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.