Public employee could be fired over her two prior lawsuits

It's been a while since the Court of Appeals addressed when a public employee can sue for retaliation under the First Amendment. The general rule is that public employees have limited rights to speak on matters of public concern if, and only if, they are speaking as a citizen and not pursuant to their official job duties. The courts find that plaintiff in this case did not speak on matters of public concern when she filed two prior lawsuits against her public employer.

The case is Flynn v. Bloomingdale, a summary order issued on July 28. Plaintiff was a parole officer for the Department of Parole. If you file a lawsuit against your public employer, when then retaliates you for filing that lawsuit, the lawsuit is not necessarily a matter of public concern, even though the plaintiff is petitioning the government for grievances. The courts have addressed that anomaly by holding that even lawsuits must address a matter of public concern to be protected under the First Amendment. If the lawsuit only addresses a personal matter, then it is not protected.

The general rule is that "matters implicate the public interest when the plaintiff wanted to debate issues of discrimination, that the plaintiff’s suit sought relief against pervasive or systemic misconduct by a public agency or public officials, or that the plaintiff’s suit was part of an overall effort to correct allegedly unlawful practices or bring them to public attention.” Otherwise, lawsuits that address personal grievances are fair game to fire the plaintiff.

Plaintiff's lawsuits were filed in federal and state court. Both said she had been demoted and suffered other retaliation because she had spoken out about the discharge plan of a serial sexual offender, referred to as John Doe. Defendants let her go because the agency thought Plaintiff had improperly disclosed confidential information about parolees via her personal email to counsel. But the Court does not determine whether this excuse was a lie to cover up a retaliatory motive. The Court reasons instead that plaintiff's lawsuits were not acts of free speech:

"Flynn I and II sought redress for Plaintiff’s demotion and other forms of retaliation and to secure personal relief for Plaintiff through monetary and injunctive relief. For example, in Flynn I, Plaintiff requested damages and “injunctive relief . . . including reinstatement to her Special Assignment in the Sexual Offenders’ Unit and the reinstatement of overtime compensation that comes with that position.” 

In addition, "in Flynn II, Plaintiff requested damages and numerous forms of injunctive relief, all of which were aimed at ameliorating past retaliation against Plaintiff and preventing retaliation against her in the future. Because Flynn I and II addressed Plaintiff’s personal treatment at work, rather than systemic or pervasive misconduct, we conclude that the lawsuits themselves did not constitute speech on a matter of public concern."

2d Circuit narrows Rooker-Feldman doctrine

The Rooker-Feldman doctrine may be one of the least interesting areas of federal practice. But it does highlight a unique aspect of our legal system: we have federal courts and we have state courts. Each must respect the judgment of the others so that state court losers don't file in federal court to start over again and hope for a different result. This case shows how it all works.

The case is Hunter v. McMahon, decided on July 20. Plaintiff lived in Niagara County. The Child Protective Services office successfully petitioned Family Court to remove her parental rights. Plaintiff filed an appeal in the state system. Before the appeal was decided, she then filed suit in federal court against the people who took her son away, asserting they violated her constitutional rights. 

Rooker-Feldman is a judge-made doctrine that has been refined over the years. Named after two Supreme Court cases, it generally means that state court losers cannot file suit in federal court if victory in federal court would in effect nullify the state court judgment. Since state and federal courts (for the most part) can entertain the same claims, litigants have a choice when they decide to sue someone. If you take your chances in state court and lose, the federal courts are not there for you if you think the state court was a kangaroo court. But the whole point of Rooker-Feldman is that the state court judgment is only final for purposes of this doctrine when state court proceedings have ended. That usually happens when the appeal is resolved against you.

Here, while plaintiff appealed the CPS findings to the state appellate court, her federal lawsuit did not violate Rooker-Feldman because she filed the federal action before the state appeals were decided. Rooker-Feldman has been narrowed by the Supreme Court over the years, such that some legal commentators have written obituaries for the doctrine. But the Second Circuit notes that courts still apply Rooker-Feldman in limited circumstances, and the Court notes:

In our circuit, we have articulated a four-part test according to which Rooker-Feldman applies if “(1) the federal-court plaintiff lost in state court; (2) the plaintiff complains of injuries caused by a state court judgment; (3) the plaintiff invites review and rejection of that judgment; and (4) the state judgment was rendered before the district court proceedings commenced.”

