Seventh Circuit Holds Employees May Bring Sexual Orientation Employment Discrimination Claims

The Seventh Circuit U.S. Court of Appeals’ ruling in Hively v. Ivy Tech provides a wider interpretation of nondiscrimination law.

After the Civil Rights Act of 1964 was passed, the Supreme Court upheld the law’s application to the private sector. The Seventh Circuit’s new ruling holds that the ban on “sex discrimination” in Title VII encompasses sexual orientation, making it illegal for employers to discriminate against gay, lesbian and bisexual workers. (Getty Images)

The Seventh Circuit Court has become the first federal circuit court of appeals to rule that employees may bring sexual orientation discrimination claims under Title VII. Hively v. Ivy Tech Community College directly affects state and local governments in their capacity as employers in Indiana, Illinois and Wisconsin.

Title VII of the Civil Rights Act of 1964 makes it unlawful for employers to discriminate on the basis of a person’s “race, color, religion, sex or national origin.”

Kimberly Hively is openly lesbian. Last August, she sued Ivy Tech Community College, where she taught as a part-time adjunct professor, claiming the school was violating Title VII of the Civil Rights Act by discriminating against her. She applied for at least six full-time positions between 2009 and 2014, didn’t receive any of them, and in July 2014 her part-time contract was not renewed. She believes her sexual orientation is the reason.

The Seventh Circuit had long held that sexual orientation discrimination claims weren’t cognizable under Title VII. The court decided to revisit this conclusion “in light of developments at the Supreme Court extending over two decades.” These decisions include Obergefell v. Hodges (2015), which granted same-sex couples a constitutional right to marry.

Hively offered two theories for why “sex discrimination” includes discrimination on the basis of sexual orientation, both of which the 8-3 en banc panel found persuasive.

First, the court considered the “comparative method” in which it asked if Hively might have been treated the same way if everything else in the situation was constant except Hively’s sex. Hively alleged that, had she been a man romantically involved with a woman, she would have been promoted and not fired. So, in short, she was disadvantaged because she is a woman.

Likewise, the U.S. Supreme Court has long recognized that sex stereotyping is a form of sex discrimination. “Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.”

Second, in Loving v. Virginia (1967), the Supreme Court held that bans on interracial marriage are unconstitutional. According to the Seventh Circuit per Loving, “[i]t is now accepted that a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits.”

Miscegenation laws were defended because both parties were barred from marrying each other, but the Supreme Court rejected that rationale. If you change the sex of one of the partners in a lesbian couple (just like if you change the race of one person in an interracial couple) “the outcome would be different.” According to the court, “[t]his reveals that the discrimination rests on distinctions drawn according to sex.”

The Supreme Court is likely to review Hively v. Ivy Tech Community College because it creates a circuit split on the meaning of a key term in Title VII. For Hively to prevail, Justice Kennedy’s vote is likely critical.

This term, the Supreme Court was supposed to decide whether transgender students have a right to use the bathroom consistent with their gender identity. Gloucester County School Board v. G.G. would have required the court to interpret Title IX’s language “on the basis of sex.”

The Supreme Court sent this case back to the Fourth Circuit to rehear because President Donald Trump’s Department of Education (DOE) pulled a “Dear Colleague” letter written by President Barack Obama’s DOE interpreting the phrase “on the basis of sex” to include gender identity.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.

Mayor Sal Panto Testifies for Brownfields Redevelopment Funding

“Turning polluted properties back into productive real estate helps us create jobs in distressed communities while simultaneously improving public health and safety.”

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Easton, Pennsylvania, Mayor Sal Panto describes his community’s brownfields redevelopment successes to the U.S. House of Representatives Energy and Committee’s Environment Subcommittee. (Sam Warlick/NLC)

On Tuesday, Mayor Sal Panto of Easton, Pa., testified before the U.S. House of Representatives Energy and Commerce Committee’s Environment Subcommittee to advocate for brownfields redevelopment funding. Mayor Panto, Chair of the NLC Energy, Environment and Natural Resources Committee, commended the committee for addressing municipal liability and identified further areas for improvement.

As a testament to the impact of brownfield projects in local communities, Mayor Panto described how the City of Easton leveraged grant money to clean up the asbestos-tainted Simon Silk Mill site for mixed-use redevelopment. Currently, the site is reopening with retail and arts offerings for the local community.

