there the copresident of Rutger's Gay and Lesbian Group.

Justice Breyer: All right, yes, but there's nothing other than that, and when you use the word open, that's what open refers to, is talking to the newspaper reporter about his previous membership in the Gay Alliance?

Mr. Davidson: No, no.

He was then a member of the Gay Alliance at the time he was... yes.

Yes.

Justice Breyer: We're... are we thinking of the same thing?

Mr. Davidson: Oh, I'm sorry.

Justice Breyer: I'm thinking of a seminar that he was at, and there was a newspaper article about him, is that right, which is in the complaint?

Mr. Davidson: That's correct, Justice Breyer.

Justice Breyer: And that's it.

Mr. Davidson: That's...

Justice Breyer: It's on the basis of that that he's terminated, and when you use the word open, you're referring to that?

Mr. Davidson: Right.

Justice Breyer: All right.

And now, if a similar person had said every word exactly the same, but he was not gay, and it was... would he be terminated?

Mr. Davidson: Well, it would be open to Scouts to make that determination, and it's also open to Scouts to...

Justice Breyer: Well, of course, it's always open to the Scouts to decide whom they're going to hire and not, but what I'm saying is, is there a policy that it would be identical were that person not gay?

Everything's the same, newspaper article, et cetera.

It just happens that the person being heterosexual says, and I think it's great, I think it's fine, okay.

That's all.

He did that at college.

Would the Scouts terminate him?

Mr. Davidson: I have no information as to how that situation would be resolved.

I would observe that it would be open to the Scouts to conclude that somebody who is himself presenting a personal example, as well as advocating, might be more unacceptable than somebody who was merely advocating.

Justice Kennedy: I want you to proceed with the rest of your argument, but in answer to Justice Souter's question as to what documents, what about the 1978 memorandum, I think it was, that's quoted in the California supreme court case, which is a question and answer format, in which a high executive of the Scouts, I had thought, indicates that homosexuality in its troop leaders is incompatible with Scouting?

You didn't give that in your answer to Justice Souter, and...

Mr. Davidson: Well...

Justice Kennedy: it seemed to me that that was a rather strong statement.

Mr. Davidson: There are several position statements, of which that's the first, to the effect that Scouting does not appoint avowedly homosexual leaders.

Whether the word avowedly is used in each statement or not, the policy is not to ask, so it only comes up when a person is wearing it on their sleeve.

But 5 years ago we came to this Court in an amicus curiae brief in the Hurley case to catalogue the numerous public accommodations cases that were being brought around... against the Scouts around the country, and the case we bring here today we submit is a stronger case than Hurley in several respects.

In Hurley there was no readily apparent parade, message in the parade.

Here, we have a moral code, which has been recited in unison at virtually every meeting by all the adults and boys in the program since 1910, in which they promise to be morally straight and clean in thought, word, and deed.

Justice Stevens: May I ask right there, is it the position that a person who is a homosexual, engages in homosexual conduct, cannot fit that definition?

Mr. Davidson: That's correct, Your Honor.

Justice O'Connor: May I ask also whether it makes any difference in the balance that the Court strikes that the Scouts are a federally chartered institution and that Government entities such as schools and fire departments and police departments and so on sponsor troop units?

Does that make a difference, particularly if the governmental unit itself takes the position that it would disagree with this determination that the Boy...

Mr. Davidson: Let me answer both of those questions in order.

As to the Federal charter, virtually everything conducted in the corporate forum is necessarily chartered by a Government entity and, as this Court said in the Gay Olympic Games case, San Francisco Arts and Athletics, that doesn't deprive a corporation of its private character.

With respect to Government sponsorship, everybody who sponsors a Scout troop signs on to follow Scouting's values and procedures.

If, for political or legal reasons, they shouldn't be doing that, their remedy is to not continue to support Scouting.

Justice Kennedy: Well, I must say, I found it somewhat difficult to assess the relevance of this web of relations that the Boy Scouts have in New Jersey with schools and fire departments.

I'm puzzled about what weight, if any, to give to that.

If you prevail on your First Amendment argument here, and you prevail in this case, do you think the schools and the fire departments (a) would be permitted, or (b) required, under New Jersey law, to sever their relations with the Scouts?

Mr. Davidson: Well, with respect to the... we have governments that are begging Scouting to go into Cabrini Green housing projects, and to have cub packs at women's prisons, but Scouting itself has pulled back considerably from goverment, taking the Career Awareness Exploring Program back and making it a nonmembershp activity which doesn't involve oaths or membership or anything like that, so that many police and fire departments are no longer sponsoring Scouting units, because that's been moved over to Learning for Life.

But I'm not sure if Your Honor was based on, as a matter of New Jersey law, or a matter of constitutional law.

Justice Kennedy: Well, no one thinks that... or has suggested that this makes you a State actor, so I think the Fourteenth Amendment is out, but just as a matter of New Jersey law it would seem to me that the schools and the fire departments, to comply with the New Jersey law as interpreted by the supreme court, would have to sever the relation.

Perhaps I'm wrong.

Mr. Davidson: Justice Kennedy, that may well be.

Justice Scalia: Are they places of public accommodation?

I don't know.

I... if you...

Mr. Davidson: Justice Scalia, Kansas has held that a school is not a place of public accommodation, but there's authority in other States the other way.

I don't know of any New Jersey authority.

Justice Scalia: Anyway, your point is if Government giving any assistance to the Scouts is a problem, you'd rather, no thank you, not have the assistance than have to change your policies.

Mr. Davidson: Right.

The Scouts have said many times that their policies are not for sale, and if it costs the sponsorship, well that's... so be it.

Justice Stevens: May I ask one follow-up question to the one I asked before... if homosexual conduct violates the Scout code, being straight and so forth, why is it relevant whether the man is open or not?

Mr. Davidson: Well, in two respects.

First, if nobody knows about it, it doesn't become an issue.

Justice Stevens: But assume the Scouts find out about a person but he hasn't... he just unwittingly let them find out, not intending to.

Mr. Davidson: If it becomes known to the Scouts, the person would not be an appropriate role model and presumably would not be permitted to continue.

Justice Stevens: So the policy is not limited to open gays.

It's limited to all people...

Mr. Davidson: It's known or avowed.

In practice, it has been avowed, and rather publicly avowed.

Justice Stevens: But my case is the one where it's found out against the wishes of the person who wanted to keep it secret, and wanted not to let the boys in the Scout troop know about it, but the administration finds out about it.

As I understand your position, he would be treated just like this man.

Mr. Davidson: Right.

The right is that of Scouting to choose the moral leaders it wants for the children in the program.

Justice Ginsburg: But there were some briefs that suggested that Boy Scout troops who had taken the position not simply inside Boy Scout councils, but openly, that they welcomed Scout leaders without regard to sexual orientation.

The chapters... troops had been open about that, and yet their charters hadn't been revoked.

Is that so?

Mr. Davidson: There's some reference to troop 260 in one of the affidavits in the joint appendix.

We should have but did not put in an affidavit in response to that from Grant Robinson, the Scout executive in the area where that troop was involved, indicating that the troop did agree to follow the policy in... so as to be rechartered.

That Robinson affidavit can be found at 4760 of the record.

I had...

Justice Ginsburg: So you are saying that it... that a troop could only within the Boy Scouts' own councils, not in discussion with the young members of the troops, and not to the general public.

Mr. Davidson: That's correct, Justice Ginsburg.

Justice Breyer: You don't ask.

You don't ask.

I mean, if it never comes out, you don't make any effort to find out, is that right?

Mr. Davidson: That's correct, Justice Breyer.

Justice Breyer: All right.

How are we supposed to know... and this is genuinely bothering me.

I don't... how are we supposed to know whether the basic principle that the Scouts is operating on is thinking that this is very, very bad conduct, or is simply being quite concerned about public reaction?

I mean, if it were very, very bad conduct, it's surprising you don't look into it, but if what you're concerned about is public reaction, it all makes quite a lot of sense.

Justice Scalia: Do you ask, Mr. Davidson, if Scouts or proposed Scout leaders are adulterers?

Is that one of the questions?

Mr. Davidson: No, Justice Scalia.

Justice Scalia: Do you ask if they're ax murderers?

Mr. Davidson: No, Justice Scalia.

Justice Scalia: There are a lot of things you don't want them to be that you don't ask about, is that it?

Justice Breyer: My basic question is, how do I know, how are we supposed to find out whether the policy reflects very great concern about the conduct, or reflects very great concern about public reaction?

That was my question, and how do we decide the mix of that?

Mr. Davidson: Well, I'm not sure as a matter of First Amendment law that one might decide for public reaction reasons to have a certain policy.

I'm not sure of the legal relevance of that distinction.

Justice Breyer: That was something I was going to figure out later.

Unidentified Justice: [Laughter]

Mr. Davidson: But...

Justice Breyer: And I'm... though I'm interested in your view, if you think this is...

Mr. Davidson: There's been no evidence that would raise any question of fact on that issue.

There's been no question that the statements, the position statements aren't authentic and weren't issued by who they said they were issued by.

There's simply no basis for any such conclusion.

Justice Souter: Mr. Davidson, let me tell you one of the problems that I've got under the expressive association claim, and that is in weighing the strength of your interest under the First Amendment as against the State's claimed interest, if we get to that point, and it's quite true, as you've made it plain, and Justice Scalia's question made plain, that the official publications, the things that we immediately look to, the handbook, the material that's routinely given to Scout masters, does not expressly address this problem, and it does not expressly address the problem of ax murderers or adulterers and so on.

But we're at a point where this has become a fairly serious issue for the Scouts.

You've had a lot of litigation on it, and here you are in the Supreme Court of the United States, and shouldn't we... or maybe we shouldn't... find some significance in the fact that the Scouts have not officially addressed this in any of their publications and taken an explicit stand in the various manuals that it puts out.

Is that something that we should fairly consider in weighting the Scouts' expressive interest on this point?

Mr. Davidson: Justice Souter, this issue came up in one case in 1981, the Curran case.

It never came up again for 10 years, until Mr. Dale sued in 1992.

The... there's no obligation to talk about every single application of the morally straight policy in every manual to enjoy First Amendment protection.

Every single Scout leader in 1992 read about this in a magazine article sent to them by Boy Scouts of America.

This is a far stronger case than Hurley in terms of the message that Scouting is sending, as compared to the parade leaders.

This is a case...

Justice Souter: Well, except that... I mean, I ask the question in terms of the expressive association claim.

You're... the problem in simply drawing a parallel to Hurley is that we're not at the point where anyone is using the Boy Scouts, or proposing to use the Boy Scouts for expression.

Mr.... the... Mr. Dale has not, in effect, asked to carry a banner.

He's saying, I'm not going to carry a banner, I'm not going to get into it, so there's a little difficulty with the Hurley analogy.

Mr. Davidson: Justice Souter, he put a banner around his neck when he put... got himself into the newspaper and Scout leaders throughout Monmouth Council sent the article in to headquarters.

He created a reputation.

This is a place he goes once a week, a camping trip once a month, summer camp for a week.

These are people that see him all the time.

He can't take that banner off.

He put it on himself and, indeed, he has continued to put it on himself in this week's Time Magazine, the Out 100, the New York Times...

Justice Souter: But in effect... I understand what you're saying, but you're saying he has created a kind of public persona for himself and therefore simply for him to be in the Scouts in that position does carry a message, and I understand that, that that's different from Hurley.

Mr. Davidson: Well, it's as if, in... the GLB marchers sought to put on the uniform of the South Boston War Veterans Council.

It requires Boy Scouting to identify with that message that Mr. Dale has created.

Mr. Chief Justice, I would like to reserve a bit of time for rebuttal.

Argument of Evan Wolfson

Chief Justice Rehnquist: Very well.

Mr. Wolfson, we'll hear from you.

Mr. Wolfson: Mr. Chief Justice, and may it please the Court:

The State of New Jersey has a neutral civil rights law of general applicability that is aimed at discriminatory practices, not expression.

The law protects gay and nongay people within New Jersey against discrimination based on their sexual orientation.

Although it is one of the least private public accommodations in the country, BSA is here today asking this Court to specially excuse it from compliance with that content-neutral...

Justice O'Connor: Mr. Wolfson, I suppose literally the policy of New Jersey would require the Boy Scouts to admit girls as well.

I mean, that's a status based on the sex of the young woman, and presumably your position would be they'd have to take girls as well.

Mr. Wolfson: Actually, that would not follow, Justice O'Connor...

Justice O'Connor: Why not?

Mr. Wolfson: for several reasons.

First of all, because...

Justice O'Connor: Isn't that a status?

Mr. Wolfson: The New Jersey law itself, Your Honor, specifically creates an exemption for those public accommodations that are reasonably restricted, in the statute's words, to single status, and therefore the statute itself recognizes that there may be instances in which an organization that is nevertheless a public accommodation does not fall within the sex proscription otherwise in the statute.

Justice Souter: Yes, but if we accept your position and New Jersey changes its law, New Jersey drops its exemption, then, I take it, as Justice O'Connor suggested, it would fall out that the Boy Scouts would have to admit girls.

Mr. Wolfson: Well, in that unlikely event, Justice Souter, that they were to actually drop this exception, which clearly is embedded in the law, that would... it still would not follow, and this Court certainly need not reach that decision here today, because even were an organization under that public accommodations obligation, they would nevertheless then be able to make a First Amendment argument with regard to the burden on their expressive purposes and their ability to delivery their message, and that would be the case that would then be before the Court on whatever record exists there.

Justice Souter: Well, they don't have an antigirl message, do they?

Mr. Wolfson: No, Your Honor, they do not.

Justice Souter: And...

Mr. Wolfson: They do not, and in fact...

Justice Souter: And they're saying that they do have... however they may have expressed it, they do have an antihomosexual expression message, so I suppose in the case of the girl who wanted to be admitted their position would be weaker than it is here.

Mr. Wolfson: Well, actually, Your Honor, there's far more in the record with regard to Boy Scouts' self-identity and purposes and concepts, and perhaps their peda... excuse me... pedagogical approach, et cetera, that relates to boys, beginning with the name of the organization, right on, than there is in this record at all with regard to any effort to convey the asserted, implicit view on homosexuality that, as several questions of the Court indicated, is not reflected...

Justice Ginsburg: But this is... you are relying on cases that involve exclusion of women, and there's a certain irony in that you're relying on the Jaycees case and the Rotary case, and this statute of New Jersey does include sex, as well as sexual orientation, and I don't even think New Jersey has said that the exception would cover such an organization.

You're speculating that it might, but is the best that you could come up with is that the Boy Scouts have an expressive policy against... I don't know what.

What...

Mr. Wolfson: Well, to answer your question, Justice Ginsburg, the best I can come up with regard to the admission of girls is that obviously that question is not presented before this Court, and the statute itself, and the legislature in enacting the statute, clearly intended to proscribe sex descrimination of the kind reflected in this Court's precedent, acknowledged in this Court's precedents with regard to Jaycees and others, acknowledged that nevertheless there may be some programs and some institutions that are able to show a reasonable restriction to single sex.

This Court need not reach the question on this record, and I'm certainly not here to defend any such exclusion, but this Court, in ruling for Mr. Dale, would have to... would be addressing the record here, which shows an absence of any burden on Boy Scouts' ability to convey or express any message with regard to sexual orientation or homosexuality which the record reflects, in fact, is not conveyed to youth members and is not conveyed to any adult member or sponsoring organization or Scout master to communicate to the youth, and that is the much stronger record that supports our position here.

Justice O'Connor: Well, what about a gay or lesbian group that takes the position that it does not want heterosexual members to participate, or be admitted?

Mr. Wolfson: What the State of New Jersey...

Justice O'Connor: You would presumably think that this law would prevent that as well.

Mr. Wolfson: That's... if that organization were a public accommodation, Your Honor, that had opened itself to all, that falls within the category of meeting those criteria, then that's correct, Your Honor.

What the statute proscribes, what New Jersey has prohibited, is identity-based discrimination by...

Justice O'Connor: Do you think there's a difference at all in application of such a policy to commercial entities and groups, as opposed to private membership groups?

Does that weigh in the balance at all?

I mean, I can well understand how a public accommodation law should apply to commercial groups, or even to groups such as Jaycees, which essentially depend on a commercial nexus for its membership.

Justice Breyer: Should it apply, do you think, or should the weight we give it in the context of a First Amendment claim be the same for a purely private organization?

Mr. Wolfson: I have two answers to that, Justice O'Connor.

The first is that this Court has never held that the State's important interest in eliminating discrimination, as Roberts said, in the political, econmomic, and cultural life, and opportunities that present to people a matter of great importance to people, is limited to the commercial sphere, and there are good reasons why it should not be so limited.

My second answer would be that Your Honor in the Jaycees case, as, obviously, you're aware, talked about the importance of the significance when an association chooses its market, but in your opinion and, I think, correctly broadened beyond that, the choice of a market does not only refer to a choice to enter the commercial sphere, and this...

Chief Justice Rehnquist: Well, Mr. Wolfson, if we compare the antidiscrimination laws such as New Jersey has enacted with the sort of Fourteenth Amendment principles of equal protection, the... you know, we start out with people, with kind of immutable characteristics, blacks, national origin, and then presumably homosexuals are not quite the same.

Supposing we would get even further.

I... one of the briefs does, the City of Boston, includes in its prohibition against discrimination ex-convicts.

Now, supposing New Jersey were to pass a law like that.

At some point the compelling State interest is considerably dissipated, isn't it?

Mr. Wolfson: Well, first of all, we do not honor, Mr. Chief Justice... sorry.

We do not argue, Mr. Chief Justice, that a compelling interest is required here.

The first step in the analysis would be any burden on the specific expressive purposes of the organization seeking to exercise its burden of showing an exemption from the statute, and then the Court, if necessary, would proceed to weigh that against a State's interest, but those need not be compelling.

But to specifically answer your question, Mr. Chief Justice, the determination as to what is entitled to strict scrutiny, and in that meaning of the word compelling, with regard to Federal constitutional law, is not the same compellingness, or significance of interest that the Court would assess with regard to assessing the State's interests against discrimination.

Chief Justice Rehnquist: But wouldn't the State's interest be weaker if we're talking about, say, ex-convicts being discriminated against than it would about blacks being discriminated against?

Mr. Wolfson: Well, as this Court has clearly acknowledged, for example, in the Romer case and in the Hurley case, where it talked about the legitimacy and appropriateness of State civil rights laws that include sexual orientation discrimination within the cluster of prohibited classifications, in Romer the Court...

Chief Justice Rehnquist: Well, that doesn't really answer my question at all.

I asked you if the State interest would be weaker if we were talking about ex-convicts.

Mr. Wolfson: I think on this record it's difficult to answer that question, Your Honor, except that I would say that I think this Court would look to factors like, for example, the history of discriminiation that has disadvantaged people according to a particular classification, and every court that is...

Justice Scalia: People certainly haven't liked ex-cons for a long time.

Unidentified Justice: [Laughter]

Mr. Wolfson: That's correct, Your Honor, and...

Justice Scalia: A discrete and disadvantaged minority, or hopefully a minority.

Justice Kennedy: Your answer to this line of questioning seems to suppose a dichotomy between an entity that's a public accommodation and an entity that has expressive rights.

Surely there can be both.

Mr. Wolfson: Oh, absolutely, Your Honor, as the Jaycees case and others recognize.

Justice Breyer: If that's so, then in your view a Catholic organization has to admit Jews, a Jewish organization has to admit Catholics, and you can't have... I mean, there are many.

The B'nai B'rith has to have... oh, I mean, I don't know if they do or not, but I mean, it seems odd.

That's your view of the constitutional law?

Mr. Wolfson: No, Your Honor.

The first step that the court looks to is whether the organization is the kind of organization that qualifies as a public accommodation.

Justice Breyer: We don't look to that.

Mr. Wolfson: No, that's correct, Your Honor.

Justice Breyer: So if the State of New Jersey were to say our poublic accommodations law applies to the Knights of Columbus, B'nai B'rith, every possible organization, if they were to say that, look to that, what would we do as a matter of constitutional law?

Mr. Wolfson: The constitutional question that would be before the Court in that case, as in this case, is whether the organization has born its heavy burden of winning an excuse from compliance with the law based on its ability to show, as the Roberts and other cases make clear, a specific expressive purpose that brings its members together that is being significantly burdened by the exercise...

Justice Breyer: Well, it need... suppose that it says this is basically a Jewish orgnaization, or this is basically a Catholic organization.

Mr. Wolfson: Well...

Justice Breyer: And it is.

Suppose it is.

Then what?

Mr. Wolfson: Well, that may very well be the kind of criterion that would have taken it out of being a public...

Justice Breyer: Fine.

If that's so, if that's what we're supposed to do, then how are we supposed to determine, in your opinion, whether or not the relationship of the antigay to the Boy Scouts is or is not fundamental, or core, in the way that the... in the way that I've just described in respect to other organizations?

Mr. Wolfson: Right.

There are two ways that I would answer that question, Justice Breyer.

The first is to say that the approach set forth in the Roberts trilogy, in the cases in which these same kinds of claims have been assessed, is that the Court looks first for that specific expressive purpose that brings the members together, not simply the views that some may happen to hold, and not simply a policy or a practice of discrimination.

That's, of course, present in every case.

That's why we're in litigation in the first place.

The Court does a limited, threshold inquiry, according to the Roberts line of cases, to...

Justice Scalia: Why doesn't that exist here?

That's what I don't understand.

I mean, is there any doubt that one of the purposes of the Boy Scouts, if not its primary purpose, is moral formation, the Scout's oath, and all that good stuff?

Isn't that what you say... he's a Boy Scout, as you say.

Mr. Wolfson: Right.

That's correct, Your Honor, and...

Justice Scalia: Okay.

So moral formation is.

You concede that.

Mr. Wolfson: Is a...

Justice Scalia: And they say, and I don't know why we have any power to question it if the leadership of the organization says so, that one of the elements of that moral formation is that they think that homosexuality is immoral.

Now, how does that not make it an essential part of Scouting's purpose?

Mr. Wolfson: What New Jersey has prohibited, Justice Scalia, is identity-based discrimination in its membershp practices.

It has not limited what Boy Scouts may say.

It has not limited its ability to express whatever message it wishes to express.

It has not limited its ability to require that members...

Justice Scalia: You think it does not limit the ability of the Boy Scouts to convey its message to require the Boy Scouts to have as a Scout master someone who embodies a contradiction of its message, whether the person wears a sign or not?

But if the person is publicly known to be an embodiment of the... of a contradiction of its moral message, how can that not dilute the message?

Mr. Wolfson: Assuming, arguendo for your question, that they have established that is such a message and such a purpose that they wish to convey... I will assume that to answer your question, Justice Scalia... nevertheless, a human being such as Mr. Dale is not speech.

A human being is certainly not speech as to a view, or as to a message, other than perhaps the message, I am who I am, I am here, and this Court has taken great...

Justice Scalia: I don't know that our law requires that it be speech.

I think our law simply prevents the State from diluting or imperiling the message that an organizaiton wants to convey, whether the State does it by speech, or whether the State does it by dropping a bomb.

It seems to me that's what's going on here.

Mr. Wolfson: Well, no.

What's going on here, with respect, Justice Scalia, is that the BSA bears the obligation of showing that it needs a First Amendment shield to excuse it from this neutral law, content-neutral law.

Justice Kennedy: Well, you seem to assume in your answer... I think you assume in your answer to Justice Scalia that the Boy Scouts do have a moral message.

Mr. Wolfson: I accepted that for the arguendo, for the purposes of...

Justice Kennedy: Well...

Mr. Wolfson: answering Justice Scalia's question.

Justice Kennedy: who is better qualified to determine the expressive purpose and expressive content of the Boy Scouts' message, the Boy Scouts or the New Jersey courts?

Mr. Wolfson: What this Court would look to, as the New Jersey supreme court looks to, is the record as to what burden is placed on the organization's members' ability to deliver the specific expressive purpose for which they come together.

That's what the right protects.

Chief Justice Rehnquist: Well, are you saying, Mr. Wolfson, that it has to be a definite expressive purpose?

I mean, supposing you have some of the kinds of organizations that Justice Breyer hypothesized: we're a Catholic organization and we just feel much more comfortable with Catholics, and we do Catholic work, or a Jewish organization

Now, they don't have any great message of... substantive message.

Can they be required under a... if a public accommodations law such as New Jersey's is construed as broadly as New Jersey's is, to take on non-Catholics, or non-Jews?

Mr. Wolfson: Well, with respect, Your Honor, I don't believe that that's how the public accommodations law would be interpreted with regard to those organizations, but accepting that arguendo, the question before the Court would be, is there a specific expressive purpose of those organizations that is impaired or infringed, warranting...

Chief Justice Rehnquist: So...

Mr. Wolfson: and if I may, I just want...

Chief Justice Rehnquist: Well, but let's get away for a moment, because my question was intended to direct you away from freedom of speech to freedom of association.

Mr. Wolfson: Yes.

Chief Justice Rehnquist: Which is also guaranteed by the First Amendment.

Mr. Wolfson: That's correct, Your Honor, as an instrumental right in furtherance of the expression of the members.

Chief Justice Rehnquist: Well, now, I don't... what's your authority for saying that freedom of association is simply an instrumental right to further expression of the members?

Mr. Wolfson: That was the statement of this Court in Jaycees, for example, Your Honor.

This Court has declined, Mr. Chief Justice, to recognize some kind of free-floating of freedom to disassociation that can be exercised in the absence of some kind of expressive purpose as a defense against civil rights laws, for that would swallow civil rights laws, and that's what this Court held in the Jaycees case and others.

Justice Kennedy: Well, of course, I'm not sure that the Scouts have made their principal arguments the right of intimate association.

They're arguing the right of expression.

Mr. Wolfson: I'm sorry.

I mean to say expressive association.

Justice Kennedy: And in almost all of your answers it seems to me that you say once there is a public accommodation, that right of expression is somehow secondary, or somehow must be subordinated.

You simply cannot find that proposition in our cases.

Mr. Wolfson: I totally agree, Justice Kennedy.

I'm certainly not arguing that at all.

What I'm saying is that this Court has held that the creation and implementation of public accommodations laws fulfilling those important interests is a legitimate and important exercise of a State's power, and what is at issue here, Justice Kennedy, then is, has this organization shown that for its First Amendment expressive purposes there is a burden on its ability to convey its messages warranting excusal from that law.

Of course, the First Amendment would trump the public accommodations law in such a setting, but this Court has made it very clear that it will not simply allow the mere statement, we don't want to comply with the civil rights law, to be the exception that defeats the civil rights law.

Justice Souter: All right.

Let's assume, then, that the Boy Scouts tomorrow morning take formal steps to amend all of their official statements of objective, and they say in the Boy Scout manual, the troop leader's manuals and so on, that it is essential to our objective of moral decency that homosexual conduct not be permitted, and that those who avowedly engage in it or believe, indeed, that it is appropriate, may not be members of the organization.

Would your case, on your view, then be different?

Mr. Wolfson: It certainly would be a different case, Your Honor.

To ask that hypothetical gives an example of the...

Justice Souter: Well, New Jersey law does not change.

The New Jersey law in effect is saying that you may not make these kinds of status-based determinations.

Mr. Wolfson: That's correct, Your Honor, but if I understood the hypothetical you were giving, there were two elements in it.

Justice Souter: Yes.

Mr. Wolfson: One was this establishment of a specific expressive...

Justice Souter: Right.

Mr. Wolfson: purpose that has in fact not been shown here...

Justice Souter: Yes.

Mr. Wolfson: with the additional point that the organization is actually requiring that it be conveyed to members and others.

Justice Souter: Does the case, then, turn on the... sort of the discussion that we were having with your brother a while ago on the sufficiency of the Boy Scouts' statement of its position as essential to its message?

Does it turn, then, on how well they have made their message known?

Mr. Wolfson: No, Justice Souter, although we do make that argument, and make that point, and that is the threshold inquiry that the Roberts case and others has said this Court...

Justice Ginsburg: May I ask you just on that point, because it seems to me disturbing, when this case went off on summary judgment, and the fact that there were cross-motions.

If I move for summary judgment, I say my case is so strong I should get summary judgment, no trial is needed.

But if I lose on that, it doesn't go that necessarily then judgment must be entered against me, because I can say, I think this record is so clear that I win, but if it's not all that clear, then give me the chance to show that this is really what my policy is, and that didn't happen in this case, did it?

I mean, there were... the... both sides were so sure of their positions they moved for summary judgment, and so when you talk about, well, they didn't prove, I'm a little uneasy, because there was no trial giving them that opportunity.

Mr. Wolfson: Well, I'm making two points, Your Honor.

First of all, they did have an ample opportunity to put forth the millions of pages of documents.

This is not an organization that's shy about publishing, as the Court has seen, and there's literally nothing there.

But beyond that, Justice Ginsburg, this Court need not even come to that point, and this is what I was starting to want to continue with with Justice Souter, which is that even were you to assume that they have the implicit moral they say they have, what they have failed to show is that their expressive messages, that their activities are burdened, and that they... and they further have to be able to show...

Justice Souter: Well, if they assume that they make their message not implicit, as you characterized it, but explicit in the way that I suggested in my hypothetical, is there not then a message which would clearly be burdened by having avowedly homosexual people in leadership positions?

Mr. Wolfson: Then that would go the point raised by Justice O'Connor's question quite a time... some time ago and picked up by other members of this Court, which is that they in fact permit, and the record is undisputed on this, nongay members and nongay sponsoring organizations, including the amici and others who participate...

Justice Souter: Oh, and that might be a very good argument in that eventuality, but I take it that the fact of their having made the message explicit would entitle them to make a claim which you think they're not entitled to make here, and that is that they have a message which is quite clearly being burdened by avowedly homosexual people in ledership positions, and your argument then would be, well, you're not consistent about objecting to the burden, but they would be able to make a burden argument which, as I understand it, you think on this record is illegitimate, is that correct?

Mr. Wolfson: It would be correct they would then have a stronger showing of an expressive message, but that is only one piece of what they need to show...

Justice Souter: Yes, and... but doesn't it fall that if their message is clear, the burden upon the message, by putting an avowedly homosexual person in a leadership position, would be burdened in a way that they cannot, on your view, show it would... a message would be burdened now.

The two sort of go together.

Make the message clearer, the burden becomes clearer...

Mr. Wolfson: What they still would have had... well, that's correct up as far as it goes, but it doesn't mean it shows the significant burden that then gets to...

Justice Souter: But it shows a more significant burden than you believe they are entitled to be given credit for now?

Mr. Wolfson: That's correct, but...

Justice Souter: Okay.

Mr. Wolfson: this Court should also...

Justice Scalia: So if this is the basis on which you prevail, what you will have succeeded in doing is inducing the Boy Scouts of America to be more openly and avowedly opposed to homosexual conduct in all of its publications.

Is that what this case is all about?

Mr. Wolfson: Actually, Justice Scalia, there is most likely a reason why they have not... why they in fact concede in their own brief that they are not an antigay organization, and they do not require members and sponsors and Scout masters to inveigh against homosexuality, or to teach anything about sexual orientation...

Justice Scalia: They...

Mr. Wolfson: and the reason for that, Justice Scalia, is not so much that they're afraid of losing the gay people.

It's that they are afraid of losing the nongay people who, as Justice O'Connor's question pointed out, do not agree with this policy, whose charter is renewed year after year after year, despite their not sharing this moral view, or having disagreement over this, because that's not why they come into Scouting.

Justice Scalia: I think there's a distinction between being an antigay organization and having a policy of disapproving of homosexual conduct.

You don't have to have as your raison d'etre to oppose homosexuality in order to believe that it is part of your moral code that that conduct is inappropriate, and that's the position that the Boy Scouts have taken.

Mr. Wolfson: But what this Court...

Justice Scalia: You insist that they go further and make that a prominent part of their promotion.

Mr. Wolfson: It's their burden, Justice Scalia, to show that their specific expressive purposes, not simply views they hold implicitly, but the expressive purposes of conveying any such views, are significantly burdened, and then that those outweigh the State's interest in this neutral law.

The State...

Justice Breyer: How do we do that?

That is, I'm back to Justice Scalia's earlier question, and the Chief's.

Maybe you've answered it.

I'm not sure.

I think we both agree that a basically Jewish or a basically Catholic organization, expression or not, maybe association, would be immune under the First Amendment.

B'nai B'rith, Knights of Columbus, et cetera.

I mean, you know... don't we agree about that?

Mr. Wolfson: They certainly draw in many other strands, free exercise or other principles that would protect them as well.

Justice Breyer: Do we agree that those basically religious groups, religiously oriented groups don't have to admit people of the other religion?

Mr. Wolfson: Beginning with the exception in the statute and on, Justice...

Justice Breyer: Forgetting the statute...

Justice Stevens: You're saying that if the church was a public accommodation they could keep out non-Catholics?

Mr. Wolfson: I'm sorry, Justice Stevens.

Justice Stevens: You're saying that if a church were a public accommodation... I'm not suggesting a State would do that...

Mr. Wolfson: No.

Justice Stevens: that, but here we've got... that the church could then deny admission to the church, to non-Catholics, the Catholic Church?

Mr. Wolfson: Well, in the unlikely event that it were a public accommodation, which it would not be, then what we also have operating with religion, and perhaps this goes to your question, Justice Breyer, is that that's addressing people on the basis of views.

It's addressing people on the basis of message and expression.

It is not the identity-based discrimination.

Justice Breyer: My question was... maybe we don't agree on the assumption... that if there are some groups, say religiously oriented groups that could keep out people of the other religion...

Mr. Wolfson: Yes.

Justice Breyer: that on the other hand if you take these basic organizing principles and push them to the periphery, so that now they're only a peripheral principle, and you accept that, you could submerge all civil rights laws?

You said that at one point.

In other words, if you take what is a basic principle, and say the same law applies if it's just a secondary or tertiary or sort of peripheral principle, if we accept that as an excuse, there will be no civil rights laws left.

Mr. Wolfson: Certainly, if...

Justice Breyer: All right.

Fine.

If... so I thought we were agreeing about those two things, and then I wanted to know what the Court is supposed to do to figure out when an association claims that a principle is very important, whether it is really central, or whether it is one of these things that you call peripheral, or tertiary, that it would submerge the civil rights laws.

Are we supposed to... how are we supposed to find that out?

Mr. Wolfson: With respect, Justice Breyer, I don't know that it turns on centrality so much as it turns on, in the words of the Court in the Roberts trilogy, specific expressive purpose, and the things that this Court would look to are, in the threshold inquiry would look to what does the record show with regard to purposes that bring the members together?

Who are the members?

What are they saying?

What are they stating?

In the case here we have the amici, who clearly do not agree, and who constitute a huge share, not to mention the public entities, of the sponsors and members and participants of this organization.

But my further argument is that even where you assume arguendo that they have this implicit moral view, what the record clearly shows here is that they do not require any Scout master or sponsoring entity or whatever to convey that to youth, and in that case it's an easy determination for this Court to see that there's no burden on this conveying of expressive message central, specific or otherwise, because they themselves do not convey it.

They themselves don't do it, and therefore these...

Justice Ginsburg: Mr. Wolfson, there seems to be some conflict on that point, because I believe counsel for the Boy Scouts told us... he referred us to a page in the record that that one troop... its charter was continued only when it agreed that it was going to have... adhere to this policy, and that it wasn't going to advocate gays are okay.

Mr. Wolfson: But Mr. Dale is not here to advocate that he be allowed to advocate that gays are okay within Scouting, nor does New Jersey tell the Boy Scouts what they can or can't say within Scouting, nor does it tell them that they can't limit what is said within Scouting.

What it tells them is, identity-based discrimination, the equation of a human being with forced speech, or a speech, or an assumed message, is off the table.

Justice Souter: But of course, they're saying that it's not merely identity-based discrimination.

They're saying it's advocacy-based, that by making the public statements that he has made, he in effect has put himself in a position of being identified, understood by people as an advocate, and therefore if he's in a leadership position in the Scouts, by that very fact he's going to carry sort of the aura of the advocacy with him.

How do you respond to that?

Mr. Wolfson: Well, in this specific case, Your Honor, Mr. Dale was expelled for taking part in a seminar outside of Scouting, in which he made no connection to Scouting, in which he asserted a view that, as questions have indicated, had nongay people asserted them, would have been perfectly fine and they would be entitled to remain in Scouting.

Justice Souter: Well, your opposing counsel I think gave us an example of nongays who were taking that position who were challenged by the Scouts and backed down, so I don't know whether the differential treatment is as clear as I thought when I came in here.

Mr. Wolfson: Actually, Justice Souter, the record is crystal clear with regard to all the amici, all of the sponsoring organizations, from the United Methodist Church to the Reform Jewish groups, to the public schools and others, who make clear that their charter is renewed year after year, despite their difference... in fact, their not even knowing that this was part of the alleged expressive purpose that they were supposed to be conveying, and...

Justice Souter: Okay.

Have they... do they... go ahead.

Justice Scalia: The sponsoring group is not the group that conducts the Scouting activities.

Mr. Wolfson: Actually, Justice Scalia, it is indeed the group that conducts... what Boy Scouts does is franchise its program... that's its word... to the sponsoring entities who own and operate, Scouting says, the Scouting program.

Chief Justice Rehnquist: Thank you, Mr. Wolfson.

Mr. Wolfson: Thank you, Mr. Chief Justice.

Rebuttal of George A. Davidson

Chief Justice Rehnquist: Mr. Davidson, we'll give you a minute.

You don't actually have quite that much.

We'll be generous.

Unidentified Justice: [Laughter]

Mr. Davidson: Mr. Chief Justice, we've been in litigation on this precise issue for the last 19 years and 5 days, and I would just say this, that if you have to dissect each butterfly in order to classify it, there are not going to be many butterflies left.

Thank you.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

Featured:

NCAA v. Smith - Oral Argument

Fri, 09 Jan 2009 14:50:14 +0000

Case:

NCAA v. Smith

Media File:

98-84_19990120-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Carter G. Phillips

Chief Justice Rehnquist: We'll hear argument now in No. 98-84, National Collegiate Athletic Association v. R.M. Smith.

Mr. Roberts.

Justice Roberts: Thank you, Mr. Chief Justice, and may it please the Court:

This case is here from the Third Circuit which held that the NCAA would be covered by title IX if it received dues from member institutions which receive Federal financial assistance.

That decision is wrong and should be reversed.

It's wrong because Court has held that for an entity to be covered by title IX, or any of the other statutes with the same Federal funding trigger, the entity must itself be a recipient of Federal financial assistance.

The Court said just that in the Paralyzed Veterans case.

Quote, Congress limited the scope of the law to those who actually receive Federal financial assistance.

End quote.

Later in the same opinion, the Court said that these laws, quoting again, require us to identify the recipient of the Federal assistance.

End quote.

And it also explained why that is so.

Justice O'Connor: But we've also said that it can be... it can indirectly be a recipient.

Justice Roberts: In the Grove City case, Your Honor, but the test is the same.

Whether a direct recipient or an indirect recipient, the entity must be the intended recipient under the grant statute or program.

And the reason for that is clear, the condition... the prohibition on discrimination is imposed as a condition on the receipt of funds.

So, it is limited to those who accept the funds and thereby agree to the condition.

That is consistent with the Court's decision last term in Gebser which reaffirmed that construction and the rationale.

The discriminatory acts of the school employee in that case did not automatically trigger a damage action under title IX because title IX's coverage is limited to recipients.

The recipient was the school district, not the employee, and therefore the question was what did the school district know and what did the school district do or not do.

Justice Kennedy: Does Paralyzed Veterans modify the regulation that's involved in this case, 34 C.F.R.... what 106.h?

Justice Roberts: 106.2(h).

I think it can be read... the regulation could be read... consistent with Paralyze Veterans.

As even the Solicitor General acknowledges, all of the regulations impose obligations only on recipients.

And the regulation doesn't say, as the Third Circuit thought, that it was enough that you operate an educational program or activity.

Justice Kennedy: Well, it said directly or through another recipient.

Justice Roberts: Directly or through, a reference to the holding in Grove City that you can be an indirect recipient.

But the test is still the same.

Whether indirect or direct, are you the intended recipient?

What the Court said in Paralyzed Veterans is to find the recipient, you have to look to the...

Justice Scalia: How do you smuggle in intended recipient?

I mean, sometimes you say recipient, and then... and then you say intended recipient.

Do our opinions say intended recipient?

Justice Roberts: Well, Grove City is the case that I'm... I'm thinking of, and there what the Court... the checks were made out to the students.

But the statute that gave the money said this is to provide assistance to institutions of higher education.

The money could only be spent on tuition at those institutions of higher education.

Justice Kennedy: Well, if we didn't have Paralyzed Veterans or Grove... the Grove case, would you read the regulation naturally your way so that there has to be an intent?

Justice Roberts: Well, I think...

Justice Kennedy: I don't see where you get that from the face of the regulation if we talk just about that.

I recognize you have the gloss of the case.

Justice Roberts: Yes.

The regulation says that the receipt can be indirect, but it is still... you still have to be a recipient.

And it is not enough simply to trace the money.

And because you are paid by a recipient of Federal funds, that doesn't mean that you are also a recipient of Federal funds.

Justice Scalia: I don't understand that.

You're... you're not a recipient unless you're an intended recipient.

A direct recipient is a recipient, but an indirect recipient is not a recipient unless he's an intended recipient.

Justice Roberts: Well, what the... what the Court...

Justice Scalia: Does the word recipient has... have some... some connotation of intent in it?

Justice Roberts: Well, you have to... you'd be the recipient of the Federal grant.

What the Court said in Paralyzed Veterans in the easy case, if the grant statute extends money, quote, then the recipient is the entity that receives the money.

Justice Scalia: Suppose I'm giving... I'm given money.

I'm given food stamps.

And I can spend them anywhere I want and I spend them at a particular grocery store.

Wouldn't it be proper English to say the grocery store was an indirect recipient of the... of the food stamps?

Justice Roberts: The key is whether there is a Spending Clause contract between the recipient and the Federal Government whereby the recipient agrees to accept the conditions, the prohibitions on discrimination, in exchange for accepting the Federal funds.

Justice Souter: Well, was there a contract in Grove City?

Justice Roberts: There was, yes.

Justice Souter: With the institution?

Justice Roberts: With the institution.

That's what the case was about.

Justice Souter: I thought it was simply the... I thought... I guess I stand corrected.

I thought Grove City rested on the fact that the Government intended the institution to get the money, and it was, in effect, the... the specific intent to have the money end up with X that made X liable...

Justice Roberts: What the... what was the issue in the case was whether the university had to execute the... the contract that the Government gave it.

That's what... what the litigation was over, and the Court said yes.

And it said yes because in deciding who the recipient is, you look to what the statute says, and here it said this is for institutions of higher education.

This is all the money could be spent on.

So, the fact...

Justice Souter: It's basically the intent in appropriating the money that's the criterion.

Justice Roberts: In the underlying grant statute, as the Court said in Paralyzed Veterans, and in all of the briefs filed on the respondent's side of this case, you will not find analysis of an underlying grant statute that says, this is to extend financial assistance to the NCAA.

That's the key element that is called for by this Court's decision and it's missing from all the arguments on the other side because there is no grant statute that extends Federal financial assistance to the NCAA.

Now, the...

Justice Ginsburg: Mr. Roberts, what there is is a significant difference between the relationship of the airport in Paralyzed Veterans.

The airport was not made up of the recipients in the way that the NCAA's membership is largely recipients.

So, whatever Paralyzed Veterans said, it didn't have that picture in view, that is, an entity composed largely of constituents that are... are subject to title IX as direct recipients.

Justice Roberts: The... the NCAA is an association of its members, and most of its members, as Your Honor points out, do receive Federal financial assistance.

But the association does not, and the... the colleges as a collective group, with respect to their intercollegiate athletic activities, does not receive Federal financial assistance.

The individual colleges do and they remain responsible and covered under title IX.

But the NCAA does not.

And the Third Circuit's reasoning that they're somehow covered simply because the members pay dues presents the exact problem the Court was concerned about in Paralyzed Veterans, that if you depart from the Spending Clause contract, the entity that has accepted the condition because it has accepted the funds, then you... once you sever title IX from those moorings in the Spending Clause, it has almost limitless coverage because you...

Justice Kennedy: Suppose... suppose you had a Federal program that grants monies to colleges and for... for a specific program, the study of science in a particular area.

And a hundred percent of the colleges that receive the money put a hundred percent of the money into an association that's somewhat like the NCAA.

Would that association be covered?

Justice Roberts: No, because again that's the... the lesson of Paralyzed Veterans.

You don't just follow the money or follow the Federal financial assistance to an ultimate beneficiary.

The colleges would remain liable for any discriminatory acts of theirs, but the separate entity that they formed would only be covered if that entity accepted Federal financial assistance and thereby accepted the Spending Clause condition that goes along with the assistance.

Justice O'Connor: Mr. Roberts, there is some argument on the other side that, well, all this doesn't matter anyway because the NCAA gets money from the National Youth Sports Program fund as a direct recipient.

Now, do we deal with that question here or what?

Justice Roberts: It was...

Justice O'Connor: And is that... is that a federally constituted fund?

Justice Roberts: The issue of the National Youth Sports Program was not addressed either by the district court or by the Third Circuit below, and I don't think that this Court should address it, at least not in the... in the first instance.

It wasn't... presumably wasn't addressed by the Third Circuit because it wasn't raised before the district court.

Justice Scalia: What do you mean it wasn't raised?

Was evidence concerning it...

Justice Roberts: The only evidence...

Justice Breyer: in the record?

Justice Roberts: The only evidence in the record concerning the National Youth Sports Program was an affidavit filed by an NCAA officer that establishes that it's a separate Missouri corporation.

It's not the NCAA, and that the NCAA receives no money from the NYSP.

That's the only evidence of record in this case concerning that... that fund.

Justice Ginsburg: The evidence was also that it was once the NCAA directly and then it was set up as a separate fund, but when the program was new, the money went directly to the NCAA, didn't it?

Justice Roberts: Yes, and then... then a separate corporation was established to administer the grant, not the NCAA, which makes perfect sense because what the National Youth Sports Program does is not... doesn't concern intercollegiate athletics.

It's not something that's part of... central to the NCAA's mission.

Justice Scalia: Was there evidence that this organization does receive Federal... Federal funding?

Justice Roberts: The National Youth Sports Program receives Federal funding, yes.

Justice Scalia: I know it does.

Was there evidence... I'm trying to see whether...

Justice Roberts: Yes.

Justice Scalia: There was evidence in the record.

Justice Roberts: In... yes, I believe in the affidavit they explained that this was a Federal funding recipient.

But it's not the NCAA and the NCAA does not receive any of the money from the National Youth Sports Program.

Justice Ginsburg: Anyway, that was not explored below.

Justice Roberts: It was never addressed by either court below, and the fact that it wasn't has led to some confusion as to exactly what the claim is.

It's not clear whether the claim is sort of a veil-piercing claim that somehow the NYSP is the NCAA, which the allegations certainly don't support because that issue goes to observance of corporate formalities and the like, and there's no suggestion that that hasn't occurred.

Or is the allegation simply that the NCAA is an indirect recipient through the NYSP, which would raise the same issues as the dues.

There's no suggestion that the money that's extended to the NYSP is intended to be received or extended to the NCAA.

Justice Ginsburg: Well, there's a... more of a question of the separateness of the two when it's just the NCAA and the NYSP than when you have...

Justice Roberts: And those claims...

Justice Kennedy: hundreds of colleges and universities.

Justice Roberts: And those... as I say, those claims have never been tested in either court below because they weren't raised.

Justice Ginsburg: And the... and the court below didn't test either the theory that there was a joint venture among the colleges and universities to... to confer on the NCAA the authority for operating the schools' intercollegiate programs.

Justice Roberts: Well, the Third Circuit referred to the NCAA as something of a surrogate for the schools in... in this regard.

But here again... and the Government's own regulation establishes that... it's not enough that you're involved somehow in operating an educational program or activity.

Countless non-recipients do that in schools across the country.

You must also be... and the regulation says this... an entity to whom Federal financial assistance is extended.

So, the fact that the NCAA may play some role in intercollegiate athletics and that intercollegiate athletics may be a program or activity of the colleges and universities, not of the NCAA, because to be a program or activity under the statute, you must receive Federal financial assistance...

Justice Ginsburg: Mr. Roberts, there's one aspect of this case.

Is the NCAA a 501(c)(3) organization?

Justice Roberts: It is tax exempt, yes.

I'm not quite sure whether it's...

Justice Ginsburg: Well, my question is... is whether, independent of title IX... under the Fifth and Fourteenth Amendment and the Bob Jones decision, isn't the NCAA under an obligation not to discriminate in order to retain its tax exempt status?

Justice Roberts: Oh, well, first of all, it's important to appreciate the NCAA firmly endorses and embraces the principles of title IX, believes it does not violate that in any way, and conducts its activities to promote gender equity.

Now, the position... the question of whether the tax exempt status is... is... can be brought into question because of its activities is... is a separate one and it's distinct.

But under the Bob Jones case, yes, that to the extent the... the organization, any tax exempt organization, engages in these sorts of discriminatory activities, that can be called into question, but...

Justice Souter: But here it was just title... that title IX was the only...

Justice Roberts: Title IX was the only... the only issue that the Third Circuit addressed...

Justice O'Connor: And the allegation is that somehow the waivers were granted on a... on the basis of gender discrimination?

Justice Roberts: Well, the...

Justice O'Connor: Is that... is that the nub of the allegation?

Justice Roberts: The allegation is that waivers were given disproportionately to one gender as opposed to another, which we of course dispute on the merits, but the merits are not before the Court because the NCAA is not a Federal funding recipient.

This, by the way, used to be the position of the Government.

When the HEW issued regulations in 1975, it told the colleges in the area of intercollegiate athletics that you have the obligation not to discriminate, and they issued a regulation that said, and you're not... that obligation isn't obviated or alleviated by any athletic association rule.

And the colleges squawked about that and they said, well, you know, what... if there's an association rule that says one thing and title IX says the other, that doesn't seem right.

And HEW stuck to its guns and it said, look, you are the members of this association.

If they have a rule that causes you problems complying with title IX, change the rule.

And then when the NCAA challenged these regulations, the agency and the Justice Department alleged that we had no standing because title IX did not apply to us, the regulations didn't apply to us, because they didn't apply, as their brief put it, to a private athletic association.

Justice Stevens: I can understand...

Justice Breyer: Your view is that...

