ACLU Says Supreme Court Strengthened Civil Rights in Key Decisions This Term

FOR IMMEDIATE RELEASE
Wednesday, June 26, 1998

WASHINGTON — In a flurry of decisions during its final week, the Supreme Court significantly strengthened key federal civil rights laws by providing new protection against sexual harassment and discrimination on the basis of disability.

“The Court’s decisions will literally benefit millions of Americans,” said Steven R. Shapiro, the ACLU’s National Legal Director.

“It is a welcome change from previous years when the Court and Congress often seemed at war over civil rights laws,” Shapiro added. “As a result of the Court’s actions, the price of discrimination has just gone up.”

There were four sexual harassment cases on the Court’s docket this year. In two Title VII cases decided on the last day of the term, the Court made it easier for employees to sue their employers for sexual harassment in the workplace.

As the Court made clear in both Faragher v. Boca Raton and Burlington Industries v. Ellerth, an employer has no defense when sued by an employee who was either fired, demoted, or refused a raise because she rejected the sexual advances of her supervisor.

Even when such tangible consequences are lacking, the Court agreed with the ACLU’s position in Faragher that it is no longer enough for the employer to claim that it simply did not know what was happening in its own workplace. Thus, the Court ruled, an employer is liable if its supervisors create a hostile working environment for women unless it can prove two things: first, that it took reasonable steps to prevent and correct any sexual harassment; second, that the employee unreasonably failed to follow the employer’s complaint procedures.

Unfortunately, in Gebser v. Lago Vista Independent School District, a sharply divided Court held that a student who is sexually harassed by her teacher can recover damages against the school district under Title IX only if the district knew of the harassment and was “deliberately indifferent.”

“The Court’s misinterpretation of Title IX can and should be corrected by Congress,” Shapiro said. “Until Congress responds, students at school will have far less protection against sexual harassment than adults at work.”

This narrow and restricted reading of the law also contrasts with the Court’s unanimous decision in Oncale v. Sundowner Offshore Services, Inc., agreeing with the ACLU’s argument that same-sex harassment is prohibited by Title VII to the same extent as harassment between members of the opposite sex.

In addition to these harassment cases, the Court issued two important decisions interpreting the Americans with Disabilities Act. In Bragdon v. Abbott, the Court agreed with the ACLU’s assertion that the ADA’s anti-discrimination provisions protect individuals suffering with the early stages of HIV infection even though they do not have any outward symptoms of the disease. Likewise, in Pennsylvania Dept. of Corrections v. Yeskey, the Court agreed with the ACLU in ruling that the ADA applies to state prisons, which therefore cannot discriminate on the basis of disability.

The results were less positive in National Endowment for the Arts v. Finley, an ACLU case. By an 8-1 vote, the Court upheld a provision requiring the NEA “to take into consideration general standards of decency and respect for the diverse values and beliefs of the American public.”

Justice O’Connor’s majority opinion nevertheless stressed that the challenged language was merely “advisory,” and that serious First Amendment questions would be presented if the evidence showed that the NEA was using its discretionary authority to suppress unpopular viewpoints. The Court simply did not believe that case had yet been made.

Despite a generally strong record on First Amendment issues, the Court narrowly construed the ban on viewpoint discrimination in a second case, as well. Thus, in Arkansas Educational Television Commission v. Forbes, the Court disagreed with the ACLU when it saw no viewpoint discrimination in the state’s decision to exclude a ballot-qualified candidate from a televised debate because the station managers, employed by the state, believed that his candidacy was not “politically viable.”

Given its recent receptivity to gender discrimination claims, the Court also went against form in Miller v. Albright when, disagreeing with the ACLU, it rejected a challenge to an immigration statute that makes it more difficult for the illegitimate children of American fathers to obtain citizenship than for the illegitimate children of American mothers. The 6-3 result may be misleading, however, since Justices O’Connor and Kennedy voted for the government only on standing grounds. Furthermore, their concurring opinion strongly suggests that they would have voted to strike down the statute had the equal protection claim been presented by the father in this case, rather than the daughter.

The Court’s ongoing interest in elevating the status of property rights was once again evident this year in Phillips v. Washington Legal Foundation. The case involved a constitutional challenge to so- called IOLTA accounts, which have been created by the states to pool client funds that would not otherwise earn any interest on their own. By a 5-4 vote, the Court held that the interest generated by the IOLTA accounts belongs to the clients, and then sent the case back to the lower courts for further proceedings on the “takings” claim. Though stopping far short of a holding that IOLTA is unconstitutional, the decision still casts a serious cloud on what has become a major source of funding for legal services programs throughout the country.

The unusual alignment in United States v. Bajakajian can perhaps also be explained by Justice Thomas’s concern with property rights. The case marked the first time in the Court’s history that it had ever struck down a fine as “excessive” under the Eighth Amendment. It also marked the first time that Justice Thomas had ever provided the liberal wing of the Court with its crucial fifth vote. Indeed, Justice Thomas wrote the opinion declaring that the government’s effort to forfeit more than $350,000 from the defendant was “grossly disproportionate” to his offense, which was a failure to report that he was leaving the country with more than $10,000 in cash.

The Court’s overall record on criminal cases, however, remains very conservative. That is especially true in capital cases, where the Court continues to rule against death row inmates with regularity. For example, in Buchanan v. Angelone, the Court upheld a death sentence although the jury had never been instructed on its obligation to weigh the defendant’s mitigating evidence against the aggravating circumstances presented by the prosecution.

In Pennsylvania Board of Probation v. Scott, the Court continued its assault on the Fourth Amend ment by holding that the exclusionary rule does not apply to parole revocation hearings. Describing the role of a parole officer in benevolent terms, the majority rejected the claim that the exclusionary rule plays a critical role in ensuring that parole officers comply with the Fourth Amendment. The ACLU filed a friend-of-the-court brief saying the exclusionary rule should have applied.

The Court’s deference to law enforcement, and skepticism towards substantive due process claims, was also evident in County of Sacramento v. Lewis. Holding that substantive due process only applies to “egregious” government conduct that “shocks the conscience,” the Court held that victims of high speed police chases can only recover damages if the police act with a “purpose to cause harm.”

Finally, the Court decided two cases with important political overtones. The Line Item Veto Act was declared unconstitutional in Clinton v. New York. And the Independent Counsel’s effort to subpoena the notes of presidential aide Vincent Foster’s final conversations with his lawyer were rebuffed in Swidler & Berlin v. United States when the Court held that the attorney-client privilege remains in effect after the client’s death.

“This has not been a year that will be remembered for its great landmark decisions,” Shapiro said. “But hopefully it shows that vigorous enforcement of the nation’s civil rights laws will no longer divide the Court along ideological lines.”