“As a local government official, I can attest to the fact that brownfields redevelopment is a powerful economic tool,” said Mayor Panto. “Turning polluted properties back into productive real estate helps us create jobs in distressed communities while simultaneously improving public health and safety.”

Present in significant number across all U.S. states and Congressional districts, brownfields are commonly described as “real property, the expansion, redevelopment or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant or contaminant.” On behalf of NLC, Mayor Panto urged the subcommittee to increase or maintain the current overall authorization level for the EPA Brownfields Program.

He provided several specific suggestions:

  • Increasing the single-site grant cap to $1 million, or $2 million via administrator waiver,
  • Ensuring that the ownership requirement for multi-purpose grants will not complicate existing issues around municipal liability, and
  • Allowing that up to 10% of grants be used for administrative costs to cover rent, utilities and other expenses.

Additionally, Mayor Panto applauded the House for addressing several issues previously raised by NLC, including the issue of voluntary acquisition of property and the grant eligibility for local governments where properties were acquired prior to January, 2002.

In addition to Mayor Panto, the Subcommittee heard from Mayor J. Christian Bollwage, Elizabeth, NJ and representatives of the Tennessee Department of Environment and Conservation, the Virginia Department of Environmental Quality, and Smart Growth America’s Leadership Institute. Governor Parris Glendening, president of the Leadership Institute, noted that “historically, the EPA Brownfields program has been a lifeline for communities that are struggling to overcome blight and contamination at abandoned industrial sites.”

For more information on the Congressional hearing, read Mayor Panto’s written testimony and the National League of Cities letter on brownfields. For more information on the EPA’s Brownfields Program, read NLC’s issue brief on modernizing the brownfields redevelopment program.

About the author: Sam Warlick is a Senior Communications Associate at the National League of Cities.

Cities Are Fighting to Close the Pay Gap – But States Are Standing in the Way

NLC Research Director Christy McFarland discusses how state preemption of local authority may be adding to the gender wage gap.

NLC’s report City Rights in an Era of Preemption analyzed state preemption of local authority across seven key issue areas, including paid leave and minimum wage.

The full version of this post can be found on Route Fifty.

Tuesday – dubbed Equal Pay Day – symbolizes roughly how many days into the new year that women must work to earn what men did the previous year. As grassroots efforts and awareness activities take place across the country, cities are working every day to find innovative solutions that address the discrepancy.

From Minneapolis and St. Paul, Minnesota, to Morristown, New Jersey, and Santa Monica, California, cities are recognizing the need for policies that help close the persistent wage gap between men and women. And in the latest effort by cities to address the pay divide, the city of Philadelphia unanimously passed a law that bans employers from asking about wage history.

Nationally, though, women are still at a disadvantage, making 80 cents to every dollar of male earnings. Historical discrimination facing women in the workplace, as well as social expectations and the “motherhood penalty” are contributing factors.

Given the scale and multidimensional nature of the challenge, cities are confronting it on a variety of fronts, from salary history bans to minimum wage ordinances to paid leave laws. These efforts, however, are often thwarted by state actions against cities.

Read the full piece on Route Fifty.

About the author: Christiana K. McFarland is NLC’s Research Director. Follow Christy on Twitter at @ckmcfarland.

Local Governments Sue Over Sanctuary Jurisdictions Executive Order

The executive order is under litigation – but how worried should cities be that the president will actually take away money from sanctuary jurisdictions in the near future?

San Francisco is one of a number of cities that have sued the Trump administration in response to the sanctuary cities executive order, arguing that enforcing federal immigration laws does not relate to federal funding they receive for infrastructure, health care, education or other fundamental systems. (Getty Images)

Five days after assuming office, President Donald Trump signed an executive order threatening to take away federal funding from so-called sanctuary jurisdictions. The executive order leaves it to the Secretary of Homeland Security to define “sanctuary jurisdictions.” Unsurprisingly, a number of cities and counties have sued the president over this executive order, including Santa Clara County, San Francisco and Richmond, California, Seattle, and Lawrence and Chelsea, Massachusetts.

By mid-April, a court will likely grant or deny a preliminary injunction in the Santa Clara County case. We know the legal allegations the cities and counties have made against the president, and the president has responded to the Santa Clara County and San Francisco lawsuits.

