The U.S. Supreme Court issued a unanimous opinion Monday that sends the racial discrimination case filed by entrepreneur Byron Allen back to an appellate court with a stricter definition of the bias that Allen needs to prove in order for the lawsuit to proceed in federal court.
The ruling came down in Comcast’s favor on the question of the legal test, or causation standard, that the court should apply in determining the merits of Allen’s claim and whether the lawsuit should be allowed to proceed. Comcast attorneys argued that Allen needed to prove that race was the sole factor in Comcast’s decision not to cut a deal to carry a group of cable channels owned by Allen’s Entertainment Studios. Allen’s team had argued that it only needed to demonstrate that race was a “motivating factor” in Comcast’s denial of a deal for the case to proceed.
Allen cast the opinion as having repercussions for civil rights cases beyond the scope of his fight with Comcast.
“Unfortunately, the Supreme Court has rendered a ruling that is harmful to the civil rights of millions of Americans. This is a very bad day for our country,” Allen said. “We will continue our fight by going to Congress and the presidential candidates to revise the statute to overcome this decision by the United States Supreme Court, which significantly diminishes our civil rights.”
Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense Fund, said the ruling did amount to adding an extra burden to the 1866 civil rights law known as section 1981. She also asserted that Allen’s case should be heard in a lower court.
“We believe that even under the Court’s stringent new standard announced today, Mr. Allen has sufficiently plead a claim under section 1981 and the dismissal of his claim should once again be reversed,” Ifill wrote on Twitter.
Filed in 2015, Allen’s suit was dismissed three times at the filing stage by lower courts. In 2018, the Ninth Circuit Court of Appeal argued that those courts had erred and that the motivating factor standard was enough for the case to move into the discovery phase.
Comcast appealed that decision to the nation’s high court, which heard oral arguments on Nov. 13, 2019. That argument revolved only around the nature of the test to be applied in the final determination of whether Comcast’s actions violated a civil rights law enacted in 1866 to ensure that newly freed slaves would have the same right to make and enforce contracts as white citizens.
The narrow scope of the Supreme Court argument turned on the causation standard and the impact of that on the burden of proof in the case. Allen’s legal team, led by UC Berkeley School of Law dean Erwin Chemerinsky, argued that the suit should proceed with the “motivating factor” standard, which would have the effect of forcing Comcast to prove that race wasn’t the sole factor in its decision rather than keeping the burden on Allen to prove that race was the only factor.
Allen’s team argued that the motivating factor standard was spelled out in other civil rights laws over the years that aim to attack the same problems. But the court did not agree in the opinion penned by Justice Neil Gorsuch.
“To accept (Entertainment Studios’) invitation to consult, tinker with, and then engraft a test from a modern statute onto an old one would thus require more than a little judicial adventurism, and look a good deal more like amending a law than interpreting one,” Gorsuch wrote.
Justice Ruth Bader Ginsburg in her concurring opinion addressed the concerns raised by legal scholars that a stricter focus on “but-for” causation would make it harder for plaintiffs to pursue civil rights claims. She cited a hypothetical examples of an employer requiring five letters of reference for a black job applicant but only one for a white candidate. Allen’s suit claims that Comcast demanded his company take a number of costly steps in what was ultimately an unsuccessful effort to persuade them to carry his channels.
“The Court holds today that Entertainment Studios must plead and prove that race was the but-for cause of
its injury — in other words, that Comcast would have acted differently if Entertainment Studios were not African American owned,” Ginsburg wrote. “But if race indeed accounts for Comcast’s conduct, Comcast should not escape liability for injuries inflicted during the contract-formation process. The Court has reserved that issue for consideration on remand, enabling me to join its opinion.”
In a statement, Comcast sought to downplay the effect of Monday’s ruling on the broader landscape of civil rights and anti-discrimination cases.
“We are pleased the Supreme Court unanimously restored certainty on the standard to bring and prove civil rights claims,” Comcast said in a statement. “The well-established framework that has protected civil rights for decades continues. The nation’s civil rights laws have not changed with this ruling; they remain the same as before the case was filed.”
As indicated during the oral arguments, the justices were skeptical of the interpretation of the correct standard to be applied as offered by Allen’s team. During arguments, the justices pressed Chemerinsky to acknowledge that to prevail in the end, the case would have to prove the “but-for” standard.
“At times, (Entertainment Studios) seems to argue that a plaintiff only bears the burden of showing that race was a ‘motivating factor’ in the defendant’s challenged decision, not a but-for cause of its injury. At others, ESN appears to concede that a plaintiff does have to prove but-for causation at trial, but contends the rules should be different at the pleading stage,” Gorsuch wrote. “According to this version of ESN’s argument, a plaintiff should be able to overcome at least a motion to dismiss if it can allege facts plausibly showing that race was a ‘motivating factor’ in the defendant’s decision. ESN admits this arrangement would allow some claims to proceed past the pleading stage that are destined to fail later as a matter of law. Still, the company insists, that is what the statute demands.”