Mutants and Anti-Discrimination Laws, Part Three

We’ve previously discussed two potential approaches for protecting mutants and other innately superpowered beings from discrimination.  But legal protection can be a double-edged sword for organizations that cater to mutants exclusively.  If organizations couldn’t discriminate on the basis of mutant status, would the Xavier Institute be forced to take in non-mutants?  Would S.H.I.E.L.D. be forced to hire regular people?  Probably not, but they might have to do a little restructuring to maintain their exclusivity.

(Before we get into the details, I realize the Xavier Institute no longer exists as such, but let’s assume the mutant civil rights campaign was successful pre-“Messiah Complex.”)

If the Xavier Institute is a private school that takes no public funding, then it has more leeway to discriminate, albeit with potential repercussions such as loss of its tax exempt status (assuming that the Institute is organized as a non-profit in the first place).  See, Bob Jones Univ. v. United States, 461 U.S. 574 (1983).  If the Institute takes public funding, however, then it will generally be required not to discriminate:

The private school that closes its doors to defined groups of students on the basis of constitutionally suspect criteria manifests, by its own actions, that its educational processes are based on private belief that segregation is desirable in education. There is no reason to discriminate against students for reasons wholly unrelated to individual merit unless the artificial barriers are considered an essential part of the educational message to be communicated to the students who are admitted. Such private bias is not barred by the Constitution, nor does it invoke any sanction of laws. but neither can it call on the Constitution for material aid from the State. Norwood v. Harrison, 413 U.S. 455, 469 (1973).

It could be argued that mutant status is related to individual merit, and that the special curriculum of the Xavier Institute would be of little use to a non-mutant student, but that argument cuts both ways.  If it is permissible for the Xavier Institute to discriminate in favor of mutants because it is a school for special students, then it would also be permissible for a regular school to discriminate against mutants because it is a school for typical students.

No, the most likely result is that the Xavier Institute would have to rely on private funding or open its doors to non-mutant children.  My guess is that, given society’s attitude towards mutants, few parents would send their non-mutant children there, especially since much of the curriculum would be of no use to them (e.g. Northstar’s flying class) and the super-genius mutants probably wreck the grading curve for the normal classes.

S.H.I.E.L.D. is a different story altogether.  Unlike most superhero groups, S.H.I.E.L.D. is a part of the U.S. government.  Groups like the X-Men and the JLA are presumably private organizations that do not even employ their members, so they are free to discriminate as they wish.  Private clubs can even avoid the requirements of the ADA, which is important when designing superhero bases.  42 USC 12187.  If S.H.I.E.L.D. and the US government want to avoid a discrimination suit, it will have to take some precautions.

The Federal government has specific rules that it must follow when employing people.  These rules are part of the civil service or “merit system.”  The first principle is:

Recruitment should be from qualified individuals from appropriate sources in an endeavor to achieve a work force from all segments of society, and selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity. 5 USC 2301(b)(1).

As you can see, S.H.I.E.L.D. has room to prefer those with superpowers where such powers are relevant to the job (i.e. a bona fide occupational qualification).  The problem is that superhuman abilities are not actually a requirement of being an agent of S.H.I.E.L.D.  Numerous S.H.I.E.L.D. agents, although plainly very skilled, are not superhuman, at least not inherently (e.g., Nick Fury, Tony Stark, Clay Quartermain).  This may make it difficult for S.H.I.E.L.D. to preferentially hire people with superpowers except when a position requires a particular ability (e.g. the Psi-Division).

There is an outlet, though.  Not all civil service positions are covered by the merit system: “‘covered position’…does not include any position which is…excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration.” 5 USC 2302(a)(2)(B).  As long as the President signs off on a given position before a new agent is brought on board, S.H.I.E.L.D. is free to hire whomever it wishes.

14 responses to “Mutants and Anti-Discrimination Laws, Part Three

  1. I was a substitute teacher and the schools and individual teachers both had the power to decide that I wasn’t allowed in their school or class. This could happen forever or just for a single assignment.

    In theory I could have only been allowed to go to a single school or class.

    There was also an alternative school that never showed up on the website listing available jobs. The subbing office would call people they felt were qualified.

    Is there any reason why S.H.I.E.L.D. wouldn’t be able to hire some people solely for the purpose of using them in really minor cases or as support/warm bodies in certain missions?

  2. I just have to point out. The Xavier Institute for the Gifted, when it existed, was a private school whose funding came mostly if not wholey from Xavier himself and Warren Worthington the Third. That and for the most part S.H.I.E.L.D. agents are human. There are a handful of metahumans like Spider Woman that work for them, but the vast majority of them are just well trained pure human Federal Agents.

  3. The Xavier Institute case would almost certainly be governed by the same analyses used in Doe v. Kamehameha. Kamehameha is a private Hawaiian school that discriminates against non-Hawaiians. The 9th circuit ruled in the case on an en banc rehearing, after a three judge panel ruled against the school:

    The Ninth Circuit agreed to rehear the appeal before a 15-judge en banc panel in February 2006.[24] On December 5, 2006, by a vote of 8–7, the en banc panel reversed the earlier decision by the three-judge panel, affirming Kay’s ruling.

