Last week, I offered a thought experiment to test the argument, made adamantly by the Trump Administration in the travel ban litigation, that courts should not consider campaign statements and other unofficial statements when deciding if a government policy has a discriminatory purpose. The scenario I posited involved a gubernatorial candidate who is elected after explicitly and repeatedly proposing to target Catholic schools for disfavored treatment. Once in office, the new Governor signs a facially neutral executive order that disproportionately impacts Catholic schools. Those schools then challenge the order, and the question arises whether the court can properly rely on the Governor's anti-Catholic campaign statements as evidence that the order was motivated by animus.

Although that precise scenario has not arisen, an analogous one involving animus against Orthodox Jews was litigated in the 1990s. See LeBlanc-Sternberg v. Fletcher, 67 F.3d 412 (2d Cir. 1995). In that case, the Second Circuit considered anti-Orthodox campaign statements made by proponents of a municipality's incorporation who subsequently became municipal officials and enacted a facially neutral zoning ordinance. The Court concluded that the statements provided "ample support" for finding that the "the motivation behind the enactment was discriminatory animus"  Id. at 431. See also id. at 430 (relying on "the plethora of statements in the record attributed to [proponents] who became Village officials, expressing anti-Orthodox Jewish sentiments").

As I noted in my post last week, the federal government urged the Second Circuit to reach this conclusion, arguing that

[W]hen people leading the movement to form a village openly express anti-Orthodox animus and thereafter become cloaked with the color of law as the village's elected and appointed officials, their expressions of religious animus become highly probative evidentiary sources in assessing whether discriminatory intent underlay formation of the village and enactment of its zoning code.

Reply Brief for the United States at 6 (brief available at 1994 WL 16181393).

Moreover, the federal government explained at length to the Second Circuit why the district court in that case had erred in assuming that because the municipality could not have an official purpose before it was established, campaign statements could not be used as evidence of the purpose behind the municipality's subsequent official actions:

[T]he Village acts only through its officials, and the people who became the Village's mayor and four trustees, through whom the Village could (and did) act ... made clear, to varying degrees, their vehement opposition to houses of worship; their anti-Orthodox animus; and their acute awareness of the community to whom they had to cater to become elected officials. The discriminatory animus expressed over time by the persons who became the Village's elected officials ... is thus directly relevant in assessing the intent of the Village. Put another way, the agenda of the individuals who were to enact and interpret the Airmont Zoning Code did not miraculously vanish on the day that the Village began its formal operations. 

Opening Brief for the United States at 40 (emphasis added) (brief available at 1994 WL 16181390).

This week, the State of Hawaii brought the federal government's position in LeBlanc-Sternberg to the attention of the Supreme Court, noting that it represents "exactly the opposite position" on campaign statements as the one the government is taking in the travel ban case. Supplemental Brief Opposing the Government's Application for a Stay and Petition for Certiorari at 30-31. In its reply, the government makes no effort to explain the contradiction, instead relegating the campaign-statement issue to two sentences in a footnote:

Respondents offer no additional justification for impugning a religion-neutral Executive Order based on campaign statements. They cite only a 22-year-old Second Circuit brief addressing -- in the context of claims under the Fair Housing Act, 42 U.S.C. 3601 et seq. -- material showing that the local campaign to create a new village was undertaken for the purpose of excluding a sect.

Reply in Support of Application for Stay Pending Appeal and Pending Disposition of Petition for a Writ of Certiorari at 17 n.5.
The shortcomings of this reply are many, as it fails to account for the following:

1.  The government's position on campaign statements in LeBlanc-Sternberg prevailed in the Second Circuit.

2.  The Second Circuit relied on the campaign statements to uphold liability not only under Fair Housing Act, but also the First Amendment.

3.  Even if LeBlanc-Sternberg had only been a Fair Housing Act case, the government's briefs and the Second Circuit's decision in the case would still be relevant, as they applied to the FHA claim the same discriminatory-purpose analysis from Arlington Heights v. Metropolitan Housing Corp. that the Supreme Court uses in constitutional cases.

4.  In addition to its filings in the Second Circuit, the government filed two briefs with the Supreme Court opposing certiorari in LeBlanc-Sternberg; the briefs were signed by two different Solicitor Generals; and both briefs cited favorably the Second Circuit's finding of unconstitutional "discriminatory animus," which was based on statements by individuals before they became government officials. See Brief for the United States in Opposition at 10, 15-16 (liability stage) (brief available at 1996 WL 33467727); Brief for the United States in Opposition at 9, 12, 14-15, 18 (remedy stage) (brief available at 1997 WL 33561960); see id. at 11 (noting that the Second Circuit had found the remedy "commensurate to the Village's 'egregious constitutional violation' (i.e.,'passing a zoning code based on religious animus')").

5.  There is no rule that past considered positions of the government are rendered unpersuasive simply by virtue of the passage of time.

Moreover, the government's argument in the travel ban litigation that courts examining a measure's purpose should only consider statements "that government actors deliberately made part of the official record" is also inconsistent with the position the government took just three years ago in another case:

It is by now axiomatic that “[d]etermining whether invidious discriminatory purpose was a motivating factor [in a decision] demands a sensitive inquiry into such circumstantial and direct evidence as may be available.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977).... [N]onpublic communications between sponsors, key supporters, and top aides concerning the legislation at issue ... may contain evidence that is highly probative of whether the legislation's passage was motivated, even in part, by a discriminatory intent. Reliance on public statements alone undercuts the inquiry because it is rare for “officials acting in their official capacities [to] announce on the record that they are pursuing a particular course of action because of their desire to discriminate against a racial minority.” Smith v. Town of Clarkton, 682 F.2d 1055, 1064 (4th Cir. 1982).

United States' Motion to Compel the Production of Legislative Documents at 3-4, Veasey v. Perry (S.D. Tex) (motion available at 2014 WL 1028746). See generally Veasey v. Abbott, 830 F.3d 216, 235–36 (5th Cir. 2016) ("To require direct evidence of intent would essentially give legislatures free rein to racially discriminate so long as they do not overtly state discrimination as their purpose and so long as they proffer a seemingly neutral reason for their actions. This approach would ignore the reality that neutral reasons can and do mask racial intent, a fact we have recognized in other contexts that allow for circumstantial evidence.").

The Second Circuit's decision in LeBlanc-Sternberg, the Fourth Circuit's decision in the travel order litigation, and the federal government's arguments in both LeBlanc-Sternberg and Veasey v. Perry all support the proposition that unofficial statements can be probative evidence of official intent. On the other side of the ledger, the government has pointed to no past litigation in which it has made the argument it is now offering about unofficial statements, and no court decisions supporting that novel argument. All of which may explain why its final filing buried the issue in a footnote lacking any serious analysis.

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