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2018 Section 7: Civil Rights Institute of Bill of Rights Law at the William & Mary Law School
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VII. Civil Rights
IN THIS SECTION: Topic: Sexual Orientation and Title VII
“COURT: LAW DOESN’T BAR SEX-ORIENTATION DISCRIMINATION ON JOB” Kate Brumback ...... 448
“7TH CIRC. UPHOLD GROCERY STORE WORKER’S TITLE VII WIN” Danielle Nichole Smith ...... 450
“AGS TELL 8TH CIRC. TITLE VII DOESN’T COVER SEX ORIENTATION” Danielle Nichole Smith ...... 452
“APPEALS COURT RULES ANTI-GAY EMPLOYMENT DISCRIMINATION IS ALREADY ILLEGAL UNDER FEDERAL LAW” Mark Joseph Stern ...... 455
“SCOTUS ASKED TO IGNORE CIRCUIT SPLIT ON SEXUAL ORIENTATION DISCRIMINATION” R. Robin McDonald ...... 458
“EEOC BACKS GAY EMPLOYEE IN LATEST APPELLATE BATTLE OVER WORKPLACE RIGHTS” Alison Frankel ...... 460
“EEOC ARGUES THAT SEXUAL ORIENTATION DISCRIMINATION BY A HETEROSEXUAL PERSON CAN CONSTITUTE A PROTECTED ACTIVITY” Seyfarth Shaw LLP ...... 462
“ENDING SEXUAL ORIENTATION DISCRIMINATION IN EMPLOYMENT” Gay Crosthwait Grunfeld and Marc J. Shinn-Krantz ...... 464
“JUSTICE DEPARTMENT SAYS RIGHTS LAW DOESN’T PROTECT GAYS” Alan Feuer ...... 468
“POST-KENNEDY COURT LIKELY TO TAKE NARROW VIEW OF TITLE VII” Braden Campbell ...... 471
443
“JUSTICE KENNEDY’S MASTERPIECE RULING” Garrett Epps...... 474
“BAKER CLAIMS RELIGIOUS PERSECUTION AGAIN—THIS TIME AFTER DENYING CAKE FOR TRANSGENDER WOMAN” Amy B. Wang ...... 478
Topic: Transgender Rights
“FEDERAL LAW ON TRANSGENDER, SEXUAL ORIENTATION BIAS A MIXED BAG” Jon Steingart ...... 481
“TRANSGENDER WORKERS GAIN NEW PROTECTION UNDER COURT RULING” Robert Pear ...... 484
“U.S. ANTI-BIAS LAW DOES NOT PROTECT TRANSGENDER WORKERS: JUSTICE DEPT” Daniel Wiessner and Sarah N. Lynch ...... 487
“TITLE VII IN TRANSITION? TEXAS FEDERAL COURT RULES THAT ANTI-DISCRIMINATION STATUTE PROTECTS TRANSGENDER INDIVIDUALS” Stephen Fox and Jonathan Clark ...... 489
“TRANSGENDER STUDENT IN BATHROOM DISPUTE WINS COURT RULING” Matt Stevens ...... 491
“THE TRUMP ADMINISTRATION MAY HAVE DOOMED GAVIN GRIMM’S CASE” Emma Green ...... 494
“JUDGE SIDES WITH GLOUCESTER TRANSGENDER STUDENT ON BATHROOM ACCESS ISSUE” Peter Dujardin ...... 496
“6TH CIRC. REVIVES EEOC’S FUNERAL HOME TRANS BIAS SUIT” Braden Campbell ...... 499
“TRUMP SAYS TRANSGENDER PEOPLE WILL NOT BE ALLOWED IN THE MILITARY” Julie Hirschfeld Davis and Helene Cooper ...... 502
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“TRUMP CUT FROM TRANSGENDER MILITARY SUIT AGAINST GOV’T” Daniel Wilson ...... 506
Topic: Abortion
“LAWSUIT CHALLENGES TEXAS ABORTION CURBS” Jonathan Stempel...... 510
“7TH CIRC. BACKS IND. ABORTION LAW STAY DURING LEGAL CHALLENGE” Bonnie Eslinger ...... 512
“PENCE’S ANTI-ABORTION LAW COULD UPEND ROE V. WADE” Jennifer Haberkorn ...... 515
“WHAT HAPPENS IF ROE V. WADE GETS OVERTURNED?” Kimberly Leonard ...... 518
“NEW SUPREME COURT JUSTICE COULD WEIGH IN ON ABORTION QUICKLY” Jennifer Haberkorn ...... 524
“SUPREME COURT WIPES OUT APPEALS COURT RULING IN IMMIGRANT ABORTION CASE” Josh Gerstein and Renuka Rayasam...... 538
“AGS URGE DC CIRC. TO OK BLOCK ON DETAINEE ABORTION RULES” Tiffany Hu ...... 540
“GOV. THREATEN LEGAL ACTION IF TITLE X CHANGES BECOME LAW” Shayna Possess ...... 542
Topic: Affirmative Action
“AS AFFIRMATIVE ACTION IS TARGETED, HIGHER ED MUST RESPOND” Sarah Moore ...... 545
445
“BRETT KAVANAUGH ONCE PREDICTED ‘ONE RACE’ IN THE EYES OF GOVERNMENT. WOULD HE END AFFIRMATIVE ACTION?” Ann E. Marimow and Robert Barnes ...... 548
“ASIAN-AMERICANS SUING HARVARD SAY ADMISSIONS FILES SHOW DISCRIMINATION” Anemona Hartocollis...... 552
“HARVARD RATED ASIAN-AMERICAN APPLICANTS LOWER ON PERSONALITY TRAITS, SUIT SAYS” Anemona Hartocollis...... 555
“ASIAN-AMERICAN GROUPS TAKE OPPOSING SIDES IN HARVARD AFFIRMATIVE ACTION CASE” Chris Fuchs ...... 558
“U.S. SAYS IT MIGHT ENTER HARVARD AFFIRMATIVE ACTION COURT BATTLE” Nate Raymond ...... 561
“TRUMP OFFICIALS REVERSE OBAMA’S POLICY ON AFFIRMATIVE ACTION IN SCHOOLS” Erica L. Green, Matt Apuzzo, and Katie Benner ...... 563
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Sexual Orientation
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“Court: Law doesn’t bar sex-orientation discrimination on job”
LA Times
Kate Brumback
July 23, 2018
A federal appeals court in Atlanta this week comes to whom they should love," reaffirmed its decision that workers aren't Rosenbaum wrote. protected against workplace discrimination based on sexual orientation, though two of The binding precedent cited in the court's the 11 judges strongly disagreed. May decision includes no analysis of the issue, concluding simply that "Discharge for Gerald Lynn Bostock asserted in a lawsuit homosexuality is not prohibited by Title originally filed in May 2016 that he was fired VII," she wrote, adding that a 1989 U.S. from his job as a court child welfare services Supreme Court ruling suggests that courts coordinator in Clayton County, just south of should reach the opposite conclusion. Atlanta, because he's gay. Rather than clinging to a decades-old A federal judge last year dismissed his case, precedent, the full appeals court should and a three-judge panel of the 11th U.S. consider the arguments and offer "a reasoned Circuit Court of Appeals in May upheld that and principled explanation for our position ruling. The panel said binding court on this issue," Rosenbaum wrote. precedent set by a 1979 decision says Title VII of the Civil Rights Act of 1964 law "I cannot explain why a majority of our Court doesn't prohibit employers from is content to rely on the precedential discriminating against workers based on equivalent of an Edsel with a missing engine, sexual orientation. The full court on when it comes to an issue that affects so many Wednesday declined to reconsider that people," she wrote. decision. Bostock's attorneys had already appealed the Circuit Judge Robin Rosenbaum, joined by May ruling to the U.S. Supreme Court, and Judge Jill Pryor, dissented from this week's that petition is pending. decision. "The issue of whether Title VII protects gay "I continue to firmly believe that Title VII and lesbian employees is extraordinarily prohibits discrimination against gay and important not only for Mr. Bostock, but for lesbian individuals because they fail to all the gay and lesbian people working to earn conform to their employers' views when it
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a living in this country," attorney Brian The 2nd Circuit decision has also been Sutherland said in an email Friday. appealed to the Supreme Court. The conflicting opinions of the 2nd and 11th The Supreme Court punted on the issue in circuits could prompt the high court to weigh December when it declined to take up another in and settle the question. Georgia case. Jameka Evans had sued Georgia Regional Hospital in Savannah, Bostock worked in the Juvenile Court of saying she faced discrimination and was Clayton County. He'd worked for the county effectively forced out of her security guard since January 2003 and had received good job because she's a lesbian. performance evaluations, his lawsuit says.
As in Bostock's case, an 11th Circuit panel He joined a gay softball league in January had ruled in March 2017 that Evans wasn't 2013. His participation in that league and his protected from workplace discrimination sexual orientation were openly criticized by based on sexual orientation, and the full court one or more people with decision-making declined reconsideration. power at his job, the lawsuit says.
In April 2017, the full 7th U.S. Circuit Court He was told in April 2013 that an audit was of Appeals in Chicago reached the opposite being conducted on program funds he conclusion in a case filed by a former part- managed. Bostock contends the audit was time instructor who said an Indiana meant to provide a pretext to discriminate community college didn't hire her full time against him "based on his sexual orientation because she is a lesbian. The court stated and failure to conform to a gender decisively that the civil rights law's stereotype." protections apply to gay and lesbian workers just as they prohibit discrimination based on He was fired June 3, 2013, "for Conduct race, religion or national origin. Unbecoming of a Clayton County Employee." In January, the full 2nd U.S. Circuit Court of Appeals in New York reached a similar Lawyers for the county argued in a response conclusion, ruling in favor of a gay skydiving to his lawsuit that Title VII "was not designed instructor who said he was fired because he or written to include protections for sexual was gay. The opinion said that while that orientation." Bostock also fails to identify court and others had previously found that any characteristic that distinguishes him from Title VII didn't cover sexual orientation, a "typical male," undercutting his gender "legal doctrine evolves." stereotyping claim, they wrote.
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“7th Circ. Uphold Grocery Store Worker’s Title VII Win”
Law360
Danielle Nichole Smith
August 3, 2018
The Seventh Circuit has affirmed a jury environment because no women worked verdict favoring a grocery store worker who behind the meat counter where he was alleged he was subjected to unwanted sexual stationed and thus comparisons between touching and taunting by his male co- men's and women's treatment were workers, holding that his Title VII claim was inappropriate. Even if the meat counter was valid since he presented evidence that female separate from the rest of the store, it wasn't workers didn't receive the same treatment. the only place harassment was alleged to have occurred, the panel said. A three-judge panel on Thursday rejected Rosebud Farm Inc.'s contention that the Rosebud had appealed the lower court's district court should have granted it summary denial of its request for an amendment of the judgment on Robert Smith's sexual findings and a new trial on Smith's claims harassment claims, finding that though the after a jury awarded him $2.4 million in grocery store correctly asserted that Title VII compensatory and punitive damages. The didn't automatically provide relief for lower court did reduce the award to unwanted sexual behavior, Smith offered $477,500. evidence that the conduct in question was discriminatory based on his sex. The grocery store argued that while Smith presented evidence of "sexual horseplay and "Ample testimony — from both Smith and juvenile behavior," he didn't provide other witnesses — established that only men evidence that the conduct was sex-based. were groped, taunted, and otherwise Smith didn't show that the male co-workers tormented," U.S. Circuit Judge Amy C. in question were gay, that there was hostility Barrett wrote in the panel's published toward men in the store or that the activity opinion. "Witnesses recounted the numerous was related to sexual gratification to support times they saw men grabbing the genitals and his claim, Rosebud said. buttocks of other men. No witness recalled Rosebud also asserted in its appeal that the seeing female Rosebud employees subjected lower court should have ruled in its favor on to the same treatment." Smith's retaliation claim since there wasn't The panel was unconvinced by Rosebud's evidence that his co-workers even knew he argument that Smith worked in an all-male had filed a charge at the Equal Employment
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Opportunity Commission for sexual Smith said in his complaint that he ultimately harassment and racial discrimination. And had to quit because of the intolerable work the store contended that a new trial on Smith's conditions. claims was warranted because of incendiary statements made by Smith's counsel during Rosebud moved for summary judgment on closing arguments that drew comparisons the sexual and racial harassment and between the defendant's conduct and recent retaliation claims in June 2014, arguing that terror attacks in the Middle East. the alleged "horse play" didn't amount to sexual harassment under Title VII and that But the Seventh Circuit rejected those Smith's decision to quit wasn't a constructive contentions as well, holding that the grocery discharge. But the lower court sent the claims store forfeited the arguments since they to trial. hadn't been brought up at the lower court. Joseph Anthony Longo, counsel for Smith, Though Rosebud did raise two objections to told Law360 on Friday that workers shouldn't Smith's counsel's reference to terrorism, it have to subject their bodies to harassment didn't argue that the statements were when they go to do their jobs and that he prejudicial, the panel said. hoped that the ruling would have significance throughout the country in demonstrating that "If anything, the counsel's comments hurt abuse at work must be stopped. Smith more than they hurt Rosebud," Judge Barrett said. "The district court observed a Counsel and representatives for Rosebud number of jurors grimacing in reaction to the didn't respond Friday to requests for bizarre terrorism analogy. These references comment. would certainly not have been reason for the district court to set aside the jury's verdict and Judges Amy C. Barrett, William J. Bauer and start over." Amy J. St. Eve sat on the panel for the Seventh Circuit. Smith originally sued Rosebud in 2011, alleging that his co-workers and supervisors Smith is represented by Joseph Anthony touched his buttocks and genitalia and made Longo of Longo & Associates Ltd. inappropriate racial comments to him. When he filed a charge at the EEOC over the Rosebud is represented by William D. Dallas alleged conduct, his coworkers retaliated and Steven M. Dallas of Regas Frezados & against him by freezing him out and Dallas LLP. damaging his property, among other things, The case is Robert Smith v. Rosebud Farm the complaint said. Inc., case number 17-2626, in the U.S. Court of Appeals for the Seventh Circuit.
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“AGs Tell 8th Circ. Title VII Doesn’t Cover Sex Orientation”
Law360
Danielle Nichole Smith
June 14, 2018
A coalition of state attorneys general has told The states noted that until the Seventh Circuit the Eighth Circuit that it should not join two and Second Circuit expanded Title VII to other appellate courts in interpreting Title VII include protections for sexual orientation in to bar sexual orientation discrimination, April 2017 and February, respectively, arguing that such an application was contrary federal appellate courts had been united in to earlier legal and legislative understanding finding that Title VII’s scope did not include of the law. sexual orientation.
The states said in their Tuesday amicus brief And though Congress had numerous chances that Mark Horton, who accused Midwest to amend the statute to include sexual Geriatric Management LLC of religious and orientation, it had chosen not to do so, the sexual discrimination for allegedly states argued. rescinding a job offer because he was gay, wrongly urged the Eighth Circuit to reverse The states also said that even if the Eighth its previous position that Title VII did not Circuit were not bound by its precedent, provide protections for discrimination on the Horton’s arguments for sexual orientation basis of sexual orientation. The appeals court protections in Title VII were unconvincing. should not flout its own precedent or ignore He wrongly argued that sexual orientation Congress’ interpretation of the employment discrimination would be "associational law, the states argued. discrimination," or founded on a sex-based stereotype, the states said. “Our system of government demands that the courts defer to the legislative branch in Additionally, Horton misapplied the “but matters of policymaking, and that for” test for determining if sex discrimination foundational principle demands that Title VII was the real reason behind an employer’s be interpreted as understood in 1964, unless action, which would require keeping and until amended by Congress,” the states everything consistent except for a single said. “This court should decline to overrule factor, the states said. In the scenario Horton its own precedents in recasting Title VII as described, whether a male employee would prohibiting discrimination based on sexual be treated differently from a female orientation” employee for having a relationship with a
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man, both the sex and sexual orientation were discriminatory.” Horton pled no other factual shifted, the states argued. allegations for his religious claim, and further, he failed to show that he was “It is my duty to protect the separation of discriminated against for his own religious powers written in the Constitution,” beliefs, the organization said. Arkansas Attorney General Leslie Rutledge said in a statement Wednesday. The organization also echoed the states’ “Judges should apply the law as written by arguments that Title VII legal and legislative the people’s representatives in Congress and history demonstrated that it did not include should not add to or ‘creatively apply’ the law protections for sexual orientation. because they believe a different law should have been written and applied." Gregory R. Nevins, counsel for Horton, told Law360 on Thursday that the attorneys Louisiana, Missouri, Oklahoma, Texas, general asserted nothing that had not already Michigan, Nebraska, and South Dakota been raised in the case. Nevins said that participated in the amicus brief with though the Becket Fund did bring new Arkansas. arguments, he did not think they were applicable to the case or accounted for the full The Eight Circuit also received input scope of the law. Tuesday from the Becket Fund for Religious Liberty, a nonprofit law firm that defends Horton originally sued Midwest Geriatric religious beliefs. The organization threw its Management in Missouri federal court in support behind Midwest Geriatric August, alleging that the company illegally Management, criticizing Horton's appeal of a discriminated against him by rescinding a job lower court's dismissal of his bias suit. offer after discovering he had a husband. The lower court ruled in December that “Sometimes a wolf comes as a wolf. This Horton’s claims failed because Title VII did appeal is an open effort to enlist this court as not forbid discrimination based on sexual a combatant in the culture wars over LGBT orientation. Horton appealed the decision in rights and religion, with the eventual goal of January. creating a vehicle for [U.S] Supreme Court The Eighth Circuit has received amicus review,” the Becket Fund said. “Happily, this briefs supporting Horton from nearly 50 court need not sign up for this duty.” business, the U.S. Equal Employment
Opportunity Commission, and 18 states and The Becket Fund argued in its amicus brief Washington, D.C. that Horton could not make a religious discrimination claim based only on his belief Horton is represented by Gregory R. Nevins, that the owners of Midwest Geriatric Omar Gonzalez-Pagan and Sharon Management were Jewish and that their McGowan of Lambda Legal Defense and Judaism was important to their professional Education Fund Inc. and Mark S. Schuver lives, calling his argument “itself
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and Natalie T. Lorenz of Mathis Marifian & The Becket Fund for Religious Liberty is Richter Ltd. represented by Eric C. Rassbach and Nicholas R. Reaves of the Becket Fund For Midwest Geriatric Management LLC is Religious Liberty. represented by Michael L. Jente, Neal F. Perryman and Philip J. Mackey of Lewis The case is Mark Horton v. Midwest Rice LLC. Geriatric Management, case number 18- 1104, in the U.S. Circuit Court of Appeals for The amici states are represented by Arkansas the Eighth Circuit. Attorney General Leslie Rutledge, Lee Rudofsky, Nicholas J. Bronni and Dylan L. Jacobs.
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“Appeals Court Rules Anti-Gay Employment Discrimination is Already Illegal Under Federal Law”
Slate
Mark Joseph Stern
February 26, 2018
On Monday, the 2nd U.S. Circuit Court of both a person’s sex and the sex of those to Appeals ruled that federal law already whom he or she is attracted. Logically, prohibits anti-gay employment because sexual orientation is a function of sex discrimination. Its 10–3 decision in Zarda v. and sex is a protected characteristic under Altitude Express is a landmark victory for Title VII, it follows that sexual orientation is gay rights, affirming the growing judicial also protected. consensus that sexual orientation discrimination constitutes discrimination To bolster his conclusion, Katzmann “because of sex.” deployed the “comparative test,” which asks “whether an employee’s treatment would In his opinion for the court, Chief Judge have been different but for that person’s sex.” Robert Katzmann provided three reasons Here, the plaintiff, Donald Zarda, was why Title VII of the Civil Rights Act of allegedly fired after he revealed his sexual 1964—which prohibits sex discrimination in orientation—that is, his attraction to other the workplace—protects gay employees. men. If Zarda were a woman, he presumably First, Katzmann explained that “sexual could have kept his job. But because he was orientation discrimination is motivated, at a man, his sexual attraction led to his least in part, by sex and is thus a subset of sex termination. Thus, but for his sex, he would discrimination.” To “identify the sexual not have suffered discrimination. orientation of a particular person,” an employer must “know the sex of the person Katzmann then turned to a second and that of the people to whom he or she is justification for his decision: the “sex attracted.” He continued: stereotype” theory. The Supreme Court has held that Title VII bars employers from Because one cannot fully define a person’s punishing workers for their failure to sexual orientation without identifying his or conform to gender norms. For instance, a her sex, sexual orientation is a function of manager cannot reprimand a female sex. Indeed sexual orientation is doubly employee because he deems her delineated by sex because it is a function of insufficiently “feminine” in her demeanor
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and mannerisms. Homosexuality, Katzmann In all, ten judges—including two Republican noted, “represents the ultimate case of failure appointees—agreed with Katzmann that Title to conform to gender stereotypes”—the VII forbids sexual orientation discrimination. expectation that men only date women, and Only three disagreed. Judge José Cabranes women only date men. In this framing, found the case so easy that he wrote his own discrimination against a gay employee on the one-page decision concurring in the basis of his sexual orientation constitutes judgment. His reasoning constitutes one brief “sex stereotyping,” a prohibited practice paragraph: under Title VII. This is a straightforward case of statutory Finally, Katzmann explored perhaps the most construction. Title VII of the Civil Rights Act persuasive theory of the case, of 1964 prohibits discrimination “because of the Loving principle. In Loving v. Virginia, … sex.” Zarda’s sexual orientation is a the Supreme Court held that interracial function of his sex. Discrimination against marriage bans discriminated on the basis of Zarda because of his sexual orientation race in part by punishing individuals for therefore is discrimination because of his intimately associating with members of sex, and is prohibited by Title VII. another race. Since then, the courts have extended this theory to the employment That should be the end of the analysis. context—holding, for example, that a With its Zarda decision, the 2nd Circuit has supervisor who fires a white employee for aligned itself with the 7th U.S. Circuit Court marrying a black person has engaged in of Appeals and the Equal Employment unlawful racial discrimination. Opportunity Commission, both of which Discrimination on the basis of race and sex assert that Title VII bars anti-gay workplace are equally forbidden under Title VII. So, discrimination. (So have dozens of lower Katzmann wrote, this principle of courts.) Zarda vigorously rejects the “associational discrimination” should apply position put forth by the Trump to both traits, and an employee who suffers administration that Title VII does not protect th discrimination because of his associations all gay employees. (The 11 U.S. Circuit with a partner of the same-sex has Court of Appeals has also adopted that experienced illegal sex discrimination. “If a position.) Attorney General Jeff Sessions’ male employee married to a man is Department of Justice took the unusual step terminated because his employer disapproves of filing an unsolicited brief in Zarda against of same-sex marriage,” Katzmann explained, gay rights, then arguing against gay “the employee has suffered associational employees in court. Given Monday’s discrimination based on his own sex.” Why? lopsided outcome, the DOJ might as well Because “the fact that the employee is a man have saved its breath. instead of a woman motivated the employer’s Eventually, the Supreme Court will have to discrimination against him.” resolve the scope of Title VII’s protections
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for LGBTQ employees. But it is in no hurry Connecticut, and Vermont. And gay to do so, and the defendants in Zarda have employees elsewhere can cite Zarda to indicated that they won’t appeal Monday’s demonstrate that, no matter what the Trump decision. For the foreseeable future, then, the administration says, Title VII protects their ruling will remain the law of the land within right to work free from homophobia. the 2nd Circuit, which covers New York,
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“SCOTUS Asked to Ignore Circuit Split on Sexual Orientation Discrimination”
Law.com
R. Robin McDonald
August 10, 2018
An attorney defending Clayton County, was legitimate, nondiscriminatory and Georgia, in a discrimination lawsuit filed by unrelated to Bostock’s sexual orientation. a gay employee asked the U.S. Supreme Court Friday to let stand an appellate ruling Magistrate Walter Johnson and Senior that federal laws do not prohibit District Judge Orinda Evans dismissed the discrimination on the basis of sexual case after determining Title VII of the Civil orientation. Rights Act of 1964, which prohibits employment discrimination based on race, Freeman Mathis & Gary attorneys Jack color, religion or sex, does not bar Hancock and William Buechner Jr. defended discrimination based on sexual orientation. the May 10 ruling by the U.S. Court of Appeals for the Eleventh Circuit in Atlanta in The Eleventh Circuit agreed and noted in an their response to a petition for a writ of unpublished opinion issued in May that certiorari filed by Gerald Lynn Bostock on “Discharge for homosexuality is not May 25. prohibited by Title VII.” The Atlanta-based appellate court rejected Bostock’s petition Bostock is represented by Brian Sutherland to hear the case en banc. In July, the and Thomas Mew IV of Atlanta’s Buckley court rejected an unusual motion from its Beal. own bench for an en banc hearing—despite dissents by Judges Robin Rosenbaum and Jill Bostock was assigned to Clayton County’s Pryor. juvenile court as a child welfare services coordinator in 2013 when he began playing In asking the Supreme Court to take up the in a gay recreational softball league that he case, Bostock points out federal appellate would later claim generated criticism and led courts in the Second and Seventh Circuits to an internal audit of county funds he have split from the Eleventh in holding that managed. Title VII does prohibit discrimination on the basis of sexual orientation. Bostock was subsequently fired for conduct unbecoming a county employee, prompting But Freeman Mathis lawyers argued the the lawsuit. The county claimed the firing Supreme Court has turned down cases when circuits have been split on the underlying
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legal issues before. Last year, the high court lawyers said “presented the identical issue denied certiorari in another Georgia that [Bostock] seeks to present to the Court in employment discrimination case that the this case.”
