United States Supreme Court Reverses and Remands Case of Alleged Racial Bias

–by Taylor J. Hoy

Citation: Pena Rodriguez v. Colorado, 580 U.S. ____ (2017); Pena-Rodriguez v. People, 350 P.3d 287 (Colo. 2015).

Abstract: Pena-Rodriguez examines Colorado’s interpretation of Colorado Rule of Evidence (“CRE”) 606(b) as it applies to affidavits that claim jurors made racially biased statements during deliberations.

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During trial, the jury found petitioner, Miguel Angel Pena-Rodriguez guilty on one count of sexual contact without consent and two counts of harassment. Two weeks following the conviction, two jurors informed petitioner’s counsel that “some of the other jurors expressed a bias towards [Petitioner] and the alibi witness because they were Hispanic.” In a motion for a new trial, Petitioner submitted affidavits from two jurors, M.M. and L.T., alleging that juror H.C. made several racially biased statements during deliberations. Ultimately, the trial court denied petitioner’s motion based on the contention that CRE 606(b) barred further inquiry into juror members’ bias during deliberations.

After receiving affirmation from both the Colorado State Court of Appeals and the Supreme Court of Colorado, the Supreme Court of the United States granted a petition for writ of certiorari in the matter.

In its decision on March 6, 2017, the Court focused on whether CRE 606(b) may bar evidence of racial bias to prove a violation of the Sixth Amendment right to an impartial jury. The majority held that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” The no-impeachment rule assures “jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations.” The Court said that trial courts must find a “showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict.” Furthermore, to succeed, statements must show that the “racial animus was a significant motivating factor in the juror’s vote to convict.” Here, the statements made by juror H.C. were “egregious and unmistakable in their reliance on racial bias.”

Justice Kennedy, writing on behalf of the majority, focused the opinion on the importance of the jury as the central foundation of our justice system and democracy and the right to a fair and impartial jury. In ordering the decision, he highlighted the importance of confronting egregious cases, amplifying the need to make strides to overcome race-based discrimination as a nation and mature as a legal system, and understanding and implementing lessons of history.

Justice Thomas and Justice Alito wrote separate dissents. Justice Thomas dissented because the Court’s decision is incompatible with the text of the Amendment and the decision to curtail or abandon the no-impeachment rule should be left to the political process. Justice Alito’s dissent, also signed by Chief Justice Roberts and Justice Thomas, argued that the Court’s decision is well-intentioned, but feared that it would be difficult to limit the Court’s ruling. “Although the Court tries to limit the degree of intrusion, it is doubtful that there are principled grounds for preventing the expansion of today’s holding.”

U.S. Supreme Court Vacates Transgender Rights Case

–by Joseph Railey

Citations: Gloucester Cty. Sch. Bd. v. G.G., 2017 WL 855755 (U.S. 2017); Chevron USA v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984); Auer v. Robbins, 519 U.S. 452 (1997); G.G. v. Gloucester Cty. Sch. Bd., 822 F.3d 709 (4th Cir. 2016); U.S. Dep’t of Educ. & U.S. Dep’t of Just., Dear Colleague Letter on Transgender Students (May 13, 2016), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf; Gavin Grimm, Gavin Grimm: The Fight for Transgender Rights is Bigger than Me, N.Y. Times (March 7, 2017), https://www.nytimes.com/2017/03/07/opinion/gavin-grimm-the-fight-for-transgender-rights-is-bigger-than-me.html?_r=0.

 

Abstract: A transgender male in Virginia sued his high school for denying him access to the facilities that correspond to his gender identity. The Fourth Circuit ruled that the transgender student should be granted access to the men’s restroom. On March 6, 2017, the U.S. Supreme Court vacated and remanded the case.

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On March 6, 2017, the Supreme Court vacated and remanded Gloucester County School Board. v. G.G. to the Fourth Circuit. Gloucester County deals with the rights of transgender students in public schools to use the restroom facilities that correspond to their gender identity.

