E22013437 May 2015

1/9
Question One:
When crafting a remedy or evaluating a plan to address segregation in public
schools, should a court shut their eyes to reality . . . or consider [] the actual reasons for
a plan in light of the real-world circumstances that gave rise to it? Parents Involved in
Cmty. Sch. v. Seattle Sch. Dist. No. 1, 426 F.3d 1162, 1194 (9th Cir. 2005) (Kozinski, J.,
concurring). The answer is different depending on whether the court is imposing a
remedy or appraising the constitutionality of a public schools plan. When a court is
imposing a remedy, it must close its eyes to the surrounding circumstances and confine
itself to the constitutional infringement that is before it. When appraising a schools
decision, that same blind approach is unwarranted and can have disastrous results.
The United States Supreme Courts jurisprudence has often hid behind the label
of strict scrutiny to strike down programs that endeavor to address real-world
circumstances. For example, in Parents Involved, Chief Justice Roberts found that a
Seattle School District could not use racial classifications to create a racially diverse
learning environment. Seattle schools experienced stark racial imbalance, yet the court
found that because Seattle schools were never segregated by law, the school district
could not rely on remedying the effects of past intentional discrimination as a
compelling interest.
This distinction between de jure discrimination and de facto discrimination has
determined how reaching a remedy the Court is willing to judicially impose. Compare
Swann v. Charlotte-Mecklenburg Board of Education (approving an intradistrict busing
plan in a school district organized under de jure segregation) with Milliken v. Bradley
(rejecting as outside the power of the court, a multi-district remedy despite single
district de jure segregation and otherwise clear de facto segregation). In both Swann and
Milliken, the court articulated that the nature of the violation determines the scope of
the remedy.
The broad question for the court in Swann and Milliken was identical: what is the
power of a federal court to remedy segregation in public schools? See Milliken (stating
that certiorari was granted to consider the remedial powers of federal district courts.);
Swann (stating that certiorari was granted to review the scope of powers of federal
courts.). The question in Parents Involved was different. The Court needed to
determine the power of a school district to craft a plan to remedy segregation within the
E22013437 May 2015
2/9
district. See Parents Involved (articulating the legal question as: whether a public
school . . . may choose to classify students by race and rely upon that classification in
making school assignments.).
Scope of Remedy: The Power of Federal Courts to Remedy Segregation in
Public Schools

In Brown v. Board of Education (Brown I), minority school children sued to
obtain non-segregated admission to public schools. The defendants were school districts
that had, through the law, systematically maintained a dual-school system based on
discrimination. The Court found that this violated the Fourteenth Amendment. See
Brown. Finding a constitutional violation, the Court remanded the cases to the District
Courts, ordering desegregation to take place, with all deliberate speed for the parties
to these cases. Brown II (emphasis added).
In Brown, the court did not articulate a level of scrutiny. The school districts,
acting as state actors, had infringed on the students right to equal protection. It was
irrelevant whether the discrimination was invidious or benign no state interest could
justify such discrimination. From that point forward, districts that operated state-
compelled dual systems had an affirmative duty to eliminate racial discrimination root
and branch. Green v. New Kent County. Consistent with this approach, in Swann, with
a defendant before the court that had engaged in state-compelled segregation, the court
acknowledged that the district courts have broad power[s] to fashion a remedy that will
assure a unitary school system. Swann.
The result in Milliken is different, but the guiding legal principle is consistent
with the legal principles articulated in Brown, Green, and Swann. In Milliken, the
district court had ordered parties to submit a multi-district desegregation plan that
would include districts where no constitutional violation had ever occurred. This course
was selected because the district court believed that a Detroit-only plan would not
accomplish desegregation. See Milliken. The Supreme Court, quoting Swann, held that
since no constitutional violation in the non-Detroit school district had occurred,
compelling the non-Detroit school districts to participate in a desegregation plan was
outside the power of an Article III court. See id. The Court consistently held that de jure
segregation violated the equal protection clause, Milliken II (approving desegregation
plans limited to the Detroit School District), but it also acknowledged that an Article III
E22013437 May 2015
3/9
court can only fashion a remedy binding on parties whose case or controversy is before
the court. U.S. Const art. III, 2.; Swann; Milliken.
Desegregation, from a constitutional standpoint, does not mean achieving racial
balance. See Swann; Milliken. An Article III court can order that school district lines be
drawn in a non-discriminatory fashion and it can certainly ensure those school districts
are unitary. Milliken. Ultimately, the power of the Federal district courts is to eliminate
the vestiges of de jure segregation in all facets of their operations. Missouri v. Jenkins
(emphasis added).
Limited Power: Limited Results