Justice Stevens: Excuse me.

I can understand that position on the merits if it's a rule that's being challenged, but here it's the enforcement of a rule of discriminatory policy in granting or refusing waivers.

What can a school do about it in order to avoid a charge of discrimination?

Justice Roberts: Well, first of all, it shouldn't make a difference what the... what type of rule it is.

I mean, the NCAA is...

Justice Stevens: Well, except there was a rule that on its face said only women... only men can play volleyball or something like that.

The rule would clearly know it should not follow such... the school would clearly know it should not follow that rule.

But if the rule is facially neutral and the claim is that somebody over whom the school has no control is... is operating in a discriminatory way, what is the school supposed to do?

Justice Roberts: Well, first of all, whether the NCAA is covered to not shouldn't depend on what type of rule it is.

But in that situation, it's really just an evidentiary matter.

If the allegation is everybody else gets waivers from this rule, that's something that can be investigated by the school.

It's the school's responsibility because the school is engaging in the... in the activity that's covered by title IX.

The one thing, of course, that HEW would have said in response to the school's objection if it were true is, well, don't worry.

The association is covered too and it will be... and it will be sued.

It did not say that.

And the Justice Department and the agency sued because we were not covered when we tried to challenge the regulations.

Now, 20 years later, they come in with a new theory that says, don't... don't look at recipient, which has been the cornerstone of the Court's title IX jurisprudence.

Don't look at who the recipient is.

Just ask yourself whether this entity has ceded authority or effective control, a much more amorphous inquiry that departs from the bright line recipient test and also rips title IX...

Chief Justice Rehnquist: Was that theory the one relied on by the Third Circuit?

Justice Roberts: No, I don't believe so, Your Honor.

The Third Circuit said that the NCAA was covered because the dues... the members were covered and they paid dues and it sort of followed the money chain and that was sufficient.

The ceded authority or effective control theory is a... is a new theory, and it's one that shouldn't be adopted, particularly with respect to a threshold determination of coverage.

That should be a bright line rule, as it is under this Court's decision, are you a recipient, instead of an amorphous, multi-factored test that would ask who's in control and who's not in control.

And that test also does not limit the universe of those covered in the way that this Court in Paralyzed Veterans indicated was necessary because any time you have an intercollegiate athletic event, there are lots of different entities in charge of different aspects, some connected with the college, some not connected with the college, some that are a Federal funds recipient, and some... some that are not: the entity that... that might rent out the auditorium, vendors who might provide services, in some cases other organizations that are setting rules, like the United States Golf Association would be setting the rules for a golf tournament

All of those entities have some sort of authority or effective control over the activity, but that shouldn't make them covered by title IX when they are not recipients of the Federal financial assistance.

Justice Breyer: To specify the case I'm thinking of, imagine a university that has lots of different rules, teaching rules, tenure rules, curriculum rules, dozens of them, many of which they think are important.

Five universities have such rules.

The five get together and they say, well, what we'll do is have a modern languages association and they will be the enforcer of the rules and the creator.

Now, your view is that even though the modern language association, say, is doing just what the universities used to do, it can't be sued.

Justice Roberts: It cannot be sued unless...

Justice Breyer: But... but how... but there is a remedy nonetheless.

You sue the university.

Justice Roberts: Of course.

Justice Breyer: And in any case in which you could have sued the university, had the modern languages association not been in existence, but the university would have done that, you still can sue them.

And you just order them to make certain that... not follow the... the... the association rule.

Is that the idea?

Justice Roberts: Just... just what HEW said when it issued its regulations.

It's no defense that an athletic association, or in your case the modern languages association, has a rule and you're just obeying that rule.

Justice Breyer: All right.

So, it's... that means it's not a defense.

That means you have to pretend that it's the school's rule, and the fact that it's very tough for the school to get everybody together and make these changes, et cetera, is totally beside the point.

Is that your view?

Justice Roberts: Whoever is implementing the... the discrimination and is the recipient, in your hypothetical the colleges and universities, can be sued for that discrimination.

The entity that is in your hypothetical setting the... the rules unless...

Justice Breyer: And then policing them.

Justice Roberts: Unless it is itself a recipient of Federal financial assistance, it's not covered by title IX.

Now, this is... it's not...

Justice Scalia: I don't quite see how the university gets... gets stuck here.

As far as the university is concerned, it pursuant to the rules has denied a waiver in circumstances where denial would be perfectly appropriate.

As far as what the university has done, the university hasn't discriminated at all.

Justice Roberts: Well, if the university is...

Justice Scalia: The only thing that makes the waiver... the denial of the waiver bad is that this other organization has granted waivers in other universities in other contexts.

How... how do you pin this on the... on the university?

Justice Roberts: Because the university is the entity that is operating the covered program or activity and the fact that it may be... is complying with a discriminatory rule is no defense and the fact that it is complying with... and applying a rule...

Justice Scalia: But it hasn't done anything except deny a waiver under circumstances that are totally reasonable, and it... it hasn't granted any waivers to any of its students under any of its programs.

It's only the granting of waivers by the NCAA to other students in other programs that makes the thing look discriminatory.

Justice Roberts: Well, and it's just an evidentiary question to know that.

If you have a rule that's being applied in a discriminatory manner, you're not free to say, well, I'm just going to apply the rule regardless of the fact that others are not applying the rule.

Justice Scalia: But the university is not applying the rule in a discriminatory manner.

It's the non-recipient that is applying the rule in a discriminatory manner.

Justice Roberts: By not... if everyone else is granting waivers and this is something the university knows, its decision not to grant a waiver would be applying the rule in a discriminatory manner.

It's... it's an evidentiary question to find out how it's been applied before.

The fact that it may be...

Justice Souter: But... no.

I'm sorry.

Finish the sentence.

Justice Roberts: I was just going to say the fact that it may be easier to get the information from one entity as opposed to another doesn't mean that title IX coverage extends to an entity that has not accepted Federal funds.

Justice Souter: I was going to say, isn't the theory, though... as Justice Scalia's question points out, the theory is not merely, I guess, that the university has... has sort of voluntarily ceded authority to administer the rule.

It has sort of ceded authority or, rather, it in effect has made itself part of a larger scheme, and if it has voluntarily made itself part of the larger scheme that discriminates, you tag the university with the discrimination.

Isn't... isn't that the theory?

Justice Roberts: Well, the university is covered by... if it makes a decision that we're going to apply the rules of the XYZ organization and the XYZ organization is known to always apply discriminatory rules, it can't insulate itself from that.

It is... it is responsible for its own actions.

Justice Souter: Right, but when... when it does that, it's doing something more than saying we will cede the decision to apply our rules to this other body.

It is really saying we are joining a... that body's regime of law in place of our rules.

That's what it's really doing.

Justice Roberts: But... but... but the important thing is that the university retains control over the ultimate decision.

This Court addressed that in the... in the context of State action in the Tarkanian case.

Justice Souter: It does so because it can always defy the organization.

Justice Roberts: Yes.

Justice Souter: But until it defies it, it in effect is placing itself in a different regime.

Justice Roberts: Yes, and... and it's no defense to whatever discrimination is alleged to say, well, we're just following somebody else's rule.

Justice Breyer: It sounds like it would produce a bigger mess for these organizations than if you sued them directly.

You'd have universities all over the place just not carrying out the rules lest they be sued.

Justice Roberts: Well, and what tends... tends to happen is exactly what HEW said should happen back in 1975, which is you or the... you're covered.

You're the members.

If this rule is causing you problems, change the rule.

That's what tends to happen as a matter of practice.

Justice Breyer: Are we supposed to reach this argument in your view in this case, this... this issue of ceding authority and that they're covered because it's the ceding of authority, et cetera?

Justice Roberts: Well, I don't think it's necessary to reach it to reverse the Third Circuit's decision because that was based on the payment of dues.

Justice Breyer: No, no, no.

I mean, it's a defense of the Third Circuit's decision.

Justice Roberts: But... but if the Court reaches it, it seems to me that it ought to be clear that this is a departure from what has been the unifying thread in this Court's title IX decisions, which is that coverage is limited to a recipient, not to someone who has ceded authority, effective control, something like that, but the recipient itself.

Justice Souter: Mr. Roberts, apart from that... that rather glancing statement that... that you quoted from the Third Circuit opinion, was this issue really explored in front of the Third Circuit?

Justice Roberts: No, not the effective control or ceded authority.

Justice Stevens: Mr. Roberts, what do you think we should do with the case if we agree with you that the Third Circuit reasoning was wrong, but we're not sure about whether they should have been allowed to file an amended complaint?

Justice Roberts: Well, in that case, Your Honor, I think the decision... judgment should be reversed and the case should be remanded for further proceedings, including to allow the Third Circuit in the first instance to decide which arguments have been preserved, which arguments have been waived.

Justice Kennedy: Did you argue before the Third Circuit that the amendment to the pleading was inadequate?

Justice Roberts: Well, the amendment to the pleading was... was really beside the point because the district court, at page 31a of the petition appendix, treated the claim as if it had been made, that the NCAA was an indirect recipient.

It posed the question that the district court and the Third Circuit addressed which is what's... what do you have to show to establish that.

So, that it seems to me is a... is a red herring because the district court treated her original complaint as if it had alleged the NCAA was a recipient because of these connections.

Thank you, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Roberts.

Mr. Phillips, we'll hear from you.

Mr. Phillips: Thank you, Mr. Chief Justice, and may it please the Court:

I guess I'd like to start essentially where Mr. Roberts ended which is an examination of what is at a minimum the appropriate course for this Court to follow with respect to the unusual posture of this case.

This case, as you know, was brought by a pro se litigant to file the complaint.

The complaint was immediately dismissed on the grounds that the NCAA is in some sense not subject to title IX or at least not on the basis of the allegations in that complaint.

And she amended her complaint, and in the amended complaint, she alleges quite plainly at paragraph 65, which since the amended complaint was only added to the record afterwards, it's unfortunately not in the joint appendix, but it has been lodged, the NCAA is a recipient of Federal funds because it is an entity which receives Federal financial assistance through another recipient and operates an educational program or activity which receives or benefits from such assistance.

And it seems quite plain to me that if you give any kind of a liberal interpretation to the pleadings of a pro se litigant in the context of that case, that that allegation has raised a whole slew of theories as to why the NCAA ought to be regarded at a minimum as a recipient, either direct or indirect.

Justice Kennedy: Was the pro se litigant a lawyer?

Mr. Phillips: At the time of the complaint, no, Your Honor.

She was not.

Justice Breyer: She'd been to law school?

Mr. Phillips: She was in law school at the time.

And as a consequence of that, then it seems to me that we look at the... at the National Youth Sports Program issue that's been posed in this case.

And the suggestion that somehow there is anything that this Court should do other than allow that matter to go back to the Third Circuit seems to me largely fanciful because it is clear that Ms. Smith raised that argument explicitly in her brief in the Third Circuit, contrary to the argument made by petitioner in its opening brief.

Chief Justice Rehnquist: Did the court of appeals consider it?

Mr. Phillips: I don't know whether it considered it.

It didn't address it explicitly, Mr. Chief Justice.

On the other hand, it had an alternative theory in mind that was perfectly sufficient on which to send the matter back.

And remember, we're talking about sending it back to allow her to amend the complaint and then to proceed with discovery into a wide range of issues, including the nature of the National Youth Sports Program and the nature of the relationship between the NCAA and all of its member institutions.

So, it's not surprising that the Third Circuit wouldn't reach out for alternative grounds for reaching essentially a result that just moves this litigation from square one to a baby step...

Chief Justice Rehnquist: Yes, but our practice is that we... we simply don't deal with issues that haven't been dealt with by the court of appeals, as you know from recent experience.

Mr. Phillips: As I know all too well, Mr. Chief Justice.

I appreciate that.

[Laughter]

On the other hand, it is... but the one thing that's absolutely important in the process is to recognize that the issue, as it appears on the record before this Court at this time, was squarely presented below.

It is squarely accepted as a legitimate basis for going forward at the... at the complaint stage, remembering that there are two Federal district courts that not only have upheld this theory at the complaint stage, but have held that if you get into the evidence and you find out the nature of the relationship between the NCAA and this source of Federal funding, you'll ultimately think that there is an ultimate question of fact that must go to a trier of fact with respect to the coverage of the NCAA as an... as a recipient under the statute.

So...

Justice Scalia: Is it clear...

Mr. Phillips: it's preserved.

Justice Stevens: Is it clear or is it sort of unclear from the record whether the theory of coverage under the proposed amendment of the complaint is sort of a veil-piercing theory that a subsidiary should be treated like the parent, or on the other hand, that it's a theory similar to the one of the Third Circuit here that they manage the program... or they control the program...

Mr. Phillips: It is not clear from the complaint...

Justice Scalia: It is not.

Mr. Phillips: exactly which way, but I think it could be read, frankly, to embrace both...

Chief Justice Rehnquist: Both.

Mr. Phillips: of those theories as... in terms of how it was developed and certainly in terms of how it's been argued from henceforth.

And if the theory is you go back and amend the complaint, it seems quite clear that both of those alternative rationales should be available to her and we should be allowed to engage in discovery along those lines.

Justice Scalia: It isn't just a question of whether... whether the rationale is available.

It's a question of whether she had any factual allegations that would support all of the rationales.

What... what factual allegations were there?

Or... or... or is the... is the pro se litigant to be excused from the necessity of supporting the allegations with some factual allegations?

Mr. Phillips: Well, there are two answers to that.

First of all, there is a statement and an affidavit in response to the initial complaint that does, in fact, identify this program as an entity that receives Federal funds.

Justice Scalia: That's a conclusion.

That's conclusory.

That's no facts at all that would support any theory that... that you're asserting here.

Mr. Phillips: Right.

Well, my alternative argument is that even a pro se plaintiff is allowed to make the basic claim that somebody is a recipient because they received money from some other entity.

Justice Scalia: You can make as many claims as you'd like, but when there's a motion to dismiss, it seems to me you have to come up with factual allegations that will support the theory that's... that's in your complaint...

Mr. Phillips: Well...

Justice Scalia: and not just a conclusory statement that, for whatever of various reasons, this entity is a recipient.

Mr. Phillips: But, Justice Scalia, the issue now comes to the Court on a remand for... for leave to file an amended complaint and which we all know, to a moral certainty, the facts that will support the amendment of the complaint and allow this case to go forward at this stage in the litigation.

That's all.

Justice Scalia: Well, it... do we do that when there's been a motion for summary judgment and the motion has been granted?

Do we say, well, they didn't come forward with the facts, but we all know that the facts are there, so we'll send it back and let them come forward with the facts?

Mr. Phillips: You might...

Justice Scalia: How many swings do you get at this thing?

Mr. Phillips: You... well, you get at least one more swing I hope.

But basically, Justice Scalia, that's not the posture of the case.

The Third Circuit has already set aside the district court's dismissal and did so on the grounds that the... that the district court abused its discretion under rule 15.

And let's be clear about that.

That issue was not presented by the NCAA.

They didn't raise that issue.

They didn't have any quarrel with the idea of rule 15.

Justice Ginsburg: Was it... was it a 12(b)(6) or... did the district court go on 12(b)(6) or 56?

Was it summary judgment?

Mr. Phillips: 12(b)(6).

It was a motion...

Justice Breyer: All right.

So, there is no motion for summary judgment, so she needn't have come forth.

Mr. Phillips: Exactly.

Justice Scalia: There is no need to come...

Mr. Phillips: That... that... my view is that the allegations are sufficient to... to get past the rule 12(b)(6) motion, Justice Scalia.

But... but certainly in the posture of a case where it's been sent back for allowing an amendment to the complaint at this stage...

Justice Stevens: Well, it's not really quite that easy.

I sympathize with your position, but if we should conclude... I'm not saying we would... that the reason that they gave for sending it back is erroneous, then we're asked is there another reason which would justify the same judgment, that it was not an... that it was an abuse of discretion to deny leave to amend.

Then the question, it seems to me, arises is that decision to be made on the basis of what she alleged in her amended pleading or can she also rely on an affidavit that's filed later before the court of appeals that the district court never had a chance to...

Mr. Phillips: Well, no, the affidavit was before the district court.

Justice Stevens: Oh, was it?

Oh, I misunderstood.

Okay.

Mr. Phillips: So, I mean, that's... that's part of the overall record that was before the court of appeal, and the issue was clearly raised.

And it seems to me at the very outset of the litigation, you...

Chief Justice Rehnquist: If... if it's a motion to dismiss, why was there an affidavit in there anyway?

You think of that as appearing at the summary judgment stage rather than on a motion to dismiss.

Mr. Phillips: Mr. Chief Justice, you're going to have to ask Mr. Roberts the rationale for the NCAA putting the... putting the affidavit before.

Chief Justice Rehnquist: The affidavit was filed by the defendant.

Mr. Phillips: Yes, Your Honor.

So... but the basic point here is... remains, at least in my judgment at this stage as the case comes to this Court, the proper course at a minimum to follow is to send it back to allow the proceedings to go on with respect to the relationship between the NCAA and the National Youth Sports Program.

Now I'd like to address what I think is the more central legal issue in this case, at least in my judgment.

And you will notice that in Mr. Roberts' analysis of this case, he spends very little time focusing on the statutory language, jumping ahead instead to... to decisions of this Court.

I'd like to go back to the statutory language because I don't believe, frankly, that you need to be an actual Federal fund recipient under section 901(a) in an action brought as a private right of action against a defendant who is clearly a wrongdoer in the context of the allegations of this complaint.

This Court held in Gwinnett that... the rule has been around for at least a hundred years, and perhaps even longer, going back to Blackstone... that all wrongdoers can be held liable on damages for the wrongs that they do.

And they should be... and they should realize that they're put on notice, that when they engage in actions that violate statutes, that the person who's been injured by that, and particularly the person who was in the special class of people to be protected, is allowed to come forward and seek damages for that particular injury.

And it seems to me that the language of 901(a), which says that no one shall be excluded from participation in a federally funded activity on the basis of sex, specifically, explicitly, and completely covers the situation posed by...

Justice O'Connor: Well, it says under any... any education program or activity receiving Federal financial assistance.

Mr. Phillips: That's correct, Justice O'Connor.

Justice O'Connor: And the argument is that NCAA doesn't receive Federal financial assistance.

Mr. Phillips: That's correct, but...

Justice O'Connor: And they certainly don't directly.

Mr. Phillips: Well, depending...

Justice O'Connor: They don't.

Mr. Phillips: Depending on how you view the... the sports program.

Justice O'Connor: Well, I mean by virtue of the membership dues...

Mr. Phillips: Right, not through the membership dues.

On the other hand, Justice O'Connor, recognize that the language does not define the class of defendants.

It says you can't be excluded from a program or activity, and there's no question that playing volleyball at the intercollegiate level is a program or activity that is federally funded within the meaning of the statute.

Justice Scalia: So, if I'm a parent and... and I don't want my daughter to participate in... in gym... I for some reason don't think girls should play athletics.

That's my... my parental view.

I'm guilty of violating this provision if I... if I stop the... the child from going to gym in school.

Justice Stevens: Right?

Mr. Phillips: No, of course, not.

Justice Scalia: Why not?

Mr. Phillips: Because at a minimum it seems to me...

Justice Scalia: You're talking about a program.

A person has been discriminated against under the program, prevented from participating in... in one of the school functions.

Mr. Phillips: It doesn't work so that if you open the door to... to an entity that has been ceded control and authority over the operation of the program as opposed to over the operation of the participants in the program...

Justice Scalia: So, you're limiting your principle then.

You're... you're no longer relying on the plain language of the statute.

You're saying there have to be some conditions made to...

Mr. Phillips: No.

What I am saying is, is that the plain language of the statute doesn't permit the NCAA or this Court to limit the scope of 901(a)'s protections solely to those who actually receive Federal funds.

Justice Scalia: Only parents.

Only parents.

It permits them to limit it.

Justice Kennedy: What about a schoolyard bully?

Mr. Phillips: I'm sure there will be others as well.

Justice Kennedy: What about a schoolyard bully who prevents the program from really operating?

Mr. Phillips: I think...

Justice Kennedy: Under the Blackstone theory that you... that you cite, I... I take it other students could sue the bully.

Mr. Phillips: I think that the genius of this Court's decision last term in Gebser is in its holding that once the Court determines that basic liability coverage applies... and Gebser was clearly a Federal fund recipient and it did apply... and it found right that the NCAA ought to be subject to 901(a) liability in the first instance, the question then becomes how do you structure the rules of liability in a way that is consistent with Congress' overall intent.

And my feeling about the bully and the problem that he poses, one, the regulations focus very much more on entity and controlling operations.

And the Court can certainly limit liability consistent with that.

Second of all, the legislative history of title VI and the legislative history of the Civil Rights Restoration Act spends a great deal of time focusing on concerns about extending liability to individuals.

That's why they didn't have ultimate beneficiaries be subject to liability under that... under those statutes.

And therefore, it's reasonable to confine the scope of the 901 remedy to people who... to things that are not individuals.

Justice Breyer: Well...

Mr. Phillips: But, of course, that's not posed by this case, but clearly that's... that's the way...

Chief Justice Rehnquist: Our decision in Paralyzed Veterans construed the statutory language, and you know, perhaps a broader construction might have been permissible, but it put a definitive construction on the language.

Mr. Phillips: I... I would argue, Mr. Chief Justice, that Paralyzed Veterans construed the language in section 902(1) which is targeted specifically at Federal fund recipients.

And that's a very important distinction between these two provisions.

The private right of action case... cases come out of 901(a).

The Federal regulatory cases and... and Paralyzed Veterans on at least two separate occasions specifically identifies the scope of what it's aimed at at the Federal regulatory authority, and that comes from 902(1).

Justice Stevens: Mr. Phillips, I understand your plain-language argument, and I think it's quite persuasive.

But... but this... this problem concerns me.

Under your construction of the statute, if I understand it correctly, the scope of the private remedy is broader than the scope of the remedy available to the United States.

Mr. Phillips: It could potentially be broader.

There is...

Justice Stevens: But within this very case.

Mr. Phillips: Well, it may not... yes, in the sense that...

Justice Stevens: Because they can't cut off funds to the NCAA if the NCAA doesn't get any funds.

Mr. Phillips: Clearly the 10-point fund termination provision would not be available.

Whether it's possible that the other enforcement mechanisms of 902(2) could be brought to bear it seems to me an open question that's not really posed here.

So, it may be that you could eventually bring them in sync.

In the short run, absent regulations, you're right...

Justice Stevens: But it does seem anomalous to say that a... a... an implicit remedy, a private cause of action, is broader than the... than the statutory express remedy.

Mr. Phillips: I think the answer to that has to be that the purpose of adopting and why Congress did adopt an explicit... or not an explicit... an implicit private right of action was to ensure enforcement, recognizing that there would be situations where the most effective enforcement would come at the hands of the person who was directly affected.

And if that requires going beyond the immediate Federal fund recipients, that's fine.

And there's one other rationale for that.

Justice Scalia: Could I ask before you get to one other rationale?

Mr. Phillips: Okay.

Justice Scalia: As I understand it, this... this means that... that even though the implementing agency issues regulations which the university complies with, the university may, nonetheless, be liable to private suits because private individuals are not governed by these regulations.

Mr. Phillips: I... I... it's hard for me to imagine a situation in which you comply with those... with those and that that interpretation is consistent with Chevron...

Justice Scalia: Oh, I can imagine lots of situations.

Mr. Phillips: where you could then construe the statute in a way that would be different from that.

Justice Scalia: In the... in the earlier situation where... where the agency was not taking the position that the NCAA was covered but was taking the opposite position, that would have been exactly that case.

Despite the fact that the agency takes one position, a private individual gets the law interpreted by a court in a... in a... in a different fashion insofar as it applies to private individuals.

Mr. Phillips: No, but that's because... Justice Scalia, that's the distinction between 901 and 902, and what you're saying is that when we... when we use the entire regulatory enforcement powers of 902... and let's be clear, that was the second point I was trying to make, Justice Stevens.

It's one thing to say we're not going allow you to intentionally intrude into the operation and program and to exclude someone on the basis of their sex and... and we're going to provide a direct remedy to that problem.

But it's a vastly different thing to say that we're going to impose the entire regulatory regime of the Federal Government on you in circumstances where you didn't voluntarily accept the Federal funding under a particular set of circumstances.

Justice Breyer: I missed your... I missed...

Mr. Phillips: That's why... that's to me why they shouldn't necessarily be congruent.

Justice Breyer: I missed your basic distinction.

You were saying that people can be liable under the act who don't receive Federal funds if those people themselves deprive a person of a right to participate in a program by an institution that does.

Mr. Phillips: In some circumstances.

Justice Breyer: All right.

Now, what circumstances?

You seem to me to be saying that it was not the case that an individual could, that it was the case an entity could.

Mr. Phillips: Right.

Justice Breyer: Well, if that's so, it... I mean, that doesn't seem... I can't figure that one out.

I mean, a thief who stole books from the women's dormitory couldn't because it's a thief, but the electricity company that cut off the electricity to the women's dormitory so they couldn't participate would?

I mean, there must be some limiting principle in that.

Mr. Phillips: No, no, and there is... there are two principles.

Chief Justice Rehnquist: It can't be that one.

Mr. Phillips: No, no.

I'm sorry about that, Justice Breyer.

There are two principles at stake here.

One deals with the question of whether individuals necessarily go along if you bring organizations in, and I was suggesting that I think you can make distinctions there.

The second one is that... the basic theory of the brief, which is that it's only in situations in which the defendant has been ceded control and authority to make the final exclusionary decision.

Justice Breyer: That's what... it's a kind of control theory.

Justice Kennedy: It's a kind of...

Mr. Phillips: I didn't mean to exclude that.

I was...

Justice Breyer: It's a kind of delegation of control theory.

Mr. Phillips: It's a delegation of control theory.

Justice Breyer: And is that... to what extent was that delegation of control theory, which is I think a very interesting theory... to what extent has that been explored below or in other courts?

Mr. Phillips: Below not at all, but I think it's important to realize that this is an invited answer by the respondents in this case.

If you look at the question presented in the cert petition, it's... it was initially a fairly narrow question.

If you look at the NCAA's first five pages of its argument, the argument says, this statute is strictly limited to Federal fund recipients and no one else.

And... and therefore we responded to the NCAA's effort to expand the scope of the argument.

I think it's subsumed within the question presented, to be sure, and we joined issue with them, and they've joined issue with us back.

So, I think the issue is squarely presented by the circumstances of this particular case.

Justice Ginsburg: Mr. Phillips, as far as organizations are concerned and the conceding control for the operation, the petitioner's brief included an... an appendix with lots of academic type organizations.

And what is your counsel with respect to that list?

Are they all like the NAAC... NCAA?

Are some of them like it?

How many of those dozens of organizations would be covered?

Mr. Phillips: Well, this brings us back to the same basic problem that I had at the outset, which is let's remember the posture of this case.

This is on a motion to dismiss at the very earliest stages of the litigation.

What we're saying is that as a legal theory, you can't stop at the Federal fund recipient.

You have to go beyond that, and in order to figure out, one, where you go beyond that and whether that's a legitimate basis for imposing liability in this circumstance and how it would apply elsewhere, we need the discovery to understand the relationship between these... between the members and their organization.

And then I'll be in a position frankly to be able to answer the question about how other organizations...

Justice Ginsburg: But on the Third Circuit's theory, they're... they're all covered now because they all... all get dues from recipients.

Mr. Phillips: Right, and we don't... and we do not embrace the broadest view inside the Third Circuit's analysis.

I don't think... and I don't think the Court needs to go there in order to allow what I think is ultimately the right answer here, which is to permit this case to go beyond the complaint stage to allow us the opportunity to engage in the kind of discovery and to flush out the legal theories that have been presented to this Court.

Justice Ginsburg: I had one question about bringing in the schools themselves.

There's no limitation problem because they were... that was proposed at an earlier stage at the time...

Mr. Phillips: Well, we have... we have... the complaint does add the schools.

I think the schools have raised a statute of limitations issue, but obviously it hasn't gone anywhere given the posture of the case.

If there are no other questions, I urge affirmance and cede the podium to Mr. Kneedler.

Argument of Edwin S. Kneedler

Chief Justice Rehnquist: Thank you, Mr. Phillips.

Mr. Kneedler, we'll hear from you.

Mr. Kneedler: Mr. Chief Justice, and may it please the Court:

The Third Circuit decided this case, at least as petitioner understands it, on a theory that someone in the position of the NCAA can be subject to suit under title IX solely on the ground that it is a mere beneficiary of the program and on that ground alone.

We agree with petitioner that that reading... if that is what the Third Circuit meant to hold, that that is incorrect, and that that is inconsistent with the decision in Paralyzed Veterans.

All that this Court needs to decide is that that particular theory was incorrect and it could remand for consideration of alternative theories.

For example, the petition in this case presents the question on the assumption that petitioner is not a recipient, but is... does its receipt of payments... does the receipt of payments by a non-recipient essentially on the benefit theory subject it to liability?

The question... the question of, however, of whether the NCAA is a recipient, either because the colleges operate programs and pay dues which pass on some of the Federal financial assistance, or alternatively, because of the Health and Human Services grant that is... that is made to the National Youth Sports Program, operated and administered according to the NCAA's own constitution by a committee of the NCAA, whether either of those theories of being a recipient subjects it to coverage is not, I think, within the question presented and could properly be considered on remand.

The other question of whether the NCAA is subject to suit under title IX, because it has been ceded controlling authority over the operation of the program in certain particulars, was I think fairly raised in the court of appeals on pages 5, 9, and 22 of the respondent's brief, but that too was not addressed by the court of appeals and could be considered on remand.

I think it's important, though, in leaving these questions open for the court of appeals, for this Court not to rule out the possibility or not to foreclose as a matter of law any of these various theories because this case is at a very preliminary stage, and the court... the district court...

Justice Stevens: But, Mr. Kneedler, it is true, isn't it, I think that the briefs have adequately argued out the question whether the NC... the association's control over the program is sufficient to subject it to liability.

Mr. Kneedler: Yes.

There's no doubt... there's no doubt that that has been briefed.

My... my only... my only point was this Court does not need to resolve that question because it was not addressed by the Third Circuit.

My only point was that...

Justice Stevens: Well, I understand we don't have to.

Mr. Kneedler: Right.

Justice Stevens: But don't you think we should?

Mr. Kneedler: Well, I think it might be... the...

Justice Stevens: I mean, that's really the issue in the case right now.

Mr. Kneedler: Well, the... the... the only legal issue in the case would be are... is it... is there a categorical rule that can a non-recipient never be held liable under title IX.

If that... if that... only that question I think is presented, but I do think... on this record because this comes up in a motion to dismiss, but I think that may be a question in which the Court might be informed by a fully developed record when that situation comes up in terms of knowing the... more facts about the relationship between the NCAA and the... and the member institutions.

In fact...

Justice Souter: Do we have record... do we have anything in the record that would answer that question?

For example, I... maybe I wasn't paying attention because I didn't think it was important to me, but do I... do I know from the record... should I know from the record exactly what would happen if either of these colleges defy the NCAA?

Can I tell that from the record?

Mr. Kneedler: I... not definitively because...

Justice Breyer: Then I guess...

Mr. Kneedler: the member institutions...

Justice Souter: that would go to the question of what... what degree of control there was.

Mr. Kneedler: Right.

The member... the member institutions, as this Court pointed out in... in both of its prior cases involving the NCAA, are bound to implement that the... follow the rules of the NCAA and to implement the determinations of eligibility in particular cases.

And there's no reason to think that the member institutions wouldn't be required to do that, which is precisely why we believe that they... that the NCAA has been ceded controlling authority over particular participation...

Justice Souter: Well, except... may I just ask one?

Justice O'Connor: Sure.

Justice Souter: Except we have a regulation in front of us under which presumably there shouldn't be any discrimination, but the claim is that the regulation is not being administered according to... to a... by a neutral application of its terms.

And I suppose there... there may, indeed, be rules governing the relationship between a college and the... the NCAA and they not be administered according to their... neutrally according to their terms.

And so, it seems to me that it would be wise to... to have an opportunity to find that out and have a record so indicating... indicating that opportunity before we get into it.

Mr. Kneedler: Right.

No, I... I agree with that.

I... I... I would like to address, though, the... the argument to the extent this Court is...

Justice Scalia: Before you do that, I don't agree with it, and... and explain to me how knowing the facts which establish the ceding of control will help us decide the question whether the ceding of control violates title IX or not.

Mr. Kneedler: Well, I... I think knowing...

Justice Scalia: I mean, all of these facts to go to whether in fact control has been ceded.

Let's stipulate total control has been ceded.

Mr. Kneedler: Well, I think... I think knowing exactly what that means, that's descriptive, but knowing exactly how that operates...

Justice Scalia: What it means is that total control has been ceded.

What... what could it mean beyond that?

Mr. Kneedler: Well, it... looked at in that way...

Justice Scalia: I really don't see how we... how we need more facts to decide that... that quite clear question of law.

Mr. Kneedler: Well, there... there are two questions here.

One is... one is the prudential consideration with respect to the development of facts, and another is the fact that this issue was not addressed by the court of appeals on... on the law.

And this Court doesn't... as the Chief Justice pointed out, does not normally address legal issues that were not resolved below.

But let me... let me address the... the legal issue on the premise that the Court might choose to address it.

Justice Breyer: Well, I mean, it would depend on whether you address it what your answer is.

I guess in those circumstances, no matter what I guess you could address it, but if it's a more complicated question than that, maybe you should get the facts.

Mr. Kneedler: Right.

No, I agree with that.

But... but on... if... if the Court is disposed to consider whether the absolute rule that... that the NCAA seems to be arguing for here, I think it's important to...

Justice Scalia: Exactly.

They're arguing the absolute rule.

Mr. Kneedler: Right.

And I think it's important... I think it's important to consider, as Mr. Phillips pointed out, that... that the operative provision under which this Court found the private right of action identifies the class of protected persons, but does not identify a class of defendants.

So, I... I think the categorical rule is not supported by the very provision under which the right of action has been implied.

That is not to say, however, that everybody who may have some effect... discriminatory impact on... on the program is covered, and it's important to look...

Chief Justice Rehnquist: Well, but that... that produces difficulties of its own, Mr. Kneedler, since this is a Spending Clause program.

And the commitments of the States and so forth are supposed to be clearly spelled out.

And if we have this kind of amorphous thing, it might be, but it might not be, that itself tends to run afoul of Spending Clause decisions.

Mr. Kneedler: Well, it... I think in this... in this case in particular it does not because what section 901 says is that there shall be no discrimination in a program receiving Federal assistance, not a program operated by a recipient, but a program that receives Federal financial assistance.

There's no doubt that the intercollegiate athletic programs of all... of probably the vast majority of the NCAA's member institutions receive Federal financial assistance.

The... and ordinarily, if you look at 1687, it refers to the operations of a... of a program or activity.

The question then I think is who operates it.

Ordinarily it's the recipient, but where the recipient has basically ceded control to what is, in effect, a super board of trustees for purposes of establishing rules or making individual determinations for the college that are binding on the college, it seems to me a straightforward application of... of section 901 and looking at 1687 in terms of who operates the program.

Justice Scalia: It seems to me, Mr. Kneedler, no... no total answer to the point the Chief Justice was making to the point that the rule you urge will create confusion.

It seems to me no answer to say, well, its application will be clear in the present case.

I mean, we're adopting a rule that will apply to hundreds of thousands of other cases, and it doesn't give me great comfort to know that, well, it's easy to say how it applies here.

Mr. Kneedler: Well, I... our... our position here is solely where the... where, in effect, the board of trustees, which would otherwise have final decision making authority for the recipient, turns that final decision making authority over to what is, in effect, a superior governing authority.

Justice Stevens: But if... if you're right that that would impose liability on the superior governing authority, would the school itself still be liable?

Mr. Kneedler: Yes, and under the title IX regulations, that makes that clear.

I'd like to just for a moment address another point that... that Mr. Roberts made with respect to the recipient theory and whether the NCAA is an intended recipient.

The question is not whether Congress intended the NCAA as an entity to receive Federal funds.

The question... the... and I think, Justice Scalia, you're right.

Intent is really not the right question.

The question is whether the program being operated is of the type that the Federal grant program was intended to fund.

And... and the question then is whether the... whether the program is the sort of thing that was intended to be funded.

As the Court said, the college program in Grove City was what was intended to be funded.

There's no doubt here that intercollegiate athletics are part of a college program.

The question would be whether the various Federal programs that might or might not be involved in this case... and again, there's been no exploration on that... extend funding to the whole college, including its athletic department, and then whether the payment of dues is essentially the transmittal of that Federal financial assistance.

But the question is not whether a particular entity was intended to have that... to receive that.

The regulation that we cite in our brief with respect to transferees and successors... and there's another regulation in the title IX regulations that refers to contractors... shows that aid can be passed on.

Justice Stevens: Thank you.

Justice O'Connor: Thank you, Mr. Kneedler.

Chief Justice Rehnquist: Mr. Roberts, you have 3 minutes remaining.

Justice Roberts: Thank you, Your Honor.

First, I'd like to agree with both of my brothers that the Third Circuit decision was wrong.

It was wrong because title IX, as Spending Clause legislation, is limited to recipients, and the effort to rely on the dues or some surrogate relationship severs title IX from its rooting in the Spending Clause and the limitation to recipients.

The argument that was raised that the statutory language doesn't carry any such limitation was the precise argument that was raised last term in Gebser, and it was rejected in Gebser.

If it's enough to be subject to discrimination under a program, the student in Gebser certainly was, but that was not enough because title IX is limited to recipients.

And so, the question is what does a recipient know about what was going on and what did the recipient do or not do.

Now, so far as the new alternative arguments are made, it is important to recognize that... that in our view they have not been properly preserved.

The NYSP argument, for example, was not mentioned before the district court by the plaintiff.

The court said, assuming your complaint is amended...

Justice Ginsburg: But, Mr. Roberts, given the pro se litigant, given the large discretion that the district judge has on complaint amendments, should we be the one to decide whether the amendment of the complaint is too late and given cases like Conley against Gibson where this Court has said... instructed lower courts, be generous to pro se litigants as far as amendment is concerned?

Justice Roberts: But they have to allege facts.

The way it works is you allege facts and then you test those against the legal standard...

Justice O'Connor: Well, I don't know.

Justice Ginsburg: If you look at the forms at the end of the Federal rules, is negligently drove a fact?

Is money having received a fact?

I mean, those forms are very skimpy.

Justice Roberts: And what happened is the district court said on this motion to dismiss, we have to test and see what the standards are to establish that someone is an indirect recipient.

What... what do you have in mind?

What are you talking about...

Justice Ginsburg: You could ask for a more definite statement.

They... they alleged NCAA is a Federal fund recipient.

Okay.

Usually before you cut off a plaintiff's head, you give them a chance to flesh out an allegation.

Justice Roberts: Well, and she was afforded that opportunity.

The district court basically said what is it that you're talking about when you say, and if the answer is dues, which is what the answer that was given, then that's not enough and the complaint should be dismissed.

Justice Stevens: Mr. Roberts, may I ask you what your view is on the question whether we should decide the delegation of a control over a program issue?

Justice Roberts: I think the reason the Third Circuit is wrong is because the NCAA is not a recipient.

That is an argument that would rely on extending title IX to non-recipients.

Justice Stevens: My... my... the question is whether you think we ought to decide this other theory, you know...

Justice Roberts: I think the Court should decide the question whether having so-called effective control or ceded authority is enough to subject you to coverage under title IX when you're not a recipient.

Justice Breyer: How do we get that in the question?

The question says because it receives payments from entities that do so.

It has nothing to do with receiving payments.

Control or not control or delegation would be identical whether they happen to charge dues or whether they don't charge dues.

Justice Roberts: Well, because the reason the dues are not sufficient is because you have to be a recipient which was the argument we raised, and their answer was, no, you don't.

It's enough...

Justice Breyer: That's the end of that.

You have... I'm...

Chief Justice Rehnquist: Thank you, Mr. Roberts.

Justice Roberts: Thank you.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

Featured:

Davis v. Monroe County Board of Education - Oral Argument

Fri, 09 Jan 2009 14:50:11 +0000

Case:

Davis v. Monroe County Board of Education

Media File:

97-843_19990112-argument.mp3

Related Transcript:

1998_97_843_argument.xml

Transcript:

Argument of Verna L. Williams

Chief Justice Rehnquist: We'll hear argument first this morning in No. 97-843, Aurelia Davis v. the Monroe County Board of Education.

Ms. Williams.

Mr. Williams: Mr. Chief Justice, and may it please the Court:

At issue in this case is whether title IX's broad prohibition against sex discrimination requires schools to remedy and address student-to-student sexual harassment.

The Eleventh Circuit has decided that title IX imposes no obligations on schools to remedy this type of discrimination, no matter how severe or pervasive the harassment, no matter how cognizant school officials are... are of it, no matter how capable officials were of remedying the harassment.

Under this blanket rule, schools simply cannot be held accountable under title IX either in court or in the administrative enforcement context for... for refusing to address this discrimination.

This result cannot be squared with title IX and with this Court's interpretations of the statute.

Justice O'Connor: May I ask, Ms. Williams, how you would propose to cabin this cause of action were we to agree with you?

I'm sure that school children nationwide tease each other, and little boys tease little girls, and so forth throughout their years in school.

And is every one of those incidents going to lead to some kind of a lawsuit?

Mr. Williams: No, Your Honor.

The legal framework that has developed in this area provides standards for determining what constitutes sexual harassment and what isn't sexual harassment.

Justice O'Connor: What standards would you think would govern to cabin this kind of a cause of action?

Mr. Williams: First, I would recommend looking at the title VII standards.

The Court said in Gebser that title VII standards inform whether sex... sexual harassment is sex discrimination under title IX.

And under those standards, a particular instance isn't sexual harassment unless it is severe, it's pervasive, unless it is sufficiently... unless it is objectively offensive to a reasonable person, unless it is offensive to the person who has experienced the sexual harassment.

Justice Scalia: Gee, but little girls always tease little boys and little boys always tease little girls.

That's pervasive.

Mr. Williams: It's pervasive, but it is not severe.

Justice Scalia: In my experience, it's... it's severe.

Mr. Williams: But it doesn't always...

Justice Scalia: Are you going to apply a reasonable... a reasonable teenager standard?

Is that... is that the criteria?

Mr. Williams: Well, the Department of Education has applied the title VII standards and given consideration as to how they would apply to the education context.

So, they do recommend that school officials use age-appropriate measures.

But the important...

Justice Breyer: The concern... the concern is I think that if you simply take the same standards of title VII, i.e., anything that would be sexual harassment in the work place, when done by a co-worker or a supervisor to a subordinate or a co-worker, that which is sexual harassment there is also sexual harassment for which the school district is liable when a 7-year-old does it to a 6-year-old or a 13-year-old to a 12-year-old.

The concern is, as you've said, you take the same standards.

You would remove what is a pervasive problem in the schools from the hands of educators and psychologists and give that problem to lawyers and judges.

Now, I don't think the latter is the right group of people to solve it.

Perhaps it is, perhaps it isn't.

But I want to bring out into the open what I think is the problem or a problem, and I want to know how you... anything you could say that would reassure me or others that... how... that this would... what I've just said may not be the case.

Mr. Williams: We understand the concern and we think that, first of all, the title VII standards wouldn't apply wholesale in the education context.

They would have to... they would inform the analysis of sexual harassment in the first instance.

And the second thing is that title IX doesn't require schools to be successful in addressing student-to-student sexual harassment.

In other words, to avoid being held out of compliance with title IX, the school would need to take reasonable steps to remedy and address the sexual harassment.

Justice Kennedy: I think then that every school district in the Nation should adopt guidelines and codes, as we've suggested for employers.

Do you think there was a suggestion in the congressional debates and in the text of this statute that there would be Federal standards for school behavior in every classroom in this country?

Mr. Williams: We're not suggesting that there are Federal standards for school behavior.

We are suggesting...

Justice Breyer: I thought this was a Federal statute we're talking about.

Mr. Williams: Well, we are talking about a Federal statute, but the Federal statute imposes the obligation on educational institutions to ensure that no person is excluded from participation in, denied the benefits of, or subjected to discrimination under the education program or activity.

Justice Kennedy: Now, let's... let's... let's be very careful here.

If you're going to have standards, they're Federal standards, are they not?

Mr. Williams: Yes.

Chief Justice Rehnquist: Thank you.

Justice Scalia: Do you really think it... it... it imposes an obligation on these educational institutions to prevent anyone being denied the benefits of or excluded from participation in, that's what it requires every school district to do?

Mr. Williams: The... the... the prohibition is broad.

Justice Scalia: Well, what if... what if parents, benighted as they may be, decide that they don't want their daughter to study science because they think girls shouldn't study science?

Title IX makes it the responsibility of the school district to prevent that?

Mr. Williams: The parents wouldn't be persons that are under control of the institution.

And so, in that instance, title IX wouldn't have... wouldn't require schools to step in to... to deal with that situation.

Justice Scalia: I... I suppose the... the parents are under the control of the institution to the extent that the institution decides what course ultimately the student will take.

And if the institution knows that the parent is... is depriving this child from taking science, because the parents feel that the girl shouldn't have science, surely the institution can prevent that.

Mr. Williams: Title IX doesn't impose an obligation on the school to act in that instance any more than title VII would require an institution to step in if a husband didn't want his wife to work in a nontraditional occupation in the public employment sector.

Justice Scalia: So, you think the language cannot be read literally, that it... it in fact does not mean that no one... when it says no one shall be deprived of the benefits of or subjected to discrimination under, it doesn't mean that it's the responsibility of the school to assure absolutely that that will be the result.

Mr. Williams: It would be difficult to say that absolutely everything, and certainly...

Justice Kennedy: Yes.

Mr. Williams: in the instance that...

Justice Scalia: So, it's just a question of where we draw the line.

It's just a question of where we draw the line.

You acknowledge that they're not responsible for eliminating the effects of the parental discrimination or the parental desires, and the question before us is whether they are responsible for eliminating the effects of the... of the children's desires.

And I don't... I don't know why it's absolutely clear that... that there's a line between those two.

Mr. Williams: Well, in the student-to-student sexual harassment context, the kind of conduct that would be actionable or the kind of conduct under which a school would be... be found out of compliance is the type of conduct that interferes with the student's ability to gain an education and it... and otherwise to fulfill the other...

Justice Stevens: So is the parents'...

Mr. Williams: requirements of the...

Justice Scalia: So is the parents' determination that... that the child shouldn't take science.

Mr. Williams: But the parent is not someone that the school has ultimate control over.

Justice Scalia: The... the parent... the school has control over what courses the child takes.

Mr. Williams: Well, we would submit that the... under the hypothetical under the situation that you have articulated, that title IX would not impose an obligation on schools.

And moreover, that's...

Justice Kennedy: Well, in... in the case of sexual harassment, I take it the school has the duty to call the parent in and... and tell the parent to control the child.

Chief Justice Rehnquist: Correct?

Mr. Williams: Yes, that would be part of...

Justice Kennedy: All right.

Why in Justice Scalia's hypothetical doesn't the school have the duty to call the parent in to say not to impose racial... or sexual gender stereotypes on the... on the child?

I don't think you're answering the question.

Mr. Williams: In the... getting back to my... my... I would like to modify my answer to your question.

Title IX doesn't require the schools to take any specific steps.

It requires the schools to ensure that students and other persons are not subjected to discrimination under the program or activity.

And under this particular hypothetical, again the parents are not persons that are within the control of the institution, and so, as I said, under...

Justice O'Connor: Well, neither is the student in every situation.

Is it possible that title IX liability requires that the action of harassment be done by an agent of the school district?

Mr. Williams: No.

No, Your Honor.

Justice O'Connor: In Gebser, of course, it was a teacher and the teacher was an agent of the district.

So, certainly it's possible then that liability would be focused on those who are agents of the district.

Liability of the district would depend upon actions of an agent.

Mr. Williams: We submit that Gebser rejected holdings... holding schools liable for the independent actions of teachers, and in that case the Court was asked to adopt a theory of vicarious liability that would be dependent upon the agents...

Justice Breyer: No.

Justice O'Connor: It... it required the intentional action of the school district, but it also happened to involve action by an agent.

And so I'm asking you whether both are required, the knowledge and... and... and neglect of the school district to control behavior that it knows was improper by an agent, or can it be anyone?

Could it be a stranger coming in and doing this or a parent who frequently comes to school and says insulting things to other children?

Would the school district be liable for that?

Mr. Williams: If a school district... if school officials, the appropriate school officials, had actual notice of that type of misconduct and they responded to it with deliberate indifference, they would be accountable.

They would be held accountable under title IX.

I think that the... the Seventh Circuit's opinion in Doe v. University of Illinois does provide a cabining concept that you were asking about, Your Honor, in that the liability would... would attach to those situations that are happening in school or in school activities or school sponsored activities.

And that would help to, I think, address in part Justice Scalia's question.

But the important thing to remember is that the statute does require that institutions not subject persons to discrimination, and the Court's decision in Gebser shows that the appropriate analysis in large part is an examination of how the school responded to the discrimination when it was made aware of it.

Justice O'Connor: That's right, but it was carried out by an agent of the school, to wit, a teacher.

Mr. Williams: Yes, it was.

That is true.

But the... the Court's analysis did not focus on the harasser's relationship to the institution to make the ultimate determination of whether damages liability would attach.

Justice Ginsburg: Ms. Williams, I thought your position was not that there's responsibility for what the child does, the way there might be for a teacher, but that there were repeated notice.

It was the school's nonresponse.

It was the school's conduct and not the fifth grade harasser's conduct...

Mr. Williams: Yes.

Yes, that's exactly right, Your Honor.

Justice Ginsburg: that renders the... the district liable.

Justice Breyer: But...

Mr. Williams: That in response to the... the underlying discriminatory conduct of the student.

Justice Scalia: But that response is blameworthy only if the school has an obligation to act.

If it has no obligation to act, its failure to respond shouldn't subject it to liability.

Why does it have an obligation to act with respect to two little kids teasing each other when it does not with respect to a parent who... who decides the child shall take particular courses?

The statute requires discrimination under... under... a program.

It prohibits discrimination under any education program.

I always thought under the program meant that the program itself discriminated...

Mr. Williams: Well...

Justice Scalia: not that the program stopped, you know, contractors or the students themselves or the parents of the students from discriminating.

