Amicus Curiae Brief — Marlean A. Ames, Petitioner v. Ohio Department of Youth Services

Supreme Court briefDec 16, 2024

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No. 23-1039

In the

Supreme Court of the United States

♦

MARLEAN A. AMES,

Petitioner,

OHIO DEPARTMENT OF YOUTH SERVICES,

Respondent.

♦

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

♦

BRIEF OF AMICUS CURIAE JOSH YOUNG IN

SUPPORT OF PETITIONER

♦

William E. Trachman

Counsel of Record

Robert A. Welsh

Grady J. Block

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

wtrachman@mslegal.org

December 16, 2024

Attorneys for Amici Curiae

QUESTION PRESENTED

Whether, in addition to pleading the other

elements of Title VII, a majority-group plaintiff must

show “background circumstances to support the

suspicion that the defendant is that unusual employer

who discriminates against the majority.” App. 5a.

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED .................................

TABLE OF CONTENTS .....................................

TABLE OF AUTHORITIES ...............................

IDENTITIES AND INTERESTS OF

AMICUS CURIAE ..............................................

SUMMARY OF THE ARGUMENT....................

ARGUMENT .......................................................

II.

The Equal Protection Clause

Demands a Color-Blind Judicial

System. .....................................................

Unfortunately, Courts Sometimes

Fail to Live Up to the Promise of

Equality Before the Law. .........................

Courts Sometimes

Discriminate on the Basis of

Race in Appointing Class

Counsel Under Rule 23. ................

Individual Judges Have

Attempted to Use Race in

Their Practice Standards or

Standing Orders. ...........................

State Courts Like the

Washington Supreme Court

Have Announced That They

Will Treat the Parties

Before Them Differently

Based on Race. ...............................

Racial Discrimination in the

Context of Pleading

Standards Under Title VII

is Longstanding and

Widespread. ..................................

District Courts Understand and

Apply Relevant Pleading

Standards Under Title VII. ......................

III.

Josh’s Experience of Racial

Hostility .........................................

The Court Should Issue a Broad

and Sweeping Opinion. ............................

CONCLUSION ....................................................

IV.

iii

TABLE OF AUTHORITIES

CASES

PAGE(S)

Adamson v. Multi Community Diversified

Svcs., Inc.,

514 F.3d 1136 (10th Cir. 2008)......................

Ames v. Ohio Dep’t of Youth Services,

87 F.4th 822 (6th Cir. 2023) ..........................

Batson v. Kentucky,

476 U.S. 79 (1986).......................................... 6, 24

Bostock v. Clayton Cnty., Ga.,

590 U.S. 644 (2020)........................................ 21, 23

Castaneda v. Partida,

430 U.S. 482 (1977)........................................

City of Providence v. AbbVie Inc.,

2020 WL 6049139 (S.D.N.Y. Oct. 2020) ........ 9, 11

Edmonson v. Leesville Concrete Co., Inc.,

500 U.S. 614 (1991)........................................ 6, 26

Elson v. Colorado Mental Health Institute

at Pueblo,

2011 WL 1103169 (D. Colo. Mar. 2011) ........ 20, 21

Flowers v. Mississippi,

588 U.S. 284 (2019)........................................

Grutter v. Bollinger,

539 U.S. 306 (2003)........................................

Harding v. Gray,

9 F.3d 150 (D.C. Cir. 1993) ............................

Ibrahim v. All. for Sustainable Energy,

LLC,

994 F.3d 1193 (10th Cir. 2021)......................

In re Dynex Capital, Inc. Sec. Litig.,

2011 WL 781215 (S.D.N.Y. Mar. 2011).........

In re Enzo Biochem Data Security

Litigation,

2023 WL 6385387 (E.D.N.Y., 2023) ..............

In re FICO Antitrust Litig.,

2021 WL 4478042 (N.D. Ill. Sept.

2021) ...............................................................

In re J.P. Morgan Chase Cash Balance

Litig.,

242 F.R.D. 265 (S.D.N.Y. 2007).....................

In re Oil Spill by Oil Rig Deepwater

Horizon,

295 F.R.D. 112 (E.D. La. 2013) .....................

In re Robinhood Outage Litig.,

No. 20-cv-01626-JD, 2020 WL 7330596

(N.D. Cal. 2020) .............................................

Livingston v. Roadway Express, Inc.,

802 F.2d 1250 (10th Cir. 1986)......................

Martin v. Blessing,

571 U.S. 1040 (2013)............................. 8, 9, 10, 11

McDonald v. Santa Fe Trail Transp. Co.,

427 U.S. 273 (1976)........................................

Miller v. Johnson,

515 U.S. 900 (1995)........................................

Muldrow v. City of St. Louis, Mo.,

601 U.S. 346 (2024)........................................ 4, 25

Notari v. Denver Water Department,

971 F.2d 585 (1992) .............................. 2, 19, 20, 21

Parents Involved in Community Schools

v. Seattle School Dist. No. 1,

551 U.S. 701 (2007)........................................

Parker v. Baltimore & Ohio Railroad Co.,

652 F.2d 1012 (D.C. Cir. 1981) ......................

Pena-Rodriguez v. Colorado,

580 U.S. 206 (2017)........................................ 5, 24

People v. Hall,

4 Cal. 399 (1854) ............................................

Pierce v. Commonwealth Life Ins.,

40 F.3d 796 (6th Cir. 1994) ...........................

Plessy v. Ferguson,

163 U.S. 537 (1896)........................................

Public Employees’ Ret. Sys. of Miss. v.