All of the complaints make different arguments and frame the legal issues slightly differently. Here are the three main arguments:

1) Spending Clause

The U.S. Constitution’s Spending Clause allows Congress to place conditions on federal money local governments receive. The local governments argue that Spending Clause authority resides with Congress – not with the president. Even if Congress had the authority to take away federal funding from sanctuary jurisdictions per the Spending Clause, the president lacks the same authority as a matter of separation of powers.

The Supreme Court has ruled that conditioning the receipt of federal funds may not be coercive, and that the conditions must be stated unambiguously and relate to the federal interest in the grant program. The local governments suing President Trump argue that these requirements are not met.

In NFIB v. Sibelius (2012), Chief Justice John Roberts famously described the Affordable Care Act’s requirement to withhold all Medicaid funding if states refused to agree to the Medicaid expansion as a coercive “gun to the head.” In that case, states stood to lose more than 10 percent of their overall budget by not agreeing to the Medicaid expansion. Santa Clara County, for example, claims it will lose 15 percent of its budget if it loses all federal funding.

The Supreme Court has stated that when Congress, using its spending power, imposes conditions on the receipt of federal funds, it must do so “unambiguously.” None of the federal funding local governments receive requires them to participate in enforcing federal immigration laws.

Likewise, the Supreme Court has held that the conditions Congress places on federal grants must be “germane” or “related to” the federal interest in the grant program. The local governments argue that enforcing federal immigration laws does not relate to federal interests in federal funding they receive for infrastructure, health care, education, etc.

2) Fourth and Tenth Amendments

The sanctuary jurisdictions executive order states that the attorney general may take “appropriate enforcement action” against any entity which has in effect a “statute, policy or practice that prevents or hinders the enforcement of federal law.” This language – and the fact that the executive order reestablished Secure Communities and requires the Secretary of Homeland Security to publish a weekly list of jurisdictions that don’t honor Immigration and Customs Enforcement (ICE) detainers – has lead local governments to conclude that the executive order requires local governments to comply with ICE detainers.

In their lawsuits, the local governments claim that complying with ICE detainers violates the Tenth and Fourth Amendments.

When someone is arrested, ICE receives their fingerprints and may request through an ICE detainer that a local government hold the person so that ICE can pick them up and deport them. Numerous courts have held that complying with ICE detainers violates the Fourth Amendment because such detainers are rearrests not supported by a warrant.

Following the sanctuary jurisdictions executive order, Miami-Dade County decided to comply with ICE detainers and was sued. A judge ruled that Miami-Dade County lacks the power under the Tenth Amendment, which reserves powers not delegated to the federal government to the state, to comply with warrantless ICE detainers. Enforcing federal immigration law is the sole responsibility of the federal government.

3) 8 U.S.C. 1373

The sanctuary jurisdictions executive order requires local governments to comply with 8 U.S.C. 1373. This statute bars prohibitions on government entities from maintaining or sharing citizenship or immigration status information.

The local governments suing in this case note that 8 U.S.C. 1373 does not require them to collect information about immigration status. They do not collect this information and are therefore in compliance with 8 U.S.C. 1373, they argue.

San Francisco argues that it complies with 8 U.S.C. 1373 but that the statute violates the Tenth Amendment. The Supreme Court has interpreted the Tenth Amendment to contain an anti-commandeering requirement wherein local governments cannot be required “to enact or administer a federal regulatory program.”

Federal response

President Trump’s response to the Santa Clara County and San Francisco complaints should alleviate any fears that the president intends to take away any money from sanctuary jurisdictions any time soon. The administration’s response to the Santa Clara County complaint describes five steps which would have to occur before any local government will be deprived of federal funds (none of which have yet occurred):

(1) the Attorney General and the Secretary of Homeland Security must determine exactly what constitutes “willful refusal to comply with 8 U.S.C. § 1373;” (2) the Secretary must identify any state or local governments that constitute “sanctuary jurisdictions” and make formal designations to that effect; (3) the Secretary and the Attorney General must decide which federal funding sources are “necessary for law enforcement purposes;” (4) the Secretary and the Attorney General must then determine how to “ensure” that sanctuary jurisdictions are ineligible to receive the relevant grant funds; and (5) the Secretary and the Attorney General must determine how to implement those actions “consistent with law.”

A few aspects of the administration’s response to the Santa Clara County and San Francisco complaints are noteworthy.

First, both responses avoid defending the constitutional claims; instead, the administration argues that, because no federal funding has been taken away from either local government, the cases aren’t yet ready to be reviewed by a court.