The result of this limited power of Federal courts is disastrous. Detroit is 85
percent African-American. African-American unemployment in Detroit was at 23
percent in 2009. The crime rate has soared and schools remain heavily segregated.
G.M., Detroit and the Fall of the Black Middle Class. The path of Detroit is a real-world
example of the effect of a segregated population, be it de jure or de facto.
A Partial Solution: Allow Benign Race Based Classifications under
Rational Basis Review

In Parents Involved, Judge Kozinski argued for a more reasoned approach to
equal protection analysis. (Kozinski, J., concurring). Under Kozinskis approach, courts
would continue to apply strict scrutiny to racial classifications used to oppress
minorities. These classifications, like those in Brown, have no conceivable
justification. Id. Racial classifications that are clearly not meant to oppress minorities
would be reviewed under what has been called rational basis review with bite. See id.
(citing City of Cleburne).
Under this approach, if a litigant challenged a desegregation plan like the one at
issue in Parents Involved, the court would first determine if the racial classification is
meant to oppress or if it has a non-invidious purpose. The court would be guided in this
decision by comparison to elements of discriminatory programs that the Supreme Court
has historically invalidated. Judge Kozinnski called these elements baggage that the
Supreme Court has found objectionable. (Kozinski, J., concurring). If precedent does
not adequately distinguish between benign and invidious, a court should balance
whether the plan (1) segregates or integrates; (2) gives political power based on race;
E22013437 May 2015
4/9
and importantly (3) whether the program creates racial stigma. See Kozinski, J.,
concurring (analyzing the Seattle School District Number 1 plan). These factors are
consistent with the reasons the Supreme Court originally invalidated de jure
segregation. See Brown (discussing the stigmatic effect of segregated schools).
Next a court would determine if the benign race based classification is
rationally related to a legitimate government interest.
1
At this point, the Court would
have the opportunity to determine if the race based classification is constitutionally
permissible, with the full weight of its real-world experience, context, and the offered
justifications of the government.
Looking Forward by Looking Back: Applying Rational Basis Review
Empowers Municipalities without Dramatically Altering Supreme Court
Precedent

Adopting rational basis review for non-invidious race classifications would not
alter the results in Milliken or Missouri v. Jenkins because neither case applied a
standard of review. Instead, the Court found that the desired remedial plan was outside
the scope of the equitable powers of the judiciary. Although Jenkins dealt with the
remedial plan crafted to address de jure segregation, in the Courts view, the Districts
remedial plan went beyond the constitutional violation that was originally found.
Jenkins (finding that requiring funds attract white out-of-district students was outside
the scope of the Courts power).
The case that comes out differently is Parents Involved. As Judge Kozinskis
Ninth Circuit concurrence articulates, the Seattle School District plan promotes
integration, not segregation, does not grant political power based on race, and most
importantly, does not generate any stigma. Parents Involved (Kozinski, J., concurring).
Such a program would satisfy rational basis review. Similarly, offering programs that
generate benefits like historically black colleges would, on-balance, pass constitutional
muster. While they do segregate, they do not grant political power or promote racial
stigma.

