Common Theme In High Profile Cases On Arbitration, Voting Rights, & Public Accommodations Laws:
Protecting Equal Opportunity For All
The new term of the United States Supreme Court beginning Monday comes at a critical moment for civil rights. Several cases pose major implications for racial minorities on issues like prohibitions on class action lawsuits, voting, and equal access under public accommodations laws. In addition, the Court may consider the constitutionality of President Trump’s Muslim ban, a case that was postponed in light of the administration’s third attempt to justify discrimination on the basis of religion and country of origin.
This also marks the first full term of Justice Neil Gorsuch, nominated to fill a vacancy held open by Senate Republicans for over a year so that President Trump could select a nominee. Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, testified before the Senate Judiciary Committee on Justice Gorsuch’s nomination, highlighting the unprecedented obstruction that led to his nomination and his concerning record on key civil rights issues.
With Justice Gorsuch now installed on the Court and a case from his home state of Colorado pending on the docket, Americans and especially racial minorities are looking to see how this Court handles key civil rights matters in the Trump era. The Lawyers’ Committee for Civil Rights Under Law, which is devoted to the recognition and enforcement of civil rights in the United States, filed three amicus curiae or “friend of the court” briefs in the United States Supreme Court this term and signed on to another brief.
“In this new Supreme Court term, justices will hear cases that go to the very heart of core civil rights questions concerning the right to vote, partisan gerrymandering, access to the courts, and discrimination in the public accommodations context. These high-stakes cases implicate the civil rights of African Americans, Latinos, the LGBTQ community and other minority communities,” said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. “This Supreme Court term moves forward during a time in which we are witnessing stark politicization of the Justice Department’s work. This politicization has impacted the position that the Justice Department’s Solicitor General has taken in several cases, including a reversed position in cases concerning an Ohio voter purge program and discrimination against LGBTQ individuals. This also marks Justice Gorsuch’s first full term since joining the Court. As many cases heard by the Court are closely decided, we will be watching Justice Gorsuch closely to determine what commitment, if any, he brings to full and fair interpretation and application of the Constitution and our nation’s civil rights laws.”
Click here to read the amicus briefs filed in the United States Supreme Court by the Lawyers’ Committee for Civil Rights Under Law.
In the very first case of the new term, the Supreme Court will determine whether class action waivers are unlawful under the National Labor Relations Act (NLRA) – a decision that will have significant implications for the civil rights community.
Protection of employees’ rights to pursue class actions is critical to the Lawyers’ Committee’s ongoing work to attack systemic discriminatory employment practices and to increase equal employment opportunity for racial and ethnic minorities. Class action waivers immunize employers from claims of illegality and discrimination, and effectively prevent systemic challenges to discriminatory practices. The use of class action waivers in mandatory arbitration agreements by employers is widespread, and has a particularly negative effect on low-income and minority groups who are more vulnerable to workplace abuse and discrimination. The class action empowers groups that have historically been locked out of our justice system to join together with a stronger voice to level the playing field between businesses and employees, and ensure that employees have access to justice.
Two circuit courts of appeals, the Seventh and Ninth Circuit, have held that class action waivers violate the NLRA because they impede on employees’ rights to engage in concerted activity, while the Fifth Circuit has held that they are enforceable under the Federal Arbitration Act (FAA). In an amicus brief prepared by the NAACP LDF, the Impact Fund and Cohen Milstein and joined by the Lawyers’ Committee for Civil Rights Under Law, the parties highlight the importance of collective and class actions in rooting out systemic discrimination in the workplace.
While the Supreme Court has ruled that racial gerrymandering is unconstitutional, it has not provided clear guidance regarding partisan gerrymandering. Partisan gerrymandering, in which state legislators draw election maps to their favor, can also be a proxy for racial gerrymandering that diminishes the voices of minority voters and the opportunity for fair representation. The Lawyers’ Committee for Civil Rights Under Law, which is committed to ensuring the rights of all voters, and in particular minority voters, are protected, is urging the Supreme Court to provide essential safeguards to ensure that voters choose their representatives and not the other way around.
This complicated case challenging the 2011 Wisconsin State Assembly redistricting plan brings to the forefront important questions regarding electoral map making and the ability of voters to have an influence in their representation. In Wisconsin, the redistricting map was struck down by a three-judge federal court panel for imposing “burdens on the representational rights of Democratic voters” in gerrymandered districts. In considering a remedy to address partisan gerrymandering, the Lawyers’ Committee for Civil Rights Under Law maintains in its amicus brief that “clarification that the use of race as a tool to effect a partisan gerrymander… is necessary to dispel the notion that jurisdictions can use partisanship as a defense to pernicious racial gerrymanders.”
The brief, filed with the Georgia State Conference of the NAACP, highlights a racial and partisan gerrymandering case filed by the Lawyers’ Committee for Civil Rights Under Law this year in Georgia. In that case, plaintiffs claim that the redrawing of lines for Georgia House of Representatives Districts 105 and 111, in 2015, was done with a racially discriminatory purpose to favor the election of white incumbents. In considering a remedy for partisan gerrymandering, the Lawyers’ Committee brief urges the Supreme Court to adopt a standard applicable to partisan gerrymandering sufficiently flexible so as to apply to cases like the Georgia case. “Discriminating on the basis of race to achieve a partisan goal should not be a defense against a racial discrimination claim. Even if partisanship were a legitimate goal, targeting a suspect class as the means of achieving that goal is unconstitutional,” the brief states.