Goldman Sachs Group, Inc.,

280 F.R.D. 130 (S.D.N.Y. 2012).....................

Rice v. Cayetano,

528 U.S. 495 (2000)........................................

SEC v. Adams,

3:18-CV-252-CWR-FKB 2018 WL

2465763 (S.D. Miss. 2018) .............................

Schuette v. Coalition to Defend

Affirmative Action,

572 U.S. 291 (2014)........................................

State v. Sum,

511 P.3d 92 (Wash. 2022) ..............................

Students for Fair Admissions, Inc. v. Pres.

and Fellows of Harvard College,

600 U.S. 181 (2023).......................... 4, 6, 7, 24, 25

Texas Dept. of Housing and Comm. Affair

v. Inclusive Communities Project, Inc.,

576 U.S. 519 (2015)........................................

Thompson v. Henderson,

143 S. Ct. 2412 (2023)....................................

vii

Young v. Colorado Department of

Corrections,

94 F.4th 1242 (10th Cir. 2024) ............. 1, 3, 21, 22

Young v. Colorado Department of

Corrections,

2023 WL 1437894 (Filed 2023) .....................

Young v. Colorado Dep’t of Corrections,

2022 WL 19569770 (D. Colo. Feb.

2023) ...................................................... 2, 21, 22, 23

Statutes

42 U.S.C. § 1981 ..................................................

Other Sources

Amanda Bronstad, MDL Judge Taps

“Most Diverse Leadership Team

Ever” in Data Breach Class Action,

Nat. L. J. (Mar. 3, 2021) .......................

Brief of Hamilton Lincoln Law Institute

as Amicus Curiae, Students for Fair

Admissions, Inc. v. Pres. and

Fellows of Harvard College,

20-1199 (Mar. 31, 2021) ........................

Cross, Oral-argument Affirmative

Action?,

The Federalist Society Blog (Feb.

13, 2024) ................................................

viii

Oral Argument Transcript of Students

for Fair Admissions v. Harvard, 201199 (Oct. 31, 2022) ..............................

Petition for Certiorari, Martin v.

Blessing,

No. 13-169 (Docketed August 6,

2013) ......................................................

Proposed Uniform Civil Practice

Standards of the United States

Magistrate Judges ................................

Standing Orders, In re: Increasing

Opportunities for Courtroom

Advocacy,

S.D. Ill. Jan. 17, 2020) ..........................

Trachman & Kilcullen, Washington

State Supreme Court embraces race

discrimination,

The Washington Times (June 22,

2022) ......................................................

U.S. District Court Judges Rescind

Discriminatory Policies Following

AFL’s Judicial Complaint,

Mar. 22, 2024 ........................................

IDENTITIES AND INTERESTS OF AMICUS

CURIAE 1

Josh Young is an individual who formerly

served as a prison guard in Limon, Colorado. After

being required to undergo and personally adopt the

principles of aggressive “Equity, Diversity, and

Inclusion Training,” he resigned his position in the

Limon Correctional Facility. See Young v. Colorado

Department of Corrections, 94 F.4th 1242, 1244 (10th

Cir. 2024) (“After resigning from the Department

because of the training program, Mr. Young sued,

asserting claims under Title VII and the Equal

Protection Clause.”).

When Mr. Young brought suit under Title VII

against the Colorado Department of Corrections, that

agency defended itself from liability by alleging that

Mr. Young had not adequately stated a claim because

of his race—Caucasian. See Defendants’ Motion to

Dismiss, Young v. Colorado Department of

Corrections, No. 1:22-cv-00145-NYW-KLM, 2022 WL

19569770 (2022) (“This enhancement of the first

prima facie element reflects courts’ recognition that

members of the majority group are not necessarily

entitled to a presumption of discrimination.”).

1 Per Supreme Court Rule 37.6, Amicus affirms that no counsel

for any party authored this brief in whole or in part, and no

counsel or party made a monetary contribution intended to fund

the preparation or submission of this brief. No person other than

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

The District Court, although it granted the

motion to dismiss for other reasons, emphasized the

continuing vitality of differential pleading standards

for Caucasian plaintiffs in Title VII actions within the

Tenth Circuit Court of Appeals. See Young v. Colorado

Dep’t of Corrections, No. 22-cv-00145-NYW-KLM,

2023 WL 1437894, at *4 (D. Colo. Feb. 1, 2023) (“In

Notari v. Denver Water Department, 971 F.2d 585

(1992), the Tenth Circuit first recognized that when a

plaintiff is tasked with establishing an inference of

discrimination and ‘is a member of a historically

favored group, an inference of invidious intent is

warranted only when ‘background circumstances

support the suspicion that the defendant is that

unusual employer who discriminates against the

majority.’”) (emphasis added).

