Supreme Court Watch
A Monumental Ruling—And a Look Ahead
By Sophia Stadnyk
Sophia Stadnyk is senior associate counsel with the International Municipal Lawyers Association in Bethesda, Maryland.
Local governments had plenty to cheer about when a unanimous Supreme Court released its decision in Pleasant Grove City, Utah v. Summum,1 arguably the most important decision of this Term. First and foremost, the Court’s ruling recognized the right, under the First Amendment, of municipalities to express and shape their own local identities, even when the mode of expression concerned a traditional public forum. While government entities remained constrained with respect to regulating private speech in a public forum, pursuant to the First Amendment’s Free Speech Clause, the same scrutiny did not apply when the entity itself was the speaker.
The case arose out of a dispute over the placement of a private monument in a public park. The park already contained a “Ten Commandments” monument, donated to the City of Pleasant Grove by the Fraternal Order of Eagles. The city’s criteria for permanent displays in the park required that monuments be directly related to the city’s history, or be donated by a group with “long-standing ties to the . . . community.” Summum, a religious group, applied to have a monument of its “Seven Aphorisms” displayed in the park, indicating that its proposed monument would be similar to the Ten Commandments display. (The Summum religion includes the belief that, when Moses received stone tablets from God on Mount Sinai, he received two separate sets of tablets. According to Summum, the first was inscribed with the Seven Aphorisms, a “Higher Law.” Moses only received the Ten Commandments—something of a poor second—after he destroyed the Aphorisms tablet.2) When the city denied Summum’s request, citing its policy, Summum sued, alleging a violation of its free speech rights.3
When the matter came before the U.S. Court of Appeals for the Tenth Circuit, that court held that park monuments remained the speech of the donor entity and, thus, constituted private, not government, speech, in a traditional public forum. Because the city’s content-based choices and policy failed strict scrutiny review, the city was ordered to accept Summum’s monument. A divided Tenth Circuit subsequently denied the city’s petition for a rehearing and rehearing en banc.4 The judges who dissented on the denial of rehearing (who would be referred to in the Supreme Court decision) pointed out that parks, as traditional public forums, had to be open to speeches, demonstrations, and other forms of transitory expression. The city, in this case, had not, “by word or deed, invite[d] private citizens to erect monuments of their own choosing in these parks. It follows that any messages conveyed by the monuments they have chosen to display are ‘government speech,’ and there is no ‘public forum’ for uninhibited private expression.”5
Following the grant of certiorari, the International Municipal Lawyers Association (IMLA) filed an amicus brief in support of the city, authored by Professor Mary Jean Dolan of the John Marshall Law School.6 The brief included a questionnaire distributed to IMLA members regarding existing municipal practices regarding privately donated monuments displayed in parks, and a summary of the responses received. The questions included whether “the municipality you represent has been offered, accepted or rejected any monument(s) by/from a private person,” whether the monument was accepted or rejected; whether the municipality applied “any content-related criteria (e.g., local historical significance) in determining” to accept or reject the monument; whether the municipality owned and maintained accepted monuments; and whether there was any “public opposition to the existence or location of a monument, whether proposed, new, or previously-existing.”7 Out of the 117 applicable responses, 112 indicated that the municipality clearly exercised some form of content control over the selection and display of donated monuments in public parks, either by way of a written policy, an ordinance, a legislative or executive decision that required prior submission and/or design input, or another form of regulation and review.8 This information proved to be critically important, giving the Court a feel for how common it was for park monuments to be the donation of a private entity and, second, indicating that some form of content control and discretion was usually exercised by the donee (though this could fall short of a specific written policy).
The U.S. Supreme Court cited this survey of existing monuments and placement policies in determining that the placement of a permanent monument in a public park was a form of government, not private, speech; further, that although parks were a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park was not a form of expression to which forum analysis applied. Justice Samuel Alito wrote the opinion, with five Justices filing concurring opinions—Justice Stevens (joined by Justice Ginsburg), Justice Scalia (joined by Justice Thomas), Justice Breyer, and Justice Souter.
The Court began by noting that there were no prior decisions on the application of the Free Speech Clause to a government entity’s acceptance of privately donated, permanent monuments. Like private entities, a government had a right of expression, the “right to speak for itself.”9 While the Free Speech Clause restricted the government’s regulation of private speech, including speech in traditional public forums, it did not apply to the government’s own speech. Permanent monuments accepted by governments and placed on public property, despite the fact that they were often donated or financed by private entities, “typically represent government speech.”10 Such displays were a traditional form of a government’s expression, and “throughout our Nation’s history, the general government practice with respect to donated monuments [was] one of selective receptivity,”11 demonstrated by way of design input, prior submission requirements, requests for modifications, and legislative approval of the specific content. In addition, the public parks in which the displays were placed were generally “closely identified in the public mind with the government unit that own[ed] the land.”12 Accordingly, Pleasant Grove City, like other governments, was entitled to take into account content-based factors, like local history and culture, in deciding whether to accept a donated monument. Further, in making the decision to accept or reject a permanent monument, the municipality was legitimately choosing its own message and shaping its municipal identity.
