Affirmative Action at UT Austin: Why Cities Should Take Note

The Supreme Court has decided relatively few affirmative action decisions, such as this case involving the University of Texas at Austin (pictured above) – so all are of interest to state and local governments that use race as a factor in decision-making. (Gregg Mack/Getty Images)

If you were going to bet on the outcome of a Supreme Court case — much less the Court’s reasoning — you should avoid the Fisher case. It’s anyone’s best guess.

For the second time the Supreme Court has agreed to decide whether the University of Texas at Austin’s race-conscious admissions policy is unconstitutional in Fisher v. University of Texas at Austin.

Per Texas’s Top Ten Percent Plan, the top ten percent of Texas high school graduates are automatically admitted to UT Austin, which fills about 80 percent of the class. Unless an applicant has an “exceptionally high Academic Index,” he or she will be evaluated through a holistic review where race is one of a number of factors.

UT Austin denied Abigail Fisher, a white Texan who did not graduate in the top ten percent of her class, admission. She sued, claiming Austin’s use of race in admissions violates the Fourteenth Amendment’s Equal Protection Clause. She argued that using race in admissions is unnecessary because, in the year she applied, 21.5 percent of UT Austin admissions were minority students.

The Supreme Court has held that the use of race in college admissions is constitutional if race is used to further the compelling government interest of diversity and is narrowly tailored. In Fisher I the Court held that the Fifth Circuit, which upheld UT Austin’s admissions policy, should not defer to UT Austin’s argument that its use of race is narrowly tailored.

When the Fifth Circuit looked once again at UT Austin’s affirmative action plan, it concluded that it is narrowly tailored. The Top Ten Percent Plan works well at increasing minority student enrollment because Texas schools are so segregated. But a number of well-qualified students are excluded — specifically, minority students who performed well at majority-white schools but weren’t in the top ten percent of their class. If race wasn’t considered during holistic review, almost every student admitted would be white because of the test score gap between white and minority students. And as a result of holistic review, a much higher percent of white students are admitted — but generally between 25-30 percent of the overall number of black and Hispanic students are admitted through holistic review.

A dissenting judge questioned much of the majority opinion, fundamentally arguing that while UT Austin claimed it is trying to achieve a “critical mass” of diverse students, its definition of “critical mass” is unknown, immeasurable, and unclear. So it is impossible to know whether UT Austin’s use of race is narrowly tailored to meet this goal. While the dissent said that “critical mass” isn’t a number, it questioned whether the number of black and Hispanic students admitted through holistic review — 216 out of 6,322 — is large enough to contribute to UT Austin’s critical mass objective. The dissent also questioned the merits of assuming that minority students admitted via the Top Ten Percent Plan are “somehow more homogenous, less dynamic and more undesirably stereotypical than those admitted under holistic review.”

Why did the Court take this case yet again (especially considering Abigail Fisher graduated from another university years ago, Justice Kagan will recuse herself again, etc.), and what will it say? The possibilities are endless, but cities should monitor this case nonetheless. Lyle Denniston discusses a few possible outcomes on SCOTUSblog.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Seven Significant Supreme Court Cases for Local Governments

photo - Supreme Court in Spring with FountainThe Supreme Court ruled on a number of cases this term that will affect local governments. (markphariss/Getty Images)

That same-sex couples have a constitutional right to marry and the Affordable Care Act remains intact will forever outshine every other decision from this Supreme Court term. But local governments will ignore the rest of this term at their peril. The Court issued many decisions affecting local governments — most of which had unfavorable outcomes. From upsetting sign codes to allowing disparate treatment claims under the Fair Housing Act, this is a term for local governments to remember. Below is a summary of the top seven cases.

Content-Based Sign Codes Unconstitutional

In Reed v. Town of Gilbert the Court held unanimously that Gilbert’s Sign Code, which treated various categories of signs differently based on the information they convey, violates the First Amendment.

Gilbert’s Sign Code treated temporary directional signs less favorably (in terms of size, location, duration, etc.) than political signs and ideological signs.

Content-based laws are only constitutional if they pass strict scrutiny — that is, if they are narrowly tailored to serve a compelling government interest.

While the SLLC argued in its amicus brief that Gilbert’s sign categories are based on function, the Court concluded they are based on content.

Gilbert’s Sign Code failed strict scrutiny because its two asserted compelling interests — preserving aesthetic and traffic safety — were “hopelessly underinclusive.” Temporary directional signs are “no greater an eyesore” and pose no greater threat to public safety than ideological or political signs.

Many, if not most communities, like Gilbert, regulate some categories of signs in a way the Supreme Court has defined as content-based. Communities will need to change these ordinances.

Hotel Registry Searches Need Subpoenas  

In City of Los Angeles v. Patel the Court held 5-4 that a Los Angeles ordinance requiring hotel and motel operators to make their guest registries available for police inspection without at least a subpoena violates the Fourth Amendment.

The purpose of hotel registry ordinances is to deter crime — drug dealing, prostitution, and human trafficking — on the theory that criminals will not commit crimes in hotels if they have to provide identifying information.

According to the Court, searches permitted by the City’s ordinance are done to ensure compliance with recordkeeping requirements. While such administrative searches do not require warrants, they do require “precompliance review before a neutral decisionmaker.” Absent at least a subpoena, “the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests.”

In dissent, Justice Scalia cited the SLLC’s amicus brief, which notes that local governments in at least 41 states have adopted similar ordinances. Eight states also have hotel registry statutes: Indiana, Florida, Massachusetts, Maine, New Hampshire, New Jersey, Wisconsin, and the District of Columbia.

