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THE 2000-2001 SUPREME COURT TERM ON WOMEN'S RIGHTS: A Mixed Bag Of Split Decisions

Tuesday, Jul. 03, 2001

Last week, the Supreme Court closed its doors until next October, delivering its last four opinions without much fanfare. A review of this Term's opinions reveals a mixed bag for women's rights–some small victories, and at least one significant defeat.

Overall, although the Court decided cases affecting women's rights in a variety of important contexts–education, employment, pregnancy, and immigration–these cases did not figure as prominently as they have in past years.

The core group of liberals on the Court–Justices Stevens, Souter, Ginsburg, and Breyer–generally stuck together on the seven cases (summarized below) most important to women, although Justice Stevens switched sides in one important case. But more often than not, they found themselves in dissent, arguing against the majority's incursions into women's or civil rights.

Employment Decisions

In Board of Trustees v. Garrett, the plaintiff had been demoted after taking time off to seek treatment for breast cancer. While the demotion violated the Americans with Disabilities Act (ADA), the Court held that the woman's employer–the state government–was immune from suit. Congress did not have the authority, the Court ruled, to abrogate state sovereign immunity when it passed the Act.

Of course, the Garrett ruling itself, though potentially devastating for the individual female plaintiff, does not directly implicate women's rights more generally. Nevertheless, Garrett may pave the way for future holdings severely detrimental to women, if it is extended to mean that federal statutes that protect women cannot be used to sue state governments.

A hopeful sign, however, came last month, when the Court declined to decide a case about whether Garrett applied to the Equal Pay Act (EPA), a federal statute that guarantees women equal pay for equal work.

Another important employment precedent this Term was Pollard v. E.I. DuPont de Nemours. The statutory interpretation question the case raised was easy–so easy that the Court ruled unanimously, and handed down an opinion, authored by Justice Thomas, ruling for the sexual harassment victim plaintiff.

As I discussed at greater length in an earlier column, the issue in Pollard concerned front pay–a remedy designed to replace lost wages from the time of judgment until reinstatement, or indefinitely if reinstatement is not feasible. The Court held that, contrary to some lower court holdings, front pay is not subject to the statutory cap on damages established by the Civil Rights Act of 1991. This was a small, but important victory for women who have been sexually harassed, who now can be confident of their entitlement to recover front pay that reflects the time they actually lost from their jobs.

Unfortunately, what the Court gave with one hand, in Pollard, it took away with the other, in a later decision, Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources. Civil rights plaintiffs are generally entitled to have their attorneys' fees paid by the other side if they win their cases. But in Buckhannon, the Court held plaintiffs cannot collect such fees if the other side stops discriminating voluntarily, rather than pursuant to a court judgment.

This decision clearly undermines the purpose of awarding attorneys' fees–to encourage individuals to act as private attorneys general to enforce the nation's civil rights laws. Accordingly, it makes it more difficult for sexual harassment victims, among others, to seek the protection to which the law entitles them.

Education Decisions

Again, as with Garrett, the import of Sandoval for women's rights is not direct, but rather by ominous analogy. There are similarities between Title VI and Title IX, which prohibits sex discrimination in education. As a result — as I have explained at greater length in an earlier column — Sandoval may have placed in jeopardy Title IX regulations that proscribe the use of school admission criteria (like standardized tests) and employment criteria that disproportionately and adversely affect women.

Still, women and girls in school — and in particular, in school sports — did receive some support from the Court this term. In Brentwood Academy v. Tennessee Secondary School Athletic Association, the Court held that the non-profit athletic association responsible for regulating interscholastic competition in public and private schools was a state actor for Fourteenth Amendment purposes. That means, in short, that the association's actions are limited by the Constitution, including its Equal Protection guarantees for women.

Athletic associations at both the secondary and college level are responsible for many aspects of athletic competition, including tournament play. Brentwood, then, will enable women to file suit when–as frequently happens–they are offered less favorable opportunities for tournament play than men.

Though the Supreme Court a few terms ago barred such suits when they were brought under Title IX, Brentwood opens the way for such suits to be brought as Equal Protection claims.

An Important Privacy Decision

In a significant victory for women, the Court refused to allow a city hospital to test pregnant women for evidence of drug use, without either their consent or a search warrant.

This decision — Ferguson v. City of Charleston — is important to securing the principle that pregnant women have the right to make decisions about their own bodies, even if those decisions are less than desirable.

Immigration Decisions

Upholding one of the last explicitly sex-based classifications in federal law, the Court in this case resorted to stereotypes about the uniqueness of motherhood to justify the patently unequal treatment of similarly-situated men and women.

Nguyen turns back the clock nearly three decades, eroding the equal protection jurisprudence that had been successfully eliminating gender-based stereotypes from the law.

A Look Ahead

Both the victories and the defeats for women this term were, by and large, 5-4 decisions, revealing the precariousness of women's rights vis-à-vis the Supreme Court. In this area, any changes to the composition of the Court will be crucial.

Indeed, a single additional conservative vote would have guaranteed that women lost virtually every case that implicated their rights this Term — the only exceptions being the 9-0 ruling in Pollard and the 6-3 ruling in Ferguson.

In short, much more than Roe v. Wade alone is at stake. And the women who will be affected are not only those seeking abortions, but those seeking equal education and employment rights — in short, virtually every woman, or her daughter, sister or mother.

None of the justices announced plans for retirement at the court's last public session–the usual setting for such announcements. But retirements in the near future are a virtual certainty. And, in the meantime, President Bush is moving forward trying to fulfill the numerous vacancies on federal appellate and trial courts around the country.

On the heels of his announcing the first round of judicial lower court nominations–many going to high-profile, right-wing ideologues–the now-Democratically controlled Senate is holding hearings on whether ideology should play a role in the Senate's review of judicial appointments.

Last week, the Senate Subcommittee on Administrative Oversight and the Courts called on prominent law professors and lawyers to testify about how and to what extent the Senate–in fulfilling its "advise and consent" role–should consider a nominee's ideological leanings. Most urged the Senate to take a more active role in scrutinizing all judicial nominees–not just potential Supreme Court justices–paraded before them.

Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University, where she teaches Sex Discrimination, among other subjects.

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