In May 2016, The Departments of Education and Justice issued a joint memorandum to all public schools. That memo directed schools to treat a student’s gender identity (the way the student sees and identifies him or herself) as the student’s sex for Title IX purpose. Thus, under the guidance, a school must allow a transgender male to use a men’s restroom and a transgender female to use a women’s restroom.

Based on this guidance, Gavin Grimm, a transgender male high school student in Gloucester County, Virginia who was born female but identifies as male, was allowed to use the men’s restroom in his high school. Subsequently, a number of parents in the community successfully petitioned the school board to require Grimm to use unisex bathrooms. Grimm sued his school alleging that the school board’s decision violated both Title IX and his constitutional right to equal protection. The District Court dismissed Grimm’s complaint.

On appeal, the Fourth Circuit reversed the District Court and vacated the denial of a preliminary injunction (to allow Grimm access to the men’s restroom while the suit proceeded). In reaching this conclusion, the Fourth Circuit relied on: (1) a jointly issued May 2016 Department of Education and Department of Justice memo; (2) U.S. Supreme Court precedent in Chevron U.S.A. v. Natural Resources Defense Council, Inc. and Auer v. Robbins; and (3) the ambiguity in Title IX as to the meaning of “sex.”

The 2016 memo unequivocally stated that for purposes of Title IX a student’s gender identity was treated as their sex. The court felt this interpretation was reasonable, and determined that deference should be given to the memo in deciding the case. Based on that deference, the court held that it was impermissible to deny Grimm access to the men’s restroom because of his status as a transgender male.

The court also determined that Chevron and Auer controlled. Chevron provides that courts should defer to administrative agencies such as the Department of Justice and Department of Education. “Auer requires that an agency’s interpretation of its own ambiguous regulation be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute.”

As the memo provided an interpretation from an agency tasked with enforcing an ambiguous Title IX statute, the Court held that because Grimm identified as a male, he had a right to use the men’s restroom.

In October 2016, the U.S. Supreme Court granted certiorari in Grimm’s case and scheduled it for arguments at the end of March 2017. Upon taking office, President Trump, U.S. Attorney General Jeff Sessions, and U.S. Secretary of Education Betsy DeVos issued a guidance document that rescinded the 2016 memo on transgender students. The Court then rescinded certiorari stating, “[t]he judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.”  As such, the case has now been sent back to the Fourth Circuit for further action.

Georgia Court of Appeals Reverses Trial Court Denial of Transgender Name Change

–by Joseph Railey

Citations: In re Feldhaus, __S.E.2d__ , 2017 WL 253649 (Ga. Ct. App. 2017)

Abstract: The Georgia Court of Appeals reversed a denial of two name change petitions from Columbia County Superior Court. Petitioners in both cases were transgender males who sought to change their names to reflect their gender identity. The trial court noted that doing so would be a fraud against the state and would “offend the sensibilities and mores of . . . the citizens of the state.” Finding that there was an abuse of discretion, the Court of Appeals unanimously reversed the trial court and granted the name changes.

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Two transgender males, Rowan Elijah Feldhaus and Andrew Norman Baumert each appealed a decision from the same trial court judge who denied their request to change their legal names. As transgender males, both Mr. Feldhaus and Mr. Baumert were determined to be female at birth, however, each identifies as a male. Both individuals sought to change their name to reflect their gender identity.

Under Georgia state law, any individual may change a name by “present[ing] a petition to the superior court of the county of his residence, setting forth fully and particularly the reasons why the change is asked, which petition shall be verified by the petitioner.” Both Mr. Feldhaus and Mr. Baumert complied with this standard when they filed their respective petitions in Columbia County. At their hearing, each petitioner was unopposed in their request to change their name.

Despite the clear statute and unopposed petitions, the superior court rejected both petitions. The court noted that a transgender individual’s desire to change their name from a name that is associated with their sex assigned at birth to one associated with their gender identity “presents problems for the person and the general public.” The court continued that “his or her assumed name could ‘confuse and mislead’ . . . emergency personnel, actuaries, insurance underwriters, and other businesses and relationships where the sex of an individual is relevant.” The court allowed both petitioners to change their name to a “gender neutral” name but determined that “Rowan Elijah” and “Andrew Norman” as traditionally masculine names could confuse and mislead the public. The court concluded each hearing by noting that “[n]ame changes which allow a person to assume the role of a person of the opposite sex are, in effect, a type of fraud on the general public” and that these changes “offend the sensibilities and mores of a substantial portion of the citizens of [Georgia].” Based on these reasons, the court denied both petitioners’ valid petitions to change their name.

