An Essay on Texas v. Lesage - Christina B. Whitman

• Publication year: 2000

An Essay on Texas v. Lesageby Christina B. Whitman^*

When I was invited to participate in this symposium,¹ 1 was asked to discuss whether the causation defense developed in Mt. Healthy City School District Board of Education v. Doyle² applied to cases challenging state action under the Equal Protection Clause of the Fourteenth Amendment. As I argue below, it seems clear that Mt. Healthy does apply to equal protection cases. The Supreme Court explicitly so held last November in Texas v. Lesage.³ But the implications of Lesage go beyond questions of causation. The opinion suggests that the Court may be rethinking (or ignoring) its promise in Carey v. Piphus⁴ that section 1983⁵ plaintiffs can recover nominal damages and, when actual injury can be established, damages for mental and emotional distress.⁶

In Mt. Healthy the Supreme Court was presented with a claim by a public school teacher that his contract had not been renewed in violation of the First Amendment. The teacher established that the School Board's decision against renewal of his contract was motivated in part by its reaction to his communications with a local radio station about school matters. The teacher sought and won reinstatement from the lower federal courts.⁷ The Supreme Court vacated his victory.⁸ The Court held that, even accepting that plaintiff's communication with the radio station was protected First Amendment activity and that retaliation for this activity played a substantial part in the Board's decision not to renew the employment contract, such action by the Board would not amount to a constitutional violation justifying remedial authority if the Board could establish that it would have reached the same decision not to renew in the absence of the unconstitutional motivation.⁹ In essence, Mt. Healthy established that defendants in "unconstitutional motivation" cases can prevail by proving that they would have reached the same decision even if they acted constitutionally.

The answer to the question of whether Mt. Healthy's approach to causation applies to equal protection cases seems straightforward. On the same day in 1978 that the Court decided Mt. Healthy, it also decided Village of Arlington Heights v. Metropolitan Housing Development Corp.¹⁰ Plaintiffs in Arlington Heights challenged the refusal of the Village of Arlington Heights to rezone land to allow multiple-family (and thus more affordable) housing. Plaintiffs sought declaratory and injunctive relief, alleging that the racially discriminatory effect of the Village's refusal to rezone meant that its decision violated the Equal Protection Clause.¹¹ The Court ruled against plaintiffs on the ground that discriminatory effects were not enough to make out an equal protection violation.¹² A showing of racial animus by the Village decisionmaker was required, and plaintiffs failed to establish that such animus was a motivating factor in the Village's decision.¹³ However, the Court said in a footnote that the approach to causation articulated in Mt. Healthy might bar recovery even if a showing of racial animus had been made.¹⁴ If plaintiffs had proven that the Village had been motivated by a racially discriminatory purpose, the Court said, the burden of proof would have shifted to the Village to establish that "the same decision would have resulted even had the impermissible purpose not been considered."¹⁵ If a same-decision showing had been made by the Village, plaintiffs' injury could no longer be fairly attributed to the discriminatory purpose that was the basis of the constitutional violation and "there would be no justification for judicial interference with the challenged decision."¹⁶ For this proposition the Court cited Mt. Healthy. Thus, from the very conception of the Mt. Healthy causation doctrine, the Court has understood it to apply to equal protection cases.

Just last November, in its puzzling, brief opinion in Texas v. Lesage, the Supreme Court reiterated that there is no distinction between First Amendment cases and Equal Protection Clause cases for purposes of the Mt. Healthy doctrine.¹⁷ Plaintiff in Lesage, "an African immigrant of Caucasian descent,"¹⁸ brought an action under sections 1981¹⁹ and 1983 and Title VI of the Civil Rights Act of 1964²⁰ in which he raised a claim of race discrimination in graduate school admissions. Specifically, Lesage claimed that the University of Texas's Department of Education considered race in deciding whom to admit to its doctoral program in counseling psychology. He sought both damages and declaratory and injunctive relief.²¹

