DISQUS

For example, I was one of the attorneys who helped write the briefs for the prevailing party in Reno v. Bossier Parish School Board, a case arising under Section 5 of the Voting Rights Act. See Reno v. Bossier Parish School Board, 528 U.S. 320 (2000); Reno v. Bossier Parish School Board, 520 U.S. 471 (1997).

Here are some of the Supreme Court cases I worked on.

I was "on the brief" for the prevailing party in the landmark federalism case of United States v. Morrison, 529 U.S. 598, 600 (2000).

I filed an amicus brief on behalf of economists and scholars in support of the prevailing party in Watters v. Wachovia Bank, 127 S.Ct. 1559 (2007).

I filed an amicus brief on behalf of the prevailing party in Parents Involved in Community Schools v. Seattle School District No. 1, 127 S.Ct. 2738 (2007).

I also handle cases at the trial and appellate level, such as Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), a case that upheld against a constitutional challenge the ballot initiative sponsored by my clients.

If you lost money, you can write me at hbader@cei.org, or call me at 202-331-2278 to tell me your story. You can also write to me at Hans Bader, Competitive Enterprise Institute, 1001 Connecticut Ave., NW, Ste. 1250, Washington, D.C. 20036.

My background is in constitutional and civil-rights law, not banking law, and I cannot promise you any legal assistance. But maybe I could find a law firm to refer you to. Maybe I could put you in contact with a law firm that does handle class-action lawsuits against banks.

The more people who were affected by this, the greater the likelihood that a law firm could bring a class-action against the bank over this. Thus, it would probably be useful for each of us to learn more about each other's situation.

I know that the Lieff Cabraser law firm has brought class-action lawsuits against banks over things like bank exchange fees (they can apparently be reached at the email address mail@lchb.com); I don't know whether this is something that they would handle, although it couldn't hurt to ask them, I guess.

The telecom immunity provision was invoked in today's ruling in Hepting v. AT&T, in which the judges decided to "remand this case to the district court" "in light of the FISA Amendments Act of 2008, Pub. L. No. 10-261."

As WIRED notes, "Now the Attorney General need only send a letter to Judge Walker, certifying that each telecom did or did not participate. If they did, the government must show Walker a copy of the legal assurances the government gave the companies. Then Walker must dismiss the cases. . .The EFF . . says it will challenge the constitutionality of the amnesty provision." See Ryan Singel, "Appeals Court Punts on AT&T Spying Case Appeal," WIRED, Aug. 21, 2008, available at http://blog.wired.com/27bstroke6/2008/08/appeal....

For the reasons given in my above analysis, Judge Vaughn Walker should promptly dismiss the cases against the phone companies, and uphold the constitutionality of the "amnesty" provision.

The court's ruling allowing the plaintiff to sue without showing that the defendant's employees had a discriminatory purpose, merely because the comments she complained about disproportionately offended her, raises additional problems, aside from conflicting with binding precedents like those discussed above.

The court's ruling may also lead to potential equal-protection problems down the road, by giving a gender-based preference, in allowing women to sue over language for which their male co-workers have no remedy.

Assuming that sexual speech is disproportionately offensive to female employees and thus has a "disparate impact" on them -- as many sexual harassment rulings do -- raises serious equal-protection problems, since it rests on a gender stereotype. In striking down a statute banning "obscene, profane, indecent, vulgar, or suggestive" communications to women, a court observed that laws "based on 'old notions' such as a belief that females should be afforded special protection from 'rough talk' because of their perceived 'special sensitivities' can no longer withstand equal protection scrutiny." See In re Joseph T., 430 S.E.2d 523, 524 (S.C. 1993).