On appeal, the Court of Appeals (the intermediate appellate court in Georgia) noted that the proper standard of review for a petition to change a name is “the exercise of a sound legal discretion.” Therefore, absent an abuse of discretion, the court cannot disturb the decision. Noting that neither petitioner’s application was opposed (in fact both Mr. Feldhaus and Mr. Baumert presented evidence in support of their desired name change) and neither was seeking to commit a fraud against the state, the court determined that there was an abuse of discretion.

In the past, the court denied name change petitions when there was evidence that the petitioner sought to change their name in order to commit a fraud, embarrass another, seek to escape some negative history, or otherwise display an improper motive. As an example, the court cited In re Mullinix, 152 Ga. App. 215 (1979), where the court reversed a trial court order preventing a married woman to restore her maiden name as the trial court felt that the name change might “confuse and embarrass” the mother’s child. Here, the court examined this same “confuse or embarrass” standard by determining that the standard was not a proper basis for the trial court to deny a name change. While Mr. Baumert and Mr. Feldhaus each raised constitutionality arguments in their appeal, the court did not consider these arguments as the court held that the trial court abused its discretion.

Absent any evidence of fraud or improper motive, and as each petitioner lived their lives as males, the Court of Appeals unanimously reversed the trial court and ordered that the petitions to change names be granted.

The NFL’s New Application of the Rooney Rule

— by Ben Cranston

Abstract:

If the statistical evidence of success of the NFL’s “Rooney Rule” is any indicator of future increased diversity, we will be seeing significantly more female executives working for NFL franchises in the coming years. The NFL has recently decided to apply the Rooney Rule to open executive-staff positions, requiring teams to interview at least one female candidate for the position. While this new implementation of the rule will likely draw criticism from various sources, challenges to the rule will likely fail in an increasingly open and diverse sports industry.

Articles used:

Brian W. Collins, Note, Tackling Unconscious Bias in Hiring Practices: The Plight of the Rooney Rule, 82 N.Y.U. L. Rev. 870 (2007).

Jane McManus, Rodger Goodell: Women Will Interview for Open Executive Jobs, ESPN (Feb. 4, 2016), http://espn.go.com/espnw/news-commentary/article/14714784/roger-goodell-says-nfl-establish-rooney-rule-women-executive-positions.

 

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On Thursday, February 4, the NFL announced that they will be applying the “Rooney Rule” to female candidates for open executive-staff positions. The NFL’s Rooney Rule was first applied in 2002 to require NFL teams to interview at least one minority candidate for any open coaching position in response to the small percentage of minority head coaches in the NFL. In the wake of the Arizona Cardinals’ hiring of Jen Welter as an assistant coach, making her the first woman to hold a coaching position in the NFL, and the Bills’ hiring of Kathryn Smith as the first full-time female coach, the NFL intends to further the goal of making coaching and executive staffs not only racially diverse, but diverse across gender lines with the new application of the Rooney Rule.

Many authors have explored the nature of the Rooney Rule and why its implementation has been a great success in the NFL, even though it has faced many forms of criticism in its early stages. Brian Collins of NYU, in his article Tackling Unconscious Bias in Hiring Practices: The Plight of the Rooney Rule, argues that the Rooney rule “travers[es] the line between ‘soft’ and ‘hard’ variants of affirmative action.” He argues that the Rooney Rule is an effective policy to avoid the unconscious bias involved in the hiring practices of the NFL. His article explores the legality of the Rooney Rule and how it may be susceptible to attack on the grounds of reverse racism. The article has particular relevance now, as the Rooney Rule could possibly be attacked again in the wake of its new application to female executive candidates.

