The ‘Disappearing’ of Discrimination From Courts

On the eve of a pending U.S. Supreme Court decision that could decide the fate of affirmative action in higher education, one University of Virginia School of Law professor set out to unravel a related mystery. Why did four different federal district courts reject a program aimed at repairing obvious past discrimination against Black and other minority farmers? And are federal courts “disappearing” the history of discrimination?

Joy Milligan

According to Professor Joy Milligan, who researched scores of federal district and appellate court cases for a new paper on the topic, the answer depends on courts’ fickle use of animus doctrine.

Under the Supreme Court’s animus doctrine, litigants in constitutional discrimination claims must prove the offending party has chosen to act because of their animus, or hostility, toward a particular group. But as recent cases in federal district courts have shown, animus is hard to pin down.

“Animus is a shapeshifter,” Milligan writes in her paper, “Animus and the Distortion of the Past,” which is forthcoming in the Alabama Law Review. “Animus doctrine is malleable and contingent, often existing only in the eye of the beholder; it can easily support either side of a conflict, depending on the judge’s sympathies.”

The irony Milligan illuminates is that courts have made it increasingly difficult for states to prove their own past animus when they are seeking to defend race-based measures to address inequity — and even Jim Crow-era discrimination doesn’t seem to qualify as animus these days.

“If the government’s own systemic racial discrimination cannot be the premise for racial remedies, perhaps nothing can,” she writes, adding that we are now in a “moment of near-absurdity” when it comes to courts recognizing discrimination.

Animus has also become a double-edged sword in constitutional equal protection cases, Milligan says. It has, in recent years, advanced the cause of LGBTQ rights in the courts, yet also protected the right of religious objectors to opt out of observing those rights.

When a law or program favors or disfavors certain discrete groups, courts must apply “strict scrutiny” to the act being challenged. The program must be serving a “compelling” state interest, and it must be narrowly tailored to serve that precise interest.

When animus, rather than a compelling interest, has motivated the act, it is unconstitutional. Justices struck down the segregation of public schools in Brown v. Board of Education due to the state government’s racial animus. But when the compelling interest is to rectify such past discrimination through affirmative action-type programs, Milligan says, courts have twisted the animus doctrine to require states to prove specific instances of animus, among other doctrinal hurdles.

Milligan’s research found that, as courts began applying strict scrutiny to affirmative action programs in the 1980s, those specific instances became increasingly difficult to find, even though the larger pattern of discrimination was obvious.

The 1978 decision in Regents of the University of California v. Bakke set the stage for this era. In the case, the justices ruled that the racial quotas used by the University of California at Davis’ medical school were unconstitutional, but said race could be considered as one of several criteria for admission.  Under Bakke, institutions could justify race-based measures in two ways: by showing that they were pursuing holistic student body diversity, based on many attributes, or by showing that they needed to use race-based measures to repair their own past racial discrimination.

“After Bakke, the Supreme Court and lower courts applying Bakke essentially said, ‘We’re so suspicious of race-based government action, so anything you do to try to make the world more equal has to be premised on proof that you essentially acted with animus in the past,’” Milligan said. “And that continues to shape the present.”

Her paper builds off the work of Ian Haney-Lopez, a Berkeley Law scholar who predicted that Jim Crow would eventually fail to satisfy the animus test, and Professors Micah Schwartzman ’05 and Leslie Kendrick ’06, both faculty at UVA Law. The latter pair’s article drew attention to the fact that federal courts couldn’t find impermissible anti-religious animus behind the Trump administration’s ban on immigrants from Muslim countries but could find an underlying anti-religious sentiment in order to strike down equal rights ordinances designed to protect LGBTQ individuals from discrimination.

“It was background inspiration, and it got me thinking, ‘OK, I see a thread with animus and how it works in the race context and how malleable it is in all these other arenas,’” Milligan said.

From there, Milligan delved into a series of district court cases successfully challenging a COVID-era Department of Agriculture loan forgiveness program for minority farmers.