I wouldn't consider that discrimination under the program.

Mr. Williams: Well, we submit that that would be, the... in the peer situation, that that is discrimination under the... the program or activity.

Justice Scalia: Any failure of the program to prevent discrimination which it has the power to prevent constitutes discrimination under the program.

Mr. Williams: Any discrimination in the sexual harassment context, if the conduct rises to the level of discriminatory sexual harassment, the... the title IX imposes an obligation on schools to address that.

Justice Scalia: Whether... whether its their agents that are doing it or not, whatever discrimination by the public at large the school can prevent, it must prevent.

Mr. Williams: If... remember that in... in order to... under the Gebser standard, what limits the liability is the situation in which the school has actual notice of it and responds with it to deliberate indifference.

Justice O'Connor: I understand.

Mr. Williams: So, the statute...

Justice Scalia: But if it knows about it, it must prevent it.

Mr. Williams: If it knows about it, it must take reasonable steps to address and remedy.

And as I emphasized before, the statute doesn't require schools to address it perfectly.

It merely requires them to take reasonable steps in order to...

Justice Scalia: And you think that that is conveyed by the language discrimination under the program.

Mr. Williams: Yes.

Yes, we...

Justice Kennedy: The students themselves are not committing a legal wrong, are they, in... in the usual sexual harassment case?

There was a battery here, but in... in most cases that you have in mind, the students aren't committing a legal wrong, are they?

Mr. Williams: They are part of the legal wrong.

Justice Kennedy: They are not committing a legal wrong under Federal law.

They are not... they have no liability, do they?

Mr. Williams: I'm sorry.

I'm not understanding your question.

They don't have any legal liability.

In other words, we wouldn't file an...

Justice Kennedy: Johnny harasses Mary.

That is not a legal wrong on the part of Johnny.

Mr. Williams: Right.

But the schools...

Justice Kennedy: All right.

It's... it's an odd, unusual, not unknown scheme that we impute liability to the principal for an act that is not wrong when done by the actor.

Mr. Williams: Well, the acts... if the act... if Johnny harasses Susie and John's action is based on sex and it's severe and it's pervasive and it is offensive to Mary and it's offensive to a reasonable person looking at the situation and if it interferes with Mary's ability to get an education, he has engaged in sexual harassment that violates the law.

And if the school fails to respond to that, upon getting notice by Mary, then the school has violated title IX as well.

And in fact, under the Gebser...

Justice Kennedy: But he has no... he has no legal liability under the statute.

Mr. Williams: The statute doesn't allow a plaintiff to go after that person, but certainly the cases that... that this Court has decided counsel that we look at the underlying discrimination and look at the... the actions of the person who has... is alleged to have done the harassment.

Justice Scalia: And that... that applies to the parents as well.

Mr. Williams: If in a...

Justice Scalia: I mean, if the parents don't want their daughters to take science or don't their... their sons to take ballet, the... the... that's okay.

But the school which has the power to determine whether the children will take ballet or science can, in effect, stop the parents from that... from that... I don't know... wicked action or whatever the action is considered.

Mr. Williams: I wouldn't say in every circumstance.

I think the way... in this hypothetical I would say the answer is no, but if parents, on the other hand, were standing outside of the doors of the computer lab saying that no female students shall enter and they were doing this in... in plain view of school officials, then the school might be liable for that because they would be denying female students the ability to benefit from the education program or activity and, moreover, subjecting them to discrimination.

So, it is no answer... you're right... for me to say the parents... the actions of parents can never be the basis of liability under title IX, but there are circumstances in which they can be.

Justice Souter: Let me ask you a definitional question.

Let's assume we get to the point of saying that student-to-student behavior can be a predicate for the school's obligation here.

How does the... how does the school define in its guidelines, be they formal or informal, the... the concept of the harassment that amounts to discrimination, as you put it, as distinguished simply from... from teasing which may be pervasive.

I mean, in the first grade, boys tease girls because they are girls and vice versa.

I presume that all of that is not supposed to be subject to a... in effect, an enforceable Federal standard.

But how would... A, am I correct in assuming that on your view it would not be, and...

Mr. Williams: Yes.

Justice Souter: B, if I am correct, could you give me an idea of how you would state the definitional line that divides one from the other?

Mr. Williams: A, you are correct.

We don't think that teasing, simple teasing, between students would constitute sexual harassment.

B...

Justice Souter: But it... it is on the basis of sex, though.

Mr. Williams: It's on the basis of sex but...

Justice Breyer: I mean, it's because they're girls and because they're boys.

Mr. Williams: it's not severe.

It's not pervasive.

It's not...

Justice Souter: Well, but it can be.

I mean, you know, little gangs form in schools and it can be very pervasive and very distressing to kids.

And it's done on a sexual basis.

It's done because the... the receivers are girls or boys and the givers are vice... boys or... or girls.

So... so, it can be pervasive.

Mr. Williams: It can be.

Justice Souter: And it certainly is on the basis of sex.

But I presume that still you would draw a line.

Mr. Williams: It wouldn't always be sexual harassment, and indeed there are many policies...

Justice Scalia: Right, but... and how...

Mr. Williams: and procedures at schools...

Justice Souter: how... what's the... how do you state the line because your time is getting short.

Mr. Williams: Yes, it is.

Well, we would say, as a starting point, the legal framework that has developed can provide a way of... of analyzing and articulating what constitutes sexual harassment.

Justice O'Connor: But that's part of the problem because under the title VII standards in the work place, I'm sure the kind of behavior that occurs at schools between children would be actionable.

So, how do we apply it in the student context?

Mr. Williams: The Department of Education has used those standards and has said, take a look... use them in an age-appropriate way.

And... and they have articulated, for example, severe to... in determining whether behavior is severe, schools should look at the... the number of instances, where they occurred, who's doing the harassing.

In that context, there may be a difference in the analysis based on whether a teacher is doing the harassing or whether it's another student doing the harassing.

Argument of Barbara D. Underwood

Chief Justice Rehnquist: Thank you, Ms. Williams.

Ms. Underwood, we'll hear from you.

Ms Underwood: Mr. Chief Justice, and may it please the Court:

When the principal of a school learns that a fifth grade girl is being sexually harassed by a classmate so severely that she can't learn and the principal responds with deliberate indifference, the student is subjected to discrimination on the basis of sex under the school's educational program.

And if the school receives financial assistance, Federal financial assistance, it may be liable in damages and equitable relief may be available even where damages are not.

I'd like to address the cabining principle question that has been on the table.

It seems to me the... the important thing to...

Justice Stevens: Excuse me.

Justice Scalia: The what question?

Ms Underwood: The question of cabining principles.

Justice Ginsburg: Oh, cabining principle.

Ms Underwood: Cabining principles.

Unless the behavior in question is so severe as to exclude, deny benefits, educational benefits, or discriminate under the education program, ordinary teasing would not rise to the level of an actionable wrong under the program.

Justice Souter: But I take it if... if it is pervasive, you know, if the kids gang up and the one... the... the object of the teasing really is... is... is left incapable of getting the benefit of the education, I take it your answer is... implicit in your answer is there's... there's no principle line between harassment and what we call teasing by... by primary grade children.

Ms Underwood: Well, when it's sufficiently severe as to deprive somebody of the ability to get an education and it's done on the basis of sex and the school fails to respond in a reasonable fashion, it seems to me that's...

Justice Scalia: Excuse me.

Why... why does it have to deprive someone of the ability to get an education?

That's not what the statute says.

That's a separate basis for violation; that is, be denied the benefits of.

All it says is, be subjected to discrimination under.

Why... why... I don't know why you insist that it be so severe that the person can't even learn.

Ms Underwood: I think the key here is that ordinarily there... there will be deference to the reasonable judgment of school officials.

Justice Breyer: This is true... I can't believe that you're... I mean, I... I doubt... you seem to be saying that if... if X is sexual harassment when a teacher does it to a student, it is sexual harassment when a student does it to a student, when an employer does it to an employee, and the concern... I'll take that as a given.

Maybe you'll deny that.

I hope... maybe you should.

But... but... but if that's the given, what's the concern I think is that whereas one might have no hesitance about insisting in the work place that if they don't shape up, they can be sued, at a school there are many, many incidents where the proper response seems to be a kind of discussion, mediation, getting together with a family, bringing in psychologists, all kinds of things that don't seem appropriate in the work place.

And I guess my concern anyway is... is there some way for the law to be sensitive to that other than opening up a can of worms so that when, as happened, in school X which had a group of girls that were bigger than the boys and they used to beat them up after class, all right, the way the school responds is not with lawsuits?

The way the school responds is through discussion and mediation and so forth, all kinds of ways of response.

What's worrying is the gearing up of the great legal mechanism to supersede that.

Ms Underwood: But there's no reason why those discussions, counseling sessions, training, conciliation wouldn't be precisely the sort of response that would avoid deliberate indifference and would avoid liability.

That is to say, the appropriate response in the school setting could be very different, would be very different from...

Justice O'Connor: Well, but if it continues again, there's another incidence of it, it fails, then there you go.

You're marching off to court to resolve these issues.

Ms Underwood: There's no... there's no requirement that a school guarantee that this not happen.

The rule is that a school... for a school to subject a student to discrimination isn't the same thing as for this behavior to happen.

Justice Souter: Well, that's very true, but I think our concern is... is a slightly different concern, and that is, if there is, as... as... as seems to be developing, no principle line between sexual harassment at the... at the... in effect, at the high end of the scale in high school and... and teasing in the first grade, then in every case in which there is pervasive teasing, which we all know goes on, there is a potential Federal case here whenever the parents are dissatisfied with the actions, which you quite rightly describe any reasonable school should take.

And I think the concern is that there is no way really in principle to draw a line between every act of teasing and... and a subject of Federal litigation.

Ms Underwood: Well, I think the principle where to draw the line is in recognizing that the appropriate response of the school is different from the appropriate response of an employer...

Justice Souter: Well, that goes to the... that goes to the school's response when it gets into court.

Ms Underwood: No, it doesn't.

Justice Souter: But it still remains the case that the school is going to be subject to... to a Federal court action, and it is going to be Federal guidelines which will be implicated by the claim for every first grade pervasive teasing incident.

That's the concern.

Ms Underwood: Well, of course, it's always possible to bring a lawsuit, but the cases that have developed so far and presumably, should this Court adopt this rule, the courts could quickly establish what would be a basis for summary judgment, that is, what sort of that... that it would only be a failure of... of the... that rises to the level of deliberate indifference that would be a basis for...

Justice O'Connor: Well, is it possible that under title IX the harasser must be an agent of the school district and the district must have actual knowledge and act with deliberate indifference?

Is that a possible interpretation of that statute?

Ms Underwood: I don't think it's... it's true to the purpose of the statute.

Title IX, like title VI before it, was designed to provide students with equal access on the basis of sex in the one case and race on the other to an education.

Title VI, after all, was concerned, among other things, with the racial hostility of students to each other in newly integrated schools, as well as the racial hostility of teachers.

So, when the... when a gang prevents a student from essentially participating in the school program on the basis of race or on the basis of sex, that's right at the heart of what title IX means.

Justice Scalia: You... you keep saying that.

I don't know why you can say that.

If... if you are correct about what title IX provides, you don't have to... it doesn't have to be so severe as to deny the person the benefits of the program.

Ms Underwood: The more severe it is, the clearer it is that the school has to respond.

Justice Scalia: I suppose that's right, but... but...

I agree with Justice Scalia.

all it has to be is discrimination on the basis of sex which the school is aware of.

Ms Underwood: And fails to respond appropriately to.

Justice Kennedy: And fails to respond to.

Ms Underwood: And ordinarily... as amici for... for the schools here point out, ordinarily schools do respond.

That's the... that's the other cabining principle here.

Presumably it would be the unusual case where a school was in fact deliberately indifferent, and you would have ordinarily to make that out, egregious behavior and no response or... or...

Justice Kennedy: But the point... but the point is you do not have to show, under the statute, as Justice Scalia suggests and as I understand it, that the students cannot learn as well.

Suppose the student comes home in tears... most students do one... one or more times... and decides that what that student will do is to really study hard and to excel.

Is there discrimination there?

Ms Underwood: It depends on whether the school has failed to respond reasonably or not.

You don't have an answer to the question on the basis of the student's action.

It is, as I think Gebser said, the school's response that's in question here, and...

Justice Ginsburg: But not... Ms. Underwood, I think the point is are you distinguishing between the student who can't learn she's so upset or the one who says, this is horrible.

I'm being exposed to this horrible thing every day, but I'm going stand up against it.

The same thing that came up in Harris against Forklift.

Ms Underwood: No.

I don't... I don't... I'm not suggesting that there's only discrimination if the student is demolished, but I am suggesting that the student's reaction is relevant to the appropriate response on the part of the school, and that that's where the... the limitation comes in.

I'd like to point out that it's not unusual in the law, or at least it's not unheard of, in discrimination law for the entity to be liable for an act when the... when the first line actor is not.

Under title VII, it may well be that the employer is liable but the mid-level supervisor who's doing the discrimination... it's not clear whether that supervisor could also be liable under title VII or not.

There are simply different questions at stake when you're asking whether the individual is liable and whether the institution is liable.

One of the reasons the individual is not liable here is that the individual... there are many reasons, but one of them is that the individual is a child and the idea of liability on the part of that child brings into question quite different considerations from the liability on the part of the school which has authority over the situation to do something about it and to respond.

The...

Argument of W. Warren Plowden, Jr.

Chief Justice Rehnquist: Thank you, Ms. Underwood.

Mr. Plowden, we'll hear from you.

Mr. Plowden: Mr. Chief Justice, and may it please the Court:

The petitioner is asking this Court to create a private claim for damages under title IX by applying adult standards of hostile environment sex harassment to children.

Like other school districts, Monroe County's has the obligation to educate all of the students, all of the children, as they go through various developmental stages from K-5 through 12th grade.

Throughout these years, 45 million children, grades K-12, struggle to sort out the differences between boys and girls, acting out these relationships, flirting, repeating newly learned vulgarities...

Justice Stevens: Mr. Plowden, can I give you a hypothetical that occurred to me as I listened to the dialogue in the last argument?

Mr. Plowden: Certainly, Your Honor.

Justice Stevens: Just let's get away from the sexual harassment scenario for just a moment.

Suppose you had a... a baseball field and the rules of the school said, after school there will be an hour for women... or the female students and an hour for the male students.

And that's the rule.

It's perfectly clear.

That's the rule policy.

But, in fact, the boys decide they want the... the field for 2 hours, and they're just not going to let the girls on.

And they do that over and over and over again, and the athletic director knows about it but does nothing about it.

And he says, well, our rule is it's equal time for both.

Is there a cause of action?

Is that discrimination in violation of the statute?

Mr. Plowden: Your Honor, we draw a bright line here between acts of misconduct of adults on the one hand, as you had in Gebser, and the acts of misconduct of children.

Justice Stevens: Misconduct for the adult in my hypothetical is that the adult did nothing about it when fully informed as to what happened.

Mr. Plowden: Yes, sir, but the underlying predicate for that, presumably the intent to discriminate, is the group of boys that are...

Justice Scalia: Correct.

Mr. Plowden: that are shuffling the girls off...

Justice Stevens: And as a result of their conduct, week after week after week, they have exclusive use of the athletic facility, and that would not, in your view, violate the statute.

Mr. Plowden: If Your Honor please, I...

Justice Stevens: What is your view on my hypothetical?

Mr. Plowden: I still would not agree that that's a violation of title IX...

Justice Scalia: That wouldn't... that would not violate title IX.

Mr. Plowden: for... for which someone could take my client into court and sue them for damages.

No, sir.

Justice Stevens: Well, you've given me two answers.

Is it a violation of title IX?

Mr. Plowden: No, sir.

Justice Scalia: No you state.

Mr. Plowden: No.

Justice Ginsburg: Not even for purposes of injunctive relief to say to the school, you put a teacher on that field to make sure the girls have their equal time.

Mr. Plowden: If Your Honor please, I believe that... that OCR can enforce title IX, as it does every day, against schools with... there's no requirement.

This... this is in Gebser.

OCR can enforce the mandate of... of the requirement even if it doesn't purport to represent a definition of discrimination.

Justice Ginsburg: I don't follow that.

I mean, if it's a violation of the statute, then OCR can enforce it.

If it's not a violation of the statute, then they can't enforce it.

Mr. Plowden: Well, you... if Your Honor please, the opinion for the Court in Gebser says that they can enforce the nondiscrimination mandate even if the requirement they impose does not purport to represent a definition of discrimination.

Justice Souter: No, but they can't enforce anything given your answer to Justice Stevens because there has been no violation.

So, if... if I understand your answer to Justice Stevens, there could never be injunctive action.

Is that correct?

Mr. Plowden: That's correct.

Justice O'Connor: And that would be true even if... if the action of the boy students were to block admission of the girls to a science class, a group of students who said, we're not going to let girls in here.

Out of here.

And the teacher knows that, the principal knows it, and the girls don't get to take a class they want to take.

No... no violation of title IX and no injunctive relief possible at the instance of the Federal officials.

Mr. Plowden: No, Your Honor.

No injunctive relief in Federal court, but parents can get relief by complaining to OCR and going through the express statutory remedy that is set out in title IX.

Justice Souter: How could they get relief if there is no violation of the statute?

Mr. Plowden: OCR frequently, many times, comes down, investigates, finds a potential violation, and then enters into negotiations with...

Justice Scalia: Oh, a raised eyebrow.

You mean you... you can... you can muscle them.

Even though it's not really a violation, they... they will...

Mr. Plowden: That's...

Justice Scalia: snap to attention if... well...

Mr. Plowden: Your Honor, that's exactly...

Justice Scalia: You don't want us to sanction that sort of thing, do you?

Unidentified Justice: [Laughter]

Mr. Plowden: Well, I'd a whole lot rather you sanction that than open up the courthouse door to all of these kinds of lawsuits that we're liable to face here.

And... and Gebser says exactly that, Your Honor please.

Justice Breyer: Is it possible...

Justice O'Connor: What Gebser focused on, of course, was the concept that if the school district has actual knowledge of the problem and is deliberately indifferent to it, then there can be liability.

Mr. Plowden: Yes, deliberate indifference.

Justice O'Connor: Now, that does offer some kind of standard.

It isn't a negligence standard.

Mr. Plowden: Oh, no, ma'am.

And... and... and you defined... the opinion of the Court defined that to mean a refusal to act as... as being deliberate indifference.

Justice Scalia: Well, what's wrong...

I understand what the... what the... exactly... I assume if the situation in Justice Stevens' hypothetical were that the... the male students were making use of a... of a... a school facility, for example, holding the gates shut or something of that sort, I assume you could say that it is the responsibility of the coach or whoever has authority over the field to keep that gate open regardless of... regardless of what the male students are doing.

I mean, in some... in some situations at least, you would be able to find affirmative action on the part of an agent of the school which is causing these... these young women to be excluded from the athletic facilities.

Mr. Plowden: I think...

Justice Scalia: And you'd have no problem with finding liability there.

Mr. Plowden: If Your Honor please, I think that's correct.

You can pose a hypothetical question to the point that the... the involvement of the teacher or the coach or whoever it might be, is such that he is... he or she has become complicit or co-conspiratory...

Justice Scalia: Something more than merely... merely refusing to punish these boys for something that they do off of the school grounds.

Mr. Plowden: To the extent that... that you could draw the conclusion that that person had formed an intent to discriminate...

Justice O'Connor: No.

Justice Scalia: My hypothetical is that the...

Mr. Plowden: and that's Gebser.

Justice Stevens: what the adult member of the school staff does is nothing.

He does nothing with full knowledge.

He doesn't do anything affirmatively, and you say there's no liability in that case.

Mr. Plowden: Yes.

Justice Stevens: Even if not only they... not only do they exclude them from the... from the field, but they also happen to beat them up or something like that because they really want to teach them a lesson, there's still no liability.

Mr. Plowden: Well, if they beat them up and there's... and there's assault...

Justice Scalia: No Federal liability.

Mr. Plowden: and that sort of thing involved, then there's mandatory reporting laws that that teacher or person...

Justice Scalia: I think we need a Federal law to solve that problem...

Justice Stevens: Well, that's the question.

Justice Scalia: of... of young... young men beating up young women.

Justice Breyer: Before you leave that, could... could...

Mr. Plowden: Yes, sir.

Justice Breyer: I mean, what Justice O'Connor I think was suggesting possibly is the possibility of creating a standard that's strict enough to stop the administrative problem that you're worried about.

Now, suppose you did combine what she suggested, which is that the school district needs actual knowledge and virtually doesn't respond at all, with what I think was implicit in your opponent's suggestion that maybe the harassment would have to rise to the level of a significant denial of the program's benefit.

Now, if you put those two things together, the significant denial of the program's benefit so it isn't just teasing or things that the kids can get over, together with a very strict standard of liability such that the school district has to actually know and its response has to be nonexistent or grossly inadequate... if you put those two things together, would you leave the kind of leeway for the school district that I think I suggested might be desirable and that you apparently think is desirable?

Mr. Plowden: If Your Honor please, no matter what the standard, how high the test or where you set the bar, once you have opened the door to the courthouse to these lawsuits, it means that a Federal district judge at some... some stage of the procedure here, a motion to dismiss, summary judgment, or... or perhaps even a trial, is going to have to make a determination, was the response of the school officials enough.

Justice Kennedy: Under the standard proposed by Justice Breyer, are you confident how the case at bar would come out?

Mr. Plowden: I'm sorry.

I didn't...

Justice Kennedy: Under the standard proposed by Justice Breyer, are you confident in knowing how this case would come out?

Mr. Plowden: I'm not sure, Your Honor.

I haven't thought about that, and I'm not... to be perfectly honest with you, not entirely sure I understood his standard.

Justice Breyer: I was simply taking Justice O'Connor's idea that the school district has to know exactly and they have to have no response or a grossly inadequate response, virtually no response, and in addition, the harassment has to rise to the level of denying the significant benefit of the program, which I think was discussed on the other side.

So, it can't those are the ideas of keeping the teasing out, of keeping anything, even ordinary, you know... well, I won't repeat it.

Mr. Plowden: We're creating a higher standard here to...

Justice Souter: Very high.

Justice Breyer: Very high.

Chief Justice Rehnquist: Quite high.

Mr. Plowden: I would still draw the line at no sex harassment here if no... no... excuse me... no private right of action here if the predicate conduct is the student.

I make that distinction, and I would suggest to the Court that there is a difference between the relationship of a school district to teachers and students that should inform the rule that you adopt.

Justice Ginsburg: And you would say the same thing under title VI for race then?

Let's say that there's a racial minority in the school, and the racial majority on the playing field during recess is beating up on the minority, and the teachers stand by.

They're not affirmatively encouraging anything.

They're just not stopping it.

There would also be no liability under title VI?

Mr. Plowden: Yes, Your Honor, that's what I'm saying.

Most of those racial harassment cases, the older ones anyway, invariably involve situations in which there was an affirmative injunction in force to desegregate the school district and, as part of it, were provisions about harassment.

Justice O'Connor: Do we... do we have to be concerned at all with the fact that in public schools, in any event, the children are compelled by law to attend and the school does act as a sort of in loco parentis situation during the school day?

Does that impose responsibility on a school as a result that we have to be concerned about here that might be part and parcel of the background of title IX?

Mr. Plowden: No, ma'am.

And I... and I... you don't have to be in terms of whether or not there's going to be a damage action in Federal district court for this.

But let me hasten to add that refusing to create such a remedy is not going to be any green light for children to misbehave at will.

Every school in my State is required by law... it's mandatory to have a school behavior, school discipline code, and these are on file with the State.

Every State has mandatory reporting of sex abuse by children laws and makes it a misdemeanor to fail to do that on the part of a teacher.

Because of the educational efforts of DOE, as well as the associations that boards of education belong to, sex harassment policies and procedures and grievance mechanisms have been widely adopted throughout my State and throughout the country.

In Georgia a school board is... is a local tribunal.

It is set up under State law as a local tribunal to hear and decide any action that arises under the school law, and under that statute, parents who are dissatisfied with the response they get from a principal, or indeed even a superintendent, can appeal that matter to the board of education.

I've had those cases happen in my county where I live involving this very issue.

In addition to those mechanisms that are within the school context, there's the possibility of a tort action against students if... if it arises to the level of a battery or an assault.

There's juvenile court if they are underage, and for the students who have reached the age of majority, there's adult criminal court.

All of these mechanisms are there to help the parent and the school...

Justice Stevens: Mr. Plowden, I may have missed it in your description.

Is there a remedy under State law against the school board if it totally ignores a serious problem?

Mr. Plowden: Not in my State, Your Honor.

Justice O'Connor: No, no.

Justice Scalia: What is the authority of the schools in... in... in your... in your State?

Do the schools have authority to expel students or discipline them for things that they do off the school grounds?

I mean, suppose this harassment is going on before the students get to school?

Can... can... is there authority...

Mr. Plowden: There is an extent to which schools can assert jurisdiction for misbehavior that occurs off the school grounds, yes, sir.

Justice Scalia: What is... what is the extent?

Mr. Plowden: It has to relate to something at the school.

For example, students are harassing somebody at the mall or the problem begins at school and it ends after they get to the bus stop and they're on their way home from there.

Those kinds of things are routinely dealt with as school discipline matters under these discipline codes that I was referring to.

Now, that's not statutory in Georgia, but most districts assert that right to do that.

Justice Scalia: So, if it's sort of generalized harassment that occurs off the school grounds, you'd say that they have no... probably have no authority, but if it is harassment that relates specifically to what goes on at school, even if it occurs off the school grounds, you think they would have authority.

Mr. Plowden: Yes, sir.

In Georgia, there's a body of law developed by the State board.

That's where these things get appealed, and they hold that there must be some connection there.

You can't just willy-nilly apply disciplinary action at school for totally unrelated activity off campus.

Justice Scalia: Of course, the text of title IX here is... I mean, it speaks very broadly.

It says, no person shall, on the basis of sex, be excluded from... be excluded... it's in the passive... be excluded from participation in, be denied the benefits of, or be subjected to discrimination.

It doesn't say who has to do this act which results in the being.

Mr. Plowden: It says...

Justice Scalia: So, technically under the words of the statute, why couldn't we say that the individual students are in violation of section IX?

Mr. Plowden: It says...

Justice Scalia: In Justice Stevens' example, why couldn't we say that the students who prevent the girls from entering the field violates section IX themselves?

Mr. Plowden: If Your Honor please, it says that that... those kinds of things shall not happen under any program or activity which receive Federal funds, which is then further defined to mean all of the operations of a local school district.

So, I think the statute clearly focuses in the first clause, if you will, on the participant in the program, but it also says who is not going to... who is going to be responsible if any of these things occur...

Justice Scalia: Well, that's one way to read it, to read as... as implicitly saying shall not be excluded by the person who runs the program, but that's not really in there.

And certainly another way to read it is that anyone who excludes someone from participation in a... in a school program that's federally funded violates title IX.

Mr. Plowden: I suppose...

Justice Scalia: You could read it that way, couldn't you?

Mr. Plowden: It is a possible reading of the statute and...

Justice Ginsburg: How has it been read by the agency that administers it?

Title IX has been around now for over a quarter of a century.

And a basic question like that, who does the statute... who is the object of the statute... hasn't there been something...

Mr. Plowden: Well, the agency that administers this statute in my case is the Department of Education through the Office of Civil Rights.

And long after this... the conduct at issue here and the lawsuit was filed in... in fact, it came... became final in 1997, they issued some guidance on this subject.

Justice Ginsburg: But not just... Justice Scalia's question didn't go to sexual harassment.

It's who is responsible under title IX.

You answered it is the recipient of Federal funds.

Mr. Plowden: They...

Justice Ginsburg: It is not the... the student in the school.

Mr. Plowden: They adopt what I call the occurs in theory, which is a possible... although not one we would urge, but a possible broad reading of the statute to mean, in effect, anything that happens anywhere in the school community by anybody.

Justice Ginsburg: Well, one thing... one thing is what the recipient is responsible for, but where do you get the limitation of title IX to the recipient of Federal funds?

Chief Justice Rehnquist: I think...

Mr. Plowden: In this case I get it in this fashion, Your Honor.

As the opinion of the Court says in Gebser, what we're doing here is crafting the contours of an implied private right of action.

It's not in a statute anywhere.

It's a creation of this Court in the Cannon case.

And... and Gebser goes on to say that you have the leeway in... in fashioning this remedial scheme to come out with a rule that is consistent with the purpose of the statute but which at the same time ensures that the Federal funds in question are going to wind up going to support education programs rather than being diverted to support litigation.

So, although... albeit that is a possible reading, the occurs in... you could read it that way.

We would strongly urge the Court not to.

You don't have to under your jurisprudence as set out in Gebser, and you can read it in a more sensible fashion that avoids all of the problems that would arise... will arise if they are correct and... and there is this private right of action because once... once you step over that line, once you cross my bright line test that I'm suggesting to you here today, then not only do parents have all of the kinds of formal and informal adjustment mechanisms that I... that I described a while ago, but now the door to the Federal courthouse is open.

A January 9 op ed piece indicates that according to a study by the American Association of University Women, over three-quarters of all girls and over two-thirds of all boys report being harassed somewhere in grades 8 through 11.

The potential here for litigation is enormous.

Justice Ginsburg: But we don't know from that whether... what the definition of harassment was.

Everyone agrees it's got to be pervasive.

It's got to be repeated, and the school has to be deliberately indifferent.

In the survey that you're referring to, anybody who had been... had one exposure could answer yes.

Mr. Plowden: Yes.

Justice Ginsburg: And that certainly is not what anyone says would be... would trigger liability under title IX.

Mr. Plowden: Well, I'm not suggesting here that all two-thirds of the 45 million boys would have a claim.

I'm just suggesting to you that once you open the door, two things... well, three things really have occurred here.

No matter where the bar is, we're now in Federal court litigating over the response of the school district to these reports, after-the-fact reports like you have in this case, of sex harassment.

Justice Scalia: Well, it's only money.

Unidentified Justice: [Laughter]

Mr. Plowden: I would respectfully suggest, Your Honor, that you could be talking about a lot of money here.

Creating this cause of action could turn out to be self-defeating in terms of the use of Federal funds to enhance these programs.

Justice Kennedy: It's not... it's not only money.

Isn't it... isn't it a necessary consequence of the position the petitioners argued that there will be a Federal code of conduct in every classroom in the country?

Mr. Plowden: Exactly, Your Honor.

Precisely my point.

What will happen here is... and it's a backward looking and a forward looking situation, if you will.

For the case that's made it into court, the Federal district judge has got to deal with the issue.

Regardless of how high the bar is set, what the test is, there's got to be a review on some basis looking back at the action or alleged inaction, whatever you call it, of the school officials and response to the reports of harassment by the student.

On a going forward basis, school administrators, school board attorneys are going to have to constantly refine and fine tune the punishment provisions in their discipline codes in order to make sure that they... they're protected for the next case that comes along.

When the... when the district court somewhere decides, well, this was not enough, then we may need to adjust our punishment, and as the principal in this case said, get down on them a little harder.

So, you've... you've got both of those problems.

You've also, in... in the course of doing this, focused the attention of the administrators, teachers, school officials into the courthouse into the litigation process and away from the school function, the school program which, after all, is the object of these various Federal grants that we're talking about here.

Justice Ginsburg: Mr. Plowden, I understand the... the problem that people have been wrestling with, that is, how do you draw the line between rough-stuff teasing and harassment that's covered.

But on the other hand, I don't understand why it's so hard to separate negligence from deliberate indifference, that it means you have to know and you have to deliberately not do anything about it.

It seems to me that that's not a hard standard to define and apply.

Mr. Plowden: I'm not suggesting so much that the difference there is hard to apply as I am saying that it has to be applied at all because once you get into the courthouse, whatever that standard might be that you would adopt, it's got to be applied in court with children testifying about the pervasiveness or lack of it here or perhaps even the welcomeness of it.

That's another concept here that goes into this adult notion of sex harassment that you'll now be applying to the children.

Justice Breyer: Would your answer be the same if it were racial harassment?

Mr. Plowden: Under this scheme, yes, Your Honor, it would.

I...

Justice Breyer: I mean, suppose... you know, imagine very, very severe racial harassment by students against someone who was different racially and... and they can't use the program.

Mr. Plowden: They can't benefit.

Justice Breyer: To the point where they can't benefit from the educational program.

Is it likely that the Congress wanted that to be ignored?

Mr. Plowden: Not if the adult involvement in that situation in terms of ignoring it, looking the other way, to the point perhaps of covering it up, if you get to that stage, then under those circumstances you... you've perhaps crossed over my bright line.

Justice Stevens: No, but you still have... it seems to me you have the same hypothetical in the black/ white situation.

The white boys say, this field is for whites only, and the... and the... and the school does nothing.

You still say that... there's no liability there.

Mr. Plowden: I do, Your Honor.

Justice Breyer: You have to say that.

Mr. Plowden: I do, Your Honor, and I...

Justice O'Connor: Well, does title IX cover racial discrimination?

Justice Stevens: No, I'm talking about title VI.

Mr. Plowden: Title VI does.

Justice Ginsburg: And they work the same way, the two, with respect to the... to the mechanism, the private right of action and the OCR authority.

Mr. Plowden: Yes, Your Honor.

You have probably inferred a private right of action in Guardians if you put together all the... the opinions and add up the... the positions of the court in that case.

Justice Kennedy: The statute in front of us is written in the... I guess the passive voice.

No person shall be subjected.

It seems to me that... that aids somewhat the construction that the petitioner is urging on us.

Schools simply have a duty to ensure that the prohibited conduct doesn't happen no matter who causes it.

Mr. Plowden: Again, Your Honor...

Justice Kennedy: That's a permissible reading it...

Mr. Plowden: I would agree that you can read that statute and the definitions if you follow them through to the end, that there is this occurs in theory out there.

I would strongly urge the Court to reject that reading.

You don't have to read it that way.

Justice Scalia: Well, if you give it that reading, you don't have to sue the school.

You could... you could sue the individual kids who... who are doing the sexual taunting...

Mr. Plowden: Well, the...

Justice Scalia: or the... the individual students who are excluding people from the playing field.

Mr. Plowden: Well, if Your Honor please, jurisprudence thus far... and of course, you haven't addressed this issue...

Chief Justice Rehnquist: No.

Justice Scalia: I mean, if you accept Justice Kennedy's position that the passive voice is the passive voice.

Mr. Plowden: You could perhaps extend the private right of action that far to reach the conduct of nonrecipients in your example.

Justice Ginsburg: Has any court ever done that?

Mr. Plowden: Not that I'm aware of, Your Honor.

We urge the Court in this case to adopt a rule which is informed not by the exception, not by these hypotheticals, but which recognizes that a school district... school districts in this country are making concerted efforts to deal with the problem of student misbehavior whether it has a sexual connotation or not and that Federal funds should be... should be used to support educational programs rather than litigation.

Refusing to adopt the rule petitioner urges does not condone that conduct, but it does recognize that all violence and all harassment from whatever source and whatever direction is objectionable.

But it leaves the responsibility of dealing with that to parents and schools operating under State law.

We urge you not to apply a rule which federalizes school discipline process by applying adult concepts to children.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Plowden.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Gebser v. Lago Vista Ind. School Dist. - Oral Argument

Fri, 09 Jan 2009 14:50:03 +0000

Case:

Gebser v. Lago Vista Ind. School Dist.

Media File:

96-1866_19980325-argument.mp3

Related Transcript:

1997_96_1866_argument.xml

Transcript:

Argument of Terry L. Weldon

Chief Justice Rehnquist: We'll hear argument next in Number 96-1866, Alida Star Gebser and Alida Jean McCullough v. the Lago Vista Independent School District.

Mr. Weldon.

Mr. Weldon: Mr. Chief Justice, may it please the Court:

The issue in this case is the standard under which a school district can be held liable for violation of Title IX of the education amendments when one of its teachers intentionally discriminates against one of his students by engaging in sexual harassment of her.

Petitioner was clearly subjected to intentional discrimination under, using the terminology of this statute, under the educational programs and activities provided by the respondent.

Unknown Speaker: Was there some showing that it was discriminatory?

Because I read many of the statements in the various briefs in the proceeding and there's virtually no mention of discrimination.

There's a lot of mention of sexual harassment.

Mr. Weldon: We're using in the briefs and in the documents in the case that are in the joint appendix, we're using the term, sexual harassment, as synonymous with discrimination, and I believe the Franklin court--

Unknown Speaker: Well, I think in Oncale we said it wasn't.

Mr. Weldon: --Well--

Unknown Speaker: That you have to show that the treatment... not only that the treatment was harassing, but that it was... you were treating one sex on a basis that you would not have treated the other sex.

Mr. Weldon: --And I think that's amply shown by the record in this case and I think that the Franklin case simply stands for the proposition that when a teacher intentionally harasses a student, that is discrimination based on sex.

Unknown Speaker: Well, the Franklin case said there's a private cause of action.

Mr. Weldon: Yes, sir.

Unknown Speaker: But are you saying that it would be enough if you showed there was just harassment of a student by a teacher of a different sex?

Mr. Weldon: If the harassment was based on sex, yes.

Unknown Speaker: Well, I think the statute says you have to discriminate on the basis of sex.

You have to... the teacher has to treat students of one sex differently from another.

Mr. Weldon: And in this case that's exactly what happened.

The teacher singled out this young girl.

Unknown Speaker: Because of her sex?

Mr. Weldon: Because of her sex.

The Fifth Circuit standard from which we appeal would require proof of actual knowledge not only in the school district generally but in the superior of the teacher who was guilty of the discrimination, or at least in some person who had immediate power over that teacher with respect to--

Unknown Speaker: Well, you know, I think the tough question we need to answer here is whether a suit under Title IX, which this is, I think--

Mr. Weldon: --Yes, Your Honor.

Unknown Speaker: --should be governed by the principles of Title VII suits, or whether there is some different standard here under Title IX because essentially it's a Federal financial grant program under Title IX, and it's quite possible that agency principles don't apply to Title IX at all.

Are you going to address that question?

Mr. Weldon: I'll do it right now.

The... there are obvious similarities between Title VII and Title IX in that they have as their object the prevention or redress of sexual discrimination, but there are important differences as well.

As we are argue in some detail in the brief, those differences lead, I think, to the conclusion that Title IX provides wider protection even though it does not use the word agent in a definitional way as Title VII does with respect to employers.

The reason for that is that the focus of the two statutes is quite different.

The focus in Title VII says... is on the employer, and it tells what the employer and his agents are prohibited from doing.

As the Court pointed out early on in the Cannon case, the focus of Title IX is completely different.

The focus there is on the beneficiary, and the focus is on discrimination without respect to who might be guilty of the discrimination.

Unknown Speaker: But, what about the supposed constitutional distinction between them?

I mean, the argument is being made on the other side that under what is in effect a spending power, piece of spending power legislation, an obligation cannot be imposed upon the Government that takes the money, which is not very clearly spelled out.

And if the standard of liability for the employer is not clearly spelled out, then the only standard that can be applied is that which necessarily would be applied if there's going to be liability at all, i.e. in this case actual knowledge.

What's your response to that argument?

Mr. Weldon: The respondent, with all respect, I think overreads the Spending Clause and overreads the cases that construe the Spending Clause.

My belief is, and I'm referring specifically to Pennhurst, my belief is that the Spending Clause statute must fairly inform the recipient of the funds what the conditions of the funding are.

At the time in question in this case the school district obviously knew the contents of Title IX.

The school district obviously knew the contents of regulations which have the force of statute because the statute authorizes the Department of Education and predecessor agencies to enact these regulations.

Unknown Speaker: Well, are you saying that there were regulations at the time in question here that indicated that the standard of employer liability for employee conduct would be something different from actual knowledge?

Mr. Weldon: That would be my--

Unknown Speaker: What did they say?

Mr. Weldon: --my disagreement with the implication of your question, Justice Souter, and that is that I do not believe that the Pennhurst case or any of the Spending Clause cases require any extensive catalogue of what facts or what fact patterns might trigger liability, any more than the Spending Clause requires an exhaustive listing of the potential remedies that might follow if there is a violation.

Unknown Speaker: Do you draw any distinction between the significance of the Spending Clause for primary liability... i.e., the liability of the employee, or the conduct--

Mr. Weldon: Yes.

Unknown Speaker: --which could give rise to liability and, on the other hand, the significance of the Spending Clause argument for determinations of imputed or vicarious liability?

Are the implications different in those... for those two different questions?

Mr. Weldon: I think... to the extent that there are differences, I think they get resolved the same way.

I think that the Spending Clause simply... and I don't mean to oversimplify, but simply requires that the recipient of Federal funds have some idea, some clear idea what the conditions of accepting the fund are, and here I find no ambiguity in anything that the school district--

Unknown Speaker: So... and do you--

--Of course, it's sort of swallowing the camel and straining out the gnat if... inasmuch as the statute doesn't even show on its face that there's a private cause of action at all.

Mr. Weldon: --Yes, sir.

Unknown Speaker: If we really believe strongly in the principle that Spending Clause impositions upon the States must be clearly expressed, there wouldn't be a cause of action here at all, right?

Mr. Weldon: If I may, Justice Scalia, I'll invoke your concurring opinion in the Franklin case and simply observe that a couple of bridges have been crossed.

Unknown Speaker: No, but I'm saying, it's... we're sort of switching the music if, having created the cause of action in the face of its nonexpression, despite the fact that this is a spending thing, we suddenly... we get very picky, I suppose, about what the content of that cause of action is.

Mr. Weldon: Well, I--

Unknown Speaker: Of course, Cannon was decided long before we adopted this rule about Spending Clause certainties.

Mr. Weldon: --I understand that, but I'd like to point out, as you pointed out in that same concurring opinion, that Congress then took subsequent action--

Unknown Speaker: Right.

Mr. Weldon: --with the enactment of the civil rights bill that extended Title IX to the States.

Unknown Speaker: Quite so.

Mr. Weldon: And I believe that it has to be taken in the context of the Cannon case.

Unknown Speaker: Oh, I'm not suggesting going back on it, but I'm suggesting that in our... I'm trying to help you.

Never mind.

[Laughter]

It seems to me an argument in your favor that we've already taken the step, and Congress has accepted it, of creating this cause of action in the teeth of its nonappearance in the statute.

Mr. Weldon: And then, of course, the second step was to recognize in Franklin that despite the silence of the statute, which obviously, being implied, would be silent, that the presumption is that all reasonable remedies or usual remedies apply.

Unknown Speaker: May I ask, to the extent to which Title VII would be the model, do you accept that the statutory caps that are in Title VII would apply under Title IX?

Mr. Weldon: Your Honor, I haven't read the statute closely, but I think the statute is specific with respect to Title VII.

I think it would be entirely appropriate for Congress to consider whether enacting a statute imposing caps on Title IX precisely the way they have done for Title VII, but I do think--

Unknown Speaker: Yes, but it's not there now, and yet this Title IX tells us very little, so we look... we fill in the gaps, I think you suggest, by looking to the law built up under Title VII, so one question was, but you wouldn't take the caps from the statute?

I guess that's... your answer is no, not unless Congress imposed them.

Mr. Weldon: --It's obviously a policy consideration, but with all deference I think it's probably... my view is that it's a legislative policy consideration and not a judicial one.

Unknown Speaker: But the judicial... we... we have crafted this claim, and so we have to give it some content, too, because where else are we going to look?

Congress hasn't done it.

Mr. Weldon: And again, your question is specifically with regard to caps--

Unknown Speaker: So I... so I... well, one thing to do is to say, we'll do this the same way as Title VII, so we'll incorporate the Title VII case law and the Title VII statutory revisions, but you say no.

Mr. Weldon: --I think the Title VII cases are an appropriate analogue.

I think the Court reflected at least that instinct, I wouldn't call it a holding, by it's reference to the Meritor in the midst of the Franklin case, but I think Title VII is just an analogue and not a direct road map, and I think the reason for that is principally because, first of all... two things.

The context of Title IX is significantly different than the context of Title VII.

Title IX obviously applies to education from kindergarten or preschool all the way up to post graduate, and the other reason is the text of the statutes are so completely different.

Unknown Speaker: Do we... do you think we could adopt one standard of liability for the private right of action and permit HHS to use a different standard for the cutting off of funds under Title IX, or do we have to go in lockstep with... I mean, assuming we're making it up, as Justice Ginsburg suggests, do we have to make it up in lockstep with HHS, or could... you know... do you understand what I'm asking?

Mr. Weldon: If you're--

Unknown Speaker: Suppose... if you do X--

Mr. Weldon: --Yes.

Unknown Speaker: --you are liable for the cutting off of Federal funds under the regulations issued by the Secretary, which the Secretary has authority to issue.

Mr. Weldon: That's right.

Unknown Speaker: And the authority has... the Secretary has no authority to issue regulations about private causes of action, which we've created.

Does our private cause of action have to make the basis of liability the same thing that the Secretary says is the basis of cutting off Federal funds?

Mr. Weldon: I do not think so.

Frankly, that's not a question that's concerned me.

Unknown Speaker: All right--

Mr. Weldon: It occurred to me in my preparation, but I do not think so.

I don't think so because I think what would govern the case... the Court in these decisions is the text of Title IX and the text of the actual regulations, the Code of Federal Regulations that were adopted implementing Title IX as the Department was authorized to do.

Unknown Speaker: --So we have to follow those regulations, you say.

If it's a violation of the regs it's the basis for liability in the private cause of action.

Mr. Weldon: I just want to point out... yes, but I want to point out that at least in my mind there's a considerable distinction between the regulations in the Code of Federal Regulations, which are fairly minimal, as compared to the guidelines which are merely intended, I believe, and do not have the same statutory force as the regulations do.

The guidelines are a means of educating school districts and helping them implement Title IX, but they do not have the force of law with... in the same way as these regulations.

Unknown Speaker: Are the school districts bound by the guidelines to the extent that if they don't follow them they can have their funds cut off?

I thought they could.

Mr. Weldon: The Government is going to argue that extensively, and I don't want to anticipate the Government's argument too much, and I certainly wouldn't want to disagree with them, but my own personal answer to that would be not necessarily.

Unknown Speaker: Well, you indicated that because of this... the Spending Clause nature of this act that the municipality or the governmental entity must be aware of the conditions under which its funds might be cut off.

Mr. Weldon: Yes, sir.

Unknown Speaker: It seems to me, if that's so, that it is very difficult to say that they accepted the funds knowing that they would be cut off when there was some act occurring of which they had no knowledge.

Mr. Weldon: And the principal reason in this case that they did not have any knowledge is that they failed to follow the regulations, which have the force of law, and the regulations required not only the adoption of an antidiscrimination policy, which they have summary judgment establishing that they did, but a complaint procedure and publicizing that complaint procedure to the student body, and that is our principal and primary argument, that by failing to follow that regulation they created for themselves what the Fifth Circuit has now recognized as an absolute defense.

Unknown Speaker: Well, somewhat as in the last case, that this egregious criminal, outrageous conduct, everyone, including the student, would know that the board wouldn't tolerate for a second.

Mr. Weldon: That's true, but the testimony in the case was... from the student, she did not know... when the approaches by the teacher were merely verbal, in the form of insinuations and suggestions... he was beginning his concentrated campaign to seduce her.

She did not know... she did not... I'm sorry.

She did not know to whom she could turn.

She did not know that there were procedures that... she did not know that there was a complaint procedure, and she would have--

Unknown Speaker: But she's not... that's not... the gravamen of her complaint were not the initial overtures.

Mr. Weldon: --But if she had known that there was a complaint procedure... I mean, that was at that point, I would suggest to you, a mild form of sexual discrimination in the form of harassment because of the suggestive nature of the remarks.

If she had known about it she would have complained, she said, and if she had complained and effective action had been taken at that point, then her damages would be much different and basically we would not be in court at all, much less here.

Unknown Speaker: She's... how old was she at this time?

Mr. Weldon: She was 13 when she met the teacher.

He was... she was approximately 14 when he began making these... not approximately.

She was 14 when he began making these suggestive remarks, and the relationship became physical before she became 15 and ended when she was 15.

Unknown Speaker: And she didn't know that there were people in positions of authority over the teacher to whom she could complain, like a school principal?

Did she know that the school principal--

Mr. Weldon: Of course she knew that.

Unknown Speaker: --had authority over the teacher?

Mr. Weldon: Of course she knew that, but she didn't know those people personally.

Unknown Speaker: There were other girls who were also approached by this man and who did, indeed, take that course, didn't they?

Mr. Weldon: And that is often going to be the case.

There are often going to be parents who had the initiative to go and--

Unknown Speaker: Well, she didn't tell her parents.

Mr. Weldon: --I beg your pardon?

Unknown Speaker: That's... in the one case the children told their parents what had been said by the teacher.

The... I take it that this girl's parents did not go what was going on--

Mr. Weldon: That is correct.

Unknown Speaker: --until they were caught in the act, so... it's not so clear to me that the best policy in the world would have been used by this young woman, but suppose there... one of the things you complain about is that there was kind of this nebulous policy.

You didn't know who was the right person to complain to.

Suppose there was just the right kind of policy, the kind that NEA describes in its brief, and yet the same thing went on, would the school district be liable if it made its best efforts to have as clear a policy and as clear an identification of the person in charge of implementation?

Would that have made any difference?

Mr. Weldon: Yes.

It makes a big difference.

But I suggest to you... and here's one of the reasons that it... that the text, or rather the context of Title IX, the schools dealing with students of all ages, is important... an important consideration.

It would make a big difference the older and more sophisticated the student was toward imposing on her a duty to utilize the complaint procedures, but if you're talking about a 7 or 8-year-old, as, for example, was considered by the Fifth Circuit in the case called Canutillo, then you have obviously completely different considerations.

Unknown Speaker: Well, let's take this case, and she's 14 and 15, and they do have... they've done the best job that they can with putting a policy in place, telling the students about it, telling the teachers about it, identifying the right official to call.

Mr. Weldon: And may I also assume in my answer to you that there's no thing so flagrant about the behavior of the teacher and student that a reasonable person would become suspicious.

Unknown Speaker: No, I'm taking this case, and the only thing that I'm changing... see--

Mr. Weldon: Yes.

Unknown Speaker: --one of the things you said, that the policy was very fuzzy, nobody knew who to call, or suppose we make it the best policy.

I wanted to know, as I asked in the last case, does it make any difference?