The Court rejected Summum’s argument that something more definite or formal (e.g., the municipal council actively passing a resolution) was needed before a government could be said to adopt a monument as its own expressive vehicle. “We see no reason for imposing a requirement of this sort,” stated the Court, adding that the city, in this case, took ownership of most of the monuments in the park.13 To require anything more would be a “pointless exercise that the Constitution does not mandate.”14 Moreover, this would be unworkable for other reasons: a monument, even a text-based one, could easily convey more than one message. As demonstrated by the Statue of Liberty, the message intended by the monument’s creator or donor could be different from that expressed by the government accepting the monument and could change over time.15
Public forum analysis was “out of place” in addressing such displays.16 The installation of permanent monuments was not analogous to other forms of speech on government public property—unlike demonstrating or leafleting, parks could only accommodate a finite number of permanent displays—and the application of content-neutral time, place, and manner restrictions was not feasible because the “obvious truth of the matter [was] that if public parks were considered to be traditional public forums for the purpose of erecting privately donated monuments, most parks would have little choice but to refuse all such donations.”17
Several of the Justices touched briefly on the “shadow” in this case, the Establishment Clause. Justice Scalia, referring to the Court’s earlier ruling in Van Orden v. Perry,18 declared that the city did not need to “fear that [its] victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire. Contrary to respondent’s intimations, there are very good reasons to be confident that the park displays do not violate any part of the First Amendment.”19 Justice Souter, taking a broader look, indicated that if a monument had “some religious character, the specter of violating the Establishment Clause” would require the city “to take care to avoid the appearance of a flat-out establishment of religion, in the sense of the government’s adoption of the tenets expressed or symbolized.”20 It was, however, “simply unclear how the relatively new category of government speech [would] relate to the more traditional categories of Establishment Clause analysis, and this case [was] not an occasion to speculate.”21
Justices Stevens and Breyer also echoed the need for municipalities to be careful. Justice Stevens indicated the Court’s decision was not a “free license” for a government to “communicate offensive or partisan messages”22; and Justice Breyer likewise indicated that the government speech doctrine would not permit a city to “discriminate in the selection of permanent monuments on grounds unrelated to the display’s theme, say solely on political grounds.”23 Another limitation on the ruling is that it addresses only permanent displays: there may be issues with respect to more transient or temporary displays in public parks that will need to be addressed by other rulings.
Questions clearly remain, and the debate over the parameters of the government speech doctrine will continue. Indeed, the “fire” mentioned by Justice Scalia ignited a scant few days after the Summum ruling. In late February, the Court agreed to hear a case that involves a cross erected on federal land—on what used to be part of the Mojave National Preserve—by private citizens as a memorial to the “Dead of All Wars.”24 Subsequently, in light of an Establishment Clause challenge, Congress enacted legislation ordering the Secretary of the Interior to convey a one-acre parcel of land that included the monument to a veterans’ group, in exchange for a parcel of privately owned land of equal value, with the federal government retaining a reversionary interest in the event the memorial use lapsed. The statute, however, did not mandate that a cross remain as part of the memorial. The Ninth Circuit determined that the presence of a cross on federal land violated the Establishment Clause; following the transfer, it held that the government continued impermissibly to endorse religion despite the divestiture, by allegedly retaining control and oversight over the land and by continuing to endorse religion by permitting a cross at the site.25 Can a government entity sidestep an Establishment Clause challenge with respect to a sectarian display on public land by simply deeding or exchanging the land, and leaving the symbol intact? We’ll know after the case comes up for argument in the Court’s next Term, starting October 5.
The other blockbuster case before the Court is the disparate impact case, Ricci v. DeStefano,26 argued on April 22. Ricci, an appeal from a very brief ruling of the Second Circuit Court of Appeals, deals with Title VII of the Civil Rights Act of 1964 in the context of firefighter testing and promotion procedures. The plaintiffs were all firefighters employed by the City of New Haven, Connecticut, who applied for promotion and took the necessary exams in 2003. The exams were prepared by an Illinois company that specialized in entry-level and promotional examinations for police and fire departments. The company’s vice-president subsequently testified that all of the questions were drawn from or based in the syllabus and that the exam was facially neutral.
