Sale of VMI and Palmer v. Thompson

[Jack Balkin]

Doug Laycock writes:

>My impression, based on scanty reports in the national press, was that
>during the brief pursuit of the privatizing option, there was a concerted
>effort by the VMI administration and its alumni to see if a sale were
>possible.  I assumed, I think accurately, that there was no imaginable
>reason for such a sale except to avoid the decree that precipitated
>investigation of the possibility.  I assumed the General Assembly would
>have to approve.  On those facts, I am comfortable imputing purpose to
>the state.


      Doug, if you remember we had an interesting discussion last year
about Palmer v. Thompson and legislative motivation, with a special
emphasis on its relevance to the Religion Clauses.   I took the position
that Palmer was wrongly decided especially in light of Washington v.
Davis (which seems to require inquiries into legislative motivation, while
Palmer says that they are irrelevant).  You responded that Davis was
distinguishable because it's about executive decision, that courts don't
generally look into legislative motivation outside of the Establishment
Clause area, and that in any case motivation is normally irrelevant
without disparate impact and there was no disparate impact on blacks
because after the state action both groups couldn't use the pool.  I
responded that there was a stigmatic harm to the social status of blacks
by closing the pool.
      In the VMI hypothetical you discuss,  I would agree that it's correct to
impute state action to the sale if it is for the purpose of evading the
court's decree, and that one would have to look into the General
Assembly's motivation behind the approval of such a sale.  The question
is, what do we do with Palmer v. Thompson?   Is this VMI hypothetical
distinguishable from your reading of Palmer v. Thompson on the grounds
that the school will still exist and will still discriminate, albeit in private
hands; is it distinguishable because executive as well as legislative
action is involved; or, in the alternative, do you now have doubts about
Palmer's continuing validity?  (I take the latter position, as you know).
      The hypothetical also leads to an interesting Feeney problem. If the
point of the sale is to preserve a particular form of education, can we
say that the General Assembly's decision to sell the school is because
of, rather than in spite of, its effects in discriminating against women?
(For what it's worth, I also think Feeney is wrongly decided, and cases
like this one show its inherent difficulties.).

Jack Balkin
Yale Law School