discrimination

Abbot v. Perez

Issues 

By adopting court-created remedial interim redistricting plans, did the Texas legislature engage in intentional racial discrimination, vote dilution, and racial gerrymandering in violation of the Constitution and the Voting Rights Act, and does the Court have jurisdiction to hear the case?

 

After a federal court struck down the Texas State Legislature’s redistricting plans as racially discriminatory and issued substantially similar interim plans for the 2012 election, the Legislature adopted those interim plans as law. However, Texas Voters (both individual voters and organizations) claim that these plans are still infected by discriminatory intent and effect. Texas argues that its Legislature did not engage in racial discrimination, vote dilution, or racial gerrymandering. Further, Texas insists that when its new Legislature repealed the old plans and adopted court-created new plans, any purported discriminatory intent was eliminated. Voters counter that the Supreme Court should adhere to the lower court’s finding of discrimination, which was not cleansed by a legislative workaround that essentially reenacted the original, problematic plans. This case requires the Supreme Court to determine when a state legislature exhibits a discriminatory intent in reconfiguring its electoral districts and how deeply that intent permeates into subsequent legislation. Further, this case may redefine the parameters for courts to evaluate redistricting, balancing the needs to protect voters’ rights and preserve state sovereignty. 

Questions as Framed for the Court by the Parties 

1) Whether the district court issued an appealable interlocutory injunction when it invalidated Texas’ duly enacted redistricting plan and ordered the parties to appear at a remedial hearing to redraw state congressional districts unless the governor called a special legislative session to redraw the congressional map within three days; (2) whether the Texas legislature acted with an unlawful purpose when it enacted a redistricting plan originally imposed by the district court to remedy any potential constitutional and statutory defects in a prior legislative plan that was repealed without ever having taken effect; (3) whether the Texas legislature engaged in intentional vote dilution when it adopted Congressional District 27 in 2013 after the district court found, in 2012, that CD27 did not support a plausible claim of racially discriminatory purpose and did not dilute Hispanic voting strength because it was not possible to create an additional Hispanic opportunity district in the region; and (4) whether the Texas legislature engaged in racial gerrymandering in Congressional District 35 when it simply adopted the district unchanged as part of the court-ordered remedial plan.

In 2011, Texas’ 82nd Legislature (“Legislature”) proposed Plans C185 and H283 (“2011 Plans”) to change its voting districts before the 2012 elections. Perez v. Abbott, 274 F. Supp. 3d 624, 632 (W.D. Tex. 2017).

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Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission

Issues 

Does compelling a business owner to engage in artistic expression which goes against his deeply-held religious beliefs in accordance with Colorado’s public accommodation anti-discrimination law violate either the Free Speech Clause or the Free Exercise Clause of the First Amendment?

Court below: 

This case asks the Supreme Court to balance public accommodation anti-discrimination laws and First Amendment rights. Colorado’s Anti-Discrimination Act (“CADA”) prohibits commercial businesses from denying service to patrons based on protected characteristics, including sexual orientation. Masterpiece Cakeshop and its owner Jack Phillips contend that CADA violates their First Amendment rights to free artistic expression and religious belief. The Colorado Civil Rights Commission (“CCRC”) and Charlie Craig and David Mullins counter that Masterpiece Cakeshop’s First Amendment rights are not at issue, as CADA applies in all cases of commercial discrimination, and that merely invoking such rights should not exempt Petitioner from complying with the anti-discrimination law. The outcome of this case has heavy implications for LGBTQ rights, creative expression, and religious freedom.

Questions as Framed for the Court by the Parties 

Whether applying Colorado’s public-accommodation law to compel artists to create expression that violates their sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.

In July 2012, Respondents Charlie Craig and David Mullins visited Petitioner Masterpiece Cakeshop, a Colorado bakery, to request that its owner, Petitioner Jack Phillips, create a cake for their same-sex wedding. Craig v. Masterpiece Cakeshop, Inc. at 1. Phillips declined their request, explaining that he would not make a custom wedding cake for them because of his Christian beliefs, but that he would be happy to sell them any other baked goods. Id.

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The authors would like to thank Professor Nelson Tebbe for his guidance and insights into this case.

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Kloeckner v. Solis

Issues 

Can a federal district court hear an appeal of a decision by the Merit System Protection Board (MSPB) if the MSPB decided on a procedural ground and the case was “mixed” and so involved both unlawful employment termination and discrimination claims?

