Welcome to Supreme Court Brief. The justices this morning hear from two appellate veterans—Miguel Estrada and Erwin Chemerinsky—in a race discrimination case against Comcast. Plus: Montana's hired a Jenner & Block team for this term's major church-and-state case, set for argument in January. And if you missed it, longtime author Jon Krakauer takes a petition to the court seeking records tied to a book he published in 2015 about accusations of campus sexual assault in Montana. Thanks for reading, and feedback is always welcome and appreciated. Contact us at [email protected] and [email protected] and follow us on Twitter at @MarciaCoyle and @Tonymauro.

 

 

 

Miguel Estrada v. Erwin Chemerinsky in Key Race-Bias Case

Two media companies face off this morning in a rare case involving one of the nation's oldest civil rights laws. Originally part of the Civil Rights Act of 1866, 42 U.S.C. Section 1981 prohibits racial discrimination in contracting.

Entertainment Studio Networks, represented in the high court by Erwin Chemerinsky, (above right) dean of the University of California Berkeley School of Law, is owned by African American entrepreneur and entertainer Byron Allen. Allen has alleged Comcast Corp., represented in the high court by Gibson, Dunn & Crutcher partner Miguel Estrada (above left), gave "pretextual" reasons for declining to carry Studio Networks channels.

The U.S. Court of Appeals for the Ninth Circuit ruled Entertainment Studios had plausibly alleged that race discrimination was a motivating factor in Comcast's denial even if there were other race-neutral reasons.

In the high court case, Comcast Corp. v. National Association of African American-Owned Media and Entertainment Studios Network, Comcast's lawyers argue that under Section 1981, a plaintiff must allege "but for" causation, not merely that racial bias was a motivating factor for its actions. The "but for" standard is more difficult for plaintiffs to meet because the race bias allegation is made before discovery. Because the case comes to the court on a motion to dismiss, the justices must decide which pleading standard is required to prevail on a motion to dismiss.

The Trump administration, U.S. Chamber of Commerce and the pro-business Washington Legal Foundation have filed amicus briefs supporting Comcast. Latham & Watkins partner Gregory Garre represents the Chamber.

In the government's amicus brief, U.S. Solicitor General Noel Francisco said the outcome of the case could have repercussions for other federal anti-discrimination laws. For example, he noted, the high court has pending this term—in the case Babb v. Wilkie—the question whether the federal-sector provision of the Age Discrimination in Employment Act of 1967 requires a plaintiff to prove that age was a but-for cause of the challenged personnel action.

Among those supporting Studios Network are the Lawyers' Committee for Civil Rights Under Law, the NAACP Legal Defense and Educational Fund, the Congressional Black Caucus and other members of Congress, and law and history scholars, represented by Eugene Fidell of Feldesman Tucker Leifer Fidell.

"This is the most important racial justice case that will be heard by the Supreme Court this term," Kristen Clarke, president and executive director of the Lawyers' Committee, said in a statement. "Section 1981 is one of the oldest civil rights statutes that provides core protection from groups otherwise beyond the reach of civil rights statutes including independent contractors and gig economy workers." —Marcia Coyle

 

 

 

Montana Hires Jenner & Block Team in Major Church-State Case

The Montana Department of Revenue has retained a Jenner & Block team—led by partner Adam Unikowsky, as counsel of record—in a dispute over state subsidies that would allow students to attend private, religious schools. The Montana Supreme Court said provisions of the program ran counter to "no aid clause" in the state constitution.

"By its terms, the No-Aid Clause does not prohibit any religious practice. Nor does it authorize any discriminatory benefits program. It simply says that Montana will not financially aid religious schools," Unikowsky wrote in the newly filed merits brief. "Overwhelming evidence from the adoption of this provision shows that it is rooted not in bigotry, but in the principled view that barring aid to religious schools would promote, not hinder, religious freedom."

Unikowsky wrote in the brief: "If a state is opposed to aiding religious institutions, it can achieve that goal by taking a second path—by also not funding similarly situated nonreligious institutions. So a state can decline to rebuild church playgrounds—but only if it declines to rebuild any playgrounds. And it can decline to support religious private schools—but only if it declines to support any private school."

Unikowsky, as we've reported, burst on the scene in 2016 with a string of winning arguments. At one point, Unikowsky won eight cases in a row. "I prepared obsessively for the oral argument, doing three moot courts and spending most of my waking hours figuring out how I would respond to off-the-wall questions," he told The Journal of Appellate Practice and Process earlier this year.