This case represents the first time the Second Circuit has decided whether Rooker-Feldman applies when a state court appeal is pending. But other courts have already addressed that issue and found that Rooker-Feldman does not apply in that circumstance. "If the rule were otherwise, it would not be possible to tell whether the plaintiff in federal court was the loser in state court. In this case, for example, two months after the district court dismissed Hunter’s complaint, a New York appellate court reversed the state-court order terminating Hunter’s parental rights."

Inmate may recover punitive damages for unlawful confinement

It looks like this guy's life fell through the cracks of the New York criminal justice system. He was convicted of a crime and went to jail, but following his sentence the Department of Correctional Services on its added five years of post-release supervision to his sentence, without a court order. While the courts later said that DOCS maneuvers like this are illegal (you need a court order for this), no one altered plaintiff's PRS schedule, which limited his liberty after he was released from jail, and he wound up back in jail after he violated the terms of the PRS. Actually, he was twice incarcerated for violating the terms of his PRS even though the PRS should not have applied to him in the first place because the courts had already held that administratively-imposed PRS is unconstitutional. He sued the state for damages relating to his loss of liberty and the trial court gave him a dollar in damages. 

The case is Aponte v. Perez, issued on July 20. The Court of Appeals has to decide if plaintiff is entitled to a jury trial on his damages claim, which would include compensatory and punitive damages. The Court finds that plaintiff can in fact recover punitive damages and that the district court got it wrong in only awarding him nominal damages but that the district court now has to decide whether subsequent case law would still entitle him to compensatory damages.

The Court of Appeals (Calabresi, Carney and Robinson) first holds that plaintiff is eligible for punitive damages, as the Court has repeatedly admonished the State of New York in prior cases for continuing to detain prisoners unconstitutionally for violating PRS terms that DOCS and not a court had imposed. The State knew this was illegal but it did so anyway. The case returns to the district court for a jury trial to determine if plaintiff can get punitive damages, which are meant to punish wrongdoers for malicious and wanton constitutional violations.

What about compensatory damages? Surely plaintiff should get something for being unlawfully sent back to jail for violating the PRS terms that should never have been imposed, correct? Not quite. The problem for plaintiff is that the State could have asked a court to re-sentence plaintiff under the constitutional procedures set out in other Second Circuit cases on this issue. Had that happened, plaintiff would have suffered the same injury that he suffered under the unconstitutional confinement. The district court on remand will have to decide whether this complex legal and factual landscape would entitle plaintiff to compensatory damages or whether he would still only recover nominal damages of one dollar. 

 

City Council may retrict political signs at public meetings

The plaintiffs showed up at a City Council meeting with signs and placards to protest the City's planned purchase of a military-style police vehicle. The front door at City Hall said they could not enter with any signs. The plaintiffs then filed a First Amendment lawsuit, claiming the signs and placards would not have disrupted the meeting. The Court of Appeals said there is no First Amendment violation.

The case is Tyler v. City of Kingston, issued on July 18. I represented the plaintiffs in this case and argued the appeal. Unlike parks and sidewalks, which are full public forums, City Council meetings are limited public forums, which means the government can restrict the content of your speech if the restrictions are reasonable. What is "reasonable" under the First Amendment? The cases hold that reasonableness in this context does not equate to the kind of deference that courts afford to the government in other contexts, such as the rational basis test under the Equal Protection Clause. At least that's what I thought the cases held. Plaintiffs argued that, in the Rule 12 context, it is too early to credit the City's defense that the signs might disrupt the meetings, as there was no evidence that plaintiffs intended to interfere with the City's business.