It is likely following this decision that other record inspections done by governments outside the hotel registry context will also require subpoenas.

Fair Housing Act Disparate Impact Claims Recognized

In Texas Department of Housing and Community Affairs v. inclusive Communities Project the Court held 5-4 that disparate-impact claims may be brought under the Fair Housing Act (FHA).

In a disparate-impact case a plaintiff is claiming that a particular practice isn’t intentionally discriminatory but instead has a disproportionately adverse impact on a particular group.

The Inclusive Communities Project claimed the Texas housing department’s selection criteria for federal low-income tax credits in Dallas had a disparate impact on minorities.

In prior cases the Court held that disparate-impact claims are possible under Title VII (prohibiting race, etc. discrimination in employment) and the Age Discrimination in Employment Act relying on the statutes’ “otherwise adversely affect” language. The FHA uses similar language — “otherwise make unavailable” — in prohibiting race, etc. discrimination in housing.

This decision more or less continues the status quo for local governments. Nine federal circuit courts of appeals had previously reached the same conclusion. But, Justice Kennedy’s majority opinion contains a number of limits on when and how disparate impact housing claims may be brought.

Reasons for Cell Tower Denials Must Be in Writing

In T-Mobile South v. City of Roswell the Court held 6-3 that the Telecommunications Act (TCA) requires local governments to provide reasons when denying an application to build a cell phone tower.

The reasons do not have to be stated in the denial letter but must be articulated “with sufficient clarity in some other written record issued essentially contemporaneously with the denial,” which can include council meeting minutes.

The TCA requires that a local government’s decision denying a cell tower construction permit be “in writing and supported by substantial evidence contained in a written record.”

Local governments must provide reasons for why they are denying a cell tower application so that courts can determine whether the denial was supported by substantial evidence. Council meeting minutes are sufficient. But, because wireless providers have only 30 days after a denial to sue, minutes must be issued at the same time as the denial.

Following this decision, local governments should not issue any written denial of a wireless siting application until they (1) set forth the reasons for the denial in that written decision, or (2) make available to the wireless provider the final council meeting minutes or transcript of the meeting.

No Dog Sniffs after Traffic Stops

In a 6-3 decision in Rodriguez v. United States the Court held that a dog sniff conducted after a completed traffic stop violates the Fourth Amendment.

In Illinois v. Caballes the Court upheld a suspicionless dog search conducted during a lawful traffic stop stating that a seizure for a traffic stop “become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket for the violation. Officers may lengthen stops to make sure vehicles are operating safely or for an officer’s safety. A dog sniff, however, is aimed at discovering illegal drugs not at officer or highway safety.

In dissent, Justice Alito suggests savvy police officers can skirt the Court’s ruling by learning “the prescribed sequence of events even if they cannot fathom the reason for that requirement.”

Objectively Unreasonable is the Standard for Pretrial Detainee Excessive Force Claims

In Kingsley v. Hendrickson the Court held 5-4 that to prove an excessive force claim a pretrial detainee must show that the officer’s force was objectively unreasonable, rejecting the subjectively unreasonable standard that is more deferential to law enforcement.

Pretrial detainee Michael Kingsley claimed officers used excessive force in transferring him between jail cells to remove a piece of paper covering a light fixture that Kingsley refused to remove.

The objective standard applies to excessive force claims brought by pretrial detainees because in a previous case involving prison conditions affecting pretrial detainees, the Court used the objective standard to evaluate a prison’s practice of double bunking. And the objective standard applies to those who, like Kingsley, have been accused but not convicted of a crime, but who unlike Kingsley are free on bail.

A standard more deferential to law enforcement applies to post-conviction detainees, who are housed with pretrial detainees, making this ruling difficult for jails to comply with. Following this decision it will be easier for pretrial detainees to bring successful excessive force claims against corrections officers.

Tax on Internet Purchases

In Direct Marketing Association v. Brohl Justice Kennedy wrote a concurring opinion stating that the “legal system should find an appropriate case for this Court to reexamine Quill.”

In 1992 in Quill Corp. v. North Dakota the Court held that states cannot require retailers with no in-state physical presence to collect use tax.

To improve tax collection, Colorado began requiring remote sellers to inform Colorado purchasers annually of their purchases and send the same information to the Colorado Department of Revenue. The Direct Marketing Association sued Colorado in federal court claiming that the notice and reporting requirements are unconstitutional under Quill.

The question the Court decided was whether this case could be heard in federal court (as opposed to state court). The Court held yes unanimously. This case is significant for local governments because the Court’s most influential Justice expressed skepticism about whether Quill should remain the law of the land.

Conclusion

While this article ends on a high note, overall, this Supreme Court term will require many, if not most, local governments to make some changes to keep in compliance with the law.

This is the third post in a series summarizing recent Supreme Court rulings that affect city governments. You can read about more cases here and here.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Supreme Court Highlights, Part 2: What You Need to Know, and How Your City Will Be Affected

You can view the first installment of this post here.

The Supreme Court recently ruled on a number of cases that directly affect cities nationwide. (Getty Images)

Same-Sex Couples Now Have A Constitutional Right to Marry

Obergefell v. Hodges will be celebrated and condemned internationally.

In a 5-4 decision written by Justice Kennedy, the Supreme Court held that same-sex couples have a constitutional right to marry. All state laws and court decisions banning same-sex marriage are now invalid. The National League of Cities signed onto an amicus brief in this case supporting the couples.

