Supreme Court

  • November 3, 2016
    Guest Post

    by Ajmel Quereshi, Assistant Counsel at the NAACP Legal Defense and Educational Fund   

    On Election Day, the Supreme Court will hear argument in a highly consequential case about lending discrimination and the subprime mortgage crisis. In this case, the City of Miami is trying to hold Wells Fargo and Bank of America accountable for well-documented deceptive, predatory lending practices. However, the banks, in an attempt to evade liability, are arguing that cities cannot seek relief from them for violations of the Fair Housing Act.      

    Wells Fargo has, of course, recently been in the news for secretly creating as many as 2 million unauthorized loan accounts in response to the company’s loan quotas, prompting investigations by the Department of Justice and even a Saturday Night Live sketch. But the misconduct at issue in the case before the Supreme Court runs far deeper than that: as has been well-documented, several regional and national banks targeted African American communities for deceptive, predatory loans in the lead up to the financial crisis of 2008. One of the most common types of loans used was the predatory subprime mortgage. Subprime mortgages were directed at communities that had been historically denied credit and included hidden fees, undisclosed costs, and masked terms that resulted in ballooning interest rates.  

    In the run-up to the financial crisis, these deceptive and predatory loans proliferated exponentially. In the five years between 1994 and 1999, the subprime mortgage market expanded from $35 billion to $160 billion, and by 2007, totaled approximately $650 billion, roughly 25 percent of the overall mortgage market. A strong undercurrent of prejudice was unmistakable in these predatory lending practices. By 2008, 55 percent of African American mortgage holders nationwide had high-risk, subprime loans, compared with only 17 percent of white mortgage holders. According to a loan officer’s affidavit, lenders used racial slurs in characterizing subprime loans to African Americans, who they referred to as “mud people” receiving “ghetto loans.”

    Accordingly, when these predatory loans all came crashing down, the damage was predictably severe for communities of color. High-risk subprime loans originated between 1999 and 2007 cost borrowers of color collectively between $164 billion and $213 billion. Between 2005 and 2009, a staggering two-thirds of median household wealth in communities of color was wiped out. Waves of foreclosures pushed families out of their homes, causing lasting damage to neighborhoods and livelihoods, depressing property values, and suppressing tax revenues. In cities like Miami, the damage and harm was compounded: reduced tax revenue reduced basic services available to residents. The lost tax revenue also negatively impacted municipal efforts to combat housing discrimination and foster integration.

  • November 2, 2016

    by Kevin Battersby Witenoff

    At many points during my frigid three and a half hour wait, I questioned whether waking up before 6:00 a.m. was worth the chance to see oral arguments before the Supreme Court. Any doubt I harbored immediately vacated my mind upon entering the burgundy draped courtroom. The opportunity to stand in the presence of such mastery would have been enough to amaze any citizen, but as a future law student I felt an electric connection to the setting that enhanced my aspirations and heightened my admiration for my prospective profession to an almost Tocquevillian level. Between my own personal elation and the vicarious excitement of my family members and coworkers in the legal profession, it would have been easy to classify the trip as a complete success. But even after such a formative experience, I could not help but feel as though something, or rather someone, was missing from my morning at the High Court.

    Though the late Justice Scalia’s chair has been temporarily removed from the courtroom, the ramifications of that chair’s vacancy continue to reverberate across the country. In Fry v. Napoleon Community Schools, the scope of the Americans with Disabilities Act (ADA), a piece of legislation that affects millions of Americans, was called into question. The Court’s interpretation of this act, in conjunction with its interpretation of the Individuals with Disabilities Education Act (IDEA), will determine the process that some aggrieved parties filing a complaint under the ADA will have to follow.  Attorneys representing E.F., a young girl born with cerebral palsy, contend the ADA protects her right to bring her service dog to a Napoleon Community School. The defense asserts that prior to filing a complaint under the ADA, the Fry family must first raise a complaint under IDEA, an act specifically focusing on disability in educational settings. E.F.’s family’s hesitation lies in the process of filing a claim under IDEA, as it takes over 100 days to do so. Though the defense minimized this point, Chief Justice Roberts noted this amount of time is enough to derail a student’s entire school year. To this point the plaintiff’s attorneys emphasized that this case does not represent an isolated incident, but rather will influence countless individuals filing future disability claims in educational settings. As a result the ruling in this case has the possibility to disrupt an incalculable number of school days. This portion of the plaintiff’s argument reminded the entire courtroom of the importance of a single justice. One opinion has the power to change the process and thus the lives of an entire constituency.