The Court of Appeals holds, in its first case involving the prohibition of signs at public meetings, that the City Council is able to restrict signs because it has authority to regulate how public speech is delivered. That means the Council can have public comment sessions but prohibit quiet signage. While the signs may relate to matters on that meeting's agenda, the Court of Appeals holds, the signs may "still undermine the purpose for which the forum is created." Meaningful discourse at the public meetings may be undermined when constituents are holding signs. 

What about the reasonableness element of the limited public forum analysis" The Court says the sign restriction is reasonable because it will prevent any possibility that the signs and placards might turn the meetings into a picketing session. While the Complaint alleges plaintiffs had no intention of causing any such disruption, the Court says that "the reasonableness of a restriction may also be determined with reference to the disruption or distraction that would result if all groups like the group at issue sought access." Under what the Court deems a "common sense" approach to this issue, "preventing disruptive activity is a legitimate and common-sense government interest taht can justify restrictions on speech in limited public fora."

Court of Appeals affirms $500,000 punitive damages award in inmate beating case

This case yielded a large jury verdict in favor of an inmate who claims he was beaten up by correction officers. After the jury awarded plaintiff $950,000 in punitive damages, the trial court reduced it to $500,000. The officers appealed, raising a host of issues, all of which the Court of Appeals rejects. The verdict stands and the inmate will recover $500,000.

The case is Magalios v. Peralta, a summary order issued on July 19. The jury also awarded $50,000 in pain and suffering, but that amount is not challenged on appeal. 

Once the jury reaches a verdict, the losing side usually files post-trial motions and then an appeal hoping to throw out the whole verdict or at least reduce the damages. That is why these cases sometimes go on for years after the jury goes home, unaware that the case is still active on the docket. There are many ways to challenge a verdict, including attacking the trial court's evidentiary rulings. That was the strategy here, though federal practitioners know that trial judges are afforded much deference in their evidentiary rulings.

The trial court in this case noted that "this was one of the strongest cases for excessive force I have seen in my years on the bench." The trial court also said that "some of Defendants' testimony was laughable." She also said that "'reprehensible' may not be a strong enough word to describe Defendants' conduct here. They have disgraced themselves and their office, and such conduct seems to be all to acceptable among certain employees of New York's prison system." The trial court further said the jury was "plainly disgusted by Defendants' conduct, and they would likely be equally disgusted if they learned that Defendants were to suffer no professional or financial repercussions from their actions and that the taxpayers of New York State were instead going to satisfy Plaintiff's judgment." And, she said, "I cannot think of a more effective tool for deterring future misconduct than a correction officer, who has been found to have engaged in wanton or malicious violation of constitutional rights, having is wages garnished or losing his savings or real property."

One evidentiary argument was that the trial court did not allow defendants to tell the jury that plaintiff had a prior felony conviction for promoting prison contraband. Defendants probably thought this evidence would turn the jury away from plaintiff's claims. But the district court held, and the Second Circuit agrees, that this evidence would only confuse the jury and suggest that Defendants actually knew about the prior felony and that this knowledge motivated their assault against plaintiff. Besides, the jury knew about plaintiff's other felony convictions, and cases hold that "once credibility is impeached by a prior felony conviction, the incremental probative force of a second conviction is minimal." Defendants also wanted the jury to know that plaintiff's witness, Hall, had a manslaughter conviction. But the trial court said, and the Court of Appeals agrees, that introducing this evidence at trial would be far more prejudicial than relevant.

We have other evidentiary rulings. Plaintiff's then-wife, Tibaldi, testified in deposition that plaintiff had called after after the officers had assaulted him. That testimony would support plaintiff's claim. But she was going to testify at trial that this deposition testimony was not true and that plaintiff was fabricating his allegations. This revised testimony would help the officers at trial, but the trial court warned Tribaldi that such testimony might lead to a perjury charge against her. After that happened, Tribaldi decided not to testify because "she is scared for her safety." The trial court's legal advice to Tribaldi did not deny defendants a fair trial because the warning discouraged her from testifying. But the Court of Appeals (Chin, Carney and Lee) holds that the trial court did not abuse its discretion in saying this to Tribaldi, and besides, Tribaldi did not change her mind about testifying over fear of a possible perjury charge but because she was afraid for her safety. That's two different things, the Court of Appeals notes. 