Mr. Weldon: It does make a difference, but because we are talking about 14's and 15-year-olds, I think it makes less of a difference than it might for an adult in the workplace under Title VII.

Unknown Speaker: Well, what's the theory of the difference?

The theory of the difference is, the employer has done all that the employer could do, and therefore it would be unfair to impose liability on any theory?

Mr. Weldon: Well, that's why it's a harder case, but I would like to come back to say--

Unknown Speaker: No, but you said it would make a difference, and I want to know what the theory of the difference is.

Mr. Weldon: --The theory of the difference is that you cannot expect even 14, 15-year-old girls to have the same presence of mind, the same degree of initiative, the same--

Unknown Speaker: No, I understand that, but from the employer's standpoint, once the employer has promulgated the perfect policy in the world--

Mr. Weldon: --Yes.

Unknown Speaker: --you say it makes a difference, and is it because the employer has done all the employer can do, or is there some other theory?

Mr. Weldon: The other theory, and this would depend on, again, the factual context.

The other theory would depend on whether the sexual discrimination is at the hands of a teacher who is exploiting his educational control and authority over the student.

It would not lead to liability in a situation involving pure harassment, it would not lead to liability--

Unknown Speaker: I think you've answered the question, Mr. Weldon.

Thank you.

Mr. Weldon: --Thank you.

Unknown Speaker: We'll hear now from you, Ms. Brinkmann.

Argument of Beth S. Brinkmann

Mr. Brinkmann: Mr. Chief Justice, and may it please the Court:

I think it's important to focus on the court of appeals' erroneous restriction in this case of the Court's customary remedial powers that this Court recognized in Franklin to award all appropriate remedies in a case of sexual harassment discrimination under Title IX.

The court of appeals here held that damage awards would be appropriate only if a higher ranking employee knew of the harassment and failed to stop it.

The absence of explicit notice by a high ranking official should not automatically insulate the recipient from liability.

This is particularly true where, as here, the district did not have a policy to prohibit discrimination or a procedure for effective reporting of that.

Unknown Speaker: Why shouldn't we require that the district, in order to be liable, have a policy that permits discrimination, that affirmatively permits it?

The way the statute reads, it says no one shall be excluded from participation and be denied the benefits of or be subject to discrimination under any educational program or activity, not in connection with it, under, and I thought it was mainly directed at educational programs that allow sports for boys, no sports for girls, things of that sort.

That is discrimination under the program.

Mr. Brinkmann: Well, Your Honor, the--

Unknown Speaker: In other words, why shouldn't we apply the same kind of a test we apply in 1983 cases, that there has to be a policy of the school as far as private liability is concerned, a policy of discriminating?

Mr. Brinkmann: --Your Honor, the differences between Title IX and section 1983 demonstrate that that would not be an appropriate application.

First and foremost, the reasons underlying the 1983 standard, according to this Court's opinions, are rooted in the text of section 1983 and its history, and the text of 1983 says any person who causes another to be... have their rights violated shall be subject to suit.

This text of Title IX is very different.

It is a condition on receipt of Federal funds.

A recipient receives those funds and knows that under that program and activity, under its programs and activities there cannot be a denial of admission, exclusion from the benefits of vacation, or discrimination under that program based on sex.

Unknown Speaker: Right, and I think it's reasonable to read that to mean, you know, in accordance with the policies of that program.

Mr. Brinkmann: Well--

Unknown Speaker: You're being discriminated against under the program if the program, by policy, does not treat you equally.

Mr. Brinkmann: --But Your Honor, a recipient... this school district, just like any other entity that... can only act through human agents, and any discrimination under its program activities is going to be carried out by its human agents, and there is no reason to deviate.

Unknown Speaker: The same argument was made in 1983 and somehow we've stumbled through.

Mr. Brinkmann: But Your Honor, in addition to the text of section 1983, which is remarkably different from Title IX, there is also the history, and what led this Court--

Unknown Speaker: I'm unsympathetic to your arguments based on the text of Title IX inasmuch as Title IX doesn't even create a cause of action at all.

Mr. Brinkmann: --Well, Your Honor, as my colleague mentioned we've crossed that bridge and, in fact, acts by Congress since then have reinforced the breadth of Title IX and, as you... your concurrence in Franklin pointed out, Congress enacted a statute to abrogate Eleventh Amendment immunity, and there specifically refers to legal remedies.

Unknown Speaker: And I accept all that, but we're not in an area where we're bound very tightly to the text.

Mr. Brinkmann: Your Honor, I think the other--

Unknown Speaker: May I just ask you this question, and of course, in Cannon we held that Congress implicitly did intend a remedy.

We didn't say a word about creating any elements of causes of action or substantive liability.

That isn't made up.

That's all what we thought Congress meant, and is there any difference between the standard that would be applied for revocation of funds under the congressional standard as implemented by regulations and the standard that should be applied here?

Mr. Brinkmann: --No, Your Honor, we don't believe so.

What the Department of Education--

Unknown Speaker: So you're arguing that on these facts the funds could be revoked for this school district?

Mr. Brinkmann: --Yes, but I have to qualify that there is a statutory requirement placed on the Department of Education to make preliminary steps of voluntary conciliation because of the extreme nature of cutting off funds, and what the Court has recognized is that a private damage remedy stops short of that and also serves another function of Title IX, and that's its remedial purpose.

We believe that when there's a violation of Title IX, as this Court said in Franklin, the presumption is that all appropriate remedies apply and there's no basis for restricting courts' authority to do that.

And I just want to address the concern about the amount of damages that Justice Ginsburg brought up with that cap under Title VII.

First of all, I think it's important to realize that there are other damages remedies that can be obtained against school districts... for example, Title VII... and there is now that cap, and there could certainly be a guidance for courts to look to, but along with the inherent power of courts to order remedies is often the inherent authority to remit damages.

We also would point out--

Unknown Speaker: Well, Ms. Brinkmann, I'm not sure we get to that question at all.

This is a spending, funding program of the Federal Government, and we have indicated that we think when States or local agencies accept money under a spending program it has to be clear what the conditions are, and what the liabilities would be in accepting that money, and we're struggling in the preceding case with trying to figure out what the liabilities are under Title VII.

Mr. Brinkmann: --Your Honor--

Unknown Speaker: It certainly isn't clear under Title VII.

How could it be possibly clear under Title IX to a school district what the liability might be?

I think you have a first step to take.

Mr. Brinkmann: --Your Honor, the concern underlying the Court's opinions about Spending Clause statutes is notice to a recipient.

The language of Title IX is quite clear that discrimination that's based on sex is prohibited, and in Franklin--

Unknown Speaker: Well, in programs and activities of the school.

I think it speaks in terms of very broad concerns about schools that might not admit both sexes, or might not enable them to have physical education programs, or that discriminate in never hiring a teacher--

Mr. Brinkmann: --Your Honor, we would--

Unknown Speaker: --who's a female, or something like that.

Mr. Brinkmann: --We urge, though, that actually the focus on the text of Title IX is broader than Title VII's antidiscrimination prohibition.

Those concerns about admission policies and denying educational benefits, those are referenced in other clauses of Title IX in addition to prohibiting a person from being excluded from participation in, which would be an admission policy that the district level at the policy level would clearly be carrying out, or denying someone the benefits of an educational program.

There's also the prohibition about... against being subjected to discrimination under a program or activity, and again, this is an entity that only can carry out its programs and activities through its agents, and there's no justification to deviate from the normal background--

Unknown Speaker: Yes, well, but--

Mr. Brinkmann: --principles for finding--

Unknown Speaker: --That's true, as you've indicated with any corporate or fictional entity, but in this case the whole thrust of Title IX is that there must be a policy or program, and now you're saying that the school can be held liable for something that it knew nothing about.

It seems to me that this is almost an a fortiori case, as suggested by Justice Scalia's line of questioning, for a Monell type of requirement that the city or the school district has to have a policy that contradicts this program, and in this case it didn't.

Mr. Brinkmann: --Well, Your Honor, the other reason, the only reason that the courts have given, other than the text of section 219(2)(d) for imposing that policy, was the history of the rejection of the Sherman amendment to the 1871 act, and that was... you're looking at congressional intent and what Congress intended.

At the time that Title IX was enacted it could not possibly have been relying on the Monell standard because Monell was not decided.

In 1972, when Title IX was enacted, Monroe v. Pape was on the books, so there was no intent of Congress--

Unknown Speaker: But the point is, how do we make the implied right of action that we've invented parallel, consistent with the terms of the statute that's being enforced--

Mr. Brinkmann: --I think it's what the Court said in Franklin--

Unknown Speaker: --and it seems to me this is an easier case for excusing... for having a Monell type liability than 1983.

Mr. Brinkmann: --I think the task of this Court is to define congressional intent to the best it can, and in Franklin, recognizing the implied cause of action, it looked to the background principles against which Congress enacted Title IX, and that was the presumption of all appropriate remedies.

Congress could certainly take it upon themselves, as they did in other antidiscrimination statutes, to set a cap.

That would be a policy matter.

Would it depend, for example, on the number of employees, as the cap under Title VII does, or the amount of funds that the school receives, or the amount of... the size of the student population?

Those are matters for Congress, and here, relying on Cannon and Franklin, the Court has recognized that that presumption of all appropriate relief including damages, should apply under Title IX.

Unknown Speaker: But what about the issue of what kind of conduct on the part of the supervisory employer here, the teacher, holds the school district, and there I think you have a big difference between on the beach, open, everybody could see it, and here, where nobody knew.

Mr. Brinkmann: Well, Your Honor, it's certainly not the actual knowledge standard that the court of appeals imposed.

At least it would be a knew or should have known standard, and that's what the policy is about.

Unknown Speaker: But how could a school district ever know about something like this?

Mr. Brinkmann: In many ways, Your Honor.

They are educators.

Part of the problem is, to let students know about... other teachers knew about this that could have reported it if there had been a procedure in place, other students had heard about comments, there was the inadequate--

Unknown Speaker: So if they had a great policy, then there would be no liability.

Is that what--

Mr. Brinkmann: --That could be a very significant factor, and it may undermine theories of knew or should have known.

Certainly liability also may be a defense to an aided by theory, depending if the plaintiff had any other evidence that she brought forth.

Unknown Speaker: --Thank you, Ms. Brinkmann.

Mr. Brinkmann: Thank you, Your Honor.

Unknown Speaker: Mr. Jefferson, we'll hear from you.

Argument of Wallace B. Jefferson

Mr. Jefferson: Mr. Chief Justice, and may it please the Court:

Frank Waldrop's acts were criminal in the State of Texas, forbidden by standards issued by the Texas Education Agency, repugnant to policies actually adopted by the Lago Vista Independent School District, and morally repulsive to everyone in this courtroom.

His conduct very properly landed him in jail.

Prior to his apprehension, Waldrop had managed to keep his sins concealed.

No one at the district was aware of these acts.

No one in the school administration knew about it.

No teachers knew about it.

There were no rumors among the teachers, or the faculty, or the staff.

There was no gossip.

All of the conduct we're talking about here occurred off campus.

He did not physically touch her in the school, not once.

He did not use school facilities to accomplish his mission.

He did not engage in sexually explicit conversation on the campus.

No one but he and his victim knew of the child abuse until he was caught in the act, in public, by a police officer.

Unknown Speaker: Now, he used his position as a teacher, and it was a course in which she was one of the only or very few students, and some of this... the initial encounters, of course, occurred on the campus.

Mr. Jefferson: Well, certainly their first introduction was in the context of the school setting, but that's all you have.

That's all you have.

I mean, the teaching role... it's sort of like the first case, and I agree with the city in the first case.

What the teacher did here was criminal.

There is no way in the world that anyone could assume that he was acting within, any way within the scope of his authority, or that the district said, this is acceptable.

Now, Lago Vista's reaction when it was first notified of this relationship was swift and severe.

The superintendent personally marched into the jail and delivered papers to the inmate, suspending him from any contact with the school.

As soon as the lawyers told him due process was satisfied, the superintendent then marched into the psychiatric hospital and gave him his termination papers.

Waldrop would not set foot in the Lago Vista school again, and well before it became an issue in this case, back in April of 1989, the district had adopted a policy forbidding sexual harassment by employees.

That's at 420 of the record.

And within months of this Court's watershed opinion in Franklin, the school district adopted a policy stating expressly that district employees shall not engage in sexual harassment of students.

That's at 417, and that was in 1992.

Now, the district's policy of nondiscrimination, general policy of nondiscrimination like the statute provides was disseminated to the students and to the parents in the student teacher handbook.

That's in the record at page 389.

Now, we understand why, in the briefing, and here this morning in oral argument, the petitioner would like to demonize the school district, but we are confident that when you look at the record it will not support that attempt.

The real question is whether Title IX requires the district to answer, in damages, for criminal conduct of an employee when the district lacks notice, actual or constructive, of the crime, and whether the district had any hint that its acceptance of a relatively nominal amount of Federal funds would potentially expose it to limitless actual and punitive damages, potentially, and we say no for several reasons.

Unknown Speaker: Do you think the Government could have withheld funds in the future for the--

Mr. Jefferson: Yes.

Unknown Speaker: --You think they could have?

Mr. Jefferson: Yes.

Unknown Speaker: Therefore you are acknowledging the school district violated the statute and the regulation?

Mr. Jefferson: I don't think they could legitimately, but under their argument... under their argument this is a violation of Title IX.

Unknown Speaker: Oh, no, I mean under your view of the law.

Mr. Jefferson: Oh, no.

No.

No, because it's not a violation of Title IX to begin with.

Unknown Speaker: Do you think there's a difference in standards between an attempt by the Government to withhold... revoke your funding on the one hand and a private damage action on the other?

Mr. Jefferson: No.

I think the same standard's going to have to apply to both.

Now--

Unknown Speaker: Do you know practically how often the cut off of funding has been used as distinguished from lesser remedies?

Mr. Jefferson: --Justice Ginsburg, there is no evidence of that in the record, and I do not know personally what those statistics would hold.

Unknown Speaker: Because that's a rather severe sanction.

Mr. Jefferson: Yes, it is.

Unknown Speaker: And defeats the whole purpose of the funds.

Mr. Jefferson: Indeed it does, and that leads to another point of the Spending Clause legislation.

Now, if... if, because some criminal, unbeknownst to anyone in the district... I mean, no rumors, no circulation of gossip or anything like that, is going to be cut off from Federal funds and subject to potentially unlimited damages... I mean, the verdicts in cases like these are... and it's... there's no reason... I mean, we know why they are.

They're huge.

They're in the millions of dollars.

Now, you take a school district like Lago Vista that had in the year that these activities were occurring about 646 students in the whole district, that's accepting, what, less than... around $100,000 in Federal funds, whose whole budget is only about $1.6 million--

Unknown Speaker: Lago Vista is in Travis County, near Austin?

Mr. Jefferson: --Yes, that's correct, Your Honor.

Why would a district even accept the money, and that's... the purpose of our bringing up the Spending Clause is, we need to know.

The districts around the country need to know that in exchange for receiving a nominal amount of Federal funds... a judgment could wipe out the whole district.

Unknown Speaker: How much in Federal funds did you receive?

Mr. Jefferson: It was about, approximately 120,000, $120,000 back in the 1992-'93 school year, and that's in that... the... you can find it in the Texas Education Agency's snap book, snapshot that's in the National Association's brief, and--

Unknown Speaker: One--

Mr. Jefferson: --in the public record in that year, in 1992-'93, the entire budget was only about $1.6 million.

Unknown Speaker: --One answer possibly to the Spending Clause argument is that until there was some kind of an adjudication you didn't know that there would necessarily be a private cause of action.

I think everybody accepts that.

Until there was some kind of an adjudication the district wouldn't necessarily know what kind of primary liability would necessarily give rise to liability, what kind of primary action would give rise to liability.

But any school district is certainly deemed to know that because it acts through its employees, its liability, if there's going to be liability, is going to be dependent on some sort of theories of imputed responsibility, and you did know that, and you didn't know a court adjudication to tell you that you at least ran the risk of liability imputed on the usual principles of agency.

Mr. Jefferson: I can agree with--

Unknown Speaker: So what's the answer to that?

Mr. Jefferson: --Well, I can agree with that.

I mean, everyone knows that in districts, as with employment, you know, the corporation acts through its employees, the district acts through its employees, and there's no question about that, so that yes, we did know that if there was going to be liability it would have to be routed somehow through the action of its employees.

Franklin is--

Unknown Speaker: Well, is that an adequate answer, then, to your Spending Clause argument?

Mr. Jefferson: --No.

Unknown Speaker: In other words, you... we're not at the point of asking whether there's going to be a cause of action.

We're not at the point of asking what kind of primary conduct on the part of an employee would give rise to liability.

We're simply at the point of saying, how do you get from the employee's action to the employer, and you say yes, we all understand that the agency relationship and the rules that define it will govern that liability.

Mr. Jefferson: Well, if the rules that define it govern that liability, there is no liability here in an agency relationship context, because what was done here was a criminal act that was completely away--

Unknown Speaker: Okay, but that's not a Spending Clause argument.

That's a--

Mr. Jefferson: --Oh, it is.

Unknown Speaker: --That's an agency law argument.

Mr. Jefferson: I believe it is a Spending Clause argument.

Unknown Speaker: I don't understand.

Mr. Jefferson: Okay.

I believe it's a Spending Clause for this reason, and let's compare this case to Franklin.

You know, Franklin is a case where the district... where the teachers and the staff and the administration knew that this conduct was going on, knew that sexual harassment was taking place.

This Court, I believe, held in Franklin that that is intentional conduct of the district itself.

Yes, they're acting through employees.

I mean, they've got to act through employees, but when it became known to the district itself, no action was taken.

In fact, not only was no action taken to prevent it, action was taken to silence the victim in that case.

Well, that's a case of intentional conduct, and in Guardians you said intentional conduct can make the district liable, even if it's Spending Clause legislation, and so that's the difference.

Here, there is no intentional conduct whatsoever.

There is no notice whatsoever to the district, and what the employee was doing, what this teacher was doing was a crime, was a... it should have landed him in jail, and it did land him in jail.

Unknown Speaker: This saves your case very well, but what you're saying with that test is that in the next case, when one coteacher knew about it, that's enough.

Mr. Jefferson: No, because I think that the... the... a coteacher wouldn't satisfy the test of actual knowledge to the district.

Unknown Speaker: Why?

The district has to act through its agents, you said.

Mr. Jefferson: Well--

Unknown Speaker: And the coteacher's an agent.

Mr. Jefferson: --It does, but in order to hold the district liable you've got to show that the district... in Franklin, the principal knew.

It wasn't just the teachers, although they did, and they were trying to get this information to the principal.

The principal was taking it in and then conducting a fraudulent investigation, didn't even look into it, so there you have someone at the level that the Fifth Circuit said would be responsible.

Unknown Speaker: Do you concede that we use agency principles, as we did in the last case, to determine when the district is liable under Title IX?

Mr. Jefferson: I don't have problems with the Court using some form of agency principles.

My problem is that the principles that they're relying on, 219(2)(d) and this agency... and this aided in accomplishing, they just don't apply here.

They have no application here whatsoever.

Unknown Speaker: When you say here, you mean to your case--

Mr. Jefferson: To our case.

Unknown Speaker: --not to Title IX funding.

Mr. Jefferson: To our case is what I'm saying, that's correct.

Unknown Speaker: But you would have no... you would have no problem in our applying the agency Restatement principles--

Mr. Jefferson: When I say--

Unknown Speaker: --to determine the district's liability and to determine when they knew, including constructive knowledge?

Mr. Jefferson: --Well, there is no such thing as constructive knowledge under Title IX to hold the district liable.

That's our position, and so agency wouldn't work--

Unknown Speaker: Suppose I thought they were under agency law?

They I wouldn't be applying agency principles to Title IX.

Mr. Jefferson: --Then you'd be applying simply strict liability, and we say for sure, we say that this Court should declare that that's not the test.

Strict liability is not the test and could not be the test, and the reason is, if you apply strict liability in a case like this, or in cases like these, not just ours, you're going to run contrary to the whole purpose of Title IX.

We've all agreed this morning, at least in the briefs on their side and our side, that this is Spending Clause legislation, which means we're talking about voluntary acceptance of Federal funds.

The district can either accept it or not.

If the district knows that as a result of accepting a few dollars in Federal funds its whole budget could go to one victim, and not to students at large in the district, well then the district's not going to accept those funds--

Unknown Speaker: But suppose--

--But you do know that now.

Mr. Jefferson: --and then Title IX's role in the educational process will be gutted.

Unknown Speaker: Don't you have to say that you do know that now, after Franklin, if your principal acted the way that the principal in Franklin did.

Mr. Jefferson: If there's intentional conduct by the district, yes.

Unknown Speaker: So there is a risk that you might have liability greater than the amount of money you receive?

Mr. Jefferson: Yes, but the district can say to itself, you know, we're not going to intentionally sexually abuse a minor student, and we know that.

That's not going to happen.

And so yes, they can take the funds with Franklin in mind.

But what they can't do, and what they have no notice of, is if they take their funds, some janitor who does this is going to make the whole district liable, or some employee that the district has no notice of.

Unknown Speaker: Yes, but the only difference... the difference basically is the difference in the amount of risk.

The chances of having a Franklin type principal are low.

The chances of having a janitor doing something wrong are much higher.

I mean, that's the distinction, isn't there?

We're will... you're in effect saying, look, we're willing to run the risk of a Franklin situation and still take the money.

Mr. Jefferson: It's not willing--

Unknown Speaker: We're not going to be willing to run the risk of the janitor situation.

Mr. Jefferson: --I... we... the district's, and this district in particular is not willing to take the risk at all and is going to do everything it can to prevent that sort of thing from happening, including background checks and making sure that people it hires are great educators, so it's not a matter of, well, we're going to accept this risk because we know this thing's going to happen.

It's a matter of human nature.

This thing does happen.

It's a terrible and it's a repugnant and repulsive thing, but it happens in this country--

Unknown Speaker: What about Title VII?

Mr. Jefferson: --and the question is, do you--

Unknown Speaker: Are you not liable for activity of this sort anyway under different provisions, 1983, or--

Mr. Jefferson: --You could be.

Under 1983 you could be, if you meet the standards in Monell.

A school district like Lago Vista could certainly be, if it adopted some custom or policy that allows this to happen, or if there's a pattern that it turns a blind eye to and lets it happen over a course of the year, a number of different times, there's some sort of pattern to it, certainly there could be--

Unknown Speaker: --Suppose that a teacher... suppose the school district receives a grant for a French program, and there are two or three students interested, and the teacher says, you know, I just don't want to teach a woman.

I'll teach the men, but I don't want to teach a woman.

Is the school district liable?

I mean, they'd be horrified when they find out about it, but that's just this teacher's quirk, and--

Mr. Jefferson: --Well, when they find out about it--

Unknown Speaker: --Yes.

Mr. Jefferson: --is the test.

Unknown Speaker: Why... well, there's one person who knows about it who is a school department official, who absolutely knows about it.

That's the teacher.

Mr. Jefferson: That's not enough.

Unknown Speaker: Why not?

Mr. Jefferson: Because the teacher doesn't have the authority to bind the district to any policy like that.

Unknown Speaker: Well, the teacher decides who comes into, say, her class, if it's a... I mean, doesn't she?

Mr. Jefferson: Yes, but once that decision is made, when the district hears about it... and certainly a complaint will be made in that situation.

When the district hears about it, if they do nothing, or if they try to cover it up like the district did in Franklin, then there's liability.

But if it's just one teacher in one class making that statement, no.

Unknown Speaker: Suppose it happens to be the superintendent who on his own is teaching that class.

Mr. Jefferson: If it's the superintendent I think there's liability.

I think that--

Unknown Speaker: So you're dividing it according to the rank of the person.

Mr. Jefferson: --I am.

Unknown Speaker: And is there... is there anything in the law that says the teacher is down there with the janitor, but the superintendent is up there with the Governor, I mean, or whatever, I mean--

[Laughter]

What is it in the law that creates that division?

Mr. Jefferson: It's going to be this Court.

It's--

[Laughter]

Unknown Speaker: How... if it's a--

Mr. Jefferson: No--

Unknown Speaker: --How are we supposed to decide that?

I mean, what's the ground, then, for figuring that out?

I mean, how would we... I mean, what's the key to that?

I had thought your answer, your answer to me was the law of agency, which surprised me a little bit.

I would think that you'd want something like a Monell policy rule.

Mr. Jefferson: --What my answer is, and I think it... I think what the Fifth Circuit did was, a clear rule, a clear guide to the court and to the circuits, that are divided right now, is that the district will be liable if someone who has actual knowledge of the abuse was invested by the school board with the authority to supervise the employee and the power to take action to end the abuse and didn't take that action, and failed to take remedial action.

I think that standard is the standard that could be applied.

Unknown Speaker: It's Monell like.

It's a little less than Monell, isn't it?

Mr. Jefferson: It's... it is Monell like, because it is sort of a deliberate indifference standard.

You've got someone at a level, a high up enough level that knows and has the discretion to make decisions.

Unknown Speaker: The only Monell case in which we talked about deliberate indifference was somewhat different than this.

The standard you propose now would be more favorable to a plaintiff than a straight Monell standard, would it not?

Mr. Jefferson: It would, indeed.

Indeed it would, but it's one that, you know, the Court is asking counsel here, what is the clear rule--

Unknown Speaker: Well, you're on the safe side of it, so it--

Mr. Jefferson: --Yes.

Unknown Speaker: --why ask for more than you need?

Mr. Jefferson: That's exactly right, Your Honor.

[Laughter]

I want to mention one additional point here, and the Solicitor General talks about, well, you know, let's have this constructive knowledge standard, and I want to make a rather procedural point here.

That theory, constructive knowledge based on comments made to this teacher, by the teacher to other students in the past, that has been abandoned by the petitioner in this case.

I don't even think it's part of the case.

The district court found no evidence whatsoever of constructive knowledge.

The Fifth Circuit said they're not complaining about constructive knowledge and there's no evidence of it here anyway, and so we don't have to address it.

Unknown Speaker: Mr. Jefferson, will you help me out on one point?

I'm frankly a little mixed up on it.

It seems to me your opponent argued, or the briefs argued that the school district violated the regulations because it didn't have an adequate policy in place, and if that were true, and if it conceivably would give rise to cut off of funds, why wouldn't the failure to promulgate adequate regulations also justify a remedy in this case?

Mr. Jefferson: If I can answer in this case--

Unknown Speaker: Right.

Mr. Jefferson: --If we're talking about this case, the student here knew precisely what to do to stop this activity, and she testified... I--

Unknown Speaker: Well, but now, stick with me on the... do you agree or disagree that there was a violation of agency... Federal regulations?

Mr. Jefferson: --Well, I disagree in this sense.

Franklin was decided in 1992, and within months of that opinion, that's when the district adopted a policy of saying, sexual harassment of students means this, and who... and here's who you go to report to.

What I'm saying is--

Unknown Speaker: Well, were those regulations in... was that policy in place at the time of the conduct here?

Mr. Jefferson: --In part.

You know, in... the conduct began in the fall of 1992.

This Court's opinion I believe was sometime during that fall of 1992, and then the policies were in place by October of 1992.

This conduct continued until January of 1993, so what I'm saying is, before--

Unknown Speaker: Well, but is it true that some of the conduct preceded the regulation?

Mr. Jefferson: --Yes.

Unknown Speaker: Some did.

Mr. Jefferson: Yes.

Unknown Speaker: Now, what's your response to... say you have a defense after the regulations went into effect.

What is your defense under the argument that I repeated to the pre regulation conduct.

Mr. Jefferson: Before the regulations went into effect we had a policy of nondiscrimination, which is what Title IX requires, which was disseminated to the students.

After 1992, after this Court's decision in Franklin, the world changed.

Unknown Speaker: But did that pre Franklin policy comply with the Federal regulations?

Mr. Jefferson: I... you know, I think there was... technically the answer is probably not, because it doesn't say within 5 days you must report it, you know, a reported violation has to be, you know, submitted to a committee, and within 10 days a decision, so that sort of policy was not in place.

Unknown Speaker: Then how relevant, if it is the fact that during a portion of the period there was a failure to comply with Federal regulations, how relevant, if at all, is that to the problem before us?

Mr. Jefferson: I don't think it's... I don't think it's relevant and again, I must... the reason that I mentioned what the petitioner's knowledge was was because a policy in this case would have made absolutely no difference.

Unknown Speaker: Oh, I see.

It's the causality element.

Mr. Jefferson: There is a causality element, that's right, in this case.

Unknown Speaker: Had that policy made a difference, though, you agree that not having that policy in place would automatically make you liable?

Mr. Jefferson: No.

I do not agree with that.

Unknown Speaker: Well, you said before that you thought we had to apply the same standards for a violation of the funding regulations as we must apply for liability under the personal actions.

Mr. Jefferson: Well, because the--

Unknown Speaker: Do you believe that or not?

If so, when you violate the regulation you are automatically subject to suit and the only question is one of causality, which will usually have to go to the jury, I assume.

Mr. Jefferson: --But then the question there would be funding, but it wouldn't be the... it wouldn't be bound up with the private cause of action for the petitioner in this case.

Yes, there could be a cessation of funding.

I don't think it would happen.

I think in the real world they're going to give... the agency's going to give the district a chance of--

Unknown Speaker: But it would be a jury question, wouldn't it, whether... whether the--

Mr. Jefferson: --The jury--

Unknown Speaker: --failure to have the 5, 10-day, whatever it is, was a cause of the injury here, and if it was you'd be liable.

Mr. Jefferson: --Number 1, I don't think the jury would get this question to begin with--

Unknown Speaker: Oh.

Mr. Jefferson: --and number 2, I don't think that the absence of a policy would make the district here liable for the criminal conduct of a teacher that the district knew nothing about.

Unknown Speaker: Well, then you're saying you don't really think that we should apply the same standard for the cut off of funding that we apply for personal liability, or for--

Mr. Jefferson: Well--

Unknown Speaker: --you know, monetary liability.

Mr. Jefferson: --Well, except your... the question to me doesn't... doesn't get into what happened here in this case.

I mean--

Unknown Speaker: The funding cut off isn't automatic anyway.

I mean--

Mr. Jefferson: --No.

Unknown Speaker: --there would certainly... there'd be a notice.

There'd be an opportunity to come into compliance.

Mr. Jefferson: That's correct.

Unknown Speaker: There'd be negotiation.

Mr. Jefferson: That's correct.

Unknown Speaker: All of which are reasons why you wouldn't want the same standard for the two, it seems to me.

Mr. Jefferson: I--

Unknown Speaker: The one is optional.

The other, you're socked with a lawsuit, with no choice.

Mr. Jefferson: --I take your point.

I mean, and it's true, the... there is the possibility of compliance under Title IX.

If there's... you know, it would be as if, as in Franklin, the complaint is made and the district does nothing about it.

If, under Title IX, the district is apprised of its noncompliance and does nothing about it, well then the severe sanction, you know, withdrawal of funding, would be appropriate.

But of course, you know, what would happen in that situation is the district would come into compliance or would just decide, no longer do we need Federal funds.

I mean, it would be their option.

And so again, I think under the facts of this case the... here, the absence of a policy makes no difference whatsoever.

Now, the other thing we need to talk about is, was this actually sexual discrimination under a policy, or under a program or an activity, and again, we say, and I'm mirroring some of the comments made in the argument before, no.

What happened here was a teacher who, to all intents and purposes was a good teacher, but who did a criminal act, who engaged himself in an act that was private, that was prurient, that was criminal, that could land him in jail and did land him in jail.

That is not in any way associated with any education program or activity.

Now, what counsel say on this side is, well, you've got this sort of... you've got this sort of program and it's got to be implemented by agents, and the agent here was a teacher, and so therefore there's liability.

But if we do go back to Title IX and the congressional intent, when you look at Title IX, what they're talking about, Mr. Chief Justice, as you mentioned, is things like discrimination in funding of sports, or employment discrimination, you know, after a decision in this Court.

That sort of thing, which is always carried out by agents who have the discretion to hire and fire or to fund or not to fund, it's always someone who has the sort of authority that we're talking about who needs to be there before you can hold the district liable.

What happened, and what makes this case odd, is Franklin, and Cannon before it, you know, adopting a whole private cause of action and then this Court becoming in effect a legislature.

We keep coming back to the Court for new rules and new regulations... well, what about this, Your Honor, and what about that, Your Honor... because now the Court is sitting as Congress should have sat before, if it wanted to find this cause of action, this private cause of action.

The sort of agent that they contend is making the district liable is not proper, because the agent here is engaging in purely criminal activity.

If there are no further questions, we would ask that the Court affirm the judgment of the Fifth Circuit.

Chief Justice Rehnquist: Thank you, Mr. Jefferson.

The case is submitted.

Attribution:

The Oyez Project

Featured:

Miller v. Albright - Oral Argument

Fri, 09 Jan 2009 14:50:03 +0000

Case:

Miller v. Albright

Media File:

96-1060_19971104-argument.mp3

Related Transcript:

1997_96_1060_argument.xml

Transcript:

Argument of Donald R. Patterson

Chief Justice Rehnquist: We'll hear argument next in Number 96-1060, Lorelyn Miller v. Madeleine K. Albright.

Mr. Patterson.

Mr. Patterson: Mr. Chief Justice, and may it please the Court:

The Court granted certiorari in this case on one issue only, whether the gender discrimination provisions in 8 U.S.C. section 1409 violate the Constitution.

The court of appeals felt that this Court's opinion in Fiallo v. Bell was a controlling precedent.

It is our position that Fiallo can be distinguished, but that if the Court feels that it applies, that Fiallo is out of step with the Court's more recent decisions that refuse to sanction official actions that close a door to opportunity based on overbroad generalizations concerning the abilities, or personalities or such, of males and females.

The Immigration & Nationality Act draws some clear distinctions between the naturalization of an individual about whom alienage is not in dispute and those persons who are citizens at birth.

Naturalization is the conferring of nationality of a State upon an individual subsequent to their birth.

Persons who are born overseas to a U.S. citizen are citizens and nationals of the United States at birth.

Unknown Speaker: Am I right, Mr. Patterson, in thinking that your client has never set foot in the United States?

Mr. Patterson: My client has set foot in the United States, in fact is presently in the United States, but not at the time that this case was filed and originally came forth, Your Honor.

Unknown Speaker: Thank you.

Mr. Patterson: Unlike the person who is seeking naturalization or immigration, Ms. Miller seeks to establish her citizenship by virtue of her birth.

The deference accorded the Congress power over admissions of aliens is inapplicable in dealing with a situation where someone claims citizenship from birth, and we feel there is a clear distinction here, that she has been denied her equal protection rights, and she seeks a finding that she is a citizen at birth, and thus Fiallo can be distinguished.

Unknown Speaker: But how do you say Fiallo is distinguishable in that regard?

Mr. Patterson: Fiallo dealt with a situation where there was no question concerning the alienage of the persons involved.

In this case, we claim that my client should have been entitled to citizenship at birth, and therefore it is not an immigration matter but a citizenship matter, and could be distinguished on that basis.

Fiallo could be left to apply in cases in which they were purely immigration.

This case is not so much based on the immigration powers of Congress as it is upon the gender discrimination that is established in this provision.

Unknown Speaker: But you have to have a part of a law of Congress declared unconstitutional in order to establish your client's citizenship, do you not?

Mr. Patterson: That is correct, Your Honor.

We feel that--

Unknown Speaker: You say there's no deference to Congress in this respect?

Mr. Patterson: --Your Honor, while the Court gives deference to Congress in many areas, the Court has held that it does not... deference does not mean abdication, and that if a statute is violative of the provisions of the Constitution, then that statute cannot stand.

Unknown Speaker: Yes, but I think some of... there's language in some of our cases that say in the field of immigration and nationality we give extraordinary deference to what Congress has decided.

Now, you're saying, I guess, that when you're talking about nationality as opposed to immigration the Congress gets no special deference.

Mr. Patterson: I think Congress always gets a certain amount of deference, Your Honor, in any case, because I think the Court normally approaches that they are... Congress is entitled to do what is within its realm, but if it violates... if it provides a provision that deprives people of the equal protection of the Constitution, then that statute cannot stand, and dealing with--

Unknown Speaker: May I just interrupt with a question?

I'm not sure I understood.

Are you saying there is a constitutional entitlement to citizenship at birth?

Mr. Patterson: --There is not a constitutional entitlement of citizenship at birth unless you are born in the United States.

Unknown Speaker: Okay.

Mr. Patterson: However, the Congress has created a statute which provides that children of U.S. citizen parents are entitled to citizenship at birth, but then they have in effect taken away that right as to those children who are illegitimate in that section 1401 establishes a broad general statement that all children born to U.S. citizen parents in the world are U.S. citizens at birth.

Then in 14--

Unknown Speaker: Well, let me just interrupt with a simple question to be sure.

Would it be constitutional for Congress to pass a statute saying that any child born abroad of American parents shall become a citizen at the age of 10, regardless of who the... which parent was the... the male or female parent?

Mr. Patterson: --I think it would be.

Unknown Speaker: Okay.

Mr. Patterson: The Congress has tremendous powers.

Congress probably could decide--

Unknown Speaker: Okay.

Mr. Patterson: --that no one born outside of the United States was a citizen.

Unknown Speaker: All right.

Mr. Patterson, on that line, you don't take issue with Judge Wald's statement, do you, that I see no problem with the requirement that a U.S. citizen parent take some action to acknowledge parentage or responsibility for a child before the child reaches age 18?

If... suppose Congress said, mothers, fathers, they're both parents, and if a child is born abroad, one of them has to say, I will take responsibility for this child till she's 18.

Mr. Patterson: I would have no problem with that, Your Honor.

However, that's not what Congress has done.

Congress on the one hand has established a situation where the mother has to do nothing except be the mother, and her children become a U.S. citizen.

But then it has placed very strict requirements on a father for his children to become a U.S. citizen.

Unknown Speaker: Well--

--It's interesting, is it not, that from 1790 till 1934, there was, as I understand the statutes, no way that a mother could fit under them.

It all depended on fatherhood.

Mr. Patterson: That is my understanding, Your Honor, and as to children born prior to 1934, it's only been recently that Congress has gone back to correct that situation.

Unknown Speaker: So that was unconstitutional, from--

Mr. Patterson: Sir?

Unknown Speaker: --And that was unconstitutional, from 1796 to whatever?

Mr. Patterson: I feel that under the present interpretations of the Constitution, that it would be found to be unconstitutional.

Unknown Speaker: We're talking about 1790 to 1934, and under the precedent that then existed--

Mr. Patterson: Under the precedent that then existed, I would assume that it was not unconstitutional, but I feel that under the precedents that exist now, it would be considered unconstitutional.

Unknown Speaker: --I see.

But you're still talking about the same Constitution.

Mr. Patterson: Yes, Your Honor.

[Laughter]

Unknown Speaker: Mr. Patterson, you mentioned a moment ago that the way you view the relationship between 1401 and 1409 is that 1401 first provides citizenship on individuals like your client, and then 1409 in effect takes it away, but that does not seem to me a fair characterization of the statute, because 1409, in its subsection (a) seems to me to make it pretty clear that 1401 simply does not apply to individuals like your client in cases of illegitimacy unless certain conditions are satisfied, so I don't see how you can start your argument by assuming that 1401 gives you something which is then taken away on a disparate criterion.

Mr. Patterson: Well, Your Honor, we feel that 1409 as it exists now is an unconstitutional discrimination based on gender, and--

Unknown Speaker: Well, that's the... maybe I misunderstand you, but I think that's a separate argument.

I thought you... the question was, you know, how do you get into court in the first place, and you say, well... or I guess the question was on deference, and you say, well, the deference issue is different here because my client in effect is given citizenship to begin with, so that she starts as a citizen claimant in a way that the other plaintiff did not.

But it seems to me that if your reason for that is the provision of 1401, your argument fails, because 1409 says 1401 doesn't apply unless you meet these conditions.

Mr. Patterson: --Your Honor, basically, though, 1409 we view as being a gender discrimination issue, and that in this situation, that if it did not apply my client would be, under the general terms of 1401, a citizen, and we feel that there is a distinction between a situation where someone is purely an alien, no question about it all, of their alienage, and a situation where there is a relationship, a tie to the United States through a citizen parent, and that the rules as to the citizen parent should be the same whether the parent is a woman or a man.

Unknown Speaker: Let me interrupt you there, because is it not the fact that most of the cases we're concerned with probably are illegitimate children of service people abroad, and isn't it also a fact that the vast... maybe not the vast majority, but the preponderant number of those would probably be of a male parent rather than a female parent?

Mr. Patterson: Well, Your Honor--

Unknown Speaker: And isn't it also true that at the time of birth, when it's a female parent there's no question about what's going to happen to that child, whereas at the time of birth of a child of a male parent by a female alien, when the male parent may not be on the spot at all, or even within the general area, there are a lot of questions that have to be resolved in the future?

Mr. Patterson: --All right.

There are some questions, Your Honor, but my understanding is that statistically there are more female U.S. citizens abroad than male U.S. citizens.

I do know that within the Armed Forces that now the percentage is somewhere like 13 or 14 percent of all the Armed Forces are now female.

Unknown Speaker: Right.

Mr. Patterson: So while we may have had a problem with one situation in the past, I think the situation is... has the potential to change.

Unknown Speaker: Well, but 13 percent is quite different from 87 percent.

Mr. Patterson: Right.

That is correct, Your Honor, but I think that also the question or the issue we have here is that the requirements are placed on the male to do something.

All that the woman has to do is be the parent.

Unknown Speaker: That's right, and... which is established at the moment of birth, no matter where the birth takes place, if there's any hospital record to establish--

Mr. Patterson: Right.

If there's any hospital record--

Unknown Speaker: --With regard to the male parent, there are a lot of questions that are unanswered at the time of birth.

Mr. Patterson: --But there... the answers as to the male parent can be established with modern technology.

The--

Unknown Speaker: They cannot be established as promptly in the routine case as they can with regard to the woman, if you're talking about situations abroad where personnel are transferred from location to location within 6-month periods.

Mr. Patterson: --That is true, Your Honor.

However--

Unknown Speaker: Servicemen being overseas and shipped back to this country.

Mr. Patterson: --Right.

There are potential problems, but the problems can be dealt with.

We feel that the only requirement should be that there be proof submitted that this is the child of a U.S. citizen.

Now, what that proof may be, because there's--

Unknown Speaker: Would you say that it would be fair to say the proof must be submitted within 36 hours after birth, and if you treat both sexes equally, the only requirement is that parentage must be established within the first 2 weeks after birth?

I think--

Mr. Patterson: --I think--

Unknown Speaker: --you'd have many, many children of male, unmarried parents who would not be able to comply with that requirement.

Mr. Patterson: --That is correct, Your Honor, and I feel that while there have been some other areas where this Court has determined that it is not necessary to have an immediate determination of the parentage of a child for the child to ultimately be able to proceed in terms of inheritance and this sort of thing, in a sense this is an inheritance.

This is an inheritance of a citizenship, and we would like to see the tables leveled as to both the male and female as to what takes place.

Unknown Speaker: But only in one way, only in one direction.

Let me ask you this.

Does your client have standing to assert the father's gender discrimination claim?

Mr. Patterson: Your Honor, we feel that she--

Unknown Speaker: I hadn't thought so.

He was in the case at one point.

Mr. Patterson: --Right, Your Honor, and the Government in a motion said that the rights and benefits of U.S. citizenship he already enjoys simply have not been injured by the denial of Lorelyn Penero Miller's application.

The rights, if any, which have been injured are those of Lorelyn Penero Miller, the true plaintiff in this action.

And so while he was in the case the Government--

Unknown Speaker: Well, the short answer is, the father is no longer before us, is that right?

Mr. Patterson: --That is correct, Your Honor.

Unknown Speaker: And does this petitioner, can she... does she have standing to raise any claims that he might raise on gender discrimination?

Mr. Patterson: We feel that under the criteria that the Court has set out for third party plaintiffs to proceed are based on third party claims, that there has to be an injury, which there is, there has to be a relationship, which there is.

The only issue that the Government has raised in its brief is the issue of a hindrance, and we would say that there is a hindrance created by the Government in their motion to remove him from the case, that they took him out--

Unknown Speaker: When the Government moved to dismiss the father and then coupled that with a motion to transfer the case from Texas to the District of Columbia, I assume that if the Government thought that there was no... well, what did the Government tell the district court in Texas about why the father had no standing?

Mr. Patterson: --Basically their argument in their motion, Your Honor, was as I said, that he had not made application for U.S. citizenship; he was not denied any rights; he had his citizenship; that the denial--

Unknown Speaker: Then the case got shipped to the district court in D.C.--

Mr. Patterson: --That is correct.

Unknown Speaker: --Was there an effort made by the father to appeal his dismissal from the case?

Mr. Patterson: No, Your Honor, there was not an attempt to appeal.

Unknown Speaker: Would there have been a... the problem of the transfer intervening, where would the father have brought that appeal?

Once the case is shipped out of the district court in Texas, they lose... that circuit loses authority over it.

Mr. Patterson: I am not certain, Your Honor, and I would think that that was... one of the factors that entered into us not appealing was the fact that it was moved to another circuit, that the principal issues were still before the court in the District, and we felt that we could go forward and proceed there, that--

Unknown Speaker: I'd like you to clarify one earlier point, because there were references to many, many qualifications, but I think... am I right about this... that you were relying at least alternately on the prior version of 1409, when there was no requirement of a written acknowledgement of support, when all that was required was an acknowledgement, a legitimation of the child by the father saying yes, I am the father.

There was not this additional requirement, as there is now, about a written undertaking to support.

Mr. Patterson: --That is correct, Your Honor.

Unknown Speaker: So we don't have before us the question of the residency requirement, because he satisfies that, so that's an academic question.

Mr. Patterson: Right.

Unknown Speaker: We don't have before us the written support obligation, because that wasn't required at the relevant time.

Mr. Patterson: That is correct.

Unknown Speaker: So it's only one--

Mr. Patterson: The only issue is the issue of the legitimation and my client, though subsequent to the age of 21, or that was required under the prior statute, went into court in Texas, filed a voluntary paternity... or her father, my client's father went into court in Texas, filed a voluntary paternity action, and was determined by the courts of Texas that he is the father of Ms. Miller, and ultimately, so far as Texas is concerned, legally his child and his heir.

Unknown Speaker: --I have one--

--You're relying here on the Fourteenth Amendment, which... you have the equal protection provision, which was surely directed most immediately not to sex discrimination but most immediately to race discrimination.

Now, Congress, however, under its immigration policies, can certainly discriminate on the basis of race, can't it, all the time?

I mean, it says, you know, you can immigrate if you're coming from Ireland, but not if you're coming from Italy or Greece, or whatever.

It's done this from the beginning.

That's national origin, which--

--Well, okay.

--is what the immigration act is all about.

Just a minute.

Let him answer Justice Scalia's question.

I'm sorry.

Consider it race, consider it national origin, whatever you want.

The two are--

Mr. Patterson: Well--

Unknown Speaker: --The two are closely allied, and--

Mr. Patterson: --Your Honor--

Unknown Speaker: --much closer to the Fourteenth Amendment than sex.

Now, how can it be that Congress can do that?

Could Congress say that the children of American fathers who are born in, let's say, Somalia can immigrate to the United States and be United States citizens, but those children of American fathers born in Ireland cannot?

Could Congress say that?

Mr. Patterson: --I am... my reaction is that whether Congress could do it or not, it would be wrong.

Now--

[Laughter]

My feeling, though, is that basically--

Unknown Speaker: Well, everything that's wrong is not necessarily unconstitutional.

I mean, that's--

Mr. Patterson: --But basically, Your Honor, I think that the issue here has to do with the cases, and... such as Mississippi University for Women, et cetera, where they have said that distinctions based on gender have to--

Unknown Speaker: --Mr. Patterson, may I just vary my colleague's question and say, suppose Congress said that the children of citizen fathers... citizen fathers who are Caucasian are citizens at birth, but that children of citizen fathers who are not Caucasian, people born in the United States, fathers born in the United States but not Caucasian, the children of those fathers born abroad shall not be considered citizens at birth?

Mr. Patterson: --I think, Your Honor, that if we take the Government's argument, accept it in toto, Congress could do that.

We feel that would be wrong, and we feel that it is wrong--

Unknown Speaker: I don't think that's the Government's argument at all.

They have not argued that would be rational.

They have argued there's a... there are good reasons for the distinction in this case, and your suggestion is there's no justification for differentiation on the basis of the sex of the parent in... when there's an illegitimate birth.

That's really the question we have.

Mr. Patterson: --Your Honor, we feel that there is a matter of discrimination here based on gender, and we feel that if you take it to the logical extreme that the Government espouses, that the Court should defer to Congress' decisions in anything having to do with immigration, citizenship, et cetera.

If you take it to that... to the extreme, then the suggestion by the Justice would be permissible.

Unknown Speaker: But you surely don't have to take it to that extreme to try and figure out whether there is some sensible basis for drawing a distinction between a single parent abroad in the military... I think of the military because I know there are many, many cases that arise this way, when it's the mother on the one hand and when it's the father on the other.

It seems to me there are quite obvious differences, and I... at least justifying some differential in treatment.

Mr. Patterson: Well, I think that, Your Honor, basically the issue is one of who is entitled to citizenship at birth, and Congress has decided that as a general rule, anybody born to a U.S. citizen parent is entitled to be a citizen at birth.

Unknown Speaker: Any legitimate person.

Mr. Patterson: I didn't hear the question.

Unknown Speaker: I say, Congress has decided that any person born legitimately is so entitled.

That's as far as Congress has gone.

Mr. Patterson: Well, they then have decided that any person who is born illegitimately to a mother who is a U.S. citizen is a citizen at birth.

The only distinction that is--

Unknown Speaker: Well, if the mother has lived in the country for a year.

Let me go to that point, because I wanted to ask you this question anyway.

Two of the Government's justifications for drawing the distinction that it draws are these.

One, there are differences in problems of proof, and your answer to that is, well, in this day of genetic testing, those problems really have evaporated, and I'll assume that for the moment.

The second major justification that the Government brings up is that there is a difference, depending on whether the single citizen parent is male or female, depending... which affects the likelihood of the attachment of the child to the country.

The Government says, look, most children stay with their mothers when they're young, just as a matter of fact.

That's the way it happens.

If, in fact, the mother is a citizen, then the child is likely to be in the company of an American citizen, and I suppose most American citizens tend to, sooner or later, come back to the United States, even if they were abroad at some point.

