Talk:Board of Trustees of the University of Alabama v. Garrett

There's some material in this article that seems irrelevant, other material that seems incorrect, and yet other material that is plainly the product of original research. Do others believe the article needs a fairly comprehensive rewriting? Hydriotaphia 02:15, 3 February 2007 (UTC)


 * It should be noted that the "irrelevent" or "incorrect" "original research" refers to six items from Court opinions, five of them from the majority opinion, where the opinions of the Court were mistaken for something else by Hydriotaphia.Jimmuldrow 23:05, 19 February 2007 (UTC)


 * Hi, Jim. I think you're jumping to conclusions here.  All of my objections have been focused not on quotes from the majority opinion, but on unsupported interpretations of that opinion.  The alleged relevance of Sandoval is a good example of this.  The opinion, as Ferrylodge has pointed out, never once references Sandoval, and Sandoval never refers to Garrett.  Respectfully, Hydriotaphia 23:11, 19 February 2007 (UTC)

I was referring to six items deleted by you before that, Hydriotaphia. The comment you made at the top dates from then.Jimmuldrow 02:05, 20 February 2007 (UTC)

Well, I can dig up some more comments from the opinion of the Court if you'd like. Would that help?Jimmuldrow 06:19, 7 February 2007 (UTC)

References with quotes from relevant Court opinions were added to show that what's in the article is based on Court opinions, not the opinion of Wikipedians. You missed a few spots.Jimmuldrow 16:50, 10 February 2007 (UTC)

I'm sorry, Jim, I'm not sure what you mean. Who is "you" (me?) and what spots are you talking about? Thanks! Hydriotaphia 23:03, 10 February 2007 (UTC)

The reference to Sandoval is not relevant here. Sandoval is a case which only concerns whether a private right of action may be implied under a particular federal statute. It's not about congressional power to create such a right of action. For these reasons I have erased the section devoted to a discussion of Sandoval. Hydriotaphia 21:53, 16 February 2007 (UTC)

I never said that that this was about congressional power. The Rehnquist quote was about a side issue to Garrett that would become very relevant when deciding another issue: whether discrimination based on "race, color or national origin", which fits the "strict scrutiny" comment that Rehnquist mentioned, would allow "disparate impact" as a cause. I didn't know the Fourteenth Amendment applied only to Congress. Are you sure about this?Jimmuldrow 23:39, 16 February 2007 (UTC)

In fact, Garrett was decided on February 21, 2001. Sandoval was argued January 16, 2001 and decided April 24, 2001. So the two cases overlapped, and the references to "strict scrutiny" and "disparate impact" were probably more than coincidental.Jimmuldrow 23:47, 16 February 2007 (UTC)

I don't understand your argument. I'll take it piece by piece and try to explain what I don't understand.


 * a side issue to Garrett that would become very relevant when deciding another issue: whether discrimination based on "race, color or national origin", which fits the "strict scrutiny" comment that Rehnquist mentioned, would allow "disparate impact" as a cause.

If it's a "side issue," then why are we discussing it here? And what's the "other issue" to which you refer? Is it an issue in Sandoval? An issue in Garrett? In Sandoval the issue wasn't whether disparate impact was constitutionally permissible; the issue was whether a particular statute was intended by Congress to apply to disparate racial impact and whether that statute contained an implied private right of action. In Garrett the issue was not disparate impact or anything to do with race at all; it was the extent of congressional power under Section 5 with respect to disability-based discrimination.


 * I didn't know the Fourteenth Amendment applied only to Congress.

I really don't understand this comment. The Fourteenth Amendment's substantive provisions prohibit certain actions by the states and is a positive grant of power to Congress. I'm not sure what this has to do with what we're discussing.


 * In fact, Garrett was decided on February 21, 2001. Sandoval was argued January 16, 2001 and decided April 24, 2001. So the two cases overlapped, and the references to "strict scrutiny" and "disparate impact" were probably more than coincidental.