“That program was quickly enjoined and we didn’t see it litigated up to the appellate courts, but there was a very clear policy history — written into law — of discrimination and segregation in USDA programs,” Milligan said. “Those decisions, some of which more were more thoughtful and fleshed out than others, showed what a high bar it is to show past intentional discrimination that continues to shape the present.”

Milligan’s paper traces the history of discrimination and segregation in federal farm support programs, beginning with the creation of segregated state land-grant universities, which were later combined with research stations, extension programs and “far-reaching agricultural subsidies and supports.”

Black farmers had little, if any, access to those programs and they lost at least 10 million acres of land from 1914 forward, she writes.

Federal reports by the U.S. Commission on Civil Rights in 1965 and 1982 documented widespread discrimination in the programs, and the courts examining the loan forgiveness program acknowledged the “sad,” “dark” and “undisputed” history of discrimination and its effects on Black farmers.

But for the four courts that issued universal injunctions halting the program, that still wasn’t enough to climb today’s slippery animus mountain, Milligan said.

Based on earlier precedent, the courts suggested that the USDA could only have a compelling interest in remedying very specific acts of intentional discrimination, rather than the systemic discrimination documented. Moreover, they found that “any past discrimination is too attenuated from any present-day lingering effects to justify race-based remedial action,” in part because a set of post-2000 settlements offered a segment of affected farmers some level of redress for discrimination from the 1980s forward. The courts suggest that discrimination from the whole of society, rather than specific officials, was to blame, and so not specific enough for judicial redress.

Aside from claims involving racial discrimination, Milligan found surprising twists of animus doctrine in other hot-button cases, such as Dobbs v. Jackson Women’s Health Organization, in which the majority opinion declined to find that animus against women could have played a role in 19th-century anti-abortion laws; Masterpiece Cakeshop v. Colorado Civil Rights Commission, finding the commission was hostile toward the baker’s anti-gay marriage religious beliefs; and Personnel Administrator of Massachusetts v. Feeney, declining to characterize veterans’ employment preferences as a proxy for gender discrimination.

Milligan discussed her draft paper as part of a panel in a March symposium at the University of Alabama School of Law titled “The End of Animus: The Lifespan of Impermissible Purposes.” Fellow UVA Law professor Andrew Hayashi sat on another panel for the symposium and discussed his paper, “The End and the Beginning of Animus.” Both papers will be published by the Alabama Law Review this year.

In a forthcoming paper, Milligan plans to lay a path forward with solutions to the animus puzzle.

As Milligan documents in the current paper, courts have found ways to “disappear” discrimination — by noting the passage of time, or by declaring that because some remedy was carried out, such as bussing for schools or a discrete USDA settlement, the matter has been resolved — but the impact of longstanding inequity is often harder to resolve.

“By portraying Jim Crow as long ago, irrelevant, and likely already cured, conservative courts and activists have rendered a century-plus of overt racial subordination extremely difficult to acknowledge, much less remedy,” she writes.

Despite the courts’ findings that the USDA’s discrimination wasn’t specific enough to remedy through the loan forgiveness program, Milligan was able to identify at least three very specific instances of discrimination in her own look at the agency’s record: The 1890 Morrill Act, in which Congress explicitly blessed the creation of a racially segregated land-grant university system; the repeated authorization of segregated agricultural extension programs that failed to provide assistance to Black farmers; and permitting all-white committees of local farmers — at the height of Jim Crow — to decide which of their neighbors would be entitled to federal benefits.

To break down the more pervasive and systemic causes and effects of racism, she said, you might look at whether an institution had a role in redlining or upholding restrictive covenants, or drawing a school boundary in a way that deliberately fostered racial inequity. (“Maybe there was glaring evidence of animus in the remarks on the record,” Milligan suggested.) For institutions that wish to address those types of past actions, while fending off constitutional suits, they must also show how such prior discrimination helped cause present-day disparities.

“I think it’s conceptually possible to assemble a team of historians, social scientists and economists who can help you think about how best to connect past acts causally to present outcomes,” Milligan said. “I just don’t know how much institutions will invest in doing that.”

Milligan is the Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law. She joined the faculty in 2021 from the University of California, Berkeley School of Law, and began teaching at UVA last fall after a semester-long fellowship at the American Academy in Berlin.