Mr. Young finds this differential treatment

based on his race—which constitutes open race

discrimination by the judiciary—fundamentally

repugnant to the Constitution’s promise of Equal

Protection, the text of Title VII, and our country’s

foundational principles of equality. He therefore

submits this brief in support of Petitioner. 2

SUMMARY OF THE ARGUMENT

Like the Petitioner, Ms. Ames, Amicus Josh

Young suffered discrimination at the hands of his

employer based on a protected characteristic. And

there is little doubt that the Equal Protection Clause

of the Fourteenth Amendment, properly construed,

requires Courts to treat all parties before them in

colorblind manner. Yet, some Courts are treating both

parties and attorneys differently based solely on a

person’s race. It is therefore not enough for this Court

to issue a modest, corrective opinion, merely stating

that lower courts ought to do a better job of applying

the text of Title VII, and ensuring that these courts do

not add elements to a claim. Indeed, this Court has

already done that. See McDonald v. Santa Fe Trail

Transp. Co., 427 U.S. 273, 280 (1976) (“We therefore

hold today that Title VII prohibits racial

discrimination against the white petitioners in this

case upon the same standards as would be applicable

were they Negroes and Jackson white.”); Cf. Muldrow

2 To be clear, the Tenth Circuit affirmed the dismissal, without

prejudice, of Mr. Young’s complaint. See 94 F.4th 1251 (“While

Mr. Young asserts that he experienced severe and pervasive

harassment, … he does not allege specific facts that demonstrate

how the training related to his actual workplace experience.”).

Mr. Young has subsequently filed a new action bolstering his

allegations of discrimination under Title VII and 42 U.S.C. §

1981. See Young v. Colorado Department of Corrections, 23-cv01688-NYW-SBP (D. Colo., Filed June 30, 2023).

v. City of St. Louis, Mo., 601 U.S. 346 (2024).

So this is no time for judicial minimalism.

Instead, this Court should issue a broad and robust

opinion calling into question every practice where

courts treat litigants or their counsel differently based

on race, and reiterate once again the principle that

everyone is equal before the law.

ARGUMENT

Just last year, this Court made a bold

statement on behalf of equality under the law in

Students for Fair Admissions, Inc. v. Pres. and

Fellows of Harvard College, 600 U.S. 181 (2023)

(SFFA). In rejecting the University of North

Carolina’s racial preferences in its student admission

process, the Court criticized UNC’s chief argument in

favor of “diversity”: “[UNC] argues that race in itself

‘says something about who you are.’” Id. at 220

(internal brackets omitted). In holding that

affirmative action was unconstitutional, and by

rejecting this argument, the Court made one of its

clearest statements yet on racial equality: “We have

time and again forcefully rejected the notion that

government actors may intentionally allocate

preference to those who may have little in common

with one another but the color of their skin.” Id.

(internal quotation marks omitted).

The Court’s statements in SFFA were not

confined to schools, or even legislatures. Courts too

play a role in upholding these principles. See SFFA,

600 U.S. at 206 (2023) (“And the Equal Protection

Clause, we have accordingly held, applies without

regard to any differences of race, of color, or of

nationality—it is universal in its application.”)

(emphasis added). And as the Chief Justice noted

during oral argument in SFFA, we did not fight a civil

war over oboe players. See Oral Argument Transcript

of Students for Fair Admissions v. Harvard, 20-1199,

67:22 – 68:3-4 (Oct. 31, 2022) (Mr. Waxman: “Race …

for some highly qualified applicants can be the

determinative factor, just as being … an oboe player

in a year in which the Harvard-Radcliffe orchestra

needs an oboe player [can be]… Chief Justice Roberts:

“Yeah. We did not fight a Civil War about oboe

players.”). 3

Rather, this nation embarked on a dramatic

Reconstruction effort after the Civil War in order to

ensure that justice was blind. As this Court recently

articulated:

It must become the heritage of our Nation to

rise above racial classifications that are so

inconsistent with our commitment to the

equal dignity of all persons. This imperative

to purge racial prejudice from the

administration of justice was given new force

and direction by the ratification of the Civil

War Amendments.

Pena-Rodriguez v. Colorado, 580 U.S. 206, 221 (2017)

https://www.supremecourt.gov/oral_arguments/argument_trans

cripts/2022/20-1199_bi7a.pdf

(emphasis added).

However, courts across the country are

engaging in widespread efforts to treat the parties

before them differently, depending on race. These

instances, like the underlying issue in this case,

betray the ideals of the nation. Amicus Mr. Young

therefore asks the Court to issue a broad, sweeping

ruling calling into question judicial efforts to treat the

parties before them differently based on race. See

Batson v. Kentucky, 476 U.S. 79, 87-88 (1986)

(“Discrimination within the judicial system is most

pernicious…”); see also Edmonson v. Leesville

Concrete Co., Inc., 500 U.S. 614, 628 (1991) (“Race

discrimination within the courtroom raises serious

questions as to the fairness of the proceedings

conducted there.”).

The Equal Protection Clause Demands a

Color-Blind Judicial System.

The Constitution demands equality before the

law, regardless of the race of the individual. Courts do

the nation a disservice when they play a part in

unequal treatment on account of race. Edmondson,

500 U.S. at 628 (“Few places are a more real

expression of the constitutional authority of the

government than a courtroom, where the law itself

unfolds.”); see also SFFA, 600 U.S. at 203 (“This Court

played its own role in that ignoble history, allowing in

Plessy v. Ferguson the separate but equal regime that

would come to deface much of America.”); Plessy v.