The Trump Justice Department took sides with the challengers, who argue that Montana's no-aid provision violates the U.S. constitution's free-exercise clause.

The U.S. government argued in an amicus brief that the Montana no-aid clause "discriminates on the basis of religious status by disqualifying 'sectarian' private schools, but not secular private schools, from receiving public funding. That imposition of a special disability on religious schools, because they are religious, violates the Free Exercise Clause."

The case Espinoza v. Montana Department of Revenue is set for arguments on Jan. 22. —Mike Scarcella

 

 

 

Author Jon Krakauer Petitions Supreme Court

Veteran author Jon Krakauer (above) is pitching the U.S. Supreme Court on a transparency case that involves his 2015 book "Missoula: Rape and the Justice System in a College Town."

Krakauer, according to his lawyer, "sought records regarding the expulsion of the University of Montana's starting football quarterback and his subsequent reinstatement by the Montana Commissioner of Higher Education without a written decision. Krakauer sought to learn the process and rationale for the reversal of the star player's expulsion."

A Montana court granted access to the requested records, but the Montana Supreme Court, citing privacy interests, overruled the lower court. Krakauer's lawyer, Peter Meloy of the Meloy Law Firm in Helena, Montana, said the case tests provisions of the federal Family Educational and Privacy Rights Act, or FERPA. He argued the law does not "yield to a state's constitutional right to know provision."

"This case implicates not only the public's right to know how colleges and universities are dealing with star athletes accused of sexual assault and rape on campus, but also the more disturbing trend that educational institutions are hiding behind FERPA to protect such programs' revenue potential at the expense of student welfare and safety," Meloy wrote. "FERPA, designed to protect students' interests, is now being abused by universities to accomplish the opposite."

Meloy told the justices that Krakauer's case "involves the rising societal and cultural concerns of sexual assaults and rapes on university campuses, especially those committed by star athletes, 5 many of which have garnered national media attention."– Mike Scarcella

Vivian Hammill, chief legal counsel at Montana University System, said the state will oppose Krakauer's petition. Hammill has asked for an extension to file the state's brief by Jan. 8, 2020. —Mike Scarcella

 

 

 

Supreme Court Headlines: What We're Reading

>> I Was a Federal Judge. My Former Colleagues Must Stop Attending Federalist Society Events. "Regardless of who pays, these judges' participation is shameful. Previously, judges pretended that nothing was wrong with their Federalist Society activities because there was no clear guidance. That excuse disappeared with Advisory Opinion 116," retired Judge James P. Donohue writes. [Slate] Justices Neil Gorsuch and Brett Kavanaugh are set to speak this week at the Federalist Society's annual conference in Washington.

>> Comcast Is Trying to 'Dismantle' Civil Rights Act of 1866, MLK's Daughter Says. "Bernice King, MLK's daughter and CEO of the King Center for Nonviolent Social Change, wrote an open letter to Comcast CEO Brian Roberts on Friday. She wrote that Comcast's argument at the Supreme Court would change the law to let businesses discriminate based on race." [Ars Technica]

>> Justices Let Sandy Hook Victims Sue Gunmaker Remington. Remington, represented by Scott Keller at Baker Botts, had been pinning its hopes on the federal Protection of Lawful Commerce in Arms Act, which shields gunmakers, and it had hoped the country's high court would overrule a March Connecticut Supreme Court ruling. In that ruling, the state court justices found that the plaintiffs could sue Remington under an exception to the federal law, allowing legal action to proceed over the way the company sold and marketed firearms. [NLJ]

>> Justice Gorsuch Raises Key Question Against Trump's Move to Rescind DACA. Questions from Trump appointee Neil Gorsuch suggested he was searching to find a hole in the administration's defense of its decision to end a program that has allowed nearly 700,000 "Dreamers" temporarily to work, receive driver's licenses and renewable two-year protection from deportation. [NLJ] The Washington Post has more here. More here from CNN: Fate of DACA Immigrants May Hang on Vote of Chief Justice Roberts

>> Supreme Court Weighs Whether Mexican Family Can Sue in US. "Justice Neil Gorsuch questioned [Stephen] Vladeck on the possible impact allowing the lawsuit could have on military, on diplomats and other government officials that may find themselves in similar circumstances. He wondered how a line would be drawn. 'Why would it be limited to law enforcement as opposed to other governmental functions that happen here but happen to injure persons abroad?' Gorsuch asked." [Associated Press]