Plaintiff raised an issue on appeal on his own: that the $950,000 punitive damages award should not have been reduced to $500,000. But the Court of Appeals holds that the trial court did nothing wrong because it (1) found the force used against plaintiff was reprehensible even as it held (2) the damages were too high based on similar cases that awarded less money than the jury awarded in this case.

Plaintiff may win retaliation claim against New York City Housing Authority

This plaintiff was fired from the New York City Housing Authority after she complained about sex and race discrimination. The case was dismissed on summary judgment. The Court of Appeals reverses and this case will go to trial along with the sexual and racial harassment claims that the Court of Appeals also revived, as discussed here.

The case is Zeng v. New York City Housing Authority, a summary order issued on July 17. I do not see too many Second Circuit rulings that find the plaintiff may prevail on her claim that the employer's articulated reason for her termination was a pretext for discrimination. Here, while NYCHA says plaintiff was fired for poor performance, the record shows that (1) plaintiff was threatened with termination after she misplaced her keys, but other employees who did the same were not similarly threatened, (2) supervisor Ramos and other employees made racist and sexist comments toward plaintiff when she requested not to work overtime on Christmas to facilitate a child custody visit, but another supervisor did nothing about this when she complained, (3) a few days later she got negative memoranda  about her work from these two hostile supervisors, (4) after plaintiff was transferred to the Smith Houses following her discrimination complaint, plaintiff overheard her prior supervisor make "racist and sexist" comments about plaintiff in speaking with her new supervisor, Medina, (5) when plaintiff asked to miss work because of menstrual pains, Medina disparaged her, (6) three supervisors had given her false disciplinary memoranda; (7) shortly thereafter, another supervisor, Bellini, recommended plaintiff's termination in part due to the negative memos in her file, and (8) plaintiff was quickly placed on unpaid leave and then fired.

While the Housing Authority argued that plaintiff cannot rely on any discrimination that took place at the housing projects (where she had been transferred) in order to show her termination was unlawful, the Court of Appeals (Sack, Bianco and Lee) notes that one reason for her termination was the prior negative memos that were drafted by a supervisor who had used racist and sexist epithets against her. So we have a "cat's paw" theory of liability: we can impute a discriminatory motive to a decisionmaker when such animus is proximately caused by the animus of another supervisor or subordinate. While the decisionmaker who made the termination request may not have had any discriminatory animus, the jury could find in plaintiff's favor on the basis that the recommendation to terminate was tainted by racist and sexist bias from plaintiff's other supervisors. 

The district court also said plaintiff cannot prove a causal connection between her protected activity and termination, since she first complained about discrimination in December 2016 or January 2017 and the formal date of her termination was May 12, 2017, at least five months later. But there is no "bright-line" rule to prove causation, and cases hold that four months is not too remote. What is more, that five-month gap is too long under the analysis because plaintiff's termination was recommended in February 2017, only weeks after she had complained. Looking at things from that angle, the timeline is shorter. The fact that plaintiff's formal termination did not take place for a few months does not undermine her retaliation claim as a matter of law. Plus, plaintiff's prior discriminatory supervisors expressly tried to get her fired, urging supervisor Medina to "give her a Memo" and "kick her out."

Court of Appeals finds plaintiff can win hostile work environment case

This hostile work environment case was dismissed on the employer's motion for summary judgment. The Court of Appeals says the plaintiff was subjected to enough obnoxious, sexist, and racist comments that she can prevail at trial.

The case is Zeng v. New York City Housing Authority, a summary order issued on July 17. Oral argument took place in January 2023, so this lengthy (16 pages) summary order took some time for the Court of Appeals to issue its ruling. In addition, to finding that plaintiff has a hostile work environment claim, it finds she can win her retaliation claim. This blog post will focus on the racial/sexual harassment component.