Ferguson, 163 U.S. 537, 554 (1896) (Harlan, J.,

dissenting) (“In respect of civil rights, common to all

citizens, the constitution of the United States does

not, I think, permit any public authority to know the

race of those entitled to be protected in the enjoyment

of such rights.”) (emphasis added).

Yet as this case demonstrates, several

appellate courts have read into Title VII a

requirement where the pleading standards vary by

the race of the litigant. This ignores the fundamental

principle of the Equal Protection Clause—which

requires every state actor to treat people as

individuals, regardless of their membership in a

crudely defined racial group. See Miller v. Johnson,

515 U.S. 900, 912 (1995) (citation omitted) (“Racebased assignments embody stereotypes that treat

individuals as the product of their race.”); SFFA, 600

U.S. at 291 (Gorsuch, J., concurring) (“Where do these

boxes come from? Bureaucrats. A federal interagency

commission devised this scheme of classifications in

the 1970s to facilitate data collection.”); Castaneda v.

Partida, 430 U.S. 482, 504 (1977) (Marshall, J.,

concurring) (“[T]his Court has a solemn responsibility

to avoid basing its decisions on broad generalizations

concerning minority groups. If history has taught us

anything, it is the danger of relying on such

stereotypes.”).

But it does not stop with Title VII. Courts also

consider the race of a litigant or their counsel as a

factor in other contexts.

II.

Unfortunately, Courts Sometimes Fail to

Live Up to the Promise of Equality Before

the Law.

The court of history does not look kindly on

efforts by courts to discriminate based on race. See,

e.g., People v. Hall, 4 Cal. 399, 405 (1854) (rejecting

the admissibility of Chinese witnesses and smearing

Chinese individuals in offensive terms). But sadly, we

have not yet stomped out every instance of differential

treatment based on race in the judiciary. Yes, courts—

which should know best the illegality of using race in

decision-making—have unfortunately followed the

trend of using race as a factor when deciding issues

involving the litigants or the counsel before them.

Courts Sometimes Discriminate on

the Basis of Race in Appointing

Class Counsel Under Rule 23.

In 2013, the Center for Class Action Fairness

asked this Court to review a then “unique” and “highly

unusual practice” of requiring class-counsel to

consider race and gender when staffing legal matters.

See Martin v. Blessing, 571 U.S. 1040, 1040 (2013)

(Alito, J., respecting denial of the petition); see also

Petition for Certiorari, Martin v. Blessing, No. 13-169,

2 (Docketed August 6, 2013) (“Petitioner Martin seeks

review of the district judge’s requiring class counsel to

staff the case to reflect the class on the basis of race

and sex, which the Second Circuit held objectors to

lack standing to challenge.”) (internal citation

omitted). 4

The Court declined to grant a writ of certiorari

in the case, but Justice Alito commented that he was

“hard-pressed to see any ground on which [the judge’s]

practice can be defended.” Id. at 1041-42; see id. at

1041 (“Class certification orders that impose race- and

sex-based staffing requirements on law firms appear

to be part of Judge Baer’s standard practice.”).

Unfortunately, in the years since Martin, and

despite Justice Alito’s warning, this indefensible

practice has become practically commonplace. In

2020, for instance, another judge concluded that the

race and sex of potential class-counsel’s lawyers “is a

relevant factor for the Court,” as “[f]or well over a

decade now, the courts have emphasized the

importance of diversity in their selection of counsel.”

See City of Providence v. AbbVie Inc., 20-cv-5538

(LJL), 2020 WL 6049139, *6 (S.D.N.Y. Oct. 13, 2020).

In City of Providence, that court cited examples

from district courts across the country where the

judge had considered various factors relating to race,

sex, or broad notions of diversity generally. See id.

(citing In re Robinhood Outage Litig., No. 20-cv01626-JD, 2020 WL 7330596, *2 (N.D. Cal. July 14,

2020) (“The Court is concerned about a lack of

diversity in the proposed lead counsel.”); SEC v.

https://sblog.s3.amazonaws.com/wpcontent/uploads/2013/09/CCAF-Martin-Petition-as-Filed.pdf

Adams, 3:18-CV-252-CWR-FKB, 2018 WL 2465763,

at *4 n.6 (collecting cases) (S.D. Miss. June 1, 2018);

In re Oil Spill by Oil Rig Deepwater Horizon, 295

F.R.D. 112, 137-38 (E.D. La. 2013); Public Employees’

Ret. Sys. of Miss. v. Goldman Sachs Group, Inc., 280

F.R.D. 130, 142 n.6 (S.D.N.Y. 2012) (requiring counsel

to submit “information respecting diversity in the

class, so far as it is known, and in the trial team.”); In

re Dynex Capital, Inc. Sec. Litig., No. 05 Civ.

1897(HB), 2011 WL 781215, at *9 (S.D.N.Y. Mar. 7,

2011); In re J.P. Morgan Chase Cash Balance Litig.,

242 F.R.D. 265, 277 (S.D.N.Y. 2007) (“I believe it is

important to all concerned that there is evidence of

diversity, in terms of race and gender, of any class

counsel I appoint.”)).