Second, the administration disavows the notion that all federal funding can be taken away from sanctuary jurisdictions. More specifically, in the Santa Clara County complaint, the administration argues that only jurisdictions that “willfully refuse to comply” with 8 U.S.C. 1373 become “not eligible to receive Federal grants.” But as Santa Clara County points out in its response, “it is telling that the administration neither identifies a single grant that imposes that condition nor addresses the numerous bills to do so that Congress considered and rejected.”

Finally, both administration responses conspicuously avoid any acknowledgement that the executive order may require local governments to comply with warrantless ICE detainers.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.

Why the City of New Orleans Just Ended Cash Bail for Low-Risk Crimes

A new policy promises to save the city money and enable the court to tailor conditions to an individual rather than relying on a person’s ability to pay.

By choosing to reserve pretrial jail detention only for those who pose a real public safety or flight risk, the city of New Orleans is leading the way toward more fair and effective justice system policies in Louisiana. (Getty Images)

In the past, low-income defendants who were charged with minor municipal offenses in New Orleans faced a quagmire. People with charges such as loitering or public intoxication could face up to a month in jail before they even went to trial simply because they could not afford bail. Sometimes, these charges would not have resulted in any jail time even if the individual was found guilty. On any given day, three out of 10 jail beds were filled by people incarcerated simply because they could not afford to pay their bail or fines and fees. In New Orleans, as in many other cities, the problems within the system disproportionately affected minority communities. In 2015, black New Orleanians, who comprise roughly 59 percent of the population, paid $5.4 million in bond premiums, or 84 percent of the $6.4 million total.

Losing a primary caregiver or earner to jail for even three days can devastate a family with few resources, leading to a cascade of problems including eviction, job loss and possibly intervention from child protective services.

Jailing people only because they cannot afford bail not only hurts families but costs cities money as well. In 2015, New Orleans spent $6.4 million detaining people who were jailed simply because they could not pay. This equates to 3,947 people who spent a total of 199,930 days in jail.

In response to these issues, the city of New Orleans recently passed an ordinance which ends the use of cash bail for municipal offenses for low-risk crimes. While the legislation eliminates the practice of cash bail for most municipal offenses, it also meets public safety needs by providing exceptions for charges such as simple battery and domestic abuse violence. In these cases, the municipal court makes a decision to impose non-financial release conditions or, in rare cases, preventative detention. The new policy also provides exceptions for people who get rearrested or fail to appear for their court date.

Starting in April, people charged with minor municipal offenses, regardless of their ability to pay, will be able to return to their families and take care of their responsibilities while waiting for their case to come before a judge. Passed unanimously by the city council in January, the ordinance has the support of both law enforcement and community advocates.

Support from the Pretrial Justice Institute, the Vera Institute of Justice, and the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge helped the city accomplish this crucial change to our local justice system. As the lead sponsor of the legislation, I prioritized this reform to make sure New Orleans uses its resources wisely, reduces harm to families and communities, and protects public safety.

Read more about NLC’s efforts to support criminal justice reform.

About the author: Councilmember Susan Guidry was elected to the New Orleans City Council as the District A representative in March 2010, and was elected to a second term in 2014. Guidry has served as chair of the council’s Criminal Justice Committee throughout her tenure.

Update: The Gorsuch Confirmation Hearings

While federalism was rarely discussed, and preemption wasn’t discussed at all, one particular issue of interest to local governments was explored at length.

Judge Neil Gorsuch testifies before the Senate Judiciary Committee during his confirmation hearing on Wednesday, March 22, 2017. (Wikimedia Commons)

Confirmation hearings generally follow a predictable course, and Judge Neil Gorsuch’s hearings have been no exception. In most cases, senators not aligned with the president’s political party ask the nominee pointed questions on controversial topics which the nominee does his or her best to politely avoid answering. As a result, issues of interest to state and local governments often receive little meaningful attention.

Apart from two notable exceptions during Judge Gorsuch’s hearings – one occasion when a friendly Senator Jeff Flake (R-AZ) asked Judge Gorsuch whether his ruling in a particular case was consistent with the “principle of states as laboratories of democracy,” and another occasion when friendly Senator Mike Crapo (R-ID) asked Judge Gorsuch to discuss the Tenth Amendment – federalism was rarely discussed, and preemption wasn’t discussed at all. Likewise, many issues of particular importance to local governments, such as qualified immunity and property rights, were also not explored.