 

In 2005, Carolyn M. Kloeckner (“Kloeckner”) left her job as a Senior Investigator for the Department of Labor’s (DOL) Employee Benefits Security Administration in the St. Louis office. Soon after, she filed an Equal Employment Opportunity (EEO) complaint alleging sex and age discrimination and a hostile work environment. The DOL charged her with being “absent without leave” and fired her a year later. The dismissal, coupled with the discrimination complaint, result in what is known as a "mixed"  case,  and  is therefore  subject to certain forum restrictions.  After an unsuccessful outcome with her EEO complaint, Kloeckner appealed to the Merit Systems Protection Board (MSPB) which dismissed her claims as untimely. Kloeckner tried to challenge this MSPB decision in federal district court, but the Eighth Circuit Court of Appeals affirmed the district court, holding that only federal circuit courts had jurisdiction over mixed cases that were dismissed on a procedural ground. The federal circuit courts disagree on this issue, and so the Supreme Court’s  decision in this case  will determine whether a federal district court or a federal appellate-level court can hear an appeal of an MSPB decision to dismiss a mixed claim for being untimely.

Questions as Framed for the Court by the Parties 

The Merit Systems Protection Board (MSPB) is authorized to hear appeals by federal employees regarding certain adverse actions, such as dismissals. If in such an appeal the employee asserts that the challenged action was the result of unlawful discrimination, that claim is referred to as a "mixed case."

The Question Presented is:

If the MSPB decides a mixed case without determining the merits of the discrimination claim, is the court with jurisdiction over that claim the Court of Appeals for the Federal Circuit or a district court?

In 2005, Carolyn M. Kloeckner (“Kloeckner”) stopped going to work as a Senior Investigator for the Department of Labor’s (DOL) Employee Benefits Security Administration in the St. Louis office. Kloeckner v. Solis, 639 F.3d 834, 834 (8th Cir.

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Hawkins v. Community Bank of Raymore

Issues 

  1. Do loan guarantors have the same rights and protections that their applicant spouses are given by the Equal Credit Opportunity Act?
  2. Does the Federal Reserve Board have the authority to define guarantors as applicants for purposes of the Equal Credit Opportunity Act?

 

The Supreme Court will consider whether protections for applicants in the Equal Credit Opportunity Act (“ECOA”) also extend to spouses who sign guaranties, and whether the Federal Reserve Board (the “Fed”), in promulgating Regulation B, permissibly expanded the definition of “applicant” in the ECOA to include such guarantors. See Brief for Petitioners, Hawkins & Patterson at i, 8; Brief for Respondent, Community Bank of Raymore at i. The loan guarantors in this case (Hawkins and Patterson) maintain that ECOA’s protections for applicants extend to guarantors, because the ECOA does not explicitly exclude them, and Regulation B clarifies that the ECOA definition of applicants includes guarantors. See Brief for Petitioners at 16, 56. Accordingly, Hawkins and Patterson assert that they have standing to sue to invalidate the loan agreement as illegal and unenforceable under ECOA.  See id. at 51. Raymore, the creditor here, counters that the plain language of the ECOA protects only applicants, not guarantors. See Brief for Respondent at 1721. Raymore contends that any attempt by the Fed, through Regulation B, to expand the definition of “applicant” in the ECOA to include guarantors was impermissible. See id. at 46. The Supreme Court’s  decision in this case  could affect the cost of borrowing and change the underwriting standards and costs for loans to married business owners.

Questions as Framed for the Court by the Parties 

  1. Whether “primarily and unconditionally liable” spousal guarantors are unambiguously excluded from being Equal Credit Opportunity Act applicants because they are not integrally part of “any aspect of a credit transaction”; and
  2. Whether the Federal Reserve Board has authority under the ECOA to include by regulation spousal guarantors as “applicants” to further the purposes of eliminating discrimination against married women.

This case begins with a loan dispute between Valerie Hawkins and Janice Patterson, as guarantors, and the Community Bank of Raymore, (“Raymore”), as creditorSee Hawkins v. Cmty. Bank of Raymore, 761 F.3d 937, 939 (8th Cir.

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Lee v. Tam

Issues 

Is the disparagement clause of the Lanham Act, which allows the USPTO to refuse federal registration to marks which “may be disparaging” to persons of a certain race, ethnicity, gender, religion, or sexual orientation, invalid under the Free Speech Clause of the First Amendment

This case will address the constitutionality of the disparagement clause, or §2(a) of the Lanham Act. Simon Tam, spokesperson for THE SLANTS, an Asian-American dance-rock band, argues that this provision, which allows the USPTO to deny federal registration to marks that “may be disparaging,” poses impermissible censorship of political speech in instances where registrants seek to reappropriate a previously disparaging term. Michelle K. Lee, the Under Secretary of Commerce for Intellectual Property and Director of the USPTO, maintains that this provision merely denies federal registration for a government program but does not restrict an individual’s political or commercial speech. The resolution of this case will determine whether the owners of potentially disparaging marks, such as the Washington Redskins, have the right to register their marks, bring suit for infringement, and use government resources for policing new trademark applicants and potential infringement. 