Moreover, it ignores limits contained in "disparate impact" law itself. Disparate impact claims typically require proof that an employer practice systematically excludes female or minority employees, and can't be based on the impact on just one employee. See Coe v. Yellow Freight, 646 F.2d 444 (10th Cir. 1981). The typical sexual harassment case involves just a single plaintiff, who often seeks damages even if other employees of the same gender are perfectly happy with their workplace, or if there are no other employees of her gender in the workplace. In such cases, there simply is no "disparate impact" on the overall gender. In Reeves, the plaintiff seems to have been the only female employee adversely affected by the conduct she recounted.

Moreover, the damages provision of Title VII, 42 USC 1981a, forbids the principal remedy that most harassment plaintiffs seek (damages) in cases of "disparate impact," reserving damages for cases of "intentional discrimination."

The court's ruling is based on a particularly weak argument. It contradicts circuit precedent that requires a showing of purposeful, intentional discrimination for sexual harassment claims.

In the Eleventh Circuit -- unlike some circuits -- the elements of a Title VII sexual harassment claim and a Fourteenth Amendment sexual harassment claim are the same, meaning that a plaintiff must show purposeful, intentional discrimination (by purposeful, I mean an intent to treat differently, not a specific intent to harm -- a defendant who grabs women's buttocks over their protests is not immune from liability merely because he deludedly thinks he is God's gift to women), not just that the plaintiff was reasonably offended.

In Cross v. Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995), the Eleventh Circuit held that "the elements of the two causes of action [sexual harassment claims under Title VII and the Fourteenth Amendment] are the same," meaning that a plaintiff "must prove discriminatory motive or purpose."

The Supreme Court has made clear that the fact that a woman is adversely affected, and that an employer knows this, is not enough to satisfy this exacting standard unless the employer intends to treat the female employee differently:

“Discriminatory purpose,’ however, implies more than intent as volition or intent as awareness of consequences. . .It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part "because of," not merely "in spite of," its adverse effects upon an identifiable group.” Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979)

Thus, for the plaintiff to prevail, she must show that her co-workers aimed offensive comments at her based on her sex (or broadcast the offensive comments specifically to annoy her based on her sex), not just that she was reasonably offended by them and that they were pervasive.

"Title VII does not prohibit profanity alone, however profane. It does not prohibit harassment alone, however severe and pervasive. Instead, Title VII prohibits discrimination, including harassment that discriminates based on a protected category such as sex. Because a claim of sexual harassment under Title VII is a claim of disparate treatment, in order to prevail a plaintiff must show that similarly situated persons not of her sex were treated differently and better." Baldwin v. Blue Cross, 480 F.3d 1287, 1301-02 (11th Cir. 2007); see also Lyle v. Warner Bros., 132 P.3d 211 (Cal. 2006) (sexual jokes not aimed at plaintiff did not support her sexual harassment claim); Scusa v. Nestle U.S.A., Inc., 181 F.3d 958 (8th Cir. 1998); Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737 (8th Cir. 2000); Duncan v. Denver, 397 F.3d 1300 (10th Cir. 2005); Pasqua v. Metropolitan Life Ins., 101 F.3d 514, 517 (7th Cir. 1996); Gallant v. Board. of Trustees, 997 F. Supp. 1231, 1232, 1234-35 (N.D. Cal. 1998).

Courts recognize that being terribly offended, even for good reason, is just not enough for sexual harassment liability where discriminatory intent or purpose is required. For example, the Seventh Circuit, which does not (unlike the Eleventh Circuit) require the same showing to recover on a Title VII claim as on an equal protection claim, recognizes that even grossly bigoted statements made in the presence of a plaintiff doesn't show the intent needed to recover on a 14th Amendment harassment claim. In Huff v. Sheahan, 493 F.3d 893, 902 (7th Cir. 2007), that court upheld a ruling for a harassment defendant under the 14th Amendment, because "relief is available to a plaintiff claiming a hostile work environment only when she can demonstrate that the defendant acted with discriminatory intent." By contrast, itt reversed a ruling for the defendant under Title VII, ONLY because it -- unlike the Eleventh Circuit's decision in cases like Cross v. Alabama -- has precedents specifically allowing plaintiffs to recover for sexual harassment under Title VII absent discriminatory purpose, and specifically holding that the Title VII standard is different from the 14th Amendment standard.