So the Government's argument is, the likelihood is that the child who is born to the female citizen will in fact, because of the mother's company and because of the mother's probable residence, gain an attachment to the United States, whereas that will not necessarily be so if in fact the mother is an alien and it's the father who in Justice Stevens' example comes back from the service assignment at some point.

Is there something unsound factually about the Government's argument, and is there something illegitimate, constitutionally, to the Government's argument?

Mr. Patterson: --All right.

Your Honor, on the one hand they talk about attachment, but there's nothing in the statute that requires any showing of attachment or the mother do anything, other than have the child.

If the mother had the child and abandoned it immediately, the child would still be eligible for citizenship regardless of whether--

Unknown Speaker: But the point is that as a generalization, the attachment will exist in the one case, and as a generalization it will not exist in the other.

Now, what's your response to that, that this is a--

Mr. Patterson: --I believe--

Unknown Speaker: --an unconstitutional stereotyping, or what?

Is it true or false?

Mr. Patterson: --I think, Your Honor, in other contexts the Court has said that you deal with individuals, not with generalizations, and while this may be true as a generalization, it is not true in all circumstances.

Unknown Speaker: Every law is based on a generalization.

You really want us to adopt the proposition that Congress cannot generalize when it makes laws?

Mr. Patterson: Obviously, Congress can to some extent, but where they discriminate against a group based on generalizations that are based on stereotypic, archaic ideas, then--

Unknown Speaker: It may not be archaic.

The... I think the classifications this Court was confronted with in the Frontiero case, in the Wiesenfeld... those weren't archaic.

They did represent the way the world was for most people.

Most men supported most women, and yet the Court did say that in this category sex discrimination, you could not rely on those generally true propositions.

Mr. Patterson: --I would agree with Your Honor on that.

Unknown Speaker: I did want to ask one question about this statute that does draw a distinction that's different for men and women.

That is, the very first requirement, that blood relationship between the child and the father be established by clear and convincing evidence.

Are you challenging the constitutionality of such a requirement?

Mr. Patterson: I think, Your Honor, that for anyone there would have to be some clear and convincing evidence that they were the parent, be it the mother or the father.

Unknown Speaker: But suppose the statute, all it said was that.

That was the only distinction that was drawn on the basis of sex.

It says, in the case of the father, the blood relationship must be established by clear and convincing evidence.

Mr. Patterson: I don't believe I would have any problem with that, Your Honor, because I feel that to me would be a prerequisite regardless, though it is not spelled out that there has to be clear and convincing evidence that the mother was the mother of the child for the child to be able to claim U.S. citizenship.

Unknown Speaker: I have one question, which is a very preliminary nature.

I take it as a general rule that if you're a person outside the United States you do not have capacity to sue for a violation of the Constitution, and this is... you say this is different because the claim at issue is citizenship?

Mr. Patterson: I feel that that is a distinction that could be drawn.

However, I think--

Unknown Speaker: I was just curious to know, do you have some precedent for that?

Mr. Patterson: --I have some precedents, and I was trying to find it, that the Constitution is not limited to the boundaries of the United States.

Unknown Speaker: But Rogers v. Belli, the Court said that foreign-born children of citizens have no constitutional right to citizenship.

We'd have to disavow that, wouldn't we?

It's limited at least to the soil of the United States and the blood of the United States.

I mean, you're either applying jurisdiction on the basis of territory or on the basis of blood, and--

--Let me put it--

--your client here is neither on the territory of the United States nor a United States citizen, so that you could say her actions are governed abroad by United States law.

Mr. Patterson: Your Honor, in United States, and I'm not sure of the exact pronunciation, V-e-r-d-u-g-o... U-r-i-q-u-i-d-e-z, at 494, 259, 278, in a concurring opinion, Judge Kennedy indicated that the Government may only act as the Constitution authorizes whether the actions in question are foreign or domestic.

Unknown Speaker: Yes, but you see, there there was a citizen... there was a person who was being tried in a United States criminal court, but here your client has never been in the United... for... just for our purposes, at this time the suit was filed was outside the United States.

Well, perhaps the Government will address that briefly.

I would like you to, because I thought Rogers supported you.

That is, I thought Rogers was a case where a person claimed citizenship.

He was wrong on the merits, but the Court permitted him to raise the claim.

Mr. Patterson: I think--

Unknown Speaker: Because had he won, he would have been a citizen.

Mr. Patterson: --Right.

Unknown Speaker: And there... so is... but don't say yes if I'm not right, because... because it won't do any good.

[Laughter]

Mr. Patterson: Well, I believe that is my recollection, but I... it's been a while since I have read that, but I do know that it raised the issue, and--

Unknown Speaker: So Rogers is the precedent, you say?

Mr. Patterson: --I believe so.

I'd have to check to be sure, Your Honor.

Unknown Speaker: And you're still relying on the third party standing that you cited Craig v. Boren, that if the beer seller could raise the boy's equal protection rights, then the daughter can raise her father's rights.

Mr. Patterson: Yes, Your Honor.

Mr. Chief Justice, may I reserve the rest of my time, if there are no further questions?

Unknown Speaker: You have no time left.

Mr. Kneedler, we'll hear from you.

Argument of Edwin S. Kneedler

Mr. Kneedler: Thank you, Mr. Chief Justice, and may it please the Court:

The Naturalization Clause of the Constitution commits to Congress the power that is inherent in any sovereign nation to determine which aliens abroad will be granted United States citizenship.

As this Court said in the Ginsberg decision, no alien has the slightest right to naturalization unless all statutory conditions are satisfied, any by the same token, the Court has said in the Rogers v. Belli decision that was just cited, no United States citizen has a right to transmit citizenship by dissent.

Now, to be sure, where the interests of the United States citizen are properly before the Court, and in this case we suggest that they're not, but where they are, such as in Fiallo or Kleindienst v. Mandel, this Court has declined to hold that Congress' judgments in this area are wholly beyond judicial review.

Unknown Speaker: Mr.--

--Mr. Kneedler, why did the Government move to dismiss the father when he was in this case?

Mr. Kneedler: The motion to dismiss in Texas, there were really two grounds.

One was essentially, while couched as a standing ground was essentially a merits argument, and that is that his argument of gender-based discrimination was foreclosed by Fiallo v. Bell.

The Government also argued essentially that because the claim to citizenship was that of the petitioner here and not his own, that he effectively had no ability to insist that the Government confer citizenship on her.

That is more in the nature of a standing argument.

Now, again, in Fiallo, where the... there were rights of... both citizen plaintiffs and alien plaintiffs were before the Court, and the Court then, because of that presence, addressed the constitutional question because of the presence of the alien parent, even though the... I mean, the citizen parent, even though the citizen parent couldn't have required in a sense to have--

Unknown Speaker: If Fiallo was controlling, it should have been controlling on her claim as well as his, so it's a little odd that the Government moved only to dismiss him.

Mr. Kneedler: --The... it is--

Unknown Speaker: And not her.

Mr. Kneedler: --Well, it did... it moved to dismiss her also on a ground that she could not claim his equal protection rights.

Unknown Speaker: And third party standing.

Mr. Kneedler: Right.

Right.

Unknown Speaker: But the Government... if the Government's position was Fiallo v. Bell, then it's very difficult to understand why it didn't... they didn't do that across the board.

They chose to do it only with respect to the father and with respect to her said she has no third party standing.

Mr. Kneedler: Well, the Government certainly did argue that Fiallo was controlling across the board, but I think our... the point here is that whatever the label attached to it, the father was dismissed from the case, essentially rejecting his claim under Fiallo, and he did not appeal either from the Texas ruling at the time or from the final judgment at the time it was rendered in--

Unknown Speaker: But it is sort of ironic.

The Government argued he didn't have standing, it was her claim, and here you're arguing that she doesn't have standing, it's his claim.

Mr. Kneedler: --Right.

Unknown Speaker: That's a little hard to swallow.

Mr. Kneedler: I acknowledge that the standing argument in Texas may not have been properly couched as a standing argument.

The fact remains, though, that that is a past ruling in the case.

Unknown Speaker: May I ask just that you refer to the Texas proceeding?

What evidence was taken on the issue of parentage?

Was it just his testimony?

Mr. Kneedler: You mean in the Texas State court proceeding?

Unknown Speaker: How was his... how do we know he's the real father?

Mr. Kneedler: Well, the record in this case does not disclose what was before the Texas court at the time.

It's not clear that it consisted of much more than his statement that he is the father, but of course, under the immigration statute, and the naturalization statute we have at issue here, that's all that would have been required as well to establish paternity, given... in light of the 1986 amendments.

Prior to that time, he would have needed a formal legitimation such as the court decree here, but under the 1986 amendments all that was required was an acknowledgement before the State Department of his paternity.

Unknown Speaker: Mr. Kneedler--

--He had much more, though.

He is the... he has become a legitimate father, has he not?

Mr. Kneedler: As a matter of State law, yes.

My only point is that we have not acknowledged in this case that he has satisfied all the requirements as a matter of Federal law.

If the legitimation decree was... had been entered before she was a teen, or before she was 21 under the prior version of this statute, that official determination would have been controlling, but if that decree is simply relied on as evidence of blood relationship, then we do not think it is controlling on the State Department.

The State Department was not a party to that case, so insofar as she is applying on the basis of events that happened before age 21, or before age 18, we think she would have to carry that burden of proof before the State Department.

The State Department did not reach that question, as you pointed out in this case.

The basis for the State Department's rejection for a claim in this case was really the failure to establish the formal parent-child relationship prior to the age 18 or, under the prior statute, age 21, so really the issue before this Court and before the district court was whether Congress can properly impose a limitation of that sort on the time in which the father of a child born out of wedlock can take steps to legitimate the child.

Unknown Speaker: But then we take--

--Just before we get to--

--Yes.

I'm sorry.

Just one more moment on the standing and the transfer.

How would the father, or where would the father have appealed that dismissal?

The case had been transferred to the district court in the District of Columbia.

There was the father, left at the post back in Texas.

Where would he... where would that... his appeal go?

Mr. Kneedler: I think he probably could have done either of two things.

One would be to ask for a Rule 54(b) certification in Texas and taken immediate appeal then, perhaps, or, with the case transferred, once the final judgment was entered here, I assume that the father could have... that Mr. Miller could have appealed from the final judgment at that time.

Unknown Speaker: In the District of Columbia?

Mr. Kneedler: Yes, I think so.

I'm--

Unknown Speaker: Because my understanding was that once the case gets transferred, the transferor court loses authority over it.

Mr. Kneedler: --Right.

Yes.

No, I meant if a 54(b) certification or an interlocutory appeal request had been filed before the case was actually transferred, but... and he presumably could have requested the district court in Texas to say, before you actually transfer the case... I know that's what the Government has asked for, but before you actually do that, afford me the opportunity to take an interlocutory appeal, or appeal of the final judgment insofar as the case would... the decision would finally dispose of my claim.

But he didn't do that.

The case was transferred to the District of Columbia, and I don't think he would have been foreclosed from--

Unknown Speaker: You ordinarily would get 60 days if the Government's on the other side.

How much time did he have between when the case was ordered transferred and when it left Texas and went to the District of Columbia?

Mr. Kneedler: --I'm not sure of that timing.

I think that once there is the order of transfer, I think it would be entry of the order of transfer that would transfer it to the District of Columbia, but again, I don't believe that would have terminated his right to take an appeal, because--

Unknown Speaker: But it would have shortened what is the usual time one has.

Mr. Kneedler: --In Texas.

My point is that I think he was a party to this case when it was filed.

There was no final judgment.

Once the case got to the District of Columbia, I don't know a reason why he couldn't have appealed from the final judgment here.

The case was transferred along, I assume with all interlocutory orders that led up to that, and one of those orders was the dismissal of him as a party, so I think once the final judgment was entered here... this has not been an issue in the case, but that has been my sense.

Unknown Speaker: I don't want to delay you any longer in getting to the merits, subject to one question.

Rogers v. Belli, is that the precedent that we look to to see that this petitioner has standing to invoke the assistance of the Federal courts when she's... and of the Constitution when she is outside the jurisdiction?

Mr. Kneedler: No, I think it's not.

In Rogers, there was a situation where there was a conferral of citizenship subject to a subsequent loss of divestiture, on failure to satisfy conditions subsequent, so at that point we think that the person had her foot in the door, or his foot in the door towards citizenship, in fact was granted citizenship, and it was about to be taken away.

And this situation is very different.

The question is whether the petitioner is entitled to citizenship in the first instance and, as this Court pointed out many years ago in the Wong Kim Ark decision, the conferral of citizenship on anyone who is not born within the United States is an act of naturalization.

Whether that's done at the time of birth or whether it's done by procedures in the United States later, or whether it's done by categories in conquered territory or whatever, that is all an exercise of Congress' naturalization power.

Unknown Speaker: And she says she's a citizen by virtue of 1401, and you say well, that can't be until you knock out 1409, and you can't do that because--

Mr. Kneedler: No, we don't believe she could... that 1401 would grant citizenship at all, because 1409--

Unknown Speaker: --Well, I mean, that's her position.

Mr. Kneedler: --That's her position, but we think that's an incorrect interpretation of the statute.

1409 is the only subject... section of the act that deals with the subject of children born out of wedlock, and Congress... it was a very difficult subject for Congress to address in the Nationality Act of 1940 and ever since then, and there was considerable debate leading up to the passage of the 1940 act about how to deal with a situation of one citizen parent, one foreign parent, and in particular, how to deal with the problem posed where you had a child born out of wedlock where you have a U.S. citizen parent and an alien parent.

Unknown Speaker: Mr. Kneedler, do you... when this case began, at least, the petitioner here was outside the jurisdiction of the United States.

Do you take the position that she was a person within the meaning of the Fifth Amendment for bringing the equal protection kind of claim that she brings at that time?

Mr. Kneedler: No.

Our bottom line is that the Due Process Clause does not apply to her.

Whether that comes from interpreting the word person or whether it is just a broader consideration of the territorial scope of the Fifth Amendment, I'm not sure much turns on that, but in this Court's decision in Johnson v. Eisentrager, which was reiterated in the Verdugo decision, the Court said that aliens outside the United States have no rights under the Fifth Amendment.

Whether she has since come to the United States is irrelevant for these purposes, because--

Unknown Speaker: Didn't Johnson v. Eisentrager make a distinction between one who was an alien and, I think the words of the decision were, if a person makes a claim to U.S. citizenship, and distinguish the person who said, I'm an alien and would like the opportunity to become a U.S. citizen, and someone who was making a claim to U.S. citizenship.

Mr. Kneedler: --I believe that was with respect to access to courts, where another aspect of Johnson v. Eisentrager was whether habeas corpus jurisdiction would lie.

We're not suggesting that she has no right of access to the U.S. courts to make her claim.

All we're saying is that her claim fails on the merits because both, we think as an attribute of the sovereignty of the United States, someone outside the United States who is not a citizen has no constitutional right to claim it, but also because the Fifth Amendment, which is the clause of the Constitution on which she specifically relies, that that does not apply outside the United States.

Unknown Speaker: Mr. Kneedler, can I--

--Is there anything... I take it there's nothing peculiar about the equal protection nature of the claim that she's bringing that you invoke to support your position that she's not a person.

Mr. Kneedler: No.

Unknown Speaker: The reason I ask the question, I mean, under the Fourteenth Amendment it refers to the... to persons within the jurisdiction, so I suppose you would be making the argument, if this were somehow a claim against a State, that she would not, as an alien living abroad, be such a person for that peculiar reason, and that's not your argument.

Mr. Kneedler: Or in another State under--

Unknown Speaker: Yes.

Yes.

Mr. Kneedler: --Under the Fourteenth Amendment.

But we believe that aspect... and, again, it's an inherent aspect of the sovereignty of the United States.

The Constitution is a compact among the people of the United States, and Congress is the political branch responsible for determining who can be admitted and assume the rights and responsibilities of being a member of that society, so we think that this is a proposition that inheres in the nature of sovereignty, and is not trumped by the Fifth Amendment, particularly with respect to an alien abroad.

Unknown Speaker: Can I ask you a question on the merits?

Mr. Kneedler: Yes.

Unknown Speaker: I've two questions, actually, on the merits, and what I'm thinking of is not the problem of proving paternity.

I'm assuming that out with genetic testing.

Perhaps it's the same.

Assume that's so.

You have a separate argument that I think Justice Souter addressed earlier, and it's on pages 25, 26, 27, 28 of your brief, and basically you're arguing, I think, that there is more likely to... you want a substantial tie with the parent.

Mr. Kneedler: That's correct.

Unknown Speaker: A substantial tie, or something like that, a personal tie, and that's more likely to be there in the mind run of cases with the mother than it is with the father, and that's why we need the extra proof.

Mr. Kneedler: Well--

Unknown Speaker: That's the argument I'm thinking of.

Mr. Kneedler: --Right.

Unknown Speaker: Basically.

And I thought at first that's a pretty good argument, and then I realized that the reason I'm thinking that is in my mind I'm dividing parents into caretaker parents and noncaretaker parents, and that argument makes a lot of sense if you compare the noncaretaker citizen father with the caretaker citizen mother.

Of course it's true then.

It's true by definition.

5 minutes before the patient died he was still alive.

But suppose you switch to what I'd think would be the relevant comparisons.

Those are my two questions.

First let's think of the noncaretaker parents who are both citizens.

They're in the United States, the baby's over in the Philippines, and my first question is, why is there any reason in the world to believe that a noncaretaker father has less of a personal tie than a noncaretaker mother who's abandoned the child?

And now my second question looks at it just the other way.

Let's imagine now that both citizens are caretakers, and what reason in the world is there to think that a caretaker mother has more of a connection with the child than a caretaker father, who after all is trying to bring up the child by himself?

Now, those seem to me to be the two relevant comparisons, and as soon as I think of those comparisons, it seems to me this distinction is irrational, or close to it.

Mr. Kneedler: With all respect, we think it is quite soundly rational, and if I may just preface my response--

Unknown Speaker: Well, I'm trying to get you to respond.

[Laughter]

Mr. Kneedler: --With a... preface it with an important point that I think sometimes gets overlooked in this.

The point is not simply what tends to be true factually.

What... the steps that a father can take, are formal, recorded steps that are parallel to what happens when a child is born in the hospital.

Where there's a birth certificate, you have a witnessed birth, there will normally be no question whatsoever as to who the mother is, and by virtue of that you have an established legal relationship from the moment of birth.

Not... we're not getting to the question of caretaker or anything.

You have an established legal relationship from the moment of birth that follows the profound experience of carrying and bearing the child.

At that point, it is reasonable to assume that a parent, mother or father, but in this case it is only the mother, because the child was born out of wedlock, who has the legal relationship, will follow through with the caretaking relationship, with the love and responsibilities that come in the case of only one parent, and that is the situation that is addressed by 309(c).

There may be other--

Unknown Speaker: Mr. Kneedler, I understand that very well with respect to your first criterion, where you say you can't claim father status unless you show by clear and convincing evidence that you are the father.

But for the rest, for the life of me... if you're going to say, yes, only the woman can bear the child, there's no doubt that men will never be able to have that great joy, but--

[Laughter]

--just as only women can bear children, so both parents can care for children, and increasingly fathers are beginning to recognize the joy and the obligation of parenthood.

So your division for purpose of, am I a parent, I understand that, but after the birth, and after the paternity is established, the rest of it, just as in Justice Breyer's case, I have great difficulty following.

Mr. Kneedler: --The question, Justice Ginsburg, is not am I a parent, but am I a parent in contemplation of law, and citizenship is a formal relationship between the United States and a person.

It is a permanent relationship, and Congress is entitled to insist on an element of formality and legal acknowledgement in doing that.

The question is not whether Mr. Miller had an established personal relationship with petitioner during her minority, although there's no--

Unknown Speaker: Accepting that standard as a legal standard, clear and convincing evidence is lawyer talk.

Clear and convincing evidence that he's the father, that's a legal standard, and that relates to birth, who is the parent of this newborn child.

After that this talks about written obligation, written undertaking to support, all that, and why is that only one way, and I would like to ask in that connection whether the Government is now retreating from something it told the Court just 2 years ago over and over again, I think to the annoyance of some people because it was repeated so often at the oral argument and in the brief.

The Government said in the University of Virginia, United States v. Virginia said, differences in treatment based on sex are suspect.

Even when stereotypes reflect current realities, courts have condemned them because the law must not restrict men and women by reflecting and reinforcing patterns of historic discrimination.

The Government said that over and over.

Mr. Kneedler: --We have certainly not retreated from that.

You've asked me several questions, if I could just take a moment and respond to them.

First of all, in the... as this Court's decision in Fiallo made clear, Congress' power over immigration and naturalization is quite different from something that would happen in the domestic context, and there are a variety of reasons why that's so.

One of the parties to the transaction is an alien abroad, not even protected by the Constitution at all.

There are questions of sovereign authority, of foreign relations, of Congress taking into account conditions abroad.

That's both fact-finding and meshing U.S. law with foreign law.

So the circumstances we think are very different.

There's another big difference in the way that just what's at stake in this case and in the VMI case.

There, the Court was dealing with a categorical exclusion of women from the institution, and the Court was concerned with closing the door and denying opportunities to men and women, as the Court put it.

Here, there is no denial... no categorical exclusion, no denial of opportunities.

All Mr. Miller had to do, if he had the sort of relationship that you were describing, is to take the simple step of making that relationship formal and legal during the child's minority.

Unknown Speaker: May I ask you if you would answer the question that was asked before in the context of not national origin, but race.

Suppose the United States took the position, we know as a matter of statistics that there are many more white fathers that take responsibility for their children than nonwhite fathers.

Therefore, we're going to have this written acknowledgement of an obligation to support.

That will be required of citizen fathers who are nonwhite, but not citizen fathers who are white, and we're basing that on solid, empirical evidence of who provides support for children.

Would that be constitutional because it's in the immigration and nationality area?

Mr. Kneedler: Needless to say, this case doesn't go that far, but the question under Fiallo, the standard, is whether the justification advanced is one that is facially legitimate and bona fide, and in this country's history of race relations it would be difficult to imagine what a proper justification would be under parallel, I suppose, to those sorts of things that might be proffered for compelling justification, but here--

Unknown Speaker: But you... compelling justification doesn't fit with--

Mr. Kneedler: --No, I'm saying in terms of what sort of justifications one could imagine, and I... this country--

Unknown Speaker: --The justification is the practical one that I gave you, the statistics will show that disproportionately nonwhite fathers don't accept the support obligation.

Mr. Kneedler: --Well, in... again, given this country's history of race relations, and if there was a U.S. citizen claiming an effect on his ability to transmit because of that, it may be that under the phrase, facially legitimate, this Court would conclude that that is not a legitimate justification.

But there's a very different... if I may just go... explain what's different about this case, this... I think it is clear that at the moment of birth there is a categorical difference between the mother and the father of the U.S. citizen and the mother because, as I described earlier, in the child born out of wedlock, the mother has a legal relationship with the child from the moment of birth.

The father does not, unless the father or someone else takes a step in law to establish that relationship.

It isn't just the question of clear and convincing evidence of proof 20 or 30 years later as to whether in fact the man was the father.

The question is, was that legal relationship established during the child's minority, because the legal relationship is not just important in its own right.

It is emblematic and often fostering of a deeper personal relationship.

Unknown Speaker: Let's go to the emblematic issue, because that's part of your argument with the converse argument with respect to the more lenient treatment of the child of the citizen mother.

One step in that argument, as I understand it, is that because the mother is the citizen, the child will be with the mother, the mother has an attachment to the United States, therefore ultimately that will foster an attachment of the child to the United States.

My question is, should we take that argument seriously when in fact the statute requires of the citizen's mother that she have an attachment only to the extent of once at any time having lived for 1 year prior to birth in the United States?

That doesn't seem to me to be a criterion that calls for very much sense of attachment and if, in fact, that's the low value that the United States is willing to put on this attachment concept, isn't the argument a very weak argument, if not perhaps a sham?

Mr. Kneedler: No.

No.

With all respect, I think that very situation shows why Congress has particularly broad deference in this area, because what... Congress has to judge not only the situation in the United States and the U.S. citizen who may have a stake in it, but what is the situation abroad in the foreign country where, after all, the child was born?

And as we explain in our brief, Congress was very concerned, and the legislative history makes this quite clear, that a child born to a U.S. citizen on foreign soil, and this remains true in the Philippines, that child does not have citizenship of the country where she is born, so there's a very real problem of statelessness.

So what Congress is weighing there is perhaps a weaker tie to the United States, but perhaps no legal status at all in the country of birth, and so what Congress did there is to say, in that situation, because we are concerned for the child and for the mother of the child, who is a U.S. citizen, we are prepared to accept a somewhat weaker link to the United States in that situation because of the counterbalance.

Unknown Speaker: Is that on record somewhere?

Mr. Kneedler: Pardon me?

Unknown Speaker: I mean, can I find that reasoning somewhere in the legislative history?

Mr. Kneedler: Yes.

It's... we quote it in the... in the 1952 report in our brief, and there is discussion--

Unknown Speaker: Do you have the cite?

I didn't remember it.

Mr. Kneedler: --I'm sorry.

Unknown Speaker: No, if you don't have it right at hand, I don't want to take your time looking for it.

Mr. Kneedler: On page 34 of our brief.

Unknown Speaker: Okay.

Thank you.

Mr. Kneedler: We cite the Senate report.

Unknown Speaker: By the same token, if this child had in fact lived with her father, suppose he went... took him... took a ship, took her back to the United States, she's a teenager, she proves to be trouble, so he says, out with you, back, I don't want anything to do with you.

She would have had all her growing up years in the United States and yet, under this statute, she could not qualify as the child of a U.S. born citizen.

Mr. Kneedler: All the father had to do during her minority was to take the step of either legitimating the child--

Unknown Speaker: I'm just asking the question about the tie to the United States, so that becomes irrelevant.

Even though this child grew up in the United States, that's--

Mr. Kneedler: --It's conceivable there could be an as-applied challenge to this statute, but in the immigration area in particular Congress is entitled to legislate by categories, and Congress is entitled--

Unknown Speaker: --In social and economic legislation, too.

See, that's really the problem that I have with it.

It used to be for years and years social and economic legislation is anything goes, what Congress wants to do, and yet all the precedent in the gender cases were made in that area which traditionally has been a largely judicial hands-off, so I'm frankly puzzled about why the Government, after saying all gender classifications are subject to heightened scrutiny, now says we found an exception, so I'd like to know, are there other exceptions?

Mr. Kneedler: --No.

The exception and whether there might be another one I can't address.

What we have here is a very different context.

At the time the Court decided Fiallo this Court has already decided Craig v. Boren and concluded that gender distinctions in the domestic context have to be justified as having a substantial relation to an important governmental interest, and also applied heightened scrutiny with respect to illegitimacy.

But right contemporaneously with that... and this case is really about children born out of wedlock, and as in this Court's decision in Lehrer v. Robertson, where the Court said the statutory scheme is not likely to omit many responsible parents, we think that is exactly true here.

Anyone who wanted to establish the requisite relationship during the child's minority, and that's the period that Congress was focusing on, all that person had to do prior to 1986 was to provide for legitimation of the child.

Congress in 1986 liberalized that, not requiring a formal court to create it, not requiring the father to go to another country.

All he had to do was file a statement with the State Department acknowledging the paternity of the child and assuming an obligation equivalent to that of the mother that flows from that, even in the absence of a legal relationship, the acknowledgment, the promise to support that would flow from the mother's preexisting legal relationship with the child.

And if I may, with respect to the suggestion of the irresponsible parent, or the parent who may abandon, I don't think Congress is required to establish a statutory scheme on the possibility that someone in the other category may not live up to the legal responsibilities that the law prescribes, but in any event, this statute applies equally as to both categories.

The mother who bears the child and either abandons or gives the child up a week later, that child is a citizen.

The same is true for a father who acknowledges or legitimates a child.

If that father does not subsequently remain responsible, that child remains a citizen.

The question is simply the timing of when the father steps forward to assume his responsibilities for the child abroad.

And one other point to bear in mind, in many cases... and this is not a generalization about the nature of men and women.

It's a statistical legal fact that in the cases of a child born out of wedlock, when you have a U.S. citizen mother, that will very often be the only parent.

Where you have a U.S. citizen father who takes the steps to legitimate and the other steps, that means there are two parents with a legal relationship, one parent here and one parent in the other country.

So this is a situation which, in fashioning these categorical schemes, Congress necessarily has to balance the different considerations that arise, and so it's not just the question of the U.S. citizen parent.

Chief Justice Rehnquist: Thank you, Mr. Kneedler.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

United States v. Virginia - Oral Argument

Fri, 09 Jan 2009 14:49:47 +0000

Case:

United States v. Virginia

Media File:

94-1941_19960117-argument.mp3

Related Transcript:

1995_94_1941_argument.xml

Transcript:

Argument of Paul Bender

Chief Justice Rehnquist: We'll hear argument first this morning in Number 94-1941, United States v. Virginia, and Virginia v. United States.

Mr. Bender.

Mr. Bender: Thank you, Mr. Chief Justice, and may it please the Court--

VMI, the Virginia Military Institute, was established by the Commonwealth of Virginia in 1839 as a State college for young men between the ages of 16 and 25.

Initially, its students were cadets who were assigned to guard the State militia arsenal in Lexington, Virginia, where VMI is located.

VMI since that time has remained a State institution and in 1989-'90, for example, it contributed, the State contributed about $10 million to VMI's operating budget, that's about 35 percent of the budget, and the Board of Visitors of VMI, which decides things like its admissions policy, is appointed by the Governor and confirmed by the legislature.

Although it has remained a State institution in that way it has also, at the same time, enormously broadened its educational mission so that it's no longer just a place to produce cadets for the military.

Indeed, today only about 15 percent of VMI graduates enter the military.

VMI graduates enter the professions, law, medicine, engineering quite a lot, public service quite a lot.

While restricting VMI to men might have been inevitable, indeed required at the time VMI was initially established because the military at that time was all male, as VMI's mission has broadened that's obviously no longer true.

VMI nevertheless has continued only to admit men, and continues only to admit men until this day.

During the 150 years or more of VMI's existence, it has developed what everyone concedes is a unique, adversative method of education.

It is... was developed in an all male context, and it is stereotypically a male form of education.

It emphasizes adversity, it emphasizes competition, it emphasizes standing up to stress, it emphasizes the development of strong character in the face of adversity, of self reliance, of self confidence.

The VMI degree has, through that unique method, become a very valuable asset in two ways, I think.

First of all, it demonstrates that the person who has the degree has succeeded in a highly adversative environment.

Many people value that when looking for leaders and looking for people to hire.

Justice Kennedy: As you read the findings of the district court and the assessment of those findings in the court of appeals, what is your understanding of those courts' conclusions as to the extent to which the adversative method would be altered and affected by the admission of women?

Mr. Bender: I think there's general agreement on what would have to be changed by the admission of women in physical terms.

I think there isn't agreement about how to characterize that.

For example--

Justice Kennedy: There is not?

Mr. Bender: --There is not agreement about how to characterize the change.

I think the main... there is, for example, general agreement that for privacy reasons, if women were admitted to VMI there would have to be an opportunity for women and men to go to the toilet, to shower, to dress, without being seen by members of the opposite sex.

Justice Kennedy: Do we have the institutional competence at this level and are we required in order to decide this case to make our own assessment of the extent to which the adversative method a) would change and b) whether that change would be detrimental to the school?

Mr. Bender: No.

Justice Kennedy: Is it for us to decide?

Mr. Bender: No, I don't think that's necessary in this case.

As you say, another change that is said would have to occur is a change in the adversative method, and that is something that I don't think is true, and that you can only reach that conclusion that a change would have to be in the adversative method by accepting certain stereotypical characterizations of men and women.

Justice Scalia: Didn't both of the lower courts make that finding, that the effect of admitting women would be to destroy the adversative method?

Mr. Bender: Yes.

I--

Justice Scalia: Now, you say that's wrong, but both of the lower courts found that, didn't they?

Mr. Bender: --They... that finding was based entirely on a stereotypical view of women and men which says that women... men cannot administer the adversative method to women, women would not be able to survive with the adversative method.

Justice Scalia: It was not based on expert testimony?

Mr. Bender: Expert testimony was in turn based on--

Justice Scalia: But it was--

Mr. Bender: --exactly those characterizations.

Justice Scalia: --I see.

All of these experts are... can be dismissed as stereotypical.

Mr. Bender: No, they can't be dismissed as stereotypical, Justice Scalia.

Justice Scalia: What does stereotypical mean?

When anybody comes out and says something that is what?

What makes it stereotypical?

Mr. Bender: It means what the experts really said, which is not that all women can't do this, but that most women can't do this, and we are willing to accept the finding that most women can't do this.

The question in this case is whether, because most women can't do it, you are constitutionally... the State is constitutionally entitled to exclude all women--

Justice Scalia: As I recall the experts--

Mr. Bender: --even those women who can.

Justice Scalia: --it was not that women can't do it, it was that it would interfere with the kind of relationship among the students that produces the adversative method, that men and women would not engage in the same kind of adversariness that men and men or, perhaps, women and women would, that the sexual difference would make a difference.

It has nothing to do with whether women can take the heat.

That's not what the experts testified to.

Mr. Bender: It has to do with whether men will perceive that women can take the heat.

Unknown Speaker: That's right.

Mr. Bender: Well, I don't think, just as in the area of race--

Justice Scalia: And is that stereotypical, too?

Mr. Bender: --Just as in the area of race, an institution would not be able to remain uniracial by saying, if you let black people into VMI, white students would not feel comfortable in applying the adversative method to them, or the other way around, if you let white students into an all black institution that has an adversative method, black people will not feel comfortable in applying the adversative method to them.

Justice Ginsburg: Mr. Bender--

Mr. Bender: Just as that cannot be used, this can't.

Excuse me.

Justice Ginsburg: --It's a predictive thing, isn't it?

It's never been tried, so these are opinions of what might be.

Mr. Bender: What I'm saying is that even if you accept them as opinions of what might be, 1) that they are not opinions that are universal... no one could say that men universally would not be able to use the adversative method on women, and to me more fundamentally it rests upon men having a certain perception of what women are capable of.

Justice Kennedy: And do you want us to make that predictive judgment?

Mr. Bender: No.

Justice Kennedy: As... to the extent we're talking about the remedy, I suppose we'd have a certain leeway to do that.

Mr. Bender: I don't want you to make the predictive judgment.

I think what this Court is called upon to decide is whether a State institution can model its program and its exclusion of women on the assumption that there are certain things that women can't do in general, there are certain things that men will not do with women because those men think that women are not capable of that, can model its institution and its educational method on the notion that this educational method, developed by men, emphasizing what they think of as manly qualities, is a place that women can't go, so that women cannot demonstrate that they have the same qualities.

Justice Scalia: Can it model it on the assumption that many experts testified to that single sex education has certain advantages--

Mr. Bender: Yes.

Justice Scalia: --for at least some men and for at least some women?

Can it model it on that?

Mr. Bender: They can model their institutions on that with regard to single sex education.

Justice Scalia: Well, why isn't that alone enough to support this, then?

Never mind the military, never mind the adversariness, it's a men's college.

Mr. Bender: Because, Justice Scalia, in this case what we have is not simply a single sex institution for men and a single sex institution for women that are equal in their treatment of their students, in their objectives, in their feelings about men's and women's capabilities.

What we have here is a single sex institution for men that's designed as a place to teach manly values that only men can learn, to show that men can suffer adversity and succeed, and a single sex institution for women--

Justice Scalia: I don't understand--

Mr. Bender: --that is openly, expressly, deliberately designed to teach to women womanly values, feminine values.

Justice Scalia: --Mr.--

--I don't understand that.

You're not challenging, then, the ability of a State to run a single sex college.

That is not part of your argument.

Mr. Bender: No, we are not challenging... we are not... it may be difficult--

Justice Scalia: What it says here is that it's a single sex military adversarial college, is that--

Mr. Bender: --That one is that, and that the other is quite a different thing which teaches different values and which teaches different capabilities in the students.

In thinking about this case, Justice Scalia--

Justice O'Connor: --Well, Mr. Bender, we have two separate questions, I think, one whether the original finding of the lower courts that there was an equal protection violation here of the Constitution for Virginia to have VMI but no comparable program for women, whether that was a correct determination and, secondly, I think we have to decide whether Virginia's proposed remedy of the development of the Mary Baldwin College program is constitutionally adequate as a remedy.

And the discussion thus far doesn't really direct us to either of those questions, and I notice that in your brief the Solicitor General urges the Court to adopt the highest standard of strict scrutiny to decide this case.

Does your case depend on that?

Mr. Bender: --No.

Justice O'Connor: Can it be decided, as the lower courts did, on the basis of intermediate scrutiny--

Mr. Bender: Yes.

Justice O'Connor: --as the Court has done in the past?

Mr. Bender: Yes, absolutely.

Justice O'Connor: Well, why is this case singled out, then, for urging us to adopt some different standard?

What advantage is there--

Mr. Bender: The Court--

Justice O'Connor: --to that?

Mr. Bender: --Justice O'Connor, the Court has said repeatedly, I think on five different occasions over the last 10 years or so, that the question of the standard to be applied to gender discrimination is an open question, and so we thought that the question might come up of asking us what we thought the right standard is.

Justice O'Connor: Well, it's not exactly an open question in the sense that the Court has decided a number of cases.

Mr. Bender: Well, whether... whether... the Court has decided--

Justice O'Connor: Applying a sort of intermediate scrutiny.

Mr. Bender: --Right.

Justice O'Connor: And if you look at Mississippi University for Women v. Hogan, the Court certainly tried to articulate a standard.

Chief Justice Rehnquist: And Craig v. Boren--

Mr. Bender: That did not--

Chief Justice Rehnquist: --they said that was the standard.

Mr. Bender: --That's right, but since then the Court has said--

Chief Justice Rehnquist: Well, why do you say it's an open question?

Mr. Bender: --The Court has said it's an open question whether there should be a higher level of scrutiny.

Justice Kennedy: Well, it seems to me--

Mr. Bender: The Court has never found it necessary--

Justice Kennedy: --not only, Mr. Bender, is there some doubt as to whether or not it's an open question, it seems to me that strict scrutiny is inconsistent with what I thought you told Justice Scalia, and I'd like to explore with you for just a moment that you say there are certain values to single sex schools, say at the... let's talk about the secondary level for a moment.

Is it unreasonable for parents to choose a single sex school for a high school--

Mr. Bender: --No.

Justice Kennedy: --girl or a high school boy?

Mr. Bender: No, it is not.

The--

Justice Kennedy: But how does that comport with strict scrutiny, then?

Mr. Bender: --You... assuming that you can have single sex education that represents an equal opportunity to both sexes, I don't think that you can have single sex education that offers to men a stereotypical view of this is what men do.

This is a profession that men go into.

Justice Ginsburg: Mr. Bender--

Justice Kennedy: --But how does the first part of your statement square with your urging strict scrutiny?

How can single sex high schools, say, comply with the doctrine of... the rule of strict scrutiny?

I just don't think they can.

Mr. Bender: Well, I think there are two questions with regard to the extent of the strict scrutiny doctrine.

Our submission here is that in the kind of discrimination that occurs in this case, which is offering a distinctly different opportunity to men and women based on their gender alone, should be subject to strict scrutiny.

I think in the gender area, unlike the race area, the Court... there's a question the Court needs to decide before deciding whether all gender classifications would be subject to strict scrutiny.

In the race area, the Court has made the decision that racial classification, racial separation is inherently unequal.

The Court has never faced that question except in the Vorchheimer case, which was affirmed by four to four as to whether the same thing is true in the gender area.

Justice Scalia: Now, wait a minute.

I don't understand what you're saying.

You're... you started by saying that single sex schools would be okay so long as you're not depriving anybody of, you know, essentially the same things, but then you say that you may be depriving somebody of essentially the same things if you don't let a woman go to a man's school or a man go to a woman's school.

Is that what you're--

Mr. Bender: No, that's not what I'm saying.

Justice Scalia: --You're depriving, certainly, the woman of a men's school education, or the man of a woman's school.

Is that enough of a--

Mr. Bender: No.

Justice Scalia: --That is not--

Mr. Bender: You're giving them each the same.

what you can't do, Justice Scalia, is say we're going to have a single sex school for men which is the engineering school, and it's the only engineering school we have--

Justice Ginsburg: --Mr. Bender--

Mr. Bender: --and we're going to have a single sex school for women which is a nursing school.

Justice Ginsburg: --may I ask you specifically with respect to this case, do you have any quarrel with Judge Phillips, who said in dissent that if we were starting from scratch we could have in this area what we couldn't have in the race area, that is, genuine freedom of choice plan, where you would have a VMI for both sexes, and you would have a military academy for men and a military academy for women, and we're starting them all on the same day, and they all have equal funding and equal engineering and math programs.

Would that be constitutional?

Mr. Bender: We have no problem with that.

Justice Ginsburg: Then why doesn't--

Mr. Bender: If they're equal.

Justice Ginsburg: --this... we have VPI, which as I understand it is coeducational, and we have VWIL, which is one sex, and VMI, which is the other sex.

Why doesn't that fit--

Mr. Bender: Because they are enormously different programs, in two ways.

One, the nature of the program is different.

None of those other institutions, VPI or VWIL, have the adversative method that VMI has developed as a way of testing one's ability to survive adversity.

Justice Ginsburg: --In terms of opportunity, is that what the concentration is on when the Government is urging that VMI admit people of both sexes?

Is it the adversative method that's the key?

Mr. Bender: It is two things, it is the adversative method, and it is the value of having the VMI degree as a mark of your ability to survive that program as a member of the, up until now, brotherhood of VMI graduates.

The VMI degree means a lot.

It means you've survived the system.

VMI has developed a reputation for producing tough leaders.

What this system does is preclude women from getting that--

Chief Justice Rehnquist: Mr. Bender--

Mr. Bender: --qualification.

Chief Justice Rehnquist: --supposing, as Justice Ginsburg's hypothesis, we were starting from scratch, or Virginia was starting, and they opened VMI for men and a VMI for women, and 200 men signed up to go to the VMI for men, and 10 women signed up to go to the VMI for women, would the State be justified in saying we just... there's just not enough demand for the VMI for women?

Mr. Bender: It might be justified in saying that, but then I think it would have to permit the women and the men to go to the same... that is, they couldn't vindicate their single sex education interest in that context.

Justice Souter: Well, would that be--

Mr. Bender: The single sex education interest--

Justice Souter: --Would that be true... would that be true if there were no implication of inferiority?

Doesn't... isn't the, sort of the essential part of your case the assumption that everybody... certainly that you were making.

I guess your opponents are not... that the fact that the course is not offered, the adversity training is not offered, is in the real world in which we live an indication of an implicit judgment of inferiority.

If there were no implicit judgment of inferiority, if we were sort of starting on the world's first morning, your answer might be different, wouldn't it?

Mr. Bender: --Right.

I... that's right, Justice Souter.

I may have misspoke, or miscommunicated in answering Chief Justice Rehnquist's question.

I was assuming his question was of a VMI like VMI and a VWIL like VWIL, that is, a VWIL program that didn't have the adversative method, that was premised, as VWIL is explicitly premised in its planning documents, on the statement that women cannot handle, most women cannot handle--

Justice Souter: But--

Mr. Bender: --that method.

Justice Souter: --But... right--

Mr. Bender: Then it's--

Justice Souter: --But if we were starting sort of at square 1, and the college for men did not offer a course in home economics and the college for women did not offer adversative training, if there were no reason in that kind of a world to assume that there was an implication of inferiority either against men or against women, you would not make an Equal Protection claim.

Mr. Bender: --Right.

I think it's very hard... I agree completely.

It's very hard to prejudge how such a system would work out.

Before the court makes a judgment about whether a particular system like that would be valid, I think it's really important to see the system, to see what the State's reasons are for setting it up, to see what the differences are, in order to see whether there is this explicit, as here, or implicit assertion that women are not suitable for certain things.

Justice O'Connor: Mr. Bender--

--Well, Mr. Bender, if VMI were to establish a separate program for women students within VMI, a separate dormitory, and provide adversative training for women but somehow have two parallel tracks, but the degree would be a degree from VMI, would the Government be pressing its case against VMI?

Mr. Bender: It would depend, I think, Justice O'Connor, on whether the separate programs were simply women sleeping in some room set aside for women but still having the barracks experience which is central to the VMI--

Justice O'Connor: The same, the same thing, just--

Mr. Bender: --No, we would not.

Justice O'Connor: --like the men have, but--

Mr. Bender: In fact, we assume--

Justice O'Connor: --they have their own separate track here.

I mean, their... in their--

Mr. Bender: --Well, when you say their own separate track, I--

Justice O'Connor: --They have a separate dormitory, and they have their own adversative training, just as tough, just as mean.

Mr. Bender: --No, that I don't think--

[Laughter]

That I don't think would work, because the thing that women, the opportunity that women are not given in Virginia is to show that they can do it on a level with men.

Justice O'Connor: Oh, but just the same, the same requirements, and they get a degree from VMI.

Mr. Bender: But it's not with men.

I think one of the powerful things that's going on here by excluding women from VMI is the message that women cannot compete in an--

Justice Scalia: I thought you said they could do it in a separate institution.

I thought you said before if they had a fully adversative experience in a totally separate institution, that would be okay.

Mr. Bender: --If, as Justice Souter says, it doesn't express a State notion of inferiority of women, and I think that, coupled with the history of VMI, that men have developed this adversative method, to then say that women are not going to be permitted to show that they can succeed in that same environ... in thinking about this case, Justice Scalia--

Justice Scalia: What is your basis for saying that the committee that set up this alternative institution, VWIL, decided not to have the same adversative method that VMI has because it thought women couldn't handle it, as opposed to the fact, which is what they said, that they thought not enough women would be interested in it?

Mr. Bender: --They said that it would not be appropriate--

Justice Scalia: Which is not at all denigrating.

It shows to my mind that they're pretty smart.

Mr. Bender: --The planning documents--

[Laughter]

--says that it's not appropriate for most women.

Our point is not... we don't quarrel with, because I think it's unknowable, whether it's appropriate for most women or not most women.

Our point is that it is inappropriate to say to a particular woman who says I want that training, you can't have it solely because you're a woman.

In thinking about this case, Justice Scalia, I've tried to relate it, as we're all trying to relate it to our own situations and things we're familiar with.

I've tried to relate it to something that I've had some experience with, which is legal education.

And I thought, what if a State set up a State law school in 1839, all for men, because at that time only men could be lawyers, and over 150 years it developed an extremely adversative method of legal education, the toughest kind of Socratic teaching, tremendous time pressures, tremendous pressures in exams, tremendous combativeness by the faculty, tremendous competitiveness among the students, and developed a reputation for that.

And the graduates of that school... and it was a place that was known as hard to succeed at, and a third or so of the people flunked out in the first year, and the graduates of that school who survived that process became known as expert leading lawyers and judges in that State and Nationwide.

And then as women came into the legal profession and started to apply to the school, to ask it to change its admission policy, the school made a judgment that most women really wouldn't be comfortable in this environment, and the faculty would have trouble cross examining them in the same way they cross examine women, and other students would have difficulty relating to them in the same competitive way, and so it's better not to let women into the school.

What we'll do is, we'll set up a new women's law school, and it won't have the tough Socratic method, it will have a much warmer, a much more embracing environment, and it won't have large classes with a lot of pressure, it will have seminars, and it won't have tough exams, it will have papers, and things like that--

[Laughter]

--and every woman has to go to that law school, and no man can, and no woman can go to the old law school.

I think we all understand that that is not by any means equal treatment of women with regard to their access to the legal profession.

Justice Scalia: It depends on whether, in fact, those findings that the law school would be destroyed, that its... in the hypothetical you pose, those findings are obviously absurd.

Those findings are not absurd in the context of VMI.

Mr. Bender: I disagree with that.

Justice Scalia: That it would destroy the nature of the institution.

Mr. Bender: We disagree with that, and I'd like to turn to that if possible.

I think the principal basis for the State's and VMI's assertion that it would destroy VMI to permit women to come in is the finding which we have mentioned before that the adversative method is unsuitable to women, and therefore we couldn't continue to use the adversative method at VMI.

Justice Stevens: No, Mr. Bender, I think the toughest finding is the one that says if you allow women in, you won't be able to have the same success with the adversative method, and therefore women can't get what they seek.

That's the thing that was the hang up for the court of appeals.

Mr. Bender: I don't think you can say that no woman will be successful with the adversative--

Justice Stevens: No, it isn't whether it will be successful.

The point of the finding that the... I'm wondering if you agree with the court of appeals construction of the district court finding that, in concluding if they were to require the admission of women, so forth and so on, the very opportunity they sought, because it would not be available to them because the characteristics of the institution would be different, and what's your response to that finding?

Mr. Bender: --My response is the characteristics of the institution would not have to be different if women were admitted.

Justice Stevens: Are you saying, then, that the court of appeals misconstrued the district court's findings, or that the district court's findings were clearly erroneous?

Mr. Bender: They are clearly erroneous insofar as they have made a decision that it would be impossible to carry on the adversative method with women in the institution.

I think the reason they're clearly erroneous is because that finding, it can only be based upon an overgeneralization that women would not be able to deal with it--

Justice Ginsburg: Mr. Bender--

Mr. Bender: --or that the men would have such respect for women that they wouldn't do that.

I don't think... I don't think that a State is entitled to--

Justice Ginsburg: --Mr. Bender, one brief... the women in the military made a point that I didn't notice the Government making, and I'm wondering what your position is on it, and that concentration was on the men, not the women, and the point was that if women are to be leaders in life and in the military, then men have got to become accustomed to taking commands from women, and men won't become accustomed to that if women aren't let in.

Mr. Bender: --And I think that's true not only in the military but it's true in the professions, it's true in corporate leadership.

I don't think, Justice Scalia, that--

Justice Scalia: You can't have any male schools, I guess, because... right?

Mr. Bender: --I think you can have male schools.

I don't think you can have male schools that are fundamentally different in their educational approach--

Justice Souter: Well, Mr.--

Mr. Bender: --that only males can go to.

Justice Souter: --Mr. Bender, does the Government's case turn on the degree of modification or change that the admission of women would make to this adversative method, or does the Government's case essentially turn on the... on a more complex analysis, and that is the degree to which the present adversative method can be said to be essential to some different kind of leadership training than is produced in, say, West Point or Annapolis, that don't have these things?