Justice Kennedy’s opinion can be described as a celebration of marriage itself.  “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family.”

More specifically, the majority opinion offers four principles that demonstrate why the fundamental right to marry applies with equal force to same-sex couples. First, the right to choose who you marry is “inherent in the concept of individual autonomy.” Second, because the right to marry is “unlike any other in its importance,” it should not be denied to any two-person union. Third, marriage between same-sex couples safeguards children and families just as it does for opposite-sex couples. Finally, marriage is a keystone of American social order from which no one should be excluded.

The Court relied on the Constitution’s Fourteenth Amendment Due Process Clause and the Equal Protection Clause in its opinion. In previous marriage cases like Loving v. Virginia, invalidating bans on interracial marriage, the Court relied on both Clauses. The Court did not state what standard of review it applied to decide this case.

The Court rejected the argument that sufficient debate had not occurred over this issue, noting that “individuals need not await legislative action before asserting a fundamental right.”

After acknowledging that many may take the view that same-sex marriage should not be condoned on religious grounds, the Court stated that the First Amendment protects this view and the views of religious organizations.

Justice Kennedy’s final words in his majority opinion effectively summarize his opinion:

“[The] hope [of the same-sex couples in this case] is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Chief Justice Roberts and Justices Scalia, Thomas, and Alito dissented.

Federal Government Wins Health Care Case:  ACA Subsidies Continue

The third time’s a charm for the Affordable Care Act (ACA). King v. Burwell is the first complete victory for the law.

In 6-3 decision, the Supreme Court ruled today that health insurance tax credits are available on the 34 Federal Exchanges. The Court’s opinion focused largely on the consequences of ruling to the contrary: the destruction of health insurance markets.

Chief Justice Roberts, writing for the majority, began his opinion by pointing out that the Affordable Care Act relies on three reforms: making sure health insurance is available to everyone regardless of their heath and not charging higher premiums depending on health; requiring everyone to be insured; and offering tax credits to those with low incomes so they can afford insurance. If only the first reforms were to be implemented, a well-documented economic “death spiral” would occur, wherein health insurance premiums skyrocket because only the sick buy insurance.

The ACA allows the states and the federal government to sell insurance on health care exchanges. The ACA states that tax credits are available when insurance is purchased through “an exchange established by the state.”

So the technical legal question in this case was whether a Federal Exchange is “an exchange established by the state” that may offer tax credits.

The Supreme Court said yes. The Court first concluded that the above language is ambiguous. But by looking at it in the context of the entire statute, the meaning of the language became clearer. Specifically, if tax credits weren’t available on Federal Exchanges “it would destabilize the individual insurance market in any state with a Federal Exchange, and likely create the very ‘death spirals’ that Congress designed the Act to avoid.”

The Chief Justice’s analysis is simple and pragmatic:

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. [The statutory language at issue] can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.”

As a result of this decision, the status quo remains: if an individual otherwise eligible for a tax credit buys health insurance on a State Exchange or a Federal Exchange, the tax credit will be available.

Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan joined the majority opinion. Justices Scalia, Thomas, and Alito dissented.

SCOTUS Rules Disparate-Impact Fair Housing Claims are Possible But Limited

If you were surprised by the Supreme Court’s ruling in the Affordable Care Act Case, you may have even been more surprised by the Court’s ruling in the Fair Housing Act case.

In Texas Department of Housing and Community Affairs v. Inclusive Communities Project the Supreme Court held 5-4 that disparate-impact claims may be brought under the Fair Housing Act (FHA). All Federal Circuit Courts of Appeals had decided this issue, ruling that such claims were possible. The Supreme Court was expected to come to the opposite conclusion (or else why would they have taken this case?). Having taken up this question twice before, only to have the cases settle, the Court has finally resolved it.

While state and local governments are more likely to be sued under the FHA, they do occasionally sue others for violating it. Justice Kennedy pointed out at the end of his majority opinion that the City of San Francisco filed an amicus brief supporting disparate-impact liability under the FHA, despite being a “potential defendant.”

In a disparate-impact case, a plaintiff is claiming that a particular practice isn’t intentionally discriminatory but instead has a disproportionately adverse impact on a particular group.

The Inclusive Communities Project (ICP) sued the Texas Department of Housing and Community Affairs, claiming that its selection criteria for federal low-income tax credits in Dallas had a disparate impact on minorities, in violation of the FHA. Specifically, ICP claimed the Department was giving too many tax credits to low-income housing in predominately black inner-city areas compared to predominately white suburban neighborhoods. While 92% of low-income housing tax credits in Dallas were located in census tracts with less than 50% white residents, federal law favors distribution of such tax credits in low-income areas.

The Court held that disparate impact claims are cognizable under the FHA. In prior cases, the Court held that disparate impacts claims are possible under Title VII (prohibiting race, etc. discrimination in employment) and the Age Discrimination in Employment Act relying on the statutes’ “otherwise adversely affect” language. The FHA uses similar language — “otherwise make unavailable” — in prohibiting race, etc. discrimination in housing. And Congress seems to have acknowledged that disparate impact claims are possible under the FHA. Congress amended the FHA in 1988 to include “three exemptions from liability that assume the existence of disparate-impact claims.” (By 1988, nine Courts of Appeals had held ruled in favor of such claims.) Finally, the Court reasoned that recognizing disparate-impact claims is “consistent with the FHA’s central purpose” — to eradicate housing discrimination.