    The majority ruled that Kamehameha’s policy does not run afoul of a civil rights law, citing what it said were unique factors in the history of Hawaiʻi, the plight of Native Hawaiians and the schools’ distinctively remedial mission, which Congress has repeatedly endorsed. The dissent stated that civil rights law “prohibits a private school from denying admission to prospective students because of their race”, and was very skeptical of the majority interpretation, stating, “The fact that Congress has passed some measures promoting Native Hawaiian education says nothing about whether Congress intended to exempt Native Hawaiian schools from § 1981 [civil rights law]”.

    The case was then settled before the Supremes could reverse, which they almost certainly would have, if they had taken the case.

    But it does show that you can find a way to go either way if there is a history of discrimination, which there is against mutants in these universes. It does, of course, require having a Circuit like the Ninth Circuit, which might be too far out for even comic book universes.

  4. As another commenter pointed out, Shield does mostly employ normal humans. In addition, SHIELD is SO secret that I doubt anyone could sue the government over the issue, since basically no one knows the agency exists.

  5. You should do a post about if the JLA satelite is legal in orbiting earth space, or it’s construction or something.

    Or also if it’s legal to hire and send into battle LMD’s. (Life model decoys) because they are freethinking intelligence and blah blah blah.

    Keep up this great blog!

  6. You suppose that ordinary schools could discriminate against mutants on the grounds their programs were designed for “typical” students. These schools have long discriminated against atypical (non-mutant) students through refusal to allow students to study at their level of ability. I experienced this first hand, then now, second hand, though my daughter. Xavier Institute or no, we would expect mutants to be discriminated against as a mater of course.

  7. I wouldn’t be surprised if the Xavier school accepted “normals” who applied, as long as they could be relied upon to keep quiet about the school’s true purpose. Presumably the mutants would want some demonstrably non-mutant humans who are sympathetic to their cause, and educating them in the school would be a perfect way to achieve that.

  8. I wonder if parallels between mutants and persons with certain diseases (AIDS would be the one with the most press) could be drawn. I know that my father once voiced and objection to the concept of AIDS infected children being fully integrated into the public schools, on the basis that blood fist-fights are an observed phenomenon. Regardless of the legality of this, I think it could make an interesting parallel. One exception is that, to my knowledge, in most continuities mutant powers do not surface until around puberty. I don’t know what the incidents of violence are by age in schools, but I rather suspect that the increased accountability in highschool students would render the point less persuasive. In addition, a person with AIDS might be said to have a right to lead a “normal” life to the extent possible. Someone with super-strength is reasonably going to end up using it (if only to unload lumber from their vehicle for a home-improvement project) and learning that the “world is cardboard” is a reasonable expectation IMHO. Actually, on the flip side of that, super-strength in a klutzy teen (many teens are due to changing bodies) might be seen as a disability, and assignment to a specialized class-room with bullet-proof walls, cast iron desks, and the teacher wearing full body armor to protect against shrapnel from pencils accidentally impacting on those desks as Mach One as Dash Par gets a bit over-excited about finally remembering who the 17th president of the United States was and rushing to write in the answer in triumph might be perfectly reasonable.

  9. I’m not sure why discrimination would be an issue at all for employment in this example.
    After all – despite the anti-discrimination laws are very clear in the rules against discriminating against ‘national origin’.
    Yet even with that rule US citizens are split into 3 classes for employment:
    1. Those born as US citizens – they are eligible for all jobs.
    2. Those not born as US citizens but not born as citizens of certain countries such as Iran
    They are eligible for almost all jobs but the not the job of president
    3. Those born as citizens of Iran
    They are not permitted to become President or work or visit nuclear power plants.

    Clearly when the role of president is in direct contradiction with ‘5 USC 2301(b)(1).’ then why should we consider that any of the anti-discrimination laws will have any real effect ?

  10. SHIELD – during its existence as we’ve understood it – was covered by both international treaty – per the multiple explicit references to its United Nations allegiance in recent decades – and by US federal statute stating, per a Clay Quartermain quote from Hulk during John Byrne’s brief tenure as writer/artist, that “SHIELD business is SHIELD business”. Seeing as citizens of multiple nations could legally enlist – or be seconded from their home nations’ services – in the Directorate, particularly during its second lifetime, the hiring frameworks must have been interesting indeed.

    If SHIELD is eventually reorganized as a multinational force again, that might be worth another look.

  11. I really don’t think the Xaviar school would turn away non-mutants. For example, if a student somewhere was incorrectly accused of being a mutant for whatever reason and was run out of town, or perhaps a teen couple in love, one of whom turns out to be a mutant are found out, and the non-mutant was disowned, it doesn’t seem like the non-mutant student would be denied the schools protection because of his status as normal human (Prof. X was generally all about integration and harmony). That would actually make for a really interesting storyline, and I’d be surprised if Marvel hasn’t ever done it.

  12. Besides the famous Xavier Institute, another comic that deals with a school for superhuman children is Aaron Williams’ PS238. One of the main characters is the school’s only powerless student, undergoing mentoring by that universe’s Batman equivalent.

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  14. I don’t think public schools would or should be able to lawfully discriminate against mutants being built for “typical” students because that is not the case. Schools weren’t conceived or built as “human” schools, they were built as a place of federally supported education.
    They shouldn’t be required to provide curriculum for superpowers such as flying classes but they should also not be able to bar students simply applying for general education.
    In any case it stands that correspondence courses are an option; maybe SHIELD could provide a secret grant of scholarship to superpowered military applicants.

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