Because I was assuming, and I guess I'm handing you something, and maybe you will not want it, but I was assuming that even if we say, yes, the adversative method is going to be modified in some obvious respects if women come in, that that's not the end of the issue.

The issue is, does that destroy the capacity of VMI to produce a distinctive kind of leader that nobody else is producing by another method?

Is that latter way the way you look at it?

Mr. Bender: We... yes.

We look at it both ways.

I don't think you can assume that the adversative method would have to be changed, but even if you assume that the adversative method would have to be changed, unless the adversative method is essential to what the ultimate objective of the institution is, producing citizen soldiers, then the State has to make that change in the adversative method in order to accommodate women in that citizen soldier program.

I'd like to reserve the rest of my time.

Argument of Theodore B. Olson

Chief Justice Rehnquist: Very well, Mr. Bender.

Mr. Olson, we'll hear from you.

Mr. Olson: Mr. Chief Justice, and may it please the Court--

Although the Government has tried virtually everything in its power to deny it, this case involves the inescapable central question of whether the States can support single sex education.

While 98 percent of Virginia's higher educational resources go into coeducation, educators are virtually united, both the Government's experts and the experts for the respondents, that many young men and young women significantly benefit from a single sex education.

Justice Stevens: Mr. Olson, may I ask you right there a question that has troubled me right along about this argument?

I assume there are all sorts of people who would like single sex education but who would not like to go through the adversative method.

Mr. Olson: Yes.

Justice Stevens: What does Virginia do for them?

Mr. Olson: Well, what Virginia has done is devote 98 percent of its educational resources to single... to coeducation, and it's created two single sex education programs--

Justice Stevens: But what does it do for the male who wants to go to an all male school but not VMI?

Mr. Olson: --Well, the problem, Justice Stevens, is that you cannot create a school without an adequate student body, and resources are limited, and the Government's--

Justice Stevens: Are you then saying there are fewer males who want single sex education... most of those would like the VMI program rather than a less--

Mr. Olson: --What I'm saying is, Virginia has allocated a certain amount of its scarce educational resources to single sex education.

It has turned to experts in education--

Justice Stevens: --Yes, but if most people who want single sex education don't want VMI, it's discriminating against them.

Mr. Olson: --I think that what the judge... unless... as long as the State is going to be permitted to have single sex education at all, then it must turn over to experts in education the best method, to divine the best method that would succeed for the young men or the young women that seek out and would benefit from single sex education.

That is what Virginia has done.

This system that VMI has developed works well for young men.

The experts--

Justice Stevens: It doesn't help the young man who doesn't want the adversative method at all.

Mr. Olson: --That's correct.

Justice Stevens: And I would assume that most men who want single sex education don't want the rigorous training.

Mr. Olson: Well, I... the marketplace in part comes into play here, and the fact that resources are limited.

Virginia could not create a single sex educational school for young men that wanted an adversative system and a single sex education for young men who wanted a less than a co... adversative system.

Justice Ginsburg: But Mr. Olson, didn't--

--Why not?

Wasn't that what Virginia in fact had until 1972?

It had the Charlottesville facility virtually reserved to men.

The curiosity is that you are defending single sex education when Virginia itself abandoned single sex education in all schools but one.

Mr. Olson: The... there were a number of women's only public schools in Virginia that chose themselves to go to coeducation because of the demands that occurred and that the trends that were away in the seventies--

Justice Ginsburg: Demands from whom?

Mr. Olson: --The trends that were away from single sex education.

The fact is that a growing body of experts throughout the country are... continue to develop the belief that single sex education is valuable for some young people.

Justice O'Connor: But Mr. Olson--

Mr. Olson: There's no stereotypes.

Justice O'Connor: --We get back to the posture of this case, and one issue we have to decide is whether Virginia can provide single sex education to just one sex, to just men.

That's one of these cases, isn't it?

Mr. Olson: It... well--

Justice O'Connor: And you want to defend that.

Mr. Olson: --Well--

Justice O'Connor: You want to say it is not a violation of the Constitution to provide a single sex education just for men.

Mr. Olson: --It was the posture--

Justice O'Connor: Well, isn't that right?

Mr. Olson: --It is the posture of this--

Justice O'Connor: I mean, that's one of the cases we have before us.

Mr. Olson: --That's correct, Justice O'Connor, and the point at which time that liability decision comes up is a point at which Virginia is providing public resources, pursuant to two constitutional amendments, to private schools.

Five private schools in Virginia provide single sex education for women, and the State of Virginia is supporting those programs at that time, and there is not a sufficient demand at that point in time to create a separate institution.

Now, Virginia is nonetheless, despite the fact that it feels that that program is defensible, because when the States choose to develop and finance a program that is for the benefit of people of one gender, it doesn't necessarily have to create the exact program for the other gender if there isn't a sufficient demand or need for it.

Justice O'Connor: Well, I guess that gets us into the second question, which is remedy.

Mr. Olson: Yes, it does, and there are essentially three choices here.

What Virginia has chosen to do is to provide single sex education designed by experts to serve the people who need and want and would benefit from single sex--

Justice Ginsburg: Mr. Olson, just to clarify, Virginia didn't choose to do that, because you are, as Justice O'Connor pointed out, defending keeping things just as they were.

You're defending the judgment that you wanted to get, which is VMI for all males, and no public program for women.

Mr. Olson: --But at the time of that liability decision, Virginia had a choice to make.

Virginia made the choice to create a remedy in response to the liability decision, and then Virginia had three choices.

As I--

Justice Ginsburg: So are we... is that first judge... your brief, the cross appeal, do we take that as being moot?

Mr. Olson: --No, it is not moot.

We are defending that position.

What we are saying, however, because Justice O'Connor has asked the question, an entirely appropriate question, suppose you are not successful on that point, and suppose that the court of appeals was correct and that there must be a remedy, what should that remedy be?

We are saying that the State of Virginia, or the Commonwealth of Virginia had three choices.

It could eliminate single sex education at all, altogether, by allowing men... by allowing women into VMI, and I will come back to this point, but that would change the system at VMI, and there wouldn't be single sex education.

In other words, it would deprive both men and women of the benefit of single sex education.

Or it could have created an absolutely identical institution like VMI or at VWIL or at some other place, maybe even at VMI, but the fact is that the... we... the State of Virginia put that decision in the hands of experts, how best to design the program.

The experts--

Justice Ginsburg: But why are those the only choices?

One choice might be... I think you said in your brief that the State is committed to VWIL and that you will have that... even if you emerge a total winner you're going to still defend that program.

Mr. Olson: --Yes.

Justice Ginsburg: You could have that program at Mary Baldwin.

Mary Baldwin will continue to exist even if VMI either goes private or admits women.

You could still support the program that you've just now instituted.

Mr. Olson: Well, if VMI went private, then the State of Virginia would no longer be supporting through its public resources in the same way single sex education for young men.

If single sex education is only available through private schools, it's only available to the wealthy, the people who can afford it, and there are findings in the record here that people that benefit the most from and derive the most benefit from single sex education are people that are not in the upper income strata.

Justice Ginsburg: But couldn't you continue with VWIL no matter what?

I mean in the interest of diversity, in creating citizen soldiers, leaders--

Mr. Olson: If--

Justice Ginsburg: --creating more women who have that capacity, couldn't you continue VWIL?

Mr. Olson: --You could continue it with... well, I submit that if this Court decides that the VMI program is unconstitutional because it's unique and has its own tradition and faculty and that sort of thing, then a single sex program that denies men the opportunity to participate in that program will be held unconstitutional on exactly the same grounds.

What Virginia has attempted to do is if it has accepted--

Justice Ginsburg: I don't understand that, because you set yourself at a... you're assisting a program at a private school for the reason of promoting diversity, is that not so?

Mr. Olson: --The effort is, by Virginia is to promote diversity by creating opportunities in a very, very large coeducational system for people of both sexes to make the choice of single sex education.

Chief Justice Rehnquist: Well, Mr. Olson, when this lawsuit was brought Virginia funded VMI.

Did it fund any single sex school for women?

Mr. Olson: Yes.

Well, it provided tuition assistance grants to the five single sex colleges for women.

Chief Justice Rehnquist: And what percent of a student's expenses in that case would be covered?

Mr. Olson: I'm not sure that the record is completely clear, but the single sex institutions for women in Virginia derive something... I believe the record indicates something between 5 and 10 percent of their resources from either the Federal Government or the State government, plus there's the factor that the Federal Government and the State government provide tax deductions--

Chief Justice Rehnquist: Well, I know, but what I'm trying to get at is, is the assistance that is provided by Virginia to these private schools comparable in dollar amount to the assistance that is provided to VMI?

Mr. Olson: --It was smaller in total amounts.

The amount coming from the State of Virginia itself, if you eliminate Federal assistance--

Chief Justice Rehnquist: Yes.

Mr. Olson: --that was going to those programs, it was smaller than the amount by which Virginia supported VMI.

VMI on an annual basis gets, as Mr. Bender pointed out, about 9... he said 10, but I believe the figure is closer to $9 million, which is about 30 percent of VMI's revenues, resources per year.

The bulk of VMI's resources per year on an operating basis come from students in the form of tuition, or from other sources.

Thirty percent comes from the Commonwealth of Virginia.

Our point, with respect to the remedy, and I would--

Justice Souter: May I ask you one more question about liability?

I think this is implicit in what you're saying, but I don't want to make a mistake.

I understand that you're defending VMI's position on liability essentially by arguing the basis... by arguing that the combination of single sex education and adversative method is sufficiently valuable to be the State interest, the important State interest which justifies what it's doing.

I do not understand you to be arguing that this combination of single sex education and adversative method is somehow essential to the accomplishment of the broader objective of producing a distinctive kind of leader who can be distinguished, for example, from the sort of leaders that West Point produces and Annapolis produces.

Am I right that your justification on liability ultimately is, this is a good way to educate people, as distinct from, we are producing a kind of leader who could not otherwise be produced?

Mr. Olson: --I... if I understand your question correctly, I agree with you, and let me restate it as I understand it.

What Virginia has decided, and the experts, both the Government's experts and the private experts agree, that single sex education is valuable for some young people of both sexes, and there's no stereotypes whatsoever made in that conclusion.

And so then Virginia has decided that as a matter of education... and this Court has said that the most important function that a State can perform is educating its young citizens.

Now, as a matter of educating its young citizens and performing that important governmental function, single sex education should be an important part of that.

Virginia has turned the creation, the design, and the operation of those programs over to the people who have spent their entire life deciding how best to educate young people, and--

Justice Ginsburg: But Mr. Olson, how do you factor in title IX?

As I understand it, Virginia, having abandoned all of its public women's colleges for whatever reason, cannot now set one up.

My understanding is that title IX grandparents schools like VMI, but doesn't permit the institution of new single sex schools.

Is that wrong?

Mr. Olson: --I don't think that that has been definitively decided, and I can't cite the case for you, Justice Ginsburg, but I believe that the one case that has dealt with the issue has suggested that a new system that is... there's a single sex system from its beginning would meet the definition in 20 U.S.C. 1681 (5), that the words traditionally and continually from its inception may be interpreted to apply to a new institution, but that question has not been decided by the courts.

Justice Ginsburg: I thought that the text of the statute says something about if you've been that way from the beginning--

Mr. Olson: It--

Justice Ginsburg: --you can continue, but that new schools cannot--

Mr. Olson: --The words of the statute say, that traditionally and continually from its establishment has been.

Now, the VWIL program will be continuously and from its establishment a single sex institution.

The only--

Justice Ginsburg: --Was there no interpretation of that by the Department of Education?

I don't have the text of the statute in front of me.

Mr. Olson: --I'm not aware of any.

I am... I looked into that question in preparation for the argument and I read a case in which a... I don't think it was a college program but a high school program or something of that sort... maybe it was a college program... was created, and that was the interpretation.

I know of nothing inconsistent with that.

Unknown Speaker: Mr.--

Justice Ginsburg: --There are guidelines under title IX.

It's not covered in the guidelines, is it?

Mr. Olson: I can't answer that.

Chief Justice Rehnquist: Was title IX involved in this case, Mr. Olson?

Mr. Olson: No.

Well, I don't... it wasn't... this case was a constitutional case, and title IX has not been involved in this case.

Justice Ginsburg: I was just curious whether by statute Virginia is impeded from setting up a public college.

Mr. Olson: We believe that Virginia is not.

Justice Souter: Mr. Olson, with respect to the value of single sex education, are there ways to identify in advance the students from a broad mass of 17-year-olds who would benefit from a single sex education from those who would not?

Mr. Olson: I don't know the answer to that question, Justice Souter.

I suspect that that's one of those decisions that are made by... there are... it's a self selective process between--

Justice Souter: I should say, there's nothing but self selection--

Mr. Olson: --I... I--

Justice Souter: --I take it, going on here to match the students with the theory?

Mr. Olson: --Based upon what I know, those tests that they give people to decide whether you might do best in that sort of situation usually are not as successful predictors as the students and the parents themselves.

Our point with respect to the methodology, if I can continue to answer your question, is that the educational experts have not made decisions that men can't do this or women can't do that, or women won't be any more successful or any less successful in one type of institution or another, but that the experts know how best to educate young people.

The experts that set up the VWIL program said we could have created an institution that looked very much like VMI.

We did not feel it would be right to design a program based on litigation considerations because we know... and this is in the record... we know how best to design a program for young people.

If we're going to have a single sex educational--

Justice Stevens: Yes, but Mr. Olson, that didn't go to academics, because there's a square finding that the academic program would not be affected by--

Mr. Olson: --The academic program itself is... would not be affected, and in fact the academic--

Justice Stevens: --It's only the adversity and all this--

Mr. Olson: --It's the--

Justice Stevens: --special business.

Mr. Olson: --It's the environment in which the students learn.

Justice Stevens: Right.

Mr. Olson: And the... in fact--

Justice Stevens: But that doesn't go to academic achievement.

It only goes to the--

Mr. Olson: --Well--

Justice Stevens: --special ethos at VMI.

Mr. Olson: --But it results in academic achievement, but you're correct, the--

Justice Stevens: Well, but their finding is that on academics it makes no difference.

There's a square finding on that.

Mr. Olson: --Well, there's a finding in the record, and I can't give you the page number, to the effect that people succeed better in a single sex educational program across the board, both young men and young women.

They do better, they achieve more, including the academics--

Justice Stevens: Academically or otherwise?

Mr. Olson: --Academically and otherwise.

Justice Stevens: But the finding on page 212a of the appendix to the cert petition says squarely the presence of women in the institute would not alter the program academically.

Mr. Olson: I believe, Justice Stevens, that the evidence and the findings that are on page 168 of the appendix, 167, 176, pages 225, page 125--

Chief Justice Rehnquist: You've given us four different pages.

Mr. Olson: --I apologize.

Chief Justice Rehnquist: Which one do you want us to read?

Mr. Olson: Well--

[Laughter]

Let me start with page 176.

Justice Scalia: Well, I gather your point is that it wouldn't alter the program academically, but it would alter the participant's capacity to benefit from the program.

Mr. Olson: Well, I agree with that, and I believe that that is implicit.

I'm not sure that if you have a single sex education that you're going to have a higher distribution of A's, and I don't... as opposed to B's, C's, or D's.

What I'm saying is that the experts, including the Government experts, agreed that the outcome, the student learns better, becomes more successful, and I believe, Justice Stevens--

Justice O'Connor: Mr. Olson, how many States today fund single sex education programs at the college and/or high school level?

Mr. Olson: --There are only two single sex male college... institutions remaining in the United States, and that's South Carolina--

Justice O'Connor: The Citadel, in South Carolina, and VMI?

Mr. Olson: --That's correct.

Justice O'Connor: And they're the only two remaining?

Mr. Olson: And there are programs in New Jersey and in Texas for women that are single sex, or have been single sex programs.

It's my understanding that the program at the University of Texas, the Texas program, has just started to change or is changing and becoming a coeducational program.

Many States do support some level of single sex education through--

Justice O'Connor: Is it possible for a State to provide tuition funds to students on a per capita basis for higher education and say, now, you take the money and go where you want to go?

Mr. Olson: --Well, I suspect under the Norwood case decided by this Court, if this Court were to determine that single sex education, if supported by a State completely, violated the Equal Protection Clause of the Constitution, the... that it would be similarly unconstitutional for the State to support indirectly through tuition grants or assistance with books, and possibly even tax deduction--

Justice O'Connor: Although under the religion clauses I don't think the Court has held, has it, that a State is prohibited from providing aid on a per capita basis of some kind?

Mr. Olson: --I believe that you have that unusual intersection between the First Amendment, Establishment, and Free Exercise Clauses that may make a difference there.

The... if... there... with... if there is a finding by this Court that single sex education violates the Equal Protection Clause of the United States, the Norwood case seems to stand, to me, for the proposition that--

Justice O'Connor: Well, I mean, how would the Court decide that?

We would only decide whether, in this case, on these facts, at the time this case came up, whether Virginia had violated the Equal Protection Clause.

Mr. Olson: --Well, but my point, and I repeat this point, that if Virginia cannot support single sex education in this context it's difficult for me to understand how any State can provide support for single sex education, because Virginia has done it--

Justice Ginsburg: Mr. Olson, if we think... concentrating on Virginia, I was struck by the resemblance of some aspects of this case to the case against the University of Virginia Charlottesville.

That never came to this Court because it settled, but the three judge court there did make two points, and one was that the University of Charlottesville couldn't continue all male because there were educational opportunities, opportunities for education at that facility uniquely that were not available to women in the women's colleges and elsewhere.

And the second point that was made by that three judge court in that litigation was that there exists, because of history, a prestige factor at the Charlottesville facility that was not matched by the other institutions.

Mr. Olson: --And if I... if I may answer the latter part of that question first, one would hope that if single sex education can exist in this country and receive public support, that every single sex institution will have prestige, it will be unique.

Yes, VMI is unique and it does have prestige, but so does the Mary Baldwin program, and--

Justice Ginsburg: Which is a private school.

You mentioned in public colleges two women's colleges, the one in Texas, the one in New Jersey, if it's Douglas, is part of a... close to the Rutger's campus, with total cross registration.

Any male can take a course in Douglas, as I understand it, and any woman can take a course at Rutger's.

Mr. Olson: --Our point, Justice Ginsburg, is if single sex education at the college level can exist, one would hope that it would be very good education, that a single sex institution for boys or young men here would be a distinguished, successful place that anybody would want to go, and the same would be true of a program like VWIL, that it would be distinguished, unique.

Even if... and I come back to this, but that if you're going--

Justice Ginsburg: But this is all imaginary.

What we have here and now is, we have two all male public colleges, they're both military schools.

We have nothing comparable for women, with the exception of this program just started up in response to a court decree.

Mr. Olson: --And this program, the courts below have examined this program and found that the goals are the same and that the outcome will be the same, and that this will be a successful program.

Hopefully this program will be so successful and continue to be so successful... and it already is unique, and it does deny the opportunity for admission to young men.

If we're--

Justice Kennedy: Well, Mr. Olson... Mr. Olson, I'd like, when we're talking about goals, to get back to the question Justice Souter asked, because I was very interested in your answer.

I'm not sure you were able to complete it.

Does the adversative method produce a different product than the West Point method?

I think the Government is in effect trying to say, don't worry about changing VMI because the product will be very good.

It will be like West Point in Annapolis, and those are marvelous products.

Is there something in the adversative method that produces a different quality leader?

Mr. Olson: --Let me put it this way--

Justice Kennedy: And I think that was the thrust of his question, and I wasn't sure what the answer--

Mr. Olson: --And I'd like to answer that question.

It's a very good question.

I think that the answer to that question is best answered this way, is that because we are each different, we each respond to different educational methods and different educational stimuli.

The West Point program is designed to create officers of the United States.

The VMI program is designed to create leaders and adults who can operate in the civilian or in the military world, who have a sense of responsibility, the same goals, in other words, that the VWIL program is set up to do.

The fact is that some young people do very well in a coeducational program, and come out the other end to be successful.

Some young men and some young women aren't successful in coeducational programs.

They are distracted.

There's a million things that can go on in those programs--

Justice Souter: --Mr. Olson, I think you're saying not that there is a distinctive difference in the product, but that there is a distinctive difference in the method of education which is suited to the people who go there, and that really does not answer the question.

Mr. Olson: --I... well, I think that... I am saying that, and if I'm not answering the question, I'm not understanding the question.

Justice Souter: Let me put the question, or subsume the question in something else.

It is... isn't it true that the district court judge never made any finding that there was a difference in the kind of leadership product, if you want to use that term, that VMI produces from what West Point or Annapolis or the other military schools--

Mr. Olson: That's correct, but it did make a finding that this system and this methodology works for the people that go to that school, and that--

Justice Souter: --Okay, which goes to the point which you made quite candidly, that you are resting your case essentially on the position that this is a valuable method of education because it serves a distinct group of people.

You are not resting your case on the proposition that it is necessary to produce a distinctive kind of leader who is produced by it and can only be produced by it.

Mr. Olson: --I agree with you, yes.

Justice Breyer: Well then, why couldn't you say exactly the same thing about ethnic or racial or any other kind of... religious, I mean, somebody could have a school, and they say, we're keeping a religious group, ethnic group or whatever, out of our public school because we have a certain unique kind of education that focuses on certain curricula in a certain way, and once they're in here they'll change the nature of that curricula because they won't have the same backgrounds, et cetera, and therefore we will lose this unique kind of curriculum, method, et cetera, that we had in the past, and there would be some truth to that.

I mean, don't we have to look at the importance of this thing?

It may be you don't have exactly the same rat line.

Maybe you don't have exactly the same hazing type, but not complete hazing activity.

That may be true with any ethnic group coming into a school, any religious group, any kind of a group.

Isn't the answer to that, so what?

You'd have to show that it's important enough to maintain this adversative process, and what is it in this record that shows it's important enough to maintain that--

Mr. Olson: The evidence--

Justice Breyer: --to overcome the answer to a woman who says I want to go there?

I want to go there.

I want this.

Mr. Olson: --The evidence is overwhelming that that system would not exist in the company of co--

Justice Breyer: Well, maybe it wouldn't.

Maybe you wouldn't have precisely the same system with ethnic groups, racial groups, et cetera, but my question is, what is it that's so important about this really hard to grasp adversative thing that warrants saying--

[Laughter]

I don't mean to be facetious about it, either.

I want... I'm serious about it.

What is it that is so important about it that enables you to say to a young woman I'm very sorry, even though you want to go there and you want this result, you can't?

Mr. Olson: --The answer... the experts testified, and people who are professional educators, who have spent their life in education, saying that the system could not exist.

It would fundamentally have to be changed.

Justice Breyer: I take that as a given.

What I'm asking is, what's so important about that particular rat line, et cetera?

Mr. Olson: Because--

Justice Breyer: You could have the same... are you getting my point?

Mr. Olson: --Yes.

The answer is that it works, Justice Breyer, in a single sex environment for young men.

Now, given the opportunity to design something exactly identical to that, the people who spent their life in education designing a system for young women, and the Government experts really don't disagree with that, say we know what would work, we would know what would attract sufficient numbers of people--

Justice Breyer: And even a woman who says, I understand that, but for me, she says, for me, I think it would work better at VMI, and it may be true as to her, irrespective of the majority, mightn't it?

Mr. Olson: --A choice would have to be made, since the system would fundamentally have to be altered in the presence of coeducation.

It will not work.

It may work well with just women.

It may work well with just men, and there's no stereotypes associated with that.

Justice Souter: No, but you say--

--But if it--

--there's no stereotype, but isn't it the case, as Justice Breyer said, that if you are going to justify your system by its distinctness, then you always have a built in justification, because you can say, if you change it, it's no longer distinct, the value is gone, and that's why, it seems to me, under middle tier scrutiny, you've got to say the distinctness is worth it for some other reason.

Mr. Olson: The distinction... the distinctiveness is worth it because young people educate differently and we must, in this society, find ways to educate them successfully, and we must develop systems, not a student body for each student, but systems that will attract people, and according to the experts, not to the lawyers, work well for young people.

Now, that is worth it.

That is an exceeding... this Court has said that is the most important governmental function for State and local governments.

Justice Ginsburg: The question is, wouldn't something else work almost as well without denying opportunity to anyone?

Mr. Olson: The experts across the board, and the Government did not deny this, that single sex education for substantial numbers of people work best, and the program--

Justice Scalia: And a lot of parents for many years have spent a lot of money to send young men to military schools who supposedly needed the discipline that military training provides without... surely that's worth something.

Mr. Olson: --That's absolutely correct.

Justice Scalia: It's a judgment of parents--

Mr. Olson: Because--

Justice Scalia: --and of the State that establishes such institutions that it's worth something.

Mr. Olson: --Unless we're all to be educated the same, and unless we abandon single sex education, we ought to allow those programs which work to be designed by experts--

Justice Stevens: But there's one flaw in your presentation that troubles me.

You haven't given the people, the women who go to the other school, the same adversative program that you say is essential--

Mr. Olson: --Because the experts--

Justice Stevens: --Yet you say there's a difference between men and women.

Mr. Olson: --It works for... experts tell us that young men who want a single sex education succeed in that environment, and the experts that designed VWIL say that that program will produce the same results.

Rebuttal of Paul Bender

Chief Justice Rehnquist: Thank you, Mr. Olson.

Mr. Bender, you have 2 minutes remaining.

Justice Breyer: I've a very quick question, which is, the main point, single sex education will disappear if we adopt your brief word for word.

Suppose you decided that you needed single sex academies in inner cities.

If we adopt your brief word for word, have we decided that case?

Mr. Bender: No, not at all.

First of all, of course, you haven't decided the private single sex education for reasons that I think are clear, but even with regard to public single sex--

Justice Scalia: Wait, only private single sex education that gets any assistance from the Government.

Mr. Bender: --No, I don't think that's true, Justice Scalia.

The Court State action cases since Norwood I think have made very clear that simply giving--

Justice Scalia: Can States give money to segregated schools, racially segregated schools, for example?

Mr. Bender: --Can States give money--

Justice Scalia: Yes.

Mr. Bender: --to racially segregated schools?

Under this Court's State action cases I think they can.

Unknown Speaker: They can?

Mr. Bender: Norwood was a different situation.

Justice Scalia: That's the position of the Justice Department--

Mr. Bender: Norwood--

Justice Scalia: --that States can provide funding to racially segregated schools?

Mr. Bender: --It depends on the circumstances.

In Norwood--

Justice Scalia: It depends on the circumstances.

Mr. Bender: --Yes.

In Norwood--

Justice Scalia: That's astounding.

Mr. Bender: --It was a school system under a desegregation decree.

[Laughter]

Coming back to your question, Justice Breyer, if I may, certainly a compensatory program that is... has a compensatory reason to compensate for prior discrimination, for example, could be a single sex program that would be for only that gender because only that gender has a need for that, so at least in those two areas--

Justice Souter: No, but I would suppose you could go--

Mr. Bender: --you could have that.

Justice Souter: --one step further.

I thought you could, consistently with your position, and that is, if you've got a school system in which everybody says the results are terrible for everybody, and the school system made a decision that in fact they would get better results for everybody if certain classes at certain levels were segregated by sex, all males schools and all female schools, you wouldn't start with this implication of inferiority, and I would suppose that that might be okay.

Mr. Bender: That's also true, right.

That's, I think, the third part of the answer.

Justice Scalia: You mean you can do it case by case--

Mr. Bender: Yes.

Justice Scalia: --and by a lawsuit.

Mr. Bender: I think single sex education that a State proposes for single sex reasons, unlike this case, where this is done just to comply with a court decree, if a State proposes a single sex system, the issue then is, is it truly an equal system, and that would have to be decided.

Justice O'Connor, with regard to the remedial question you raised before, I just... can I finish the sentence?

Unknown Speaker: Yes.

Mr. Bender: That might be more difficult if it were voluntary.

I think in the remedial context, there's a lot of problem with that kind of total separation unless it's necessary.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Bender.

The case is submitted.

Attribution:

The Oyez Project

Featured:

J.E.B. v. Alabama ex rel T.B. - Oral Argument

Fri, 09 Jan 2009 14:49:52 +0000

Case:

J.E.B. v. Alabama ex rel T.B.

Media File:

92-1239_19931102-argument.mp3

Related Transcript:

1993_92_1239_argument.xml

Transcript:

Argument of John F. Porter, III

Chief Justice Rehnquist: We'll hear argument now in No. 92-1239, J.E.B. v. T.B.--

Mr. Porter.

Mr. Porter: Mr. Chief Justice, and may it please the Court:

A ruling which the petitioner requests in this case is a determination that gender-based peremptory jury challenges are prohibited under the heightened scrutiny of the Fourteenth Amendment such that the procedures established in Batson v. Kentucky would apply in that context also.

The facts which are relevant to the review of this case reveal that from a panel of 33 potential jurors, the State of Alabama in this cause struck 9... used 9 of its strikes to strike men from the jury and used 1 of its strikes to strike a female.

The petitioner used a peremptory strike to strike a male from the jury, resulting in an all-female panel to try this case, which resulted in a determination in favor of the state of paternity in this action.

The position of the petitioner in this case is based upon three factors.

The first is that the same principle which prohibits gender-based exclusion from the jury venire also excludes gender-based elimination or peremptory strikes in the formation of a petit jury.

Secondly, under the heightened scrutiny of the Equal Protection Clause applicable to gender discrimination, the State's interest in limiting further restrictions on the exercise of peremptory challenges is not significant enough to overcome the invidious harm caused by gender-based peremptory challenges.

And finally, the harm to the petitioner, the excluded jurors, and society as a whole is substantially similar in the use of gender-based peremptory challenges as that we find from race-based peremptory challenges.

The fact that this panel ended up being all female simply highlights the injury to the entire community when a group, such as males or females, were eliminated from the jury panel because of group bias or unwarranted stereotyping, and when those... that stereotyping becomes the basis for the exclusion of otherwise qualified jurors from the judicial process.

Unknown Speaker: Well, do you think that men at large in this particular community really felt bad because male jurors had been stricken from this panel?

Mr. Porter: Mr. Chief Justice, I think at the time, obviously, the community as a whole was not cognizant of the problem.

The excluded jurors certainly felt excluded, because there were only 10 of them to start with.

Unknown Speaker: Well, supposing that the local newspaper had run a story saying that these male jurors had been excluded, do you think the community at large or the community of men would have felt very badly about it?

Mr. Porter: Mr. Chief Justice, I believe that there would have been a perception that this was not fair, for a panel of all one gender, whether it be female or male, to try any particular case.

I think that would have been the perception in the community, not necessarily that men would have felt bad, but the community would have felt that the system was not necessarily fair.

Unknown Speaker: So the community would have felt differently than men would have felt about it, is that your answer?

Mr. Porter: I think men... I would agree that men would have felt excluded in this particular case.

And I think in any particular case, if they were excluded simply because they were males.

Unknown Speaker: But men, as a class, historically have not been excluded from jury service, so why should an equal protection plea on behalf of men succeed?

Mr. Porter: Justice Ginsburg, men have not... I agree that men have not been excluded from jury service.

But men have become... under the Equal Protection Clause, have been a classification which have received protection from gender-based discrimination.

So our position is that the same principle which applies to gender-based discrimination in general should apply to males, and to females, in this particular context.

Unknown Speaker: Well, why couldn't this be regarded as a kind of affirmative action for women to make up for all the years when Alabama totally excluded them from jury service?

Mr. Porter: I'm not saying that that at some... for some reason could not be.

But in this context, it is certainly not an affirmative action because it would also apply to females.

It is a... in this case men were excluded.

The same invidious harm would have occurred if women had been excluded from the jury panel.

So therefore it is not an affirmative action type of process which is allowed by the State of Alabama.

Unknown Speaker: Mr. Porter, you speak of unwarranted stereotyping.

Mr. Porter: Yes, sir.

Unknown Speaker: I take that to mean that there is nothing to the notion that you're... if you're a defendant in a rape case, you're likely to be worse off with an all-female jury and you're... if you're a defendant in a paternity case, you're not likely to be worse off with an all-female jury?

You don't... is that warranted stereotyping or unwarranted stereotyping, or is it simply not true?

Mr. Porter: Justice Scalia, I would say that it is unwarranted because that while men and women are not the same, obviously, and do not have necessarily the same outlooks, but they do have the same ability to be unbiased, to become unbiased jurors in a particular case.

Unknown Speaker: The same ability... they can both fight against it to the same degree, as every human being has to, but they begin from different standing points on certain issues such as those two, don't you think?

Are you telling me that a defense counsel is unreasonable in attempting to strike women in cases of those type, in thinking that his client would be better off with a male juror?

Mr. Porter: Justice Scalia, my response is that, and our position is that simply because... a woman is excluded from a jury because of her gender should be unwarranted and unreasonable.

Now, if it goes further than that--

Unknown Speaker: Now, I don't understand.

Say it again?

Mr. Porter: --Our position is that the--

Unknown Speaker: Are you saying that there's nothing to the fact that a woman juror and a man juror, at least in certain type of cases, may have a different outlook and hence be more likely to tend towards the defense or the prosecution side?

You... are you saying there is nothing to that?

Mr. Porter: --Justice Scalia, I'm not saying there's nothing to that.

However, the--

Unknown Speaker: You're saying there is something to it, but counsel shouldn't be able to take that into account in their peremptories?

Mr. Porter: --I think that you can consider that.

I don't think that... our position is that you should not be able to exclude a male or a female simply because of their gender.

There are studies that goes both ways, that females are--

Unknown Speaker: Mr. Porter, isn't it clear that there's something to most stereotypes, that most stereotypes are, indeed, accurate for a good part of the class?

Mr. Porter: --Justice Ginsburg, stereotypes are stereotypes, and they may, in fact, be applicable to a certain percentage of a particular group, such as 60 percent of the women may feal one way about a subject.

But there are 40 percent that do not feel the same way, and if you allow gender-based peremptory challenges, that 40 percent may be excluded simply because of the overall perception that women feel a certain way.

Unknown Speaker: But that's what peremptory challenges are all about.

It's a playing of the odds.

It's always a playing of the odds.

No counsel who exercises a peremptory challenge thinks that every woman or every male man or every person of whatever classification that he eliminates is going to have a certain view, but he's playing the odds.

Isn't that what peremptory challenges are about?

Mr. Porter: Peremptory challenges traditionally have been allowed and become a part of our judicial system because of counsel.

Trial counsel decides at the moment, during the trial, that a certain juror may or may not be biased in this particular case, and says... therefore peremptories are allowed.

It is our position that it is the preconceived notion, the preconceived stereotyping that all women feel a certain way and so therefore they should be excluded because all women feel a certain way from a jury.

Unknown Speaker: Isn't your argument that certain stereotyping, whatever its historical basis in fact may be, simply should not be recognized as tolerable under the Equal Protection Clause?

Don't you have a principle argument as opposed to a merely fact argument?

Mr. Porter: Yes, sir, Justice Souter, we do.

And that is in its... probably its finest form, or the simplest form, our argument; that stereotyping for the exclusion of jurors should not be allowed.

Unknown Speaker: Your argument is that you want a precedent that applies to race to be extended to sex.

How far do you carry it?

What other groups?

And if... you're saying if race, then sex.

Well, how about age, religion, national origin?

Mr. Porter: Justice Ginsburg, in this particular case I think the Court need only go as far as gender.

However, I think it would be rational to apply the same principles to heightened scrutiny under the Fourteenth Amendment, which would apply, then, to religion, national origin, and illegitimacy.

The examples you gave of age and maybe other classifications which have not risen--

Unknown Speaker: But does one inquire of each juror about the legitimacy of the juror's birth?

Mr. Porter: --Practically not.

I have never seen... in 15 years of practice I've never seen anyone inquire of someone's legitimacy.

However, if that were--

Unknown Speaker: Or, indeed, national origin?

Mr. Porter: --No, ma'am.

I've never seen anybody inquire of national origin.

However--

Unknown Speaker: It is perhaps the difference that in race and sexes, you don't have to ask.

Mr. Porter: --Correct.

It is clear from looking at a person their race and their sex, and so therefore there is that connection, so that it is something that you can readily observe.

Unknown Speaker: Counsel, suppose an attorney were faced with a jury of all one gender, all male or all female, could the attorney then strike in order to increase diversity?

Mr. Porter: Justice Kennedy, in the race arena where counsel have in the past stricken for that cause, it has not been allowed.

It has been determined that that is a race-based peremptory challenge and has not been allowed.

I would apply the same principle in this instance, so that in order... that use of peremptory challenges to obtain a better mix, I suppose, of a jury should not be allowed in that case.

Unknown Speaker: Mr. Porter--

--So the stereotype applies to the challenge but not to the evaluation of the jury as it's composed?

Mr. Porter: The... I would agree that the... the objection would be to the individual challenge of the juror.

Unknown Speaker: But your... isn't it your assumption, in answering Justice Kennedy's question, that there is no reason to infer that there was stereotyping or exclusion based on stereotyping in composing the panel from which his all-male jury or all-female jury was picked?

Isn't that your assumption?

Mr. Porter: Yes, sir.

That would be a part of it, before you would ever get to--

Unknown Speaker: Which is, in fact, I presume, an unrealistic assumption.

Mr. Porter: --Yes, sir.

Unknown Speaker: Or would be in those cases.

Mr. Porter: It would be, yes, sir.

But before you would get to that point, you would have the opportunity to make the challenge.

Unknown Speaker: Mr. Porter, the male and female classes are roughly the same size, I guess.

Mr. Porter: Yes.

Unknown Speaker: That's not always true in the racial or other contexts.

Why isn't it an adequate protection if one side thinks the male is a more favorable juror and the other thinks the female, give them each the same number of peremptories and they'll cancel each other out?

Mr. Porter: Justice Stevens, as to that panel, that... or as to the group of the jurors and the ability of counsel to obtain the correct mix, that may be the right answer, the way to resolve it.

But as to the individual juror who is excluded, or to the community as a whole, the allowance of gender-based peremptories damages, as the Court found in--

Unknown Speaker: Yeah, but what's the damage if one side thinks they don't like men and the other side thinks they don't like women?

Doesn't that cancel it out?

I mean neither group is being treated less favorably than the other group under that hypothesis.

Mr. Porter: --Justice Stevens, the entire group, I would agree, would not be--

Unknown Speaker: Both men and women would be insulted because they're not of the opposite sex.

Mr. Porter: --Right.

And so it would be the insulting of that particular juror, or the exclusion, which would be objectionable.

Unknown Speaker: Although you have standing because of the client that you represent, which you're asserting, then, is the equal protection right of the juror, not the party.

Mr. Porter: In part.

I think under Batson and the cases that followed, certainly my client would have the standing to raise the objection of the excluded jurors.

I think that would be correct.

Unknown Speaker: Well, isn't that the heart of your argument?

Mr. Porter: It is.

I think that's the overall, the more broad argument.

And the more important, probably, harm is the harm to the community and to society and to the excluded jurors who basically do not have the opportunity to raise the objection themselves.

Unknown Speaker: Could I ask, Mr. Porter, what... is that the total list of categories that you want this applied to?

What is it, now, sex, religion, what else?

Mr. Porter: National origin and--

Unknown Speaker: National origin.

Mr. Porter: --Yes, sir.

Unknown Speaker: Sexual preference?

Mr. Porter: No, sir.

Unknown Speaker: Not... no, not that.

Why not?

Mr. Porter: Because sexual preference, like age and disability, have not been raised by this Court to the heightened level of scrutiny under the Fourteenth Amendment.

Unknown Speaker: Oh.

But we could do that, though.

Mr. Porter: If the Court chose to at some point in time, then you could--

Unknown Speaker: Sure.

[Laughter]

Mr. Porter: --You certainly could.

Unknown Speaker: But Mr. Porter, are you going to, in your system where we have these groups, allow the preliminary questioning of the potential jurors.

In the colloquy that we just had, you observed that there's something about race and sex that's not like any other class.

You don't have to ask.

Mr. Porter: Correct.

Unknown Speaker: But in the suggestions that you're now making, the notion that religion is not written on someone's forehead so we would first have to quiz the potential jurors about that.

Mr. Porter: Yes, ma'am.

Unknown Speaker: Same thing with national origin.

Mr. Porter: Yes, ma'am.

Unknown Speaker: Does that... does not... isn't that just a disturbing thought?

Mr. Porter: It is a somewhat invasion of their privacy.

But trial counsel every day inquires of jurors on personal matters.

It is important in some cases to make those inquiries.

Go back, as far back as Lewis, the U.S. v. Lewis.

The Court there explained how important the use of the voir dire was.

Unknown Speaker: So if you're the defendant in a drunken driving case, you can strike jurors for... I guess, because you don't like the color of their hair, but you could not strike a juror because he's a Methodist and therefore a teetotaler.

You would have to accept, if it turned out that way, a jury of 12 Methodists in a drunken driving case, right?

Mr. Porter: No, sir.

Unknown Speaker: You would not.

Mr. Porter: Not necessarily.

My point is that you could not strike him simply because he was a Methodist.

If he was a--

Unknown Speaker: Well, that's why I'm striking him.

Mr. Porter: --I understand.

Unknown Speaker: I think this fellow probably has very strong views against drinking, and is more likely to come down hard on someone who's accused of drunken driving than some other juror.

That's precisely why I want to strike him.

Mr. Porter: It is--

Unknown Speaker: And you're saying that's no good.

Mr. Porter: --It is the probably that gives me a problem with that.

Unknown Speaker: But all peremptories are based on probably.

Mr. Porter: Our position would be that if that Methodist professed to be a teetotaler, and so therefore had an individual conviction against the consumption of alcohol, that would be a proper peremptory strike.

Unknown Speaker: But a teetotaler is just a person who doesn't himself drink alcohol.

Mr. Porter: Correct.

Unknown Speaker: He doesn't necessarily believe that it's morally wrong for himself and others to do it.

Mr. Porter: If--

Unknown Speaker: But, anyway, you just would not let him... not let him strike methodists, right?

But what could he strike, people with blonde hair, postmen?

Mr. Porter: --If a postman had... there would be nothing wrong with striking postmen as a class.

Unknown Speaker: He'll be happy to hear that.

Mr. Porter: Yes, sir.

[Laughter]

Unknown Speaker: Mr. Porter, as a litigator, do you believe in the peremptory challenge system?

Mr. Porter: Justice Blackmun, I believe, as a litigator, that the peremptory challenge system certainly has a place within our jury selection process.

It is... but it must be bound by certain constitutional provisions, and we think one of those is the Fourteenth Amendment.

Unknown Speaker: Do you think Batson was wrong?

Mr. Porter: No, sir, I do not.

I think it... it achieved the purpose for which it was rendered.

Unknown Speaker: Well, Mr. Porter, since Batson, which I guess was 7 years ago.

Mr. Porter: Yes, sir.

Unknown Speaker: We've seen a number of cases here in which Batson issues have been raised because of the peremptories directed at minorities, of blacks or hispanics.

Under... if your view prevails, a person making any sort of a peremptory challenge in a proceeding is just really running a great risk.

Because the peremptory challenge is going to be even to a man or to a woman, and therefore arguable on appeal that this... this violated the Equal Protection Clause.

Mr. Porter: Mr. Chief Justice, in any situation the first step the trial counsel is going to have to show is making out a prima facie case that the gender has been used intentionally to strike.

Unknown Speaker: But if you're talking... I mean, if you're talking about minority members of a jury panel.

Mr. Porter: Yes, sir.

Unknown Speaker: I should think it would be much easier to make out a case like that because there are not apt to be many of them on the panel.

Whereas in the case of women or men members, they're probably going to be 50/50.

Mr. Porter: By and large, there will be.

However, there are many counties in Alabama, and probably in other counties across the Nation, in which the racial mix is 50/50, or 60/40, very close.

So those... the Batson still applies in those cases.

Unknown Speaker: Even if we accepted your argument that sex should be treated like race, wouldn't it be appropriate in this case to follow another precedent that was set 27 years in Alabama, and that is not to make this... this dramatic change retroactive.

Do you remember the old case of White against Crook when the Alabama Legislature was given till the next session to put women on juries?

Mr. Porter: I think the problem with that approach would be that the harm in this case... in this particular case, the harm, the men who were eliminated have already been damaged.

And therefore other men with cases--

Unknown Speaker: Well, that was certainly so in the days when the Alabama laws was... that the jury role would include the names of all male citizens of the county.

Mr. Porter: --Yes, ma'am.

Unknown Speaker: And yet that was made prospective only.

The relief was made prospective only.

Why isn't that appropriate here?

Mr. Porter: Because the damage has occurred already and it needs to be remedied.

And it will continue to cause damage until it is remedied.

Unknown Speaker: Thank you, Mr. Porter.

Mr. Porter: Thank you, Mr. Chief Justice.

Unknown Speaker: Mr. Dreeben, we'll hear from you.

Argument of Michael R. Dreeben

Mr. Dreeben: Thank you, Mr. Chief Justice, and may it please the Court:

For nearly 2 decades the Court has held that Government action taken on the basis of gender is subject to heightened constitutional scrutiny.

In light of that heightened scrutiny, the discriminatory use of peremptory challenges to remove a juror on the basis of gender violates the Constitution.

The line of cases beginning with this Court's decision in Batson has made it clear that the use of peremptory challenges for racially invidious purposes is unconstitutional.

Such challenges harm not only the parties, but also the excluded jurors and the community as a whole.

The same is true with respect to gender-based strikes.

The individual juror removed on the basis of gender is frequently the victim of an outmoded stereotype.

Jury manuals, for example, have instructed litigants to remove women because of a belief that they are too sympathetic or are governed by emotion, and the case law reflects that this has happened.

Unknown Speaker: And you know better, so you want to protect defense counsel from himself, right?

Mr. Dreeben: No.

I believe, Justice Scalia, that--

Unknown Speaker: It seems to me he has his client's interest more to heart than the Government does.

And if he thinks that what you call unwarranted stereotypes are, indeed, warranted, why not let him take the chance?

Mr. Dreeben: --Well, the same argument could be made--

Unknown Speaker: And if it's unwarranted, it'll be its own punishment.

Mr. Dreeben: --I think the same argument could be made about racially based stereotypes or ethnically based stereotypes, or stereotypes based on a person's religion and nothing more.

Now, the reason--

Unknown Speaker: There's a Thirteenth Amendment and a Fourteenth Amendment that can account for our view of racially based stereotypes.

We're not allowed to stereotype for that.

There's no such... no such amendment changing historical practices with respect to strikes on the basis of sex or on the basis of a lot of other characteristics.

Mr. Dreeben: --Well, this Court has determined that the Equal Protection Clause not only applies to sex-based classifications, but that they are entitled to heightened scrutiny because there has been a history of discrimination and a history that reflects the misuse of gender-based stereotypes as a basis for Government action.

And it's that Court's determination in the general mainstream of equal protection law that we rely on in urging the extension of Batson from race-based challenges to gender-based challenges.

Unknown Speaker: Well, Mr. Dreeben, if you... if you prevail here, if the petitioner prevails, and not only gender-based peremptory strikes but those based on ethnic origin, religion and so forth, are similarly barred, what's left of the peremptory challenge system, if anything?

Mr. Dreeben: I think what's left of it, Justice O'Connor--

Unknown Speaker: Besides the postmen.

[Laughter]

Mr. Dreeben: --It is the important class of postmen, and in addition classes that are based similarly on occupation, and all classes that really have not been elevated--

Unknown Speaker: Well--

Mr. Dreeben: --To heightened review.

Unknown Speaker: --It strikes me that before you even get to that, you're going to be accused... as a lawyer, a trial lawyer exercising peremptories which, of necessity, have to be exercised against either women or men... of having made a sex-based peremptory strike.

How do you think, as a practical matter, the trial judge should deal with it?

Suppose the lawyer strikes... has five peremptory strikes and uses three of them to strike women.

Now, is that open to challenge and is the trial judge going to have to resolve that?

Mr. Dreeben: The trial judge will have the discretion to determine whether there's a prima facie case.

The lower courts have held, in the context of Batson, that simply an argument from numbers alone does not necessarily establish a prime facie case.

There may be other factors that give rise--

Unknown Speaker: But it might.

Mr. Dreeben: --It might.

And if it does, the litigant who has exercised the strikes will be called upon to give a gender-neutral explanation for the strikes, just as he or she has to give a race-neutral explanation.

And this procedure, though it may have seemed cumbersome at the time that Batson was adopted to those who opposed the rule, has proved to be perfectly workable in the Federal system in terms of race.

And in those jurisdictions--

Unknown Speaker: Well, but, of course, what do you have there?

You have a much smaller pool of minority jurors against which this can operate, so it strikes me that it's much easier to establish some kind of a misuse.

But when you have equal numbers of men and women, it seems that it might be, as a practical matter, very difficult to administer this for the trial judge.

Mr. Dreeben: --There may be some cases that call for difficult determinations at the margins.

I don't think that, across the board, it has proven difficult.

Unknown Speaker: Mr. Dreeben, are we talking entirely hypothetically?

Is it not so that Batson is the rule with respect to sex in some Federal jurisdictions?

Mr. Dreeben: Yes, Justice Ginsburg.

The Ninth Circuit has adopted a gender-based Batson rule, as have the States of New York and California and Massachusetts, and, as well, six other States.

And those are large State systems, as well as the Ninth Circuit, which is a major Federal system, and it has not proven to be administratively burdensome or difficult to implement.

Unknown Speaker: Well, but--

--Mr. Dreeben--

--Unless you extend it to the other logical categories which it ought to be extend to, if it extends to... if it extends to sex.

I guess there's nothing to worry about if you can find a postman who is neither male, female, has no religion, and no ethnic background.

Then you would not have to worry about a challenge; you could go ahead and strike.

Mr. Dreeben: So long as the litigant relies on a basis for the challenge which is not in a category that's protected by heightened scrutiny, and in which we are particularly concerned about the invidious use of stereotypes, in which the jurors rights would be violated were he subject to exclusion.

Unknown Speaker: Is it just the jurors' rights?

Is the integrity of the fact-finding process, the accuracy of the jury's determination enhanced or retarded by your position, in your view?

Mr. Dreeben: I'm not sure that the actual accuracy of the fact-finding process is necessarily affected one way or the other, so long as impartial jurors are actually seated.

What is affected is the community's perception and confidence in the integrity of the process.

Unknown Speaker: Well, do you think the stereotypes may, then, enhance the accuracy of the jury?