Plaintiff's claims stem from harassment at three different locations. At the LaGuardia Houses, she was the only Asian employee. Her supervisor sent her to work in a particularly dangerous building without any safety backup. A building resident cornered and sexually assaulted plaintiff, and the NYCHA did not investigate that incident or transfer plaintiff to another location. Instead, she still had to work alone at this location, unlike male and non-Asian coworkers. She had to work without a coat for long hours during a cold November and was denied time off to attend court appearances to renew an order of protection against her abusive ex-boyfriend, and she was threatened with termination if she attended the hearing. 

After plaintiff was ultimately transferred to Issac Houses, on multiple occasions, her new male supervisor, Elliot Ramos, “kicked the unlockable women’s bathroom door open and walked in while [she] was using the bathroom,” asking whether she was sleeping or taking a break. In addition, for the majority of her placement at Isaacs Houses, plaintiff did not receive a physical schedule setting forth her responsibilities on a weekly basis, even though her non-Asian co-workers received such a schedule, and in December 2016, while sitting with her co-workers and her supervisor, Ramos, she told them that she would not work on Christmas Day because she had to facilitate a visitation with her son’s father. Everyone responded by laughing and shouting racist and sexist comments, such as “f**king Asian,” “f**king yellow Asian,” “f**king stupid b***h,” and “f**k her son.”

After complaining about her mistreatment at Issac Houses, plaintiff was transferred to Smith Houses, where she overheard her prior supervisor, in speaking with her new supervisor, say, “F**k the B***h! Do not transfer her! I’m her boss. She must be [at Isaacs Houses]! Give her a Memo. Kick her out. Stupid Yellow B***h!” One of plaintiff's co-workers from Isaacs Houses, who had cursed and laughed at her and said “F**k Asians” whenever she saw Plaintiff, also had been re-assigned to Smith Houses. When this coworker learned of plaintiff's transfer, she called some of plaintiff's coworkers at Smith Houses who subsequently, on many occasions, shouted insulting words to plaintiff in the women’s restroom.

How was summary judgment granted in this case? I ask that question rhetorically. This evidence permits a jury verdict in plaintiff's favor, and the Court of Appeals (Bianco, Sack and Lee) reverses the grant of summary judgment in favor of the Housing Authority. The Second Circuit notes that the district court resolved a series of disputed fact issues in finding that some of plaintiff's claims lacked credibility. For instance, the trial court said it would have been impossible for plaintiff to endure harassment from coworkers and supervisors if she also testified that she was working alone, but the Court of Appeals notes that working alone does not mean she did have occasion to interact with other NYCHA workers. This case will therefore go to trial.

School district did not violate First Amendment in banning protester from athletic events

Do you know how hard it is to overturn a jury verdict following trial? The standard of review on appeal is that we assume the jury drew all factual inferences in favor of the winning party and determine whether those facts were enough for them to win the case. Appellate courts don't like to second-guess the jury, which is why many of these appeals fail.

The case is Frierson v. Troy City School District, a summary order issued on July 11. Plaintiff brought this First Amendment and right of assembly case after he was banned from attending athletic events at Troy City High School. The district argued that it legitimately banned plaintiff and did not do so to censor him. While plaintiff said he was banned from the athletic events because he tried to organize a protest against the coaching staff and tried to encourage the students from walking off basketball court, the jury ruled in favor of the school district. 

Public spaces are not always free speech zones. The courts give each public space a different category. Parks and sidewalks are public forums, where most speech is allowed and anything goes. School property is treated as a limited public forum, where speech can be limited if the ban is reasonable and viewpoint neutral. Since the school property here was a limited public form, the district only had to show that the decision to bar plaintiff from the athletic events was reasonable and viewpoint neutral.

Here is how the Court of Appeals (Lohier, Menashi and Robinson) views the evidence:

a reasonable jury could have found that the decision to ban Frierson from the high school’s athletic events was both reasonable and viewpoint neutral. 

The trial evidence established that on January 9, 2017, Frierson, without permission or authorization, entered the high school after hours through a locked side door, waited outside of the girls’ locker room for students on the varsity girls basketball team to finish practice, gathered several of those students in the cafeteria to discuss concerns about their coach and a potential boycott of an upcoming game, and hugged at least one student who was not his daughter. 