Judge Gorsuch did state numerous times that judges should not act as legislators. “I get four law clerks, [each] for one year at a time. If you were to make laws, you wouldn’t design a system where you’d let three older people with four law clerks straight out of law school legislate for a country of 320 million people.”

Judge Gorsuch was also not asked about his concurring opinion from last year in Direct Marketing Association v. Brohl in which he strongly implied that, given the opportunity, the U.S. Supreme Court should overrule Quill Corp. v. North Dakota (1992). In Quill, the Supreme Court held that states cannot require retailers with no in-state physical presence to collect sales tax.

The issue of most interest to state and local governments discussed more at length was Justice Gorsuch’s views on Chevron deference.

In Chevron v. NRDC (1984), the Supreme Court held that courts should defer to reasonable agency interpretations of ambiguous statutes. State and local governments generally prefer that courts not defer to federal agency regulations because this deference gives federal agencies a lot of power.

Less than six months ago, Judge Gorsuch criticized Chevron deference in a concurring opinion, leading to speculation that, if he becomes a Supreme Court Justice, he would vote to overrule Chevron. When asked about this concurring opinion, Judge Gorsuch stated that he wrote separately “to tee up questions for my bosses [the Supreme Court justices].” He continued: “I don’t know how I would rule if I were a Supreme Court justice on the question.”

Apart from the question of whether Judge Gorsuch believes in precedent (he does, and has written a book about it), three additional cases/topics came up repeatedly during the confirmation hearings. Judge Gorsuch avoided expressing opinions on Roe v. Wade (1973; abortion) and Citizens United v. FEC (2010; campaign finance), stating they are “the law of the land.” He was also asked to defend his dissenting opinion in the “frozen-trucker case” wherein the majority of the court ruled in favor of a truck driver who claimed he was wrongfully fired for disregarding his supervisor’s instructions to stay with a broken down trailer in freezing weather.

Unsurprisingly, Judge Gorsuch came to the hearings prepared. When accused of not being a friend to the “little guy,” he cited a long list of cases where he ruled in favor of the “little guy.” When asked if he is an originalist (one who interprets the Constitution’s meaning as stable from the time of enactment), he rejected being labeled and pointed to cases where liberal justices have tried to determine the framer’s intent in interpreting a provision of the U.S. Constitution. More fundamentally, he tried to portray himself as well within the legal mainstream. Finally, he noted that he rarely dissents – but when he has, he has done so “in about equal numbers from judges appointed by presidents from the two parties.”

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.

Supreme Court Will Not Decide Transgender Bathroom Case

The case revolves around the interpretation of a federal regulation that bans discrimination “on the basis of sex” in schools that receive federal money. The legal question is whether it can also ban discrimination based on gender identity.

The Trump Administration’s reversal of a rule on transgender students’ rights has effectively removed the case from the Court’s docket. (Getty Images)

The Supreme Court will not decide – at least not this term – whether transgender students have a right to use the bathroom consistent with their gender identity, due to changes in position on this issue from the Obama Administration to the Trump Administration.

Title IX prohibits school districts that receive federal funds from discriminating “on the basis of sex.” A Title IX regulation states that, if school districts maintain separate bathrooms (locker rooms, showers, etc.) “on the basis of sex,” they must provide comparable facilities for the other sex.

In a 2015 letter, the Department of Education (DOE) interpreted the Title IX regulation to mean that, if schools provide for separate boys’ and girls’ bathrooms, transgender students must be allowed to use the bathroom consistent with their gender identity. DOE and the Department of Justice reaffirmed this stance in a May 2016 “Dear Colleague” letter.

On February 22, 2017, DOE issued a “Dear Colleague” letter withdrawing the previous letters. The new “Dear Colleague” letter takes no position on whether the term “sex” in Title IX includes gender identity.

G.G. is transgender. The Gloucester County School Board prevented him from using the boy’s bathroom. He sued the district arguing that is discriminated against him in violation of Title IX.

In November 2016, the Supreme Court agreed to decide two questions in Gloucester County School Board v. G.G. First, should it defer to DOE’s letter interpreting the regulation? Second, putting the letter aside, should the Title IX regulation be interpreted as DOE suggests?