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“EEOC backs gay employee in latest appellate battle over workplace rights”
Reuters
Alison Frankel
March 16, 2018
President Donald Trump has nominated two mentioned his same-sex partner in an email Republicans to serve on the Equal to the company’s co-director. Employment Opportunity Commission The 8th Circuit will be the fourth federal alongside a Trump-appointed acting chair, appellate court in the last year and a half to and two holdover Democrats from the consider whether Title VII’s protection Obama administration. (One of them has against sex discrimination encompasses been re-nominated by Trump.) At their discrimination based on sexual orientation. Senate confirmation hearing in September, This foment follows a pathbreaking 2015 the Republican EEOC nominees pointedly EEOC decision in Baldwin v. Foxx, in which refused to commit to the commission’s the EEOC interpreted U.S. Supreme Court position that Title VII of the Civil Right Act precedent – most notably on sex protects gay and lesbian employees against stereotyping, same-sex workplace discrimination based on their harassment and interracial marriage – to bar sexual orientation. My Reuters colleague discrimination against gay and lesbian Robert Iafolla, who covered the hearing, employees under the umbrella of the law’s described the Trump nominees’ position on prohibition on gender-based discrimination. gay employees’ rights as “murky.” In March 2017, the 11th Circuit rejected that reasoning in Evans v. Georgia Regional The Senate has not yet voted on Trump’s Hospital, but the following month, the en EEOC nominees, so, at the moment, the banc 7th Circuit held in Hively v. Ivy Tech EEOC is composed just of acting chair Community College that Title VII protects Victoria Lipnic, a Republican, and two gay and lesbian employees. Just last month, Democratic appointees, Chai Feldblum and the en banc 2nd Circuit sided with the 7th Charlotte Burrows. And there’s nothing at all Circuit in Zarda v. Altitude Express, murky about this commission’s stance on deepening a circuit split that won’t go away Title VII and gay rights. Last week, the regardless of what the 8th Circuit decides in EEOC filed an amicus brief in the 8th U.S. the Horton case. Circuit Court of Appeals, backing Mark Horton, a gay man who claims Midwest Now that the EEOC is on the record in Geriatric withdrew a job offer when he support of Horton at the 8th Circuit, the big
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question is whether the Justice Department not subjected to. Unless the employer is more will file an amicus brief backing Horton’s inclined to discriminate against gay men than would-be employer, a chain of nursing home lesbians (or vice-versa), DOJ argued, it’s not and assisted living facilities. You may engaged in sex discrimination. remember that DOJ caused a stir in the en The 2nd Circuit said the Justice Department banc Zarda case at the 2nd Circuit when it is pushing the wrong comparison test. Based disavowed the EEOC’s amicus brief backing on the Supreme Court’s 1978 decision in City gay employees. In a rare instance of two of Los Angeles v. Manhart, which struck executive-branch agencies publicly down a city water department rule requiring espousing contrary positions in litigation, female employees to contribute more than DOJ argued that discrimination against gay men to the employee pension fund because and lesbian employees isn’t the same as sex women live longer, the 2nd Circuit said the discrimination and isn’t prohibited under Title VII analysis should focus on sexual Title VII. (DOJ and the EEOC both enforce orientation as a function of sex, like life Title VII and neither, apparently, is entitled expectancy or “ladylike” behavior. Using the to Chevron deference in interpreting the test DOJ advocated “would not illustrate statute.) whether a particular stereotype is sex dependent but only whether the employer Both the Justice Department and the EEOC discriminates against gender non‐conformity declined my request for comment on DOJ in only one gender,” the 2nd Circuit said. plans for the Horton case. I also emailed Midwest Geriatric lawyers Philip Of course, Justice can still present its Mackey and Michael Jente of Lewis comparison test argument to the 8th Circuit, Rice but didn’t hear back. along with other arguments for why Title VII doesn’t protect gay and lesbian workers, I’ve previously discussed how the 2nd including decades of Congress failing to Circuit majority in Zarda disposed of one of amend the statute and pre-2015 precedent the Justice Department’s key arguments from the federal appellate courts, including against extending Title VII protection to gay the 8th Circuit. My guess is that the Justice and lesbian employees. DOJ contended that Department will opt to file an amicus brief in the test for sex discrimination is to compare Midwest Geriatric, given the EEOC’s brief workers who are the same in every way probably does not reflect the views of the except for their gender. So under DOJ’s Trump administration. theory, to figure out if sex discrimination encompasses prejudice against gays and Presumably, this issue will end up at the lesbians, you have to look at whether an Supreme Court, although the justices employer treats gays and lesbians the same – declined to grant review last December of the not whether lesbian workers are treated 11th Circuit’s Evans decision. By then, differently than straight women or gay men Trump’s EEOC nominees will probably have experience discrimination straight men are been confirmed – too late, however, to undo
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the commission’s support for gay and lesbian rights at the 2nd and 8th Circuit
“EEOC Argues that Sexual Orientation Discrimination by a Heterosexual Person can Constitute a Protected Activity”
Lexology
Seyfarth Shaw LLP
June 14, 2018
The EEOC argues that O’Daniel need only Defendants responded to the lawsuit with a “reasonably believe[]” the opposed conduct motion to dismiss and argued that O’Daniel’s was unlawful and that O’Daniel’s belief was retaliation claim failed in part because she did reasonable when viewed in the context of not “plead any protected activity … under recent decisions reached by the Southern Title VII.” By consent of the parties, a District of Texas, Second Circuit, Seventh magistrate judge heard Defendants’ motion Circuit, and the EEOC. The EEOC also cites to dismiss. The magistrate judge ultimately the ongoing national debate regarding sexual agreed with Defendants and dismissed orientation issues as another reason O’Daniel’s retaliation claim because it was O’Daniel’s belief was reasonable. “unreasonable for [O’Daniel] to believe that discrimination based on sexual orientation Plaintiff Bonnie O’Daniel filed suit against constitutes protected activity” and cited the her employer, Plant-N-Power, and its parent Fifth Circuit’s 1979 holding in Blum v. Gulf company (Defendants) in the Middle District Oil Corp. to support its holding. The trial of Louisiana alleging, amongst other things, court noted that while Title VII may protect retaliation on the basis of her sexual gender-non-conformity, O’Daniel did not orientation—heterosexual. O’Daniel alleged allege discrimination on this basis. O’Daniel that Defendants terminated her employment appealed the magistrate judge’s decision to because of one of her Facebook posts. In the the Fifth Circuit. post, she included a photograph of a man wearing a dress at a Target store and On May 2, 2018, the Equal Employment expressed discontent with his ability to use Opportunity Commission filed an amicus the women’s restroom and/or dressing curiae brief with the court, taking issue with rooms. O’Daniel alleged that this offended the trial court’s finding that it was the President of Plant-N-Power, a member of “unreasonable” for O’Daniel to believe that the LGBT community, and that the president opposition to discrimination based on sexual subsequently suggested O’Daniel’s orientation was a protected activity. In termination. arguing this, the EEOC pointed out that the
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employee need only “reasonably believe[] on sexual orientation.” This would extend, in the opposed conduct was unlawful.” The the EEOC’s view, to discrimination on the EEOC maintains that, “given recent appellate basis that an employee is heterosexual. decisions …, the EEOC’s view that Title VII prohibits sexual orientation discrimination, The EEOC similarly noted that Fifth Circuit and the rapidly changing legal landscape,” precedent did not preclude an individual from O’Daniel had a reasonable belief that harboring a reasonable belief that sexual discrimination based on sexual orientation orientation is unlawful. To argue this, the was impermissible. EEOC distinguished Blum, in which the Court held that “[d]ischarge for The EEOC pointed to a number of decisions homosexuality is not prohibited by Title in the Southern District of Texas, the Second VII.” The EEOC argued that Blum was and Seventh Circuits, as well as holdings decided on the issue of pretext and not on from the commission itself, to demonstrate whether Title VII protected against that the “law on sexual orientation discrimination on the basis of sexual discrimination” had evolved and that at least orientation. Moreover, according to the some courts prohibit sexual orientation EEOC, there were post-Blum decisions that discrimination in employment. In addition, recognize that Title VII prohibits the EEOC noted the ongoing national debate discrimination based on sex stereotyping, to regarding sexual orientation issues and the include Price Waterhouse v. Supreme Court’s landmark decisions Hopkins and EEOC v. Boh Brothers endorsing the right of gay and lesbian Construction, Co. Thus, O’Daniel could have individuals to be free from discrimination relied on these post-Blum holdings to arrive in Obergefell v. Hodges and United States v. at a reasonable conclusion that Title VII Windsor. Given this context, O’Daniel—“a protected against discrimination on the basis layperson without legal expertise”—could of sexual orientation. “reasonably conclude that Title VII’s prohibition against sex discrimination Defendants have not yet filed their appellate encompasses discriminatory conduct based brief.
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“Ending Sexual Orientation Discrimination in Employment”
Law.com
Gay Crosthwait Grunfeld and Marc J. Shinn-Krantz
February 16, 2018
Twenty-two states, including California, and There is a circuit split over whether Title VII the District of Columbia, Guam, and Puerto makes it illegal for employers to discriminate Rico, protect both public and private based on sexual orientation. Last year, the employees from discrimination on the basis U.S. Court of Appeals for the Seventh Circuit of their sexual orientation. But in more than held en banc by a vote of 8 to 3 that it half the country, a gay person can get married does, Hively v. Ivy Tech Community College legally on Saturday, and for doing so be fired of Indiana, 853 F.3d 339 (7th Cir. 2017), legally on Monday, so far as state and local while panels of the Second and law are concerned. For gay employees Eleventh circuits held to the contrary. The in 28 states, Title VII of the Civil Rights Act Eleventh Circuit denied en banc rehearing, of 1964 is the only possible protection. and in December 2017, the Supreme Court Indeed, the U.S. Equal Employment denied certiorari. The Second Circuit Opportunity Commission (EEOC) received reheard arguments en banc in September—a 1,762 LGBT-based sex discrimination decision is pending. Supreme Court review of charges in FY 2017, up from 1,100 in FY the question is inevitable. 2014. The plaintiff in the Seventh Prior to 2017, every federal circuit to Circuit Hively case was a female lesbian part- consider the question of whether Title VII’s time adjunct professor who alleged sexual prohibition of discrimination based on sex orientation discrimination. The court held includes sexual orientation answered that two separate analyses—a comparator negatively. But since the U.S. Supreme analysis, which analyzes the variable of sex Court’s holding in Obergefell v. Hodges, 135 by comparing the plaintiff to an otherwise S. Ct. 2584 (2015) that same-sex marriage is identically situated person, and an a constitutionally protected fundamental associational analysis—each led to the right, the EEOC began asserting that sexual conclusion that sexual orientation orientation discrimination is inherently sex discrimination is sex discrimination under discrimination under Title VII. Courts, the Title VII. EEOC and the U.S. Department of Justice (DOJ) are grappling with the issue.
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Citing Hively, a First Circuit panel recently In its associational analysis, the Hively court noted “the tide may be turning” on this drew on a line of cases beginning with the issue. Franchina v. City of Providence, No. Supreme Court’s holding in Loving v. 16-2401, 2018 WL 550511, at *13 n.19 (1st Virginia, 388 U.S. 1 (1967), that a prohibition Cir. Jan. 25, 2018). Franchina’s procedural on interracial marriage violates the posture precluded considering sexual Constitution. Subsequent circuit court cases orientation as a standalone claim; held that discrimination based on a plaintiff’s nevertheless, the panel upheld a jury verdict interracial associations constitutes awarding emotional and front pay damages to discrimination because of the a female firefighter claiming sexual plaintiff’s own race. The Hively court held it orientation as a “plus-factor” under Title VII. follows that discrimination against Hively because of the sex of a person she associates Under Hively’s comparator analysis, a with is discrimination based on her own sex. plaintiff successfully claims sex discrimination if she alleges a set of facts Judge Richard Posner concurred in Hively, whereby changing only her sex would lead to powerfully applying a third and more different treatment. The court noted it is straightforward analytical approach to critical to the comparator analysis that the conclude that Title VII prohibits sexual only variable be the plaintiff’s gender. The orientation discrimination. He considered court noted that a policy could constitute sex that Title VII’s original meaning may not discrimination even if it did not discriminate have prohibited such discrimination. He against every member of a gender. A policy asserted that the courts should not act as discriminating against the subset of women “obedient servants” of the 88th Congress, like Hively—just like a policy discriminating which passed the Civil Rights Act of 1964. against the subset of women not wearing high Instead, courts should take advantage of over heels—is sex discrimination. In Hively’s a half century of evolving views on case—that of a woman attracted to women— homosexuality—and consider what the the plaintiff could allege sex discrimination country has become—to interpret the by claiming she would have been treated statutory language for today’s era and differently if she were a man attracted to culture. women. The court also noted that, viewing this case through the lens of Price In sharp contrast to the Seventh Circuit, a Waterhouse v. Hopkins, 490 U.S. 228 (1989) divided Eleventh Circuit panel held that (establishing the gender nonconformity Title VII does not protect sexual theory of liability), there is no distinction orientation. Evans v. Georgia Regional between a gender nonconformity claim and a Hospital, 850 F.3d 1248 (11th Cir. 2017) sexual orientation claim; Hively’s involved a female lesbian former security homosexuality was itself nonconformance officer alleging discrimination based on her with the gender stereotype of female sexual orientation. The panel decided it was heterosexuality. bound by precedent to hold that, although gender nonconformity claims are actionable
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under Title VII, sexual orientation claims are Despite the variegated decisions and opinions not. This holding drew a dissent from Judge of judges in different circuits, the dueling Robin S. Rosenbaum, who asserted that the positions of the DOJ and the EEOC, and Supreme Court’s 1989 gender stereotyping congressional inability to clarify the law, the decision in Price Waterhouse, “eviscerated” trend in public opinion is clear. In 1996, when the majority’s main precedent, Blum v. Gulf Gallup first polled the issue, only 27 percent Oil, 597 F.2d 936 (5th Cir. 1979) (pre- of respondents indicated support for same- division of the Fifth and Eleventh circuits in sex marriage. By 2017, 64 percent of 1981). Judge Rosenbaum reasoned that a respondents thought same-sex marriage woman alleging sexual orientation should be legal and 72 percent supported discrimination necessarily fails to conform same-sex relations. Increasing enactment or with the gender stereotype that women enforcement of state and local laws should only be sexually attracted to men. prohibiting workplace discrimination based on sexual orientation reflect this trend. Two Second Circuit panels held that they are It behooves employers throughout the bound by circuit precedent to hold that country to begin acting now as though such Title VII does not encompass sexual discrimination is illegal as well as unwise. orientation. Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017); Christiansen v. Even employers in states lacking anti- Omnicom Group, 852 F.3d 195 (2d Cir. discrimination statutes have no business 2017). The Second Circuit granted reason to permit discrimination. As Apple rehearing en banc of Zarda, a case about a CEO Tim Cook wrote in support of federal male gay former skydiving instructor legislation to prohibit sexual orientation asserting sexual orientation discrimination. discrimination, “embracing people’s In an unusual executive branch split, both the individuality is a matter of basic human EEOC and the DOJ filed conflicting amicus dignity and civil rights. It also turns out to be briefs and appeared at argument in great for the creativity that drives our September 2017. business.” Given the increasing legal risks of permitting sexual orientation discrimination, As one district court within the Second the lack of any business reason for doing so, Circuit observed, “the law with respect to this and this country’s evolving consensus in legal question is clearly in a state of flux, and support of equal rights, employers should not the Second Circuit, or perhaps the Supreme wait for the remaining states and federal Court, may return to this question circuits to catch up to Hively. Employers soon,” Philpott v. New York, 252 F. Supp. 3d throughout the country should adopt policies 313, 316 (S.D.N.Y. 2017) (finding sexual and practices that protect their employees orientation claim cognizable). The Second from employment discrimination based on Circuit’s en banc decision in Zarda is sexual orientation. Certainly for national pending. employers, this is the only sensible approach; it will reduce possible administrative burdens and risks of getting it wrong as to some
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employees who may move within the employers that follow Hively’s holding will company from state to state, with unexpected benefit from reduced liability, increased legal cost, and it will enhance consistency equality, and a more competitive workforce. and fairness within the enterprise. All
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“Justice Department Says Rights Law Doesn’t Protect Gays”
New York Times
Alan Feuer
July 27, 2017
The Justice Department has filed court papers transgender rights won under previous arguing that a major federal civil rights law administrations. does not protect employees from discrimination based on sexual orientation, The filing came in a discrimination case taking a stand against a decision reached before the United States Court of Appeals for under President Barack Obama. the Second Circuit involving Donald Zarda, a The department’s move to insert itself into a skydiving instructor. In 2010, Mr. Zarda was federal case in New York was an unusual fired by his employer, a Long Island example of top officials in Washington company called Altitude Express. Before intervening in court in what is an important taking a female client on a tandem dive, Mr. but essentially private dispute between a Zarda told the woman he was gay to assuage worker and his boss over gay rights issues. any awkwardness that might arise from his being tightly strapped to her during the jump. “The sole question here is whether, as a The woman’s husband complained to the matter of law, Title VII reaches sexual company, which subsequently fired Mr. orientation discrimination,” the Justice Zarda. Mr. Zarda then sued Altitude Express, Department said in a friend-of-the-court claiming it had violated Title VII. brief, citing the 1964 Civil Rights Act, which bars discrimination in the workplace based Under Attorney General Jeff Sessions, the on “race, color, religion, sex or national Justice Department has now stepped into the origin.” “It does not, as has been settled for fray. In its brief, the department noted that decades. Any efforts to amend Title VII’s every Congress since 1974 has declined to scope should be directed to Congress rather add a sexual-orientation provision to Title than the courts.” VII, despite what it called “notable changes in societal and cultural attitudes.” The brief The department filed its brief on Wednesday, also said that the federal government, as the the same day President Trump announced on largest employer in the country, had a Twitter that transgender people would be “substantial and unique interest” in the banned from serving in the military, raising proper interpretation of Title VII. concerns among civil rights activists that the Trump administration was trying to In 2015, the Equal Employment Opportunity undermine lesbian, gay, bisexual and Commission, under Mr. Obama, issued a 468
contrary ruling, deciding on a vote of three strongly declaring that sex discrimination Democrats to two Republicans that does not encompass bias based only on discrimination on the basis of sexual sexual orientation was a striking shift in tone. orientation was illegal. That ruling, which was reviewed by the Obama administration’s It was unclear why the Justice Department Justice Department, did not formally bind the filed the brief when it did and whether it was federal courts, although courts often defer to a stand-alone effort or part of a larger federal agencies when they interpret laws that ideological push. come under their jurisdiction. In 2015, a lower court on Long Island first In its brief, the Trump administration’s considered Mr. Zarda’s case and ruled Justice Department said the E.E.O.C., which against him, deciding, despite the E.E.O.C. had also filed court papers supporting Mr. ruling, that sexual orientation was not Zarda, was “not speaking for the United included in the civil rights law’s prohibition States.” against discrimination based on “sex.” In April, the Second Circuit in New In 2014, Eric Holder, Mr. Obama’s attorney York upheld that court’s decision, even general, issued a memo stating that in any though it noted “a longstanding tension in litigation that came before it, the Justice Title VII case law.” Department would take the position that the protections afforded by Title VII would be Federal appeals courts have issued extended to include a person’s gender contradictory rulings on the matter. In 2000, identity, including transgender status. The while considering the case of a Long Island future of that memo under Mr. Trump postal worker, Dwayne Simonton, who was remains unclear. abused at work for being gay, the Second Circuit ruledthat the language of Title VII did Mr. Holder noted the Trump administration’s not bar discrimination based on sexual moves on Twitter on Thursday. orientation. The ruling also noted that Congress had repeatedly declined to include While the Obama administration’s legal such a provision in the law. approach to gay rights evolved over time, it never declared that bans on sex “There can be no doubt that the conduct discrimination applied to sexual orientation allegedly engaged in by Simonton’s co- alone, absent some evidence that the workers is morally reprehensible,” the court discrimination targeted a person based on wrote in 2000. It added, however, that “the gender stereotypes. Rather, it adopted a wait- law is well-settled in this circuit.” and-see attitude as the law continued to develop. Shortly after the new brief was filed, civil rights activists attacked it. In a statement on Against that backdrop, the Trump Justice Wednesday, Vanita Gupta, who ran the Department’s decision to file the brief Justice Department’s civil rights division
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under Mr. Obama, said the Trump Department’s longstanding position and the administration’s court filing “contravenes holdings of 10 different courts of appeals.” recent court decisions and guidance issued by Mr. O’Malley added that the filing “reaffirms the Equal Employment Opportunity the department’s fundamental belief that the Commission.” courts cannot expand the law beyond what Congress has provided.” On Twitter on Wednesday night, Ms. Gupta, who is the president of the Leadership Some states like New York have their own Conference on Civil and Human Rights, laws banning bias in the workplace based on noted that only political appointees, not sexual orientation, but several states do not. career employees, from her former office at “Without a federal standard,” said Douglas the Justice Department had signed the brief. Wigdor, a prominent New York City employment lawyer, “many people could be The American Civil Liberties Union called exposed to discrimination at work just the brief a “gratuitous and extraordinary because they’re gay.” attack on L.G.B.T. people’s civil rights.” In a statement, James Esseks, the director of the Mr. Zarda brought claims against his organization’s L.G.B.T. and H.I.V. Project, employer under both federal and state law, added, “The Sessions-led Justice Department according to his lawyer, Gregory Antollino. and the Trump administration are actively But the state case failed in October 2015 working to expose people to discrimination.” because state law requires a higher burden of proof than federal law to show In his own statement, Devin O’Malley, a discrimination, and because by the time it Justice Department spokesman, said the brief went to trial, Mr. Zarda had died, Mr. was “consistent with the Justice Antollino said.
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“Post-Kennedy Court Likely To Take Narrow View of Title VII”
Law360
Braden Campbell
June 28, 2018
A circuit split on whether Title VII's ban on Kennedy’s retirement comes amid debate workplace sex discrimination includes bias among federal courts about how to interpret based on sexual orientation had civil rights Title VII’s ban on discrimination on the advocates hoping the U.S. Supreme “basis of … sex.” Court would declare that federal law protects gay workers, but Justice Anthony For the first half-century after Congress Kennedy's retirement means that's a long passed the Civil Rights Act of 1964, every shot, experts say. appeals court to consider whether its ban on workplace discrimination covers sexual Justice Kennedy’s reputation as a swing orientation said it doesn’t. But in the last few voter derived largely from his siding with the years, that blanket of precedent has frayed. high court’s liberal wing on gay rights, most notably casting the deciding vote and The Seventh Circuit became the first to break authoring the opinion in Obergefell v. from its sister courts in April 2017, ruling in Hodges, which made same-sex marriage an en banc opinion that it’s “impossible to legal nationwide. discriminate on the basis of sexual orientation without discriminating on the But attorneys say his successor may be more basis of sex.” And the en banc Second willing to toe the conservative line on gay Circuit deepened the split in February, rights should the post-Kennedy court take up abandoning nearly 20-year-old precedent and one of two pending petitions for certiorari on reviving gay skydiving instructor Donald the question of Title VII’s reach. Zarda’s bias suit against Altitude Express Inc., his former employer. Zarda died in “[Justice Kennedy’s] legacy is in this area … 2014, and his family has pursued the suit. this is what he stood for, as being kind of the deciding vote in all these different cases,” But not every court has followed this trend. said Michelle Phillips, a Jackson Lewis The Eleventh Circuit last July declined to PC attorney whose practice focuses on reconsider en banc hospital security guard LGBT issues. “I think whoever is vetting the Jameka Evans’ allegations she was fired potential candidates, they’re going to be because she is a lesbian, and last month careful to ensure a conservative position is denied Georgia municipal worker Gerald maintained on the court.”
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Bostock’s bid for a rehearing on claims he “Everybody feels this is where we’re going to was a victim of anti-gay bias. see the most change,” said Collin O’Connor Udell, a Supreme Court litigator at Jackson Bostock and Altitude Express appealed their Lewis PC. “President Trump has said he losses to the Supreme Court over a five-day wants to nominate people that want to span last month. If either petition is accepted, overturn Roe v. Wade … I imagine that with Kennedy’s departure means its authors will respect to gay rights, it’ll be like that as well.” argue before a very different bench than the one they appealed to. But it’s not a foregone conclusion that Justice Kennedy’s successor will be a conservative Though Kennedy was appointed by Ronald hard-liner, Littler Mendelson PC attorney Reagan and sided with the court’s Stephen Melnick said. conservatives in many matters, he frequently voted with the liberal wing on LGBT issues. With Republicans holding just a 51-seat In his three decades on the bench, Kennedy majority in the Senate, the president may penned opinions that blocked states from have to nominate someone in the middle to proscribing laws making sexual orientation a stock the court quickly, he said. protected class, struck down state laws against sodomy, and gave same-sex couples “It’s possible that the president would want the right to marry. to appoint someone who is a moderate in LGBT issues, to tamp down any strong Given his track record, Kennedy’s retirement dissent to the appointment,” Melnick said. “If has LGBT advocates worried. not … it is likely that a more solidly conservative court would interpret Title VII “There are no guarantees, nor do we count on narrowly.” any one particular justice, but [Justice Kennedy] is somebody who had shown to be, The dispute is one of statutory construction at at least in the realm of LGBT rights, an ally,” its heart, so there’s some hope for gay rights said Lambda Legal attorney Omar Gonzalez- advocates at the post-Kennedy court. Pagan, who is involved in Zarda and other recent cases. “So we do have some concern.” While a ruling in Zarda or Bostock would expand or shrink gay rights, the underlying If Kennedy’s loss weren’t enough, it’s likely legal question is semantic: Does the word he’ll be replaced by someone hand-picked for “sex” in Title VII’s ban on discriminating his or her conservative views on social issues, against workers on the “basis of … sex” attorneys say. President Donald Trump encompass sexual orientation? Judges have is reportedly choosing from a list of a few so far answered that question in a variety of dozen people, any one of whom would likely ways. be to Kennedy’s right on gay rights.