Justice Kennedy opined that when the lower court takes this case up again it “may be seen simply as an attempt to second-guess which of two reasonable approaches a housing authority should follow in the sound exercise of its discretion in allocating tax credits for low income housing.” To make sure disparate-impact lawsuits aren’t successful in this instance, he suggests the following: first, governments and developers should be able to maintain a housing policy that they can prove is necessary to achieve a valid interest; second, disparate-impact claims that, like this one, rely on a statistical disparity will fail if the plaintiff can’t prove that the defendant’s policy caused the disparity; and third, remedies must be consistent with the constitution and not include quotas.

Why You Should Care About SCOTUS’s Recent Case Involving Raisins

In Horne v. Department of Agriculture the Supreme Court held 8-1 that the federal government violated the Fifth Amendment Takings Clause by physically setting aside a percentage of a grower’s raisin crop each year without pay. At least six other agriculture set aside programs are in trouble as a result of this case. But what about its impact on state and local government?

Horne is a complicated case with four issues. The holding most relevant to state and local government is that taking an interest in personal property (here, raisins) rather than land is a per se taking rather than a “more flexible and forgiving” regulatory taking. As the International Municipal Lawyers Association amicus brief points out, an argument can now be made that towing illegal parked cars, removing abused and neglected pets, confiscating drugs or pirated copyrighted materials, and confiscating guns from felons might amount to takings requiring just compensation.

Per the Agricultural Marketing Act, raisin growers are required in certain years to give a percentage of their crops to the federal government free of charge to maintain a stable market for raisins. Raisin growers sometimes receive proceeds from the sale of set-aside raisins. The Hornes refused to set aside raisins for the federal government and were fined the fair market value of the raisins for failing to comply with the order. The Hornes sued, claiming the set-aside requirement was an unconstitutional taking.

The Court first held that the appropriation of personal property is a per se taking just like the appropriation of land, stating that the text, history and precedents interpreting the Takings Clause don’t suggest a different rule. The Court next concluded the government could not avoid paying just compensation because the growers in this case had a contingent interest in the value of the set aside raisins. “The fact that the growers retain a contingent interest of indeterminate value does not mean there has been no physical taking, particularly since the value of the interest depends on the discretion of the taker, and may be worthless, as it was for one of the two years at issue here.” To the question of whether the government’s mandate to turn over raisins as a condition of participating in commerce is a per se taking, the Court said yes in this case. It is not enough that the growers voluntarily chose to sell raisins rather than wine.

Only five Justices agreed that the Hornes’ just compensation should be the fair market value of the set aside raisins (and that the fine for disobeying the order should be dropped). Three Justices would have sent the case back to the lower court to determine whether, through the price supports for the raisins the Hornes did not have to set aside, they received just compensation.

Only time will tell whether people will try to bring takings claims against state and local governments, citing Horne for government seizures of personal property more common than raisins — and whether those claims will be successful.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Supreme Court Highlights: What You Need to Know, and How Your City Will Be Affected

Supreme Court facadeThis summer, the Supreme Court has already ruled on a number of cases that directly affect cities nationwide. (Getty Images)

Reed v. Town of Gilbert May Require Altering Sign Codes Nationwide

In Reed v. Town of Gilbert the Supreme Court held unanimously that Gilbert’s Sign Code, which treats various categories of signs differently based on the information they convey, violates the First Amendment. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing that Reed’s argument, if adopted by the Court, will render sign codes unconstitutional nationwide.

While the SLLC argued in its amicus brief that the sign categories in this case are based on function, the Court concluded they are based on content. Content-based laws are only constitutional if they pass strict scrutiny — that is, if they are narrowly tailored to serve a compelling government interest. The various categories draw distinctions based on the message a speaker conveys. So under Gilbert’s sign code: “[i]f a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government.”

Gilbert’s Sign Code failed strict scrutiny because its two asserted compelling interests — preserving aesthetic and traffic safety — were “hopelessly underinclusive.” Temporary directional signs are “no greater an eyesore” and pose no greater threat to public safety than ideological or political signs.

Many, if not most communities, like Gilbert, regulate some categories of signs in a way the Supreme Court has defined as content-based in this opinion. Communities will need to change these ordinances. Justice Alito, in a concurring opinion, offers a list of rules that he and two other Justices believes would not be content-based. Justice Kagan, in a separate concurring opinion joined by two other Justices, is less optimist about the impact of this ruling on local government:

As the years go by, courts will discover that thousands of towns have ordinances [that contain subject matter exemptions like historical markers] many of them “entirely reasonable.” And as the challenges to them mount, courts will have to invalidate one after the other. (This Court may soon find itself a veritable Supreme Board of Sign Review.) And courts will strike down those democratically enacted local laws even though no one — certainly not the majority — has ever explained why the vindication of First Amendment values requires that result.

Bill Brinton, Rogers Towers wrote the SLLC’s brief which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, the International Municipal Lawyers Association, the American Planning Association, and Scenic America.

Walker v. Sons of Confederate Veterans Decides Significant Government Speech Case

In Walker v. Sons of Confederate Veterans the Supreme Court held 5-4 that Texas may deny a proposed specialty license plate design featuring the Confederate flag because specialty license plate designs are government speech. Walker is of particular significance to state and local government because the Court did not narrow the 2009 landmark government speech case Pleasant Grove City, Utah v. Summum.

The Sons of Confederate Veterans (SCV) proposed a specialty license plate which featured a faint Confederate flag in the background and the organization’s logo, a square Confederate flag. After receiving public comment on the proposed plate the Texas Department of Motor Vehicles Board unanimously voted against issuing it noting that many members of the general public found the design offensive. SCV sued Texas claiming that specialty plates are private speech and that the Board engaged in unconstitutional viewpoint discrimination by refusing to approve its design.