With respect, this argument is nothing more than mere speculation. If it were included in either the Garrett or the Sandoval articles, it would be inappropriate – first, because it is speculation, and second, because it is your speculation, i.e., your personal interpretation of these decisions. That is both POV and OR. Hydriotaphia 02:35, 17 February 2007 (UTC)

You're the one that brought up the "congressional power" comment, and I don't understand it either, or at least I never said this had any connection to Sandoval, and you seemed to suggest otherwise up above. Rehnquist's comments about "disparate impact", "racial discrimination" and "strict scrutiny" were issues that applied to Sandoval. The way I phrased it allowed readers to decide for themselves whether this was by chance or not, since I didn't speculate on that in the article.Jimmuldrow 03:23, 17 February 2007 (UTC)

So if I were to phrase it in a way that leaves out "congressional power" arguments that neither of us understand as having anything to do with Sandoval, and mention only the things that clearly are relevant to it, we'd have ... exactly what you removed.Jimmuldrow 03:26, 17 February 2007 (UTC)

Try reading what is, or was, there and not at what was never there.Jimmuldrow 03:28, 17 February 2007 (UTC)

What you've said still doesn't respond to the underlying concern, which is that any reference to Sandoval in this article is utterly inappropriate, because the two cases have nothing to do with each other. Here, for our reference, is the section you added:

"Rehnquist's comment that 'Although disparate impact may be relevant evidence of racial discrimination, see Washington v. Davis, 426 U. S. 229, 239 (1976), such evidence alone is insufficient even where the Fourteenth Amendment subjects state action to strict scrutiny' would be relevant to the Court's subsequent Alexander v. Sandoval decision. Sandoval included the issue of disparate impact in a case that, because it dealt with Title VI of the Civil Rights Act of 1964, included racial discrimination where strict scrutiny would normally apply."

The comment of the majority was aimed at showing the supposed lack of congruence and proportionality in the ADA. The argument the majority was making was the following: (1) The ADA allows for disparate impact lawsuits; (2) the Equal Protection Clause, under governing Supreme Court jurisprudence, doesn't recognize disparate impact as a constitutional violation even where race is concerned; (3) a fortiori, the Clause doesn't recognize disparate impact as a constitutional violation where a non-suspect class is concerned; and (4) therefore (so goes the argument), the ADA's remedy is not congruent and proportional to any constitutional violation. In short, then, the majority's argument is an argument dealing with congressional power under Section 5 of the Fourteenth Amendment. Its reference to disparate impact concerns constitutional authority, not legislative intent.

Sandoval, by contrast, was about whether regulations promulgated pursuant to § 602 of Title VI – regulations which proscribed actions creating a disparate racial impact in federally funded programs – created a private right of action to enforce those regulations in federal court. The majority in Sandoval assumed for the sake of argument that § 602 allowed for disparate impact regulations, and then considered whether a private right of action existed. See majority op. ("[W]e assume for purposes of this decision that § 602 confers the authority to promulgate disparate-impact regulations; the question remains whether it confers a private right of action to enforce them." (footnote omitted)). It is therefore wrong to say, as you did, that "Sandoval included the issue of disparate impact." Sandoval, instead, assumed that a prohibition on disparate racial impact was authorized by both the Constitution and the statute, and then proceeded to determine whether Congress had meant to authorize a private right of action under the statute. Sandoval was about whether a private right of action could be implied; it was about congressional intent with respect to a statute, not congressional power with respect to the Constitution (which was the subject of Garrett). Sandoval did not question (or even discuss) whether Congress could, if it wanted to, create a statute which prohibited disparate racial impact in federally funded programs. Rather, Sandoval was about whether Congress had intended to create a private right of action to enforce a particular statute.

Moreover, Title VI of the Civil Rights Act of 1964 was enacted pursuant to Congress's power under the Spending Clause, not its power under Section 5 of the Fourteenth Amendment. See Barnes v. Gorman, 536 U.S. 181, 185-86 (2002) ("Title VI invokes Congress's power under the Spending Clause, U.S. Const., Art. I, § 8, cl. 1, to place conditions on the grant of federal funds.") Thus even if we assume for the sake of argument that Sandoval concerned congressional power under the Constitution (which it did not), it would have concerned congressional spending power, not congressional power to enforce the provisions of the Fourteenth Amendment.