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“If you read all the varying decisions in the for failing to meet the stereotype of dating Zarda case, the concurrences and the members of the opposite sex. dissents, there’s not disagreement on whether it’s a good policy to protect people from Though conservative appointees are viewed sexual orientation discrimination,” Abrams as predisposed to rule against gay rights, the Fensterman employment practice head Seventh and Second Circuits ruled for Sharon Stiller said. “But there is substantial workers “by lopsided margins” that don’t disagreement on what Title VII means.” align with the courts’ political makeups, Gonzalez-Pagan said. Gay rights advocates have three main arguments against the narrower “Of those arguments, different judges of interpretation: it treats men who date men different persuasions have adopted and differently than it does women who date men, endorsed different ones,” Gonzalez-Pagan it treats workers differently based on the sex said. “It’s a full menu of possibilities.” of those they date and it punishes gay workers
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“Justice Kennedy’s Masterpiece Ruling”
The Atlantic
Garrett Epps
June 4, 2018
When the Supreme Court opened its October On Monday, a majority opinion by Justice term last year, Masterpiece Cakeshop v. Anthony Kennedy listed the reasons why this Colorado Civil Rights Commission—the case turned out to be a lemon. First, is what “gay wedding cake” case—loomed as a the couple asked for—a cake for a private blockbuster, a major step toward resolving celebration—really “speech” or “free conflicts between religious freedom and anti- exercise of religion” at all? Second, the discrimination laws protecting LGBT people record was unclear whether Phillips refused in general and same-sex married couples in only to bake a cake with a “wedding” particular. message or refused to provide any cake at all for Craig and Mullins’s celebration. Third, But someone left the cakeshop in the rain. the events occurred before the Court’s decision, in Obergefell v. Hodges, that same- On Monday, the Supreme Court produced the sex couples have a right to marry. Thus, melted remnant. By a contentious majority of Phillips in part based his denial on the fact 7–2, the Court held for the religious baker, that, at the time, Colorado did not permit Jack Phillips, who had refused to sell a cake same-sex marriage—that “the potential to a same-sex couple, Charlie Craig and Dave customers ‘were doing something illegal.’” Mullins, for a post-hoc celebration of their Fourth, as Justice Kennedy pointed out at oral out-of-state wedding. It used a rationale argument, the record was muddled by anti- applicable only to this case, which sheds no religious statements made by state officials light on the larger civil-rights issues. who considered the case below.
It was obvious at oral argument in December And finally, though the Court did not discuss that the case had what Supreme Court this aspect, Phillips’s attorneys (from the insiders call “vehicle problems”—meaning religious-right legal powerhouse Alliance that the facts and the record did not clearly Defending Freedom) and the Trump tee up the issue the parties were seeking to administration made extravagant claims. resolve. (Some years ago, The New York They suggested that the Court skip the Times’ Adam Liptak cogently explained the religious-freedom issue altogether and decide concept of a “clean vehicle.”) the case on pure free-speech grounds. Had it done so, a decision for Phillips would have given constitutional protection to an
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unknown number of discriminations against … to protect the rights and dignity of gay LGBT people and couples, and indeed—by persons who are, or wish to be, married”; the the government’s own concession—called second is “the right of all persons to exercise into question laws protecting women and fundamental freedoms under the First racial minorities. Amendment.” Jack Phillips claimed the commission’s order violated his rights of free All told, the Court would have done well to speech and free exercise; Kennedy found him do to Cakeshop what it had done the week half right. The opinion was written entirely in before to an obscure case with a muddled terms of “free exercise” of religion—a record called City of Hays, Kansas v. Vogt— narrower ground than the free-speech dismissed the writ of certiorari argument. as “improvidently granted.” A better case— with a clean record, decided Kennedy found no problem with civil-rights after Obergefell, and perhaps with more statutes protecting gays and lesbians; the careful briefing—would be sure to come opinion repeated long-established religion along. that religious scruples do not necessarily overcome civil-rights laws. (Kennedy even Instead, the Court decided the case, but on the cited Newman v. Piggie Park Enterprises, a narrowest grounds imaginable—that the 1968 case that rejected a claim for religious Colorado Civil Rights Commission during its exemption for a barbecue joint whose owner consideration of the case had shown anti- asserted that serving black people offended religious bias. The result was a decision that his religion.) Instead, Kennedy said, the provides almost no guidance for lower courts Colorado Civil Rights Commission, in its facing similar cases. “In this case,” Kennedy hearing, did not afford Phillips “neutral and wrote, “the adjudication concerned a context respectful consideration of his claims” for that may well be different going forward.” religious exemption. Thus, “the outcome of cases like this in other circumstances must await further elaboration As evidence, Kennedy cited statements by in the courts.” commissioners “that religious beliefs cannot legitimately be carried into the public sphere The action in the Cakeshop opinions, in fact, or commercial domain.” He coupled those involved jockeying for position in those with another statement in which a member future cases between the moderate liberals, said “freedom of religion and religion has led in this case by Justice Elena Kagan, and been used to justify all kinds of the hard-right conservatives, led here by discrimination through history, whether it be Justice Neil Gorsuch. slavery, whether it be the Holocaust.” That kind of claim, the commissioner said, “is one Kennedy’s opinion began by setting out his of the most despicable pieces of rhetoric that vision of the conflict of two constitutional people can use to … hurt others.” principles. “The first is the authority of a state
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Kennedy saw this as anti-religious bias in “at was a Christian but because the specific least two distinct ways: by describing message offended them. Civil-rights laws [religion] as merely rhetorical” and by protect individuals, not messages. comparing it to “defenses of slavery and the Holocaust.” These statements infected the This part of Kennedy’s opinion set off the judgment below with hostility to religion, he battle of the concurrences. Kagan, joined by said. Justice Stephen Breyer, warned lower courts that discrimination against messages is not In addition, Kennedy said, the commission religious discrimination. Phillips denied had earlier dismissed complaints brought service to Craig and Mullins because they are against three other bakers by a conservative gay. The other bakers would not bake an anti- Christian named William Jack. Jack asked gay cake for anyone of any race, creed, color, them to create cakes depicting gay couples or sexual orientation, she said. Thus, “the with a cross-out mark, and Bible verses bakers did not single out Jack because of his denouncing homosexuality. As Kennedy read religion, but instead treated him in the same the record, the commission had dismissed way they would have treated anyone else.” Jack’s complaint because it found the messages “offensive.” The decision, thus, Gorsuch, joined by Alito, argued that this was was based on “the government’s own a distinction without a difference. He cited assessment of offensiveness,” which the First first the bakers’ statements that they would Amendment forbids. not make anti-gay cakes for anyone, then a statement by Phillips that he “would have The latter part of the opinion seems fairly refused to create a cake celebrating a same- dubious to me. I don’t read the commission’s sex marriage for any customer, regardless of language as he does; I read it as saying that his or her sexual orientation.” Thus, Gorsuch the bakers refused the message because they wrote, “the two cases share all legally salient found it offensive. Under a proper civil-rights features.” A lot will ride on which of these law, businesses cannot discriminate against a arguments future courts find most persuasive. customer because of his or her race, or religion, or sexual orientation; businesses, Justice Clarence Thomas wrote separately to however, aren’t bound by the First say that the case should have been decided on Amendment and can reject messages—as free-speech grounds. Gorsuch joined this long as they would reject the same message opinion as well, signaling his openness to this from any customer. broader claim.
The commission below found that Justice Ruth Bader Ginsburg, joined by Masterpiece had denied a wedding cake to Justice Sonia Sotomayor, dissented. In her Craig and Mullins because they are gay. The view, the commission’s decision was entirely bakeries in the Jack cases had refused only a proper. First, “Phillips submitted no evidence very specific cake—and not because Jack showing that an objective observer
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understands a wedding cake to convey a be called a mouse. The issue should have message, much less that the observer been saved for a better case. That it wasn’t, I understands the message to be the baker’s.” suspect, results from Kennedy’s interest in Second, the Jack case and Masterpiece are this particular set of facts. Twenty-six years quite different, she argued: “While Jack ago, in Church of the Lukumi Babalu Aye v. requested cakes with particular text City of Hialeah, he wrote a major opinion on inscribed, Craig and Mullins were refused the religious animus that relied in part on public sale of any wedding cake at all. They were statements of local officials. He may not have turned away before any specific cake design been able to resist returning to, and could be discussed.” reaffirming, that opinion in the autumn of his career. So after prolonged labor, on Monday the Court brought forth what can only generously
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“Baker claims religious persecution again—this time after denying cake for transgender woman”
Washington Post
Amy B. Wang
August 15, 2018
Add another layer to the legal drama or feelings, and cannot be chosen or surrounding the Colorado baker who refused changed,” the complaint stated. to make a wedding cake for a same-sex couple — and took his case all the way to the More than a year later, on June 28, the Supreme Court. Colorado Civil Rights Commission ruled that there was probable cause that Phillips had Jack Phillips, owner of Masterpiece discriminated against Scardina on the basis of Cakeshop in Lakewood, Colo., on Tuesday gender identity. filed a federal lawsuit against the state alleging religious discrimination. In refusing to make a cake for the transgender woman, Phillips had “denied her equal This time, the cake at the center of the enjoyment of a place of public controversy was not for a wedding. In June accommodation,” Aubrey Elenis, director of 2017, Colorado lawyer Autumn Scardina the Colorado Civil Rights Division, wrote in called Masterpiece Cakeshop to request a her ruling. custom cake that was blue on the outside and pink on the inside. The commission’s latest decision came two weeks after the Supreme Court ruled The occasion, Scardina told the bakery’s narrowly in favor of Phillips in Masterpiece employees, was to celebrate her birthday, as Cakeshop v. Colorado Civil Rights well as the seventh anniversary of the day she Commission, a case that had originated when had come out as transgender. Phillips refused to bake a wedding cake for a same-sex couple in 2012. Masterpiece Cakeshop ultimately refused Scardina’s order on religious grounds. As The Washington Post’s Robert Barnes reported, the 7-to-2 Supreme Court decision “Phillips declined to create the cake with the was in favor of Phillips — but focused on his blue-and-pink design because it would have treatment by the Colorado Civil Rights celebrated messages contrary to his religious Commission and did not necessarily set a belief that sex — the status of being male or standard for future similar cases: female — is given by God, is biologically determined, is not determined by perceptions
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“The neutral and respectful new lawsuit, Masterpiece Cakeshop v. consideration to which Phillips was Elenis. entitled was compromised here,” Justice Anthony M. Kennedy wrote, “You would think that a clear Supreme Court adding that the commission’s decision against their first effort would give decision that the baker violated the them pause,” the group stated. “But it seems state’s anti-discrimination law must like some in the state government are hellbent be set aside. on punishing Jack for living according to his faith. If that isn’t hostility, what is?” But Kennedy acknowledged that the decision was more of a start than a The group pointed out that Scardina’s request conclusion to the court’s for a blue-and-pink cake came on the same consideration of the rights of those day — June 26, 2017 — that the Supreme with religious objections to same-sex Court announced that it would marriage and the rights of gay people, hear Masterpiece Cakeshop v. Colorado who “cannot be treated as social Civil Rights Commission, indicating Phillips outcasts or as inferior in dignity and had been “targeted” by some Colorado worth.” citizens.
Future cases that raise those issues “The first time around, it looked like “must be resolved with tolerance, Colorado was biased against people of faith,” without undue disrespect to sincere the group stated. “Now it just looks like the religious beliefs, and without state is biased against people named ‘Jack subjecting gay persons to indignities Phillips.’ In moving ahead on this new case, when they seek goods and services in the government is yet again confirming that an open market,” he wrote. it applies its law in an arbitrary and unequal way, which the Supreme Court has already The Alliance Defending Freedom, a said it cannot do.” Christian legal nonprofit that funded Phillips’s previous case, said Colorado A representative for the Colorado Civil officials were “doubling down on their anti- Rights Commission said that the commission religious hostility” in their treatment of the could not comment on pending or active baker, according to a statement regarding this litigation and, by law, could not verify or disclose the existence of charges detailed by Phillips.
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Transgender Rights
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“Federal Law On Transgender, Sexual Orientation Bias a Mixed Bag”
Bloomberg
Jon Steingart
April 11, 2018
Some workers and employers are uncertain The Tenth Circuit in September 2007 said about what’s prohibited under a federal law Title VII doesn’t cover transgender against sex discrimination in the workplace discrimination. However, the Sixth Circuit in in light of a patchwork of legal August 2004 said Title VII prohibits it as a interpretations. form of unlawful sex stereotyping.
“For large national employers, regardless of Several cases rely on precedent in which the how Title VII is interpreted, you have some U.S. Supreme Court established “sex number of states, cities, or federal contractors stereotyping” as a prohibited form of sex who have explicit laws that clearly protect discrimination. The court ruled that a woman employees from discrimination based on could prove a discrimination case because sexual orientation or gender identity,” Mike she didn’t carry herself the way stereotypes Eastman, managing counsel at NT Lakis, told about how women behave suggest she Bloomberg Law. NT Lakis helps large should. employers comply with workplace obligations. The Eleventh Circuit compared discriminating against a transgender person Several federal appeals courts in recent years to stereotyping on the basis of “gender-based have reached different conclusions about behavioral norms” in a 2011 ruling. The whether Title VII of the 1964 Civil Rights Sixth Circuit earlier this year expanded its Act prohibits discrimination based on sexual interpretation of Title VII and said a worker orientation or transgender status. can bring a sex discrimination claim based on The Seventh Circuit in April 2017 became transgender identity alone, without having to the first to rule that sexual orientation go into stereotyping. In the ruling, the Sixth discrimination is a form of sex Circuit also rejected the employer’s discrimination. The Second Circuit joined it argument that its action was protected under in February 2018. The Eleventh Circuit, the Religious Freedom Restoration Act. meanwhile, reached the opposite conclusion in March 2017. The circuit split has Differing views have been voiced within the fueled speculation that the U.S. Supreme executive branch. The Equal Employment Court will take up the question. Opportunity Commission, which investigates charges of discrimination under Title VII and
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enforces it in private sector and federal the company rescinded a job offer after workplaces, holds the expansive view of the learning she was transgender. She said the law’s scope on sexual company used a discrepancy in her orientation and transgender status. The employment history to conceal its Justice Department, which enforces Title VII discriminatory intent. in state and local public sector workplaces, takes the narrower view with respect Recent rulings in other circuits were to sexual orientation and transgender status. persuasive for concluding that Title VII covers transgender status, Judge Lee H. Employers are trying to deal with “real Rosenthal of the U.S. District Court for the practical challenges” rather than the question Southern District of Texas said. of “is it covered or not?” Eastman told She ruled against Wittmer because the Bloomberg Law. As examples, he listed evidence showed Phillips 66 rescinded her questions employers with transgender job offer for reasons unrelated to her sex. employees ask: “What’s the best way to deal “The record shows no evidence that Phillips with a transitioning employee? What are the knew about Wittmer’s status as a transgender sort of things we have to think through? What woman until after it had decided to rescind kind of plans are we going to make? How can the offer,” she wrote. we be helpful?” Even though Rosenthal ruled against Employers ask these questions because Wittmer, her lawyer was encouraged that they’re concerned with doing what’s right, Rosenthal took a more expansive view of not with doing the minimum that the law Title VII. says, he said. “There’s good reason to go beyond what the law requires,” he said. “While we are certainly disappointed that the “They rarely say they’re going to have an judge didn’t see this particular set of facts in anti-harassment policy that just barely a way to allow Ms. Wittmer to get to a jury, satisfies Title VII.” what she did say is if you’re transgender, you’re allowed to get protections under law,” Fifth Circuit May Be Next Alfonso Kennard with Kennard Law, P.C. in Houston, told Bloomberg Law. One circuit that hasn’t ruled on sexual orientation or transgender discrimination Kennard “can’t say at this time” whether under Title VII is the Fifth Circuit. It covers Wittmer will appeal to the Fifth Circuit. But federal courts in Texas, Louisiana, and even if Rosenthal’s ruling is the last word in Mississippi. Wittmer’s case, it will be persuasive for other Title VII transgender discrimination cases, he Phillips 66, a downstream energy company, said. “Anyone looking to make sense of the prevailed April 4 in a Title VII transgender current status of law on this topic in the Fifth discrimination lawsuit. Nicole Wittmer said
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Circuit needs look no further than this order advocacy group. Lambda Legal and by Judge Rosenthal,” he said. Transgender Law Center are and have been involved in cases urging a more expansive A ruling against a transgender worker that interpretation, either by directly representing embraces an expansive view of Title VII isn’t workers or filing amicus briefs. a complete loss, Shawn Meerkamper, a staff attorney with Transgender Law Center in “That is at least an issue by proceeding with Oakland, Calif., said. “The plaintiff won on judicial rulings rather than statute that it can the law but lost on the facts,” Meerkamper leave an issue where people’s rights are less told Bloomberg Law. A ruling like this lays clearly understood by employers and workers the groundwork for more rulings in favor of and judges and lawyers,” the Atlanta-based broad Title VII coverage, they said. Nevins told Bloomberg Law. “Even though I adamantly believe that Congress already Proceeding with a patchwork of Title VII passed a law that protects the LGBT interpretations at the trial and appeals court community from discrimination in levels isn’t ideal, said Greg Nevins, employment, it wouldn’t be a bad idea if they employment fairness project director for passed one that makes it explicit.” Lambda Legal, an LGBT civil rights
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“Transgender Workers Gain New Protection Under Court Ruling”
New York Times
Robert Pear
March 24, 2018
Employers are moving to adopt or strengthen Civil Rights Act of 1964, the court ruled. policies to prevent bias against transgender Under the law, it said, “gender must be people after the latest in a series of court irrelevant to employment decisions.” rulings that have extended protections for an increasingly diverse work force. The court’s conclusion is at odds with a position taken by Attorney General Jeff A federal appeals court, rejecting the position Sessions in October. In a memorandum to of the Trump administration, ruled this month Justice Department lawyers, he said that that transgender people are protected by a “Title VII’s prohibition on sex discrimination civil rights law that bans workplace encompasses discrimination between men discrimination based on sex. and women but does not encompass discrimination based on gender identity per Lawyers who specialize in employment cases se, including transgender status.” said that the decision, by the United States Court of Appeals for the Sixth Circuit, in The funeral home maintained that it did not Cincinnati, was highly significant. The court violate federal law by requiring the employee held that job discrimination on the basis of to comply with a sex-specific dress code. transgender status was inherently sex Moreover, the owner of the home, Thomas discrimination, and that the employer in this Rost, who has been a Christian for more than case could not claim an exemption from the 65 years, said that forcing him to employ the law because of his religious beliefs. transgender worker would impose a substantial burden on his sincerely held The case was brought by the Equal religious beliefs and would therefore violate Employment Opportunity Commission, an another law, the Religious Freedom independent federal agency, on behalf of a Restoration Act of 1993. funeral director who had been fired by a Michigan funeral home after informing the The court disagreed, saying that employees owner that she intended to transition from may not be discriminated against because male to female and would dress as a woman they fail to conform to “stereotypical gender while at work. norms” — in this case, an employer’s notion of “how biologically male persons should Job discrimination based on a person’s dress, appear, behave and identify.” transgender status violates Title VII of the 484
Discrimination based on transgender status is In court papers, Mr. Rost said he wanted to a form of sex discrimination, said the run his business in keeping with his religious decision, written by Judge Karen Nelson belief that “a person’s sex (whether male or Moore for a unanimous three-judge panel, female) is an immutable God-given gift and because “an employer cannot discriminate that people should not deny or attempt to against an employee for being transgender change their sex.” without considering that employee’s biological sex.” The court decision is binding in states covered by the Sixth Circuit: Kentucky, Scott Rabe, an expert on employment law at Michigan, Ohio and Tennessee. But its the firm Seyfarth Shaw, said that the ruling reasoning could have influence elsewhere. was important because “it addresses two hot- button topics in employment law: the scope As it embraced a broad view of protections of the definition of ‘sex discrimination’ under under Title VII, the court also rejected an Title VII and the impact of laws protecting expansive interpretation of the Religious the free exercise of religion in the Freedom Restoration Act. workplace.” That law figured prominently in dozens of “The ruling is a big win for the Equal court cases in which employers challenged an Employment Opportunity Commission and Obama-era rule that required them to provide for transgender people,” Mr. Rabe said. “The insurance coverage for contraception under court sent a strong message that the Religious the Affordable Care Act. The Trump Freedom Restoration Act has minimal impact administration has proposed to roll back that on the E.E.O.C.’s authority to enforce the requirement by offering an exemption to any anti-discrimination laws under Title VII of employer that objects to covering birth the Civil Rights Act.” control on the basis of religious beliefs.
In an interview, the employee at the center of Doron M. Kalir, a law professor at Cleveland the case, Aimee Stephens, 57, said she had State University in Ohio, said the court ruling been shocked by her dismissal. showed how judges were “extending the protection of Title VII of the Civil Rights Act “I had a hard time believing that a company to a more diverse work force of gays, lesbians or a person could get away with firing me and transgender people.” because I was transgender,” Ms. Stephens said. “It didn’t seem right.” But, she said, she The funeral home has not said whether it will has since learned that “it’s a pretty common appeal the ruling. Mr. Kalir said that at least occurrence for transgender people to be fired several Supreme Court justices, if presented because they are transgender or don’t meet with the issue, would probably vote to the expectations of what another individual overturn the ruling on the ground that thinks they should be.’’ Congress was not thinking about transgender people when it passed the Civil Rights Act of 1964. (Mr. Kalir wrote a friend-of-the-court
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brief for a civil rights group, Equality Ohio, “It is well-nigh certain that homosexuality, that was quoted by the appeals court.) male or female, did not figure in the minds of the legislators who enacted Title VII,” wrote In a separate case last year, Judge Richard A. Judge Posner, who retired from the federal Posner of the United States Court of Appeals bench in September. But, he said, the law for the Seventh Circuit, in Chicago, said the “invites an interpretation that will update it to meaning of the civil rights law and the word the present,” and the word “sex” in Title VII “sex” had changed over the years. can now, after more than a half-century, be “understood to include homosexuality.”
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“U.S. anti-bias law does not protect transgender workers: Justice Dept”
Reuters
Daniel Wiessner and Sarah N. Lynch
October 5, 2017
The U.S. Department of Justice has reversed provide protections to gay and lesbian course on whether federal law banning sex workers. discrimination in the workplace provides protections for transgender employees, The Democratic National Committee saying in a memo that it does not. criticized Wednesday’s memo in a statement, and urged Congress to pass a law explicitly The memo sent to U.S. Attorneys’ offices on protecting LGBT workers from Wednesday by Attorney General Jeff discrimination. Sessions says Title VII of the Civil Rights Act of 1964 only prohibits discrimination on Department of Justice spokesman Devin the basis of a worker’s biological sex, and not O’Malley said in a statement on Thursday their gender identity. that the government could not expand the law beyond what Congress had intended. Sessions rescinded a Justice Department memo from 2014 that said Title VII does “Unfortunately, the last administration protect transgender people, a position also abandoned that fundamental principle, which taken by several federal appeals courts in necessitated today’s action,” he said. recent years. But Sharon McGowan of LGBT group It was the Trump administration’s latest Lambda Legal, who worked at the Justice move to roll back Obama administration Department during the Obama policies on LGBT issues. In August, administration, said the memo “blatantly President Donald Trump signed a memo ignores” a growing body of court decisions directing the U.S. military not to accept that said discrimination against transgender transgender men and women as recruits, people is a type of sex bias. reversing a policy that allowed transgender people to serve openly. “We are confident that the courts will see this flip in position for what it is - an anti-LGBT And last month, the Justice Department political pronouncement that finds no support appeared before a federal appeals court in in the law,” she said. Manhattan to argue that Title VII does not
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All three federal appeals courts to consider Most recently, an appeals court in Atlanta in the issue over the last two decades have said 2011 said the Georgia state legislature discrimination against transgender workers is unlawfully fired a transgender woman after unlawful. she told her supervisor she planned to transition from male to female.
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“Title VII In Transition? Texas Federal Court Rules That Anti-Discrimination Statute Protects Transgender Individuals”
Lexology
Stephen Fox and Jonathan Clark
April 19, 2018
In a landmark ruling, a federal court judge in believed that Wittmer had falsely claimed she Texas issued an opinion holding— was still working for her former employer at unequivocally—that Title VII protects the time of the interview when, in fact, she transgender individuals from discrimination had been terminated days prior to the based on their gender identity. Wittmer v. interview. Wittmer claimed that this Phillips 66 Company, No., 4:2017-cv-02188 justification was pretextual because, in her (S.D.Tex, April 4, 2018). The ruling is the view, Phillips’ actually withdrew the offer first of its kind in Texas and will likely have because she is a transgender woman. a major impact in Texas workplaces. Indeed, recent studies have shown that approximately On April 4, 2018, Judge Lee Rosenthal, the 430,000 workers in Texas identify either Chief Judge for the Southern District of lesbian, gay, bisexual, or transgender Texas, rejected Phillips’ argument that (LGBT). Of that number, 79% of transgender Wittmer’s transgender status was not workers in Texas have reported—either protected under federal law, holding formally or informally—some kind of unequivocally that Title VII protects discrimination in the workplace, including transgender individuals from sex harassment, discriminatory hiring practices, discrimination. Ironically, after issuing this and promotion denials. Texas employers monumental determination, Judge Rosenthal should take note of the recently-issued tossed Wittmer’s lawsuit, ruling that Wittmer decision. had failed to make a prima facie case of sex discrimination and, even if she had, Phillips Wittmer v. Phillips 66 had put forth a legitimate, nondiscriminatory Company Background & Holding and non-pretextual reason for rescinding the employment offer. Nicole Wittmer, a transgender woman, sued Phillips 66 Company for sex discrimination, A Shifting Legal Consensus claiming her job offer from Phillips was rescinded after the company learned she was This opinion joins a chorus of recent transgender. Phillips claimed the offer was decisions by various federal circuit and withdrawn because Wittmer lied during the district courts expanding Title VII to interview/application process. Phillips transgender and homosexual individuals. In
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her decision, Judge Rosenthal relied heavily usually-conservative Fifth Circuit Court of on the Supreme Court’s seminal 1989 case Appeals has not weighed in on the issue. And of Price Waterhouse v. Hopkins in to the extent it does (a question of ‘when’ and concluding Title VII covers transgender- not ‘if’), there are no guarantees it will fall in based sex discrimination. In Hopkins, the line with this movement. Indeed, Fifth nation’s high court held Title VII protects Circuit precedent still holds that a discharge individuals from discrimination based on based solely on homosexuality is not their perceived failure to conform to gender prohibited by Title VII. Blum v. Gulf Oil stereotypes. As Judge Rosenthal noted, Corp., 597 F.2d 936, 938 (5th Cir. 1979). the Hopkins holding has recently been And as recently as last year, the Eleventh expanded by several federal courts to include Circuit, citing Blum, held that a plaintiff- protection of both transgender and employee could not state a claim under Title homosexual persons. In particular, both the VII for workplace discrimination based on Sixth and Second circuits, relying on Price sexual orientation. Evans v. Georgia Reg’l. Waterhouse, ruled this year that Title VII Hosp., 850 F.3d 1248 (11th Cir. 2017). covers gender-identity and sexual-orientation based discrimination claims.[1] These Second, regardless of trendlines or opinions correspond with the Seventh predictions, one thing is abundantly clear: the Circuit’s 2017 decision in Hively v. Ivy Tech Trump Department of Justice believes, Cmt. Coll. of Ind., which held discrimination unambiguously, that Title VII “does not based upon an individual’s sexual orientation encompass discrimination based on gender was a “paradigmatic sex discrimination” identity [and] transgender status.” claim, squarely within Title VII’s ambit. Specifically, in October 2017, Attorney Judge Rosenthal found the reasoning from General Jeff Sessions issued a memorandum these recent decisions persuasive. and amicus brief arguing for a narrow interpretation, contending the statute bars Future Conflict only discrimination between men and women. The memorandum retracts a position The recent national judicial trendline is established during the Obama administration clear—Title VII coverage is expanding and, further, remains at odds with the EEOC. throughout the federal courts to protect Accordingly, the not-too-distant future will individuals from discrimination based on likely involve a battle before the Supreme their gender identity and sexual orientation. Court to settle Title VII’s scope in the context But the story is not over. First, Texas-based of sexual orientation and gender identity once employers in particular should note that the and for all.
