Wedding website, affirmative action cases show widening inequality in access to justice
Photo by Jim Small | Arizona Mirror
A civil lawsuit is a means to prove one has been harmed and who bears responsibility. A less-considered component is the demand: What remedy would justly resolve the harm?
To use a familiar example, E. Jean Carroll sued a recent president of the United States. She proved at trial that she had suffered the harms of both sexual abuse and defamation. Her proposed remedy was that he would financially compensate her, for which the jury determined that $5 million would be fair.
While a payout is a very common lawsuit remedy, it is not the only option. For instance, a long running and unresolved lawsuit from some parents of school children claims that Minnesota’s segregated schools — even if the state is not intentionally preferring such — lead to bad outcomes that violate the state constitution. The proposed remedy is not a payout to these parents, but policy and practice corrections that will achieve the sought diversity, and outcomes, going forward.
A remedy sometimes entails both financial compensation and a policy change. One recent example is the lawsuit journalists filed against the State Patrol after being violently denied their right under the First Amendment to cover the protests which followed George Floyd’s murder. In the negotiated resolution, the state provided journalists with a payout in addition to agreeing to policy changes intended to prevent similar harm to journalists in the future.
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Could I have sued the former president or the State Patrol?
I have assumed not, because I was not personally harmed by either. Nor could I sue the state of Minnesota over segregated schools as I no longer have children in any school and would not personally benefit from a proposed remedy.
The concept that only a party who has suffered harm may sue to demand a remedy is called, in legal jargon, standing.
That concept may be changing.
Most radically, Texas completely upended the meaning of standing — at least in one narrowly defined parameter — by essentially allowing anyone to be able to sue for the “harm” of an abortion. The U.S. Supreme Court refused to issue a temporary injunction disallowing it, even as it has not yet definitively ruled on whether the basic construct will be allowed: That legislators can invent any basis for standing it wishes, irrespective of centuries-old legal concepts.
A case they did definitively rule on this year, 303 Creative LLC v. Elenis, appears to have loosened the criteria for standing, though it remains to be seen if the right-wing appointees in the majority will consistently maintain their novel approach to standing — or apply it only to cases that align with their preferred ideological goals.
In the case, the court’s majority first determined that a Colorado woman’s proposed business service of creating wedding websites was artistic expression, an arguable if not dubious premise that they barely touched on. Finding that the First Amendment protects against government compelling an artist to express something she doesn’t wish to — in this instance, a positive portrayal of same-sex marriages (should a same-sex couple have sought her website design) — they nullified Colorado’s prohibition on business discrimination when the business in question is “art.”
To allow the case to proceed, the standing for the “artist” was not based on harm she actually suffered but the harm from being inhibited from expanding into a new business line. Which she was considering, but only if discrimination against same sex couples was OK.
Implicit in such a loosening of standing is that I might be allowed to sue the state of Minnesota after all for failing to diversify schools. I could claim that I might opt to have another child if the state will only correct its practices, and I am harmed by my natural right to have another child being circumvented given that I will under no circumstances go forward if such offspring might receive a constitutionally inadequate public education. Just as the Supreme Court did not consider it necessary to explore the true need or potential for the “artist” to offer a new business service, there is no need for anyone to consider how likely I might choose to have another child in the future if the remedy is granted. (No matter that I’ve already turned 60 and my youngest child is soon to be 29. DeNiro and Pacino recently had children and they’re long past 60 — and some used to say I look like Pacino!)
The idea that anyone can sue for the harm of what they might otherwise accomplish will certainly widen who may bring lawsuits.
A secondary expansion regards the First Amendment, in which artistic speech is more immune to restriction than other expression. What then qualifies as artistic? Why is the design of a wedding website truly an artistic creation and not simply a technical function?
Artistry is a component of many skills and trades. As a homeowner, I have benefitted from some creative carpenters and landscapers. I never believed they were expressing themselves creatively, but only being creative in how they provided the function I paid for and limited. On the other hand, I’m not so sure that law should compel a professional ghostwriter of memoirs to spend months working on a book they don’t prefer to spend time with, no matter the reason — even a racist or homophobic one. If the court had attempted some analysis of website design, showing that the designer is more like a ghostwriter than a landscaper, it may have come across as a more reasonable decision, even to those who would have preferred the opposite outcome.