In the wake of the Griggs v. Duke Power Company Supreme Court decision, many private employers began implementing affirmative action hiring programs as to avoid liability under Title VII. However, many professional sports leagues implemented “soft” affirmative action techniques, like recruiting and outreach practices, rather than “hard” affirmative action techniques, like quotas and numerical requirements. While leagues like the NBA have been significantly more successful in creating diverse coaching staffs throughout the league by using “soft” techniques, the NFL trailed other professional sports leagues before the implementation of the “hard” Rooney Rule.

While Collins does argue that the Rooney Rule is susceptible to attack under title VII in a reverse discrimination claim by a Caucasian coach who is denied a job, he argues that with some slight changes to the rule, it would be very difficult for that challenger to succeed. The worries about the rule’s applicability and ability to survive a challenge are now even more topical with the application of the Rooney Rule to female candidates. The NFL should be, and is likely, aware of criticism and a possible challenge to the rule now that it has a broader scope. However, the NFL can easily point to the statistics that show a significant increase in minority coaches since 2002 as an indication of the success of the Rooney Rule.

The new application of the Rooney Rule in the NFL will likely draw criticism from many critics of affirmative action practices. However, if the post-Rooney statistical data involving racial diversity in the NFL coaching staffs is any indicator of future gender diversity in executive positions, it will be hard for critics to argue that this rule does not work and does not create more diversity. While the NFL should be prepared for potential attacks on the rule, it is unlikely that such an attack will be successful, nor will an attack find much support in an increasingly open and diverse industry.

 

Muslim Organization Lacked Standing in Gun Store Battle

— by Nick Dwyer

Case: 

CAIR Florida, Inc. v. Teotwawki Investments, LLC, No. 15-cv-61541, 2015 WL 4571442 (S.D. Fla. Nov. 24, 2015).

 

Abstract: After a gun store owner made remarks that his store would not serve Muslim terrorists, a rightly outraged Muslim Organization challenged the store on civil rights grounds. Unfortunately, the United States District Court for the Southern District of Florida found that the organization lacked standing and dismissed the complaint.

 

In the aftermath of the incident at the recruitment center in Chattanooga, Tennessee, the owner of Florida Gun Supply declared that his store would be a “Muslim Free Zone.” This message was posted on the owner’s YouTube page and subsequently replayed on national television. The store not only exhibits and sells firearms, but also hosts gun safety and shooting classes on its ranges. The owner’s desire to prevent future terrorists from acquiring weapons apparently prompted his remarks.

The Council on American-Islamic Relations (“CAIR”) filed a complaint challenging the store. They alleged religious discrimination in violation of the Civil Rights Act of 1964. CAIR is a non-profit organization formed after 9/11 that seeks to change the stereotypes of Muslims and defend civil liberties. In their complaint, CAIR alleged that the defendant singled out Muslims, threatened and intimidated CAIR and its members, and discriminated against them. Their complaint then concluded that the organization and its constituents were injured and continued to be injured.

The defendant gun store submitted a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b). While the motion also involved issues of what a “public accommodation” is and whether the first amendment protected the store owner’s speech, the dispositive issues in the court’s order was whether the plaintiff had standing and if they demonstrated an imminent injury.

The court summarized the relevant portions of the well-known Twombly and Iqbal cases by saying that the complaint needed to provide facts beyond mere labels or naked assertions.

After a review of the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, the court relied on the requirements of standing to dismiss the plaintiff’s complaint. The court accepted the plaintiff’s statement that organizations can have standing to sue for the group of people it seeks to protect. The court stated that organizations may have standing 1) if the organization itself is injured or 2) if the organization is acting as the representative of its members who have been injured. “Organizational standing” does not relieve a party from the requirement of pleading imminent injury.

In order to have standing, a party must show 1) concrete and imminent injury in fact, 2) causation by the defendant, and 3) redressability. The court found the plaintiff’s claim lacked an imminent injury in this case. The court compared several recent eleventh circuit cases to the Lujan v. Defenders of Wildlife case. The issue in Lujan was that the two organizational members who claimed to be injured did not have a definite date that they would return to the areas of concern in the case. This was similar to an eleventh circuit case that found no standing for plaintiffs who stated an intention to protest in the future without a definite date. The court noted what it would take to have a definite injury when it referenced an eleventh circuit case finding an imminent injury to a voting rights organization because the definite date of injury was the next year’s election.