1
An argument could be made for requiring the government to show an exceedingly persuasive
justification under intermediate scrutiny. See U.S. v. Virginia. Intermediate scrutiny has been subject to
extensive criticism and defense. See, e.g., Ajmel Quareshi, The Forgotten Remedy: A Legal and
Theoretical Defense of Intermediate Scrutiny for Gender-Based Affirmative Action Programs, 21 J.
Gender Soc. Pol. & L. 798, 829-36 (2013).
E22013437 May 2015
5/9
While the remedies of Federal courts are constrained by the cases before them,
neither logic nor experience similarly requires municipalities to be restricted in
remedying societal problems.
Question Two:
Standing For Class Action Approval
The Fifth Circuit correctly decided that the BP Deepwater Horizon class
certification met the standing requirements under Article III of the United States
Constitution. The elements of Article III standing are injury in fact, the injury's
traceability to the defendant's conduct, and the potential for the injury to be redressed
by the relief requested. In re Deepwater Horizon. The only Article III issue in the BP Oil
Settlement is whether Article III precludes certification of a settlement class that
includes members that have suffered no injury or who suffered no harm caused by the
Deepwater Horizon incident.
Judge Davis noted that there are two primary approaches to the question of
Article III standing for settlement class certification. See In re Deepwater Horizon. One
approach, the Kohen approach, focuses entirely on the named plaintiffs. For the
purposes of class certification, the court ignores the absent class members. Id. (citing
Lewis v. Casey, 518 U.S. 343, 395-96 (1996)). The second approach, the Denney
approach, focuses on whether the class is defined in way that anyone within it would
have standing. Id. (quoting Denney v. Deutsche Bank AG, 443 F.3d 253, 263-64 (2d
Cir. 2006)).
Kohen Approach
Under Kohen, as constructed by the majority in In re Deepwater Horizon, the
only question is whether the named plaintiffs adequately alleged injury that was
traceable to the oil spill. Id. It was uncontested that the named plaintiffs had standing.
See id. (Garza, J., dissenting).
In In re Deepwater Horizon, Judge Garza argued that Kohen was inapplicable at
end of litigation settlement class certification. Id. (Garza, J., dissenting). Judge Garza
relied on a quote from Kohen, which states that [i]f the case goes to trial, this plaintiff
may fail to prove injury. Id. (quoting Kohen, 571 F.3d at 677). The Kohen court was
merely noting that different levels of proof are required at different stages of a trial. The
majority in In re Deepwater Horizon acknowledged that the elements of standing
E22013437 May 2015
6/9
become gradually stricter as the litigation proceeds. Id. It would be inappropriate for a
Court to engage in an evidentiary inquiry for class member standing at the settlement
stage. Id. (quoting Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S. Ct. 1184,
1193-94 (2013)). Kohen is applicable at the settlement class certification stage.
Denney Approach
Under Denny, Article III does not mandate that class members prove their case,
but merely that class members can allege standing. Id. (quoting In re Deepwater
Horizon, 732 F.3d 326, (5th Cir. 2013). The Amended Class Action Complaint expressly
limits claims to the [l]oss of income, earnings or profits suffered by Natural Persons or
Entities as a result of the DEEPWATER HORIZON INCIDENT. (emphasis in the
original). Therefore, the Class does not include any members who could not allege
standing.
Under the Denney approach, Judge Garza again mistakes any evidentiary
requirement for failure to sufficiently allege Article III standing. Garza argues that the
claims administer established that the Settlement Agreement requires no proof of
causation. Id. (Garza, J., dissenting). This is a correct characterization, but the Denney
test explicitly does not require each member of a class submit evidence of personal
standing. Id. (quoting Denney). All that is required is that the class members can allege
standing. This is satisfied by the Business Economic Loss Claim Form, which requires
claimants to attest, under penalty of perjury, that they are asserting economic loss due
to the spill. In re Deepwater Horizon, 744 F.3d 370, 376 (5th Cir. 2014) (emphasis
added).
Judge Garzas opinion would require the class certification and settlement
agreement to be vacated. The parties and court would have to re-negotiate the
settlement terms. The new terms would require claimants to present stronger evidence
of causation. This requirement could create a situation where small business owners
closer to the spill have more difficulty proving causation than larger companies much
further from the spill. See John Goldberg Memo, 15.
Looking Forward: The BP Experience
The BP experience provides an interesting case study for a corporations response
to a mass tort, and for courts and legislators who grapple with the determination of
liability under the Oil Pollution Act (OPA). One lesson, which has largely proved
E22013437 May 2015
7/9
irrelevant because of BPs economic size, is that a settlement should be carefully
constructed to ensure that there is money available to the individuals who have suffered
clear injury that was caused by an oil spill. BPs original goal in settling was to achieve a
global settlement and protect its business interests in the United States. As a result, BP
rushed into settlement terms negotiated in the shadow of the OPA, which has never
been judicially construed. Days after the district court approved the settlement, BP,
concerned with the scope of its liability, filed litigation to construe the settlement
agreement to require proof of causation. In re Deepwater Horizon (Dennis, J.,
concurring).
Interpreting the OPA
The BP experience could have been different if the OPA had been definitively
interpreted. The ambiguity rests in the meaning of the due to clause. The OPA
provides that a party responsible for a vessel that discharges oil is liable for removal
costs and damages that result from such incident. 33 U.S.C. 2702(a). Additionally,
the OPA provides that the party is responsible for [d]amages equal to the loss of profits
or impairment of earning capacity due to the injury, destruction, or loss of real property,
personal property, or natural resources . . . . 33 U.S.C. 2702(b)(2)(E).
Professor John Goldberg argues that these two clauses combine to require a
litigant to show damage to property or natural resources that result from the discharge
and lost profits that are due to that damage. He calls this a second-layer causation
requirement. See John Goldberg Memo, 17. Goldberg would confine liability to
individuals who can show that their businesss profitability depends on their ability to
use property damaged by an oil spill. See id. at 32. Professor Goldberg argues that
support for this interpretation is found in the statutory text, similar statutory regimes,
common law regimes, and policy considerations. See id. at 25.
Professors Goldbergs analysis rests on a belief that result from and due to
must mean different things because otherwise inclusion of both terms would be
superfluous. A different way of looking at the statutory text is that result from and
due to both have their plain meaning: caused by. David W. Robertson, The Oil
Pollution Act's Provisions on Damages for Economic Loss, 30 Miss. C.L. Rev. 157, 168-
69 (2011). The evidence suggests that this interpretation is correct.