The Eleventh Circuit, by contrast, made very clear in Cross v. State of Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995), that a plaintiff "must prove discriminatory motive or purpose" under BOTH Title VII and the Equal Protection Clause (Section 1983), because "the elements of the two causes of action are the same."

Eleventh Circuit judges have reiterated that understanding ever since. See Mitchell v. Pope, 189 Fed. Appx. 911, 913, 2006 WL 197600111, *1 (11th Cir. July 14, 2006) ("elements of the two causes of action are the same"); Downing v. Bd. of Trustees of Univ. of Alabama, 321 F.3d 1017, 1023 (11th Cir. 2003) ("Cross holds that the elements of a sexual harassment claim under Title VII and the Equal Protection Clause are the same -- meaning that the employee must prove that the state actor intended to discriminate because of the employee's sex") (opinion later withdrawn for other reasons); Downing, 321 F.3d at 1022 n.9 (In Title VII, "this language is aimed at intentional discrimination, and to prove a violation, a plaintiff must profer either direct or indirect evidence of the employer's discriminatory intent").

The Reeves decision conflicts with circuit precedents such as Cross v. Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995) and Baldwin v. Blue Cross, 480 F.3d 1287, 1301-02 (11th Cir. 2007) (requiring proof that "similarly situated persons not of" plaintiff's "sex were treated differently and better").

Reeves justified its jettisoning of the discriminatory intent requirement by saying that such intent is not required in racial harassment cases. But even if that were in fact true (and it does not appear to be in some circuits, see Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005) (holding that racial harassment plaintiff, just like sexual harassment plaintiff, must show that "(1) he suffered intentional discrimination because of his [race]" and "(2) the discrimination was pervasive and regular")), circuit panels are bound by their own past sexual harassment precedents whether or not they seem consistent with other areas of the law, like racial harassment.

Moreover, requiring discriminatory intent or purpose is consistent with how courts handle religious harassment cases, where discriminatory treatment and intent are required, and the panel gave no justification for choosing to ignore those cases in favor of its perception of how racial harassment cases ignore the requirement of discriminatory intent. See Rivera v. Puerto Rico Aqueduct and Sewers Authority, 331 F.3d 183, 190 (1st Cir. 2003) (rejecting religious harassment claim because of absence of discriminatory purpose; "Rosario asserts that the lyrics of the song are offensive to her, given her deep religious convictions. We do not doubt this is so. But the question is not whether a religious person could find the song offensive; it is whether religious animus prompted Rivera to sing it to her").

To overcome the photographer's freedom of religion and free speech rights, the New Mexico Human Rights Commission would need, among other things, to show a compelling interest in restricting her speech. But it cannot.

The only possible interest it could rely on is the state's interest in eradicating sexual orientation discrimination.

But that interest is not compelling, for two reasons.

First, it cannot be treated as compelling for purposes of this case because the state of New Mexico itself discriminates based on sexual orientation in a number of contexts (not just in not treating civil-commitment ceremonies as being analogous to marriages, assuming arguendo that that is discrimination), so it is barred from arguing that eradicating discrimination based on sexual orientation is a compelling interest. That's what the Supreme Court made clear in its Lukumi decision, where it held that a local government could not treat an important interest as compelling where it inconsistently failed to advance that interest, even when in contexts where doing so would have cost nothing in terms of First Amendment rights. See Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546-47 (1993) ("Where government restricts only conduct protected by the First Amendment and fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling"). (This point is developed at length in the briefs in two court cases, Thomas v. Anchorage Equal Rights Commission and Lutheran Church v. FCC.)

So holding Elane Photography liable can't be justified under the strict scrutiny mandated by the First Amendment and the New Mexico Religious Freedom Restoration Act.