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“Transgender Student in Bathroom Dispute Wins Court Ruling”
New York Times
Matt Stevens
May 22, 2018
A federal judge in Virginia has found in favor that the bathroom policy had “subjected him of a transgender student whose efforts to use to sex stereotyping,” violations of the law. the boys’ bathrooms at his high school reached the Supreme Court and thrust him “There were many other ways to protect into the middle of a national debate about the privacy interests in a nondiscriminatory and rights of transgender students. more effective manner than barring Mr. Grimm from using the boys’ restrooms,” she In an order handed down on Tuesday, Judge continued. “The Board’s argument that the Arenda L. Wright Allen of the United States policy did not discriminate against any one District Court for the Eastern District of class of students is resoundingly Virginia denied a motion by the Gloucester unpersuasive.” County school board to dismiss the lawsuit brought by the student, Gavin Grimm. In Tuesday’s order, the judge directed lawyers for both parties to schedule a The school board had maintained that Mr. settlement conference within 30 days. Grimm’s “biological gender” was female and had prohibited administrators from allowing “I feel an incredible sense of relief,” Mr. him to use the boys’ restrooms. He sued the Grimm, now 19 and headed to college in the school board in July 2015, alleging that its fall, said in a statement after the ruling. policy violated Title IX as well as the equal “After fighting this policy since I was 15 protection clause of the Constitution. years old, I finally have a court decision saying that what the Gloucester County The board had argued in essence that its School Board did to me was wrong and it was policy was valid because Title IX allows for against the law. I was determined not to give claims only on the basis of sex, rather than up because I didn’t want any other student to gender identity, and that its policy did not have to suffer the same experience that I had violate the equal protection clause. to go through.”
But Judge Wright Allen disagreed, writing In a statement issued late Tuesday, the that Mr. Grimm’s transgender status Gloucester County school board said it was constituted a claim of sex discrimination and “aware of the District Court’s decision.” It
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was not clear whether the board planned to previously issued a nationwide appeal. injunction barring enforcement of the Obama administration’s guidance. A spokeswoman for the Justice Department declined to comment on Judge Wright Then, the next month, the Supreme Court Allen’s ruling on Tuesday. announced that it would not decide whether Mr. Grimm could use the boys’ bathroom at One of Mr. Grimm’s lawyers said Tuesday his high school. Although the court decided that he had moved to Berkeley, Calif., and not to take his case at the time, some would attend college in the Bay Area. The predicted that it would almost certainly return lawyer, Josh Block, said they were seeking there eventually. nominal damages and a declaratory judgment that the bathroom policy violated Mr. The March 2017 decision was a setback for Grimm’s rights under Title IX. transgender rights advocates, who had hoped the Supreme Court would aid their cause in “Title IX protects trans people, and that’s much the same way it had helped same-sex what courts have been saying for years,” said marriage advocates two years before. Mr. Block, a senior staff attorney with the A.C.L.U. who was the lead lawyer on Mr. Instead, in a one-sentence order, the Supreme Grimm’s case. “Even though this Court vacated an appeals court decision in administration wants to try to roll back favor of Mr. Grimm, and sent the case back protections, they can’t change what the law to the federal appeals court in Virginia for says.” further consideration in light of the new guidance from the Trump administration. At issue in Mr. Grimm’s case is whether Title The case was later returned to the District IX, a provision in a 1972 law that bans Court to consider whether the school discrimination “on the basis of sex” in district’s policy had violated Mr. Grimm’s schools that receive federal money, also bans rights. discrimination based on gender identity. President Barack Obama concluded that it Mr. Grimm’s case is just one of several on did. transgender rights that have been litigated in lower courts or been the subject of federal But in February 2017, President Trump civil rights investigations in recent years. In rejected the Obama administration’s position her order, Judge Wright Allen cited several and rescinded protections for transgender cases with arguments similar to Mr. students that had allowed them to use Grimm’s. Even with Tuesday’s federal order, bathrooms corresponding with their gender there remains a thicket of conflicting state identity. laws and local school policies on bathroom use. The practical effect of the Trump administration’s change in position was Mr. Grimm’s journey into the limited, however, as a federal court had spotlight began in 2014, when he was 15 and
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starting his sophomore year. At that time his identity issues” would be allowed to use family told his school, Gloucester High private bathrooms. School, that he was transgender. Administrators were supportive at first and The A.C.L.U. argued that requiring Mr. allowed him to use the boys’ bathroom. Grimm to use a private bathroom had been humiliating and had, quoting him, “turned But amid an uproar from some parents and him into ‘a public spectacle’ before the entire students, the school board barred Mr. Grimm community, ‘like a walking freak show.’” from using the boys’ bathrooms and adopted a policy requiring students to use the In its statement, the school board said that it bathrooms and locker rooms for their “continues to believe that its resolution of this “corresponding biological genders.” The complex matter fully considered the interests board added that “students with gender of all students and parents in the Gloucester County school system.”
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“The Trump Administration May Have Doomed Gavin Grimm’s Case”
The Atlantic
Emma Green
March 6, 2017
The Supreme Court sent an important case schools that get federal funds. Courts have concerning a transgender student in Virginia disagreed about the meaning of sex back down to the Fourth Circuit Court of discrimination: Some have held that it covers Appeals on Monday, in part because of the gender identity, meaning that it prohibits Trump administration’s new position on the discrimination against transgender people issues involved in the case. like Grimm. Others, like the district court in Grimm’s case, have disagreed. The Obama In Gloucester County School Board v. G.G., administration supported the inclusive Gavin Grimm sued his school district for the interpretation, instructing schools to right to use the boys’ bathroom, which accommodate transgender students. corresponds with his gender identity. Under the Obama administration, it looked like Last April, the Fourth Circuit Court of Grimm might have a strong chance of success Appeals handed down a decision in Grimm’s at the country’s highest court, potentially favor: They held that the courts should defer setting a precedent for school districts across to the administration’s interpretation of Title the country. Now, that’s looking less likely. IX, meaning in effect that Gloucester County should have to let Grimm use the bathroom The Trump administration has rolled back of his choice. The Supreme Court stayed the Obama’s former policies, meaning that opinion and the school district appealed. In transgender students like Grimm may have to October, the Supreme Court agreed to hear follow policies on bathroom use and other the case. Arguments were set for late March. accommodations set by individual school districts. But in February, the Trump administration withdrew the Obama Grimm’s case has been winding its way administration’s guidance, arguing that through the court system for nearly two “there must be due regard for the primary role years. In the summer of 2015, a federal of the States and local school districts in district court dismissed Grimm’s claims. The establishing educational policy.” This was a judges’ decision turned on their interpretation clear sign that Trump is backing away from of Title IX of the Education Amendments of the Obama administration’s inclusive 1972, which prohibits sex discrimination in
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interpretation of Title IX, favoring the In wrestling with cases like Grimm’s, they previous status quo in which individual have consistently looked to the executive and school districts decided how to deal with legislative branches for guidance. So far, transgender students according to state and Congress hasn’t passed a law that clearly and local laws. incontrovertibly prohibits gender-identity discrimination in the context of education, While Grimm’s attorneys encouraged the employment, or other arenas. In practice, that Supreme Court to move forward with the has meant the White House and other case despite the Trump administration’s new agencies have had an outsized influence in letter, the justices declined to do so on determining how cases like Grimm’s should Monday, remanding the case back to the be handled. Fourth Circuit for further consideration “in light of the guidance document issued by the With its guidance letter to schools, the Department of Education and Department of Obama administration set up transgender Justice on February 22, 2017.” kids for success in making anti- discrimination claims in court. That’s largely The Supreme Court’s decision not to hear the why Grimm was victorious at the Fourth case at this point is a sign that this issue is Circuit. Now, the Trump administration has likely to remain unresolved, at least for the reversed their fortunes, making it less likely near future. The courts have long been that students like Grimm will prevail. conflicted about the meaning of Title IX and When Gloucester County is argued before other civil-rights statutes that deal with sex the Fourth Circuit for a second time, Grimm discrimination, in part because the law is will be missing much of the support that arguably unclear about what sex helped him win the first time—including the discrimination means. support of the White House.
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“Judge sides with Gloucester transgender student on bathroom access issue”
Daily Press
Peter Dujardin
May 22, 2018
A federal judge on Tuesday sided with a with the ultimate outcome expected to be Gloucester transgender student on whether he determined by higher courts. The case still should have been able to use the bathroom of has the potential to set a legal precedent — his choice in the public schools — with the one way or the other — in the heated social judge rejecting the Gloucester County School debate over transgender issues. Board’s bid to dismiss the case. David P. Corrigan, the lead attorney U.S. District Judge Arenda L. Wright Allen representing the Gloucester School Board, sided with the student, Gavin Grimm, who did not return a phone call Tuesday seeking contends in a federal lawsuit that a School comment on what the board plans to now do. Board policy requiring him to use a separate Gloucester School Board chairwoman Anita bathroom — rather than the boys’ rooms — Parker did not immediately return a phone stigmatized him and turned him into an call, while vice chairman William Lee also outcast at Gloucester High School. could not immediately be reached.
Wright Allen, who sits in Norfolk, did not “The School Board is aware of the District rule on the case’s overall merits Tuesday. But Court’s decision denying the motion to she denied a motion from lawyers with the dismiss (Grimm’s) Amended Complaint,” Gloucester School Board to toss the case, and the board said in a statement released late she ordered that Grimm’s lawyers and the Tuesday. “The School Board continues to attorneys for the board contact the court believe that its resolution of this complex within 30 days to schedule a settlement matter fully considered the interests of all conference to resolve the issue. students and parents in the Gloucester County school system.” “The Board’s argument that the policy did not discriminate against any one class of Grimm, now 18, was born a female but later students is resoundingly unpersuasive,” told his parents — and then the school system Wright Allen concluded in her 31-page order. — that he identified as a male, and he later underwent hormone therapy. He graduated But the judge’s ruling, while significant, is from Gloucester High in June 2017, with the unlikely to be the last word in the case — school board having argued unsuccessfully
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that the case was now moot in light of his It was only after “several adults in the graduation. community” learned of Grimm’s use of the boys’ room, Wright Allen’s ruling said, that Grimm said Tuesday that Wright Allen’s the matter began to become an issue. The ruling brought him “an incredible sense of school initially planned to rectify those relief.” concerns by increasing partitions between urinals, adding privacy strips on stalls and “After fighting this policy since I was 15 designating certain single-stall restrooms for years old, I finally have a court decision use by all students. saying that what the Gloucester County School Board did to me was wrong and it was But speakers at a School Board meeting in against the law,” he said in a statement December 2014 overwhelmingly said those released by the ACLU of Virginia, which has ideas fell short. represented Grimm in the lawsuit. “I was determined not to give up because I didn’t At that meeting, the board passed a new want any other student to have to suffer the policy, by a 6-1 vote, that said that the use of same experience that I had to go through.” restrooms and locker rooms in the schools “shall be limited to the corresponding According to Wright Allen’s ruling, Grimm biological genders,” and that “students with and his mother initially approached gender identity issues shall be provided an Gloucester High School administrators in alternative private facility.” August 2014, saying that he is transgender and “would be attending school as a boy.” The rules were immediately put into effect. Grimm asserted that he not only felt excluded Though Grimm initially requested to use a by those rules, but that they made him often restroom in the nurse’s office, that was refrain from using any restroom at all — located in a remote part of the school, “and leading him to be unable to concentrate in left Mr. Grimm feeling stigmatized and class and developing a urinary tract infection. isolated,” his lawsuit said. The location caused him to be late for class because it was The case has taken a long route through so far from his classrooms, the suit added. several courts.
That was when Grimm sought permission In late 2015, Senior U.S. District Judge from the principal to use the boys’ room. He Robert G. Doumar ruled in favor of the got that permission, and began using the Gloucester School Board, saying in part that boys’ room in October 2014, using it the privacy rights of other male students “without incident” for about seven weeks. trump Grimm’s desire to use the boys’ room. Grimm would later say that he experienced The ACLU appealed that ruling to the 4th “no problems from students” during that U.S. Circuit Court of Appeals, which time. reversed Doumar’s decision. In part, the appeals court cited a U.S. Department of Education guidance under former President
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Barack Obama that said that transgender rights of other students, but certainly singled students should be allowed to use the out and stigmatized Mr. Grimm,” Wright restrooms of their choice. Allen wrote. She said there were “many other ways to protect privacy interests in a non- The Gloucester County School Board discriminatory and more effective manner appealed the 4th Circuit’s decision to the U.S. than barring Mr. Grimm from using the boys’ Supreme Court — and the Supreme Court restrooms.” initially agreed to hear the case. “It’s obviously a strong ruling in favor of But then the Trump administration, to Gavin Grimm,” said Carl Tobias, a law include Attorney General Jeff Sessions and professor at the University of Richmond. “I Education Secretary Betsy DeVos, reversed haven’t read it all, but she rejects the the Justice Department’s and Department of argument made by the School Board. I think Education’s guidance on the issue. That led (Grimm) can claim that this is a victory.” the Supreme Court to decide not to hear the case after all. Instead, in March 2017 the high Tobias said he thought the Gloucester School court sent the case back to the lower courts Board would appeal the case. “My sense is for more proceedings. that the School Board has been fighting it pretty vigorously, so why would they stop But instead of Doumar — an old-school now?” he said. “They have fought it all the federal judge who is now 87 years old — the way along.” case went to Wright Allen, one of the younger judges on the Norfolk federal bench. Joshua Block, an ACLU attorney handling A former federal public defender, Wright the case, agreed — saying the Gloucester Allen is often seen as a more liberal-leaning School Board “has been fighting tooth and judge. She made a big ruling in the same-sex nail on this issue.” marriage debate a few years ago, saying that gays and lesbians have the constitutional There are very few facts in dispute in the right to marry in Virginia. litigation, Block said, with the two sides sparring excluively over varying It couldn’t be determined Tuesday why interpretations of the law on the issue. Block Doumar didn’t get the case the second time, said he thought that the school board’s given that cases traditionally are sent back to lawyers might ask to be allowed to file "an the same judge who heard them the first time. early appeal” based on Wright Allen’s ruling, But Tuesday’s ruling makes clear that Wright “or ask that a final judgment be entered” so Allen views the merits of the case very that the court’s final decision can be more differently than did Doumar. quickly appealed.
“Preventing Mr. Grimm from using the boys’ “But for this case, I stopped making restrooms did nothing to protect the privacy predictions long ago,” Block said.
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“6th Circ. Revives EEOC’s Funeral Home Trans Bias Suit”
Law360
Braden Campbell
March 7, 2018
The Sixth Circuit issued a published decision burden [owner Thomas] Rost’s religious Wednesday reviving a U.S. Equal exercise, and even if it did, the EEOC has Employment Opportunity Commission suit shown that enforcing Title VII here is the accusing a Michigan funeral home operator least restrictive means of furthering its of violating federal anti-discrimination law compelling interest in combating and by firing its funeral director after she said she eradicating sex discrimination,” wrote would transition from male to female, Circuit Judge Karen Nelson Moore in holding that the company wasn't protected by overturning a lower court ruling that said the the Religious Freedom Restoration Act. funeral home was protected by RFRA.
R.G. & G.R. Harris Funeral Homes Inc. The opinion overturns U.S. District Judge violated Title VII by discriminating against Sean F. Cox’s August 2016 ruling that Aimee Stephens and wasn't entitled to a employing Stephens burdened Rost’s beliefs defense under RFRA when it did so, the Sixth and that Title VII’s bar on discrimination Circuit panel said in the unanimous opinion, based on sex, which the EEOC had argued let handing a win to trans rights advocates. Stephens act and dress like a woman, was not the least restrictive means of protecting her RFRA blocks the government from enforcing rights. a “religiously neutral” law that “substantially burdens” people’s “religious exercise,” But far from being too restrictive of his unless that law is the “least restrictive way to rights, Title VII’s requirement that Rost further a compelling government interest.” tolerate Stephens’ gender identity didn’t The company’s owner, Thomas Rost, had “substantially” burden his religious beliefs, argued it went against his Christian beliefs to the panel said Wednesday. employ Stephens, who was born biologically male, if she dressed and acted like a woman. Rost had argued that letting Stephens wear women’s clothing would “create “RFRA provides the funeral home with no distractions” for the funeral home’s relief because continuing to employ Stephens customers “and thereby hinder their healing would not, as a matter of law, substantially process,” and that making him tolerate her
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transition would push him to leave the funeral VII.” He also praised the court for finding industry and “end his ministry to grieving Rost was not shielded by the RFRA. people.” However, neither alleged burden is “substantial,” the panel said. “[The opinion] really said, in very common sense fashion, that you could have religious “A religious claimant cannot rely on beliefs and [the government has to] respect it, customers’ presumed biases to establish a but there are also legal requirements for substantial burden under RFRA,” Judge dealing with your employees,” said Nevins, Moore wrote, adding that “tolerating who filed an amicus brief backing Stephens. Stephens’ understanding of her sex and “One is not a violation of the other.” gender identity is not tantamount to supporting it.” Alliance Defending Freedom attorney Gary McCaleb, who represented the funeral home, Though Judge Cox had found Rost violated was less pleased, saying the opinion Title VII under a so-called sex stereotyping “radically rewrites Title VII far beyond the theory, which is one based on allegations a plain meaning of sex being either male or business mistreated a worker because they female.” McCaleb said the decision didn’t act in accordance with their sex, he “revolves around a severe misreading of the said transgender status is not protected in Price Waterhouse case” that established the itself. Here, too, he was wrong, the panel said sex stereotyping theory. Wednesday. “The court … has taken the term sex, which “It is analytically impossible to fire an means male and female, and written into that employee based on that employee’s status as the concept of gender,” he said. “Gender is a a transgender person without being continuum of self-perceived gender as motivated, at least in part, by the employee’s ranging from very masculine to very sex,” Judge Moore wrote. feminine. It’s actually contrary to understanding sex as being male or female, as The panel likened firing Stephens based on written in the law.” her gender identity to firing a gay worker based on their sexual orientation, citing the He added the group is considering its Seventh Circuit’s landmark Hively v. Ivy “options for further appeal.” Tech decision, which was the country’s first appellate ruling that discriminating against Representatives for the EEOC and attorneys gay workers violates Title VII’s ban on sex for Stephens did not immediately respond discrimination. Wednesday to requests for comment.
Gregory Nevins, director of the employment Judges Moore, Helene White and Bernice fairness project at LGBT legal advocacy Donald sat on the panel for the Sixth Circuit. group Lambda Legal, told Law360 the ruling The EEOC is represented by Anne Noel was an “emphatic clarification that Occhialino. transgender workers are covered under Title
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The funeral home is represented by Douglas Foundation. Wardlow and Gary McCaleb of the Alliance Defending Freedom. The case is EEOC v. R.G. & G.R. Harris Funeral Homes Inc., case number 16-2424, in Stephens is represented by John Knight of the U.S. Court of Appeals for the Sixth the American Civil Liberties Union Circuit.
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“Trump Says Transgender People Will Not Be Allowed in the Military”
New York Times
Julie Hirschfeld Davis and Helene Cooper
July 26, 2017
President Trump abruptly announced a ban His decision was announced with such haste on transgender people serving in the military that the White House could not answer basic on Wednesday, blindsiding his defense inquiries about how it would be carried out, secretary and Republican congressional including what would happen to openly leaders with a snap decision that reversed a transgender people on active duty. Of eight year-old policy reviled by social defense officials interviewed, none could say. conservatives. “That’s something that the Department of Mr. Trump made the declaration on Twitter, Defense and the White House will have to saying that American forces could not afford work together as implementation takes place the “tremendous medical costs and and is done so lawfully,” Sarah Huckabee disruption” of transgender service members. Sanders, the White House press secretary, He said he had consulted generals and said. military experts, but Jim Mattis, the defense secretary, was given only a day’s notice Still, the announcement pleased elements of about the decision. Mr. Trump’s base who have been dismayed to see the president break so bitterly in recent Mr. Trump elected to announce the ban in days with Attorney General Jeff Sessions, a order to resolve a quietly brewing fight on hard-line conservative. Capitol Hill over whether taxpayer money should pay for gender transition and hormone Civil rights and transgender advocacy groups therapy for transgender service members. denounced the policy, with some vowing to The dispute had threatened to kill a $790 challenge it in court. Pentagon officials billion defense and security spending expressed dismay that the president’s tweets package scheduled for a vote this week. could open them to lawsuits.
But rather than addressing that narrow issue, The ban would reverse the gradual Mr. Trump opted to upend the entire policy transformation of the military under on transgender service members. President Barack Obama, whose administration announced last year that transgender people could serve openly in the
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military. Mr. Obama’s defense secretary, percent increase in spending. Citing research Ashton B. Carter, also opened all combat into other countries that allow transgender roles to women and appointed the first openly people to serve, the study projected “little or gay Army secretary. no impact on unit cohesion, operational effectiveness or readiness” in the United And it represented a stark turnabout for Mr. States. Trump, who billed himself during the campaign as an ally of gay, lesbian, bisexual Lt. Commander Blake Dremann, a Navy and transgender people. supply corps officer who is transgender, said he found out his job was in danger when he The president, Ms. Sanders said, had turned on CNN on Wednesday morning. concluded that allowing transgender people Commander Dremann came out as to serve openly “erodes military readiness transgender to his commanders in 2015, and and unit cohesion, and made the decision said they had been supportive of him. based on that.” He refused to criticize Mr. Trump — “we Mr. Mattis, who was on vacation, was silent don’t criticize our commander in chief,” he on the new policy. People close to the defense said — but said the policy shift “is singling secretary said he was appalled that Mr. out a specific population in the military, who Trump chose to unveil his decision in tweets, had been assured we were doing everything in part because of the message they sent to appropriate to continue our honorable transgender active-duty service members, service.” including those deployed overseas, that they were suddenly no longer welcome. He added: “And I will continue to do so, until the military tells me to hang up my boots.” The policy would affect only a small portion of the approximately 1.3 million active-duty The announcement came amid the debate on members of the military. Some 2,000 to Capitol Hill over the Obama-era practice of 11,000 active-duty troops are transgender, requiring the Pentagon to pay for medical according to a 2016 RAND Corporation treatment related to gender transition. study commissioned by the Pentagon, though Representative Vicky Hartzler, Republican estimates of the number of transgender of Missouri, has proposed an amendment to service members have varied widely, and are the spending bill that would bar the Pentagon sometimes as high as 15,000. from spending money on transition surgery or related hormone therapy, and other The study found that allowing transgender Republicans have pressed for similar people to serve openly in the military would provisions. “have minimal impact on readiness and health care costs” for the Pentagon. It Mr. Mattis had worked behind the scenes to estimated that health care costs would rise keep such language out of legislation, quietly $2.4 million to $8.4 million a year, lobbying Republican lawmakers not to attach representing an infinitesimal 0.04 to 0.13
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the prohibitions, according to congressional for social experimentation at the expense of and defense officials. national security.
