§120.68 FS | JUDICIAL REVIEW

The Court's decision is directly contrary to this congressional intent. The lesson of the Court's ruling is:

An unsuccessful state discrimination complainant should not seek state judicial review. If a discrimination complainant pursues state judicial review and loses — a likely result given the deferential standard of review in state court — he forfeits his right to seek redress in a federal court. If, however, he simply bypasses the state courts, he can proceed to the EEOC and ultimately to federal court. Instead of a deferential review of an agency record, he will receive in federal court a de novo hearing accompanied by procedural aids such as broad discovery rules and the ability to subpoena witnesses. Thus, paradoxically, the Court effectively has eliminated state reviewing courts from the fight against discrimination in an entire class of cases. Consequently, the state courts will not have a chance to correct state agency errors when the agencies rule against discrimination victims, and the quality of state agency decisionmaking can only deteriorate. It is a perverse sort of comity that eliminates the reviewing function of state courts in the name of giving their decisions due respect.

This argument against preclusion is not novel. In prior decisions, the Court has refused to set up incentives for discrimination complainants to abandon alternative remedies. In Alexander v. Gardner-Denver Co., 415 U.S., at 59, it concluded:

"Fearing that the arbitral forum cannot adequately protect their rights under Title VII, some employees may elect to bypass arbitration and institute a lawsuit. The possibility of voluntary compliance or settlement of Title VII claims would thus be reduced, and the result could well be more litigation, not less."

In New York Gaslight Club, Inc. v. Carey, 447 U.S., at 65, the Court addressed state proceedings directly, explaining:

"Complainants unable to recover fees in state proceedings may be expected to wait out the 60-day deferral period, while focusing efforts on obtaining federal relief. . . . Only authorization of fee awards ensures incorporation of state procedures as a meaningful part of the Title VII enforcement scheme."

In this case, the Court has chosen preclusion over common sense, with the result that the state courts will decline, not grow, in importance.

Second, the Court, for a small class of discrimination complainants, has undermined the remedial purpose of Title VII. Invariably, there will be some complainants who will not be aware of today's decision. The Court has thus constructed a rule that will serve as a trap for the unwary pro se or poorly represented complainant. For these complainants, their sole remedy lies in the state administrative processes. Yet, inevitably those agencies do not give all discrimination complaints careful attention. Often hampered by "inadequate procedures" or "an inadequate budget," see 110 Cong. Rec. 7205 (1964), the state antidiscrimination agency may give a discrimination charge less than the close examination it would receive in federal court. When, as in this case, the state agency dismisses for lack of probable cause, the discrimination complainant is particularly at risk, because inadequate staffing of state agencies can lead to "a tendency to dismiss too many complaints for alleged lack of probable cause." Though state courts may be diligent in reviewing agency dismissals for no probable cause, the nature of the agency's deliberations combined with deferential judicial review can lead only to discrimination charges receiving less careful consideration than Congress intended when it passed Title VII. The Court's decision thus cannot be squared with the congressional intent that the fight against discrimination be a policy "of the highest priority." Newman v. Piggie Park Enterprises, 390 U.S. 400, 402 (1968).

Both the text of Title VII and its legislative history indicate that Congress intended the claimant to have at least one opportunity to prove his case in a de novo trial in court. Thus, while I agree with the Court that Title VII did not impliedly repeal § 1738, I cannot accept the Court's construction of § 1738 in this case. In New York, as JUSTICE BLACKMUN demonstrates, the judicial review is simply a part of the "proceedings" that are entitled to "substantial weight" under Title VII.

Accordingly, I respectfully dissent.