The Fourth Circuit ruled in favor of G.G. The court gave Auer deference to DOE’s letter. Per Auer v. Robbins (1997), a court generally must defer to an agency’s interpretation of its ambiguous regulations. According to the Fourth Circuit, the Title IX regulation is ambiguous because it is “susceptible to more than one plausible reading because it permits both the Board’s reading (determining maleness or femaleness with reference exclusively to genitalia) and the Department’s interpretation (determining maleness or femaleness with reference to gender identity).”

Despite the 2015 and 2016 letters being rescinded, both parties still wanted the Supreme Court to decide this case. As the parties pointed out, the second question – how to interpret the Title IX regulations regardless of DOE’s position – doesn’t depend on the views of either administration.

Nevertheless, the Supreme Court has sent this case back to the Fourth Circuit to rehear it in light of the new “Dear Colleague” letter. That ruling may again to appealed to the Supreme Court.

It seems likely that sooner rather than later, and probably with the benefit of nine Justices, the Supreme Court will again be considering the question of the rights of transgender students.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.

The Trump Administration and Waters of the U.S.

President Donald Trump recently signed an executive order aimed at rolling back the Waters of the U.S. (WOTUS) rule, an Obama-era rule designed to protect the streams and wetlands that form the foundation of the nation’s water resources. What will happen to current WOTUS litigation following the president’s recent executive order?

(Getty Images)

Per the Clean Water Act, “Waters of the United States” (WOTUS) are parcels of land, such as the wetlands pictured above, which are federally regulated by the EPA and the Army Corps of Engineers. (Getty Images)

President Donald Trump’s executive order Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule calls for the “rescinding or revising” of the Waters of the United States (WOTUS) definitional rule published in the summer of 2015. Many state and local governments objected to the broad nature of these regulations, in particular to the expansive definition of ditches and the ambiguous definition of tributaries.

“The EPA so-called Waters of the United States rule is one of the worst examples of federal regulation, and it has truly run amok, and is one of the rules most strongly opposed by farmers, ranchers and agricultural workers all across our land,” said President Trump on Tuesday.

The executive order acknowledges that rewriting the WOTUS definitional regulations will require going through the lengthy and complicated process under the Administrative Procedures Act which the 2015 final regulations endured. This process involves proposing a new rule, receiving and responding to (likely thousands) of comments, and issuing a final rule.

The current WOTUS regulations are subject to complicated litigation. In October 2015, the Sixth Circuit issued a temporary stay of the regulations preventing them from going into effect nationally. In February 2016, the Sixth Circuit ruled that it, rather than a federal district court, has jurisdiction to rule on whether the WOTUS rule exceeded the Clean Water Act.

In January 2017 the Supreme Court agreed to review the Sixth Circuit ruling that an appellate court – not a district court – has jurisdiction to rule on WOTUS. This case, National Association of Manufacturers v. Department of Defense, will not be heard until late 2017, meaning the Supreme Court may not issue an opinion in this case until as late as June 2018.

What will be the fate of all this WOTUS litigation over the current rule in light of the executive order? We don’t know – but the executive order directs the Attorney General to “inform any court of such review and take such measures as he deems appropriate concerning any such litigation pending the completion of further administrative proceedings related to the rule.”

The Attorney General may ask the Sixth Circuit to voluntarily vacate its decision temporarily staying the regulations, given that the new administration intends to change them. The Sixth Circuit is more likely to agree to this if none of the parties object. A number of states and environmental groups have intervened in support of the current WOTUS regulations and may object.

If the Sixth Circuit vacates the stay, the practical effect is that the current regulations would no longer be valid. Vacatur of the Sixth Circuit stay also would likely render moot the Supreme Court challenge on jurisdiction. If the Sixth Circuit refuses (or isn’t asked) to vacate the Sixth Circuit decision regarding the stay, the Supreme Court jurisdiction litigation is likely to proceed indefinitely.

Given that defining WOTUS has been so difficult and contentious, almost no matter what new definition is proposed it too will be subject to litigation.

The executive order instructs that Justice Antonin Scalia’s decision in Rapanos v. United States be “considered” in defining the term “navigable waters.” Rapanos is a 4-1-4 decision. Justice Scalia wrote the plurality opinion, defining this term more narrowly than Justice Kennedy’s solo concurring opinion. The Sixth Circuit considered Justice Anthony Kennedy’s opinion controlling. If the new definition of WOTUS relies on Justice Scalia’s opinion, it will almost certainly be challenged on this ground, along with many others.