But Mr. Trump was concerned that the “This was Ash Carter on his way out the door transgender medical care issue could imperil pulling the pin on a cultural grenade,” Mr. the security spending measure, which also Perkins said on Wednesday. “Our military contains $1.6 billion for the border wall that leaders are saying this doesn’t help make us he has championed, and wanted to resolve the a better fighting force; it’s a distraction; it’s dispute cleanly and straightforwardly, taking up limited resources.” according to a person familiar with his thinking, who insisted on anonymity to Mr. Carter objected to the decision, for its describe it. That prompted his ban. effect on the military and on those considering joining. Republican congressional leaders were aware Mr. Trump was looking into whether “To choose service members on other taxpayer money should be spent on medical grounds than military qualifications is social procedures for transgender service members, policy and has no place in our military,” he but had not expected him to go so far as to bar said in a statement. “There are already transgender people from serving altogether. transgender individuals who are serving capably and honorably. This action would Mr. Trump and Republican lawmakers had also send the wrong signal to a younger come under pressure from Tony Perkins, the generation thinking about military service.” president of the Family Research Council, a leading Christian conservative group, and an While some conservative lawmakers, ally of Mr. Trump’s. Mr. Perkins opposed the including Ms. Hartzler, praised Mr. Trump, bill over spending on transgender medical the president drew bipartisan condemnation costs and lobbied lawmakers to do the same. on Capitol Hill and outrage from civil rights and transgender advocacy groups. “Grant repentance to President Trump and Secretary Mattis for even considering to keep “There is no reason to force service members this wicked policy in place,” the Family who are able to fight, train and deploy to Research Council said in one of its daily leave the military — regardless of their prayers last week. “Grant them gender identity,” said Senator John McCain, understanding, courage and willpower to Republican of Arizona and the chairman of stand up to the forces of darkness that gave the Senate Armed Services Committee. birth to it and wholly to repeal it.” He called Mr. Trump’s move “yet another Opponents of allowing openly transgender example of why major policy announcements service members had raised a number of should not be made via Twitter.” concerns, including what they said was the Senator Jack Reed, Democrat of Rhode questionable psychological fitness of those Island and the ranking member of the Armed troops. They said the military was being used
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Services Committee, noted the irony of Mr. people to serve in the military, in part because Trump’s announcing the ban on the medical accommodations, including anniversary of President Harry Truman’s hormone injections, could open the Defense order to desegregate the military. “President Department to claims from other people not Trump is choosing to retreat in the march allowed to serve, like Type 1 diabetics, who toward equality,” he said. also need regular injections.
In June, the administration delayed by six But Mr. Mattis and the Pentagon’s military months a decision on whether to allow leadership all seemed to have accepted that transgender recruits to join the military. At transgender people already serving in the the time, Mr. Mattis said the delay would give military would be allowed to remain. A military leaders a chance to review the shift’s senior adviser to Mr. Mattis, Sally Donnelly, potential impact. Mr. Mattis’s decision was represented the Palm Center, an organization seen as a pause to “finesse” the issue, one that advocated on behalf of the L.G.B.T. official said, not a prelude to an outright ban. community in the military during the debate that led up to the Obama administration’s The delay on recruits “was largely based on a decision to allow transgender people to serve, disagreement on the science of how mental defense officials said. health care and hormone therapy for transgender individuals would help solve the Mr. Trump’s abrupt decision is likely to end medical issues that are associated with up in court; OutServe-SLDN, a nonprofit gender dysphoria,” Gen. Paul Selva, the vice group that represents gay, lesbian, bisexual chairman of the Joint Chiefs of Staff, said and transgender people in the military, during his reconfirmation hearing last week. immediately vowed to sue.
“I am an advocate of every qualified person “We have transgender individuals who serve who can meet the physical standards to serve in elite SEAL teams, who are working in a in our uniformed services to be able to do so,” time of war to defend our country, and now he said. you’re going to kick them out?” Matthew F. Thorn, executive director of OutServe, said Mr. Mattis, a retired Marine, has not been a in an interview. major proponent of allowing transgender
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“Trump Cut From Transgender Military Suit Against Gov’t”
Law360
Daniel Wilson
August 6, 2018
A Washington, D.C., federal judge on But in a separate order, she refused to dismiss Monday cut President Donald Trump from a the suit outright or dissolve the preliminary suit challenging his administration’s policy injunction as applied to the government more banning many transgender people from broadly after it had argued that the military service in order to avoid transgender ban policy as challenged by the “unnecessary constitutional confrontations,” plaintiffs — both current and aspiring but refused to dismiss the suit outright, servicemembers who are transgender — was saying a change to the policy had not no longer in existence, meaning their suit is eliminated the basis for the challenge. effectively moot.
U.S. District Judge Colleen Kollar-Kotelly The original transgender ban policy, issued in granted the government’s bid for partial August in the form of a presidential summary judgment in the challenge to the memorandum, would have outright banned government’s “transgender ban,” dismissing any open military service by transgender claims against Trump and dissolving a people, but Trump issued an updated policy related preliminary injunction as applied in March. against the president. As a result, a move for The updated policy allows transgender a protective order blocking discovery against people to join or serve in the military, but the president was effectively moot, she ruled. only if they don’t have gender dysphoria — a
disconnect between biological sex and “Because no relief will be granted directly perceived gender — that causes them distress against the president in this case, the court or functional impairment, and have not will dismiss him as a party to avoid already transitioned between genders, with a unnecessary constitutional confrontations,” narrow “grandfathered” exception for some Judge Kollar-Kotelly said, pointing to a line current troops. of decisions finding that courts cannot impose injunctions or declaratory judgments This was effectively a new policy, the on the president. government argued. But the plaintiffs still would be harmed if the updated policy is allowed to take effect, and despite the
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government’s arguments, it is not Kollar-Kotelly's decision was evidence that “meaningfully distinct” enough from the the judge “isn’t buying” the administration’s original transgender ban to moot their claims, arguments, which she claimed were “full of Judge Kollar-Kotelly ruled. sweeping generalizations and false stereotypes about transgender people.” “Instead, at a fundamental level, the [U.S. “Anyone who meets the standards should be Department of Defense] implementation plan able to serve,” Levi said. “There is no reason is just that — a plan that implements the to subject transgender people to president’s directive that transgender people unconstitutional and discriminatory be excluded from the military,” she said. “For treatment, unlike the way the military treats largely the same reasons, the rationale for the any other group.” court’s preliminary injunction maintaining the status quo ante until the final resolution of The DOJ does not typically comment on this case remains intact.” pending litigation.
The judge further noted that tossing direct The dispute is one of four cases around the claims against the president didn’t mean that country challenging aspects of the the court lacks the ability to review the transgender ban, including the Karnoski case. legality of the president’s actions, and the In the most recent development in that challengers can still obtain all the relief dispute, the government urged the Ninth they’re looking for if those actions are found Circuit in a brief Friday to expedite argument to be unconstitutional. in the case, saying the district court’s recent discovery order had “imposed extraordinary Judge Kollar-Kotelly also said that the discovery obligations on the president and challengers can continue to pursue discovery the military.” related to the president, with rulings on claimed deliberative process or presidential The servicemembers are represented by Paul communication privilege to come later. R.Q. Wolfson, Kevin M. Lamb, Alan E. Schoenfeld, Christopher R. Looney, Harriet This will likely come after a similar dispute Hoder, Adam M. Cambier and Nancy Lynn is addressed on appeal in another case Schroeder of WilmerHale, Jennifer Levi and challenging the transgender ban, Karnoski v. Mary L. Bonauto of GLTBQ Legal Trump, a dispute noted by the judge in a Advocates and Defenders, Shannon P. related footnote. In that case, the district Minter, Amy Whelan and Christopher F. court recently ordered the government to Stoll of the National Center for Lesbian cough up purportedly privileged documents. Rights and Claire Laporte, Matthew E. Miller, Daniel L. McFadden, Kathleen M. Jennifer Levi, the transgender rights project Brill, Michael J. Licker, Rachel C. director at GLBTQ Legal Advocates & Hutchinson, Lauren Godles Milgroom and Defenders, which represents the plaintiffs, Theresa M. Roosevelt of Foley Hoag LLP. said in a statement Monday that Judge
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The government is represented by Chad A. The case is Doe 2 et al. v. Trump et al., case Readler, Brett A. Shumate, Brinton Lucas, number 1:17-cv-01597, in the U.S. District John R. Griffiths, Anthony J. Coppolino and Court for the District of Columbia. Andrew E. Carmichael of the U.S. Department of Justice.
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Abortion
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“Lawsuit challenges Texas abortion curbs”
Reuters
Jonathan Stempel
June 14, 2018
An abortion provider that in 2016 persuaded said the Supreme Court has upheld many the U.S. Supreme Court to void parts of a similar requirements in the past. restrictive Texas law on Thursday filed a new lawsuit challenging dozens of that state’s “It is ridiculous that these activists are so other curbs on the procedure as dedicated to their radical pro-abortion agenda unconstitutional. that they would sacrifice the health or lives of Texas women to further it,” he said. Whole Woman’s Health Alliance and six nonprofits providing abortion-related In June 2016, the Supreme Court by a 5-3 services said Texas’ licensing, parental vote struck down Texas’ requirements that notification, waiting period, ultrasound and doctors who perform abortions have other requirements violated women’s due admitting privileges at nearby hospitals, and process rights. that abortion clinics have costly hospital- grade facilities. They said the requirements impose an undue burden on women’s ability to abort nonviable Critics said the requirements could have fetuses, with a disproportionate impact on the forced many Texas clinics to close, especially poor, minorities and immigrants. outside major metropolitan areas.
The complaint was filed in the federal court The majority decision in Whole Woman’s in Austin, Texas against state officials Health v Hellerstedt was the court’s strongest including Attorney General Ken Paxton and endorsement of abortion rights since its 1992 health services Commissioner John reaffirmation of the constitutional right to Hellerstedt, and seeks to block enforcement abortion. of the challenged laws. “It set a new standard of scrutiny, that states Marc Rylander, a spokesman for Paxton, cannot pass restrictions without proof of called the challenged requirements medical evidence and scientific facts to “common-sense measures” that protect justify them,” Amy Hagstrom Miller, chief women’s lives and reproductive health, and executive of Whole Woman’s Health, said in
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an interview on Thursday. “The decision President Donald Trump a chance to make gave us leverage to look at other restrictions the court more friendly to abortion that Texas has long been enforcing. We call opponents. it the ‘big fix.’” “The Supreme Court is always something we Many U.S. states, like Texas often led or watch,” Miller said. “We don’t have a magic dominated by Republicans, have imposed 8-ball to predict its makeup, but women are new abortion limits in recent years. being affected by these laws every single day.” There has long been speculation that Supreme Court Justice Anthony Kennedy, The case is Whole Woman’s Health Alliance 81, who joined the majority in the 2016 et al v Paxton et al, U.S. District Court, abortion case, may retire soon, giving Western District of Texas, No. 18-00500.
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“7th Circ. Backs Ind. Abortion Law Stay During Legal Challenge”
Law360
Bonnie Eslinger
July 25, 2018
The Seventh Circuit on Wednesday affirmed “We agree with the well-reasoned a lower court decision granting Planned conclusions of the district court opinion,” Parenthood’s request to stay an Indiana law U.S. Circuit Judge Ilana Diamond Rovner requiring women to have an ultrasound at wrote in Wednesday's opinion. least 18 hours before an abortion, finding there’s a likelihood the organization will The panel noted that it began its review by prevail on its claim the law is looking at the 1992 landmark U.S. Supreme unconstitutional. Courtcase Planned Parenthood v. Casey .
“The State asserts that its reason for this new “The basic premise from which we must eighteen hour ultrasound requirement is to begin our review of the district court opinion persuade women not to have an abortion. is that the Supreme Court has recognized and There is no doubt that this is a legitimate affirmed ‘the right of the woman to choose to position for a state to take,” the panel said in have an abortion before viability and to its ruling. “But it is also true that women have obtain it without undue interference from the the right to choose to have an abortion, albeit State … [without] the imposition of a with some limitations.” substantial obstacle to the woman’s effective right to elect the procedure’,” the opinion Planned Parenthood of Indiana and Kentucky said. filed suit against the commissioner of the Indiana State Department of Health and The district court properly weighed the the prosecutors of several counties in July evidence regarding the burdens and benefits 2016, claiming the state’s new law created by the new ultrasound law, the panel unconstitutionally burdens a woman’s right said. to choose to have an abortion. The organization also asked for a preliminary The burden created by the new law stems injunction blocking the implementation of from the lengthy distances women would be the law during the pendency of the litigation. required to travel for an ultrasound appointment at least eighteen hours prior to The district court judge granted the an abortion — and then to return a day later temporary hold in March 2017. for the procedure, the Seventh Circuit noted.
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Current state law requires an ultrasound but allows it to take place the day of the abortion. This evidence was compelling because it Planned Parenthood has only six facilities in focused on the 18-hour delay, rather than just the state with ultrasound equipment. the benefit of the ultrasound, which is already required, the panel said. The law also creates a financial strain with the need for an overnight stay, employment “The State’s argument that the additional problems with the need to take time off and eighteen hours gives women time for deeper child care issues, among other concerns, the reflection and to absorb information, actually Seventh Circuit noted. does address the question at issue in the case, but its argument is unsupported by anything A Planned Parenthood expert confirmed that other than ... one anecdote,” the judge wrote many low-income women “do not have in the opinion. employment that pays them when they miss a day of work or they may have precarious job In conclusion, Judge Rovner wrote, with U.S. situations in which they could be fired for Circuit Judge William J. Bauer concurring, excessive absences,” the panel said. "A that the requirement that women have the second lengthy trip for an ultrasound ultrasound 18 hours prior to the abortion appointment likely requires a second missed wasn’t supported by evidence that it serves day of work.” the goal of persuading women to carry a pregnancy to term. In addition, with women having to make two appointments at the Planned Parenthood “Instead, it appears that its only effect is to facilities with ultrasound equipment, place barriers between a woman who wishes appointment slots became more scarce and to exercise her right to an abortion and her women had to wait longer to have an ability to do so,” the judge wrote. abortion, the opinion noted. In a separate concurring opinion, U.S. Circuit “This precluded the option of medication Judge Michael S. Kanne added that he was abortions for some women and any abortion persuaded by the travel burden and because choices for others,” the panel added. the state “offered little evidence to show that an 18-hour wait following an ultrasound The state’s strongest evidence that the 18- would persuade those seeking an abortion to hour requirement is beneficial came from the preserve fetal life.” testimony of a board-certified OB-GYN who Representatives for the parties could not said she had a patient who had an abortion but immediately be reached for comment late regretted it later. She told the doctor that she Wednesday. felt that an ultrasound waiting period would have given her more time to consider her In April, the Seventh Circuit ruled that decision and change her mind, the court another portion of Indiana’s 2016 abortion noted. law — banning abortions based on a fetus’
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race, sex or disability — was sat on the panel. unconstitutional. Planned Parenthood of Indiana and Kentucky The panel found that certain provisions is represented by Kenneth J. Falk of within the 2016 law, signed by then-Gov. the ACLUof Indiana. Mike Pence, “clearly violate” the Supreme Court’s landmark 1973 decision in Roe v. The commissioner of the Indiana State Wade , which established that a woman is Department of Health is represented by within her rights to terminate her pregnancy Thomas M. Fisher of the state attorney prior to viability, “and that the state may not general's office. prohibit a woman from exercising that right The case is Planned Parenthood of Indiana for any reason," U.S. Circuit Judge William and Kentucky v. Commissioner of the J. Bauer wrote for the majority. Indiana State Department of Health et al., U.S. Circuit Judges William J. Bauer, case number 17-1883, in the U.S. Court of Michael S. Kanne and Ilana Diamond Rovner Appeals for the Seventh Circuit.
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“Pence’s anti-abortion law could upend Roe v. Wade”
Politico
Jennifer Haberkorn
July 23, 2018
An anti-abortion law Vice President Mike said Clarke Forsythe, senior counsel at Pence signed as governor of Indiana could Americans United for Life, which advocates become the case that lets the Supreme Court against abortion. “He was a leader in reshape abortion rights as soon as next year. Congress on defunding Planned Parenthood going back to 2005, 2006. He raised the The Indiana law — which prohibited profile of the issue.” abortion because of the gender, race or disability of the fetus, such as Down Three months before Trump selected the syndrome — was blocked by lower courts then-governor as his running mate in 2016, and is one of three significant anti-abortion Pence signed the bill, which pushes new legal state statutes that are sitting one level below issues to the forefront. Many of the prior the Supreme Court. If Indiana appeals this court and political fights had centered on fall, and the justices accept the case, it could matters such as mandating waiting periods be the opening for a broader ruling on Roe v. before an abortion, or instituting building Wade that could redefine abortion rights codes so stringent that many abortion clinics nationwide. would have to shut down.
Pence could then take double credit for the Proponents of the ban say a fetus should not anti-abortion movement’s ascendancy: The be aborted because of a disability or fetal politician whose evangelical credentials abnormality. But the Indiana law, and a helped carry conservative religious voters to subsequent one passed in Ohio, have sparked President Donald Trump also helped deliver a fierce and emotional debate about whether the high court case that could scale back a woman should be forced to carry or deliver access to abortion 45 years after Roe. a child with a severe or life-threatening disability or condition. Throwing Roe into the “ash heap of history,” as Pence put it, has been his defining mission, As the legal battle over the Indiana law the core of a political career that took him ascended through the court system, so did from Congress to the governor’s mansion to Trump’s candidacy. Pence’s anti-abortion the vice presidency. bona fides convinced skeptics that Trump — a onetime defender of abortion rights — The Indiana legislation “is a testament to Vice President Pence’s long pro-life legacy,” 515
would work to end abortion and put “pro- Court,” Banks said. “Obviously, Gov. Pence life” judges on the Supreme Court. at the time signed it and championed it.”
The Trump-Pence administration has already All three of the key state cases, including instituted more conservative policies on Indiana’s, directly conflict with reproductive health and teen pregnancy. It the Roe ruling, so any one of them would has reshaped the federal judiciary by give the justices an avenue to reverse or appointing conservatives at all levels, significantly narrow the 1973 abortion rights including a record number of judges at the decision. In addition, the lower courts are courts of appeal. Trump elevated Neil filled with reproductive health cases, some Gorsuch to the Supreme Court, and if his involving Planned Parenthood funding or the second high court nominee, Brett federal Teen Pregnancy Prevention Program, Kavanaugh, is confirmed, he would swing that could also shape abortion policy. the court’s political leaning to the right. Pence and other White House officials say In the past, the Supreme Court justices Kavanaugh was not asked his opinion appeared to be closely divided on abortion, on Roe as part of the selection process. But and they accepted only a small fraction of the Kavanaugh’s name was on a list approved by abortion-related cases they are asked to hear. the conservative Federalist Society — and Activists on both sides of the abortion debate Trump made a campaign pledge to appoint believe Kavanaugh would change the court’s “pro-life” justices to the court. dynamic and that a challenge to Roeis all but inevitable. A spokesman for Indiana Attorney General Curtis Hill, who in recent weeks has been “There is no question that at least one if not accused of inappropriately groping women, more [of the three cases] could be there next said the office had no decision to announce term,” said Helene Krasnoff, senior director yet on whether it would appeal lower court of public policy, litigation and law at Planned rulings that have blocked the statute. The Parenthood. “Any case that the court takes office has until late September. gives them an opportunity to opine on whether or not the Constitution protects” The two other major cases come from access to abortion. Alabama and Texas, which both passed bans on a common second-trimester abortion It is not yet certain whether Indiana will procedure called dilation and evacuation. If appeal, whether the court would accept the upheld, the ban would make abortion after 14 case or how broadly the justices might rule. weeks of gestation almost impossible. Some Rep. Jim Banks (R-Ind.), who sponsored the legal experts say those cases might be more legislation in the Indiana Statehouse, enticing for the Supreme Court to review. certainly favors fighting for it. “I hope the There are parallels to how the anti-abortion attorney general will press it to the Supreme movement, after court fights, successfully enacted federal legislation against another
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second-trimester abortion procedure in the the Roe decision, at least not unless even early 2000s. more conservatives are named to the court.
When he blocked the Indiana law, 7th U.S. “I question whether the court is interested in Circuit Court of Appeals Judge Daniel revisiting Roe even by five [votes]. I think Manion made clear that he wants the there’s going to need six or more,” said Supreme Court to weigh in. He noted that in Forsythe, the AUL lawyer. the 1992 Planned Parenthood v. Casey ruling, which defined how far states For Pence, the prospect of an Indiana law could go in limiting abortion, “the purported delivering an abortion debate to the Supreme right to have a pre-viability abortion is more Court could bring his anti-abortion résumé ironclad even than the rights enumerated in full circle. the Bill of Rights. As a House member, he introduced the first “Only a majority of the Supreme Court or a bill to defund Planned Parenthood in 2009. constitutional amendment can permit the As governor, he signed half a dozen anti- States to place some limits on abortion,” abortion bills. In a CNN interview this Manion added. month, he reiterated unequivocally that he wants to see the Roe decision overturned. Legal experts on the anti-abortion side are more skeptical that even if given the chance, “I do, but I haven’t been nominated to the the court would quickly move to undo Supreme Court,” he said, adding that he and Trump “will continue to be a pro-life administration.”
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“What happens if Roe v. Wade gets overturned?”
The Washington Examiner
Kimberly Leonard
July 17, 2018
Hundreds of abortion defenders rallied national organizing director for Planned outside the Supreme Court on the night Parenthood Federation of America. “And if President Trump unveiled his choice to there is anything the last year has shown us replace Justice Anthony Kennedy. it’s that this experiment of democracy is working.” They knew they would oppose Trump’s nominee even before he proclaimed Judge Should they fail to stop Kavanaugh’s Brett Kavanaugh’s name. They heard Trump confirmation and should he decide to during the campaign when he pledged he overturn Roe, their optimism will be put to would be “putting pro-life justices on the the test, as the issue of abortion would move court,” and they believed him. back to the states, and political trench warfare would ensue. Though they realized that national abortion policy had hit a bend in the road, the tone of To organizations such as the Susan B. the rally among those who think abortion Anthony List, which supports politicians that should remain legal across the U.S. was block abortion access, this nomination is a pointedly optimistic. Since the rare opportunity. announcement of the retirement of Kennedy, who had in the past been the tie-breaking vote Roe and another Supreme Court to uphold Roe v. Wade, they have clung to a decision, Planned Parenthood v. Casey, refrain: When it comes to abortion, the public allowed abortion until fetal viability, which is is on their side. During the last year they have generally understood as up to 24 weeks, and been bolstered by victories even with prohibited states from placing an “undue Republicans enjoying unified control of burden” on women who seek an abortion. Congress, including stopping lawmakers More recently, Whole Women’s Health v. from cutting off federal funds from Planned Hellerstedt took specific restrictions off the Parenthood and from rolling back table that limit how abortion clinics must Obamacare. operate.