There was additional trial evidence that Frierson’s conduct violated the school district’s safety procedures and visitor policies, as well as the Code of Conduct for student athletes and their parents. In addition, Reinish and Carmello testified that their decision to ban Frierson was based on his conduct on January 9, 2017, not his statements or views about the team’s coach.

It took a long time for the Court of Appeals to resolve this appeal. Maybe the court went through the trial transcript carefully to make sure the jury got it right. In the end, the Court determines that the jury had a basis to believe the school district and not plaintiff. That ends the case.

Police shooting case fails on qualified immunity grounds

Here are the facts in this police misconduct case: a driver was fleeing the police in a high-speed chase in New York City. When the driver stopped his car, he ignored police directives to exit the car and instead rammed his car into another vehicle that was occupied by a woman and her 2 year old child, causing that car to crash into another vehicle. The police then shot the driver, killing him. The driver's estate brings a wrongful death case, arguing there was no reason to shoot the driver since the police were surrounding his vehicle and he was no threat to anyone. Can the driver's estate bring a lawsuit?

The case is Martinez v. Hasper, a summary order issued on July 10. The estate cannot bring a case because qualified immunity protects the officer who fired the shot. This immunity attaches when the law was not clearly established at the time of the incident. 

To avoid qualified immunity, it is not enough to argue that the Fourth Amendment prohibits the shooting death of someone who poses no risk to anyone. You have to argue that prior cases make it clear that your facts give rise to a case. That is not easy to do. The estate has to show that shooting a fleeing motorist endeavoring to evade capture during a car chase that endangered officers and pedestrians nearby amounted to excessive force. The immunity inquiry is that narrow in these cases. 

Framing the issue that way, the Second Circuit grants the defendant officer qualified immunity because there is no precedential case quite like this one on the books. The Supreme Court has said that it has never "found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone to be a basis for denying qualified immunity." Prevailing law in the Second Circuit also supports immunity. While the estate's lawyers cite cases showing that the police cannot shoot someone whom they could have apprehended without the use of deadly force, those cases are not like this one, where the decedent "had no ability to stop Ortiz from trying, once again, to ram his way through traffice and drive away from pursuing police officers."

One added point: the police department guidelines "prohibit[] officers from firing at 'moving vehicle[s] unless deadly physical force is being used against [a] member of the service or another person present, by means other than a moving vehicle.'” The Court of Appeals says this language, while well-intentioned and possibly even wise in New York City, a heavily-populated area, it does not defeat qualified immunity. "While police policies are relevant to the Fourth Amendment inquiry, they do not define what is reasonable under the Fourth Amendment."

  

Supreme Court makes it easier to win religious accommodation cases

The Supreme Court has made it easier for plaintiffs to win their religious accommodation cases when their employers reject an accommodation on the basis that it would pose an "undue burden" on the company. This ruling substantially changes the legal landscape for these cases.

The case is Groff v. DeJoy, issued on June 29. The plaintiff worked for the Post Office and wanted to take off on Sunday for religious observance. He received progressive discipline for not working on Sundays, and he sued the Post Office. Groff lost the case because allowing him to not work on Sunday imposed upon his coworkers, disrupted the workplace and workflow, and diminished employee morale. 

Under Title VII of the Civil Rights Act of 1964, an employee can ask management to accommodate her religious practices by, for example, changing the schedule or implementing some other change in the workplace so long as that accommodation does not eliminate an essential job function. In 1977, the Supreme Court said in TWA v. Hardison, 432 U.S. 63 (1977), that a proposed accommodation is not an undue hardship if the employer would have to bear "more than a de minimus cost." That language is not the most precise legal standard, but that's been the law for nearly 50 years, and lower courts have latched upon that standard in ruling against plaintiffs for decades, even when they seek minor accommodations. The graveyard is filled with cases that lost on the de minimus language under Hardison. This case provides clarity.

Without expressly overruling Hardison, the Court unanimously rules that Hardison cannot be reduced to that imprecise phrase. "Hardship" means something more severe than a mere burden. It means something "hard to bear." And the statute requires an undue hardship, not a mere hardship. So the de minimus test is not faithful to Title VII's protections against religious discrimination. 