Questions as Framed for the Court by the Parties 

Section 2(a) of the Lanham Act, 15 U.S.C.  1052(a), provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of * * * matter which may disparage * * * persons, living or dead, institutions, beliefs, or nation-al symbols, or bring them into contempt, or disrepute.”

The question presented is as follows:

Whether the disparagement provision in 15 U.S.C.  1052(a) is facially invalid under the Free Speech Clause of the First Amendment.

On November 14, 2011, Simon Tam filed an application to register the name of an Asian-American dance-rock band, THE SLANTS, with the United States Patent and Trademark Office (“USPTO”). In Re Simon Shiao Tam, 808 F.3d 1321, at 10–11 (2015). Tam and his fellow band members have used this mark in commerce since 2006, when they first formed the band.

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Fisher v. University of Texas at Austin

Issues 

Does a public university violate the Equal Protection Clause of the Fourteenth Amendment when it considers race in admissions decisions?

 

 

Petitioner Abigail Fisher, a white Texan, was denied admission to the University of Texas at Austin for the Fall 2008 entering class. Fisher sued the university, arguing that the denial violated her Fourteenth Amendment right to equal protection because she was denied admission to the public university in favor of minority applicants with lesser credentials. Fisher contends that the university’s admission policy cannot survive strict scrutiny as required by Grutter v. Bollinger. The university argues that its admissions policy is essentially identical to the policy upheld in Grutter. It asserts that its use of a holistic admissions process, considering race as one factor for admission, creates a diverse student body that benefits the entire university. This case allows the Supreme Court to reexamine Grutter, and it will have far-reaching implications for university admissions policies and racial demographics in schools throughout the United States.

Questions as Framed for the Court by the Parties 

May the University of Texas at Austin consider race in undergraduate admissions decisions under the Fourteenth Amendment?

The University of Texas at Austin (“UT”) is a public education institution, authorized by the Texas Constitution and backed by state and federal funding. See Fisher v. Univ. of Tex. at Austin, 631 F.3d 213, 226 (5th Cir.

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CSX Transportation, Inc. v. Georgia State Board of Equalization

Issues 

Whether 49 U.S.C. § 11501(b)(1), the federal statute that prohibits states from overtaxing railroads as compared with other commercial and industrial property within the same assessment jurisdiction, permits a railroad to challenge the method by which a  states  assesses the market value of its rail property, when that method is not irrational or intentionally discriminatory.

 

After finding that states consistently overtax railroads when compared with similar commercial and industrial property, Congress passed the Railroad Revitalization and Regulatory Reform Act of 1976 ("the 4-R Act" or "the Act"), 49 U.S.C. § 11501. The 4-R Act permits railroads to challenge a state’s tax assessment as discriminatory in federal court. CSX Transportation, Inc. challenged Georgia’s 2002 tax assessment, claiming it violated the anti-discrimination provision of the Act. The Northern District of Georgia ruled that while the Act permitted CSX Transportation, Inc. to challenge the assessment, it did not permit the railroad to challenge the methods the state used unless it could show that they were irrational or intentionally discriminatory. Agreeing with one other Circuit and affirming the District Court’s decision, the Eleventh Circuit is the fourth Court of Appeals to address the issue. In this case, the U.S. Supreme Court will determine whether a railroad may challenge a state’s methods in assessing its property value under the 4-R Act.

 

    Questions as Framed for the Court by the Parties 

    Whether, under the federal statute prohibiting state tax discrimination against railroads, 49 U.S.C. § 11501(b)(1), a federal district court determining the “true market value” of railroad property must accept the valuation method chosen by the State.

    The following facts are generally derived from the Circuit Court decision in this case. CSX Transportation v. State Bd. of Equalization, 472 F.3d 1281 (11th Cir. 2006).

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    Christian Legal Society v. Martinez

    Issues 

    Whether a state law school may officially require that a student organization make its membership open to all students as a condition of receiving certain benefits associated with official recognition.

     

    The Hastings Christian Legal Society (“CLS”) required that members agree with its core religious beliefs and pledge to live accordingly. Due to this requirement, the University of California-Hastings College of Law refused to recognize CLS as a registered student organization. Specifically, CLS’s membership requirement violated a nondiscrimination policy prohibiting registered student organizations from discriminating on the basis of religion or sexual orientation. CLS argued that Hastings violated its First Amendment right to free association and free exercise of religion by denying it an exemption from the nondiscrimination policy. The Ninth Circuit rejected CLS’s claims, holding that the school’s policy was viewpoint-neutral and reasonable in light of the school’s educational mission. The Supreme Court’s decision will settle a circuit split over whether a public school can require a religious student organization to open its membership to all students, regardless of their beliefs

    Questions as Framed for the Court by the Parties 

    Whether the Ninth Circuit erred when it held, directly contrary to the Seventh Circuit’s decision in Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006), that the Constitution allows a state law school to deny recognition to a religious student organization because the group requires its officers and voting members to agree with its core religious viewpoints.