E22013437 May 2015
8/9

Other Statutory Regimes
Professor Goldberg argues that a variety of judicial interpretations support his
argument for a use-right requirement. He cites to cases under CERCLA and TAPAA.
However, Professor Robertson analyzed these same cases and found that (1) none of the
courts imposed a proximate cause limitation and (2) the TAPAA statute was
conceivably . . . more receptive to some kind of use-requirement than would be
appropriate under OPA, yet it was still resisted. Id. at 179.
Common Law Regimes
Professor Goldberg argues that the OPA is a minor departure from the
Robins/Testabank rule requiring physical injury to a proprietary interest before
recovery for economic loss. He argues that the OPA merely adopts the reasoning of
maritime law decisions (Union Oil Co, v. Oppen) and state tort decisions (like People
Express Airlines, Inc. v. Consolidated Rail Corp.). Professor Robertson notes that if this
is the case, all the OPA accomplishes is to codify schemes of liability that already exist
under admiralty and tort law. Robertson at 184.
Legislative History
Professor Goldberg suggests that OPAs legislative history shows that members of
Congress believed that fisherman and beachfront property owners would be the primary
beneficiaries of 33 U.S.C. 2702(b)(2)(E). According to Goldberg, this suggests a use-
right requirement. This characterization ignores that some provisions of the OPA
contain explicit use-right limitations, 33 U.S.C. 2702(b)(2)(C), and that the three
separate bills that became the OPA contained use-right limitations but they were
removed. See Robertson at 185.
The weight of the evidence suggests that the OPA does not require second-layer
causation or a use-right limitation.
Amendments to OPA
As a member of Congress, I would amend the OPA to clearly indicate that a
claimant attempting to recover for the loss of profits or impairment of earning capacity
only needs to show that such damages that are causally related to the oil spill. This
amendment would promote efficient settlement, as defendants would be better able to
ascertain the scope of their liability.
E22013437 May 2015
9/9
Additionally, I would propose removing the $75,000,000 cap on damages for
spills not caused by gross negligence. Although BP voluntarily waived the cap, the spill
shows that a $75,000,000 cap underestimates the damages from spills near populated
areas. This will help ensure that defendants are held fully responsible for spills and will
incentivize companies to prevent spills in the future.