But instead, the Supreme Court appeared so eager to get to its result of gutting the Colorado law that it ignored the future openings its remedy might provide for broad and unwarranted claims of being protected as an “artist” (and not merely a provider of business services that may benefit from creativity).
In combination with leaping beyond the traditional requirements for standing, this conservative court proves beyond a reasonable doubt that they are anything but.
Affirmative action and remedy
The court’s removal of race-based affirmative action, in Students for Fair Admission v. Harvard, was less radical than its Colorado website designer decision. The right-wing appointed court majority did not resort to stretching long held parameters for standing, or have to gloss over its broad presumptions (such as what work is truly that of an “artist”) to find its way to its preferred ruling. Instead, it found opportunity from the limitations of earlier cases.
Advocates for affirmative action may defend it as a mechanism for compensatory justice in the aftermath of multi-generational racism that lingers in unequal opportunity in the present. But even if that sounds similar to a civil lawsuit’s remedy for proven harms, the practice was not imposed by court cases. Those who have created and implemented such policies, for instance at Harvard, were not ordered to remedy past discrimination but presumed on their own that it served a just purpose.
Nor had court decisions ever permitted affirmative action in university admissions on precisely such a basis. Instead, the existing precedent allowed affirmative action because a university could reasonably believe its educational mission benefited by a diverse student body.
To reverse its precedent, it was not difficult for the court to determine that race on its own, as an elevating attribute for admission, did not in practice fulfill the potential for diversity that enhances educational experience. An admissions scoring system that provided bonus points for race, but failed to otherwise scrutinize candidates individually for how their backgrounds and experiences may contribute to the diversity of the student body, had undermined the basis for universities to maintain the claim that diversity was the prime accomplishment of affirmative action.
If earlier affirmative action decisions had instead been based on achieving a partial remedy for past harms, then racial preference in admission decisions would have been harder to strike down. For that would have required proving that the remedy had already provided full and fair compensation, and that racial opportunity in the present had become equalized.
Without doubt, some whites or Asian Americans might still have claimed harm from being denied admission as a consequence of the remedy, arguing that it is not fair that they should be individually penalized by a reduced chance for admission. But that is the same argument I’m unable to make as a Minneapolis resident who has had no personal role in maintaining a poorly controlled police force yet contributes way too much in property taxes to cover the remedies for harm some police have caused. In other words, when a court finds a harm is proven and orders a remedy, it will not inquire into harmful collateral impacts on bystanders, if doing so would negate the remedy.
In regard to the harms of U.S. history, the remedy should certainly, of course, go beyond college admissions. But it is difficult to bring a case for reparations even when a claim is narrowly identified, such as over the Tulsa race massacre of 1921 — in which rioting white people killed, looted and destroyed a thriving black community. An Oklahoma court recently dismissed such a case on technical grounds, essentially denying that 100 years later there’s a legally responsible party who can provide a remedy.
It is in the absence of court-ordered remedies tied to past U.S. racism that some institutions, such as universities, have seen fit to voluntarily provide them to a limited extent, even if not explained in such a manner. But as the Harvard case shows, a voluntary remedy will not hold up in court if a consequent harm can be identified. In the Harvard case, the denied opportunity to Asian Americans provided just such a focal point.
That should provide a warning to well-intended government efforts in some places to legislate reparations voluntarily. Absent the function of a court proving the harm and ordering the remedy, a challenge by someone who claims harm as a result of legislated reparations is likely to succeed given the new Supreme Court precedent. Just as Minneapolis waits to be sued before it pays compensation to remedy bad police acts, so too must reparations follow a court order or settlement to be secure.
But that could be difficult given how the court ruled in the Tulsa case. Which in combination with the Colorado case reveals the widening inequality in access to justice: radical expansion for some, tight restriction for others.
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