This collection of cases demonstrates that the

use of race and sex in the selection of class-counsel will

not stop, unless higher courts like this one cause it to

stop. Indeed, the body of precedent continues to grow. 5

Some courts acknowledge Justice Alito’s statement in

Martin v. Blessing, and yet still consider “diversity” as

part of the decision over who to appoint as class

counsel. See In re Enzo Biochem Data Sec. Litig., CV

5 See, e.g., In re FICO Antitrust Litig., No. 1:20-CV-02114, 2021

WL 4478042, *3 (N.D. Ill. Sept. 30, 2021) (“[C]ourts have

routinely recognized, over the past decade, the value of a legal

team that is diverse across axes of gender, race, and other

aspects of identity.”); see also Amanda Bronstad, MDL Judge

Taps “Most Diverse Leadership Team Ever” in Data Breach Class

Action, Nat. L. J. (Mar. 3, 2021) (covering appointment in In re

Blackbaud, Inc., Customer Data Breach Litig., 3:20-mn-02972JMC (D.S.C.)), partly based on diversity concerns).

23-4282 (GRB) (AYS), 2023 WL 6385387, at *2

(E.D.N.Y. Sept. 29, 2023) (acknowledging Martin but

stating that “Furthermore, courts may consider

whether the proposed counsel is sufficiently diverse to

reflect the composition of the class.”). 6 Note that In re

Enzo Biochem was issued even after SFFA.

How could so many district courts build up this

number of precedents for the proposition that race

(and sex and “other aspects of identity) matters, when

it comes to a court’s decision-making? They have told

us: by emphasizing the previously favorable

statements about diversity in this Court’s past

opinions. As one court noted, “[a] commitment to

diversity is not a commitment to quotas,” City of

Providence, 2020 WL 6049139 at *7 (citing Grutter v.

Bollinger, 539 U.S. 306, 334 (2003), for the proposition

that there is a compelling interest in promoting

diversity, including based on race).

In short, while this Court has course-corrected

after Grutter with SFFA, lower courts could still use

clear and robust guidance on the issue of race.

The Hamilton Lincoln Law Institute is to be credited for

collecting many of these examples and including them in its

SFFA Amicus Brief. See Brief of Hamilton Lincoln Law Institute

as Amicus Curiae, Students for Fair Admissions, Inc. v. Pres. and

Fellows of Harvard College, 20-1199 (Mar. 31, 2021),

https://www.supremecourt.gov/DocketPDF/20/201199/173488/20210331125456187_SFFA%20v%20Harvard%20a

micus%20final.pdf.

Individual Judges Have Attempted

to Use Race in Their Practice

Standards or Standing Orders.

The trend toward considering race in the

courtroom is not limited to the class action context.

For instance, in 2020, in the Southern District of

Illinois, three federal judges published Standing

Orders stating that they would consider the race and

sex of the attorney before them, in determining

whether to grant a motion for oral argument. One

representative Standing Order stated as follows:

To that end, the Court adopts the following

procedures regarding oral argument as to

pending motions:

1. After a motion is fully briefed, as part of

a Motion Requesting Oral Argument, a

party may alert the Court that, if

argument is granted, it intends to have

a newer, female, or minority attorney

argue the motion (or a portion of the

motion).

2. If such a request is made, the Court will:

A. Grant the request for oral argument on

the motion if it is at all practicable to do

so.

B. Strongly consider allocating additional

time for oral argument beyond what the

Court may otherwise have allocated

were a newer, female, or minority

attorney not arguing the motion.

C. Permit other more experienced counsel

of record the ability to provide some

assistance to the newer, female, or

minority attorney who is arguing the

motion, where appropriate during oral

argument.

See Standing Orders, In re: Increasing Opportunities

for Courtroom Advocacy, (S.D. Ill. Jan. 17, 2020)

(emphasis added). 7

Some critics noted that the standing orders

could mean that a party’s counsel would receive

additional oral argument time, if the attorney were

not a white male. See Cross, Oral-argument

Affirmative Action?, The Federalist Society Blog (Feb.

13, 2024) (“With its emphasis on sex and race, the

Illinois judges’ policy is a different beast. Perhaps the

most troubling aspect of the policy is the suggestion,

without explanation, that women and minorities may

be entitled to extra time for oral argument simply

because they are women and minorities.”). 8

https://media.aflegal.org/wpcontent/uploads/2024/01/25214339/MergedExhibits.pdf?_ga=2.186220001.959298009.1706738075990187681.1706651260

https://fedsoc.org/commentary/fedsoc-blog/oral-argumentaffirmative-action-nonprofit-s-ethics-complaint-against-threefederal-judges-raises-questions-on-the-judicial-role

A complaint was filed against these Standing

Orders, and ultimately, the judges withdrew the

portions of the orders referencing race and sex. See

U.S. District Court Judges Rescind Discriminatory

Policies Following AFL’s Judicial Complaint, Mar. 22,

2024 (the judges “rescinded their standing orders

favoring minority and female attorneys solely based

on their race and sex, and apologized”). 9 But the

underlying question remained: why did 3 federal

judges think that considerations of race and sex

mattered?