To sum up: Garrett and Sandoval simply have nothing to do with each other. To suggest otherwise is the merest speculation and without any support that I can find either in the opinions themselves or in the secondary literature. I feel I'm repeating myself here and don't know what else I can say. Respectfully, Hydriotaphia 05:11, 17 February 2007 (UTC)

Again, you're the one that mentions congressional legislation and so forth. Whether these cases were related on many issues was never alleged. You seem to be more single-minded than Rehnquist on this issue. So, if we assume no more than what you reverted, without any speculation as to whether Garrett and Sandoval were exactly or mostly or even halfway alike, without making one comment of Rehnquist's more or less than what it was, he made one comment that applied more to Sandoval than the rest. You read a lot more into this than existed. So again, try reading what is, or was, there and not what never existed, without over-interpreting all kinds of things that were never alleged. On that basis, all your complaints could easily be remedied by reverting to exactly what was there before. If you keep over-interpreting, deliberately or otherwise, the result is a dense verbal fog almost as thick as the sepia ink from a cuttlefish.Jimmuldrow 07:24, 17 February 2007 (UTC)

If you attach anything remotely connected to what's there, and everything connected to that, you'd have the whole universe.Jimmuldrow 07:45, 17 February 2007 (UTC)

As to whether the "strict scrutiny" mentioned by Rehnquist has to apply to all things mentioned by you, here is what Wikipedia has to say about it:


 * Strict scrutiny is applied based on the constitutional conflict at issue, regardless of whether a law or action of the U.S. federal government, a state government, or a local municipality is at issue. It arises in two basic contexts: when a "fundamental" constitutional right is infringed, particularly those listed in the Bill of Rights; or when the government action involves the use of a "suspect classification" such as race or national origin that may render it void under the Equal Protection Clause. ...


 * Legal scholars, including judges and professors, often say that strict scrutiny is "strict in theory, fatal in fact," because popular perception is that most laws subject to this standard are struck down. However, an empirical study of strict scrutiny decisions in the federal courts, by Adam Winkler, found that laws survive strict scrutiny over thirty percent of the time.Jimmuldrow 15:29, 17 February 2007 (UTC)

I'm sorry, Jim, I remain convinced that the section shouldn't be in there. The only justification for its inclusion that you've given, so far as I can tell, is the phrase: "he [i.e., Rehnquist] made one comment that applied more to Sandoval than the rest." But this, it seems to me, isn't any justification at all. For the reasons given above (in what seems to me exhaustive detail), Rehnquist's comment in fact did not apply to Sandoval. Sandoval, as said before, never concerned itself with disparate impact, strict scrutiny, etc. (I'm not sure what you believe the Wikipedia quote about strict scrutiny proves; perhaps you can be more explicit here.) Again, Sandoval was a case about statutory interpretation. The italicized comment you added to your section – which, on mere stylistic grounds, has absolutely no place in an encyclopedia, in my opinion – does not remedy the problem. For the only reason to include any reference to Sandoval in the article on Garrett is either to imply or to state that Sandoval and Garrett have something to do with each other. A disclaimer that the section is not meant to imply anything therefore prompts the question: Why is the section here at all? For these reasons, I believe the section should be removed. Respectfully, Hydriotaphia 17:21, 17 February 2007 (UTC)

As a postscript, I am thinking about requesting mediation for this page and other similar pages. I do not doubt that you mean well, and I can tell you feel passionately about these issues, but I feel we're talking past each other and need a neutral third party's help. Let me know what you think. Best wishes, Hydriotaphia 20:41, 17 February 2007 (UTC)


 * Hi Jim and Hydriotaphia. I read over this article for the first time today, and edited it.  Regarding Garrett and Sandoval, as far as I can tell, Garrett did not mention or cite Sandoval, and conversely Sandoval did not mention or cite Garrett.  Therefore, I think it's appropriate to leave Sandoval out of the present article.  They may be relevant to each other, and they may be irrelevant to each other, the critical point being that none of the justices thought they were sufficiently relevant to each other to mention.


