Equal Justice Under Law
Background  Case Calendar  More Options
Critiques of the Judiciary
“[Tulane] is both a private educational institution and a non-profit corporation and as such the [Louisiana Employment Discrimination Law] does not cover its actions.”

Employment Discrimination Legalized in Louisiana

A 1999 State Law Gives Tulane Immunity from Claims of Employment Discrimination
(Although Its Constitutionality is Questionable)

In the aftermath of Bernofsky's lawsuits, Tulane administrators sought a legislative means of shielding itself from plaintiffs who brought complaints of employment discrimination against the university.  State Senator John J. Hainkel, Jr., a Tulane Law School Graduate1 whose legislative district included the affluent Uptown New Orleans neighborhood of the Tulane campus, accommodated his alma mater with SB871, which was signed into law by Governor Murphy J. "Mike" Foster, Jr., in 1999 as Act 1366, and incorporated into the Louisiana Employment Discrimination Law, La. Rev. Stat. Sect. 23:301, et seq.  Specifically, La. Rev. Stat. Sect. 23:302(2)(b) exempts private educational or religious institutions or any non-profit corporation from being subject to Louisiana's employment discrimination law.

In 2007, Judge Jay C. Zainey of the Federal District Court for the Eastern District of Louisiana dismissed the state claims for age discrimination brought against Tulane on behalf of Dr. Zeynel A. Karcioglu, a 61-year-old tenured professor who was discharged after nearly 26 years of service to the university.  The state law that exempts Tulane from discrimination in employment claims is in direct conflict with federal statutes that cover such situations.  This law and others like it is not likely to survive a constitutional challenge and should be struck down.

Tulane receives many millions of dollars from the federal government in the form of grants and contracts that are primarily used for operating expenses and the salaries of Tulane employees.  This subjects Tulane to federal regulations under which those public monies are utilized, and those regulations include anti-discrimination provisions that are incorporated into federal law.

The Supremacy Clause of the U.S. Constitution establishes the Constitution as the supreme law of the land:2

This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.

It was never the intention of Congress to allow any law that would permit the states to violate federal law with impunity, and Congress has expressly forbidden states to pass laws that violate this principle. This is articulated in the Privileges and Immunities Clause of the Fourteenth Amendment, which states:3

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.

Courts have historically upheld the Privileges and Immunities Clause of the Fourteenth Amendment, and in Strauder v. West Virginia, the U.S. Supreme Court acknowledged the authority of Congress to enforce the provisions of the Fourteenth Amendment when it stated:4

The Fourteenth Amendment makes no attempt to enumerate the rights it designed to protect. It speaks in general terms, and those are as comprehensive as possible. Its language is prohibitory; but every prohibition implies the existence of rights and immunities, prominent among which is an immunity from inequality of legal protection, either for life, liberty, or property.

* * *

If, however, the States did not conform their laws to [the Fourteenth Amendment's] requirements, then, by the fifth section of the article of amendment, Congress was authorized to enforce it by suitable legislation.

These principles were reinforced by the U.S. Supreme Court in 1908 when it ruled in Ex parte Young, that private individuals had the authority to sue state officials who violated their federal rights.5

Moreover, the Equal Protection Clause of the Fourteenth Amendment also states:6

[N]or shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Thus, the Fourteenth Amendment prohibits states from depriving any person of "property without due process," or denying any person "the equal protection of the laws."

Suing a Corporate "Person"

The Louisiana State Constitution provides, in pertinent part, "...that every corporation shall have authority ... [t]o sue and be sued in its corporate name." R.S. Sect.12:41(b)(3). Thus, suits against Tulane for violations of state and federal law are both permissible and proper.  In addition, the Due Process Clause of the Fourteenth Amendment has been held to apply equally to "legal persons," who comprise corporate personhood, as well as to individuals,7 so that both types of party are now endowed with rights as well as accountability.

On January 21, 2010, a U.S. Supreme Court decision established that corporations enjoyed the same First Amendment rights as individuals. As Justice John Paul Stevens explained in his written opinion in Citizens United v. Federal Election Commission:7

The basic premise underlying the Court's ruling is its iteration ... of the proposition that the First Amendment bars regulatory distinctions based on a speaker's identity, including its 'identity' as a corporation.

Speaking for the majority in his written opinion, Justice Anthony Scalia discussed the freedom of the press that individual editors and printers have as individuals, even though they acted through newspapers that behaved much like corporations and did not have their activities "stripped of First Amendment protection simply because they were carried out under the banner of an artificial legal entity."  Moreover, Scalia continued, "The authorized spokesman of a corporation is a human being, who speaks on behalf of the human beings who have formed that association..."7

Thus, corporations, including non-profit corporations such as Tulane, now enjoy the same protection provided by the Bill of Rights as an individual, and because of this they also can be sued as an individual.

Carl Bernofsky
November 10, 2010


On December 8, 2011, Senator Bernie Sanders (I-Vt) introduced a Constitutional Amendment that would repeal the Citizens United decision.8


    1. Scott S. Cowen, "Tulane Will Miss Loyal Support of Sen. Hainkel" [Letter], The Times-Picayune, New Orleans, April 19, 2005, Metro, p. 4.  See also: Michael Strecker, "Tulane Names Scholarship In John Hainkel's Honor" [News Release], Tulane University, May 19, 2005, http://tulane.edu/news/releases/archive/2005/051905.cfm, accessed 11/10/10.

    2. U.S. Constitution, Article VI, Clause 2.

    3. Cornell Legal Information Institute, http://topics.law.cornell.edu/constitution/amendmentxiv, accessed 11/02/09.

    4. Strauder v. West Virginia, 100 U.S. 303 (1879).

    5. Ex parte Young, 209 U.S. 123, 160 (1908).

    6. Cornell Legal Information Institute, http://topics.law.cornell.edu/constitution/amendmentxiv, accessed 11/02/09.

    7. Justice Scalia's remarks in Citizens United v. Federal Election Commission, 558 U.S. ___(2010).

    8. "The Saving American Democracy Amendment," S. J. Res. 33, 112th Congress, 1st Session, December 8, 2001.







 Help Balance the Scales of Justice!
Help Balance the Scales of Justice!
Judge Berrigan?
 Send a message to Congress now!
  Send a Message to Congress!

Web site created November, 1998     This section last modified December, 2011
|  Home/Search  |  Site Map  |  About Bernofsky  |  Curriculum Vitae  |  Lawsuits  |  Case Calendar  |

|  Judicial Misconduct  |  Judicial Reform  |  Contact  |  Interviews  |  Disclaimer  |
This Web site is not associated with Tulane University or its affiliates

© 1998-2014 Carl Bernofsky - All rights reserved
send me an e-mail