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Save America: Close Yale Law School

When I clerked for Hon. Ralph K. Winter, a judge on the Second Circuit United States Court of Appeals and an adjunct professor at the Yale Law School, he liked to joke that Chief Justice Rehnquist had on his office desk a bumper sticker with the provocative slogan, "Save America: Close Yale Law School." I always parked the story somewhere between the judge's captivating tales of when he and Robert Bork were the faculty's conservative caucus and his insightful observation that the legal academy's focus on "novelty" in publications, combined with its reliance on student-managed journals, led to scholarship that was far too often the equivalent of a science department hiring members of the flat earth society.

But recently, I've come to wonder whether that bumper sticker, so antagonistic to my alma mater, might actually be on to something. First came the prominent Adam Liptak article in The New York Times detailing how Yale Law students and professors were rallying to defeat the nomination of my fellow alumnus (see our editor's initial post here and follow-up here).

Now, a group calling itself the "Alito Project at Yale Law School" has released a 60-page report, The Alito Opinions, that purports to "help readers make an informed decision about appointing Judge Alito to the nation's highest court" through a "comprehensive review of Judge Alito's published opinions from his more than fifteen years on the Federal bench." The report concludes that Judge Alito in general has deferred to agencies and institutions over individual litigants; that he has displayed a "narrow view of civil rights, prisoners' rights, and workers' rights but a broad view of religious freedoms"; that he is permissive of legislative limitations on abortion; and that he is "willing to limit congressional power." The report's release is featured prominently on the law school's web page.

The problem with the Alito Project's report is not merely that it reads more like a one-sided recitation of the facts in a legal brief, rather than the neutral assessment it tries to suggest it is -- and it does -- but that it actually gets the facts wrong. I haven't read all Judge Alito's opinions -- and haven't the time or inclination to do so -- but the very first section of the report makes such a fundamentally flawed legal analysis in describing one of his most-discussed opinions that the report's entire credibility should be called into question. The report says the following:

Judge Alito has also demonstrated a willingness to curb congressional power through interpretation of the Eleventh Amendment. Under the Supreme Court's interpretation of the Eleventh Amendment, an individual may not sue a state in federal court without the state's consent unless Congress abrogates the state's Eleventh Amendment immunity pursuant to a constitutional provision granting Congress that power. Section 5 of the Fourteenth Amendment has been deemed a constitutional provision which grants Congress the authority to abrogate the States' sovereign immunity. In order to abrogate sovereign immunity pursuant to the Fourteenth Amendment, however, Congress must identify conduct trangressing the Fourteenth Amendment's substantive provisions, and must tailor its legislative scheme to remedying or preventing such conduct. According to a 1997 decision of the Supreme Court, the legislation must have a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.

In Chittister v. Department of Community and Economic Development, Judge Alito wrote an opinion for the Third Circuit court that found part of the federal Family and Medical Leave Act (FMLA) exceeded the bounds of Section 5 of the Fourteenth Amendment and thus was prohibited by the Eleventh Amendment. The FMLA required employers, including states, to provide employees with twelve weeks of unpaid sick leave if needed to care for a family member or a serious health condition and permitted employees to sue in federal court if such leave was not granted. Chittister, a former employee of the Pennsylvania Department of Community and Economic Development, brought suit claiming that he was denied such leave.

Judge Alito ruled that the congressional record discussing the greater burden of family caretaking that traditionally falls on women was inadequate to demonstrate a violation of the Fourteenth Amendment's Equal Protection guarantee, stating that "notably absent is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause." Chittister, 226 F.3d at 228-29. According to Judge Alito, "the FMLA does much more than require nondiscriminatory sick leave practices; it creates a substantive entitlement to sick leave." Id. at 229.

The Supreme Court has since upheld as constitutional the part of the FMLA that Judge Alito rejected in Chittister. In Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), the Supreme Court upheld the provisions, stating that "the States' record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits is weighty enough to justify the enactment of prophylactic � 5 legislation." Id. at 735. Chief Justice Rehnquist and Justice O'Connor, two who championed claims of state sovereignty and had been members of the Lopez majority, both voted in the majority in Hibbs.

Report at 6-7 (emphasis added)

The bolded text is just plain wrong. The Supreme Court's decision in Hibbs did not "uph[o]ld as constitutional the part of the FMLA that Judge Alito rejected in Chittister." Rather, the Supreme Court held that Congress's findings of fact (i.e., that working women disproportionally bore the burden of caring for ill family members -- to their disadvantage in the workplace -- and that states had reinforced this problem with facially discriminatory leave laws (e.g., providing for maternity but not equivalent paternity leave)) were sufficient to determine that the FMLA's family leave provision, 29 U.S.C. � 2612(a)(1)(C), was proportionate to a Fourteenth Amendment violation, and thus that Congress had the power under that provision to abrogate states' sovereign immunity and allow individuals to sue the state.