Interested in more WOTUS news? Lisa Soronen contributed a previous CitiesSpeak blog post about the jurisdictional determinations issued by the Army Corps of Engineers under the Clean Water Act.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.

What’s Next for the Supreme Court’s Transgender Bathroom Case?

The case revolves around the interpretation of a federal regulation that bans discrimination “on the basis of sex” in schools that receive federal money. The legal question is whether it can also ban discrimination based on gender identity.

hear oral argument in the case next month, if not before. (Getty Images)

Although the Supreme Court will hear oral arguments in the case next month, if not before, the Trump administration’s reversal of a rule on transgender students’ rights could potentially remove the case from the Court’s docket. (Getty Images)

The fate of the most controversial case the Supreme Court has agreed to decide this term is uncertain now that the Department of Education (DOE) has issued a “Dear Colleague” letter withdrawing a previous letter requiring school districts to allow transgender students to use the bathroom consistent with their gender identity.

Title IX prohibits school districts that receive federal funds from discriminating “on the basis of sex.” A Title IX regulation states that, if school districts maintain separate bathrooms (locker rooms, showers, etc.) “on the basis of sex,” they must provide comparable facilities for the other sex. In a 2015 letter DOE interpreted the Title IX regulation to mean that, if schools provide for separate boys’ and girls’ bathrooms, transgender students must be allowed to use the bathroom consistent with their gender identity. The new “Dear Colleague” letter takes no position on whether the term “sex” in Title IX includes gender identity.

The Supreme Court has agreed to decide two questions in Gloucester County School Board v. G.G.  First, should it defer to DOE’s letter interpreting the regulation? Second, putting the letter aside, should the Title IX regulation be interpreted as DOE suggests?

G.G. is biologically female but identifies as a male. The Gloucester County School Board prevented him from using the boy’s bathroom. He sued the district, arguing that it discriminated against him in violation of Title IX. The Fourth Circuit Court ruled in favor of G.G, giving Auer deference to DOE’s letter.

Per Auer v. Robbins (1997), a court generally must defer to an agency’s interpretation of its ambiguous regulations. According to the Fourth Circuit, the Title IX regulation is ambiguous because it is “susceptible to more than one plausible reading because it permits both the Board’s reading (determining maleness or femaleness with reference exclusively to genitalia) and the Department’s interpretation (determining maleness or femaleness with reference to gender identity).”

Despite the 2015 letter being rescinded, both parties still want the Supreme Court to decide this case. On SCOTUSblog, Amy Howe describes some of the Court’s options: “Among other things, they could send the case back to the Fourth Circuit for it to weigh in more fully on the Title IX question in light of the government’s changed position, or they could forge ahead and rule on that question themselves. At the very least, we should know more about the justices’ inclinations when they hear oral arguments in the case next month, if not before.”

Putting aside the factual context of this case, state and local governments, acting through the State and Local Legal Center, have criticized Auer deference in Supreme Court amicus briefs. The Gloucester County School Board asked the Supreme Court to decide whether to overturn Auer, but the Court refused to consider this question.

Two states – Tennessee and Arkansas – have passed laws that preempt local non-discrimination provisions.

“Preemption efforts – where state law nullifies a municipal ordinance or authority – lead to a loss of local control and can have far-reaching economic and social impacts in our communities,” said National League of Cities (NLC) CEO and Executive Director Clarence E. Anthony. NLC’s latest report, City Rights in an Era of Preemption, examines the prevalence of state preemption across the country.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.

Supreme Court Midterm Review for Local Governments 2017

The Supreme Court’s 2016-2017 docket is now set – and a number of cases will directly impact local governments.

photo - Supreme Court in Spring with Fountain

The Court may decide to rehear tied (4-4) cases next term, when a new Justice will presumably join the bench. (Getty Images)

This article covers cases of interest to local governments which the Court accepted after September 15, 2016 and agreed to hear this term. (Here is a summary of cases of interest to local governments which the Court agreed to hear before September 15, 2016.) The Court is still down a Justice, but has accepted as many cases as usual (about 75) on its 2016-2017 docket. In theory, all the cases discussed below will be decided by June 30, 2017.

The Supreme Court’s decision from this term most likely to receive significant media attention involves a transgender student who wants to use the bathroom consistent with his gender identity. However, Gloucester County School Board v. G.G. will not directly affect local governments.