Separately, in the District of Colorado, several

judges initially proposed giving special consideration

to “diverse” members of the bar who requested oral

argument. See Proposed Uniform Civil Practice

Standards of the United States Magistrate Judges, at

4 (Standard 4), Attorney Mentoring and Training

(“The Court welcomes the participation of young,

inexperienced, and diverse attorneys, in litigation,

and the parties should advise the Court prior to any

hearing (including in any request for oral argument)

if a lawyer of four or fewer years of experience will be

arguing the motion.”) (emphasis added). 10

https://aflegal.org/huge-victory-u-s-district-court-judgesrescind-discriminatory-policies-following-afls-judicialcomplaint/

https://www.facultyfederaladvocates.org/resources/DRAFT_Prac

tice%20Standards_2.21.2024.pdf

Fortunately, after a period of public comment,

this provision did not make it into the final written

practice standards. Yet litigants could be forgiven for

wondering whether these judges will apply the same

standard informally, without writing it down for the

public to see.

State Courts Like the Washington

Supreme Court Have Announced

That They Will Treat the Parties

Before Them Differently Based on

Race.

In Washington State, the State’s Supreme

Court has explicitly adopted race-conscious legal

standards when applying the law. In the context of

whether a seizure has occurred, for instance, the

Washington Supreme Court has held that if a

criminal defendant is “BIPOC,” that racial status will

be a factor in the analysis. See State v. Sum, 511 P.3d

92, ¶ 34 (Wash. 2022) (“In the third and final factor of

our independent state law analysis, we must consider

the current implications of recognizing (or failing to

recognize) that race and ethnicity are relevant to the

seizure analysis.”).

In Sum, the question was whether the criminal

defendant had been “seized” by law enforcement. The

State conceded that race was a legitimate factor to

consider in the analysis, and the Washington

Supreme Court agreed and held the same. Because

the defendant in the case was Asian, and therefore

counted as “BIPOC”—or Black, Indigenous, or a

Person of Color—a different standard applied. Id. at ¶

38 (“Based on the constitutional text, recent

developments in this court’s historical treatment of

the rights of BIPOC, and the current implications of

our decision, we hold as a matter of independent state

law that race and ethnicity are relevant to the

question of whether a person was seized by law

enforcement.”).

As pointed out in the wake of the decision, the

Washington Supreme Court’s new rule is entirely

inadministrable:

Separately, the court’s decision is simply not

administrable. Imagine a court trying to

decide whether to apply the new rule. What

if the criminal suspect is of mixed race? Or

what if the police officer is of mixed race?

What if there are multiple criminal suspects

of different races? Will some of them be able

to avoid criminal punishment, while others

can be prosecuted under normal procedures?

The potential irregularities are numerous.

Trachman & Kilcullen, Washington State Supreme

Court embraces race discrimination, The Washington

Times (June 22, 2022). 11 Yet as of today, there is no

evidence that the Washington Supreme Court has

https://www.washingtontimes.com/news/2022/jun/22/washingto

n-state-supreme-court-embraces-race-discr/

backed down even an inch on its commitment to

differential treatment on the basis of race.

In a separate Washington case, that State’s

Supreme Court held that a party to a civil suit who

was Caucasian would have a duty to dispel an

allegation that racial motivations affected the conduct

of the trial, if the verdict came out in favor of the

Caucasian party.

While this Court denied certiorari, given the

interlocutory nature of the case, the implications were

once again obvious to Justice Alito here. See

Thompson v. Henderson, 143 S. Ct. 2412, 2413 (2023)

(Mem.) (Alito, J., statement respecting denial of

certiorari) (“In sum, the opinion below, taken at face

value, appears to mean that in any case between a

white party and a black party, the attorney for the

white party must either operate under special,

crippling rules or expect to face an evidentiary

hearing at which racism will be presumed and the

attorney will bear the burden of somehow proving his

or her innocence.”).

Justice Alito appropriately described the

impact of the judiciary treating individuals differently

based on race: “It is not an exaggeration to say that

our extraordinarily diverse population will not be able

to live and work together harmoniously and

productively if we depart from that principle and

succumb to the growing tendency in many quarters to

divide Americans up by race or ancestry.” Id. at 2414;

accord Texas Dept. of Housing and Comm. Affair v.

Inclusive Communities Project, Inc., 576 U.S. 519, 555

(2015) (Scalia, J., dissenting) (“Government action

that classifies individuals on the basis of race is

inherently suspect. That is no less true when judges

are the ones doing the classifying.”)..

Racial

Discrimination

the

Context of Pleading Standards

Under Title VII is Longstanding and

Widespread.

There is a certain irony in having the relevant

pleading standards differ, based on race, regarding a

claim under Title VII. But the irony started over 40

years ago. The D.C. Circuit initiated the “background

requirements” test for a Caucasian plaintiff in Parker

v. Baltimore & Ohio Railroad Co., 652 F.2d 1012 (D.C.

Cir. 1981). The Sixth, Seventh, Eighth, and Tenth

Circuits soon followed. These Courts generally held

that because discrimination was statistically less

likely to occur against Caucasians or men, a

heightened pleading standard applied. See, e.g.,

Parker, 652 F.2d at 1017 (arguing that “it defies

common sense … in our present society” to infer

discrimination when a black employee is promoted

over a white employee).

Then, in Harding v. Gray, 9 F.3d 150, 153 (D.C.

