EJS Files Amicus Briefs in Several Supreme Court Cases

By Kimberly Thomas Rapp and Claudia Peña

The U.S. Supreme Court this term is hearing a number of cases that may have important implications for maintaining and advancing civil rights in the years ahead. EJS has partnered with colleagues around the country to file amicus curiae or friend of the court briefs in several matters.

Ricci v. DeStefano

In the 1976 Washington v. Davis case, black police officers and recruits sued the Metropolitan Police Department in the District of Columbia for violation of their equal protection rights. The black officers alleged that an employment test effected unconstitutionally disparate results resulting in their exclusion from further employment consideration with the police department. The Supreme Court determined then that a showing of disparate impact alone was insufficient for plaintiffs to prevail without proof of the police department’s racially discriminatory motivation.

Now, more than 30 years later in Ricci v. DeStefano, it is the white firefighters who have sued the New Haven Fire Department in Connecticut for violation of their rights under equal protection and Title VII. The white firefighters allege that the fire department inappropriately failed to certify the results of an employment test that disparately excluded black firefighters from further employment consideration.

EJS provided technical support on contemporary discrimination to our friends at the Opportunity Agenda on its amicus brief in support of the City of New Haven. The Opportunity Agenda, with the assistance of Ankur Goel, Kelly Falls, and Amy Granger of McDermott, Will & Emory, LLP., argued that investigating and responding to disparate outcomes is an essential part of identifying discriminatory practices and ensuring equal opportunity. Further, the brief argued that attending to disparate outcomes is particularly important when addressing hidden and structural biases.

Additionally, EJS joined the Lawyers’ Committee for Civil Rights, National Urban League and the NAACP, in filing a brief in support of the City of New Haven. The brief, drafted by Michael Foreman of the Pennsylvania State University School of Law and John Brittain and Sarah Crawford of the Lawyers’ Committee, argued that acting with a consciousness of race does not always result in a racial classification under law or trigger strict scrutiny.

Northwest Austin Municipal Utility District v. Holder

The Voting Rights Act was passed in 1965 to enforce and protect the 15th Amendment to the U.S. Constitution which guarantees the right to vote regardless of “race, color, or previous condition of servitude” and grants Congress enforcement power. Because so many Southern states deployed literacy tests and other pretexts to prevent blacks from voting, in the 1960s (after having ignored it for quite some time) the federal government began to secure court orders against such practices.

Election official would then conceive of new barriers until finally the Voting Rights Act was passed including Section 5. The section is a pre-clearance which requires state and local governments deemed to have historically suppressed people of color votes to obtain approval from the Justice Department before altering any election practices. Nine states are fully covered by Section 5 as well as certain cities and counties in seven other states.

The case before the Supreme Court this session involves a local utility board member who wanted to move a polling booth from someone’s garage to the local elementary school. In attempting to realize this change, he found out that the state of Texas falls under Section 5 and he would need authorization from the Department of Justice to move the polling booth. Thus, he has opted to challenge Section 5 and alleged it is unconstitutional.

There are major racial implications to this case. EJS signed on to the amicus curiae brief of the Leadership Conference on Civil Rights and The LCCR Education Fund. The brief argued that the gains in minority political participation can be reversed if we fail to vigilantly protect such advancements. Additionally, Congress’ recent determination that Section 5 protections are still necessary in certain jurisdictions was reasonable and well considered given the overwhelming evidence offered during hearings.

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