But Chittister wasn't about the FMLA's family leave provision in � 2612(a)(1)(C) but rather its personal leave provision in � 2612(a)(1)(D). In other words, Chittister wasn't suing the state because it fired him for taking leave to care for a family member but rather because it allegedly fired him for taking sick leave for his own illness. Congress's findings that women disproportionately bore the burden of caring for sick family members was completely irrelevant to personal sick leave policies, and Congress made no findings that states had discriminated between men and women in assigning personal sick leave.

In its opinion, the Supreme Court cited only to the conflicting circuit court decisions interpreting � 2612(a)(1)(C) -- not to Chittister or the two other circuit court decisions interpreting � 2612(a)(1)(D). See Hale v. Mann, 219 F.3d 61, 69 (2d Cir.2000); Garrett v. University of Alabama at Birmingham Board of Trustees, 193 F.3d 1214, 1219 (11th Cir.1999), rev'd on other grounds, 531 U.S. 356 (2001). (Each of those other circuit courts agreed with Judge Alito's holding in unanimous opinions. Four of the six judges on the other courts' panels were Carter or Clinton appointees.)

If there were any question whether Hibbs overruled Chittister, at least two circuit courts, since Hibbs was decided, have reaffirmed that Congress lacked the power to abrogate states' sovereign immunity under the personal sick leave provision in � 2612(a)(1)(D). See Touvell v. Ohio Dep't of Mental Retardation & Developmental Disabilities, 422 F.3d 392 (6th Cir. 2005); Brockman v. Wyoming Department of Family Services, 342 F.3d 1159, 1164 (10th Cir. 2003) ("Because the Supreme Court's analysis in Hibbs turned on the gender-based aspects of the FMLA's � 2612(a)(1)(C), the self-care provision in subsection (D) is not implicated by that decision.").

Now, I don't mean to argue that Judge Alito's opinion in Chittister is wholly consistent with Chief Justice Rehnquist's in Hibbs. Judge Alito's opinion doesn't carefully separate the personal sick leave provision of the FMLA from its broader remedial structure, and his dictum -- "the FMLA does much more than require nondiscriminatory sick leave practices; it creates a substantive entitlement to sick leave" -- parallels the dissents of Justices Kennedy and Scalia in Hibbs and rubs against the Chief Justice's analysis in his majority opinion in that case.

But the Alito Project's factual claim that the Supreme Court "upheld as constitutional the part of the FMLA that Judge Alito rejected" is simply false. And there's really no excuse for that mistake, since the Chittister/Hibbs cases have been discussed so extensively over the past several weeks -- most notably online by Ann Althouse on her blog and by Ed Whelan at NRO (see Nov. 2, Nov. 4).

This mistake is the sort of thing you'd expect on a first-year law student's exam, not from the distinguished professors who've signed this report -- although given these guys' track records, it's not totally surprising. Yale's Alito Project faculty include:

Bruce Ackerman, perhaps Yale's most prominent constitutional scholar, whose seminal discovery was that the New Deal court amended the constitution without an amendment (in more recent years, he's developed the brilliant idea that upon reaching adulthood, every young American should get $80,000, to be financed through a 2% annual wealth tax);

Owen Fiss, Yale's civil procedure guru who hurls the Federal Rules of Civil Procedure out the window and calls them garbage on the first day of his civil procedure class (Fiss's main area of contribution to constitutional law is in the field of free speech; Fiss feels that free speech is unfair to "disempowered" groups, so he argues that the government should play a more active role in determining who gets to speak to "even the playing field"); and

Kenji Yoshino, the protegee of Yale Law School Dean Harold Koh and the school's "Deputy Dean for Intellectual Life," whose young intellectual life thusfar has focused mainly on sexual orientation and the law (Yoshino's big idea is that civil rights law should move to focus on "covering," i.e., the problem wherein disfavored groups are pressured to assimilate into "mainstream" culture -- a complaint that has me imagining race discrimination lawsuits over dress codes or suits reminiscient of the South Park episode when Mr. Garrison hopes to get rich in the lawsuit lottery by trying to entice his elementary school to fire him for performing bizarre sexual acts with his lover Mr. Slave in front of his fourth grade class).

I suppose that the best thing I can say right now as a Yale Law alum is that its professors' elementary mistake was one shared by Harvard's most prominent constitutional scholar as well.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.