“We are taking this very seriously because “We see that we have got a battle ahead of us, the stakes are real, but we also know that we and this is the one that the pro-life movement can and will win,” said Kelley Robinson, has been looking to for decades,” Marjorie
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Dannenfelser, president of SBA List, told in a 2017 speech to the conservative reporters on the night of the nomination. American Enterprise Institute, he highlighted how Rehnquist fought for limits on the There is, to be sure, a long and winding road expansion of unenumerated rights, meaning to overturning Roe. To start, it’s no guarantee those not explicitly recognized by the that the Senate will confirm Kavanaugh. Constitution. As examples, Kavanaugh Though his credentials and experience have mentioned how Rehnquist had joined the been widely acknowledged, the reality is that dissent in Roe and later voted to overturn it Republicans have a fragile majority of 51 in Casey. seats and can only afford to lose a single vote if Democratic opposition holds. Centrist Neither example reveals with certainty how GOP Sens. Lisa Murkowski of Alaska and Kavanaugh would vote. When he called Roe Susan Collins of Maine are avowed “binding precedent,” he was speaking as a supporters of abortion rights and the health lower court candidate who would be bound status of Sen. John McCain, R-Ariz., makes by prior Supreme Court rulings, something it uncertain whether he’d be able to vote. that would not be the case if he joins the high court. His AEI speech could be viewed as a Even if Kavanaugh is confirmed, it is far look at the influence that Rehnquist had on from a guarantee that a newly constituted the court rather than a suggestion that he Supreme Court would overturn Roe. would have ruled the same way in every case. Furthermore, even if he agreed with Justice Clarence Thomas is the only member Rehnquist’s decision to oppose Roe in the of the Supreme Court who has voted to past and expressed weariness of expanding overturn Roe. In 1992’s Casey case, Thomas unenumerated rights, that doesn’t mean he sided with the conservative minority that wouldn’t vote to preserve a right that has stated Roe was “wrongly decided” and “can been on the books for decades. and should be overruled consistently.” The dissent rejected the idea that stare decisis, a Kavanaugh has ruled in favor of abortion legal principle of being deferential to prior limits in at least one case. He dissented in a precedents, compelled them to uphold it. ruling from the D.C. Circuit last year that allowed an immigrant teen who was in the If all other conservative justices are on board country illegally, and under government with overturning the ruling, it’s still not a custody, to get an abortion. He wrote in his lock that Kavanaugh would cast the deciding opinion that the majority’s position was vote to strike it down. On the one hand, he “based on a constitutional principle as novel told Congress in 2006, as part of his as it is wrong: a new right for unlawful nomination for the D.C. Circuit, that he immigrant minors in U.S. government would follow Roe “faithfully and fully” and detention to obtain immediate abortion on considered it “binding precedent of the demand.” court.” On the other hand, while praising the legacy of the late Justice William Rehnquist
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Clarke Forsythe, senior counsel at Americans issues manager for the Guttmacher Institute, United for Life, cautioned that Roe might which tracks abortion and other reproductive never be overruled, but said that people who policies. “When you ban this method you are oppose abortion still had reason to be hopeful eliminating access for much of the second because he believes in the short term the trimester.” courts will uphold state or federal limits on abortion. Bans on how late into a pregnancy abortions are allowed could also move up through the “The 5-4 pro-abortion majority that has been courts. Mississippi is facing a court challenge on the court ... is changing,” he said. “Justice over its 15-week ban, which has been Kennedy was intensively invested in Roe, in blocked by a judge because it doesn’t its future and its perpetuation, staking his meet Roe’s standards. historic legacy on reaffirming Roe.” “The Supreme Court has been clear that those For the Supreme Court, there are a multitude bans are unconstitutional,” said Hillary of potential outcomes in between outright Schneller, staff attorney at the Center for upholding or fully overturning Roe that Reproductive Rights. “They have been would allow for more restrictions on blocked everywhere challenged.” abortion. Other cases touch on abortion without Justices have significant leeway not only in outright disputing its legality. A debate over which cases they choose to hear but in how whether states should be allowed to cut off they address the issues they are presented Medicaid funding from Planned Parenthood, with. Dozens of abortion restrictions have for instance, could be heard as early as this been challenged in court, ranging from who fall if four justices decide to take it up. is allowed to provide an abortion to how it can be performed and when. Cases such as this, Schneller said, are “about abortion but don’t as directly relate to Roe or Appellate courts are considering the legality Casey or the standards in Whole Women’s of bans on an abortion procedure known as Health about the constitutional right to dilation and evacuation, in Texas, Alabama, abortion.” and Arkansas. The procedure, in which fetal tissue is removed from the womb with A law in Indiana obligating abortion clinics suction and surgery tools, is used in the to bury fetal remains is another example that second trimester. Judges have blocked bans could be taken up, said Forsythe. from going into effect, but it’s possible they How abortion cases are challenged, whether could reach the Supreme Court. in federal or state court, will also be at play in “They are pretty serious challenges to Roe terms of how far-reaching a policy could because they ban a method to abortion that is become. The Supreme Court could narrowly the primary method to abortion after 12 uphold state laws without touching weeks,” said Elizabeth Nash, senior state on Roe, or they could rule in a way that opens
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the door to states chipping away at abortion These national numbers can vary widely rights. from state to state, and that’s where those opposed to abortion see an opportunity If Roe is overturned, the decision to legalize ahead. In a post- Roe world, the states, they abortion would fall to states and popular say, are poised to be divided into three opinion , and voting patterns would play a buckets: One that will leave abortion laws in much larger role in determining abortion place without barriers, another ready to policy. further restrict abortion, and a final category that would leave open the debate. Current polling on abortion is nuanced, providing opportunities for both sides to “In the remaining third there is likely to be a claim public sympathy with their position. vigorous debate — previously impeded For instance, roughly two-thirds of the public by Roe — to find consensus about how to does not want to see the Supreme Court protect unborn children and advance overturn Roe. A Pew Research women,” said Mallory Quigley, Center poll found that 57 percent of the spokeswoman for SBA List. “Reaching public said abortion should be legal in most democratic consensus is what this nation is or all cases, compared to 40 percent who said all about, and it’s what distinguishes us from it should be illegal in all or most cases. abortion activists who pretend to have broad support but depend on unelected judges to But additional questioning shows that impose radical policy on the entire nation.” support for abortion breaks down depending on the time in the pregnancy and on the Abortion rights groups counter that women’s circumstances. Though 60 percent of access to abortion should not be dictated by Americans believe abortion should be legal where they happen to live. They say the in the first trimester, according to Gallup Supreme Court is needed to decide on polling, just 28 percent say it should be legal abortion because it should be shielded by the in the second trimester, and support drops to Constitution rather than decided by 13 percent in the third trimester. Though 83 politicians, who would have more power to percent favor legalized abortion if a make changes if Roe is overturned. pregnant woman’s life is in danger and 77 percent in the cases of rape or incest, just 45 Should that happen, 22 states could outlaw percent say abortion should be legal if “the abortion, according to the Center for woman does not want the child for any Reproductive Rights. reason.” These findings suggest that outlawing abortion in all cases has Certain states are expected to see no impact. limited popular support, but so too does the California, Connecticut, Delaware, Hawaii, idea of allowing abortion at any time and for Maine, Maryland, Oregon, Nevada, and any reason. Washington state have laws that explicitly legalize abortion. State lawmakers seeking to maintain abortion access in the wake of the
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Supreme Court vacancy are looking to do the Abortion foes say restrictions are needed to same. protect women, but those in favor of few restrictions on abortion say they are But a handful of states would ban abortion, medically unnecessary. some of which have exceptions to protect a pregnant woman’s life, or in cases of In larger states where abortion is more prosecuted rape. Louisiana, Mississippi, regulated, women tend to need the financial North Dakota, and South Dakota all have resources and the ability to take time off work “trigger laws” that would ban abortions to drive hundreds of miles to a clinic. Some if Roe is overturned. Ten additional states states have mandatory waiting periods, which still have pre- Roe bans on the books. could necessitate a hotel stay if a clinic is outside town, and some clinics will only Depending on the political makeup of the provide abortions once a week. presidency and Congress, overturning Roe would also open the door to passing federal “All of those restrictions can pile up and restrictions that previously didn’t meet the make it so women can’t access abortion case’s standards. safely and legally,” Schneller said.
Dr. Hal Lawrence, president of the American The restrictions on abortion can have the College of Obstetricians and Gynecologists, unintended consequence of delaying them warned that making abortion illegal would from happening earlier in a pregnancy, at a not stop it from happening. Estimates show time that has more public support. One in that 5,000 women a year were killed by four women will have an abortion by age 45, illegal abortions before Roe. studies suggest, but late-term abortions are rare, at roughly 1 percent a year. “When abortion access is restricted or criminalized, women do not cease to need Research suggests that women who have had abortion care,” he said. “They are simply an abortion during the second trimester forced to look for alternate methods to would have preferred to have one earlier, but receive care, where there is often little to no were unable to because of the restrictions in formal medical expertise or regulation to their state. Others may have initially wanted ensure the method is either safe or effective.” to have a baby but learn of fetal abnormalities or threats to their health or lives. In many states, abortion is already heavily regulated, even with the parameters “Women seek abortions later in pregnancy in Roe and Casey. Restrictions in Kentucky, for the same reasons as they seek it earlier in Mississippi, North Dakota, South Dakota, a pregnancy,” Schneller said. “They are often West Virginia, and Wyoming have delayed because of all the restrictions states winnowed down the number of abortion have passed.” clinics to one. Organizations such as SBA List point to the passage of laws to limit abortion as evidence
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that public sentiment on the issue is facing emotional debate was in the spotlight. unrest. Alternating cries of “Protect Roe!” from hundreds of organized protesters and “How we treat unborn children isn’t settled in “Overturn Roe!” among a smaller group of the hearts and minds of the American people, gatherers drowned each other out. otherwise states would not have passed hundreds of pro-life laws designed to protect Were Roe to be overturned, the passion of the unborn, especially in recent years,” both sides would be transferred to battles at Quigley said. the legislative level. The late Justice Antonin Scalia’s take on such an outcome, as he States with already limited access to abortion described in arguing for striking down Roe, could make the practice even more limited. was that the abortion issue would be, “resolved like most important questions in “If Roe is undercut or overturned it really our democracy: by citizens trying to persuade exacerbates the disparity we already see,” one another and then voting." Nash said. “It just makes a difficult situation more burdensome and allows states to adopt restrictions that may have been struck down years ago.”
This understanding is driving protests across the country. On the night Trump announced his nominee, outside the Supreme Court, the
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“New Supreme Court justice could weigh in on abortion quickly”
Politico
Jennifer Haberkorn
July 3, 2018
President Donald Trump’s pick for the Legal experts agree that any abortion-related Supreme Court won’t have to wait long to case, even a relatively narrow one, that the make a potentially historic decision on justices accept could turn into a broader abortion rights. debate over the 1973 Roe v. Waderuling that recognized abortion rights. For instance, the A slew of abortion-related cases are working George H.W. Bush administration in 1992 their way through lower courts, dealing with asked the court to rule broadly on Roe when questions about when abortions should be it took a case on whether Pennsylvania anti- allowed, or which procedures doctors can abortion laws were valid. That time, the perform to terminate a pregnancy. Any of administration lost in what became the these could become opportunities for the landmark Casey case — with retiring Justice justices to address fundamental questions Anthony Kennedy co-authoring the majority about the legal right to abortion in the United opinion that largely affirmed Roe. States, putting Roe v. Wade in the Supreme Court’s sights. The Supreme Court will look much different than it did in 1992, and the next threat “This court is going to have a ton of to Roe could arrive at the Supreme Court in a opportunities” to address reproductive health, more discrete manner. The justices control said Amy Hagstrom Miller, the founder of which cases they accept, so it is impossible to Whole Woman’s Health abortion clinic, know whether they’ll take up an abortion which has six lawsuits pending against state case in the next term, which begins in abortion restrictions across the country. October. But they could get at least one “When you have a … case on the table, the petition as soon as this fall. administration can use that as an opportunity to ask the court to do” more to restrict The pending cases in federal courts, some abortion. just one level below the Supreme Court, fall into two categories, either of which could
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turn into a broader debate about Roe. Some Opponents of abortion, of course, have of the lawsuits challenge the reasons to allow clamored for an opportunity to go after a woman to get an abortion; others debate the the Roe decision. Ohio lawmakers, for method a physician could use. instance, introduced a bill this year that would ban abortion completely — an Each of these cases forces the justices to aggressive measure that would have sparked weigh the state’s right to protect a fetus an immediate court challenge had it passed. against a woman’s right to end a pregnancy, potentially leading them to reconsider Roe. "That could ultimately be a bill that Indiana officials, for instance, need to decide revisits Roe v. Wade," Ohio state Rep. Ron this summer whether to ask the justices to Hood told POLITICO earlier this year. “One overturn a 7th Circuit decision that the state flip of a Supreme Court justice, and cannot ban abortion when Down syndrome or revisiting Roe v. Wade looks very, very another fetal abnormality has been promising.” diagnosed. It was a bill signed into law by then-Gov. Mike Pence in 2016. Similar If the Supreme Court wants to wade head-on litigation against an Ohio ban on abortions into the Roe decision, it is likely to get a case after a Down syndrome diagnosis is working in a few years. Mississippi’s only surviving its way through the 6th Circuit. abortion clinic, Jackson Women’s Health, is suing over the state Legislature’s recent bill There are several method-ban-related cases, that would ban abortion after 15 weeks of too. The 5th Circuit will consider whether pregnancy, significantly earlier than Supreme Texas can prohibit the common second- Court precedent that says states cannot ban it trimester abortion procedure. Two other before a fetus is viable outside of the womb, circuits are weighing similar bans in about 24 weeks. That case is unlikely to Alabama and Arkansas. A related Kentucky progress to the Supreme Court level for ban was just challenged in court by the several years, if it ever does. American Civil Liberties Union. Abortion rights advocates warn that even if the court doesn’t reverse the Roe ruling, it “There certainly is a real likelihood that one can dramatically expand states’ abilities to of those will be petitioned” to the justices, enact laws that create hurdles to abortion. said Diana Kasdan, a senior staff attorney at the Center for Reproductive Rights, which “Look at Texas,” said Helene Krasnoff, has brought several lawsuits against abortion senior director of public policy, litigation and restrictions. “It’s a real risk. Trump has said law at the Planned Parenthood Action Fund, that he will appoint justices that are certainly referring to state laws that effectively not favorable, to say the least. The question is shuttered half the abortion clinics in Texas if one of those went up, what might happen.” before it was overturned in 2016. “States can just as effectively deny access to abortion short of an all-out ban.”
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what’s right and to try to move the needle The Supreme Court accepts very few of the forward.” cases that come before it; abortion is not an exception. But when it does take an abortion The court will have other opportunities to case, it generally becomes one of the most shape reproductive health law. The justices significant cases of the term. That was the this summer will decide whether to take one case when the court, after turning away or both of the pending cases that would allow dozens of abortion-related cases for years, states to defund Planned Parenthood. If four took up the Texas case. The justices, justices agree, the court would likely hear a including Kennedy, struck the laws. case this fall or next winter.
That ruling, in Whole Woman’s Health v. Around the country, the courts are also Hellerstedt, had inspired Whole Woman’s hearing cases involving several Trump Health to participate in a new series of administration changes to reproductive lawsuits filed last month against state health policy, particularly on contraception. abortion laws in Texas, Virginia and Indiana. Several lawsuits challenge the The idea was to use the 2016 Supreme Court administration’s decision to allow employers ruling to strike other restrictive state laws. to not cover birth control in employee health “With Kennedy on the bench, I was excited plans, a requirement of Obamacare. The to leverage the Whole Woman’s Health administration has also cut funding for the decision,” Hagstrom Miller said. Kennedy’s Teen Pregnancy Prevention Program and retirement changes the calculus; there is made dramatic changes in favor of significantly more risk for the clinics, though abstinence-oriented programs under the Title Hagstrom Miller said she hasn’t had second X program, which has traditionally helped thoughts. “It doesn’t change my resolve to cover contraceptive services for low-income bring lawsuits and … to take a stand for women. Several lawsuits have been filed against both policies.
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“How a Supreme Court Shaped by Trump Could Restrict Access to Abortion”
New York Times
Adam Liptak, Anjali Singhvi, Natalie Reneau, Robin Stein, Aaron Byrd, and Jonah M. Kessel
August 14, 2018
President Trump has pledged to appoint take the drastic step of overruling Roe. The Supreme Court justices who will vote to court could instead opt for a more overturn Roe v. Wade, the 1973 decision that incremental strategy, upholding increasingly established a constitutional right to abortion. severe restrictions in much of the country but Justice Anthony M. Kennedy was a cautious stopping short of saying that the Constitution supporter of abortion rights. With his has nothing to say about a right to abortion. departure and the addition of a second Trump appointee, the Supreme Court would have a Assuming that there are five justices ready to conservative majority that would most likely limit abortion rights, how could that happen? sustain sharp restrictions on access to Here are some of the possible scenarios, each abortion in the United States. of which entails a different degree of legal upheaval. But if the court does hear a case that brings up the issue, it is hardly clear that it would
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“A Kavanaugh Signal on Abortion?”
New York Times
Linda Greenhouse
July 18, 2018
We can’t be sure what the substitution of Ruth Bader Ginsburg observed in her acerbic Judge Brett Kavanaugh for Justice Anthony dissent in the new case, Gonzales v. Carhart, M. Kennedy means for the Supreme Court’s was now “differently composed.” Then, two abortion jurisprudence. But we can take a years ago, Justice Alito dissented from the page from history to make an educated guess. court’s decision in Whole Woman’s Health v. Hellerstedt, which declared Two pages, actually. Let’s set two judicial unconstitutional a Texas law that would have opinions on the subject of abortion side by imposed needless requirements on abortion side to see what they tell us. One, less than a clinics and would have caused many clinics year old, is by the current Supreme Court in the state to close. Justice Alito objected nominee. The other was written by another that predictions of the devastating effect the appeals court judge, Samuel A. Alito Jr., 15 law would have on the availability of years before he became a Supreme Court abortion in Texas were based on “crude justice. The Kavanaugh opinion may suggest inferences.” The vote in that case was 5 to 3, what lies ahead if he is confirmed. Justice with Justice Kennedy in the majority. Alito’s opinion told us in no uncertain words. Back in 1991, as a judge on the Philadelphia- I’ll begin there, because no one should have based United States Court of Appeals for the been surprised by what happened after Third Circuit, Sam Alito had proven his anti- Justice Alito replaced Justice Sandra Day abortion bona fides with a separate opinion O’Connor in 2006. Justice O’Connor had in a case that reviewed Pennsylvania’s voted with the 5-to-4 majority in 2000 to sweeping Abortion Control Act. The three- declare unconstitutional Nebraska’s criminal judge panel on which he sat upheld all the prohibition on so-called “partial-birth law’s many provisions, including a waiting abortion,” a second-trimester abortion period and mandatory counseling, with a procedure that, while rarely used in practice, single exception: the requirement that a proved an invaluable gift to anti-abortion married woman notify her husband of her politicians. intention to terminate her pregnancy. Doctors could lose their licenses for performing an Seven years later, the court flipped, voting 5 abortion on a married woman without first to 4 to uphold a nearly identical law, this one obtaining her signature attesting that she had passed by Congress, with Justice Alito in the complied with the notice requirement. majority. What happened? The court, Justice
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Judge Walter Stapleton’s majority opinion, substantial ill effects.” (Which “ill effects” taking account of what he called “the real- might be so “insubstantial” that they could world consequences of forced notification,” just be ignored, he didn’t say.) Judge Alito’s declared that provision unconstitutional. conclusion was that there were simply not Most married women do discuss an abortion enough women for the court to worry about, decision with their husbands, Judge Stapleton and that in any event, the Pennsylvania observed; for them, “a notification Legislature could have “reasonably requirement is unnecessary and serves no concluded” that conversation between state interest.” But he added that “the number husband and wife could “properly further a of different situations in which women may husband’s interests in the fetus in a sufficient reasonably fear dire consequences from percentage of the affected cases to justify notifying their husbands is potentially enactment of this measure.” limitless.” The “relevant burdens to be assessed,” he concluded, were not the When the Third Circuit decision, Planned burdens on married women in general, but Parenthood v. Casey, reached the Supreme specifically “on women who would choose Court in the spring of 1992, the justices not to notify their husbands in the absence of agreed with Judge Stapleton. The waiting state compulsion to do so.” Because the period and mandatory counseling were burden on this group of women outweighed constitutional. The spousal notice any interest that the state had in requiring requirement was not. The controlling notification, the provision was opinion, written jointly by Justices unconstitutional. O’Connor, Kennedy, and David H. Souter, had this to say about that requirement: “The It was from this common-sense and analysis does not end with the 1 percent of compassionate analysis that Judge Alito women upon whom the statute operates; it dissented. To wave away the majority’s begins there. Legislation is measured for concerns about women’s welfare, he used consistency with the Constitution by its arithmetic. Noting that most abortions are impact on those whose conduct it affects.” sought by unmarried women, and that according to expert testimony 95 percent of The justices went on: “For the great many married women do notify their husbands, he women who are victims of abuse inflicted by said it was “immediately apparent” that the their husbands, or whose children are the law “cannot affect more than about 5 percent victims of such abuse, a spousal notice of married women seeking abortions or an requirement enables the husband to wield an even smaller percentage of all women effective veto over the wife’s decision,” desiring abortions.” adding that: “Women do not lose their constitutionally protected liberty when they He went on: “It seems safe to assume marry. The Constitution protects all that some percentage, despite an initial individuals, male or female, married or inclination not to tell their husbands, would unmarried, from the abuse of governmental notify their husbands without suffering power, even where that power is employed
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for the supposed benefit of a member of the as it would for any other medical procedure, individual’s family.” with no cost to the federal government. But in the Trump administration’s view, to permit (In an odd twist of history, Judge Kavanaugh the private actors to carry out their plan was a law clerk for Judge Stapleton while would be to force the government to Planned Parenthood v. Casey was under “facilitate” abortion. By the time J.D. went to consideration by the Third Circuit. Did the federal court, she was well into her second young clerk agree with his judge on the trimester and approaching the point when spousal notice question, or with Judge Alito? abortion would be unavailable in Texas. Someone on the Senate Judiciary Committee should ask him.) Last Oct. 18, a federal district judge in Washington, D.C., Tanya Chutkan, issued an Justice Alito’s arid analysis as expressed in order to prohibit the administration from his own words, his refusal to yield to blocking J.D.’s access to an abortion. The persuasion by his colleagues in the majority judge found that further delay would cause and the eventual rejection of his position by the teenager to “suffer irreparable injury in three Republican-appointed Supreme Court the form of, at a minimum, increased risk to justices all speak volumes. Beyond his her health, and perhaps the permanent personal attitude about abortion, which inability to obtain a desired abortion to which should be irrelevant to a judge and about she is legally entitled.” which we shouldn’t have to care, his opinion revealed his view of the judicial role when it The administration appealed, and two days comes to enforcing — or, in this case, even later, a panel of the United States Court of making a good-faith effort to understand — Appeals for the District of Columbia Circuit individual rights. voted 2 to 1 to vacate Judge Chutkan’s order and to give the administration an This brings me to Judge Kavanaugh and last additional 11 days to find a sponsor who fall’s case of the pregnant immigrant would assume custody of J.D. Presumably, if teenager whom the Trump administration the government no longer had custody, it tried to block from exercising her right to an would not be “facilitating” an abortion that abortion. The young woman, J.D., detained might then take place. The problem, left as an undocumented “unaccompanied minor” unacknowledged in the court’s order, was in the custody of an overtly anti-abortion that the Department of Health and Human bureaucrat in the Department of Health and Services, which necessarily vets would-be Human Services, had jumped through every sponsors carefully, had been looking for one available hoop, including persuading a Texas for J.D. for six weeks without success. judge that she was sufficiently mature to make the abortion decision. Volunteers had Judge Kavanaugh was presumably the author arranged and would pay for the procedure. of the unsigned order, given that the other The contract shelter in South Texas where judge in the majority, Karen LeCraft she was being held would handle the logistics Henderson, wrote separately, and the third
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member of the panel, Patricia Millett, wrote “Abortion on demand? Hardly. Here is what a stinging dissent. “The government says it this case holds: a pregnant minor who (i) has does not want to ‘facilitate’ the abortion,” an unquestioned constitutional right to Judge Millett wrote. “But there is nothing for choose a pre-viability abortion, and (ii) has it to facilitate” because everything would be satisfied every requirement of state law to handled by others. She added: “So what the obtain an abortion, need not wait additional government really claims here is not a right weeks just because she — in the to avoid subsidizing the abortion decision; it government’s inimitably ironic phrasing — claims a right to use immigration custody to ‘refuses to leave’ its custody. That sure does nullify J.D.’s constitutional right to not sound like ‘on demand’ to me. Unless reproductive autonomy prior to viability.” It Judge Kavanaugh’s dissenting opinion was, Judge Millett continued, “an astonishing means the demands of the Constitution and power grab, and it flies in the teeth of decades Texas law. With that I would agree.” of Supreme Court precedent preserving and protecting the fundamental right of a woman In his opinion, Judge Kavanaugh argued that to make an informed choice whether to the government was behaving reasonably. continue a pregnancy at this early stage.” “She is 17 years old. She is pregnant and has to make a major life decision. Is it really The teenager’s lawyers appealed to the full absurd for the United States to think that the appeals court. By a vote of 6 to 3, the court minor should be transferred to her vacated the panel’s order. The abortion could immigration sponsor — ordinarily a family proceed (which it did, the next day.) Judge member, relative, or friend — before she Kavanaugh wrote for the dissenters. His makes that decision? And keep in mind that language was strong. He accused the majority the government is not forcing the minor to of having created “a new right for unlawful talk to the sponsor about the decision, or to immigrant minors in U.S. government obtain consent. It is merely seeking to place detention to obtain immediate abortion on the minor in a better place when deciding demand,” which he called “a radical whether to have an abortion.” extension of the Supreme Court’s abortion jurisprudence.” In the abstract, that does sound reasonable. But in fact, J.D. had already decided that at Three times in his nine-page opinion, Judge age 17, alone and without resources, she did Kavanaugh used the phrase “abortion on not want to become a mother. She had demand,” a famous dog whistle for those already received the permission of a state opposed to abortion, as odd as it is brutal- judge and counseling from a clinic physician. sounding. What does this phrase actually And every day, she was a day more pregnant. mean? We don’t say “rhinoplasty on demand” or even, for a medical emergency, The case, Azar v. Garza, ultimately made no “appendectomy on demand.” Here was Judge law. In June, the Supreme Court issued a Millett’s response in her own separate unanimous order vacating the appeals court’s opinion: ruling as moot. But the issue has not gone
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away. A class-action lawsuit is proceeding on a long-awaited moment — the dismantling of behalf of all immigrant teenagers in federal Roe v. Wade — is finally at hand. We have custody who may seek abortions. no crystal ball to tell us for sure what a new Supreme Court justice will do. But we have And there will be other abortion cases, lots of words, and we can read. them, propelled to the court in the belief that
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“Here’s What Brett Kavanaugh Has Said About Roe v. Wade”
Rolling Stone
Tessa Stuart
July 13, 2018
Last fall, an undocumented 17-year-old was didn’t have any Constitutional rights. arrested while crossing the U.S.-Mexico Another said she did have rights and that the border. The girl, referred to in court government was violating them by blocking documents as Jane Doe, was sent to a private her from obtaining the abortion. The third Texas detention center under contract with judge, Brett Kavanaugh, President Trump’s the Office of Refugee Resettlement. Shortly newest Supreme Court nominee, didn’t after her arrival, she learned she was eight dispute the girl’s right to have an abortion. weeks pregnant and decided to terminate. Instead, he proposed a solution that would The teen had money to pay for her procedure, have trapped her in legal limbo for a few transportation and the approval of a Texas more weeks, running out the clock as her judge who deemed her “mature and pregnancy advanced and approached Texas’ sufficiently well informed to make the 20-week cut-off for all legal abortions. The decision to have an abortion” (a requirement full circuit court ultimately ruled in the for minors seeking an abortion in Texas ACLU’s favor, and the teenager received her without parental consent). abortion when she was more than 15 weeks pregnant. But if it had been left up to The only thing standing in the girl’s way was Kavanaugh alone, she probably would have the Trump administration, which refused to been forced to carry the baby to term against allow her to leave the detention center for the her wishes. appointment. Government lawyers argued that letting her go would violate a decree Trump’s nomination of Kavanaugh to the issued a few months earlier that forbade Supreme Court seat vacated by retiring shelters from taking “any action that Justice Anthony Kennedy could put the judge facilitates” an abortion without the express in a position to redefine reproductive rights in permission of the ORR director – a Trump America for decades to come. That’s an appointee who also happens to be a pro-life alarming prospect for pro-choice Americans, zealot. because in both legal opinions and public speeches, Kavanaugh has left little doubt ACLU lawyers sued the government on the about the fact that he does not believe in a girl’s behalf and the case, Garza v. Hargan, constitutional right to an abortion. That landed in front of a three-judge panel on the probably won’t stop him from trying to D.C. circuit court. One judge believed that because the girl was undocumented she
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convince skeptical senators during his pointed out to me that he is a co-author of a confirmation hearings, though. whole book on precedent.”