    Respondent University of California-Hastings College of Law (“Hastings”) is a public law school in San Francisco. See Brief for Petitioner, Hastings Christian Legal Society (“CLS”) at 2. Hastings maintains a program to support registered student organizations (“RSO”), providing, among other benefits, funding and access to school facilities. See 

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    • Annotated U.S. Constitution: First Amendment, Right of Association

    • Michael C. Dorf, The Supreme Court Reviews a Conflict Between Equality and Freedom of Association, Findlaw’s Writ (Dec. 14, 2009).

    • Dorf on Law: Another Perspective on Christian Legal Society v. Martinez (Dec. 14, 2009)

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    Bank of America v. Miami, Wells Fargo & Co. v. Miami

    Issues 

    Does a lawsuit against a bank satisfy the Fair Housing Act’s “zone of interest” and proximate cause requirements, where a municipality alleges harm to its fiscal interests from urban blight stemming from foreclosures caused by the bank’s discriminatory lending practices?

    In this consolidated action, the Supreme Court will decide whether a city can sue a bank under the Fair Housing Act for discriminatory lending practices, and whether it can recover lost property tax revenues and funds spent addressing widespread foreclosures that the bank’s discriminatory practices allegedly caused. The City of Miami alleges, based on statistical analyses, that loans by Bank of America and Wells Fargo & Co. to minority borrowers were more than five times as likely to result in foreclosures than loans to white borrowers. The banks argue that the City of Miami falls outside the zone of interests required to obtain standing under the Fair Housing Act, and that any alleged causal relationship between the City’s financial losses and the discriminatory housing practices of the banks is too far a stretch to support a valid lawsuit. The City responds that it meets the broad standing requirements of the Fair Housing Act and should recover for its injuries because they are foreseeably and directly linked to the discriminatory lending practices of the banks. A victory by Miami could potentially overburden the courts with similar lawsuits and overextend judicial power; however, Miami’s defeat could leave the FHA under-enforced and cities underfunded to battle urban blight.

    Questions as Framed for the Court by the Parties 

    1. By limiting suit to "aggrieved person[s]," did Congress require that an FHA plaintiff plead more than just Article III injury-in-fact?
    2. The FHA requires plaintiffs to plead proximate cause. Does proximate cause require more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies?

    MIAMI’S LAWSUIT AGAINST BANK OF AMERICA

    Miami brought a Fair Housing Act (“FHA”) lawsuit against Bank of America, Countrywide Financial Corporation, Countrywide Home Loans, and Countrywide Bank (collectively, “Bank of America” or “the Bank”) on December 13, 2013, for discriminatory mortgage lending practices and unjust enrichment at the expense of Miami. See Miami v.

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    Bank of America v. Miami, 15-1111, Wells Fargo & Co. v. Miami, 15-1112 (consolidated)

    Issues 

    Does a lawsuit against a bank satisfy the Fair Housing Act’s “zone of interest” and proximate cause requirements, where a municipality alleges harm to its fiscal interests from urban blight stemming from foreclosures caused by the bank’s discriminatory lending practices?

    In this consolidated action, the Supreme Court will decide whether a city can sue a bank under the Fair Housing Act for discriminatory lending practices, and whether it can recover lost property tax revenues and funds spent addressing widespread foreclosures that the bank’s discriminatory practices allegedly caused. The City of Miami alleges, based on statistical analyses, that loans by Bank of America and Wells Fargo & Co. to minority borrowers were more than five times as likely to result in foreclosures than loans to white borrowers. The banks argue that the City of Miami falls outside the zone of interests required to obtain standing under the Fair Housing Act, and that any alleged causal relationship between the City’s financial losses and the discriminatory housing practices of the banks is too far a stretch to support a valid lawsuit. The City responds that it meets the broad standing requirements of the Fair Housing Act and should recover for its injuries because they are foreseeably and directly linked to the discriminatory lending practices of the banks. A victory by Miami could potentially overburden the courts with similar lawsuits and overextend judicial power; however, Miami’s defeat could leave the FHA under-enforced and cities underfunded to battle urban blight.

    Questions as Framed for the Court by the Parties 

    1. By limiting suit to "aggrieved person[s]," did Congress require that an FHA plaintiff plead more than just Article III injury-in-fact?
    2. The FHA requires plaintiffs to plead proximate cause. Does proximate cause require more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies?

    MIAMI’S LAWSUIT AGAINST BANK OF AMERICA

    Miami brought a Fair Housing Act (“FHA”) lawsuit against Bank of America, Countrywide Financial Corporation, Countrywide Home Loans, and Countrywide Bank (collectively, “Bank of America” or “the Bank”) on December 13, 2013, for discriminatory mortgage lending practices and unjust enrichment at the expense of Miami. See Miami v. Bank of America Corp., No.

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