The Court says that the real test is whether the employee's proposed religious accommodation would impose "substantial additional costs" on the employer. This test must be applied in the context of whatever business or governmental office is defending the case. We should also consider the practical impact that the religious accommodation would have on the business. The cost for one business may be substantial while the cost may be minor for another business. The Court adds that the EEOC's guidance on these issues, including that no undue hardship is imposed by temporary costs, voluntary shift-swapping, or administrative costs, is probably still useful.

Justice Sotomayor's concurring opinion agrees that the Hardison test needed to be re-examined, and that in considering whether a proposed religious accommodation might pose and undue hardship on the conduct of an employer's business, we can consider the impact the accommodation would have on the business's employees. 

We knew the Supreme Court was going to re-evaluate the Hardison test. Some of the justices over the years have said the Court should take another look at Hardison because it was not sufficiently favorable to the religious employees. The conservative majority has been quite receptive to religious discrimination claims in recent years. The liberal justices, meanwhile, recognize that this new standard is sufficiently pro-plaintiff to join in Justice Alito's analysis for the Court as a whole. Groff's case returns to the lower courts to apply this revised legal standard. 

The Court, as usual, relies on dictionary definitions to determine what "hardship" means, and I must say the Court must have the best dictionary collection in America, as it frequently resorts to dictionary definitions to decipher statutes that do not always provide the guidance that everyone needs to apply it to real-life factual disputes. 

What the Supreme Court did in the gay rights/public accommodation case

The Supreme Court last week said that a website designer may turn away same-sex couples over her belief that marriages are only for unions between a man and a woman. The Court's rationale is that the website designer has a free speech right to reject the State of Colorado's compelled speech that she disagrees with.

The case is 303 Creative LLC v. Elemis, issued on June 30. Colorado law says that no business that serves as a public accommodation, such as plaintiff's website business, may turn away customers because of race, gender, sexual orientation, and other protected classes. So we have a battle between Colorado's policy against discriminating against LGBT customers and the designer's free speech right to avoid compelled speech. In this case, the compelled speech would be her endorsement of same-sex marriages in preparing a celebratory website for the marriage.

The Court rules in favor of the website designer by a 6-3 vote along the usual partisan lines. The justices who were appointed by Republican presidents sided with the designer. The Democratic appointees ruled in favor the same-sex couples who may want to use the designer's website services.

Writing for the majority, Justice Gorsuch notes that the Court has long prohibited the government from forcing people to articulate speech they disagree with, most notably in the pledge of allegiance case from the 1940s, when religious objectors were able to sit down to avoid reciting the pledge. The Court has even allowed people to speak their mind on offensive or socially unacceptable speech. This case is no different, Gorsuch says, because enforcing Colorado's public accommodation law against the website designer would force her to promote a marriage that she does not believe in. Moreover, the majority says, the website designer is engaging in an act of speech in creating a customized personalized website for married couples, which implicates the First Amendment. While the majority recognizes that Colorado has passed a law that prohibits public accommodations (including restaurants, hotels, etc.) from refusing to service the LBGT community, "no public accommodations law is immune from the demands of the Constitution."

Justice Sotomayor writes the three-justice dissent, proving the majority and dissenting justices see this issue very differently, and there is more than one way to analyze a constitutional case. 

Sotomayor opens by stating this is the first time the Court has "grant[ed] a business open to the public a constitutional right to refuse to serve members of a protected class," in this instance a gay couple. She adds that the website designer is engaging in conduct, not speech, so under Supreme Court precedent her expressive rights are diminished. Sotomayor writes that if a business holds itself out as serving the public, that "duty to serve without unjust discrimination is owed to everyone." In support of this principle, she cites cases from the 1960s, when the Supreme Court upheld the federal reasonable accommodation laws against challenges by racist business owners who did not want to service Black customers. One case, from the 1970s, said that "the Constitution places no value on discrimination." A case from the 1980s says that "invidious private discrimination . . . has never been accorded affirmative constitutional protections."