Second, eradicating sexual-orientation discrimination is simply not a compelling state interest outside the employment context. See Curran v. Mt. Diablo Council of Boy Scouts of America, 29 Cal.Rptr.2d 580 (Cal. App. 1994) (boy scouts were protected by First Amendment freedom of expressive association against being forced by California public accommodation and gay-rights laws to include gay people as members and leaders, since being forced to do so did not serve a compelling state interest), aff'd, 952 P.2d 218 (Cal. 1998).

Moreover, there is an additional, alternative First Amendment defense that applies here, unrelated to freedom of religion: freedom from compelled speech. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995).

The anti-discrimination statute is being applied by the Commission in a very peculiar way. (I say that as an attorney who used to help adjudicate discrimination cases at the U.S. Department of Education, Office for Civil Rights). And the First Amendment defense is straightforward.

Photography is expressive; most businesses (say, selling hot dogs) are not. Ruling in favor of the photographer is not only consistent with the statute (which forbids discrimination based on customers' sexual orientation, not based on the ceremony they wish to capture on film), but even if that were not the case, ruling in favor of the photographer would not carve out a big exception to the statute's reach or vitiate any important state interests.

Since the photography is expressive, the case should be governed by the U.S. Supreme Court's decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), which held that a state's gay-rights law and public-accommodation law could not be used to force an expressive activity (a parade, in that case) to embrace a message of support for gay causes, because doing that violated the First Amendment.

In response to Frank Davis's question, the home-schooling decision (In re Rachel L.) was by a state court, the California Court of Appeal for the Second Appellate District, whose decisions can theoretically be reviewed by the California Supreme Court.

He may have been thinking about the earlier court ruling in Fields v. Palmdale School District, which was by the 9th Circuit U.S. Court of Appeals, the federal circuit that the Supreme Court reverses more frequently than any other.

Both the California Supreme Court and the U.S. Supreme Court are extremely busy courts that don't hear appeals of most decisions by lower courts beneath them, even from controversial courts like the 9th Circuit (even if those decisions are admitted years later to have been based on an erroneous view of the law). They turn away most (more than 98 percent of) appeals without comment, without addressing their merits. A party seeking review of a court of appeal decision must seek permission to have the case heard by the state supreme court through a petition for review. Then, if the state supreme court refuses to hear the case, the party can try to get the U.S. Supreme Court to hear the case by filing a petition for certiorari.

(The California Supreme Court sometimes depublishes a state court of appeal decision it views as containing bad reasoning and overreaching, thus depriving it of precedential effect, even if the California Supreme Court itself is not sure of how to decide the case. That would be appropriate here, even if the state supreme court were to decide not to hear the case despite its manifest importance, since the court of appeal in this case made peculiar statements about the law even beyond its controversial holding).

The California Court of Appeal's decision was also deeply skeptical of religious-freedom claims generally, in a way at odds with U.S. Supreme Court precedent.

The U.S. Supreme Court has said that courts should not deny people religious exemptions to even laws of paramount national importance, like draft laws, if an individual claimant has a "sincere" religious objection, even if many other people raise insincere pretextual objections. (United States v. Seeger (1965)).

And the Supreme Court allowed an entire religion -- the Amish -- to obtain a constitutionally-based religious exemption to compulsory schooling laws for children beyond the eighth grade level. (Wisconsin v. Yoder (1972)).

Yet here, the Court of Appeal summarily dismissed any religious-freedom objection to compulsory school attendance by home schoolers by claiming that such an objection is "too easily asserted by any parent who wishes to home school his child."

It is absurd to rule out religious exemptions to government schooling as being "too easily asserted," even while permitting such exemptions to military service, given that self-interest is likely to produce a much greater number of fabricated religious objections to military service in a time of war, and given that national defense is much more of a core government function than the public schools are, since national defense is potentially tied to the very survival of a country (whereas education is not a government monopoly).