  • October 31, 2016
    Guest Post

    by Robert Smith, Director of the Fair Punishment Project at Harvard Law School and Amy Weber, Frequent Outside Counsel, Fair Punishment Project

    Today, the Supreme Court vacated five juvenile life-without-parole (JLWOP) sentences and remanded the respective cases back to the Arizona courts. These cases may provide guidance to state courts faced with determining whether the Eighth Amendment requires a sentencer to not only consider mitigating circumstances such as the age of the juvenile before imposing an LWOP sentence in light of Montgomery v. Louisiana, but also explicitly find that the juvenile’s crime illustrates his or her “irreparable corruption” or “permanent incorrigibility” before imposing a life-without-parole sentence. In these cases, the life without parole sentence was not mandated by statute. Rather, the sentencer in each case had the opportunity to consider mitigating evidence—including the juvenile’s age—before imposing the sentence. Therefore, today’s remands strongly suggest that mere consideration of mitigating evidence is insufficient. At the Fair Punishment Project, we released an issue brief last week that explains this issue in more depth and details how state courts have treated the question. Here is a quick summary:

    In Miller v. Alabama, the Supreme Court held that the Eighth Amendment prohibits the imposition of a mandatory life without parole sentence for a juvenile who commits a homicide offense (JLWOP is categorically barred for non-homicide offenses per Graham v. Florida). Miller held these mandatory sentences unconstitutional because the sentencer was unable to “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”

  • October 28, 2016
    Guest Post

    by Erwin Chemerinsky, Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law.  Co-counsel for City of Miami in Bank of America v. City of Miami and Wells Fargo v. City of Miami

    On Tuesday, Nov. 8, the Supreme Court will hear oral arguments in two significant civil rights cases that raise the question of whether a city can sue to enforce the Fair Housing Act. Bank of America v. City of Miami and Wells Fargo v. City of Miami concern whether a city has standing to sue to challenge discriminatory lending practices of banks. The Court should follow well-established law in this area and allow these suits to go forward.

    The Fair Housing Act, adopted in 1968, not long after the death of Dr. Martin Luther King, Jr., broadly prohibits race discrimination in housing. As the Supreme Court noted just two years ago in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, that the law represents Congress’s response to economic and social forces that “left minority families concentrated in the center of the Nation’s cities,” where “residential segregation and unequal housing and economic conditions” resulted in “neighborhoods marked by substandard housing and general urban blight.” The Act declares the “policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.”

    The Act makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race [...] or national origin.” It also forbids discrimination by “any person or other entity whose business includes engaging in residential real estate-related transactions […] in making available such a transaction, or in the terms or conditions of such a transaction, because of race […] or national origin.” Two years ago, in Texas Department of Housing and Community Affairs, the Court held that the Act prohibits practices that have a racially discriminatory impact.

  • October 27, 2016
    Guest Post

    by Sasha Samberg-Champion, Counsel at Relman, Dane & Colfax PLLC

    Fry v. Napoleon School District, a case to be argued in the Supreme Court next week, may well have the term’s most adorable plaintiff: E.F., a child with cerebral palsy and a big smile, usually pictured along with her service dog, “Wonder.” And although the question presented by her case is a seemingly technical one, it is of great importance for effective enforcement of the rights of children with disabilities, enforcement that has been impeded by a procedural obstacle that Congress never intended. The Court now seems poised to correct this error and permit children with disabilities to enforce their rights under the Americans with Disabilities Act and other civil rights laws at school, just as they may do anywhere else.

    At first blush, Fry seems to involve an unremarkable ADA claim: E.F. and her family are suing over her school’s refusal to permit her to use Wonder as a service dog. One might well wonder where the controversy is. Twenty-six years after the passage of the ADA, one of this country’s landmark laws, most of us correctly assume that those denied the rights guaranteed by the ADA can go to court to enforce them. If a library or park unlawfully bars your wheelchair or your service animal, you can sue.

    The problem is, a family that sues a school for violating the rights of a child with a disability often gets the same unpleasant surprise that awaited the Fry family. A court dismissed the family’s lawsuit, saying the family was required, before suing under the ADA, to pursue any administrative remedies available to it under a different law: the Individuals with Disabilities Education Act (“IDEA”), which governs what is commonly known as special education. Many courts impose this IDEA exhaustion requirement even where, as in Fry, the suit does not allege an IDEA violation and does not seek any of the specialized remedies available under the IDEA.