The Court disagreed concluding that specialty license plates are government speech. It relied heavily on Summum, where the Court held that monuments in a public park are government speech and that a city may accept some privately donated monuments and reject others. First, just as governments have a long history of using monuments to speak to the public, states have a long history of using license plates to communicate messages. Second, just as observers of monuments associate the monument’s message with the land owner, observers identify license plate designs with the state because the name of the state appears on the plate, the state requires license plates, etc. Third, per state law, Texas maintains control over messages conveyed on specialty plates and has rejected at least a dozen designs, just as the city in Summum maintained control monument selection.

The result in Walker wasn’t a foregone conclusion. In a vigorous dissent, Justice Alito questions much of the majority’s analysis. He points out that only within the last 20 years has Texas allowed private groups to put messages on license plates and argues that Texas allows messages on license plates in order to make money, not to convey messages it supports.

But Justice Breyer, ever the pragmatist, insists that “government would not work” unless the government may determine “the content of what is says.”

“How could a city government create a successful recycling program if officials, when writing householders asking them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal enterprise demanding the contrary? How could a state government effectively develop programs designed to encourage and provide vaccinations, if officials also had to voice the perspective of those who oppose this type of immunization?”

EEOC v. Abercrombie & Fitch Stores: Court Rules Against Employer in Religious Accommodation Case

In EEOC v. Abercrombie & Fitch Stores the Supreme Court held 8-1 that to bring a religious accommodation claim an applicant or employee need only show that his or her need for a religious accommodation was a motivating factor in an employment decision. The State and Local Legal Center (SLLC) filed an amicus brief, which NLC joined, arguing that to bring a failure to accommodate claim the applicant/employee should have to notify the employer of the need for a religious accommodation.

Abercrombie & Fitch’s “Look Policy,” prohibits employees from wearing “caps” because they are too informal for the store’s desired image. Samantha Elauf wore a head scarf to an interview at Abercrombie but didn’t ask for a religious accommodation. The assistant store manager who interviewed Elauf told the district manager she believed Elauf wore the headscarf for religious reasons. The district manager decided Elauf should not be hired as headwear worn for any reason violates Abercrombie’s “Look Policy.”

The Equal Employment Opportunity Commission (EEOC) sued Abercrombie alleging it violated Title VII by failing to accommodate Elauf’s religious beliefs. The Tenth Circuit held in favor of Abercrombie, finding that an applicant/employee must inform the employer about the need for a religious accommodation.

The Court concluded that to bring a religious accommodation claim an applicant/employee need not show that the employer had “actual knowledge” of the need for an accommodation. Instead the employee/applicant only must show that his or her need for an accommodation was a motivating factor in the employer’s decision. Title VII prohibits employers from taking an adverse employment action “because of” religion. While “because of” usually means but-for causation, Title VII has a more relaxed standard that prohibits even making religion a motivating factor in an employment decision. Simply put, the Court would not add an “actual knowledge” requirement to Title VII.

According to the Court, while a knowledge requirement could not be added to the motive requirement, arguably the motive requirement cannot be met unless the employer at least suspects the practice in question is religious. Here Abercrombie at least suspected Elauf wore a head scarf for religious reasons so the Court did not decide whether the motive requirement could be met without knowledge. Justice Alito, in a concurring opinion, stated that the Court should have decided this question–in the negative.

Amanda Kellar and Chuck Thompson, International Municipal Lawyers Association, wrote the SLLC’s brief which was joined by the National Conference of State Legislatures, the National League of Cities, the United States Conference of Mayors, the National Association of Counties, the International City/County Management Association, the International Municipal Lawyers Association, the International Public Management Association for Human Resources, the National Public Employer Labor Relations Association, and the National School Boards Association.

A Look Ahead: Luis v. United States Will Decide How Far Asset Forfeitures May Go

Even though her crimes aren’t violent and horrific like many criminal defendants who end up in the Supreme Court, it is hard to feel sorry for Sila Luis. But her point is that she has rights, regardless.

She was indicted on charges related to $45 million in Medicare fraud. Unsurprisingly, her personal assets amounted to much less than $45 million. The federal government sought to freeze the use of her assets not traceable to the fraud. She wanted to use them to hire an attorney.

The question in Luis v. United States is whether not allowing a criminal defendant to use assets not traceable to a criminal offense to hire counsel of choice violates the Sixth Amendment’s right to counsel.

This case is relevant to state and local government for a few reasons. First, while the asset forfeiture in this case likely went to reimburse the federal government for the Medicaid fraud, generally, state and local law enforcement receive asset forfeitures. Second, some state asset forfeiture laws, like the federal statute in this case, allow untainted assets to be substituted. Third, in some instances state and local governments, like the federal government in this case, are the victim of a fraud and seek to recoup as much of their losses as possible.

This case comes on the heels of last year’s Kaley v. United States, where the Supreme Court held 6-3 that defendants may not use frozen assets which are the fruits of criminal activities to pay for an attorney. Luis argues that it is “inconceivable” that she may not use “her own legitimately-earned assets to retain counsel.” The federal government responded that per her reasoning criminal defendants “could effectively deprive her victims of any opportunity for compensation simply by dissipating her ill-gotten gains.”