With a razor-thin Republican margin in the Among Gorsuch’s co-authors in that same Senate, Kavanaugh’s confirmation will hinge book? Brett Kavanaugh. on locking down support from Suan Collins (R-ME) and her colleague Lisa Murkowski But, as Brianne Gorod, former clerk to (R-AK), who are both pro-choice. As they’ve Justice Stephen Breyer, has pointed out, all done in the past, these senators will scrutinize those promises weren’t worth much. In his Kavanaugh’s record, paying particular first year on the court, Gorsuch voted to attention to one code-word: precedent. “I overrule past Supreme Court decisions view Roe v. Wade as being settled law,” in Janus v. AFSCME, Abbott v. Collins told reporters shortly after Perez and South Dakota v. Wayfair – a Kennedy’s retirement. “It’s clearly precedent decision in which he expressed a willingness and I always look for judges who respect to overturn even more precedents in the precedent.” (Approached for comment, future. Collins’ press secretary forwarded Rolling Stone the senator’s boilerplate statement on Taking Kavanaugh at his word that he Kavanaugh’s nomination; it declares the respects precedent would be a similarly grave judge has “impressive credentials and error, because the judge has an unusual and extensive experience,” but promises Collins radical interpretation of what abortion will nonetheless “conduct a careful, thorough precedent actually is, as evidenced by his vetting” of his record.) dissent in Garza v. Hargan in which he employed the word “precedent” 19 times in During last year’s confirmation hearings, just 10 pages. Trump’s other Supreme Court pick, Justice Neil Gorsuch, repeatedly and ardently In his dissent, Kavanaugh tried to make the declared his deep respect for legal case that the Supreme Court has typically precedence. “I’m sworn as a sitting judge to taken a conservative perspective on abortion, give the full weight and respect to due citing “many precedents holding that the precedent;” “I follow precedent;” “I will Government has permissible interests in follow the law of judicial precedent in this favoring fetal life, protecting the best and in every other area, senator, it’s my interests of a minor, and refraining from promise to you;” Gorsuch said at that time. facilitating abortion.” He failed to point out that the Supreme Court has consistently Gorsuch’s personal assurances about ruled that any restriction constituting “a precedent were crucial to securing Collins’ unilateral veto” – like the vote. “I had a very long discussion with government unilaterally deciding that a Justice Gorsuch in my office,” Collins teenage girl cannot have an abortion after she recently told CNN’s Jake Tapper. “And he
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met the state’s legal requirements – is radical fringe effectively places Kavanaugh unconstitutional. squarely in the other camp – the camp that disagrees that the Constitution provides a He went on to contrast his view with the right to an abortion. majority’s “radical” interpretation of the law, which he said would only have been The opinion that Roe should be overturned is supported by history’s most extreme justices. a radical one, and it should be treated as such. He called three of them out by name – It’s not only a departure from 45 years of William J. Brennan, Thurgood Marshall and Supreme Court precedent, it’s also wildly Harry Blackmun – casting those justices as outside the mainstream public opinion: 67 extremists whose abortion views were far percent of Americans do not want to outside the mainstream and decidedly “not see Roe overturned, according to a recent with the many majority opinions of the poll taken by the Kaiser Family Foundation. Supreme Court that have repeatedly upheld reasonable regulations that do not impose an Judges with Supreme Court dreams usually undue burden on the abortion right take great pains to keep their true feelings recognized by the Supreme Court in Roe v. about issues like abortion private out of fear Wade.” that these statements could come back to haunt them in confirmation hearings. It’s He returned to those three justices later in his probably not a coincidence that Kavanaugh dissent, in a passage that should be extremely became more bold in airing his views after concerning for anyone holding out hope that Trump – who promised to appoint justices if confirmed, Kavanaugh would that would overturn Roe v. Wade – was leave Roe untouched. “From one perspective, elected. some disagree with cases that allow the Government to refuse to fund abortions and In a speech he gave last year, Kavanaugh that allow the Government to impose praised the late Chief Justice William regulations such as parental consent, Rehnquist – one of the two dissenting justices informed consent, and waiting periods,” to vote against Roe – as his “first judicial Kavanaugh wrote. “That was certainly the hero.” Kavanaugh bemoaned the fact that position of Justices Brennan, Marshall, and Rehnquist was “not successful in convincing Blackmun. From the other perspective, some a majority of the justices in the context of disagree with cases holding that the U.S. abortion either in Roe itself or in the later Constitution provides a right to an abortion.” cases such as Casey… But he was successful in stemming the general tide of freewheeling Kavanaugh presented this as a binary choice. judicial creation of unenumerated rights that If there is room for more than two opinions were not rooted in the nation’s history and on the matter of abortion, Kavanaugh did not tradition.” Here, with his choice of words – account for it. The fact that he already cast “freewheeling judicial creation of Brennan, Marshall and Blackmun as the unenumerated rights” – Kavanaugh again
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indicated his belief that abortion is not a to interpret precedent, Supreme Court constitutional right guaranteed by the 14th justices get to decide what qualifies and what amendment. After his speech, an audience doesn’t. As Sen. Chuck Grassley (R-IA) put member, while posing a question, said it when explaining why he wouldn’t vote to Kavanaugh agreed with confirm Justice Sonia Sotomayor to the Rehnquist’s Roe dissent. Kavanaugh did not Supreme Court in 2009, even though he correct him, and in answering, affirmed his supported her nomination to a lower court: belief that Rehnquist was right. “Supreme Court Justices have the last say with respect to the law and have the ability to Back in 2006, when Kavanaugh was make precedent, they do not have the same nominated for his current position, Sen. kinds of restraints lower court judges have. Chuck Schumer (D-NY) asked him point So we need to be convinced these nominees blank: “Do you consider Roe v. Wade to be have judicial restraint – in other words, the an abomination?” The judge, a Catholic, self-restraint to resist interpreting the didn’t answer the question directly. He Constitution to satisfy their personal beliefs replied, “If confirmed to the D.C. Circuit, I and preferences.” would follow Roe v. Wade faithfully and fully. That would be binding precedent of the Collins and Murkowski, both of whom Court. It’s been decided by the Supreme previously voted to confirm Kavanaugh to Court.” the D.C. Circuit, would do well to keep that in mind during his Supreme Court That’s true. But it’s important to keep in mind confirmation hearings. that, unlike lower court judges who only get
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“Supreme Court wipes out appeals court ruling in immigrant abortion case”
Politico
Josh Gerstein and Renuka Rayasam
June 4, 2018
The Supreme Court has granted the Trump The Trump administration had asked the administration’s request to wipe out a federal Supreme Court in November to reverse the appeals court’s ruling upholding the right of D.C. Circuit Court’s decision that allowed teens in immigration custody to seek the teenage girl in an immigration shelter to abortions. obtain an abortion. It also asked the high court to dismiss a class-action suit The high court said the dispute was moot challenging the administration's policy of because the 17-year-old at the center of the blocking abortions for minors in the care of legal fight had an abortion before the case HHS. reached the justices. The Supreme Court, acting in an unsigned order and without The high court indicated it would not act on recorded dissent, didn’t signal a view on the the Justice Department’s request to impose underlying legal issue. sanctions on American Civil Liberties Union attorneys over their actions in the case. The The action means the question is all but federal government's lawyers argued that the certain to arise again, particularly given the ACLU, which is leading the class-action suit Trump administration’s policy of resisting against the administration, and the girl’s actions it views as facilitating abortions for lawyers deceived HHS officials about when minors her abortion would take place, rushing the procedure before the Trump administration The high-profile case, which dates back to appealed to the Supreme Court. last fall, was the first in a series of court battles over abortion policy in the relatively The teen, known as Jane Doe in court obscure Health and Human Services’ Office documents, had requested an abortion in of Refugee Resettlement (ORR), which is September after she was detained by responsible for the care of unaccompanied immigration authorities for illegally crossing minors who enter the country illegally. the border into Texas. The ACLU and the Monday’s court order, one of the first of Texas attorneys representing her said the abortion cases with Supreme Court Justice HHS refugee office intervened to block the Neil Gorsuch on the bench, comes after procedure even though she had private funds weeks of delay suggesting that there might and, in accordance with state law, obtained a have been conflicting opinions behind the judge's permission without parental consent. scenes of the court, but no dissenting opinion was issued. The full bench of the U.S. Circuit Court of Appeals for the District of Columbia ruled that ORR would have to immediately release
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Doe, who was about 16 weeks pregnant at the interfere with the ability of undocumented time, to obtain an abortion. The next teens in federal custody to obtain abortions. morning, the girl’s lawyers arranged for the She also allowed the ACLU case to move procedure to take place. The ACLU told the forward as a class- action suit. Supreme Court that the girl’s lawyers acted in her best interests. Martin Lederman, an associate professor at Georgetown Law, said the Trump The administration argued it wanted more administration's request for the Supreme time to find a sponsor for Doe so she could Court to consider the class-action suit before seek an abortion outside of federal custody. it fully progresses through lower courts, as The Justice Department has not yet taken a well as its call to discipline opposing position on whether undocumented minors attorneys, was "extraordinarily unusual.“ He have a constitutional right to an abortion. said the Supreme Court’s action on the Doe case was unlikely to affect the proceedings of U.S. District Court Judge Tanya Chutkan in a class-action suit. March told the Trump administration it can't
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“AGs Urge DC Circ. To OK Block On Detainee Abortion Rules”
Law360
Tiffany Hu
August 7, 2018
A coalition of attorneys general on Tuesday authority to personally decide on all requests urged the D.C. Circuit to uphold a District of for abortion by detained immigrant minors, Columbia federal court's ruling that according to the filing. temporarily paused a federal agency's policy of blocking detained immigrant girls from In addition to refusing to allow the girls to accessing abortion services, saying such a secure judicial bypass in lieu of parental policy violates the rights of both the states consent, the director also instructed shelters and women. to notify a minor's parents about her pregnancy without her consent, even in cases New York Attorney General Barbara D. where such policy violated state law, the Underwood, leading a group of 19 attorneys coalition said. general, asked the appellate court to keep intact a lower court's decision granting a By attempting to be the "final voice" on how preliminary injunction against the Office of a minor can obtain an abortion — either by Refugee Resettlement's policy of barring the rejecting her request, even with parental facilitation of abortions. Although states consent, or by rejecting her request when she differ as to how minors can get an abortion, seeks to use the state's bypass process — the the agency cannot simply override state agency ignores the fact that states in which procedures and judgments, the attorneys the minors are located already have laws and general said. policies in place, according to the brief.
"Permitting a federal agency to unilaterally "Contrary to [the Office of Refugee substitute its policy judgment for the Resettlement]'s assertions, its statutory determinations of state legislatures and courts responsibility for the health and welfare of — as well as for the independent decision- children in its custody does not justify the making of the minors living in those states — challenged policy," the attorneys general tramples on both the federalism interests of said. "[The Office of Refugee Resettlement]'s amici states and individual constitutional custodial role does not authorize limitless rights," the brief says. control; rather, the agency's authority is 'subject, of course, to the restrictions In March 2017, the agency adopted a policy governing natural parents.'" that gave agency Director Scott Lloyd the
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Citing a U.S. Supreme Court decision A representative for the Office of Refugee called Planned Parenthood of Se. Pa. v. Resettlement did not immediately respond to Casey , which found unconstitutional statutes a request for comment on Tuesday. that created a "substantial obstacle" for women seeking abortions, the attorneys In April, U.S. District Judge Tanya S. general said the Office of Refugee Chutkan determined that the federal Resettlement's policy similarly imposes an government had not required any policy or "unconstitutional undue burden." legal justifications from Lloyd for his personal determination that abortion would "All women have a constitutionally protected not be in any pregnant immigrant girl’s best right to access safe and effective abortion interests. services — including unaccompanied minors," Underwood said in a statement on The policy steps on the girls' Fifth Tuesday. "The Trump administration simply Amendment rights, among others, in part does not have the authority to force their because the decision to implement the policy personal views on these young women by was based on Lloyd’s ideological opposition requiring them to carry pregnancies against to abortion, without regard to the girls' their will. The federal policy is circumstances or right to choose, the judge unconstitutional and inhumane, and we will found. continue to fight it." Garza is represented by Brigitte Amiri and The brief was also signed by the attorneys Arthur B. Spitzer of the American Civil general of California, Connecticut, Delaware, Liberties Union. Hawaii, Illinois, Iowa, Maine, Maryland, Azar is represented by August Edward Massachusetts, New Jersey, New Mexico, Flentje and Michael Christopher Heyse of North Carolina, Oregon, Pennsylvania, the U.S. Department of Justice. Vermont, Virginia, Washington and the District of Columbia. The case is Rochelle Garza et al. v. Alex Azar II et al., case number 18-5093, in the U.S. Court of Appeals for the District of Columbia Circuit.
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“Gov. Threaten Legal Action If Title X Changes Become Law”
Law360
Shayna Possess
July 31, 3018
The Democratic governors of New York, Planned Parenthood clinic in Spokane, Oregon and Washington said Monday that Washington. they would have no choice but to take legal Inslee and Brown pledged to withdraw their action if the Trump administration moves participation from Title X if the proposal is forward with proposed changes to the Title X adopted, with the latter governor saying family-planning program that would pull doing so would be in the best interests of funding for Planned Parenthood. Oregon’s citizens and state law.
New York Gov. Andrew Cuomo, Oregon While Cuomo stopped short of explicitly Gov. Kate Brown and Washington Gov. Jay saying his state wouldn't be involved in the Inslee spoke out in advance of the Tuesday revamped program, he did note in a Monday cutoff for public comments regarding the letter to U.S. Department of Health and proposal, urging the administration to reverse Human Services Secretary Alex Azar that "it course on policy changes that would yank will be impossible for New York to continue federal funding for health care providers that its comprehensive Title X program" if the perform abortions, along with other reforms rules are enacted as proposed. the leaders say will have dangerous consequences for women. In May, HHS revealed its proposed updates to the Title X program, which provides Otherwise, Cuomo and Inslee said, they will family-planning services to low-income have no choice but to pursue all possible Americans, serving roughly four million options, including legal action, to block the people every year. policy from depriving the women of their respective states with critical health care The agency explained that the new proposal options. would make a number of changes to Title X's governing regulations, which were last "I believe the rule as written will not revised 18 years ago, including cutting withstand legal challenge, and I'll do all I can funding for programs and facilities that to prevent it," Inslee said in a Monday perform abortions and barring participating statement issued after a visit to the new health providers from giving abortion referrals. 542
However, if the policy moves forward and Before the proposal was even published in legal challenges prove unsuccessful, the the Federal Register, which ultimately governors said they will do everything in occurred on June 1, the Democratic their power to ensure the continued well- Governors Association blasted the policy, being of their citizens, including, if telling Azar that they were "deeply necessary, withdrawing their involvement in concerned." Title X.
The May 31 letter said Title X has enjoyed The National Family Planning and bipartisan support for more than 40 years, Reproductive Health Association, along with serving as an important partnership between several branches of Planned Parenthood, had the federal government and states that launched early May litigation challenging the ensures women receive quality health care policy before it was officially unveiled, but a and comprehensive, medically accurate D.C. federal court axed the action earlier this information. month.
"We strongly urge you to reconsider this U.S. District Judge Trevor N. McFadden plan, which is nothing more than a domestic granted the government's bid for a quick win 'gag rule' that poses serious risks to women's on July 16, saying the challenge came too health," the governors said. soon because nothing of legal effect had yet occurred. But with the public comment period closing, Cuomo, Brown and Inslee — who had all However, the judge said that even if he signed onto the Democratic Governors reached the merits, the government's Association letter — reiterated their concerns challenged priorities were in line with Title Monday. X's mission to aid with projects offering a "broad range of acceptable and effective Cuomo, for instance, said in his letter to Azar family planning methods and services." that the proposal would decrease the quality of care provided to those who rely on Title X, That decision is currently being appealed to particularly low-income and uninsured the D.C. Circuit. individuals, and deny women the information they need to make crucial decisions about their health.
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Affirmative Action
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“As Affirmative Action Is Targeted, Higher Ed Must Respond”
Law360
Sarah Moore
July 26, 2018
With the first day of college only weeks school to use affirmative action plans to away, many institutions of higher education achieve racial balance. In a significant shift, must now make a significant decision: the Obama administration’s Education and Comply with the current U.S. Department of Justice departments issued guidance to Justice position on race-neutral admissions, support colleges and universities in or face being targeted as the first in a likely establishing voluntary affirmative action series of test cases by the U.S. attorney admission policies that fit within the general’s newly constituted admissions Supreme Court parameters. litigation force. The administration’s latest act of disruption has hit colleges and Specifically, admission policies became universities. How will our institutions more narrowly tailored by only taking the respond? What does this mean for students race of an applicant into account based on the with acceptance letters? compelling interest of avoiding racial isolation and to achieve diversity in schools. Attorney General Jeff Sessions recently In 2016, the U.S. Supreme Court in Fisher v. announced that 24 Justice Department University of Texas at Austin recognized that guidance documents are now deemed colleges and universities had a compelling “unnecessary, outdated, inconsistent with interest to ensure student body diversity; that existing law, or otherwise improper.” That case decided that an admissions program was includes all of President Barack Obama’s constitutional if it remained narrowly tailored guidance on voluntary affirmative action to achieve this compelling interest. admission plans. Justice Anthony Kennedy authored the 4-3 During the George W. Bush administration, decision in Fisher, noting that “considerable schools had been encouraged to only use deference is owed to a university in defining “race-neutral methods for assigning students those intangible characteristics, like student to elementary and secondary schools” largely body diversity, that are central to its identity based on the U.S. Supreme Court Grutter v. and educational mission. But still, it remains Bollinger ruling in 2003. That case held that an enduring challenge to our Nation’s it was “patently unconstitutional” for a education system to reconcile the pursuit of
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diversity with the constitutional premise of higher education. equal treatment and dignity.” Assuming colleges utilized the Obama Now, the Trump administration is targeting administration guidance, it is likely their affirmative action programs in higher voluntary affirmative action admission education, in a move that had been expected programs would pass constitutional muster. since at least last fall when the Justice That said, it is one thing to believe they Department officially sought to hire attorneys would. Being entangled in a lawsuit for a new project regarding “intentional race- defending that position is an entirely different based discrimination in college and matter, particularly when the Justice university admissions.” It appears the Department has identified it has a priority of attorneys hired last fall for the “new project” addressing these cases and prepared its were hired and, we expect, are ready to roll. resources accordingly. The anticipated aggressive pursuit of these cases by the Following the attorney general’s Justice Department without any apparent announcement, the U.S. Department of consideration of providing higher education Education tweeted that “ED & DOJ are the considerable deference to which it is rescinding documents that advocate specific entitled according to our Supreme Court policies and procedures beyond what the should not be easily dismissed. Constitution, Title IV, or Title VI require. The protections from discrimination on the The fact is, our colleges are in for a fight. And basis of race guaranteed by the Constitution, it is one that is worthwhile to defend, because Title IV, and Title VI remain in place. OCR the educational mission of our institutions of is firmly committed to vigorously enforcing higher education is at stake. The colleges these protections on behalf of all students.” need to be prepared for a long battle (and much legal expense), starting immediately Even though the affirmative action admission with conducting thorough analysis of current programs at issue are voluntary, the admissions programs to ensure institutions government is still positioned to step in and continue their obligation to analyze the stop higher education institutions from constitutionality of these programs on an making determinations regarding individual annual basis. This is critical, as the student admissions based on race and to constitutionality of these programs is not just review decisions that have been made. The based upon a snapshot at the date of creation, details of what lies ahead are difficult to but upon the state of the program today and predict. But, with the rollback by AG whether the institution has a compelling Sessions, the Bush administration’s position interest now. that schools should use race-neutral methods and can only consider race where essential to For any college with a voluntary affirmative educational mission within constitutional action program in place, the most important parameters is revived and it will certainly roil thing to do right now is for counsel to conduct
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a review of the program since its inception, General Sessions on July 3, 2018. A review with attention paid to preserving all data done close in time should be memorialized, supporting the institution’s decision to with the administration’s shift in perspective, institute and maintain the program. Particular to ensure there is a record of due diligence. attention should be paid to tracking the effect To the extent the current program deviates in of the implementation on effectuating the any manner under the new standard, it will be objective of student diversity, and how that necessary to identify whether to modify the has quantifiably enriched the institution. program accordingly, or if it is more prudent to place the program in abeyance until further Next, the current program should be clarification is provided by Congress or the evaluated in light of the action by Attorney courts.
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“Brett Kavanaugh once predicted ‘one race’ in the eyes of government. Would he end affirmative action?”
The Washington Post
Ann E. Marimow and Robert Barnes
August 7, 2018
In the spring of 2015, Brett M. Kavanaugh Yet even as Kavanaugh has taken steps to returned to his alma mater in New Haven, open up an elite, historically white and male Conn., to address the Black Law Students network, civil rights advocates cite legal Association. The student who introduced him opinions, interviews and writings that said Kavanaugh was concerned that African suggest he would weaken broad legal Americans and other minorities were being protections for minorities. Interest groups on shut out of coveted clerkships with federal both sides say Kavanaugh could be the vote judges like him. conservatives have been looking for to speed the demise of affirmative action in college Kavanaugh concluded the session by handing admissions. out his email address and phone number and encouraging the Yale students to apply. Civil rights advocates and Democratic Indeed, two of Kavanaugh’s four law clerks lawmakers point in particular to an opinion this year were African American students he he wrote in 2012 delaying but ultimately met during annual visits to Yale, and allowing voter identification requirements in Kavanaugh and his supporters have touted South Carolina that were opposed by the his record of hiring young lawyers from Justice Department, and to his description in diverse backgrounds to work with him at the 1999, when he was a lawyer in private U.S. Court of Appeals for the District of practice, of a government program for Native Columbia Circuit. Hawaiians as a “naked racial-spoils system.” In that case, embracing the language of “It was important to him that everyone have Justice Antonin Scalia, Kavanaugh wrote in a access,” recalled Rakim Brooks, who newspaper column that the Supreme Court introduced the judge that day and would eventually, inevitably find that “in the completed a year-long clerkship with eyes of government, we are just one race.” him this summer just as President Trump announced Kavanaugh’s nomination to the Vanita Gupta, president of the Leadership Supreme Court. Conference on Civil and Human Rights, said, “That kind of statement really signals that he
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will bring an anti-civil-rights agenda to the unconstitutional to bar people who were Supreme Court and fails to recognize the not Native Hawaiians from voting current reality of being a person of color in for trustees of the Office of Hawaiian Affairs. this country and the history of discrimination.” While working on that case, Kavanaugh in a 1999 Wall Street Journal column urged the “Kavanaugh’s worldview is not court to adhere to the constitutional principle demonstrated by the fact that he’s appeared that, he wrote, was most clearly articulated before black law students and hired diverse by Scalia in an earlier case involving racial clerks,” she said, noting that he has also preferences in hiring: “Under our appeared nearly 50 times before chapters of Constitution there can be no such thing as the Federalist Society, the conservative legal either a creditor or a debtor race. . . . In the group that has helped shape Trump’s list of eyes of government, we are just one race potential Supreme Court nominees, including here.” Kavanaugh. The Supreme Court struck down the race- The stakes are high because the man based voting qualification in a 7-to-2 Kavanaugh would replace, Justice Anthony decision written by Kennedy. M. Kennedy, cast the deciding vote on a key affirmative action case two years ago. He Roger Clegg of the Center for Equal joined the court’s liberal justices to Opportunity, who joined with Kavanaugh uphold the University of Texas’s limited use and Bork to submit an amicus brief in that of race as a factor in admissions. In an earlier case, said he suspects that Kavanaugh as a case involving the racial makeup of public justice would “be hospitable to the kinds of school districts, Kennedy declined to join arguments he was making.” conservatives in saying race could not be “Our hope is that he is correct in his considered. These issues seem certain to prediction that the government will get out of return to the Supreme Court because the business of playing favorites on the basis admissions practices at Harvard University of race and ethnicity, and that the court will and the University of North Carolina are recognize that it’s plainly prohibited.” already facing legal challenges. Clegg stressed that the way to end During his 12 years on the bench, few cases discrimination is for the government to stop have required Kavanaugh to take positions on categorizing Americans by race, a practice matters directly involving race. Speculation that he said is untenable in a multiethnic, about how he would approach these types of multiracial society. cases is based in part on his work as a lawyer at Kirkland & Ellis. There, Kavanaugh Still, Clegg said his expectations for teamed with conservative lawyer Robert H. Kavanaugh are tempered somewhat because Bork and the Center for Equal Opportunity, a he was acting then as a private attorney, not conservative think tank, in arguing that it was as a judge.
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Civil rights advocates, however, say that teacher in Washington in predominantly Kavanaugh’s rhetoric about a “racial-spoils African American schools. system” and his embrace of Scalia’s “one race” prediction leave little room for surprise “Her example taught me the importance of when it comes to affirmative action. equality for all Americans,” Kavanaugh said.