Here is what the Supreme Court did in the affirmative action case

The Supreme Court has held that public and private colleges may not take an applicant's race into account in making admissions decisions. This ruling overturns prior cases that held colleges may do so in the interests of maintaining a racially-diverse student body. 

The case is Students for Fair Admissions v. Harvard College, issued on June 29. The case involves Harvard and the University of North Carolina, which have multi-faceted admissions processes that take a variety of factors into account, including grades, leadership, geography, legacy admissions, extracurricular activities, athletics, and race/ethnicity, among other factors. In 1978, 2003 and 2013, the Court held that colleges may include race as a factor to advance racial diversity in the student body. In all likelihood, those cases are now overruled, as the legal reasoning in this case makes it almost impossible for universities to satisfy the stringent legal test applied by the Court.

The 6-3 majority rules that the Equal Protection Clause and Title VI of the Civil Rights Act prohibit the use of race in making admissions decisions unless the colleges can advance a compelling interest in doing so and that its method is the most narrowly-tailored means to do so. The compelling interest test has a long pedigree in Supreme Court jurisprudence, allowing for some race-based decisionmaking in rare instances. But most cases fail under the compelling interest test. While the Equal Protection Clause and Title VI do not make reference to the compelling interest test, the Supreme Court created it decades ago as a means to apply these constitutional and statutory provisions.

For the Chief Justice, writing on behalf of the six Republican-appointed justices, the colleges lose the case because their articulated goals in considering race in the admissions process is not measurable. These goals include training future leaders, preparing graduates for a pluralistic society, improving the educational experience through diversity and the different perspectives that come with diversity, and breaking down racial stereotypes. Since these goals cannot be measured, Chief Justice Roberts says, the admissions process cannot survive what we call "strict scrutiny" as they cannot be proven to be narrowly tailored to satisfy the college's goals. Nor can the colleges show a meaningful connection between their means and goals. The majority also suggests such an admissions process may stereotype applicants in the believe that a Black applicant always brings a unique perspective to the table. The Court will not take the colleges' word for it that the admissions process will yield the results they articulate. 

The dissenting opinions are scathing. Justice Sotomayor notes that the Equal Protection Clause was adopted following the Civil War in a manner that favored Black Americans who needed certain benefits in the post-slavery period and that the Equal Protection Clause does not therefore require strict racial-neutrality. She notes that American society has a long way to go before the races are treated equally, and that race-conscious admissions have benefited traditionally underrepresented groups. Sotomayor further notes that colleges have a compelling interest in student diversity and that, unlike this case, the Court in the past, in other legal contexts, has upheld other goals that were not easily measurable. She argues that the Court can easily measure the colleges' goals in this case. She further analyzes the admissions policy to show that even under the Harvard and UNC programs, white applicants still have the advantage (particularly with legacy admissions) and after full discovery and a trial in the lower courts in this case, no one has proven that any underrepresented racial minority was ever admitted to these colleges on the basis of race alone. 

Justice Jackson, the only Black woman on the Court, runs through the policy reasons why colleges should be able to consider race in making admissions decisions, citing studies and statistics that Black Americans are still lagging behind economically and on other societal indicators that are no fault of their own. 

The dissenting justices have not held back in their critique of the majority's analysis. They also show how legal issues like this can be decided differently depending on who sits on the Court and how they interpret prior Supreme Court rulings. 

Justice Sotomayor notes that while Justice Thomas, in his concurrence, said that the use of race in making holistic admissions decisions hurts the minority beneficiaries of these programs because they are less academically prepared than white and Asian students with whom they compete, "Justice Thomas speaks only for himself." She also says the research that Thomas relies upon to make this point has been debunked, and that research now shows that these policies result in higher graduation rates and higher earnings, and that the "mismatch" theory (that underperforming racial minorities will wind up at universities where they cannot compete) is no longer legitimate. And then the kicker: "The three Justices of color on this Court [Sotomayor, Thomas and Jackson] graduated from elite universities and law schools with race-conscious admissions programs, and achieved successful legal careers, despite having different educational backgrounds than their peers."