Mr. Dreeben: No, I don't think that the stereotypes would in any way enhance it.

I think that once you have reduced the--

Unknown Speaker: But you wouldn't go so far as to say they retard it?

Mr. Dreeben: --Not necessarily.

But I do think that the community itself loses confidence in the integrity of the process when biased selection procedures have been used to empanel the factfinder.

And I don't believe that that's different depending on whether the bias that's used in the selection process is racial bias, ethnic bias, or gender bias.

Unknown Speaker: Well, this goes back to Justice Souter's question to the previous counsel as to what the real evil is here.

If stereotypes have some value for the trial practitioner in selecting the jury, then maybe we should draw the line here and allow those peremptory challenges.

Mr. Dreeben: I think the line should be drawn, Justice Kennedy, where this Court has drawn it in other equal protection contexts where stereotyping was used to justify laws.

Where the stereotype is one based on gender such as to invoke heightened constitutional scrutiny because of suspicion about historical misuse, it's appropriate to ban that use of stereotyping from the courtroom.

Where there has been much less concern about the invidious use of stereotyping or grouped-based assumptions, such as strikes based on occupation, residence, age, or a variety of other factors that this Court has been quite deferential to--

Unknown Speaker: But isn't the purpose of abolishing the stereotype from the courtroom in order to confirm the duty of the individual juror to set aside his or her own preconceptions?

Mr. Dreeben: --That is certainly part of it, but there is a balancing going on here, and the peremptory challenge system has been thought to serve other purposes in the jury selection process.

And the States may have some leeway to make determinations that group-based exclusions are permissible where there is no particular reason to be suspicious about the nature of those exclusions.

But in this context, where gender-based stereotyping has been subject to heightened review because of suspicion about misuse, where the community is injured and where the excluded juror also would find it to be insulting to be removed solely on the basis of a stereotyped assumption, then in those situations the Equal Protection Clause does mandate the eradication of this form of discrimination.

The ruling in this case, Justice Ginsburg, should be applied retroactively, just as this Court applied the rulings in Batson and the successor Batson cases retroactively.

There is no reason to depart from the determination made in that line of cases that the ruling should apply both to the parties in the case--

Unknown Speaker: But by retroactive you mean the cases pending?

Mr. Dreeben: --to cases pending, that's precisely correct, Justice Stevens.

I was going to add that point.

We do not believe, in answer to Justice Rehnquist... Chief Justice Rehnquist's question, that the Court should make an exception to a gender-based rule that would permit strikes when a party is attempting to even up or balance the jury.

First of all, we think that that rule would be susceptible to a great deal of misuse.

It would become extremely--

Thank you.

Unknown Speaker: Thank you, Mr. Dreeben.

Ms. Brasfield, we'll hear from you.

Argument of Lois N. Brasfield

Mr. Brasfield: Mr. Chief Justice, and may it please the Court:

The solution that the defendant... the petitioner has offered in this case I think causes a great many more problems than it actually fixes.

In this particular case there... it was a very unusual venire.

And under the circumstances, I do not think it can be said that either the defendant, the individual jurors, or the community at large was harmed.

Usually, you will have a fairly well divided venire, and in this particular case there were 23 women and 10 men for whom... that had to be brought down to a 12-person jury.

The defendant had 11 strikes, the State had 10.

The jury--

Unknown Speaker: That's what Alabama allows in a criminal case, or is this a civil case?

Mr. Brasfield: --This is a civil case completely, Your Honor.

Unknown Speaker: And you're allowed 10 or 11 strikes in a civil case?

Mr. Brasfield: They use a struck jury method which is 24... a minimum of 24 are required from which to start the striking down to the number of jurors that are going to be needed.

Unknown Speaker: Well, if you start with 24 and one side has 10 and the other side has 11--

Mr. Brasfield: No, no, no.

You have however many it takes to reduce the venire to the number of jurors who are actually needed for the trial.

That will be--

Unknown Speaker: --And would that be 12 in this case?

Mr. Brasfield: --In this case it was 12.

There were no alternates needed for this case.

So it just happened that there were a large number of strikes to be used in this case.

The defendant used his first strike against a woman; the State used its first strike against a man.

This--

Unknown Speaker: Well, let me inquire once more into the mechanics.

The venire was 33 people?

Mr. Brasfield: --Yes, sir.

And--

Unknown Speaker: And you... where did the number 24 come from?

Mr. Brasfield: --The statute requires that a minimum of 24 be available.

Usually more than that are called because there... there's never any way of knowing how many will be struck for cause prior to the striking of the actual jury.

Unknown Speaker: Thank you.

Mr. Brasfield: The State used its fourth strike to strike a woman, but the defendant continued to use his strikes... I mean to strike a man, but the defendant continued to use her to strike women.

The actual numbers struck were 11 women and 10 men.

Those jurors who were struck, those 11 women and 10 men, did not leave the courtroom thinking that they had been excluded from the jury system or that they could never sit on a jury.

Both men and women regularly sit on juries throughout this country.

And part of that is the very fact that men and women are not minorities; they are both fairly equal in numbers.

So that if your panel is drawn randomly, usually you will have a jury panel that is fairly equal in numbers.

If there is some reason why the litigants feel like it's to their advantage to strike one gender rather than the other one, then just in this case the other juror... other litigant is probably going to be striking the other gender.

This was a rare but totally random drawing that produced an unbalanced venire.

But in most cases this would not happen.

In... and the fact is that they could have just as well been two men to every woman.

It just happened that it was two women to every man in this case.

In addition--

Unknown Speaker: Are you suggesting that there was not proof that the elimination was, indeed, gender based?

Mr. Brasfield: --I'm not suggesting that there would not have been a prima facie case which would have caused a challenge if Batson had been applied to this case.

Unknown Speaker: That's... I thought that that was a given for us at this level.

Mr. Brasfield: Yes.

I think at this point the fact that there would be a prima facie case if either side had decided to challenge.

The State had as much of a challenge against the defendant for having stricken 10 women with his 11 strikes.

Unknown Speaker: Ms. Brasle... Brasfield, my question to you... we've been talking about stereotyping and how they are often true for most people in the class, but it was my impression that the evil or mischief that has underlied every decision of this Court in the sex discrimination/equal protection field is just that stereotyping, the notion that women are this way and men are that way.

Is that not so?

Mr. Brasfield: In my position, I think that that is correct.

That is what Batson was based on.

But Batson has been held to be uniquely a result of the racial situation that was existing in this country, where blacks were still being kept off of juries in case after case after case, and the Swain test that was in place was unworkable to prove that this was happening.

It's our position that it's--

Unknown Speaker: How long were women kept off juries in Alabama?

Mr. Brasfield: --Until 1966, they were.

Under the statute, a jury was made up of all males.

But at this point, they are not being kept off of juries.

The venire lists are drawn from the driver's license registration lists, and are drawn at random.

Unknown Speaker: But you're arguing that there's nothing wrong with a counsel that's continuing to exclude them solely on the basis of their gender?

Mr. Brasfield: I'm not saying that that's right or wrong.

I'm saying--

Unknown Speaker: No.

Yes, you are.

You're saying it's perfectly constitutional.

Mr. Brasfield: --I'm saying... I'm not... well, that's what I mean.

I think it is constitutional.

I do not think that it is necessarily to either party's advantage.

I think they may very well be wrong, just as they may be wrong in thinking that the postman is going to be less likely to decide on their case.

But--

Unknown Speaker: Are you asking that Batson be overruled?

Mr. Brasfield: --Not at all, sir.

I think there was a very--

Unknown Speaker: You accept... you accept Batson?

Mr. Brasfield: --Yes.

But I think that Batson is unique to race and the situation that was continuing to exist in that blacks were being kept out of the system, which is not happening to men in particular in this case, or women.

Unknown Speaker: Well, Ms. Brasfield, I guess the Court has painted itself into a bit of a corner on this matter, because it has held that the Batson rule applies because of the right of the juror.

That it is the juror's own rights that are at stake here, and that the attorney for the litigant can raise that challenge in the case.

Now, if that's so, then how... how would you not apply that rule to a gender-based strike?

Mr. Brasfield: I don't think--

Unknown Speaker: I think what's really at stake is the right of the juror.

If the Court's theory had been different, your argument might be easier.

Mr. Brasfield: --Well--

Unknown Speaker: But how can you make a reasonable argument in light of the Court's jurisprudence here?

Mr. Brasfield: --Well, I think that no particular juror has a right to sit on any particular case.

And in this situation there were 12 women who sat on the jury, but there were 11 women who didn't.

And they were struck... as I said, there would have been a prima facie against that at the time too.

Unknown Speaker: Yes, but a particular juror has a right to have the State not act to exclude them on the basis of their gender, right?

Mr. Brasfield: That has not been said by this Court up until now.

All of the applications of Batson, at this point, have been to race.

Unknown Speaker: Yes.

But based on the right of the juror?

Mr. Brasfield: Then I think you would have to come also to the right of the postman and the right of anybody else not to be struck.

And if we are going to reach this, I think this is one of the problems that extending Batson beyond the area of race would cause, and that--

Unknown Speaker: It's not a right not to be a struck.

It's a right not to be stricken according to your race or, in this case the argument is gender.

No one's contending that you have a right not be subjected to a challenge.

Mr. Brasfield: --But is it--

Unknown Speaker: It's the reason for the challenge that's the point of... the point of the inquiry here.

Mr. Brasfield: --But I think that the same argument, if that is going to be used to extend Batson, would also apply to any other stereotypical reason for--

Unknown Speaker: Ms. Brasfield, isn't it true that there's no other group in the history of this country that was excluded from jury service as long as women?

Not even the racial classifications lasted into... in fact, it was 1967 in Alabama; the decision was '66, but the change was '67,--

Mr. Brasfield: --Justice Ginsburg, it is true that only blacks and women have, been under the law, denied the right, and that actually black men were allowed to sit on juries prior to women in Alabama.

Unknown Speaker: --So wouldn't we be putting the peremptory challenge back where it was in the days when it was never exercised on the basis of either race or sex because there weren't any women or any minorities in the pool to begin with?

So all this talk about how you're shrinking the peremptories, you're just putting it back the way it was in the bad old days.

Mr. Brasfield: But they are there, and they are there in fairly equal numbers.

And since we're in the position of applying it to both men and women, there is always the chance that... and particularly where you have a large black population too, the problem is extended and made more necessary, that you have a reason for every strike in the event that you inadvertently fall into a situation that makes you subject to a challenge.

Unknown Speaker: Ms. Brasfield, I suppose that every citizen has a right not only not to be... if we follow this logic, not only not to be stricken for that citizen's race, religion, sex, and whatever, but also has a right not to be stricken for any irrational reason, I suppose, if that logic is correct?

Wouldn't that be so?

Mr. Brasfield: I think that--

Unknown Speaker: So I guess that every erroneous basis for exercising peremptories would be unconstitutional.

Like if... in fact, postmen are, surprisingly, no different from everybody else.

Striking a postman because he's a postman would be unconstitutional, right?

Mr. Brasfield: --I think that that argument could be extended in that direction, yes.

Unknown Speaker: Or just striking a juror because you don't like the look in his eye.

That would be unconstitutional.

Mr. Brasfield: I think that we would certainly be in a position where we couldn't use... striking a jury because we don't like the look in his eye as our nonracial, non-gender-based reason--

Unknown Speaker: Well, you could--

Mr. Brasfield: --Because it would be considered a sham.

Unknown Speaker: --Well, you could draw the line short of that, surely, because the Court has held the Equal Protection Clause requires if not strict scrutiny, at least heightened scrutiny, intermediate scrutiny based on differences between men and women.

And it has never said the same about people who had a certain look in their eye.

[Laughter]

Mr. Brasfield: That's correct, Your Honor.

But--

Unknown Speaker: Or about letter carriers.

Mr. Brasfield: --That is also correct.

And while in Alabama if you were having a Batson challenge and you were trying to justify your strike for a nonracial reason, or a non-gender-based reason, I think that saying, Your Honor, I didn't like the look in his eye would not pass muster.

I think that you would have to show a better reason that than, or it would be considered a sham.

You could say that about every person you had struck.

So I think that you would be required to extend your voir dire and spend much more time.

Now, I think that the judicial system would be loaded up with time spent questioning jurors to be sure that you'd be able to give a... an acceptable reason if you were called upon to do so.

I think--

Unknown Speaker: Ms. Brasfield, is the question I asked earlier to Mr. Dreeben, I think... Batson is in effect with respect to sex in the Ninth Circuit and in some States.

Is there any evidence of... you said you think... do we... is there any evidence that there has, in fact, been these intractable problems?

Mr. Brasfield: --I am not familiar with whether those problems have been found.

The... Mr. Dreeben has said that there is no evidence that there are problems.

I'm not... also not sure that there are not... there are any studies showing there are not problems.

But, now, in Alabama, although Alabama has heartily endorsed... all of its courts have endorsed Batson as it applies to race, and in each of its extensions to civil litigation and against defendants as well as plaintiffs.

But at the same time, there were over 40 appellate opinions issued by the Alabama Court of Criminal Appeals last year that had to address Batson issues that were raised on appeal.

Unknown Speaker: Well, and I also think that the Ninth Circuit adopted its rule, as I understand it, only in 1992, last year, so it might be too soon to decide whether there've been any problems or not.

Mr. Brasfield: Chief Justice Rehnquist, I agree with that.

I also think that if Batson were extended to gender, there is a clear indication that it would cause problems in Alabama and in many States.

I can't believe that Alabama is unique in struggling with the practical application of Batson even as it applies to race, as... and I think that having it to apply to gender also would increase the problems tremendously.

In paternity cases, for instance, which is what I see regularly, Alabama adjudicated 8,000 paternities last year.

Most of these trials take no more than half a day, even when you're selecting a jury.

They're quickly handled.

They have... usually they have some expert testimony and some HLA or DNA tests, and they are fairly rapidly decided.

You can... it can be envisioned that you'd spend twice as long on the voir dire and jury selection as you would actually trying the cases.

In addition, I think there would be a lot greater chance for an allegation of error in those cases, so that the appeals system would be overloaded as well with Batson issues.

Unknown Speaker: Well, may I ask you, in the trial of those cases is the fact pattern that we've seen in this case characteristic of most of them?

Mr. Brasfield: The fact pattern in this case--

Unknown Speaker: I mean, defense counsel will strike all of one sex and the State's counsel strike all of the other sex?

Mr. Brasfield: --This is the first case that I have seen where that type of striking has been apparent.

Unknown Speaker: So this isn't necessarily a problem here for--

Mr. Brasfield: So this is not necessarily.

It is certainly not something that has been advised by the State.

It was apparently this particular litigator's... the two litigators' choices.

Unknown Speaker: --But that sort of undercuts the reason for your fear that if we... if we decide in the petitioner's favor here, that your prosecution of these cases is going to be made unmanageable?

Mr. Brasfield: The only thing that would make it unmanageable is that the... if you reduced either side.

It's not a question of whether there is all of one panel or all of another, or if all of the strikes are used, because this Court and the State's court... State courts have held that if even one strike appears to be based on gender or can show a prima facie case--

Unknown Speaker: If it appears to be.

But, I mean, isn't that the... doesn't that raise a question about the nature of the prima facie case.

As so members... so many members of the Court have pointed out, you can't strike anybody without striking someone of one gender or another, and therefore you've got to have something more than that to make a prima facie case.

You had a prima facie case, we are all agreed, I guess, here, but it doesn't follow that one strike of one person is going to appear prima facie to be motivated by gender, does it?

Mr. Brasfield: --No, not that one strike of one person would.

But if you have six or eight strikes, or five or nine strikes--

Unknown Speaker: And they were all of the same gender.

Mr. Brasfield: --They are one--

Unknown Speaker: Then you've got one.

Mr. Brasfield: --You know, at what point would you decide you've crossed the line?

If you're using, say, two more strike against one gender than the other in Alabama, the State courts have held that if you reduce a racial ratio in the venire significantly when reaching the petit jury, that that, in itself, can be a prima facie case.

So that you're really in a position where you might have to have a proportional jury in order to avoid a Batson challenge, or you would have to be prepared to give a reason for each one of your strikes if you didn't have a proportional jury.

Unknown Speaker: May I ask you a question about your procedure in Alabama, this alternate striking?

Is it correct that... I gather a lot of these are peremptory strikes, but is it also... and it must be true also that you can have strikes for cause as you go down the line, and not have those counted against you, is that right?

Mr. Brasfield: Yes, Justice Stevens.

In this case there were 36 on the original panel; three of them were struck for cause by the court.

Unknown Speaker: I see.

And the person just doesn't lose... and then he gets another strike if the judge agrees with him on the strike for cause.

Mr. Brasfield: That's right.

That doesn't enter into it.

The actual peremptory strikes begin after the removal of the people who are struck for cause.

Unknown Speaker: I see.

As... would you describe again what test in Batson cases the Alabama courts are now using?

Because, I mean, it seems to me that one of the consequences of adopting the rule that the petitioners want here, would be to compel Alabama to be less rigorous in its application of Batson.

I'm not sure that we have required Alabama to apply such a rigorous rule.

What is the rule they now use?

Mr. Brasfield: The proportion of minorities to the majority race on the venire is considered as one of the elements.

It's not the only one; in individual cases they might consider other matters.

But there have been cases in which the very fact that either more strikes were used against the minority than against the majority or that the result was that... for instance, if you had eight strikes and you used two of them against blacks, but there were only two blacks in the panel, and so... or three blacks in the panel... so that you reduced the proportion considerably, that would be one of the things they would look at in determining a prima facie case.

That, in itself, could be considered a prima facie case.

Unknown Speaker: And one could hardly afford to apply that rigorous a rule to another category of strikes, or at least another major one as sizeable as sex discrimination.

Mr. Brasfield: I think that that is true.

I think that there would have to be some other way to handle it, and I am not prepared to say what that could be as far as... as applying Batson, how that could be done.

Now, there are other situations that have been done.

One thing I want to mention is that as well as the community at large not being harmed, because men and women both sit on the juries, and because these particular men and women did not feel excluded from the system because, they probably sat on another jury during the same term of court, and because they were actually struck in fairly equal numbers, the fact is that under the facts of this case and the overwhelming evidence that was there, it is very hard to see how the defendant could be harmed.

Because I don't think he was found to be the father of this child because of a biased all-female jury; I think he was found to be the father of this child because of the overwhelming evidence that he is.

Unknown Speaker: Justice O'Connor explained that the... one of the problems from your point of view is that the right is being asserted by the defendant, but the constitutional protection is afforded to the potential juror.

So every time you're talking about, well, the defendant is or is not likely to be affected, it's the... it's the harm to the potential juror as a result of stereotyping because of one's birth status, that's the constitutional injury that's at stake here.

Mr. Brasfield: Yes, Your Honor.

I understand what you're saying, I think, but I feel that in this particular case, in the first place they are struck by number and the jurors don't know what their number is.

If one side is striking men and the other side is striking women and then are reduced in equal numbers, then I do not see how they can be harmed by that knowledge.

I think that part of our problem in Alabama may be contributed to by the fact that we use the struck jury method, which gives us this basically unlimited number of strikes, limited only by the number that's on the panel to begin with.

The State of Alabama Bar Association has already recognized that Alabama is having problems and is having too many appeals on this issue, and they have appointed a panel of... a committee of judges and lawyers to examine Alabama's jury system and see if going to a different or a revised peremptory strike method, such as is used in the Federal courts or some other court, might alleviate a lot of the problem.

I think that there are other States who don't seem to be having particular problems with Batson or with gender strikes, and have been able to work this out.

Unknown Speaker: So if there is a constitutional injury and it's a problem of the mechanics of the State system that could be fixed, as seems to be your--

Mr. Brasfield: Then I think Alabama deserves an opportunity to try to fix that, if that is what is happening.

Unknown Speaker: --Well, certainly, there would be an impetus to fix it if the Court said that Batson applies to gender.

[Laughter]

Mr. Brasfield: I think there would be an impetus to go to proportional juries or do away with the peremptory strike.

I think it could come... become so complicated that--

Unknown Speaker: I'm sorry, I wasn't... perhaps I didn't understand you correctly.

You said in places that have... don't have this struck jury system, like the Federal courts, they weren't having the problems with implementing Batson, either for sex or for race, the way Alabama is because it's got this unusual struck juror system.

Mr. Brasfield: --Uh--

Unknown Speaker: So that if you... if you fixed the way your... you strike jurors, then you might not have any difficulty administering Batson for race or for sex.

Mr. Brasfield: --But I--

Unknown Speaker: I thought that's what you had said.

Mr. Brasfield: --Yes, that is what I said, but I do think that because it is already the... the problem of gender strikes in Alabama is not a pervasive problem, that the State should have the opportunity to try to correct it on its own.

And Mr. Dreeben seems to think that there is a problem in the Federal system, also.

If that is true, I think that this Court's supervisory powers could well allow this Court to cure that system without reaching the States in your level.

I think that applying Batson to gender in the situation that Alabama has at this point would cause great slowdown of the cases moving through the courts, and would raise more problems than it could possibly cure.

If there are no further questions.

Chief Justice Rehnquist: Thank you, Ms. Brasfield.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Franklin v. Gwinnett County Public Schools - Oral Argument

Fri, 09 Jan 2009 14:49:34 +0000

Case:

Franklin v. Gwinnett County Public Schools

Media File:

90-918_19911211-argument.mp3

Related Transcript:

transcript.xml

Transcript:

ORAL ARGUMENT OF JOEL I. KLEIN ON BEHALF OF THE PETITIONER

Chief Justice Rehnquist: We'll hear argument now in No. 90-918, Christine Franklin v. Gwinnett County Public Schools and William Prescott.

Mr. Klein.

Mr. Klein: Mr. Chief Justice, and may it please the Court:

In 1972 Congress enacted title IX to give all individuals a right not to be discriminated against on the ground of sex by educational institutions receiving Federal funds.

In 1979 this Court held in Cannon that the title IX right is judicially enforceable at the behest of an individual like petitioner whose right has been violated.

In the case presented today the question is whether the means of redressing the violation of this legally enforceable right include the normal remedy of damages.

We believe damages are available here for two reasons.

First, this Court's consistent rule has been to permit all traditional judicial remedies, including damages, whenever a statute contains an implied right of action.

That's a perfectly sensible rule, I would submit, because when the Court concludes, as it did in Cannon, that there are sufficient indicia of congressional intent to support an implied right of action, the natural inference, and indeed the only plausible rule, is that the courts can use their customary remedial powers.

Second, we believe that a direct examination of congressional intent confirms the conclusion that damages are available under title IX.

In 1972, when Congress expressly patterned title IX on title VI of the 1964 Civil Rights Act, title VI had been interpreted by the lower courts to include an implied right of action, and this Court's cases at that time made it absolutely clear that an implied right of action carries with it a right to pursue damages.

I think it is fair to say that Congress can properly be said to have relied on these subtle principles when it enacted title IX, and that that intent should be given effect here.

Furthermore, after Cannon was decided it seems that this view of congressional intent became much clearer, as Congress has since then passed two statutes relying on and endorsing its understanding that damages are available.

There's been no reason given to suggest why these long-settled and relied-on expectations should now be disturbed.

I'd like to return, then, to the general rule which authorizes damages under an implied right of action unless there is good evidence to suggest that Congress intends otherwise.

That rule has been consistently applied by this Court both before and after title IX was passed, including well into the era when the Court tightened up its criteria for implying a right of action in the first place.

In particular, in 1983 and 1984 the Court applied this rule in the Guardians and Darrone cases to hold that a back-pay remedy is available under both title VI of the 1964 Civil Rights Act and section 504 of the Rehabilitation Act of 1973.

Unidentified Justice: Well, back pay, of course, is not the equivalent of damages.

Mr. Klein: I agree with that, Mr. Chief Justice, but I think the principle is that in Guardians and Darrone the reason back pay was found to be available is that once the Court finds an implied right of action it infers the availability of traditional damages.

So there is no doubt a difference in remedy, but I think there is not a difference in--

Unidentified Justice: I don't see how you draw upon a case which allowed back pay as saying that therefore damages are available, unless just by a rather distant implication.

Mr. Klein: --Well, I think it is by implication in the sense that I think the reasoning that led the Court to think... to conclude rather... that damages... that back pay is available, that same reasoning applies here.

There was, for example, no direct legislative intent that the Court ruled on to say that title VI would include back pay.

I mean, there was no specific or even indirect suggestion.

What the Court really concluded is that once we find sufficient indication of a right of action we presume, it's just a natural presumption, that all the remedies are available.

We don't pick and choose among them.

Unidentified Justice: This was Guardians that you're talking about now?

Mr. Klein: This is Guardians, which I think then was--

Unidentified Justice: I think it's very difficult to draw any very compelling inference from Guardians.

The Court was split so badly.

Mr. Klein: --I think it is hard to draw it from Guardians alone.

I agree with that, Mr. Chief Justice.

But I think in--

Unidentified Justice: What's the other case?

Mr. Klein: --Darrone.

The Consolidated Rail v. Darrone, which was the year after Guardians, where frankly a unanimous Court basically came together, I think, on these principles.

Unidentified Justice: Mr. Klein, I think that our cases in Touche Ross and maybe the Sierra Club indicate that the Courts won't engraft a remedy on a statute that Congress didn't intent to provide.

Do you think that notion has any applicability here?

Mr. Klein: I don't in the following sense, Justice O'Connor.

I think that Touche Ross and its progeny stand for the proposition that the Court won't imply a right of action unless it concludes that there is congressional intent to do so.

Unidentified Justice: You think it has nothing to do with scope of the remedy?

Mr. Klein: I don't, for the following reason.

If we agree that once you imply a private right of action that must mean two things.

One, Congress intended to allow a judicially enforceable right.

That's what a private right, I think, means.

It also must mean the fact that it's an implied right is that Congress has left the issue to the courts, because they haven't set it out in the statute or in the legislative history.

Now, what I suggest, if you knew that much, which is I think what you know in an implied right of action case, the logical inference is that all remedies are going to be available.

Unidentified Justice: Do you think that we have employed that notion even in statutes enacted under the Spending Clause?

Mr. Klein: I do, because I think that notion explains the Guardians, Darrone cases, which is a Spending Clause statute.

Unidentified Justice: Well, I thought under the Spending Clause theory we were a little more careful about binding a damages remedy if it might be beyond the scope of what we assume the States have contracted with the Federal Government to do.

Mr. Klein: I think you have, but I think that distinction was drawn actually by Justice White in his opinion in Guardians.

The point he made, I think--

Unidentified Justice: I'm not sure that was joined by anybody.

Mr. Klein: --It was actually joined by the Chief Justice, but I think that--

Unidentified Justice: That part was?

Mr. Klein: --I believe so, sir.

Unidentified Justice: I was fortunate.

[Laughter]

Mr. Klein: I think the point that Justice White made, which it seems to me is a fair point, that if you're talking about an imply... a damages remedy in a context where it's an unintentional violation, it's difficult, the Pennhurst concern about contractual understandings is appropriate.

Now, in fact we allege, and I understand we have to prove an intentional violation.

The other point I'd like to make, Justice O'Connor, is it at least seems strange to me the notion that when Congress provides Federal funds to a program it would want a less vigorous or less comprehensive scheme of enforcement with respect to civil rights.

I think in fact we ought to basically think that it would be opposite where Federal monies may be misused.

Unidentified Justice: Well, what would you do if you were faced with an unintentional violation, so to speak?

Can there be an unintentional violation of title IX?

Mr. Klein: Of title IX?

Well, I think that is a question that certainly is left open after Darrone.

Darrone suggests there can be an unintentional violation.

Let me say I don't think, I think you do have an issue of contract interpretation, and that seems like a reasonable issue.

In other words, if the States had no reason or the private institution had no reason to think what it was doing was a violation, then you may have a question of whether that's sufficient intent to enforce the Spending Clause legislation against it.

But it seems a very different thing when we allege and if we prove that this is intentional.

It can't be that the State here, or the school district rather, didn't know that this was a violation.

In fact they didn't have in place a mechanism for students to go and complain or make known any concern about this kind of sexual harassment.

They were in flat violation of the regulation.

So any notion that they, so to speak, weren't contractually aware I don't think is indicated here.

Unidentified Justice: Mr. Klein, could the petitioner have pleaded a cause of action under section 1983?

Mr. Klein: I believe she could have, Justice Blackmun.

1983 would apply here, of course, because this was a school board.

Title IX, however, is far broader in its scope and applies to private institutions as well.

And I guess one other point I'd just like to note there, Justice Blackmun, is that I think she is entitled to a claim under 1983, but I think she might run into the argument that, a Sea Clammers' type of argument that title IX has its own remedial scheme and so she might be preempted.

I don't think that's a good argument, but I think it might be raised.

Unidentified Justice: Well, wouldn't she have to show too that there was a policy on the part of the school board before she could sue the school board, rather than individuals who she claimed discriminated under Monell?

Mr. Klein: Well, she would have to certainly meet the criteria under Monell, and I think we can meet those criteria in the--

Unidentified Justice: But it's a criteria you would not have to meet under title IX.

Mr. Klein: --Well, let me say I don't think we'd have to meet it under title IX.

I agree with that.

But I don't know that that issue is necessarily--

Unidentified Justice: So that if, if we upheld your position here, people who had previously sued under 1983 and had to prove a policy under Monell would be relieved of that obligation?

Mr. Klein: --I think that's right, Mr. Chief Justice, but I want to say I don't think that's surprising in the following sense.

Of course, Congress has expressly abrogated the Eleventh Amendment under title IX.

It hasn't done that under 1983.

So I think the notion that Congress intended broader protection under title IX is at least consistent with the one action it took in that regard.

Unidentified Justice: The Eleventh Amendment has never applied either to municipal corporations or to counties.

Mr. Klein: That's correct, but it is applied to States.

Unidentified Justice: Yes, but we're not talking about a State here and we're not talking about a State in the typical Monell situation.

States aren't sued under section 1983.

Mr. Klein: Right.

Maybe I hadn't made myself clear, I don't believe.

What I was trying to suggest is that the notion that Congress might have intended broader protections in general, not specifically with respect to municipalities, under title IX than under 1983 is consistent with the fact that under title IX they eliminated a protection conventionally available for the States.

I agree that has no bearing directly on the cities.

Unidentified Justice: Mr. Klein, what's your position on punitive damages?

Mr. Klein: My position is that punitive damages would be allowed, but I will acknowledge, Justice Kennedy, that that doesn't follow inexorably from the conclusion that compensatory damages would be allowed.

The Court, under section 1983 in cases like Facts Concert, has suggested that punitive damages are a different matter historically and otherwise with respect to municipalities.

And it seems to me at least an argument could be made, it's not an argument I would make, but an argument could be made to that effect in the subsequent case.

This case, of course, only presents compensatory damages.

Unidentified Justice: Mr. Klein, couldn't an argument be made that this isn't covered by 1983?

Mr. Klein: Yes.

That's what I suggested to--

Unidentified Justice: Have we held... have we held that sex discrimination is covered?

Mr. Klein: --Have you held that sex discrimination is covered under 1983?

Well, I don't... I guess what I would say is what you have held is that 1983 applies to the Constitution and the laws, and title IX is a law, and under title IX sex discrimination is barred.

So my argument would be yes, it applies under 1983.

Unidentified Justice: I see what you're saying.

Through title IX--

Mr. Klein: Through title IX.

Yeah.

I don't think... well, I don't think 1983 gives you any independent rights.

It's a remedial--

Unidentified Justice: --Mr. Klein, to the extent that the Eleventh Amendment waiver is at least a relevant consideration for us, is there any clear indication that the intention, the congressional intention in doing that was to open the States wide open to damage remedies as opposed to getting around a more limited Edelman and Jordan?

Mr. Klein: --Yes.

I think there are several... several reasons to come to that conclusion, Justice Souter, and I think they are quite strong.

First of all, of course, Atascadero itself was a case involving compensatory damages and injunctive relief.

Second of all, if you're only talking about an injunctive remedy it seems there'd be no reason to possibly abrogate the Eleventh Amendment.

Unidentified Justice: Well, there wouldn't to the extent that it was merely injunction, but to the extent that equity would be awarding any monetary relief there would be a reason.

Mr. Klein: That is correct.

And then I think, to address that question specifically, the legislative history and particularly this is a statute that was introduced on the floor, an amendment introduced on the floor and Senator Cranston introduced it.

And he flatly states that the purpose of this is to allow all the remedies, including damages, which we have always intended.

And so I think the clear consistent view is that.

And let me suggest there's another at least inferential reason, Justice Souter, and aside from the direct evidence, which is frankly not quoted in my brief but quoted in the brief by the civil rights groups.

But the other reason to infer that is in 1984 this Court hadn't simply upheld back pay under Darrone.

It also said in Smith v. Robinson that the lower courts generally agree that damages are available under 504.

So against the legal climate that Congress was arguing in, I think there's every reason to think it assumed, as the Court had indicated, that damages and back pay were available, once directly, once indirectly.

Unidentified Justice: Okay.

Mr. Klein: I'd like to move back just a moment, if I could, because I think this issue of direct congressional intent bears some elaboration.

I would like to move back and talk first about 1972 and then about post-Cannon congressional intent.

I think they're consistent, but I think there's one difference that becomes important.

Now, first of all, I think, without trying to re-argue the Cannon case, I think one or two key points bear emphasizing, and that is in 1972 when Congress enacted title IX there is no dispute it mirrored it on title VI of the 1964 Civil Rights Act.

It was essentially an analog that substituted sex for race.

Now, title VI... two things had happened, however, that were key between '64 and '72.

Title VI had been consistently and frequently interpreted by the lower courts to provide a private right of action.

Now, no lower court suggested a limitation on remedy.

None.

At the same time between '64 and '72, this Court's cases uniformly made clear that a private, an implied right of action means a right to damages.

That's what the jurisprudence was.

The Court had never uncoupled the notion of an implied right of action from damages.

And in the case that must be most relevant, in Sullivan v. Little Hunting Park, the Court concluded that an 1866 Civil Rights Act included an implied remedy for damages.

So it seems to me under conventional principles still applied by this Court that title IX basically has to be read as incorporating that congressional understanding.

Unidentified Justice: Mr. Klein, was the language of section 1866... rather of the 1866 Civil Rights Act... with respect to remedies the same as the language of title IX?

Mr. Klein: No, no, it was not, Mr. Chief Justice.

Unidentified Justice: Then why does one bear on the other?

Mr. Klein: Because the Court's principle in several cases... it was not just Sullivan, the 1982 case.

What the Court had adopted in Borak, in Sullivan, in several other cases in this era, was if a statute indicates an intent to protect rights we will take that intent and the courts will fully enforce them.

That was the rule.

Unidentified Justice: Well, is that rule, for example, stated in the Sullivan case?

Mr. Klein: I believe... I believe it's flatly stated.

And the rule is, what the Court in Sullivan flatly states, is when there is a cause of action we will make available all remedies to effectuate it, and that was an implied cause of action case.

1982, of course, doesn't contain an express cause of action.

So I think the law was really very settled.

Now I realize that today the law is different with respect to when you might imply a right of action.

But I'm looking at Congress' intent in 1972, and I would submit to the Court that the two principles, that title VI had a private right and that a private right had never been uncoupled from a damages remedy by this Court, were clear at that point.

Then I think, and in fact I think the Court in Cannon itself relied on those cases expressly in reaching the conclusion that there was an implied right of action.

But then I think we should look at post-1979, because it seems to me that whatever doubt Congress might have had about the scope of the remedies under title IX was cleared up in 1979 when Cannon came down because the Court then said yes, you do have a private right of action.

And in 1979 there had never been a case in this Court that had uncoupled a private right of action from a damages remedy.

And I suggest that Congress has taken two actions since then that supports their understanding that damages are available and as well the view that they endorse that understanding.

One is the discussion I had with Justice Souter a few moments ago about the Atascadero statute, the Remedies Equalization Act which I think is fairly read, particularly in light of its legislative history, to support damages.

And second, only last year in the Americans with Disabilities Act which Congress passed it extended section 504.

Now, 504, just like title IX, is based on title VI, and this Court has held that the three statutes in terms of their remedial schemes are read in parry material.

And what the Court held, what Congress did under 504 is to say... under the Americans with Disabilities, pardon me, is to say look, we are now applying a right to programs that don't get Federal monies.

That is 504 said if you get Federal monies and discriminate on handicap, you're not allowed to discriminate on handicap.

Then Congress says we're going to extend that to State and local programs that do not receive Federal monies, and in extending it it says we intend to extend the damages remedy that has been recognized under section 504.

And I suggest to you again that that intent reflects a consistent understanding.

Unidentified Justice: Where is that in your brief?

Mr. Klein: That, unfortunately, and I apologize, Mr., Justice Scalia, that is in the brief of the amici curiae, the American Council of the Blind, and it is discussed on pages 24 through 25.

Unidentified Justice: Does it have the text of the statute?

Does the text of the statute--

Mr. Klein: The statute, Justice Scalia, simply incorporates the remedies available under 504.

It expressly does that.

Unidentified Justice: --So when you say that Congress said, you mean some of the legislative history says that?

Mr. Klein: That's what I--

Unidentified Justice: I wish you'd make the distinction.

Mr. Klein: --I apologize.

Unidentified Justice: Some of us think there's a difference.

[Laughter]

Mr. Klein: What I meant to suggest is the statute expressly incorporates the remedies available under 504.

That's all it says, and what I'm saying is Congress reflected its understanding that that included a damages right.

So it seems to me that we now have a 20-year relationship, basically from '72 to the present, where the Court and Congress have interacted in a way that indicates at least now that damages are under... available under title IX, and I don't think there is any good reason to undo that understanding.

I would suggest that the contrary is actually true because in Cannon the case is almost unique in that this Court announced to Congress that it would apply the legal standards applicable in 1972 to title IX.

That's what it said, and indeed I think it went on to suggest, at least in the concurring opinion, that in the future Congress ought to understand that new rules will govern new statutes.

But that's a very different thing from saying that than telling Congress the 1970 rules apply to the context of this statute.

Now, despite that clear direction to Congress, the Solicitor General and the United States... and the respondent, want to argue here that the Court should apply a completely new view of interpreting title IX.

I would say in response that that... that position is not only unfair given the history we have discussed, but it also quite frankly is wrong under modern standards of applied right of action.

That is to say I think it is fairly concluded based on Thompson v. Thompson that all nine members of the Court reaffirmed a view that Cannon's conclusion that Congress intended a private right of action, that that conclusion was supportable.

In the view of two justices that was based upon the narrower title VI incorporation theory I discussed.

Only then did Justice Scalia, in a separate, in a separate concurring opinion, say he would move the law further and would eliminate implied rights of action altogether.

Under that view I recognize we would not be in court.

However, Justice Scalia said that's not the law.

And he further said if it were to become the law it would have to be applied only prospectively to new statutes when Congress understood what the rules of the game then were.

If there are no further questions I'll reserve.

Unidentified Justice: Very well, Mr. Klein.

Mr. Pearson, we'll hear from you now.

ORAL ARGUMENT OF ALBERT M. PEARSON, III ON BEHALF OF THE RESPONDENTS

Mr. Pearson: Mr. Chief Justice, and may it please the Court:

Our view of the case is that the law as it stands now has developed through the sequence of cases, Cannon, Guardians, and Darrone, to a point where at the most under title IX and similar conditional spending power statutes the relief that would be judicially available would be equitable in nature and nothing beyond that.

We feel that this line between equitable and traditional damages remedies is a rational stopping point in the development of the law, and we would suggest that if... within the context of this case, the Court hold that nothing more than equitable relief be available in the context of a judicial proceeding.

We think that the cases of this Court state the criteria for determining implied cause of action, and we argue also for remedy is governed by congressional intent.

And under that method of analysis our view is no reading of the statute, no reading of the cases of this Court up until now, particularly under conditional spending power legislation, would authorize anything more than equitable relief.

Unidentified Justice: May I ask this one question?

Nobody's talked about the facts of the case at all, and I understand why your argument might have a lot of force if somebody had been denied admission to the school and then injunction could get them in the school or reinstatement of a faculty member, but what kind of... what equitable relief would this plaintiff get?

Mr. Pearson: Well, as far as equitable relief is concerned I think that there are a number of options available to a school system.

Internal discipline of any individuals who would be responsible--

Unidentified Justice: You mean this student should bring suit or to get an order against a discharged employee to be disciplined?

I don't understand--

Mr. Pearson: --If necessary.

Let's back up.

It's a two-step process.

Unidentified Justice: --What in this particular case, what kind of equitable relief could possibly justify even filing the lawsuit?

Mr. Pearson: Well, there are two steps to the process, and I think it's important to emphasize both.

The first is that the agency responsible for enforcing title IX, the Office of Civil Rights, was called into the process, and the agency in the statute does have a role in trying to achieve voluntary compliance.

That language is used in the statute and that is a predicate to the use of the agency remedy of funding termination.

So I don't think you can lightly disregard what the agency can do administratively.

Unidentified Justice: No, no, I understand, but my question is devoted to a... the plaintiff in the case and the... I gather you assume there is an implied cause of action in the case.

Mr. Pearson: Yeah, we don't question that.

Unidentified Justice: And what is the possible, even theoretical possible remedy that the individual plaintiff in this case could have available that would motivate even bringing the case?

I understand you're saying--

Mr. Pearson: It goes back to the agency remedy, is that the conciliation process can produce internal changes, discipline, restorative measures, restorative--

Unidentified Justice: --But that's not responsive to my question.

Mr. Pearson: --It is because it moots the equity point.

If you take that action and that action is curative and restorative, the action would moot a claim for equitable relief and render unnecessary going--

Unidentified Justice: Moot what claim for equitable... what is the claim for equitable relief that she could ever assert?

Mr. Pearson: --Well, in the context of a student who has been sexually victimized in any way one issue is whether, as a result of the misconduct, she has been fully restored to the educational status she is entitled to under title IX.

Our view of the statute is that the Federal interests vindicated by title IX go to protection and securing of the status of the student in the educational climate, and not beyond that.

Unidentified Justice: But those are arguments for saying there's no need for a private cause of action.

Mr. Pearson: No, sir, they're not, because if the--

Unidentified Justice: You still haven't responded to my question, what equitable relief she could get if she has a cause of action.

Mr. Pearson: --If the school does not restore her to a status that she would have enjoyed but for the discrimination, then she can go into court and say they have acknowledged misconduct but they have not taken enough action to restore me to my pre-act status, and then can ask for the district judge to give additional relief, require additional corrective measures to restore the student to the pre-misconduct status.

That's the focus of title IX, that's the focus of agency oversight.

And in the event that agency oversight doesn't produce sufficient correctives, Cannon allows the student to go into court and says... say OCR, school system, they've gotten together, they haven't done enough, I disagree, will you do more.

That's where equitable relief does survive.

But, I think the advantage of the title IX compliance mechanisms is that you have some way of resolving the issue of whether there has been a violation and what corrective measures need to be taken, and can obviate the necessity of litigation if you can find the remedy to equitable relief.

Bear in mind that if you have a damages remedy it's never moot.

Voluntary compliance can be pursued to the fullest extent possible, but that doesn't moot the damages claim.

And that's the differentiating factor between the kind of mechanism that we have under title IX, and the kind of enforcement mechanism that they are arguing in our view ought to be engrafted onto title IX.

In some cases equitable relief will be unnecessary.

The--

Unidentified Justice: Well, this is one... isn't this one such case on your argument?

In other words, isn't your answer to Justice Stevens' question no, there is no equitable relief which she will seek?

Mr. Pearson: --Well, there is none needed, but steps were taken that were--

Unidentified Justice: Okay.

But the answer is that the student would have no reason to seek equitable relief in this case.

Mr. Pearson: --Not at this point, and that claim was dropped, and it was dropped by virtue of the compliance steps taken by the school system, which were the result of the extant enforcement mechanism.

So we see the interplay between agency oversight and equitable relief to be a complementary enforcement mechanism quite rational in the way in which it operates.

Unidentified Justice: Mr. Pearson, it seems to me you're asking us to adopt a topsy-turvy implication from the statute.

In our system of laws monetary damages is the usual relief.

It's equitable relief that's extraordinary.

You always have... you always have damages and the issue is do you have an equitable remedy here.

You're asking us to just overturn a long historical tradition that I presume Congress has in mind when it legislates.

Damages are the normal remedy.

You argue about whether you have any equitable remedy.

Mr. Pearson: No.

The answer is we're not asking for an inversion of the law.

Take into account the defendant that is being sued in this case.

It is an institutional defendant, a governmental entity, and historically, since Ex parte Young all the way up until the time Monell was decided, the only relief that could be judicially obtained against governmental entities was injunctive in nature.

Unidentified Justice: It isn't that you wouldn't have a cause of action, it's that there was... there was a defense.

It wouldn't lie.

But you had a cause of action for equitable--

Mr. Pearson: Well, we're not disputing the existence of cause of action, but the question is is the remedy that we're talking about in the context of this case somehow an inversion of traditional, established legal priorities, and the answer is in the law, by virtue of the longstanding existence of the law of immunities, equitable relief was in fact the primary exclusive relief against immune institutions, both State by virtue of the Eleventh Amendment and governmental.

Unidentified Justice: --And is this an immune institution?

If it's an immune institution you wouldn't have any problem.

Mr. Pearson: It will... it may be immune institution; it may not be.

There is an argument here in the Court today that the Monell-type standards don't apply, and I assume that they would further argue that the reasoning in Monell ought to be extended to title IX at a minimum.

Now, Mr. Klein's position is we don't want Monell-type standards at all.

In effect what he wants is a damage action against the institution under a statute which provides no remedy against the wrongdoers as individuals.

If you're talking about inverting priorities in terms of morals, at least 1983 provides a remedy directly against the individual wrongdoer, and there is a special, more particularized showing that has to be made in order to impute liability up to the institution.

I think the inversion comes in their interpretation of title IX and the identity of the defendant, and then you look at who the wrongdoer is directly.

And that would be, under their allegations in the case, the individuals who were involved with this student.

So I would disagree with you in the suggestion that we're inverting classical law equity relationship.

Suits against governmental entities have always been treated differently because remedies at law are inadequate and therefore equitable relief has been necessary.

Ex parte Young fiction was the origin of that in modern litigation, and it is carried all the way forward into the contemporary era, and in fact lots of statutes view this, I would assume, as being such a strongly held principle that they exempted local subdivisions from the scope of their laws.

Title VII, for example, was... did not cover State and local political subdivisions until it was modified in 1972.

So we feel like that if you look at the contemporary context within which title IX was enacted and at statutory antecedent, title VI, the basic law was no damages remedies against governmental defendants.

The structure of the Civil Rights Act of '64 is totally consistent with that premise.

Injunctive relief... where legal relief is available under that statute, every title, every one, nothing more than equitable relief.

Every title deals with intentional discrimination.

And the conjunction of title VI with those other titles, it seems to me, argues powerfully that what was contemplated under title VI was injunctive relief, and the law that was being assimilated in title IX was injunctive relief.

Look at the title VI litigation between 1964 and 1972.

I tried to cite as many of the cases as I could find in my appendix.

Not one case did we find where the litigants even asked for any remedy other than injunctive relief, except for the few cases that drew in the analogy of the title VI equitable relief model.

And some of these cases are cases where the 1983 claim was a parallel claim, where you have a damages remedy.

Nobody asked for conventional damages, and surely nobody asked for punitive damages.

It seems to me when you look at these kinds of factors the case is compelling that neither title VI, title IX, or any similar legislation has ever contemplated the sort of damages remedy.

We ask, then, that the Court affirm the ruling of the Eleventh Circuit.

If there are no further questions, the Solicitor General has time allocated in this case.

Unidentified Justice: Very well, Mr. Pearson.

Mr. Nightingale.

ORAL ARGUMENT OF STEPHEN L. NIGHTINGALE ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENTS

Mr. Nightingale: Thank you, Mr. Chief Justice, and may it please the Court:

The governing principle in this area, we submit, is that petitioner is entitled to pursue only those remedies that Congress has authorized, and in determining what Congress has intended we further submit that there is no factual or theoretical basis for presuming that Congress approaches statutory remedies on an all-or-nothing basis.

In other words that it... when it sets out to create a private remedy it conceives of remedies in units called causes of action and delegates to courts the authority to fill out those causes of action in whatever manner courts consider appropriate.

Indeed in the context relevant to this case, experience suggests precisely the opposite.

There is no dispute that title IX was patterned after title VI of the Civil Rights Act of 1964.

None of the titles, none of the private rights of action created in the Civil Rights Act of 1964 provided for traditional legal damages.

Title VII provided for an expressed right of action for equitable remedies including back pay.

Title II provided for preventive relief.

Two other titles reserved whatever remedies were available from other sources but created no private remedies.

And indeed the most aggressive advocates of private remedies in 1964 in the context of title VI suggested only a provision that would have authorized private parties to seek preventive relief.

Justice Scalia, I submit that there is no basis for believing that Congress in this area conceives of the traditional legal remedy of damages as being the remedy of choice.

The experience suggests that Congress has thought of equitable relief as the more likely remedy.

The Court has also abandoned, in the context of statutory remedies, the presumption that a grant of subject matter jurisdiction authorizes the courts to grant whatever remedies courts may consider appropriate to vindicate rights.

In Davis v. Passman the Court made clear that that... that it will continue general Federal subject matter jurisdiction as a basis for conferring remedies with respect to violations of constitutional rights, but it has made clear that at the same time that with respect to statutes the touchstone must be congressional intent.

Indeed within a period of weeks after Davis v. Passman the Court issued its opinion in Touche Ross and Redington, indicating that the question of remedies is one of statutory interpretation.

Unidentified Justice: Is it your position then that the language relied upon by the petitioner is from our decision in Bell against Hood is limited to constitutional violations?

Mr. Nightingale: It is, Your Honor.

That is our position.

In Davis v. Passman the Court said as much.

We're... the petitioner suggests that title IX should be construed with respect to precedents preceding its enactment in 1972.

I have a couple of points with respect to that.

First of all, in Allen v. State Board of Elections, which is a case predating 1972, the Court did recognize a private right of action limited to declaratory... declaratory judgment and injunctive relief.

There was, to be sure, no request for damages in that case, but it cannot fairly be said, I think, that the Court has never considered the possibility, even before 1972, that damages necessarily accompanied any private right of action.

Secondly, last term in the Virginia Bankshares case, the Court indicated very clearly that although it would not overrule previously recognized causes of action, that in determining their scope and in rounding them out, if you will, it would refer to the principles that have informed its decisions in recent times.