This is particularly true since this case involves not only religious freedom, but also parental rights guaranteed under the 14th Amendment under Supreme Court rulings like Pierce v. Society of Sisters (1925), which held that parents could send their children to private schools contrary to state laws requiring public school attendance, and Santosky v. Kramer (1982).

If objections really are commonly asserted to public schooling in California (there are apparently 166,000 home-schoolers there), maybe that is a reflection on the poor quality of the state's schools, which produce worse educational outcomes for a higher cost than schools in other states in the region, like Washington State.

Even if that is the case, that is no excuse, under Supreme Court precedent, to summarily dismiss religious objections that are "sincerely" motivated by religious belief, much less to ignore or downplay parental rights.

The California Court of Appeal mentioned the California state constitution and education code (which mandate secular education) as if that somehow weighed against the parents' desire to homeschool their children.

But that is no excuse for brushing aside religious-freedom claims. State constitutional provisions cannot trump federal constitutional rights (such as the right to freedom of religion and parental rights). See Garnett v. Renton School District, 987 F.2d 641, 646 (9th Cir. 1993)(right of religious group to equal treatment by school under federal Equal Access Act override discriminatory requirements of Washington State's establishment clause; "state[s] cannot abridge rights granted by federal law. . .State law must therefore yield").

When I noted that "I spent less time studying than I did watching the sitcom 'Married With Children,'" I was referring to time spent studying outside of class, and was not including class time, which obviously wouldn't be less than the 90 minutes or so I spent daily watching "Married With Children" episodes.

In case the links in my above post go bad, here are places you can find the guidelines and agency policies I cited above:

The Justice Department guidelines can be found at:

(1) Department of Justice, Enforcement of Title VI of the Civil Rights Act of 1964 -- National Origin Discrimination Against Persons with Limited English Proficiency; Policy Guidance, 65 FR 50123 (Aug. 16, 2000); and

(2) Department of Justice, Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons, 67 FR 41467 (June 18, 2002) ("LEP Guidance for DOJ Recipients").

The Education Department policy is:

Parental Involvement Non-Regulatory Guidance (April 23, 2004) (www.ed.gov/programs/titleiparta/parentinvguid.doc).
(see especially answers to questions A-8 and A-9).

The Hartman v. Pena case I cited above was apparently decided in 1995, not 1998.

Further comment from Hans:

Society generally expects people to pick up the tab for their sex lives. For example, noncustodial parents have to make child support payments, even if they did not seek a divorce, and did not do anything wrong during the marriage.

The same principle of picking up the tab should apply to giving your partner AIDS. For example, if you know you have AIDS, and you give AIDS to your partner, who doesn't know you have AIDS, you should have to compensate them for their medical expenses and lost wages. In most states, you can already sue your ex-partner under such circumstances.

In a minority of states, you could not (at least until recently) sue if you contracted AIDS from a non-marital relationship, because the courts said it violated public policy to allow you to sue over an illegal act (non-marital sex was illegal).

That minority view, barring any compensation against a non-marital partner, strikes me as wrongheaded and narrow minded in many ways.

First, it conflicts with Lawrence v. Texas (2003), which struck down state laws banning non-marital sex), as the Virginia Supreme Court recognized in 2005 in abrogating this rule.

Second, it defies common sense, since it effectively encourages deceit and reckless behavior by people who are promiscuous and lie about it to their partner.

Third, it has discriminatory effects, since it bars claims by people, even those in what they thought was a monogamous relationship, simply because they could NOT legally marry (gay people, who cannot marry in most states, would be barred from receiving any compensation by this rule, even in cases of egregious deception and medical harm).

When I noted in the above post that Judge Barrington Parker had ruled that companies can be penalized based on not-yet-proven allegations of environmental wrongdoing, I was speaking of his decision in New York Public Interest Research Group v. Johnson, 427 F.3d 172 (2d Cir. 2005).