The district court, affirmed by the Eleventh Circuit, agreed with the United States using this example:

“[S]uppose . . . a bank robber [steals $100,000 and has] spent the $100,000 that he stole. It just so happens, however, that he has another $100,000 that he obtained legitimately. Should his decision to spend the $100,000 he stole mean that he is free to hire counsel with the other $100,000 when Congress has authorized restraint of those substitute assets? The reasonable answer is no. The bank has the right to have those substitute, untainted assets kept available for return as well.”

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

SCOTUS Same-Sex Marriage Oral Argument: Proceed, or Wait and See?

Supreme Court facade(Getty Images)

Justice Kennedy has a lot to think about over the next two months when it comes to same-sex marriage.

His first question (third of the argument) raised an issue that was discussed throughout Mary Bonauto’s argument in favor of a constitutional right to same-sex marriage: for millennia (not years, decades, or even centuries), marriage has been between a man and a woman. Then Justice Breyer, ever the pragmatist, asked why states can’t just wait and see whether same-sex is harmful to traditional marriage. And should just nine people be deciding this question anyway?

For those worried that Justice Kennedy’s and Justice Breyer’s initial questions indicate they are skeptical of a constitutional right to same-sex marriage, more favorable questions laid ahead. Even in his question to Ms. Bonauto—and later in a question to the Solicitor General –Justice Kennedy pointed out that 10 years was enough time for the Court to go from desegregating schools to declaring bans on interracial marriage unconstitutional. Perhaps more significantly, Justice Kennedy questioned Michigan attorney John Bursch’s argument, against a constitutional right to same-sex marriage, that states don’t believe that marriage “enhances the dignity of both the parties.” Dignity was the theme of Justice Kennedy’s opinion in United States v. Windsor where the Court struck down the Defense of Marriage Act.

As for Justice Breyer, his question to Mr. Bursch provides one answer to Justice Kennedy’s first question, if not his own questions: “But there is one group of people who they won’t open marriage to. So they have no possibility to participate in that fundamental liberty. That is people of the same sex who wish to marry. And so we ask, ‘why?’ And the answer we get is, ‘well, people have always done it.’ You know. You could have answered that one the same way [when] we talk[ed] about racial segregation.”

The Court was hard to read when it came to the second question in the case: assuming states are allowed to keep same-sex marriage bans, will states without a right to same-sex marriage be required to recognize same-sex marriages lawfully preformed in other states. On one hand, states typically recognize marriages performed in other states even if state laws vary on who may marry. On the other hand, if “recognition” becomes the law of the land, just one state allowing same-sex marriages could mean, practically speaking, that all same-sex marriages (performed in the state allowing them) would have to be recognized.

Interestingly, Justice Kennedy asked only one question of the attorneys arguing the recognition question. Might this be the case because he has already decided to vote that same-sex marriage bans are unconstitutional? We may never know, but we will have a better idea by the end of June when the Court issues an opinion in this case.

Read more coverage of the oral argument in this case on SCOTUSblog: http://www.scotusblog.com/.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Employers (and Employees) Win SCOTUS Employment Case

(Jung Soo Kang/Getty Images)

It is a rare Supreme Court case where employers and arguably employees both won (and the Court doesn’t “split the baby” and rule partially in favor of each party). In Mach Mining v. EEOC the only clear losing party is the Equal Employment Opportunity Commission (EEOC).

The Supreme Court held unanimously that a court may review whether the EEOC satisfied its statutory obligation to attempt to conciliate employment discrimination claims before filing a lawsuit.

The Court’s decision is favorable to employers, including state and local governments, who benefit from the EEOC’s statutory mandate to try to resolve employment discrimination cases before suing employers. If the EEOC fails to try to conciliate employers may sue the EEOC. Employees benefit from conciliation because it is faster and less demanding that litigation.

Title VII of the Civil Rights Act of 1964 requires the EEOC to use informal methods of “conference, conciliation, and persuasion” to eliminate an unlawful employment practice before it sues the employer for discrimination. In this case the EEOC found reasonable cause that Mach Mining discriminated against a class of women who applied for mining jobs. Mach Mining claimed that the EEOC failed to conciliate in good faith before suing it. The EEOC responded that its conciliation efforts are not subject to judicial review.

While the Court held that a court may review whether EEOC satisfied its obligation to conciliate, review is narrow. According to the Court, a “strong presumption” favors judicial review of administrative action. This presumption isn’t rebutted in this case because courts routinely enforce other compulsory prerequisite requirements to bringing a Title VII lawsuit, for example, a plaintiff must file a timely charge.

Regarding the scope of the court’s review, the EEOC argued the court should merely review its letters stating that it found reasonable cause of discrimination and that conciliation occurred and failed. Mach Mining argued for what Justice Kagan described as a “deep dive” into the conciliation process. The Court rejected both suggestions as inconsistent with Title VII. Instead, per the statutory requirements, a court should determine “that the EEOC afford[ed] the employer a chance to discuss and rectify a specified discriminatory practice.” Unless an employer provides credible evidence to the contrary, “[a] sworn affidavit from the EEOC stating that it has performed the obligations noted above but that its efforts have failed will usually suffice to show that it has met the conciliation requirement.”

While employers didn’t get everything they asked for in this decision, it is still a win for employers – and for employees who benefit from conciliation instead of litigation.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Supreme Court Holds No Dog Sniffs After Completed Traffic Stops

Drug sniffing dogs are a powerful law enforcement tool used by many city police departments. But may they be used after an already completed traffic stop? No, says a divided Supreme Court. (photo: LA Times)

In a 6-3 decision in Rodriguez v. United States, the Supreme Court held that a dog sniff conducted after a completed traffic stop violates the Fourth Amendment. In a dissent, Justice Alito describes the Court’s holding as “unnecessary, impractical, and arbitrary,” and suggests savvy officers can skirt it.