“He’s not someone for whom you have to In response to questions from the Senate guess about,” said Thomas Saenz, president Judiciary Committee, Kavanaugh listed what and general counsel of the Mexican he considered his 10 most important American Legal Defense and Educational decisions. He identified nine that went to the Fund. Saenz said he views Kavanaugh’s high court and a 10th involving a Fannie Mae statements as particularly troubling at a time employee who was fired shortly after when white-supremacist groups and anti- complaining about an executive’s use of a immigrant sentiment are on the rise. racial slur to refer to him. Kavanaugh sided with the employee and wrote a separate Justin Driver, a University of Chicago law opinion to which he called attention in his professor , cautioned that affirmative action questionnaire. has been administered “last rites many times,” only to be saved by an improbable list “Calling someone the n-word, even once, of conservative justices. But he said that creates a hostile work environment,” he Kavanaugh’s language “signals great wrote. “My opinion explained: ‘No other hostility to racial classifications.” word in the English language so powerfully or instantly calls to mind our country’s long In a 2003 decision upholding the University and brutal struggle to overcome racism and of Michigan Law School admissions policy, discrimination against African-Americans.’ ” Justice Sandra Day O’Connor wrote, “We expect that 25 years from now, the use of In the 2012 case reviewing a South Carolina racial preferences will no longer be necessary voter identification law, Kavanaugh to further the interest approved today.” acknowledged concerns from the Justice Department and civil rights groups about the “We’re 10 years away from 2028,” said disproportionate impact on black voters, who Driver, who clerked for O’Connor. If were less likely to have an acceptable photo Kavanaugh joins the court, “it may well not ID, according to court filings. last another 10 years.” “Racial insensitivity, racial bias, and indeed Through his hiring and in his public outright racism are still problems throughout statements, Kavanaugh has made clear that the United States as of 2012,” Kavanaugh the topic of racial discrimination is often on wrote. “. . . The long march for equality for his mind. When he was introduced as African-Americans is not finished.” Trump’s nominee at the White House in June, one of the first things he mentioned was Kavanaugh joined with two other judges to his mother’s work as a public high school delay for one year implementation of the
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voter-ID requirement. But their unanimous 13 are minorities. Nine of the 13 have gone decision cleared the law to take effect after on to Supreme Court clerkships, according to the 2012 election. statistics compiled by his former clerks and first reported by the National Law Journal. “The rhetoric is a lot less significant than the ruling itself,” said Todd A. Cox, director of Rakim Brooks credits Kavanaugh for his policy at the NAACP Legal Defense Fund. efforts to diversify the elite clerkship track. “That is the thing that has the impact on real He signed a letter submitted this month to the people’s lives.” Senate from the judge’s former clerks that praises Kavanaugh as a mentor, friend, Civil rights advocates say it is telling that intellect and highly qualified nominee. Kavanaugh did not join the other judges — Colleen Kollar-Kotelly, a Clinton nominee, But Brooks, who grew up in public housing and John D. Bates, a George W. Bush in East Harlem and was the first in his family nominee — in a separate opinion in which to attend college, is concerned about the they noted the “vital function” of the Voting future of civil rights. His feelings about the Rights Act provision that required federal nomination fight are complicated. oversight of election laws in states with a history of discriminatory practices. He said his respect and admiration for the judge don’t “mean people shouldn’t fight and The following year, the Supreme challenge Judge Kavanaugh’s nomination if Court invalidated that provision, known as they disagree. I think they should.” Section 5. “There was no one that President Trump was Throughout his tenure on the bench in going to appoint who was likely to advance Washington, Kavanaugh has returned six the civil rights agenda beyond where Justice times to Yale to speak to the black law Kennedy is leaving it,” Brooks said. students’ group. Of the 48 clerks he has hired,
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“Asian-Americans Suing Harvard Say Admissions Files Show Discrimination”
New York Times
Anemona Hartocollis
April 4, 2018
A group that is suing Harvard University is “This is an important and closely watched demanding that it publicly release admissions civil rights case,” William S. Consovoy, the data on hundreds of thousands of applicants, lawyer for the group, Students for Fair saying the records show a pattern of Admissions, said in his letter to the court. discrimination against Asian-Americans “The public has a right to know exactly what going back decades. is going on at Harvard. Even if this were a commercial issue — as Harvard would like to The group was able to view the documents portray it — the public would have a right to through its lawsuit, which was filed in 2014 know if the product is defective or if a fraud and challenges Harvard’s admissions is being perpetrated.” policies. The plaintiffs said in a letter to the court last week that the documents were so At stake in the dispute is the secrecy of the compelling that there was no need for a trial, university admissions process, especially at and that they would ask the judge to rule elite institutions like Harvard that are summarily in their favor based on the competing for a small pool of highly documents alone. qualified students, and whether and how race and ethnicity play a role. The plaintiffs also say that the public — which provides more than half a billion Students for Fair Admissions includes more dollars a year in federal funding to Harvard than a dozen Asian-American students who — has a right to see the evidence that the applied to Harvard and were rejected. They judge will consider in her decision. contend in their lawsuit that Harvard systematically and unconstitutionally Harvard counters that the documents are discriminates against Asian-American tantamount to trade secrets, and that even in applicants by penalizing their high the unlikely event that the judge agrees to achievement as a group, while giving decide the case without a trial, she is likely to preferences to other racial and ethnic use only a fraction of the evidence in her minorities. They say that Harvard’s decision. Only that portion, the university admission process amounts to an illegal says, should be released. quota system.
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A spokeswoman for Harvard, Rachael Dane, in access to judicial materials,” the university while declining to comment on the specifics said. “Those interests, however, must be of the litigation, said: “Harvard College does balanced against the need to protect not discriminate against applicants from any individual privacy and confidential and group in its admissions processes. We will proprietary information about the admissions continue to vigorously defend the right of process.” Harvard, and other universities, to seek the educational benefits that come from a class The leader of Students for Fair Admissions that is diverse on multiple dimensions.” and the architect of the case against Harvard is Edward Blum, a longtime crusader against Harvard gave the court the documents in affirmative action who has recruited question, which include six years of plaintiffs, hired sympathetic lawyers and admissions data on hundreds of thousands of raised millions of dollars from conservative high school students, as part of the pretrial groups to challenge voting rights laws and discovery process. About 40,000 students affirmative action policies, often apply to Harvard each year. successfully.
The judge in the case, Allison D. Burroughs One of Mr. Blum’s landmark cases was a of the Federal District Court in Boston, has lawsuit by Abigail Fisher, a white applicant scheduled a hearing on April 10 for both sides who said she was denied admission to the to present oral arguments on whether the University of Texas at Austin because of her documents should be made public. race. The United States Supreme Court ruled 4-3 in favor of the university in 2016, saying The two sides provided lengthy letters to that it is constitutional to use race as one of Judge Burroughs, giving a preview of their many factors in admissions decisions. arguments. The judge has set a trial date for next January, though Harvard in its letter said Critics have seen the lawsuit against Harvard, it was prepared to go to trial as soon as which seems intended to go to the Supreme October. Court, as an attempt to reignite that battle.
The contents of the documents have been The Trump administration has taken an only roughly sketched out in court papers. interest in the issue, opening a parallel But Harvard said in its letter that the parties investigation based on a separate 2015 have exchanged more than 90,000 pages, complaint to the Justice Department by a including “deeply personal and highly coalition of Asian-American organizations. sensitive information about applicants to and students at Harvard and the inner workings of In its letter to the judge, Harvard said that it Harvard’s admissions process.” had an obligation to protect the identities of applicants, who take it on faith that their “Harvard understands that there is a public applications will remain private. While interest in this case and that the public has names and other information that could certain — though not unfettered — interests directly identify applicants have been
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redacted from the documents, the university akin to a trade secret. “This case does not said that hometowns, awards and other involve anything like ‘national security, the elements could reveal applicants’ identities formula for Coca-Cola or embarrassing through simple internet searches. details of private life,’ ” the group said, citing case law. The documents also include deposition testimony concerning the procedures The group noted that Harvard officials have Harvard used to evaluate applications; repeatedly said that there is no formula for internal correspondence among admissions being admitted, and that books and articles officers about applicants’ qualities; and have been written about how the Harvard statements by admissions officers about why admissions process works. they liked some applicants better than others. The plaintiffs cited a landmark affirmative “That information is highly proprietary to action case, Gratz v. Bollinger, in which the Harvard and of great interest to college Supreme Court ruled in 2003 that the admissions consultants and others who seek University of Michigan was using an any advantage they can muster in the highly unconstitutional scoring system for competitive admissions process,” Harvard undergraduate admissions. The system said in its letter. Releasing it “would put automatically awarded 20 out of 150 points Harvard at a severe competitive toward admission to members of disadvantage,” the university said, and would underrepresented minorities. prompt applicants to try to game the system. “There is no way the public could have Students for Fair Admissions scoffed at the understood the dispute,” the group said, “if notion that the admissions procedure was the facts had been hidden.”
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“Harvard Rated Asian-American Applicants Lower on Personality Traits, Suit Says”
New York Times
Anemona Hartocollis
June 15, 2018
Harvard consistently rated Asian-American That has led to intense interest in the applicants lower than others on traits like university’s closely guarded admissions “positive personality,” likability, courage, process. Harvard had fought furiously over kindness and being “widely respected,” the last few months to keep secret the according to an analysis of more than documents that were unsealed Friday. 160,000 student records filed Friday by a group representing Asian-American students The documents came out as part of a lawsuit in a lawsuit against the university. charging Harvard with systematically discriminating against Asian-Americans, in Asian-Americans scored higher than violation of civil rights law. The suit says that applicants of any other racial or ethnic group Harvard imposes what is in effect a soft quota on admissions measures like test scores, of “racial balancing.” This keeps the numbers grades and extracurricular activities, of Asian-Americans artificially low, while according to the analysis commissioned by a advancing less qualified white, black and group that opposes all race-based admissions Hispanic applicants, the plaintiffs contend. criteria. But the students’ personal ratings significantly dragged down their chances of The findings come at a time when issues of being admitted, the analysis found. race, ethnicity, admission, testing and equal access to education are confronting schools The court documents, filed in federal court in across the country, from selective public high Boston, also showed that Harvard conducted schools like Stuyvesant High School in New an internal investigation into its admissions York to elite private colleges. Many Ivy policies in 2013 and found a bias against League schools, not just Harvard, have had Asian-American applicants. But Harvard similar ratios of Asian-American, black, never made the findings public or acted on white and Hispanic students for years, despite them. fluctuations in application rates and qualifications, raising questions about how Harvard, one of the most sought-after and those numbers are arrived at and whether selective universities in the country, admitted they represent unspoken quotas. only 4.6 percent of its applicants this year.
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Harvard and the group suing it have In court papers, Harvard said that a statistical presented sharply divergent views of what analysis could not capture the many constitutes a fair admissions process. intangible factors that go into Harvard admissions. Harvard said that the plaintiffs’ “It turns out that the suspicions of Asian- expert, Peter Arcidiacono, a Duke University American alumni, students and applicants economist, had mined the data to his were right all along,” the group, Students for advantage by taking out applicants who were Fair Admissions, said in a court document favored because they were legacies, athletes, laying out the analysis. “Harvard today the children of staff and the like, including engages in the same kind of discrimination Asian-Americans. In response, the plaintiffs and stereotyping that it used to justify quotas said their expert had factored out these on Jewish applicants in the 1920s and applicants because he wanted to look at the 1930s.” pure effect of race on admissions, unclouded by other factors. Harvard vigorously disagreed on Friday, saying that its own expert analysis showed no Both sides filed papers Friday asking for discrimination and that seeking diversity is a summary judgment, an immediate ruling in valuable part of student selection. The their favor. If the judge denies those requests, university lashed out at the founder of as is likely, a trial has been scheduled for Students for Fair Admissions, Edward Blum, October. If it goes on to the Supreme Court, accusing him of using Harvard to replay a it could upend decades of affirmative action previous challenge to affirmative action in policies at colleges and universities across college admissions, Fisher v. the University the country. of Texas at Austin. In its 2016 decision in that case, the Supreme Court ruled that race could Harvard is not the only Ivy League school be used as one of many factors in admissions. facing pressure to admit more Asian- American students. Princeton and Cornell “Thorough and comprehensive analysis of and others also have high numbers of Asian- the data and evidence makes clear that American applicants. Yet their share of Harvard College does not discriminate Asian-Americans students is comparable against applicants from any group, including with Harvard’s. Asian-Americans, whose rate of admission has grown 29 percent over the last decade,” In Friday’s court papers, the plaintiffs Harvard said in a statement. “Mr. Blum and describe a shaping process that begins before his organization’s incomplete and misleading students even apply, when Harvard buys data data analysis paint a dangerously inaccurate about PSAT scores and G.P.A.s, according to picture of Harvard College’s whole-person the plaintiffs’ motion. It is well documented admissions process by omitting critical data that these scores vary by race. and information factors.” The plaintiffs’ analysis was based on data extracted from the records of more than
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160,000 applicants who applied for admission over six cycles from 2000 to 2015.
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“Asian-American groups take opposing sides in Harvard affirmative action case”
NBC
Chris Fuchs
August 3, 2018
Battle lines were drawn this week as Asian- ensure even greater diversity, which the brief American groups took sides in an ongoing says enhances learning for all students. lawsuit that accuses Harvard of discriminating against Asian-American But the Asian American Coalition for applicants. Education and the Asian American Legal Foundation, both nonprofit advocacy groups, Current Harvard students, alumni and argue in their brief that Harvard, in order to applicants who defend the school’s maintain racial quotas, makes Asian- consideration of race in admissions — and American applicants surmount a higher bar organizations like the Asian American than others. Coalition for Education, which accuses Harvard of “unfairly rejecting many top They allege that Asian Americans today performing Asian American students” — encounter the same “formal and hidden were among those who filed friend-of-the- quotas” faced by Jewish applicants to court briefs in Boston federal court on Harvard and other Ivy Leagues during the Monday and Tuesday, as a judge weighs first half of the 20th century. whether the case should go to trial. While Asian-Americans appear divided on In the wake of the lawsuit brought by affirmative action, backing for the policy Students for Fair Admissions in 2014, Asian among the group has actually held steady, Americans, often stereotyped as model except for Chinese Americans, according to minorities, have found themselves in the Karthick Ramakrishnan, founder and director center of the debate on affirmative action. of AAPI Data and a public policy professor at the University of California, Riverside. One group of students, represented by Asian Americans Advancing Justice-L.A. and two National survey figures analyzed by AAPI other civil rights groups, contends in their Data showed that from 2012 to 2016, Asian- brief that Harvard’s race-conscious, holistic American support for affirmative action admissions policy is constitutional. They also hovered around 70 percent, though for maintain that the school needs to do more to Chinese it dropped from 78 percent to 41 percent.
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“This has been a major issue within the “We have a Chinese-American and Chinese-American community and Vietnamese-American student who actually predominantly driven by the concerns and believe that they got into Harvard because of anxieties of Chinese immigrants,” affirmative action,” Ochi said. Ramakrishnan said. Nicole Gon Ochi, an attorney with Asian The group suing Harvard, Students for Fair Americans Advancing Justice-L.A., said she Admissions, which is led by conservative believes everyone benefits from diversity. activist Edward Blum, includes Asian She said their brief stands out from the others Americans who have been denied admission in that it captures the full range of student to Harvard. It alleges that the voices, including prospective and current college intentionally discriminates ones, as well as alumni. against Asian-American applicants by limiting their admissions numbers each year. “We have a Chinese-American and Vietnamese-American student who actually Harvard denies the claims. It says it believes believe that they got into Harvard because of the evidence shows that it does not use quotas affirmative action,” Ochi said. or racial balancing and that race is just one of many factors it considers in admissions “There’s others for whom race may not have decisions. played a role, but once they got to Harvard, it really greatly enhanced their educational The Supreme Court has ruled that colleges experience, kind of transformed them as cannot use racial quotas because they violate people into caring a lot about social justice ... the Constitution’s Equal Protection Clause, helped them to see their own prejudices,” she but may take race into account when deciding added. whom to admit. Ochi said the students in the amicus brief In Harvard’s class of 2021, 22 percent of were also troubled by the prospect of not students were Asian, 15 percent African having their race — which they believe to be American, 12 percent Hispanic or Latino, and a core part of their identity — taken into 3 percent Native American or Pacific account for admissions when every other Islander. aspect of who they are is considered.
Nicole Gon Ochi, an attorney with Asian “For many of our Asian-American students, Americans Advancing Justice-L.A., said she they actually have been told don’t talk about believes everyone benefits from diversity. your race, don’t disclose that you’re Asian, She said their brief stands out from the others it’s going to hurt you in the admissions in that it captures the full range of student process,” she said. “And all of them voices, including prospective and current considered that advice and rejected it, ones, as well as alumni. because they said we can’t represent ourselves authentically without that.”
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But Yukong Zhao, president of the Asian “This vicious cycle forces Asian-American American Coalition for Education, said race students into behavior closer to the negative should play no role in who’s admitted to stereotype that they are nothing but Harvard. personality-less ‘nerds,’ making it easier for admissions officers to apply unfair “We want to really point out that the Harvard stereotypes and deny them admission,” the admission model ... actually is illegal,” Zhao brief argued. said. He added that the school’s admissions’ practice is “totally immoral” and “creates so In addition to Harvard, Students for Fair much harm to Asian-American communities Admissions has also sued the University of and also undermines the American merit- North Carolina at Chapel Hill and the based college admissions system.” University of Texas at Austin in separate cases, alleging they use discriminatory Zhao’s coalition said it represents 156 Asian- admissions policies. American organizations across the country, among them the Asian American GOP Blum, the group’s president, recruited Coalition, Asian Americans Against Abigail Fisher, the lead plaintiff in Fisher v. Affirmative Action and the Michigan University of Texas. Chinese Conservatives Alliance, according to their friend-of-the-court brief. Fisher, who is white, first sued the University of Texas at Austin in 2008, arguing that its The brief, which contends Harvard sets the holistic-review process, which considers race admissions bar higher for Asian Americans, along with other factors, put her at a argued that by doing so Asian-American disadvantage to other applicants. applicants must study and excel more than other candidates to have the same shot at The U.S. Supreme Court in June 2016 ruled getting in. 4-3 in that case to uphold the school’s affirmative action policy.
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“U.S. says it might enter Harvard affirmative action court battle”
Reuters
Nate Raymond
April 6, 2018
The U.S. Justice Department said on Friday “Harvard College is responsible for it might formally enter a lawsuit accusing protecting the confidential and highly Harvard University of discriminating against sensitive personal information that Asian-American applicants as the agency prospective students - none of whom asked to probes its admissions policies for potential be involved in this dispute - entrust to us civil rights violations. every year in their applications,” Harvard spokeswoman Rachael Dane said in a statement. The department disclosed its plan in a brief urging a federal judge in Boston to not allow “We are committed to safeguarding their the Ivy League school to file pre-trial court privacy while also ensuring that the public papers and documents provisionally under has the access that it is entitled to under the seal. law,” Dane said.
Harvard had cited the need to protect the William Consovoy, a lawyer for SFFA, privacy of applicants and students as well as declined to comment. the inner workings of its admissions process, arguing that various documents should be The U.S. Supreme Court has ruled initially filed under seal pending the judge’s universities may use affirmative action to review. help minority applicants get into college. Conservatives have said such programs can The Justice Department said it opposed hurt white people and Asian-Americans. Harvard’s request, joining Students for Fair Admissions (SFFA), the group behind the The Justice Department under Republican case, which has urged the disclosure of President Donald Trump has been “powerful” evidence showing Cambridge, investigating a complaint by more than 60 Massachusetts-based Harvard is violating Asian-American organizations which say Title VI of the Civil Rights Act. Harvard’s policies are discriminatory because they limit the acceptance of Asian- Americans.
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file a “statement of interest” arguing a “The public funds Harvard at a cost of position in the case. millions of dollars each year, and thus has a paramount interest in any proof of these A hearing before U.S. District Judge Allison allegations, Harvard’s responses to them, and Burroughs is scheduled for Tuesday. the Court’s resolution of this dispute,” Justice Department lawyers wrote in Friday’s filing. Harvard says its admissions policies comply The department said that while it had with U.S. laws and that it has worked to obtained much of the case’s evidence through increase the financial aid it offers to ensure its own separate probe, it wanted to review economic, as well as racial, diversity in its the court records as it considers whether to classes.
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“Trump Officials Reverse Obama’s Policy on Affirmative Action in Schools”
New York Times
Erica L. Green, Matt Apuzzo, and Katie Benner
July 3, 2018
The Trump administration said Tuesday that opportunities for all students while abiding it was abandoning Obama administration by the law.” policies that called on universities to consider race as a factor in diversifying their The Trump administration’s moves come campuses, signaling that the administration with affirmative action at a crossroads. Hard- will champion race-blind admissions liners in the Justice and Education standards. Departments are moving against any use of race as a measurement of diversity in In a joint letter, the Education and Justice education. And the retirement of Justice Departments announced that they had Anthony M. Kennedy at the end of this rescinded seven Obama-era policy guidelines month will leave the Supreme Court without on affirmative action, which, the departments its swing vote on affirmative action while said, “advocate policy preferences and allowing President Trump to nominate a positions beyond the requirements of the justice opposed to policies that for decades Constitution.” have tried to integrate elite educational institutions. “The executive branch cannot circumvent Congress or the courts by creating guidance A highly anticipated case is pitting Harvard that goes beyond the law and — in some against Asian-American students who say instances — stays on the books for decades,” one of the nation’s most prestigious said Devin M. O’Malley, a Justice institutions has systematically excluded some Department spokesman. Asian-American applicants to maintain slots for students of other races. That case is Striking a softer tone, Education Secretary clearly aimed at the Supreme Court. Betsy DeVos wrote in a separate statement: “The Supreme Court has determined what “The whole issue of using race in education affirmative action policies are constitutional, is being looked at with a new eye in light of and the court’s written decisions are the best the fact that it’s not just white students being guide for navigating this complex issue. discriminated against, but Asians and others Schools should continue to offer equal as well,” said Roger Clegg, the president and general counsel of the conservative Center
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for Equal Opportunity. “As the demographics of individual students in a narrowly tailored of the country change, it becomes more and manner.” more problematic.” But Trump Justice Department officials Democrats and civil rights organizations identified those documents as particularly denounced the administration’s decisions. problematic and full of “hypotheticals” Representative Nancy Pelosi of California, intended to allow schools to skirt the law. the House Democratic leader, said the “rollback of vital affirmative action guidance The Trump administration’s decision offends our nation’s values” and called it “yet returned the government’s policies to the another clear Trump administration attack on George W. Bush era. The administration did communities of color.” not formally reissue the Bush-era guidance but in recent days did repost a Bush Guidance documents like those rescinded on administration affirmative action policy Tuesday do not have the force of law, but document online. That document states, they amount to the official view of the federal “The Department of Education strongly government. School officials who keep their encourages the use of race-neutral methods race-conscious admissions policies intact for assigning students to elementary and would do so knowing that they could face a secondary schools.” For several years, that Justice Department investigation or lawsuit, document had been replaced by a note or lose funding from the Education declaring that the policy had been withdrawn. Department. The Education Department had last The Obama administration believed that reaffirmed its position on affirmative action students benefited from being surrounded by in schools in 2016 after a Supreme Court diverse classmates, so in 2011, the ruling said schools could consider race as one administration offered schools a potential factor among many. In that case, Fisher v. road map to establishing affirmative action University of Texas at Austin, a white policies and race-based considerations that woman claimed she was denied admission could withstand legal scrutiny from an because of her race. increasingly skeptical Supreme Court. “It remains an enduring challenge to our In a pair of policy guidance documents issued nation’s education system to reconcile the in 2011, the Obama Education and Justice pursuit of diversity with the constitutional Departments informed elementary and promise of equal treatment and dignity,” secondary schools and college campuses of Justice Kennedy wrote for the 4-to-3 “the compelling interests” established by the majority. Supreme Court to achieve diversity. They concluded that the court “has made clear such Some colleges, such as Duke and Bucknell steps can include taking account of the race universities, said they would wait to see how the Education Department proceeds in issuing new guidance. Other colleges said
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they would proceed with diversifying their discrimination on the basis of race remain in campuses as the Supreme Court intended. place.”
Melodie Jackson, a Harvard spokeswoman, “The departments are firmly committed to said the university would “continue to vigorously enforcing these protections on vigorously defend its right, and that of all behalf of all students,” the letter said. colleges and universities, to consider race as one factor among many in college Anurima Bhargava, who headed civil rights admissions, which has been upheld by the enforcement in schools for the Justice Supreme Court for more than 40 years.” Department under President Barack Obama and helped write that administration’s A spokeswoman for the University of guidance, said the withdrawal of the Michigan, which won a major Supreme guidelines was timed for brief filings in the Court case in 2003, suggested that the Harvard litigation, due at the end of the flagship university would like more freedom month. to consider race, not less. But it is already constrained by state law. After the case, “This is a wholly political attack,” Ms. Michigan voters enacted a constitutional ban Bhargava said. “And our schools are the on race-conscious college admissions place where our communities come together, policies. so our schools have to continue to promote diversity and address segregation, as the U.S. “We believe the U.S. Supreme Court got it Constitution demands.” right in 2003 when it affirmed our law school’s approach at the time, which allowed Catherine Lhamon, who served as the consideration of race as one of many factors Education Department’s head of civil rights in the admissions process,” said Kim under Mr. Obama, called the departments’ Broekhuizen, the Michigan spokeswoman. move confusing. “We still believe that.” “There’s no reason to rethink or reconsider Attorney General Jeff Sessions has indicated this, as the Supreme Court is the highest court that he will take a tough line against such in the land and has spoken on this issue,” Ms. views. Federal prosecutors will investigate Lhamon said. and sue universities over discriminatory On Friday, the Education Department began admissions policies, he said. laying the groundwork for the shift, when But a senior Justice Department official it restored on its civil rights website the denied that these decisions were rolling back Bush-era guidance. Conservative advocacy protections for minorities. He said they were groups saw that as promising. Mr. Clegg, of instead hewing the department closer to the the Center for Equal Opportunity, said that letter of the law. In the departments’ letter, preserving the Obama-era guidance would be officials wrote that “the protections from akin to “the F.B.I. issuing a document on how
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you can engage in racial profiling in a way elementary and secondary schools. New where you won’t get caught.” York City is embroiled in a debate about whether to change its entrance standard Ms. DeVos has seemed hesitant to wade in on — currently a single test — for its most the fate of affirmative action policies, which prestigious high schools to allow for more date back to a 57-year-old executive order by black and Latino students. President John F. Kennedy, who recognized systemic and discriminatory disadvantages for women and minorities. The Education Department did not partake in the Justice Department’s formal interest in Harvard’s litigation.
“I think this has been a question before the courts and the courts have opined,” Ms. DeVos told The Associated Press.
But Ms. DeVos’s new head of civil rights, Kenneth L. Marcus, may disagree. A vocal opponent of affirmative action, Mr. Marcus was confirmed last month on a party-line Senate vote, and it was Mr. Marcus who signed Tuesday’s letter.
Under Mr. Marcus’s leadership, the Louis D. Brandeis Center, a human rights organization that champions Jewish causes, filed an amicus brief in 2012, the first time the Supreme Court heard Fisher v. University of Texas at Austin. In the brief, the organization argued that “race conscious admission standards are unfair to individuals, and unhealthy for society at large.”
The organization argued that Asian- American students were particularly victimized by race “quotas” that were once used to exclude Jewish people.
As the implications for affirmative action for college admissions play out in court, it is unclear what the decision holds for
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