Cir. 1993), the D.C. Circuit identified two specific

categories of potential background circumstances: (1)

“evidence indicating that the particular employer at

issue has some reason or inclination to discriminate

invidiously against” majority groups, and (2)

“evidence indicating that there is something ‘fishy’

about the facts of the case at hand that raises an

inference of discrimination.” Id. Finally, although

Harding required a “majority-group” plaintiff to

“show additional background circumstances” to

“establish a prima facie case,” it claimed that “[t]his

requirement [was] not designed to disadvantage” such

a plaintiff. Id. (internal quotation marks omitted).

Other Circuit Courts have tried to elaborate on

why there would be different pleading standards,

based on a plaintiff’s race or sex. In Notari v. Denver

Water Dep’t, 971 F.2d 585, 589 (10th Cir. 1992), for

instance, the Tenth Circuit stated: “The McDonnell

Douglas presumption—that is, the presumption that

unless otherwise explained, discrimination is more

likely than not the reason for the challenged

decision—is valid for a reverse discrimination

claimant only when the requisite background

circumstances exist.”

Notably, in Notari, the Tenth Circuit cast the

doctrine as one related to whether the plaintiff was a

member of a historically “favored” or “disfavored.” Id.

at 589 (“[T]he presumptions in Title VII analysis that

are valid when a plaintiff belongs to a disfavored

group are not necessarily justified when the plaintiff

is a member of an historically favored group.”)

(quoting Livingston v. Roadway Express, Inc., 802

F.2d 1250, 1252 (10th Cir. 1986). And this “higher”

burden has real bite; for instance, it led to the

dismissal of one of the claims in a case because the

plaintiff’s facts fell “short of demonstrating

‘background circumstances’ sufficient to create an

inference of reverse discrimination.” Adamson v.

Multi Community Diversified Svcs., Inc., 514 F.3d

1136, 1149-50 (10th Cir. 2008).

Interestingly, some courts have expressed

doubts about the doctrine along the way. See, e.g.,

Pierce v. Commonwealth Life Ins., 40 F.3d 796, 801 n.7

(6th Cir. 1994) (“We have serious misgivings about the

soundness of a test which imposes a more onerous

standard for plaintiffs who are white or male than for

their non-white or female counterparts.”); Elson v.

Colorado Mental Health Institute at Pueblo, No. 09–

cv–01375–MSK–CBS, 2011 WL 1103169, *5, n.6 (D.

Colo. Mar. 24, 2011) (“The Court has some doubt both

that Notari's reasoning remains sound nearly two

decades after its issuance, … or that it is uniformly

applicable in every case in which a white employee

asserts race discrimination or a male employee claims

sex discrimination.”).

Unfortunately, doubts aside, the doctrine

before the Court has metastasized across appellate

courts and into numerous Title VII matters, where

courts characterize cases as either “discrimination” or

“reverse discrimination,” depending on the immutable

characteristics of the plaintiff. Ames v. Ohio Dep’t of

Youth Services, 87 F.4th 822, 828 (6th Cir. 2023)

(Kethledge, J., concurring) (“Respectfully, our court

and others have lost their bearings in adopting this

rule. If the statute had prescribed this rule expressly,

we would subject it to strict scrutiny (at least in cases

where plaintiffs are treated less favorably because of

their race).”).

III.

District Courts Understand and Apply

Relevant Pleading Standards Under Title

VII.

Amicus

Mr.

Young

suffered

racial

discrimination in his workplace when forced to

undergo offensive and hateful Equity, Diversity, and

Inclusion (EDI) training, and sought to remedy his

injury through Title VII. See Young, 94 F.4th 1242,

1245 (10th Cir. 2024) (“[T]he racial subject matter and

ideological messaging in the training is troubling on

many levels.”). And despite pleading direct evidence

that the EDI training itself was racially hostile, his

former employer still raised the issue of “background

circumstances,” and the District Court still went to

lengths to articulate the vibrancy of that test. Young,

2023 WL 1437894, at *5 (“The Court respectfully

disagrees with Mr. Young that the Notari line of cases

has been ‘impliedly abrogated’ by Elson or Bostock.”).

Josh’s

Experience

Hostility

Racial

Josh Young’s experience illustrates how courts

may consider heightened burdens on “majority-group”

plaintiffs asserting workplace discrimination claims.

As detailed in the District Court’s opinion in his case,

Mr. Young was subjected to mandatory training that

contained a glossary defining race as “a social

construct that artificially groups people by skin tone

and other physical traits,” which “was created and

used to justify social and economic oppression of

people of color by white people.” Young, 2023 WL

1437894, at *2. The training materials went further,

characterizing any potential objection by white

employees as “white fragility,” defined as

“[d]iscomfort and defensiveness, often triggered by

feelings of fear or guilt, on the part of a white person

when confronted by information about racial

inequality and injustice.” Id.

The EDI trainings created what Mr. Young

alleged was “a culture of suspicion and distrust”

within the Department of Corrections. Id. at *4. A

prison setting charged with racial undertones is

already a challenging place to work, and Josh’s

“knowledge that his colleagues were being instructed

in the same manner with the same trainings

exacerbated the hostile environment.” Id. Despite

having demonstrated “superior performance” that

earned him promotions to Housing Sergeant in 2019

and Visiting Sergeant in 2020, Mr. Young ultimately

felt “harassed and intimidated to the point that he no

longer felt comfortable working for the [Department].”

