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Posted Nov. 22, 2002
Dismantling of Private Attorney General Endangers Civil Rights

A series of decisions by the Rehnquist Court undermining the private attorney general action poses a danger to civil rights protections by weakening enforcement for existing federal regulations, visiting law professor Pamela Karlan said at a National Lawyers Guild-sponsored event Nov. 19. Although the Court maintains in its decisions that states still have to follow federal laws such as those barring employment discrimination, they have undercut citizen's right to sue when laws are broken, casting out remedies the political branches have tried to provide to citizens, she said.

Karlan
Karlan said the Supreme Court's decisions have weakened the public's ability to enforce civil rights laws.

"That makes the Court the most dangerous branch of government rather than the least," Karlan said.

A centerpiece of the Second Reconstruction, private attorneys general are private plaintiffs who are not seeking damages but are acting much as a normal attorney general would by vindicating important Congressional policies. Most civil rights statutes rely heavily on the private attorney general, a term coined in 1943 by Judge Jerome Frank, who was referring to litigation by private plaintiffs "to prevent [a government] official from acting in violation of his statutory powers." Karlan said the Court verified the importance of the private attorney general in Newman v. Piggie Park Enterprises, one of the earliest cases based on the Civil Rights Act of 1964. Piggie Park recognized the "piggybacking" function of the Act, Karlan said: Congress harnessed private plaintiffs to help obtain equal treatment for the general public.

Traditionally the Court might "retrench" on civil rights protections by more narrowly defining the protection, a decision Congress can react to and override. "When the Court makes it clear they're retrenching, the political process responds to that," Karlan said. Today, Karlan alleged, the Court's actions are more "insidious."

"They've gotten rid of the primary mechanism for enforcement," Karlan said, allowing potential wrongdoers to take advantage of the lack of legal reprisals for their actions.

Congress isn't responding to the Court's decisions partly because legislators don't understand the consequences of the rulings, and due to its more conservative bent in recent years. The Court's moves are so subtle, Karlan said, they haven't created enough pressure on the public to vote in politicians who care about civil rights.

Karlan said people used to think the 14th Amendment, which says states cannot abridge citizen's rights, trumped the 11th Amendment, the "sovereign state immunity" amendment, which limits citizens from bringing suits against states in federal courts. Now, Karlan said, the branch that used to see the 14th Amendment as a limitation on the 11th has reversed course: now the 11th is a constraint on the 14th.

"I call this the Eleventeenth Amendment," she said.

Karlan highlighted several cases that have abridged citizens' rights under the "Eleventeenth Amendment." Patricia Garrett was a nurse at the University of Alabama Medical Center who got cancer and asked the state to accommodate her chemotherapy schedule. A week after returning to work, Garrett was demoted, although she said she could perform her duties. In Board of Trustees v. Garrett, the Court ruled that the state had to comply with ADA laws, but also said Garrett herself had no right to sue the state, thus undercutting any enforcement of the laws, Karlan said.

Concerning the Court's rollback of the 14th Amendment, Karlan said the Court "hasn't done it in a way that is obvious to people [like Garrett] until they try to being their own lawsuit."

Karlan said the Court's Garrett decision implied that cases are only important if the government's attorneys prosecute the case. This violates the idea behind the private attorney general, she added, and in the end results in a decrease in the total amount of enforcement of congressional regulations.

In Alexander v. Sandoval, decided in 2001 in another 5-4 decision, the Court took away the private right of action to enforce disparate impact discrimination under Title VI of the 1964 Civil Rights Act, which prohibits discrimination by federally funded entities. In the case, Sandoval's attorneys argued that requiring the state's driver license exam to be administered in English only discriminated against him.

Karlan said the Court interpreted the 1964 statute as if it were written in 2001.

"It's about the current Supreme Court's vision about how much regulation there should be against states," she said. She said an earlier Court recognized Congress's intent to allow private actions as another way to enforce regulations, but the current Court has not genuinely considered Congressional intent in legislation like the 1964 Civil Rights Act.

In Circuit City v. Adams, Adams had signed an agreement on his Circuit City application that he would settle labor disputes through arbitration, a clause many companies now require employees to consent to. He later claimed he was discriminated against because of his sexual orientation and said he had the right to file a lawsuit. The Court determined that Adams was not a worker engaged in foreign or interstate commerce within the meaning of the FAA—only "transportation workers" were exempt from compulsory arbitration, despite the fact that Congress writes laws assuming a very broad definition of interstate and foreign commerce.

Because the Equal Employment Opportunity Commission (EEOC) only files a few hundred cases each year, the ability to enforce employment laws is limited by court decisions forcing private plaintiffs to arbitrate, she said.

Karlan said alternate dispute resolutions lack binding agreements, set no precedents, and generally favor defendants because they work frequently with the same arbiters, who need strong customer relationships to survive. Arbitration often involves paying up front, there is no way of getting appointed counsel, and plaintiffs may be liable for other attorney's fees, all of which keeps some plaintiffs from pursuing cases.

The mediation movement "decreases substantially the enforcement of employment laws," Karlan said. "There's never any law created, so every plaintiff has to start from square one."

In Circuit City and other employment discrimination cases, "you're essentially defending to argue the law should be applied that's already there."

In 2001 the Court also eliminated attorney's fees from cases that fall under the "catalyst theory" category—cases that prompt a defendant to change their ways voluntarily— in Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources. Although Chief Justice Rehnquist downplayed the impact of the decision, Karlan argued that such cases are the most important, and eliminating attorney's fees reduces the impetus for such suits being filed.

"They've taken away the ability to get damages in a large number of cases," she said. The decision itself shows the Court "has an incredibly negative vision of civil rights plaintiffs generally." In the decision Justice Scalia called attorney fees "an extraordinary boon," and failed to recognize it as a mechanism of the law, she said. The decision seems to classify plaintiffs as "vaguely quasi-criminals."

Karlan said the Court's enforcement of its own views is uneven, revealing that "federalism is a means and not a goal for the current Supreme Court." She argued that the Court doesn't really want to devolve the country back to federalism, but justices use federalism when it's advantageous to do so. She cited Bush v. Gore's overruling of the Florida State Supreme Court as a prime example. In another case, a state had a regulation on the books that required cigarettes to be placed at a level of four feet or higher in stores to keep children from seeing them, and the Court struck down the state law, seemingly stripping state sovereignty as well.

By weakening enforcement of federal laws, states and other federally funded bodies have little reason to follow federal guidelines, Karlan said. That, combined with the Court's chipping away of other civil rights, has already left its mark on the legal scene, Karlan said. She noted that the LAPD manual now encourages police interrogators not to worry about the Miranda warnings because an illegally obtained confession can still be used in other ways. The Court has ruled that if the defendant testifies in a case where an illegally obtained confession was suppressed, the prosecutors can introduce the confession in the cross examination.

She said now some civil rights groups fight to keep cases away from the Supreme Court to avoid bad decisions. Civil rights groups do want the Michigan affirmative action case to be heard, however, because they foresee more conservative appointees in the future and their chances of eking out at least a partial victory are probably better now.

Karlan said state courts are often more progressive than federal courts today, unlike when she attended law school, and many state constitutions offer more rights than the federal Constitution, such as a right to an education. Some state courts are filling in laws to counteract Supreme Court decisions like that of Circuit City, which was originally tried in California. California law now declares some contracts unconscionable and enacted a statute to create a private right of action. But state-level reforms can't undercut all the Court's rulings, she warned.
• Reported by M. Wood

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