A city regulation provided that once the test results were “certified,” the fire department had to promote from the group of applicants achieving the top three scores. All but one of the top candidates was white (the exception was Hispanic). New Haven’s Civil Service Board, charged with certifying the results, held hearings in which the “very significant disparate impact” was raised by the city’s corporation counsel, who “strongly advocated against certifying the exam results.”27 Ricci, a white candidate, testified before the board in favor of certifying the results, pointing out that he had “studied 8 to 13 hours a day to prepare for this test and [spent] over $1,000 in funds to study” for it, including purchasing books and paying an acquaintance to read them on tape because he was dyslexic.28 The board ultimately did not certify the promotional exams’ results, relying on federal, state, and local anti-discrimination laws, and arguing that it had a good-faith belief that Title VII mandated noncertification. According to the plaintiffs, however, the city and its board refused to promote them due to political pressure (the interest of pleasing minority voters and other constituents and a wish to avoid “public criticism” for a perceived lack of diversity).29 When Ricci and some of the other applicants sued, alleging violations of Title VII and their equal protection rights, the district court upheld the city’s decision and granted it summary judgment, finding that the defendants’ “motivation to avoid making promotions based on a test with a racially disparate impact, even in a political context, [did] not, as a matter of law, constitute discriminatory intent”30; and that there was no equal protection violation in the decision not to use the promotional exam results. “None of the defendants’ expressed motives could suggest to a reasonable juror that defendants acted ‘because of’ animus against non-minority firefighters who took” the exams.31 In a two-page decision, the Second Circuit affirmed.32
The case presents the questions of (1) whether Title VII and the Equal Protection Clause allow a government employer to reject the results of a civil-service selection process because it does not like the racial distribution of the results, or whether such rejection amounts to racial discrimination, and (2) whether an employer violates 42 U.S.C. § 2000e-2(l), which makes it unlawful for employers “to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race,” when it rejects the results of such tests because of the race of the successful candidates.
The plaintiffs argued that the city’s decision to preemptively discard the test results (the “race-based scuttling” of the promotions that they had earned) based solely on evidence of adverse impact was not required or permitted by equal protection or Title VII and that the city’s claim that its actions were “race-neutral” (as no one, regardless of race, was promoted) was incorrect. Because the refusal to certify the results was race-based, they argued that the Second Circuit erred in not applying strict scrutiny to that decision.
The difficulty with the Ricci scenario—as pointed out by Justice Souter in oral arguments—is that it places the governmental body in “a damned if you do, damned if you don’t situation.”33 By going forward and certifying the results, it will “inevitably” face a disparate impact lawsuit; alternatively, by doing what was done in Ricci and rejecting the results in a good-faith attempt to achieve racial proportionality in the candidates selected and avoid litigation, it faces a disparate treatment lawsuit.
IMLA has filed an amicus brief in this case in support of the City of New Haven. The decision in Ricci will have a far-reaching impact on public employers struggling to create a diverse workplace, while at the same time trying to avoid Title VII “reverse discrimination” lawsuits.
Endnotes
1. 129 S. Ct. 1125 (2009).
2. See The Aphorisms of Summum and the Ten Commandments at http://www.summum.us/philosophy/tencommandments.shtml.
3. Summum had raised, but abandoned, an Establishment Clause argument before the case reached the appellate courts.
4. Summum v. Pleasant Grove City, 499 F.3d 1170 (10th Cir. 2007). For a more detailed discussion about the background to the case, see Sophia Stadnyk, Supreme Court Watch: Moses Monuments, and Municipal Messages , 32 St. & Loc. L. News No. 2 (Winter 2009), at 7.
5. 499 F.3d at 1175 (Justice McConnell, joined by Justice Gorsuch, dissenting from the denial of rehearing en banc ).
6. Brief of Amicus Curiae International Municipal Lawyers Association in Support of Petitioners, 2008 WL 2550618 ( U.S. June 23, 2008) (No. 07-665).
7. Id. , app. B.
8. Id. , app. D.
9. 129 S. Ct. at 1131 (citing Bd. of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 229 (2000)).
10. Id. at 1132.
11. Id. at 1133.
12. Id.
13. Id. at 1134.
14. Id.
15. The Court referred to the fact that the statue was given to the United States by the French Republic as an expression of “republican solidarity and friendship,” but later came to be viewed as a “beacon welcoming immigrants to a land of freedom.” Id. at 1136–37.
16. Id. at 1138.
17. Id.
18. 545 U.S. 677 (2005) (Ten Commandments monuments had an “undeniable historical meaning,” not just a religious one).
19. 129 S. Ct. at 1139 (Justice Scalia, with Justice Thomas concurring).
20. Id. at 1141.
21. Id. at 1142.
22. Id. at 1139.
23. Id. at 1140.
24. Buono v. Kempthorne, 527 F.3d 758 (9th Cir. 2008), cert. granted, Salazar v. Buono, 129 S. Ct. 1313 (2009) (No. 08-472).
25. Buono v. Kempthorne, 502 F.3d 1069, 1082–86 (9th Cir. 2007) (noting that “carving out a tiny parcel of property in the midst of this vast Preserve—like a donut hole with the cross atop it—will do nothing to minimize the impermissible governmental endorsement.” Id. at 1086).
26. 530 F.3d 87 (2d Cir. 2008), cert. granted, 129 S. Ct. 893 (2009) (Nos. 08-328, 07-1428).
27. 554 F. Supp. 2d 142, 150 (D. Conn. 2006).
28. Id. at 146. Ricci scored sixth highest on the exam, although at the hearings, none of the results were identified by name, and none of the candidates knew where they had placed.
29. Id. at 150.
30. Id. at 160.
31. Id. at 162.
32. 530 F.3d 87 (2d Cir. 2008). The court later denied an application for rehearing and rehearing en banc ; see 530 F.3d 88 (2d Cir. 2008).
33. Oral Argument Transcript at *8, online at http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-1428.pdf.