Officer Struble pulled over Dennys Rodriguez after he veered onto the shoulder of the highway and jerked back on the road. Officer Struble ran a records check on Rodriguez, then questioned his passenger and ran a records check on the passenger and called for backup, and next wrote Rodriguez a warning ticket. Seven or eight minutes passed between Officer Struble issuing the warning, back up arriving, and Officer Struble’s drug-sniffing dog alerting for drugs. Rodriguez argued that prolonging the completed traffic stop without reasonable suspicion in order to conduct the dog sniff violated the Fourth Amendment.

The Court agreed. It concluded that exceeding the time needed to handle the matter for which the traffic stop was made violated the Fourth Amendment. Justice Ginsburg, writing for the majority, relied on Illinois v. Caballes where the Court upheld a suspicionless dog search conducted during (not after) a lawful traffic stop. In that case the Court stated that a seizure for a traffic stop “become[s] unlawful if it is prolonged beyond the time reasonably required to complete [the] mission” of issuing a ticket for the violation. While officers may lengthen stops by checking a driver’s license and inspecting a vehicle’s registration and proof of insurance, those measures are taken to ensure that the vehicles on the road are operating safely. Likewise, officers may lengthen a stop by asking a driver to exit the vehicle for the officer’s safety. A dog sniff, however, is not aimed at officer or highway safety—it is aimed at discovering illegal drugs.

Justice Ginsburg ends her opinion by stating that the critical question “is not whether the dog sniff occurs before or after the officer issues a ticket… but whether conducting the sniff prolongs – i.e., adds time to – the stop.” This statement seems to be contradicted by – or at least avoidable per – Caballes, as Justice Alito suggests in his dissent: “The rule that the Court adopts will do little good going forward. It is unlikely to have any appreciable effect on the length of future traffic stops. Most officers will learn the prescribed sequence of events even if they cannot fathom the reason for that requirement. I would love to be the proverbial fly on the wall when police instructors teach this rule to officers who make traffic stops.”

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

A Quick Look at All Local Government Cases on This Year’s Supreme Court Docket

Summary of all local government cases on the 2014-2015 Supreme Court docketThe Supreme Court’s 2014-2015 docket is now complete. While the same-sex marriage and Affordable Care Act cases will receive the most attention, the docket is chock-full of cases significant to local government. (Jung Soo Kang/Getty Images)

The State and Local Legal Center’s (SLLC) Midterm Review article summarizes all the cases accepted and already decided that will affect local government. Expect decisions in all the cases by the end of June.

Here are some highlights:

Reed v. Town of Gilbert, Arizona and Sheehan v. City & County of San Francisco are probably the most significant cases of the term for local government. Depending on how the Court rules, both could impact every city and county in the United States. The issue in Reed is whether sign codes may treat some categories of temporary signs more favorably than others. If the Court holds they cannot, virtually all local governments will have to rewrite their sign codes. In Sheehan the Court will decide whether the Americans with Disabilities Act applies to arresting a mentally ill suspect who is armed and violent.

The question in Los Angeles v. Patel is whether a hotel registry ordinance which allow police officers to inspect registries without a warrant violates the Fourth Amendment. Even if your city or county doesn’t have a hotel registry ordinance it is likely to be affected by this case. In many states mobile home parks, second-hand dealers like pawnshops and junkyards, scrap metal dealers, and massage parlors are subject to registration and inspection laws and ordinances.

The Court has already decided one of the two Fourth Amendment traffic stop cases it will hear this term. In Heien v. North Carolina the Court held that a police officer’s reasonable misunderstanding that North Carolina required two working rear brake lights did not invalidate a traffic stop. In Rodriguez v. United States the Court will decide whether a police officer violated the Fourth Amendment by requiring a driver to stay a few minutes after an already-completed traffic stop to wait for back up before his canine performed a dog sniff.

In Texas Department of Housing and Community Affairs v. The Inclusive Communities Project the Court will decide whether disparate-impact claims can be brought under the Fair Housing Act. This is the third time the Court has agreed to hear this issue; the two previous cases settled. Local governments have found themselves on both sides of this issue.

Walker v. Texas Division, Sons of Confederate Veterans will be the Court’s second ruling on the newly-minted government speech doctrine. The Court will decide whether Texas can reject a specialty license plate featuring the Confederate Flag because license plates are “government speech.”

The Court will decide a number of employment cases this term including EEOC v. Abercrombie & Fitch. The issue is whether an employer can be sued for failing to accommodate an employee/applicant’s religion because the employer failed to ask if a religious accommodation was needed. Until this case the Equal Employment Opportunity Commission said the applicant/employee had to ask for a religious accommodation.

While the Court has been clear that the Fourteenth Amendment’s Due Process Clause prohibits excessive force against pretrial detainees the Court has not been clear about what exactly that means. In Kingsley v. Hendrickson the Court will articulate the substantive requirements for an excessive force claim brought by a pretrial detainee

T-Mobile South v. City of Roswell is one of the few local government cases already decided. The Court held that local governments must provide reasons when denying an application to build a cell phone tower. The reasons may be included in council meeting minutes issued at the same time as the denial letter.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

In ACA Argument, Justices Kennedy and Roberts Leave Everyone Guessing

Supreme Court facadeIn the case of Justice Kennedy, it was his questions; regarding Chief Justice Roberts, it was his silence… in both cases, cities were left guessing about the future of federal health insurance exchanges under the Affordable Care Act (ACA) after today’s oral argument. (Getty Images)

Today the Supreme Court heard oral argument in King v. Burwell, where it will decide whether federal health insurance exchanges, operating in 34 states, can offer subsidies to middle and low income purchasers of insurance under the Affordable Care Act (ACA).