Id.; Young, 94 F.4th at 1254 (“[T]he racial rhetoric

contained in the Department of Public Health &

Environment’s online training materials echoes the

racist views espoused by the co-workers and

supervisors in Lounds and Tademy.”).

When Mr. Young challenged these materials

through formal channels, the Department refused to

investigate his complaint, claiming it “did not

establish reasonable cause to indicate the presence of

discrimination [or] discriminatory harassment.”

Young, 94 F.4th at 1248. He then brought suit alleging

both a hostile work environment claim under Title

VII, and an equal protection violation. Id.

The District Court held that Mr. Young was

part of a “historically favored” group, because he was

Caucasian. And although Mr. Young argued before

the District Court that only the text of Title VII was

relevant to its statutory interpretation, and that

recent cases like Bostock v. Clayton Cnty., Ga., 590

U.S. 644 (2020), had emphasized the importance of

text, the District Court rejected those arguments,

correctly noting that even the Tenth Circuit had

applied the “background circumstances” test after

Bostock. See Young, 2023 WL 1437894, at *5

(“Additionally, in 2021, a year after the Bostock

decision was issued, the Tenth Circuit again

reiterated that “because the plaintiff is male, a prima

facie case of discrimination requires stronger proof

than when the discrimination targets a female.”)

(quoting Ibrahim v. All. for Sustainable Energy, LLC,

994 F.3d 1193, 1201 (10th Cir. 2021)); but see Bostock,

590 U.S. at 653 (“Only the written word is the law,

and all persons are entitled to its benefit.”).

Of course, applying an additional pleading

requirement onto “majority-group” plaintiffs’ claims—

one found nowhere in Title VII’s text, and

fundamentally (and ironically) at odds with the

statute’s guarantee of workplace equality—should be

rejected by this Court. Mr. Young’s case demonstrates

why this Court must decisively reject the “background

circumstances” test. No plaintiff should face elevated

burdens in challenging workplace discrimination

simply because of their race. The Equal Protection

Clause and Title VII demand even-handed application

of anti-discrimination principles to all.

IV.

The Court Should Issue a Broad and

Sweeping Opinion.

This Court has made it clear that

discrimination on the basis of race must come to an

end, because it is noxious to our free Republic. SFFA,

600 U.S. at 220 (“One of the principal reasons race is

treated as a forbidden classification is that it demeans

the dignity and worth of a person to be judged by

ancestry instead of by his or her own merit and

essential qualities.”) (quoting Rice v. Cayetano, 528

U.S. 495, 517 (2000).

It has also made clear that the Court’s

doctrines themselves generally apply equally to the

litigants before the judiciary. See Flowers v.

Mississippi, 588 U.S. 284, 301 (2019) (“[T]he Court

has extended Batson in certain ways. A defendant of

any race may raise a Batson claim, and a defendant

may raise a Batson claim even if the defendant and

the excluded juror are of different races.”).

Eliminating the consideration of race of the

litigants (or their counsel) from the judicial decisionmaking process is part and parcel of that process.

Pena-Rodriguez, 580 U.S. at 222 (“The duty to

confront racial animus in the justice system is not the

legislature’s alone.”); id. at 223 (“The unmistakable

principle underlying these precedents is that

discrimination on the basis of race, odious in all

aspects, is especially pernicious in the administration

of justice.”). This case presents an opportunity for the

Court to speak broadly about the dangers of using race

as a factor in decision-making by the judiciary.

Schuette v. Coalition to Defend Affirmative Action, 572

U.S. 291, 324 (2014) (Scalia, J., concurring) (“Whether

done by a judge or a school board, such racial

stereotyping is at odds with equal protection

mandates.”) (cleaned up).

CONCLUSION

In Muldrow v. City of St. Louis, Missouri, 601

U.S. 346 (2024), this Court articulated that Title VII’s

text stands on its own, and that courts may not add to

its requirements through pleading standard. Id. at

355 (“To demand ‘significance’ is to add words—and

significant words, as it were—to the statute Congress

enacted. It is to impose a new requirement on a Title

VII claimant, so that the law as applied demands

something more of her than the law as written.”). In

this context, it should do the same, by rejecting the

“background circumstances” test. Cf. at 358 (“[W]e

will not add words to the law to achieve what some

employers might think a desirable result.”).

But the Court can and should go further in this

case. This matter is the perfect vehicle to issue a broad

and sweeping order that race cannot be considered by

courts as a factor in decision-making in any way, such

that litigants or their lawyers may be treated

differently based on race. “Eliminating racial

discrimination means eliminating all of it.” SFFA, 600

U.S. at 206; Edmondson, 500 U.S. at 628 (“Racial bias

mars the integrity of the judicial system and prevents

the idea of democratic government from becoming a

reality.”).

The Equal Protection Clause of the Fourteenth

Amendment demands such a broad and sweeping

order. As the Chief Justice previously noted, “The way

to stop discrimination on the basis of race is to stop

discriminating on the basis of race.” Parents Involved

in Community Schools v. Seattle School Dist. No. 1,

551 U.S. 701, 748 (2007) (plurality opinion). That

holds true in every aspect of American life, whether in

education, employment, or interactions with the

judiciary.

Respectfully submitted,