Provocation

In Los Angeles County v. Mendez,* the Supreme Court must decide whether to accept or reject the Ninth Circuit’s “provocation” rule. Per this rule, “where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use of deadly force.”

It is undisputed that police officers used reasonable force when they shot Angel Mendez. As officers entered, unannounced, the shack where Mendez was living they saw a silhouette of Mendez pointing what looked like a rifle at them. Yet the Ninth Circuit awarded him and his wife damages because the officers didn’t have a warrant to search the shack, thereby “provoking” Mendez.

The Mendezes also argue that, putting the provocation theory aside, the officers are liable in this case because their unconstitutional entry “proximately caused” them to shoot Mendez. Many Americans own guns, so the Court argued it is reasonably foreseeable that, if officers barge into a shack unannounced, the person in the shack may be holding a gun.

Qualified Immunity

United States Border Patrol Agent Jesus Mesa, Jr., shot and killed Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, who was standing on the Mexico side of the U.S.-Mexico border. At the time of the shooting, Agent Mesa didn’t know that Hernandez was a Mexican citizen.

One question in Mesa v. Hernandez is whether qualified immunity may be granted or denied based on facts unknown to the officer at the time of the incident, such as the victim’s legal status. The Fifth Circuit granted Agent Mesa qualified immunity based on the fact that Hernandez was a Mexican citizen even though Agent Mesa didn’t know that at the time of the shooting.

Given the rapid pace of police work, it is not unusual for officers to learn a variety of information after they have used force, which supports their qualified immunity claim (i.e. the person they shot had a gun, had threatened another officer or citizen, etc.). Considering this kind of after-the-fact information in the qualified immunity analysis would be favorable to officers.

But the question in this case is whether qualified immunity may be granted or denied based on facts discovered later. In some cases, officers may learn after-the-fact information that undermines their claim for qualified immunity (i.e. the person they shot stated he had a weapon but did not, had been mistakenly perceived to have threatened another officer or citizen, etc.). Considering this kind of after-the-fact information in the qualified immunity analysis would be unfavorable to officers.

Free Speech

During the fall, the Supreme Court accepted three First Amendment free speech cases. This is not good news for local governments, as the Supreme Court routinely and sometimes unanimously votes against states and local governments in First Amendment free speech cases.

Packingham v. North Carolina* is probably the First Amendment case of most interest to local governments as the Supreme Court is likely to discuss whether the statute at issue in the case is content-based or content-neutral.

The issue in this case is whether a North Carolina law prohibiting registered sex offenders from accessing commercial social networking websites, where the registered sex offender knows minors can create or maintain a profile, violates the First Amendment.

Lester Packingham was charged with violating the North Carolina statute because he accessed Facebook. In the posting that got him in trouble, Packingham thanked God for the dismissal of a ticket.

If a statute limits speech based on content, it is subject to strict (nearly always fatal) scrutiny. In Reed v. Town of Gilbert, Arizona (2015), the Supreme Court held that the definition of content-based is very broad.

The North Carolina Supreme Court concluded that the statute is a “content-neutral” regulation because it “imposed a ban on accessing certain defined commercial social networking websites without regard to any content or message conveyed on those sites.”

Waters of the U.S.

The Supreme Court has agreed to decide whether federal courts of appeals versus federal district courts have the authority to rule whether the “Waters of the United States” (WOTUS) regulations are lawful in National Association of Manufacturers v. Department of Defense.

Per the Clean Water Act, a number of decisions by the Environmental Protection Agency (EPA) Administrator must be heard directly in federal courts of appeals, including agency actions “in issuing or denying any permit.”

A definitional regulation like the WOTUS regulation does not involve the issuing or denying of a permit. Nevertheless, the Sixth Circuit Court of Appeals concluded that it has jurisdiction to decide whether the WOTUS regulations are lawful.

Judge McKeague, writing for the court, relied on a 2009 Sixth Circuit decision National Cotton Council v. EPA, holding that this provision encompasses “not only… actions issuing or denying particular permits, but also… regulations governing the issuance of permits.” The definition of WOTUS impacts permitting requirements.

…and more

The work of the Supreme Court never ends. The Court has already accepted one case for next term involving a local government. In District of Columbia v. Wesby, the Supreme Court will decide whether, when the owner of a vacant house informs police he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects’ claims of an innocent mental state.

*Indicates a case where the SLLC has filed or will file an amicus brief.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.