The district court dismissed the entire action on a motion for summary judgment. It concluded that Lesage would not have been admitted even if the program had been race-blind.²² The Fifth Circuit Court of Appeals, which previously held affirmative action programs in institutions of higher education to be unconstitutional,²³ reversed.²⁴ The court of appeals said that the fact the University would have reached the same decision—the Mt. Healthy question—was irrelevant to a decision on a motion for summary judgment.²⁵ The proper order in which to consider plaintiff's claim was to begin by asking whether his application had been rejected as part of a race-conscious process.²⁶ If the answer to that question was yes, the court said, a showing by the University that it would have reached the same decision had it not considered race may well mean that Lesage could not recover compensatory damages, but it would not foreclose other relief.²⁷ A motion for summary judgment, under this analysis, raises only the question of liability. Once liability for a constitutional violation has been found, Mt. Healthy might foreclose certain remedies.

The Supreme Court refused to cordon off questions of relief at the summary judgment stage. It held that the Fifth Circuit's decision reversing the district court's grant of summary judgment on Lesage's damages claim contradicted the Mt. Healthy framework for analyzing same-decision claims.²⁸ The Mt. Healthy framework applies at the summary judgment stage because the same-decision showing goes to the ultimate issue of liability under section 1983.²⁹ Under Mt. Healthy a government defendant "can . . . defeat liability," in race discrimination cases as in First Amendment retaliation cases, by proving that it would have made the same decision without considering the forbidden factor.³⁰ If such a showing is made, the Court concluded, "there is no cognizable injury warranting relief under section 1983."³¹

On the particular issue of whether Mt. Healthy applied to this equal protection case, the Court could not have been more clear:

Our previous decisions on this point have typically involved alleged retaliation for protected First Amendment activity rather than racial discrimination, but that distinction is immaterial. The underlying principle is the same: The government can avoid liability by proving that it would have made the same decision without the impermissible motive.³²

The Court has thus returned to where it began and treated the causation doctrine of Mt. Healthy as applicable to all mixed-motive claims arising under the Constitution. But Lesage confuses a different issue. Despite its reversal of the ruling on Lesage's summary judgment motion and the apparent conclusiveness of the language stating that "tt]he government can avoid liability," the Court's opinion suggests that a Mt. Healthy same-decision showing by the defendant is not a complete defense to liability, for it distinguished the case before it from one in which the plaintiff "challenges an ongoing race-conscious program and seeks forward-looking relief."³³

The Fifth Circuit's error, it appears, was that it did not distinguish among forms of relief when it considered the question of liability at the summary judgment stage.³⁴ The Supreme Court saw Lesage's case as, at bottom, simply a request for damages relief and therefore dismissible if Mt. Healthy eliminated the damage claim.³⁵ It is true that Lesage also asked for declaratory and injunctive relief, but the Court assumed that he was no longer seeking forward-looking relief.³⁶ This conclusion was based on his failure to contest the University's claim in its petition for certiorari that it had ceased considering race after the Fifth Circuit's decision in Hopwood v. Texas.³⁷

In what follows I address two questions raised by these cases. First, why had it seemed, despite Arlington Heights, that equal protection cases might be treated differently from retaliation cases? Second, what is troubling about the dismissal of plaintiff's damages claim in Lesage? Both inquiries shed light on the Court's view of what it means to be discriminated against on the basis of race and, more broadly, on its view of the appropriate scope of remedies for constitutional wrongs.

In both Arlington Heights and Mt. Healthy, as in Lesage, plaintiffs sought to challenge and reverse specific government decisions. Unlike Lesage, the earlier cases did not seek to challenge the general policies that underlie those decisions. Indeed, in both Arlington Heights and Mt. Healthy it appeared that the decisions were made ad hoc, perhaps unconstitutionally motivated but not based on explicit unconstitutional policies reaching beyond the situation before the court. Plaintiffs in Arlington Heights sought to reverse a particular decision, not to change the zoning for a specific plot of land.³⁸ Applying Mt. Healthy's same-decision causation doctrine seemed sensible because there seemed to be "no justification for judicial interference with [a] challenged decision" that could, at least theoretically, simply be remade with more pure motivation.³⁹ Plaintiff in Mt. Healthy sought damages as well as injunctive relief that would have restored him to his teaching position, but the damages he sought, based on lost income, were linked to his claim that he should have retained his job all along.⁴⁰ Again, the claim was...