Simply put, the Court must decide whether it agrees with the Internal Revenue Service (IRS) that the following statutory language, “established by the State,” can include federal exchanges too.

All eyes and ears were on Justice Kennedy and Chief Justice Roberts during the argument. Justice Kennedy is the Court’s “swing” Justice, and Chief Justice Roberts crucially concluded in the first Supreme Court challenge to the ACA that the individual mandate is a constitutional “tax.”

The moment of the argument most likely to be focused on until the Court resolves this case by the end of June was Justice Kennedy asking Michael Carvin, the challengers’ attorney, not once but twice whether a “serious constitutional problem” or a “serious constitutional question” would arise if the Court concluded that federal exchanges could not offer subsidies.  Wouldn’t states then be “coerced” into establishing exchanges to “avoid disastrous consequences”?

Justice Kennedy went on to ask a number of questions of the federal government’s attorney Solicitor General Donald Verrilli too including, at the very end of the argument, whether it made sense to give the IRS the big task of interpreting this statute when billions of dollars are at stake.

After General Verrilli responded that when statutes are ambiguous agencies are tasked with interpreting them whether they raise questions big or small, Chief Justice Roberts chimed in asking whether a subsequent administration could change an agency interpretation. By not asking a question at the heart of this case, not much can be read into his question.

More generally, the argument veered back and forth from the Justices trying determine the best interpretation of the statute to the Justices asking about the practical problems that would arise if subsidies weren’t available. Unsurprisingly, the liberal Justices generally asked questions of the challengers’ attorney and the conservative Justices asked questions of the Solicitor General.

Justice Kagan led the questioning of the challenger’s attorney and Justices Scalia and Alito peppered the Solicitor General with questions. Notably, Justice Scalia asked the Solicitor General whether Congress would really just do nothing if the Court ruled against the federal government. And Justice Alito asked why so few states with federal exchanges filed a brief supporting the federal government.

Both sides tried to claim that, in this case, federalism was on their side.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Don’t Ask, Do Tell: NLC Joins SCOTUS Amicus Brief in Religious Accommodation Case

religious head scarfDo you think employers should ask job applicants about the clothing they might wear for religious reasons? Or should applicants disclose their religious accommodation needs without being asked? (Getty Images)

Traditional HR policy practices hold that employers shouldn’t ask prospective employees about protected characteristics such as age, sex, race, national origin, religion, etc. However, the Equal Employment Opportunity Commission (EEOC) recently decided that if an employer thinks an employee may need a religious accommodation, then the employer must ask about his or her religion. Is the EEOC’s new view correct?

That is what the Supreme Court will decide in EEOC v. Abercrombie & Fitch Stores. Who must ask about the need for a religious accommodation, the employer or the employee/applicant? The State and Local Legal Center’s (SLLC) amicus brief argues the employee/applicant should ask.

Abercrombie & Fitch’s “Look Policy” prohibits headwear, requiring employees on the sales floor to wear clothing consistent with what Abercrombie sells in it stores. Samantha Elauf wore a head scarf to an interview at Abercrombie, but she didn’t ask for a religious accommodation. Rather than asking, her interviewer assumed Ms. Elauf was Muslim and wore the headscarf for religious reasons. Ms. Elauf was ultimately not hired because of the headscarf. The EEOC subsequently sued Abercrombie, alleging it violated Title VII by failing to accommodate Ms. Elauf’s religious beliefs. At trial, the EEOC’s expert testified that some women wear headscarves for cultural rather than religious reasons.

The Tenth Circuit ultimately held in favor of Abercrombie, finding that an applicant/employee “ordinarily must establish that he or she initially informed the employer that [he or she] adheres to a particular practice for religious reasons, and that he or she needs an accommodation for that practice” – steps which Ms. Elauf did not take.

The SLLC’s amicus brief argues that the applicant/employee should have to notify the employer of the need for a religious accommodation. After all, that had been the EEOC’s position until this particular case. A contrary position requires employers to make assumptions based on stereotypes about the physical characteristics that could indicate a person might practice a particular religion. Requiring employers to ask about an employee’s religion to avoid a failure to accommodate claim may lead to employers being liable for a disparate treatment claim. EEOC guidance says that an employer asking about a protected characteristic like religion may be used as evidence of discrimination in a disparate treatment case. And public employers don’t want to ask an applicant/employer about religion to avoid violating the First Amendment’s Establishment Clause.

Amanda Kellar and Chuck Thompson of the International Municipal Lawyers Association wrote the SLLC’s brief, which was joined by the National Conference of State Legislatures, the National League of Cities, the United States Conference of Mayors, the National Association of Counties, the International City/County Management Association, the International Municipal Lawyers Association, the International Public Management Association for Human Resources, the National Public Employer Labor Relations Association, and the National School Boards Association.

If Title VII stands for anything, it is that employers should not stereotype employees based on protected characteristics. Had Abercrombie & Fitch asked Ms. Elauf if she was a Muslim, they would have been doing just that: assuming that all women who wear headscarves do so for religious reasons.

Lisa Soronen bio photoAbout the Author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.