Turning to the case at hand, the court found the facts more similar to those in Lujan than the cases where imminent injury was found. The defendant pointed out that the plaintiffs had not attempted to purchase firearms, had not attempted to attend classes, nor had they stated they will attempt to do any of those activates in the future. Based on these facts, the court found that the plaintiff’s allegations of injury were conclusory and indicated a lack of standing.

Former Employee who was Fired for Falling Asleep at Work Alleges Discrimination

by Adam Kuhn

 

Singh v. Covenant Aviation Sec., L.L.C., 131 A.D.3d 1158 (N.Y. App. Div. 2015).

Abstract: A former employee alleged that he was wrongfully terminated on the basis of race or national origin. The Appellate Division affirmed defendant employer’s summary judgment on New York State Human Rights Law but struck the defendant’s summary judgment on New York City Human Rights Law.

 

Plaintiff, an Indian, was employed by the defendant as an airport security guard. He fell asleep on duty and his tour supervisor reported him to the defendant’s higher-level management. The supervisor’s report resulted in the plaintiff’s firing. The plaintiff alleged that he was wrongfully terminated from employment on the basis of his race or national origin in violation of New York State Human Rights Law and New York City Human Rights Law. The Supreme Court, Kings County granted the defendant’s motion for summary judgment dismissing the complaint. Plaintiff appealed to the Appellate Division. On appeal, the issue was whether the Supreme Court correctly granted defendant’s motion for summary judgment dismissing the cause of action for (1) violation of New York State Human Rights Law and (2) violation of New York City Human Rights Law.

The New York State Human Rights Law (Executive Law § 296) provides that it is an unlawful discriminatory practice “for an employer … because of an individual’s age, race … [or] national origin … to discharge from employment such individual.” A plaintiff has the burden of showing that “(1) he or she is a member of a protected class; (2) he or she was qualified to hold the position at issue, (3) he or she was terminated from employment, and (4) the termination occurred under circumstances that give rise to an influence of discrimination.” The defendant can successfully establish a motion for summary judgment if the absence of any of these elements is proved. The defendant showed the absence of the fourth element because the plaintiff admitted he was asleep while on duty, which is a violation of company rules. He showed no evidence that his race or ethnicity played a “motivating or substantial” role in the defendant’s decision to terminate his employment. Therefore the Supreme Court properly awarded summary judgment to defendant dismissing the cause of action alleging a violation of New York State Human Rights Law.

The New York City Human Rights Law (Administrative Code § 8-107) says “it shall be an unlawful discriminatory practice … for an employer or an employee or agent thereof, because of the actual or perceived … race, creed, color, [or] national origin … of any person … to discharge from employment such person” (emphasis added). Unlike the State Human Rights Law, the City Human Rights Law says an employer may be liable for the conduct of an employee or agent when the employee or agent exercised supervisory responsibility. Compared with the State Human Rights Law, the City Human Rights Law is interpreted more broadly in favor of the plaintiff. The plaintiff wanted to hold the defendant liable for the discriminatory conduct of an employee (the tour supervisor). The City Human Rights Law requires that unlawful discrimination play “no role” in an employment decision. If the supervisor’s decision to report the plaintiff was motivated by racial or ethnic hostility, even in part, the defendant may be held liable.

The evidence showed that the defendant fired the plaintiff for falling asleep, in violation of company rules. However, the plaintiff presented evidence that his supervisor reported him to management in part out of racial hostility, and did not report other, non-Indian employees who were found sleeping while on duty. Therefore, the plaintiff raised a disputable issue as to whether his supervisor’s unlawful discrimination, which was to be imputed to the defendant, played a role in the termination of the plaintiff’s employment. Therefore, the Supreme Court incorrectly granted the defendant’s summary judgment motion dismissing the cause of action alleging a violation of the City Human Rights Law.