The National Voter Registration Act was enacted to increase voter registration rates and prohibit states from using a person’s failure to vote in a single election as a trigger for removing that voter from the rolls. Yet that is exactly what the state of Ohio does in this important case about the rights of voters to remain on the rolls and engage in the electoral process.
Racial minorities and lower income individuals have historically suffered discrimination in voting. This includes voter registration and access to the polls. Given the historical reasons for persistent racial gaps in registration and turnout, Congress, in enacting the NVRA, sought to avoid the purging of voters based on discriminatory and inefficient removal procedures.
The NVRA prohibits any voter-list maintenance program that “result[s] in the removal of the name of any person from the official list of voters . . . by reason of the person’s failure to vote.” The law allows states to remove voters from the rolls if the state: 1) has reliable evidence that a person has moved, such as the U.S. Postal Service’s National Change of Address program, 2) has not confirmed whether they have moved, and 3) has not voted in two consecutive federal general elections. The state of Ohio under Secretary of State Jon Husted established a new trigger to initiative a voter purge by presuming a voter “may have moved” if they did not vote in an election in a two-year period. This state-led removal process led to the purge of nearly 70,000 voters in just four Ohio counties in 2015.
The Sixth Circuit Court of Appeals, in a two-to-one opinion last year, concluded that Ohio’s purge violated the NVRA. Despite this, the Justice Department, led by Attorney General Jeff Sessions, reversed its position in the case and opened the door for purge programs across the nation. In its amicus brief filed with pro bono counsel Stroock & Stroock & Lavan LLP, as well partners including Rock the Vote, Nuns on the Bus of Ohio, the Texas Civil Rights Project, and the Center for Media and Democracy, the Lawyers’ Committee for Civil Rights Under Law asserts that Ohio’s voter purge process clearly violates the NVRA.
Equal justice under law is at the very heart of this case in which justices will decide whether discrimination by businesses is lawful in our country. Civil rights organizations like the Lawyers’ Committee for Civil Rights Under Law, which has fought for decades to ensure the equal protection of racial minorities, are closely watching this case which potentially carries high stakes for underrepresented communities.
The Masterpiece case involves a business, the Masterpiece Cakeshop in Colorado, denying goods and services to a same-sex couples on religious and free speech grounds. This case is part of an alarming trend involving businesses denying goods and services to same-sex couples, and the consequences could include the nullification of civil rights laws that prohibit discrimination in public accommodations. The Lawyers’ Committee for Civil Rights Under Law is gravely concerned that any business, not just ones arguably engaged in artistic pursuits as the cake baker in Colorado claims, would be free to lawfully discriminate against racial and other minorities pursuant to a free speech exemption. These risks are not theoretical. Businesses including gun shops and gun ranges have recently raised First Amendment free speech defenses to justify excluding Muslims from their establishments.
Although race-based segregation in public accommodations was outlawed in 1964, racial animus persists and African Americans and other racial, ethnic and religious minorities continue to experience overt discrimination in public accommodations. Upholding the integrity of public accommodations is therefore of great important to racial minorities who are closely watching this case, which will be argued later this fall. The Lawyers’ Committee for Civil Rights Under Law will file an amicus brief in the coming weeks to highlight the important civil rights implications in this case.
A foundational principle of the United States is that it does not bar individuals from entering into the United States based on their religion or national origin. Yet that is exactly what President Trump has sought out to do through his travel ban executive orders that bar most nationals of six predominantly Muslim countries from entering the United States. Parts of these orders have been struck down by multiple federal courts, and while the Trump administration seeks to implement a third attempt at a Muslim ban, the Supreme Court may soon decide on the constitutionality of these litmus tests.
As a racial justice organization, the Lawyers’ Committee for Civil Rights Under Law seeks to stamp out discrimination based on characteristics such as race, color, or national origin. President Trump’s travel ban strikes at the core of the organization’s mission and the promise of the United States as a beacon of hope for those fleeing persecution and violence abroad. Earlier this year, the Lawyers’ Committee for Civil Rights Under Law, Arnold & Porter Kaye Scholer LLP, and Mehri & Skalet, PLLC filed litigation in the D.C. District Court seeking to protect and defend the Iranian-American community in the United States and abroad from the harmful and discriminatory effects of the executive orders. The plaintiffs in that case include the Pars Equality Center, Iranian American Bar Association (IABA), National Iranian American Council (NIAC), and Public Affairs Alliance of Iranian Americans, Inc. (PAAIA).
In its “friend of the court” brief in the United States Supreme Court in the pending travel ban case, the Lawyers’ Committee for Civil Rights Under Law highlights the plight of Iranian nationals whose lives have been deeply impacted by President Trump’s discriminatory travel ban. The brief states: “The travel ban effectively tars every Iranian citizen, Muslim or non-Muslim, religious or secular, infant or adult, as a proponent of ‘radical Islam’ and an incipient terrorist. This baseless stereotyping has placed educational and career plans on hold, separated families, and disrupted (and even imperiled) countless lives.”
About the Lawyers’ Committee for Civil Rights Under Law:
The Lawyers’ Committee for Civil Rights Under Law, a nonpartisan, nonprofit organization, was formed in 1963 at the request of President John F. Kennedy to involve the private bar in providing legal services to address racial discrimination. Now in its 54th year, the Lawyers’ Committee for Civil Rights Under Law is continuing its quest “Move America Toward Justice.” The principal mission of the Lawyers’ Committee for Civil Rights Under Law is to secure, through the rule of law, equal justice for all, particularly in the areas of criminal justice, fair housing and community development, economic justice, educational opportunities, and voting rights.