 * People wanting to learn more about Rehnquist-era decisions such as Sandoval can click on the link provided at the top of the "Results" section of this article. I hope that will be adequate and satisfactoryFerrylodge 23:54, 17 February 2007 (UTC)


 * That's a perfectly acceptable outcome to me. Thanks for your edits.  Hydriotaphia 01:02, 18 February 2007 (UTC)

Hi, FerryLodge. Hi, Hydriotaphia. Hava a nice day.Jimmuldrow 00:18, 18 February 2007 (UTC)

Hydriotaphia - Above you said, "Sandoval, as said before, never concerned itself with disparate impact, strict scrutiny." Now that you've had some time to review Sandoval, are you sure about this? Strict scrutiny deals with discrimination based on race and national origin, as does Sandoval. And disparate impact was what the case was all about. Do you still have any questions about this?Jimmuldrow 06:13, 1 March 2007 (UTC)

Jim, with respect, disparate impact – i.e., the standard of disparate impact itself – was emphatically not what Sandoval was "all about." Rather, Sandoval concerned itself with a question of statutory interpretation: did Title VI authorize an implied private right of action to enforce a regulation which prohibited disparate impact. There is simply no connection between Garrett and Sandoval. Can you explain to me what Garrett (not strict scrutiny, not disparate impact, but Garrett) has to do with Sandoval. I'm truly sorry, and sincerely wish I understood and could agree with your no doubt earnestly held view, but I haven't heard you articulate any connection between Garrett (which concerned itself not with disparate impact, nor race or national origin, nor strict scrutiny, but rather with the power of Congress to authorize a remedy against states for discrimination against a group which is subject to rational basis under the Constitution) and Sandoval. Best wishes, Hydriotaphia 02:25, 2 March 2007 (UTC)

And what was the result of the statutory interpretation? Also, the specific sentence from Garrett is again the issue, not the whole case.Jimmuldrow 05:22, 2 March 2007 (UTC)

The result of the statutory interpretation was that there was no private right to enforce the disparate impact regulations. I still don't see what that has to do with Garrett. What specific sentence from Garrett are you referring to? The one which mentions Washington v. Davis? If so, I still don't see the relevance. Washington v. Davis was a case about whether the Constitution itself disallows disparate impact, not whether a particular statute does. In any case, the fact that Garrett doesn't refer to Sandoval nor Sandoval to Garrett should be conclusive here, as I believe Ferrylodge has pointed out. (Unless, of course, you can find a reputable secondary source that draws a connection between the two cases; it would appear, however, that you have been unable to find one.) Any attempt to connect the two is original research, as is pointed out here. Best wishes, Hydriotaphia 21:14, 3 March 2007 (UTC)

Jim, I really like your recent edits to the "dissent" section. Thanks for doing that. Best, Hydriotaphia 17:30, 4 March 2007 (UTC)

Hi Jim. I'm going to eliminate your recent addition to the article, for the following reasons. Thus my erasure. Respectfully, Hydriotaphia 21:08, 4 March 2007 (UTC)
 * 1) The relevance of the Winkler article, even in the abstract, is not clear to me.  Garrett was not a case that applied strict scrutiny to any legal classification.
 * 2) More specifically, having just read the Winkler article, I can say that the article says very, very little – and indeed, purports to say little – about the relative "strictness" of rational basis and strict scrutiny.  Rather, the article concerns strict scrutiny alone, and makes no comparison between the likelihood that rational basis scrutiny will result in an invalidation of a law and the likelihood that strict scrutiny will result in an invalidation.  Your addition cited to the Winkler article in support of a comparison between strict scrutiny and rational basis.  (Your addition stated that strict scrutiny was stricter "in theory" than rational basis.)  Because the Winkler article says nothing that is relevant to such a comparison, the article is irrelevant here.

Inappropriate edits
Jim, you have just reverted every single edit that I made today, without the slightest explanation. Here are your edits. They seem to simply restore the page to how you edited it yesterday. See here. Do you think that's really a helpful way to proceed?Ferrylodge 07:03, 18 February 2007 (UTC)

I agree with Ferrylodge's comment, and would ask you, Jim, to explain your changes before you make them; this is what I have done here, and what it appears Ferrylodge has done also. I would also ask you to sign in before you edit. Thanks. Hydriotaphia 07:07, 18 February 2007 (UTC)

"Aftermath" section
It's unclear to me why the "Aftermath" section should be included. The cases cited concerned section 504 of the Rehabilitation Act, passed pursuant to the Spending Clause. While Garrett figured in the courts' analysis of whether states validly waived their sovereign immunity by accepting federal funds, the cases were really about the Rehabilitation Act and the Spending Clause, not the ADA or the Fourteenth Amendment. Unless someone can provide a justification for the "Aftermath" section, I think it should be eliminated. Respectfully, Hydriotaphia (talk) 19:49, 19 December 2010 (UTC)