In that case it was dealing with a cause of action recognized in the Borak case.

Rather than take... than consider principles that might have been in Congress' contemplation in the 1930's, it analyzed the case from the standpoint of its current jurisprudence.

Again, I think the... I'd like to turn briefly to petitioner's reliance on the post-title IX statutes.

I don't believe there is any suggestion that the private right of action that petitioner seeks was created at any time after 1972.

The issue before the Court, in other words, is what Congress intended in 1972 when it enacted title IX.

The 1986 congressional action on its face doesn't tell us very much about what the 1972 Congress itself meant, and therefore we believe that it should not displace the Court's consideration and the materials that were determinative as of 1972.

Beyond that, on its face the text of the 19... 1986 act only says that remedies, including actions at equity and at law, will be available from State entities to the same extent as they would be applicable from private parties.

The goal was to equalize remedies, whatever they might be.

The statute on its face does not recognize any particular remedy against any particular defendant.

Unidentified Justice: This is the 1986 act you're referring to?

Mr. Nightingale: Right, the Equalization Act.

Unidentified Justice: But in this case there would clearly be a remedy against a private school here, wouldn't there, on the facts of this case?

Mr. Nightingale: Not in damages, Your Honor, we submit.

Our position is that the same remedies are available from all defendants under title IX, and they are limited to equitable relief.

The... there is further the suggestion that there has been a unanimous judicial view that damages are recoverable under funding statutes.

In truth there has not been anything of the sort that would justify the Court in assuming that Congress in 1986, or more recently when it passed the other statute on which my opponent relies, was ratifying a consensus here.

Our brief at the petition stage sets forth the rather sharp division among the courts on this issue.

After this Court's decision in Cannon, the Seventh Circuit held that damages were unavailable under title IX.

There was a split among the circuits under the Handicap Act.

And in considering those cases the Court should also be aware that a number of them were decided under the Education for All Handicapped Act and sought sums that in the school committee of Burlington in this case this Court said were not damages.

So that in... casual references in many Handicapped Act cases to awards of damages we think should be taken carefully.

There is at best a split among the courts under these three related statutes, title VI, title IX, and the Rehabilitation Act on the question whether damages, traditional legal damages, are available.

Finally, as a matter of policy and in the context of this statute as a whole there is no reason, we submit, to ascribe to Congress the view that legal damages are necessary for effective enforcement of this statute.

In the only express remedy for a violation of this statute--

Unidentified Justice: When you talk about this statute are you emphasizing the fact that it's a Spending Clause statute?

Mr. Nightingale: --We are emphasizing the fact that the obligation is tied to receipt of Federal funds and therefore we believe it is significant, as members of the Court have suggested, that entities be aware of what sorts of obligations they are accepting.

Unidentified Justice: Well, you're not... I gather then that you're not proposing that we adopt a general rule that anytime we find an implied cause of action in any statute damages are not authorized unless Congress has said so expressly?

Mr. Nightingale: The... what we suggest, Your Honor, is that the Court should approach the materials relating to each statute and determine what remedies Congress has authorized.

We don't believe that Congress approaches this matter from the standpoint of an all-or-nothing analysis.

Thank you very much.

Unidentified Justice: Thank you, Mr. Nightingale.

Mr. Klein, do you have rebuttal?

You have 6 minutes remaining.

REBUTTAL ARGUMENT OF JOEL I. KLEIN ON BEHALF OF THE PETITIONER

Mr. Klein: Thank you, Mr. Chief Justice.

The first point I'd like to make is that respondent and the Solicitor General are here today asking the Court to legislate between back pay on the one hand and damages on the other.

They think that it's a better means of enforcement to allow for back pay and not for damages.

I submit to the Court there is nothing in what we have talked about today, in the legislative history, in the enactments, in this Court's decisions, that would make that distinction tenable.

And the Solicitor General significantly did not tell the Court what in the legislative history, what in the statute supports back pay and not damages.

The second point that I want to emphasize is that respondent's argument about money not being available against cities and States is flatly inconsistent with the back-pay remedy.

All of these arguments about immunity cannot be squared with back pay.

They apply equally.

Second of all in that regard, respondent tells us there was no back pay, there was no monetary remedies against States and cities during this era.

Then he says let's look at the cases from '64 to '72 under title VI.

And what does he say?

He said they all had 1983 actions, but he's just told us that 1983 doesn't provide damages or back pay against the cities.

So these title IX claims were the ones that provided for the monetary relief.

Finally, I would submit, we have seen a fair amount of historical revisionism here.

I asserted in my opening argument and I will stick by it, if you read the Court's precedents between '64 and '72, which I suggest is the critical period because that's when title VII, title VI, and title IX were passed, the one mirrored on the other, those cases say if you have an implied right of action you have damages.

The Solicitor General says look at the Allen case.

I welcome the opportunity.

Allen provides... Allen was a case involving enforcement of section V of the Voting Rights Act.

All that section V provides is for preclearance.

So the only possible remedy in that statute would be an order declaring or enjoining the preclearance of the statute.

There could not have been damages.

The other cases that I discussed uniformly accept damages.

Finally, during the period '68... during the period 1964 to 1972... again, the crucible I think we want to look at for '72 intent... not only had Congress passed the Fair Housing Act, which included expressly a damages... which included a damages remedy expressly under civil rights enforcement, not only had this Court come down with Little Hunting Park, Sullivan v. Little Hunting Park, which included a damages remedy under another civil rights statute, but in addition to those events the key point is that the notion that this would be an effective statute, Justice Stevens, without damages for students is an untenable one.

And the reason I say that is, look, what does respondent and the Solicitor General say?

Here we have a statute that applies to schools, and they say you can get back pay under it.

But who are the beneficiaries, the primary beneficiaries?

They are obviously students.

That's what Congress had in mind.

And for students back pay is useless.

Now, to be sure, any remedy can be mooted out, as respondent suggests, if you give people what they want.

And if they gave our client the damages she is entitled to we wouldn't go to court either, but it is strange to think that Congress would have implied a remedy for back pay and not for damages under a statute where back pay is meaningless for most people.

Unidentified Justice: Mr. Klein... unless they had teachers... they thought that most of the discrimination would be against teachers rather than students.

I mean, that's one--

Mr. Klein: That's a feasible hypothesis, but I think it's belied by the following, Justice Scalia, and that is of course the same year they passed 19... title IX they extended title VII to public and private... to public entities including schools.

So they already had the teachers covered.

Unidentified Justice: --Can I ask you, Mr. Klein, whether any of the subsequent statutes that you talk about, the ones following title IX, you cite them to show Congress' understanding of... they imply an understanding of title IX.

Is there any disposition that they provide for which would be altered if we did not adopt your understanding of title IX?

Mr. Klein: I want to be careful in answering this question to you in particular because what I said before which I think is right is the Americans with Disabilities Act says that it incorporates the remedies under 504.

Now, I understand that on its face that means whatever the remedies are, that's what they are.

What I suggest to you is that Congress in the legislative history indicated that it understood and intended those remedies to include damages.

On the face of the statute, no.

Unidentified Justice: So if we should change and provide a lesser remedy for title IX we would also produce a lesser remedy for later enacted legislation?

Mr. Klein: That is my... I think that is a clear inference of what I've just said.

And the final distinction, if I might before I sit down, is let's look at the difference between a statute like title VII on the one hand and the Fair Housing Act and title IX on the other.

For most employees back pay is going to be a meaningful remedy.

It may not be a complete remedy, but it's going to be a remedy that's going to ensure enforcement of the statute because it's a significant one.

In Fair Housing, 4 years before title IX, Congress says you can get damages.

And why does it say that?

Because in the Fair Housing context, by the time you get an injunction, it's too late.

Chief Justice Rehnquist: Your time has expired, Mr. Klein.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

New York State Club Assn. v. New York City - Oral Argument

Wed, 13 Apr 2011 20:10:38 +0000

Case:

New York State Club Association. v. City of New York

Media File:

86-1836_19880223-argument.mp3

Related Transcript:

86-1836_19880223-argument.xml

Transcript:

ORAL ARGUMENT BY ALAN MANSFIELD, ESQ. ON BEHALF OF APPELLANT

Chief Justice William H. Rehnquist: We will hear argument first this morning in Number 86-1836, New York State Club Association versus the City of New York.

Mr. Mansfield, you may proceed whenever you area ready.

Mr. Mansfield: Mr. Chief Justice, and may it please the Court, this case presents a classic conflict between competing American values, the fundamental right of our citizens to associate, elect who their friends will be in places which are private social settings and the state's interest in providing equal opportunities for people in places which are public.

To foster equal opportunity, places like New York City and other jurisdictions throughout the country have enacted public accommodations laws.

These laws in places again which are truly public prohibit discrimination, but to secure the personal liberties which are basic to our society and which permit social clubs to exist in the first instance, New York City's law, like many other jurisdictions, exempts private clubs from the definition of place of public accommodation.

This exemption strikes a fair balance between the competing values to associate on one hand and the state's interest in antidiscrimination principles on the other.

Local Law 63 is an amendment to New York City's public accommodations law, and specifically to the distinctly private club exemption.

Its irrebuttable presumption based on a crazy guilt three-prong test impermissibly precludes a club from demonstrating relevant factors.

Unidentified Justice: Mr. Mansfield, it isn't clear to me from the opinion below of the New York Court of Appeals that that court necessarily viewed the three factors as an irrebuttable presumption.

I notice that is what you are saying this morning and in your brief.

Certainly your opponent in the case says that it doesn't create an irrebuttable presumption but rather a presumption that then has the effect of, I guess, shifting the burden of proof but leaving it open to the clubs to nonetheless show by any means that they are indeed private.

Mr. Mansfield: The Corporation Counsel's brief in fact takes that position now for the first time.

Looking at the Court of Appeals decision itself, however, I think, makes quite clear that for purposes of a club which is claiming a right to private association, that club is bound by an irrebuttable presumption.

The context in which the Court of Appeals was writing was NYSCA's challenge under the state constitutional inconsistency provision that the three prongs of Local Law 63 were inconsistent with the general law of the State of New York.

New York State has a statute which is a statewide provision which is also a public accommodation statute, and it has a distinctly private exemption, just like the old New York City law did.

The Court of Appeals in the Power Squardons case had construed that exemption.

NYSCA argued below that the three prongs of Local Law 63, again under the state constitution, were inconsistent with the five prongs of Power Squadrons.

The Court of Appeals rejected that argument on the ground that the five prongs of Power Squadrons were permissive factors, and since they were permissive, then another jurisdiction would be free to pass consistent provisions, and the Court of Appeals held that the three prongs were consistent.

The critical point here, though, is that or purposes of determining that a club is not distinctly private, a trier of fact sitting in the City Human Rights Commission is entitled to look at as many factors as he or she wishes.

To that extent indeed it is permissive, but once a club meets the three prongs, it is deemed to be not entitled to the distinctly private exemption.

The purpose--

Unidentified Justice: In the sense of creating a presumption so that it shifts the burden of proof to the club?

Mr. Mansfield: --It becomes irrebuttable.

It is not a strong presumption.

Unidentified Justice: But that is exactly what your opponent says is not the effect of the New York Court of Appeals opinion.

What are we supposed to do with that?

Do you want us to reinterpret state law, local law?

Mr. Mansfield: I don't think that would be necessary.

I think the Court of Appeals decision is quite clear on its face.

The Court of Appeals says at Page 11A of the record that once a club meets the three factors it is deemed to be large and not selective enough to be entitled to the freedom of association.

Indeed, this is the position that Corporation Counsel has argued throughout both in this litigation and in the enforcement proceedings which are pending in the State of New York.

In the reply brief I have cited a memorandum of law submitted by Corporation Counsel after the Court of Appeals decision came down in which it takes the very same position that seems to us to be clear from the face of the record.

There is not an ambiguity here in state law determination.

Unidentified Justice: What about the ordinance itself?

Does it provide for... does it permit a club to claim that even though it satisfies the criteria, that its constitutional rights are being violated?

Mr. Mansfield: It does not, and to the contrary the language of the statute could not be more clear.

The statute says that an institution, club, or place of accommodation shall not be considered in its nature distinctly private if it meets the prongs.

Unidentified Justice: So the effect of the ordinance is that case by case determination of constitutionality in application is precluded.

Mr. Mansfield: It is precluded.

Once a club meets the three prongs it is automatically in violation of city law if it discriminates in any fashion.

The purpose again of the private club exemption was to strike that fair balance between competing American values.

Local Law 63 is in fact an irrebuttable presumption based on these three factors.

Unidentified Justice: When you say irrebuttable presumption you really mean that the law means what it says, I guess, that when these three factors are present the law shall be such and such.

Mr. Mansfield: That is exactly correct.

Unidentified Justice: And there are an awful lot of laws like that.

Mr. Mansfield: That's correct, Your Honor.

I understand that many statutes necessarily draw lines of all kinds, and some will be impacted by it, some won't.

The point here, however, is that the analytical framework for a club's exercise of its freedom of association has set forth in two of the decisions of this Court, first in Roberts and later in Rotary, just last term, this Court without dissent set forth the proper analytical framework, and that framework said that a club should be able to demonstrate and a trier of fact should carefully assess all of the objective characteristics which would be relevant to determine whether a club is or is not private.

The Court went on in both of those decisions to identify the kinds of factors which should be considered.

Those factors included the purpose of a club.

Unidentified Justice: But neither of those opinions purported to be drafting manuals for statutes.

Mr. Mansfield: I agree, Your Honor.

However, I think that both of those opinions were setting forth a constitutional framework.

Both were considering the competing values again of the freedom to associate, and when that freedom to associate can attach, and the fact that a private club may under some circumstances be entitled to exercise that freedom to associate, that members of that club have the right to choose who their friends will be free of government regulation, free of government scrutiny of the membership policies and operations of the club.

That framework is decidedly different from the tack that Local Law 63 takes, whereas the Roberts and Rotary rationale are solicitous of claims to the freedom of association--

Unidentified Justice: How did this case get started?

Mr. Mansfield: --This case was started in the State Court in New York City.

It was a--

Unidentified Justice: By your client?

Mr. Mansfield: --By my client, the New York State Club Association.

Unidentified Justice: And you mounted a facial attack, didn't you?

Mr. Mansfield: It was a pre-enforcement facial attack.

Unidentified Justice: And so your claim was that the law could not be constitutionally applied in any way?

Mr. Mansfield: That it could not be constitutionally applied in any case, and that it was overbroad on its face, yes.

Unidentified Justice: And you think overbreadth applies in this context?

Mr. Mansfield: I think overbreadth does apply in this context because there are--

Unidentified Justice: Well, this is sort of a commercial regulation, isn't it?

Mr. Mansfield: --The provision may have intended to be a commercial regulation.

It may have been the legislative intent to--

Unidentified Justice: Well, let's assume for a moment that the overbreadth analysis does not apply.

Would you still win?

Mr. Mansfield: --I think we would win, Your Honor.

Unidentified Justice: Because in any single case... there is no case you can imagine where this law could be constitutionally applied?

Mr. Mansfield: That's correct, because the law employs a fundamentally incorrect analysis of the freedom to associate, whereas the Court in Roberts and Rotary thought that factors again such as selectivity in beginning and maintenance of a relationship, the exclusion of others from critical aspects of the relationship, that those should be the factors which would determine whether a club's members can decide whether they can have their own friends free from government intrusion, but that is a constitutional standard.

The irrebuttable presumption, the three prongs take a decidedly different tack.

Unidentified Justice: Under the JC and Roberts case is size ever relevant?

Mr. Mansfield: Size is relevant, and in fact, Justice--

Unidentified Justice: Do you think the fact that regular meals are served is relevant?

Ever?

Mr. Mansfield: --It wasn't mentioned, although we believe it is a relevant factor, perhaps not the most probative.

Unidentified Justice: Is a relevant factor?

Mr. Mansfield: A relevant factor.

Unidentified Justice: Is receipt of payments on behalf of nonmembers relevant?

Mr. Mansfield: It, too, would be a relevant factor.

Unidentified Justice: Can you imagine no case in which those three relevant factors would combine to result in a non-private status for a club?

Mr. Mansfield: Well, it is conceivable that there is a class of cases in which a club, for example, like the Rotaries or the JCs under any test, even if one employs a fundamentally wrong premise, would have the same result, that doesn't make the test any more constitutional, much like in the Court's decisions in Munson and Schaumburg.

In Munson and Schaumburg, it is conceivable there would have been those out there trying to solicit funds who were engaged in fraudulent charitable activities, so the overbroad law as applied to that class of individuals would have the same result as if the law were more narrowly fashioned.

It is the same here.

There are--

Unidentified Justice: We are assuming no overbreadth here.

I mean, that's... I thought this whole discussion was on the assumption of no overbreadth principle applicable.

Mr. Mansfield: --The Court has used overbreadth in two distinct contexts, as Justice Brockman pointed out in the Munson case, both that the law is unconstitutional with respect to the facts that are set forth by the plaintiff and also in the classic sense of overbreadth where even if the law properly regulates the conduct of plaintiff, nevertheless there are others whose rights will be chilled.

And indeed we make the challenge to this law on both grounds, but with respect to the class of clubs represented by the New York State Club Association, this law, because again it employs, just like in Schaumburg and Munson, a fundamentally misguided test, it would be unconstitutional in every application.

Unidentified Justice: If overbreadth doesn't apply here, then, as Justice Kennedy points out, under any conceivable circumstances a club in which these three factors are present would not be subject to constitutional protection.

A facial attack ought to fail.

Mr. Mansfield: Again, it is an irrebuttable presumption.

It prohibits any club, and the clubs represented by the New York State Club Association, to show that there are other factors.

Unidentified Justice: I don't think your irrebuttable presumption argument really does you much good.

That just may be my own opinion.

It is a law setting down a standard and saying if something meets this standard it is subject to these rules.

Like if you drive 35 miles an hour, you are subject to a reckless driving charge.

If you drive 75 miles an hour, you are not allowed to adduce evidence that you really were driving carefully.

Now, there is nothing wrong with a law like that, is there?

Mr. Mansfield: What is wrong with this particular law is not that it draws lines, but that the three prongs that it has chosen to look at are demonstrably different from the constitutional analysis the Court set forth in Roberts and Rotary.

The very factors which a club would want to show to demonstrate that it should be entitled to practice the freedom of association, those very factors are precluded by Local Law 63.

Once a club meets the three prongs, it cannot show a trier of fact for purposes of winning the exemption that it would otherwise have been... have sought refuge under Roberts and Rotary, that the kind of analysis that the Court engaged in both looking at the Rotaries--

Unidentified Justice: Can you imagine any club that... where any such a claim would be... would just always fail?

Mr. Mansfield: --Not a club which would otherwise be protected by Roberts and Rotary.

Unidentified Justice: Well, I know, but you are saying that every club that you can imagine would have... this law would, if it were applied, would be unconstitutional?

Mr. Mansfield: I am saying that the law is premised on a fundamentally misguided and wrong test, and just as Your Honor's decision in Schaumburg pointed out, the 75 percent rule was a fundamentally misguided test.

The fact that the village of Schaumburg sought to eliminate fraud was a bona fide--

Unidentified Justice: Well, I know, but let's suppose that we agreed with you they applied the wrong test, and we said, well, the right test is so and so but this law is perfectly constitutional under the right test.

You wouldn't affirm... you wouldn't reverse the judgment below, you would affirm it.

Mr. Mansfield: --The judgment below should be reversed because the test is fundamentally in error, and in error with respect to the constitutional analysis that is required by Roberts and Rotary.

The mere fact that it is--

Unidentified Justice: Well, suppose we thought that applying the right test, if this... if the test below was wrong, if we applied the right test, suppose we thought the ordinance passed constitutional muster?

We would affirm.

Mr. Mansfield: --If in fact the test was a right test, if in fact the three prongs met all of the constitutional concerns set forth in Roberts and Rotary, then in fact the Court would affirm on that part of the argument.

With respect to the overbreadth part of the argument, on the other hand, which clearly would apply here because the other wing of the freedom to associate is the freedom for expressive association, and of course the right of clubs to get together, of political organizations to get together which are clearly protected under the expressive association cases, was chilled by this law.

If it has 400 members, if it has regular food service, if it has regular receipt of income under the third prong of the test then it would be forced to take in a member it may not wish to have, which could very well, just the admission of that member, interfere with the definition and purpose of the club.

Unidentified Justice: Mr. Mansfield, can I ask you a question about the group that your client represents?

In the NAACP case on which you rely heavily, Justice Harlan points out the importance of the freedom to engage in association for the advancement of beliefs and ideas, which seems to me may be a concept somewhat different from merely a social organization that is purely social.

Does the record tell us how many of the members of the association are engaged in the advancement of some kind of ideas of a political type as opposed to merely a social organization?

Mr. Mansfield: The clubs represented by NYSCA are primarily those which are social clubs, clubs which are organized four purposes of social intercourse and recreational pursuits.

Unidentified Justice: Do you think the same standard applies to that kind of a first amendment claim as one... as the standard applies in the NAACP context?

Mr. Mansfield: I think it is, Your Honor.

Unidentified Justice: You think there is the same... there is an equal importance in protecting that kind of association?

Mr. Mansfield: I think the Court has in the past talked about the freedom of association protecting not only the direct advancement of beliefs but in Coats versus City of Cincinnati the Court mentioned that social expression was equally protected.

I don't think the Court should engaged in a sliding scale of protection with respect to that kind of freedom.

Unidentified Justice: Isn't it a difference where some people were killed, which is true in the Alabama one?

Mr. Mansfield: Well, I understand that in--

Unidentified Justice: Isn't there a little difference?

Mr. Mansfield: --I think that--

Unidentified Justice: Isn't there a little difference?

Mr. Mansfield: --I think that the facts are very much different, but I think the principle is very much the same, and that the freedom of association is in fact a fundamentally protected right.

Unidentified Justice: Mr. Mansfield, you have to acknowledge at least this difference, that where what is being defended is association on the basis of furthering ideas, it doesn't matter how large the organization is, it could be the American Civil Liberties Union or any nationwide organization with thousands of members, whereas we have made it clear that the associational right that we have referred to where such political or ideological purposes do not exist only applies to intimate association.

We never talk about intimate association as far as political belief is concerned, do we?

Mr. Mansfield: Well, that is correct, Your Honor.

There are two prongs of the freedom of association.

In Roberts and in Rotary, both of those clubs were analyzed under both prongs, the first, the right to private association, a right which derives out of the liberty clause of the Constitution; the second was a right of expressive association, which finds its roots more directly in First Amendment cases.

These are two aspects of the freedom to associate.

Unidentified Justice: And we give more protection to one than to the other.

Mr. Mansfield: Once an association, an organization a couple is protected by the right of private association, indeed, I believe that is given more protection than expressive association.

The state would not be able to enter into intimate relationships which are protected by the liberty clause, and I think that the analysis of Roberts and Rotary was to determine whether a social club can be protected under that same line of cases, the cases that began with family rights involved.

Unidentified Justice: Yes, but would you not agree that the size factor is quite different in the political context than in the intimate association context?

You couldn't claim the same right of intimate association for 100,000 people that you could for a political group.

Mr. Mansfield: Well, I think that's correct, and I think certainly as Justice Brennan pointed out in Roberts, relative smallness is one of the factors that should be considered.

Unidentified Justice: And your position is, 400 is, as a matter of constitutional law, it has got to be bigger than that.

At what line would you say that the number would be such that there would no longer be the right of intimate association?

Mr. Mansfield: I don't have a guideline to offer the Court.

Unidentified Justice: Your position is, there can be no flat guideline?

Mr. Mansfield: I think there shouldn't be, and I think that's what Justice Brennan meant when he said relative smallness, not just smallness.

Indeed, the JC's local that was before the Court in the Roberts case had... were in itself sufficient to defeat any constitutional right, the Court would not have had to go forward in the decision.

It could simply have thrown the case out on the ground of 400.

Instead, the Court focused on relative smallness.

When you look at the 400 prong of Local Law 63, we can look at such features, for example, as continuity of the relationship.

Is the core of the 400 the same group of people who have been together for a long period of time?

Who uses the club on a regular basis?

Is a small percentage of the total membership really the percentage of people who use the club day in and day out?

These are at least relevant factors that a trier of fact should be able to take into consideration in determining whether the club meets the relative smallness analysis of Rotary.

Unidentified Justice: May I ask you if you would make the same argument about the New York statute if one of the prongs instead of a substantial amount of business activity said, and 100 percent of the members regularly, that is, at least once a week or once a month, transact some kind of business in this place.

Mr. Mansfield: I think that would be a much closer case, and certainly a trier--

Unidentified Justice: Do you think that would also be invalid, though, do you?

Mr. Mansfield: --If it were, again, an irrebuttable presumption.

Unidentified Justice: Yes.

Mr. Mansfield: If it made it so that in determination of whether you have constitutional rights or not, was not three prongs and you are out.

As long as you would be able to demonstrate that notwithstanding the commercial aspect there are reasons that you might still be private.

Local Law 63 is a good example.

The third--

Unidentified Justice: Well, maybe the reason is that businessmen like to do business with men.

Is that a sufficient reason?

Mr. Mansfield: --That may not be, but the third prong of Local Law 63 nowhere on its face requires that the business activity be substantial.

It doesn't even require that it be significant.

Under the regulations which were before the Court of Appeals, indeed, it can be trivial.

The fact that there is trivial business that is conducted at a club should certainly be a relevant feature.

The third prong, while it does have a business component, as Justice Greenfield put in his decision denying our motion for preliminary injunction, doesn't even make sense with respect to furthering the purposes of the law.

Unidentified Justice: Wouldn't, on trivial, if you turned it on whether it was trivial or not, the business of the club presented to this Court, wouldn't you get nine different points on the word "trivial" as applied to a club?

Mr. Mansfield: You might very well.

Unidentified Justice: So why bother with it?

Mr. Mansfield: Because I believe, Your Honor, that the analysis in Roberts and Rotary at bottom said that a club should be able to at least try to prove before a trier of fact every probative factor.

If the club is--

Unidentified Justice: As to whether it is 400 or 402.

Mr. Mansfield: --And if the 400 people are the same 400 people--

Unidentified Justice: Or 401.

Mr. Mansfield: --or others, and with respect to the third prong--

Unidentified Justice: Do you agree that the experience in New York of enforcing its other civil rights law is far from perfect today?

Mr. Mansfield: --I would agree with that, Your Honor.

Unidentified Justice: So this was an effort to straighten it out.

Mr. Mansfield: It was an effort.

Unidentified Justice: And you want to torpedo it.

Mr. Mansfield: We don't challenge the legislative purpose.

At stake here is not the question of whether a legislature can pass a law in which it seeks to provide equal opportunities in places which are truly public.

What is wrong about this law is the means that was chosen.

That is what violates the Constitution.

The fact that it can be trivial income to a club, the fact that income could have nothing to do whatsoever with the business of the members, thus if it is a small club, and in order to make its real estate tax payments without raising dues beyond the limits of the club members, it rents its facilities out on a weekly basis, rents it out to a local business to use for cocktail parties, none of the club members attend that cocktail party, and none of the people who are at the cocktail party have any right to any aspect of the club.

At least that factor should be relevant to determining whether these clubs are marketplaces.

The objective of the legislature is not drawn into question in this litigation.

If indeed the Local Law 63 was addressed to pointing out just marketplaces, what the preamble says that the legislature was seeking to open up to the public, that would be one thing, but it chose Local Law 63.

Local Law 63 is fundamentally in contrast to--

Unidentified Justice: Well, your Court of Appeals said it is not unreasonable to determine that a large club which received substantial business-related income from nonmembers, that the law can reach, constitutionally reach clubs like that.

Now, that is a construction of this ordinance, isn't it?

Mr. Mansfield: --I believe it is not a construction of the ordinance.

It is simply saying that if there is substantial income and large clubs, that that would be consistent with the Roberts analysis for determining that a club is not distinctly private.

This particular ordinance has been construed by administrative regulations.

Those administrative regulations issued by the City Human Rights Commission say quite clearly that the receipt of nonmember income for as many weeks as the year that the business... the club is in operation is sufficient to meet the term "regularly".

Therefore trivial income, if one member of a club of 450 on a weekly basis takes one client to lunch, and deducts that payment, even though the rest of the club members engaged purely in recreational or social activities, even though the $520 of 52 $10 chits are a tiny proportion of the club's revenues, the third prong attaches.

That is the way the regulations construe it.

That was before the Court of Appeals.

Unidentified Justice: Well, it just isn't what the Court of Appeals said.

Mr. Mansfield: The Court of Appeals said that large numbers and substantial business would in fact be relevant factors under the Roberts rationale.

The Court of Appeals was simply dealing with the issue of permissive factors and the kinds of things that could be looked at.

Again, what the Court of Appeals was not saying was that a club that meets the three prongs could ever establish that it is entitled to the exemption.

Unidentified Justice: Well, would you say that... I suppose you would say that even if the club received what you would agree is substantial income from nonmembers connected with business, you would say that this law is unconstitutional with respect to those clubs, I guess.

Mr. Mansfield: I would say that it might be.

I would say that unless that club that received the substantial--

Unidentified Justice: Well, can you think of a club that the ordinance could constitutionally be applied to?

Mr. Mansfield: --I can't because it is a fundamentally misguided test.

There is an entire class of clubs--

Unidentified Justice: No matter how substantial the return from nonmembers is.

Mr. Mansfield: --If it is substantial enough, then that club would not be protected by Rotaries or Roberts in the first instance.

The class of clubs which are protected, which is protected under the Rotaries and Roberts rationale will for all purposes have their rights violated by the three prongs of Local Law 63.

It is very much the same as in Schaumburg, where there could have been a class of fraudulent solicitors, and they would be properly regulated under the law, but any charity which was properly engaged in First Amendment activity would have its rights violated by the 75 percent rule.

The law is also violative of the equal protection clause of the Constitution in that it improperly... I see my time is up.

Thank you, Your Honor.

Chief Justice William H. Rehnquist: Thank you, Mr. Mansfield.

We will hear now from you, Mr. Zimroth.

ORAL ARGUMENT BY PETER L. ZIMROTH, ESQ. ON BEHALF OF THE APPELLEES

Mr. Zimroth: May it please the Court, if I might just begin by addressing a question that Mr. Justice White addressed to Mr. Mansfield in which I think you asked whether or not this law precludes on a case by case application the constitutionality, that is, that the court or the administrative agency in New York is precluded somehow by this statute from considering whether or not the application of the statute is constitutional or not.

That in fact is what Mr. Mansfield means by irrebuttable presumption.

He means that this statute says to the state administrative agencies and the state courts, you are not allowed to look at constitutional considerations.

It is really, frankly, silly.

I mean, you don't have to have a specific statement in the statute saying this is the statute, but by the way, if it is unconstitutional as applied to a particular case you shouldn't apply it.

I mean, every--

Unidentified Justice: Well, Mr. Zimroth, is it open to a particular club in the City of New York faced with a challenge before the Human Rights Commission to come in and offer evidence that it believes demonstrates the business activities are not substantial even though they would technically meet the third prong of the ordinance?

Mr. Zimroth: --If the--

Unidentified Justice: Does the club have a right--

Mr. Zimroth: --Absolutely.

Unidentified Justice: --to have that evidence--

Mr. Zimroth: Absolutely.

Unidentified Justice: --considered?

Mr. Zimroth: Absolutely, in the context of the club saying that this statute is unconstitutional as applied to me, to my club.

Absolutely.

Unidentified Justice: You can't find that provision in the ordinance.

Mr. Zimroth: No, you can't.

You can't find it in the U.S. Code most places either.

Unidentified Justice: Well, I know, but you can't find it in the... as I read the Court of Appeals' opinion, it just seems to say that when the three prongs are proved, that is the end of the ball game.

Mr. Zimroth: That is the end of the statutory ball game.

It is not the end of the constitutional... how could it be the end of the constitutional ball game?

If the statute is unconstitutional as applied to a particular club, the City Human Rights Commission is bound not to apply that statute to that club.

Unidentified Justice: Of course, but Mr. Zimroth, if that is enough to prevent a facial challenge, then there can never be a facial challenge because every statute is always subject to a constitutional challenge as applied.

Mr. Zimroth: No, that is not correct, Your Honor.

Unidentified Justice: It is not?

Mr. Zimroth: No.

The last part is correct.

Right, the last part is correct, but it does not follow that because the last part is correct, that every overbreadth challenge fails.

The overbreadth challenge is in effect saying that in most of its applications, in most of its applications this law would be unconstitutional.

Mr. Mansfield in four years of litigation has not come up with one club that it would be unconstitutional to apply it to.

Unidentified Justice: You are switching to overbreadth... I am sorry, go ahead.

Mr. Zimroth: You asked a question about overbreadth.

One other point.

Even though it may not be in the words of the statute, I don't think it needs to be in the words of the statute, I will just cite an opinion by Mr. Justice Rehnquist in the Commission against the Dayton Christian Schools.

"Even if Ohio law is such that the Commission may not consider the constitutionality of the statute under which it operates, it would seem an unusual doctrine to say that the Commission could not construe its own statutory mandate in light of the federal constitutional principles. "

Unidentified Justice: Yes, but that is very different, because here you have construed your own statute, and if I understand your argument now, you are saying, well, maybe it is unconstitutional as to some of these clubs, but they can raise that in due course.

That is just too bad.

Mr. Zimroth: No, I am saying that even if the Court of Appeals said nothing on the subject, they would be open, the club would be open to make this argument.

The Court of Appeals did say something and they did construe the statute, and they construed it in, contrary to what Mr. Mansfield said, specifically in light of his argument in the Court of Appeals that this was an irrebuttable presumption.

Unidentified Justice: Let me interrupt you again if I may, please.

Mr. Zimroth: Sure.

Unidentified Justice: Do you agree that if these three prongs of this test are met, I don't care whether it is irrebuttable or not, assume that those are met, could they be met and could a club still have a constitutional right to deny membership to a minority group?

Mr. Zimroth: Let me say this.

I think--

Unidentified Justice: It is a simple question.

Mr. Zimroth: --Yes, I am going to answer.

I think that it is... I can't think of such a club, but I am not going to stand here and say that in the fertile imagination of man or woman, that you can't think of a hypothetical.

For example, you might have an advocacy group that meets all these criteria.

I haven't heard of any such advocacy group in New York City.

I mean, we are talking about clubs like the New York Athletic Club.

Unidentified Justice: Well, I can give you a hypothetical.

Supposing the Society of Divorced Men, who think they are discriminated against in the administration of the domestic relations laws, formed a group of 450 and they regularly met, they had some people who paid their bills, they did some business, and all the rest.

Could the law be applied to them?

And they thought it would further their purpose to exclude women from their organization.

Mr. Zimroth: I think that it would be a hard case, but even if I would assume, or even if you would assume that in that particular application it would be unconstitutional because of the particular advocacy purpose, what does that have to do with this statute?

This statute purports to regulate after a very lengthy hearing what really is going on in New York City.

No one brought to the attention of either a court or of a--

Unidentified Justice: What is such a club supposed to do in its day to day operations if they see this statute, they say we understand the city is going to prosecute everybody that violates it, we are in violation.

Should it change?

Does it have a duty to change?

Mr. Zimroth: --No, it does not have a duty to change.

The burden is on the City Human Rights Commission to bring a proceeding against that club.

It doesn't have to do anything until that entire proceeding is adjudicated both in the Human Rights Commission and in the court.

And if at the end of that process, in which that club will say, even though hypothetically my club meets the standards because we are an advocacy group and we are small enough and all of the other standards that we are constitutionally protected, presumably either the Human Rights Commission or the state courts or ultimately this Court will say it is right or it is wrong.

It is only after that that that club would have to change its practices.

Unidentified Justice: What you are really saying is that this statute can be applied certainly to some clubs that come within its definition constitutionally if perhaps it can't some other clubs, and we will just have to find out as we go along.

Mr. Zimroth: That is precisely right.

I would only amend that one way.

That is, I would say that virtually every club that you can imagine in the City of New York that would come within this statute would be constitutional application.

I can't think of a real club in which it wouldn't.

I mean, you can think of hypothetical clubs, but the City Council wasn't talking about hypothetical clubs.

It was talking about real clubs.

I mean, there are--

Unidentified Justice: That certainly isn't the way the Court of Appeals read the statute.

Page 11A, right after the citation to JCs, Part 2 of their opinion, they say, in keeping with these objective and permissive factors, the law in affect deems a club that is large and where much of the activity central to the maintenance of the association involves the participation of strangers to that relationship to have lost any claimed protection of intimate association.

They don't give you the impression that it is going to be a case by case treatment under... once those three factors are met.

Mr. Zimroth: --Well, I mean, they are talking about permissive factors there, and also on the previous page, I believe Page 9A, it says Local Law 63 does not prohibit the city factfinder from considering the test of selectivity or indeed any of the Power Squadron factors.

I would have to concede that the opinion is not crystal clear about that, but this was after all a facial attack, and what the Court had before it is what you have before you, a statute that has criteria that is directly related to what this Court had previously said in the JC case and in the Rotary case.

It looked at the City of New York.

It had very extensive hearings about the nature of these clubs that had very, very substantial business operations.

The president of the University Club estimated that more than half of the income from that fund came from nonmembers.

We are talking about clubs that have millions and millions of dollars of income from nonmembers, clubs that actually advertise to its members saying, please use this club more for business purposes.

Unidentified Justice: Well, Mr. Zimroth, even if your agency that enforces this law would never permit any claimed defense of unconstitutionality as applied, I suppose that you wouldn't necessarily lose this case.

You could still say that, well, there are certainly plenty of clubs to which this law could be constitutionally applied and any claim, any unconstitutional defense would be frivolous.

Mr. Zimroth: I think that's correct.

That is what I am trying to say, that is, if you look at the real life in New York City, it is hard to think of a real club that would have a constitutional claim, that met these three standards and also had a constitutional claim.

Mr. Mansfield after four years of litigation has not mentioned one such club.

He talks about it is possible that the regulation or the statute would be applied in this way.

It is possible in that way.

If you look at what the evidence was before the City Council about the kind of clubs we are talking about, we are talking about large men's downtown business clubs that do a substantial amount of business, but by nonmembers.

Unidentified Justice: Yes, but suppose we don't have all this trouble that you do of imagining a club that would have a good defense on a constitutional basis.

Suppose that is so, and we just disagree with you.

What about overbreadth?

Mr. Zimroth: Well, I agree with you.

That is that just because there exists... the overbreadth doctrine, it seems to me, said that--

Unidentified Justice: Well, because if there are some clubs that this law couldn't be constitutionally applied to, a substantial number of them, and if overbreadth applies, I suppose--

Mr. Zimroth: --Well, that's the point.

This would be--

Unidentified Justice: --this whole statute, ordinance is unconstitutional on its face.

Mr. Zimroth: --It has to be a substantial number of them.

That is, in order for the overbreadth doctrine--

Unidentified Justice: Well, suppose we think there are a substantial number.

Do you think overbreadth applies in this case?

Mr. Zimroth: --I don't because--

Unidentified Justice: Why not?

Mr. Zimroth: --Because--

Unidentified Justice: Why not?

Mr. Zimroth: --there is not a substantial number of them.

Because the three prongs are directly responsive to the constitutional concerns that this Court laid down in Rotary and JCs.

You know--

Unidentified Justice: But doesn't this ordinance, at the bottom line it talks about business purposes.

Mr. Zimroth: --That is, the money has to be received in furtherance of a business purpose.

That is why it is very hard to imagine what kind of club that would be that would--

Unidentified Justice: Mr. Zimroth, you referred to the University Club, I guess it was, that over half of its members are engaged in business.

Is that in the record?

Mr. Zimroth: --It is in the record before the City Council.

Unidentified Justice: Well, what is in the record in this lawsuit?

Is there anything about any of these clubs?

Mr. Zimroth: Virtually nothing.

Unidentified Justice: Why not?

Mr. Zimroth: They are the plaintiffs.

I mean, they refuse to put in the record anything about these 125 clubs.

The reason is, I think, because if you actually look at the club, you are going to see that you are talking about big businessmen's clubs, not just some sort of hypothetical--

Unidentified Justice: Do we even have a list of the members of this organization?

Mr. Zimroth: --There is no list in the case.

That is correct.

Unidentified Justice: Do we know how many of them are in New York City?

Mr. Zimroth: Excuse me?

Unidentified Justice: Do we know how many of the 125 are--

Mr. Zimroth: No, and you don't know how many actually fall within the statute.

You don't know how many... you don't know the selection procedures for each one.

You don't know whether or not any of them have an expressive purpose.

We asked for this information in interrogatories.

They just refused to put it in.

Unidentified Justice: --Yes.

Well, you certainly could have gotten that information.

Mr. Zimroth: It wasn't our burden.

Unidentified Justice: Well, if you asked for it you sort of assumed a little burden.

Mr. Zimroth: No, we asked for it to try to prove that--

Unidentified Justice: Well, if you didn't get answers you didn't try very hard.

Mr. Zimroth: --Okay, we didn't try very hard.

0 [Generallaughter.]

Unidentified Justice: Mr. Zimroth, could I ask--

Mr. Zimroth: But they are the plaintiffs in this case and it seems to me if they are going to show substantial overbreadth it is their burden to show that there are real clubs out there that could be hurt and they haven't.

Unidentified Justice: --Mr. Zimroth, if there is a private right of association in clubs it is not very explicitly set forth in the Constitution anyway.

One of the protections that is quite explicit is, whatever laws you pass, the real protection is, it has to apply to everybody.

Now, this law was passed with an exclusion of such groups as the Elks, the Moose, the American Legion, and I gather there was some testimony that that exclusion was somewhat politically necessary.

Mr. Zimroth: There was no such... there was a claim made by the plaintiffs in this case.

Unidentified Justice: What is the basis for that exclusion?

Why is that a rational exclusion?

I mean, if this is a good law it ought to apply to everybody.

Mr. Zimroth: We had basically a ten-year history of legislative findings, began in 1973, with the City Human Rights Commission hearings.

There was a report in '75.

There were hearings in '80.

There were more hearings in '83.

The law passed in '84.

What the legislature was looking at is whether or not there were clubs in the City of New York that really served a business function and the exclusion of women and minorities really had a very negative impact on the economic lives of those excluded.

There wasn't any evidence for that entire ten-year period that that same function was relevant when you deal with organizations like... you mentioned some; I will mention some others... The Supreme Council of the Mystic Order of the Veiled Prophets of the Enchanged Realm, or a local camp of the Modern Woodsmen of America.

Unidentified Justice: Let's take a criminal statute.

Suppose you have legislative hearings similar to the ones you had here, and the City Council is considering an anti-bribery statute, and its hearings show that by and large people who make more than $100,000 don't take bribes.

They don't really need it.

It is not a real problem.

So you pass a bribery law that says it shall be unlawful to take a bribe unless you make more than $100,000 a year because there is really no public need for a law.

Now, do you think that satisfies the equal protection clause?

Mr. Zimroth: Well, I am not sure that the same standards would apply if you are talking about depriving people of liberty, where you are talking about a fundamental right.

I am just... I mean, I don't know the answer but I do see a serious distinction here.

Unidentified Justice: It seems to me if there is no problem for Elks or the Mystic Order or what-not, then they have nothing to worry about.

If they are not covered by the statute they are not covered by it.

What is the rational basis for simply saying from the start this great and good statute is not going to apply to these groups?

Mr. Zimroth: The rational basis is that... it seems to me it is appropriate for the legislature after it goes to a hearing to legislate about what the problem is.

You know, there are other... I mean, you are talking also about religious corporations that were excluded as well.

You know, one might at least rationally think that to get into the area of religious organizations, maybe even fraternal organizations that are explicitly by statute supposed to be entirely for the benefit of the people, not for outsiders, that you might think that that was getting closer to constitutional concerns.

Why do you want to force the City of New York to legislate about those possibly more difficult areas when there is no evidence that they presented the same problem?

Unidentified Justice: To make sure the legislators are not legislating against my club but not against their own clubs, which is the whole purpose of the equal protection clause.

Mr. Zimroth: Well, I don't know that there is any evidence of that.

There is one other point I wanted to say about the Elks and so forth.

We are talking about local legislation.

I have no idea what function the Elks or the Moose or these various organizations may play in other cities, in other settings, in rural America, and so forth.

The point is that in the City of New York there just was no evidence that there was a problem like this, and that's the answer.

Unidentified Justice: They don't take bribes.

0 [Generallaughter.]

Mr. Zimroth: We are not putting them in jail either.

Unidentified Justice: Counsel, could this statute have excluded a group that discusses literary works?

Mr. Zimroth: Could... excuse me?

Unidentified Justice: Could this statute have excluded a group that discusses literary works?

A drama club.

Constitutionally.

You can have more than 400 members but you are exempt if you discuss literary works.

Mr. Zimroth: I don't know the answer to that.

Unidentified Justice: Well, why is the American Legion exempt?

Mr. Zimroth: I said the reason the American Legion is exempt is that in the City of New York there was no evidence that came forth from the City Council that presented the same kind of problem.

Maybe it is a similar problem--

Unidentified Justice: Would you speak into the microphone, please, counsel?

Mr. Zimroth: --Maybe it is a similar problem somewhere else in the country.

It was not in the City of New York.

Unidentified Justice: We have held that labor picketing cannot be exempted.

It is a violation of the equal protection clause.

The Mosley case.

Mr. Zimroth: Yes.

Unidentified Justice: Speech concerns are implicated in this statute, are they not?

Mr. Zimroth: Only if you find that the clubs that are included have a First Amendment right which really begs the question.

In other words, if the clubs that are included have a First Amendment right, you never have to reach the equal protection argument, and if they don't, then the only thing that the cases say that you are to look to is the rational basis test, and I think it is a rational basis that the City Council simply had ten years of history behind it and it was no problem in this area.

Unidentified Justice: No heightened scrutiny applies when you are using speech--

Mr. Zimroth: I am sorry, I am having--

Unidentified Justice: --No heightened scrutiny applies when you are using speech classifications?

Mr. Zimroth: --Well, there are no speech classifications in this statute.

Unidentified Justice: There are no First Amendment... are there First Amendment implications in this statute?

Mr. Zimroth: Only if you find that the clubs that are included in this statute have a First Amendment right.

Unidentified Justice: Is there a First Amendment right to associate?

Mr. Zimroth: In some circumstances, either if the association is intimate or if it has a predominantly expressive purpose.

Unidentified Justice: Well, the city itself found that it was balancing associational rights versus other compelling needs did it not?

Mr. Zimroth: That is why it picked the standard of 400 members.

That is a number not incidentally which this Court characterized as large in the Rotary case.

That was the language of this Court.

There was a local club in Rotary which had, I think, 400 members, and it characterized it as large.

And that is why it had a standard that not only did it have to be large but it had to accept on a regular basis fees or other money on or behalf of nonmembers in furtherance of a business purpose, not simply money for nonmembers, nonmembers in furtherance of a business purpose.

And when you add all that together, I think it is pretty hard to say that these clubs have, at least as far as right of intimate expression, I mean, at last count the New York Athletic Club had 10,003 members.

I mean, can you imagine someone getting up in here and saying, here are 10,002 of my most intimate friends?

It is just not a credible kind of argument.

So--

Unidentified Justice: Is there a First Amendment right to discuss business, do you suppose?

Mr. Zimroth: --If there is it is commercial seed and it is much lesser protected.

We are not prohibiting people from discussing business here.

I mean, that is one thing that has to be said about this statute.

This statute doesn't prohibit small groups of people or even large groups of people from getting together and excluding whomever they want.

It says, however, that you can't do that under the rationale that this club is an extension of your living room and in fact have it be an extension of your business.

Unidentified Justice: Unless you are a member of the American Legion or the Elks.

Mr. Zimroth: I don't know.

Unidentified Justice: That's what the statute says, counsel.

Mr. Zimroth: There is no evidence... there is no evidence in the record that that kind of thing happens in those kinds of clubs in the City of New York, the point being that these clubs can simply, they can get out of this regulation altogether.

They just have to stop taking money on behalf of nonmembers in furtherance of business.

Unidentified Justice: May I ask about that prong a little bit so that I better understand what the ordinance means?

If a club member brings a client, for example, to the club and buys a drink for the client once a week for 52 weeks, does that make the entire club a place of public accommodation even if the member bringing him is not reimbursed, but he is paying for the drink for the client?

Mr. Zimroth: Theoretically but not practically.

Unidentified Justice: The ordinance would make that--

Mr. Zimroth: No, not the ordinance, the regulation, which has not been applied or tested.

The ordinance simply--

Unidentified Justice: --The ordinance as interpreted by the regulation would make that club then for all members a place of public accommodation regardless of reimbursement as I understand it.

Mr. Zimroth: --I'm sorry.

Regardless of reimbursement?

Unidentified Justice: Yes.

Mr. Zimroth: No, I'm sorry, then maybe you can--

Unidentified Justice: If the club member buys the food or beverage for the guest who happens to be a client.

Mr. Zimroth: --I don't think regardless of reimbursement.

I suppose it is possible to interpret on behalf of.

Unidentified Justice: It seems where it said, yes, on behalf of, indirectly on behalf of, and that is what the regulation looked like.

Mr. Zimroth: It is possible to interpret it that way.

It is inconceivable to me that if we ever had a case like that it would be interpreted that way, but it is possible.

Shall I tell you how in fact that has been interpreted?

I mean, it hasn't been interpreted by a court yet because this is a pre-enforcement action, but we are in litigation now with the Union League Club.

The Union League Club is required as many of these clubs are required to keep tax records for functions where eight or more nonmembers attend, and so we subpoenaed those records, and they show close, like from one year, 1986, close to 100 separate functions where you are not talking about one drink, you are talking about three for 450 people.

Those are counted as one instance, not 450 instances, one instance, and you are talking about hundreds of thousands of dollars.

Unidentified Justice: Well, of course, that isn't... we are just looking at a facial challenge and the language of the ordinance and the regulation, and it is a little hard to know what it means.

Mr. Zimroth: Well, which is really why I think a facial challenge is completely inappropriate in this case.

It seems to me you need to have real cases with a real record where you know what the club is, where you know exactly how the administrative agency has interpreted the regulation and how a court has applied it, and when you have that record before you then you will have a real case.

I don't think this is a real case.

If there are no further questions, thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Zimroth.

The case is submitted.

Attribution:

The OYEZ Project

Featured: