A Major Step Backwards for Civil Rights: Comcast v. National Association of African American-Owned Media

Erwin Chemerinsky Dean and the Jesse H. Choper Distinguished Professor of Law at Berkeley Law

Erwin Chemerinsky*

Perhaps the lawyer on the losing side of a 9–0 decision in the Supreme Court is not the best person to tell the story of the case and lament the ruling. But with that disclosure at the outset, I feel comfortable saying that I believe that the Supreme Court was wrong in its decision in Comcast v. National Association of African American-Owned Media—wrong in its reasoning and wrong in its conclusion.[1] The decision is a major setback for civil rights law that is going to have implications for the way many federal statutes are interpreted.

The case involves a crucial federal civil rights law, 42 U.S.C. § 1981, which prohibits race discrimination in contracting. Section 1981 was adopted as part of the Civil Rights Act of 1866, just a year after the end of the Civil War.[2] It provides that:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.[3]

Although it is not acknowledged in Justice Neil Gorsuch’s opinion for the Court,[4] there is no doubt that this statute was meant to have a broad remedial effect.[5] Unfortunately, the Court’s decision in Comcast makes that much more difficult. The Court held that plaintiffs in § 1981 actions must allege and prove that race was the “but-for” cause for the denial of a contract.[6] The Court rejected the U.S. Court of Appeals for the Ninth Circuit’s approach that it is sufficient to allege that race was the “motivating factor” for the denial of the contract.

A simple example I used in answering a question from Justice Sonia Sotomayor at oral argument[7] reveals the importance of this difference. Imagine that an African American individual goes to rent a hotel room. The proprietor says, “We don’t have any rooms available. Besides, we don’t rent to Black people.” Reciting those facts in a complaint would be sufficient to withstand a motion to dismiss if it were enough to allege that race is a motivating factor. But this hypothetical complaint does not allege that race was the but-for cause of the denial of the contract. Under the Court’s “but-for” standard, the motion to dismiss would have to be granted, even though discovery might have shown that the assertion of a lack of rooms was untrue and a pretext. In fact, with those facts, it is hard to see how a plaintiff could allege enough to state a plausible claim that race was the but-for cause for the denial of a contract to rent the room.

Indeed, the lineup of the briefs in this case tells a lot. Comcast, a huge corporation, was supported by the Trump administration and the Chamber of Commerce. Every major civil rights organization joined briefs on the other side.[8]

The larger significance of the case comes from the Court’s assertion that all civil rights statutes should be interpreted as requiring allegation and proof of but-for causation unless Congress clearly specifies otherwise.[9] In this way, the Court’s decision in Comcast deals a blow not only to § 1981 plaintiffs, but those under many other federal civil rights statutes as well.

Part I of this essay briefly recites the facts of the case. Part II describes the Court’s decision and explains why I think the Court was unanimously wrong. Finally, Part III discusses why this case is likely to matter for future civil rights litigation.

I. The Facts

The federal district court dismissed the case for failure to state a claim, so all of the allegations in the complaint had to be accepted as true in the course of appellate review.[10] Entertainment Studios is a media company, owned by Byron Allen, that produces television series, owns and operates multiple television networks (channels), and operates a full-service, motion-picture production and distribution company.

The case is about seven channels Entertainment Studios owns and operates: JusticeCentral.TV, Cars.TV, ES.TV, MyDestination.TV, Pets.TV, Comedy.TV and Recipe.TV (the “Entertainment Studios Channels”). They are award-winning lifestyle channels with general audience appeal and carried by major multichannel video programming distributors, including Verizon FIOS, AT&T U-verse, DirecTV, Suddenlink, RCN, CenturyLink, and many others.

Since 2008, Entertainment Studios has offered its channels to Comcast for carriage on its cable distribution platform. Entertainment Studios has even offered JusticeCentral.TV for free with no license fees. But Comcast consistently refused to contract with Entertainment Studios.[11]

For years, Comcast gave Entertainment Studios the run-around with false promises of carriage. Comcast told Entertainment Studios that its channels are “good enough” for carriage. But Comcast told Entertainment Studios that it needed to get support “in the field,” which meant support from Comcast’s regional offices and management. When Entertainment Studios obtained field support, Comcast reversed course and said that field support no longer mattered.

Comcast then told Entertainment Studios to get support from Comcast’s various division offices, but the divisions told Entertainment Studios that they deferred to the decision of the corporate office. Comcast’s false promises and instructions caused Entertainment Studios to incur hundreds of thousands of dollars in travel, marketing, and other costs.

Comcast also told Entertainment Studios that its channels were on the “short list” for imminent carriage, but that Comcast lacked sufficient bandwidth to carry the channels. Comcast’s explanation, however, does not match up with its conduct, because Comcast launched more than eighty networks since 2010, including the lesser-known, white-owned channels Inspirational Network, Baby First Americas, Fit TV (now defunct), Outdoor Channel, and Current TV (now defunct).

As the largest cable distributor, with the most state-of-the-art platform, Comcast has bandwidth to carry the Entertainment Studios Channels. Of the more than 500 channels carried by Comcast’s major competitors—Verizon FIOS, AT&T U-verse and DirecTV—Comcast carries every single one of those channels, except the Entertainment Studios Channels.

One Comcast executive candidly told Entertainment Studios why it refused to contract: “We’re not trying to create any more Bob Johnsons.” Bob Johnson is the African American founder of Black Entertainment Television (“BET”), a groundbreaking network that was eventually sold to Viacom for $3 billion. Comcast did not want to support an African American media entrepreneur who would compete against the white-owned networks Comcast owned and carried.

On February 20, 2015, Entertainment Studios, along with the National Association of African American-Owned Media (NAAAOM), filed a lawsuit against Comcast and other parties in the Federal District Court for the Central District of California alleging racial discrimination in contracting in violation of 42 U.S.C. § 1981. The district court, in a short, unpublished opinion, granted Comcast’s motion to dismiss.[12]

The Ninth Circuit—and I should disclose that this is the stage that I became involved and argued the case there—unanimously reversed the district court’s dismissal of Entertainment Studio and NAAAOM’s claim. The Ninth Circuit, based on in its companion decision in National Association of African American-Owned Media v. Charter Communications, held that to state a claim under § 1981, a plaintiff only need allege that racial discrimination was a “motivating factor” in Comcast’s refusal to contract.[13] The Ninth Circuit held that Entertainment Studios adequately alleged racial discrimination through the following well-pleaded allegations of fact:

Comcast’s expressions of interest followed by repeated refusals to contract; Comcast’s practice of suggesting various methods of securing support for carriage only to reverse its position once Entertainment Studios had taken those steps; the fact that Comcast carried every network of the approximately 500 that were also carried by its main competitors (Verizon FIOS, AT & T U-verse, and DirecTV), except Entertainment Studios’ channels; and, most importantly, Comcast’s decisions to offer carriage contracts to “lesser-known, white-owned” networks (including Inspirational Network, Fit TV, Outdoor Channel, Current TV, and Baby First Americas) at the same time it informed Entertainment Studios that it had no bandwidth or carriage capacity.[14]

Comcast sought certiorari in the U.S. Supreme Court, which was granted.[15]

II. The Court’s Decision and Why It Was Wrong

A. An Ancient Presumption of But-For Causation?

The Supreme Court unanimously reversed the Ninth Circuit. Justice Gorsuch began the Court’s opinion by declaring: “Few legal principles are better established than the rule requiring a plaintiff to establish causation. In the law of torts, this usually means a plaintiff must first plead and then prove that its injury would not have occurred ‘but for’ the defendant’s unlawful conduct.”[16] Turning then to the specifics of the case before it, the Court held that Entertainment Studios’ assertion “that 42 U.S.C. § 1981 departs from this traditional arrangement” fails because “looking to this particular statute’s text and history, we see no evidence of an exception.”[17]

The Court said that the presumption for all federal laws is that but-for causation is required. The Court declared: “This ancient and simple ‘but for’ common law causation test, we have held, supplies the ‘default’ or ‘background’ rule against which Congress is normally presumed to have legislated when creating its own new causes of action. That includes when it comes to federal antidiscrimination laws like § 1981.”[18] The Court said that but-for causation was the “prerequisite to a tort suit” in 1866.[19] The Court saw nothing in the text or history of § 1981 to change that.

The Court stressed that the standard for causation is the same at all stages of the proceedings. The complaint must allege but-for causation, and the plaintiffs must ultimately prove but-for causation in order to recover.

The Court remanded the case to the Ninth Circuit to allow the plaintiffs to show that their complaint sufficiently alleged but-for causation.

B. Why the Court Erred

Although the Court was unanimous, I think it seriously erred.

First, the Court was wrong in concluding that but-for causation was the tort standard in 1866. There were no general rules on factual causation in intentional tort cases in the mid-nineteenth century. Professor G. Edward White attributes this to causation not being at issue in “intentional tort cases or cases where an act-at-peril standard of liability governed . . . .” [20] As Professors John Witt and Mark Gergen, legal historians who submitted an amicus brief to the Court, explain, in the mid-nineteenth century, tort law was understood as a body of “wrongs,” many of which were actionable without the plaintiff having to establish they were actually harmed.[21] The requirement for but-for causation for intentional torts did not evolve into the familiar concept that is known today until later in the nineteenth century.[22] In fact, as recently as the early twentieth century the phrase “but-for” had still not entered the common law mainstream of the United States for intentional torts; causation focused on proximate cause.[23]

The renowned torts scholar William Prosser details the rise of but-for causation, describing the ongoing debate in the legal community in the middle of the twentieth century about whether but-for causation was a viable test for determining liability.[24] In all the cases that he references that deal with causa sine qua non, or but-for causation, none go further back than the 1893 case Stacy v. Knickerbocker Ice. Co.[25]

As Professor Beale explains, courts in the nineteenth century were more concerned with the “consequences of an act” than with the causes of the damage.[26] While “in very few cases up to the year 1900” is proximate cause even part of the investigation, but-for causation is not mentioned at all.[27] When it came to causation, the general consensus during this time was that one bad apple spoils the bunch, because “[t]he question is not what would have happened, but what did happen. A murdered man would have died in time if the blow had not been given; yet the murderer's blow is a cause of his death.”[28] Therefore, it did not matter if there were multiple causes for an event: the consequence remained the same, so the actor was responsible for the damage. As a result, parties seeking recovery in the nineteenth century for intentional torts did not have to prove that the offender’s act was a but-for cause for their injury.

In the case of intentional torts, like §1981, damages were presumed, and factual causation was not required. Justice Gorsuch, then, is incorrect in his conclusion that but-for causation was the assumed standard for tort law in 1866 when § 1981 was adopted.

The majority opinion’s second error was its failure to acknowledge that the Court never before had required but-for causation in the absence of statutory language such as the words “because,” “because of,” “based on,” “by reason of” or other language that requires but-for causation. In Gross v. FBL Fin. Servs., Inc.,[29] the Court held that but-for causation applied to disparate treatment claims under the Age Discrimination in Employment Act.[30] But the Court said that this was because the statute used the words “because of”:

The ADEA provides, in relevant part, that “[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” The words “because of” mean “by reason of: on account of.” . . . Thus, the ordinary meaning of the ADEA’s requirement that an employer took adverse action “because of” age is that age was the “reason” that the employer decided to act. To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the but-for cause of the employer’s adverse decision. [31]

The Court followed this reasoning in University of Texas Southwestern Medical Center v. Nassar,[32] again stressing that the words “because of” give rise to a requirement of but-for causation. The Court relied on Gross and held that but-for causation is required for retaliation claims under Title VII. Like the Age Discrimintation Act at issue in Gross, the Court explained, Title VII “makes it unlawful for an employer to take adverse employment action against an employee ‘because’ of certain criteria.” The Court further explained that, “the lack of any meaningful textual difference between” the two statutes led to the conclusion that “Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment action.”[33]

Quite significantly, the Court explicitly contrasted this with statutes like §1981 that do not use the words “because of.”[34] The Court explained that § 1981 is a “broad, general bar[] on discrimination” that uses “capacious language,” unlike Title VII which is a “detailed statutory scheme” that “enumerates specific unlawful employment practices.”[35]

Section 1981 does not employ specific but-for language, such as barring discrimination “because of,” “on account of,” or “based on” race.” Nonetheless, in evaluating Entertainment Studios’ claim, the Court found a requirement for but-for causation. This, of course, is significant for litigation under § 1981, but it also reinforces that the significance of this case is not limited to that statute. Now the Court will require but-for causation under all civil rights laws, even if they do not have the but-for causation creating language that was critical in Gross and Nasssar.

The third way in which the Court erred was in failing to recognize that the statutory text of § 1981 supports the conclusion that it is sufficient for a plaintiff to plausibly allege that race was a motivating factor in the refusal to contract. The first step in statutory interpretation is to examine the statutory text and, unless otherwise defined, “statutory terms are generally interpreted in accordance with their ordinary meaning.”[36]

Section 1981 provides that all persons “shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”[37] The phrase “same right” is the critical language.

An African American individual is not accorded the “same right” to contract if race is used as a motivating factor for denying him or her the ability to enter into a contract. As the Ninth Circuit explained: “If discriminatory intent plays any role in a defendant’s decision not to contract with a plaintiff, even if it is merely one factor and not the sole cause of the decision, then that plaintiff has not enjoyed the same right as a white citizen.” [38]

African Americans who seek a contract are not treated identically as white persons if their race is a significant reason that they are denied a contract. In other words, if the defendant places added burdens on a person of color seeking a contract that do not apply to similarly situated white persons, the plaintiff has not enjoyed the same right to make a contract.

Justice Gorsuch, writing for the Court, said that the but-for causation language in the criminal part of the Civil Rights Act of 1866 supports requiring it for the entire statute. The Court noted that the criminal santions that Congress established “in a neighboring section . . . permitted the prosecution of anyone who ‘depriv[es]’ a person of ‘any right’ protected by the substantive provisions of the Civil Rights Act of 1866 ‘on account of’ that person’s prior ‘condition of slavery’ or ‘by reason of’ that person’s ‘color or race.’”[39] The Court concluded that the use of terms it has “often held indicate a but-for causation requirement” demonstrate that in the criminal context under the Civil Rights Act of 1866, the government must establish that the defendant’s challenged actions were taken “on account of” or “by reason of” race.[40] Justice Gorush then extended this reading to § 1981 civil litigation, arguing, “it would be more than a little incongruous for us to employ the laxer [motivating factor standard] for this Court’s judicially implied cause of action.”[41]

Quite the contrary, the difference in language used in the criminal enforcement provision of the Civil Rights Act of 1866 should lead to the opposite conclusion: a civil suit under § 1981 requires only that the plaintiff plausibly allege that race was a motivating factor in the refusal to contract. Section 1981 was originally enacted as part of section 1 of the Civil Rights Act of 1866.[42] Section 1 contained similar language to § 1981 today, namely that all persons shall enjoy the same right to contract as is enjoyed by white persons. Section 2 of the Civil Rights Act of 1866 set forth a criminal penalty for any person “who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act . . . by reason of his color or race.”[43]

Critically, the phrase “by reason of” does not appear in section 1 of the Civil Rights Act of 1866. This shows that Congress knew how to use language that connotes but-for causation, but made a deliberate choice to use broader language in defining the rights protected by § 1981.[44]

Finally, the Court’s decision requiring but-for causation ignores the broad remedial intent of the Civil Rights Act of 1866.[45] As early as The Civil Rights Cases, the Supreme Court acknowledged that Congress undertook to enforce the Thirteenth Amendment by “secur[ing] to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell, and convey property, as is enjoyed by white citizens.”[46]

As the Court explained in Jones v. Alfred Mayer, section 1 of the Civil Rights Act of 1866 was “sweeping” and is a “comprehensive statute forbidding all racial discrimination affecting the basic civil rights enumerated in the Act.”[47] Simply put, between the two approaches before the Court—one of which is far more restrictive of civil rights suits—is there really any doubt as to which is more consistent with the intent behind the Civil Rights Act of 1866?

The goal of economic equality underlying that law is no less important today. “Though black people make up nearly 13 percent of the United States population, they hold less than 3 percent of the nation’s total wealth. The median family wealth for white people is $171,000, compared with just $17,600 for black people.”[48]

According to a January 2016 report from the Minority Business Development Agency, African American-owned businesses account for only $150.2 billion in gross receipts whereas all U.S. firms account for $33.5 trillion.[49] In other words, African American-owned firms account for roughly 0.4% of the gross receipts in the entire U.S. economy.

In the area of media ownership, the focus of this litigation, the picture is similarly dismal. “[A]ccording to the latest FCC analysis, people of color collectively owned 7 percent of all U.S. full-power commercial broadcast television stations, or just 98 of the nation’s 1,388 stations. (Though we note that a significant number even of these stations are only nominally owned by people of color, with broadcasters like Sinclair using shell companies headed by people of color to evade FCC ownership rules).”[50] According to the Federal Communications Commission, in 2015 whites owned 1,030 stations (74.4%), while African Americans owned twelve stations (0.9%).[51]

None of this was even mentioned in Justice Gorsuch’s opinion for the Court. The Court’s requirement for but-for causation under §1981 is inconsistent with Congress’s expansive goals in adopting the Civil Rights Act of 1866.

III. Why Comcast Matters

Obviously, the Court’s decision in Comcast will make it more difficult for § 1981 plaintiffs to withstand a motion to dismiss and ultimately to prevail. Alleging and proving but-for causation is much harder than alleging and proving that race was a motivating factor in the denial of the contract. Justice Sandra Day O’Connor recognized that the but-for test, at times, “demands the impossible.”[52] By contrast, a motivating factor standard would require a plaintiff to plausibly allege intentional racial discrimination, but it would allow many more potentially meritorious cases to proceed to discovery.

The Court’s analysis, though, is not limited to § 1981. It seemingly would apply to every civil rights statute, unless Congress expressly provides a different causation standard, as it did in Title VII.

Moreover, the Court was clear that but-for causation must be met at both the pleading and the proof stage. The Court stated: “To prevail, a plaintiff must initially plead and ultimately prove that, but for race, it would not have suffered the loss of a legally protected right.” [53] The Court rejected the argument that allowing allegations that race was a motivating factor in the denial of the contract should be enough to shift the burden to the defendant. It often will be difficult for the plaintiff to have the information to allege in the complaint, prior to discovery, that race was the but-for cause of the denial of the contract. As a result, this but-for causation requirement will bar many otherwise meritorious claims from the opportunity for adequate investigation, allowing those who discriminate in the making of contracts to safely hide behind this heightened standard.

***

As I write this in July 2020, nine months after arguing the case in the Supreme Court and four months after the Court’s decision in Comcast, there is a national focus on racial discrimination and especially anti-Black racism. This, of course, was precipitated in part, by the murder of George Floyd and the protests that followed it. There is a dissonance between this focus and the Court’s making it much harder for victims of discrimination to sue under a crucial federal civil rights law.

But Congress can remedy this by revising § 1981, and for that matter all civil rights laws, to make clear that it is enough to allege that the prohibited ground of decision, such as race, was a motivating factor. There is certainly precedent for this. In 1989, in a series of cases, the Court narrowly interpreted federal civil rights statutes. Two years later, Congress enacted the Civil Rights Act of 1991 to effectively overrule those decisions. My hope is that a new Congress and a new president will do the same: reverse the Court’s narrowing of § 1981 and other civil rights laws, and expand the ability of victims of discrimination to have their day in court.

* Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law. Counsel of Record for Respondent in Comcast v. National Association of African American-Owned Media.

[1] Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 140 S.Ct. 1009 (2020).

[2] The Civil Rights Act of 1866, Pub. L. 39–31, 14 Stat. 27 (1866).

[3] 42 U.S.C. § 1981(a) (1991).

[4] See Comcast, 140 S.Ct. 1009 (holding that a § 1981 plaintiff bears the burden of showing that the plaintiff’s race was a but-for cause of its injury and that burden remains constant over the life of the lawsuit).

[5] Brief for Law and History Professors as Amicus Curiae in Support of Respondents, Comcast, 140 S. Ct. 1009.

[6] Comcast, 140 S. Ct. at 1013.

[7] Oral Argument at 33:47, Comcast, 140 S.Ct. 1009.

[8] Amici for National Association of African American-Owned Media included, among others, the NAACP Legal Defense and Educational Fund, Inc., the American Civil Liberties Union, Americans for Separation of Church and State, Farmworker Justice, The Fred T. Korematsu Center for Law and Equality, the Impact Fund, LatinoJustice PRLDEF, the Mexican American Legal Defense and Educational Fund, the National Women’s Law Center, and the Southern Coalition for Social Justice. Brief for NAACP Legal Defense & Educational Fund, Inc. et al. as Amici Curiae in Support of Respondents, Comcast, 140 S.Ct. 1009 (No. 18–1171).

[9] Comcast, 140 S. Ct. at 1016.

[10] Nat’l Ass'n of African Am.-Owned Media v. Comcast Corp., No. CV151239TJHMANX, 2016 WL 11652073 (C.D. Cal. Oct. 5, 2016).

[11] Nat’l Ass'n of African Am.-Owned Media v. Comcast Corp., 743 F. App’x 106 (9th Cir. 2018).

[12] Comcast, 2016 WL 11652073.

[13] Nat’l Ass’n of African Am.-Owned Media, v. Charter Commc’ns, 915 F.3d 617, 622 (9th Cir. 2019). A procedural complexity of the case is that there were two cases in the district court: one against Comcast and one against Charter Communications, both of which had refused to carry Allen’s channels. The cases were assigned to different district court judges, both in the Central District of California. One district court judge granted Comcast’s motion to dismiss, while the other denied Charter Communications’s motion to dismiss. The latter certified to the Ninth Circuit the question of whether holding Charter Communications liable for failure to carry the channels violated the First Amendment. The cases were briefed and argued separately in the Ninth Circuit. The Ninth Circuit wrote a published opinion in the Charter Communications case and then relied on it in the Comcast case. Both Charter Communications and Comcast sought certiorari. The Court granted Comcast’s certiorari petition.

[14] Comcast, 743 F. App’x at 107.

[15] Comcast Corp. v. Nat’l Ass'n of African Am.-Owned Media, 139 S. Ct. 2693 (2019).

[16] Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media,140 S.Ct. 1009, 1013 (2020).

[17] Id.

[18] Id. at 1014.

[19] Id. at 1016.

[20] G. Edward White, Tort Law in America an Intellectual History 314 (1980) (explaining that rules on factual causation emerged relatively late in the development of tort law).

[21] Brief for Tort Scholars as Amicus Curiae in Support of Respondents, Comcast Corp. v. Nat'l Ass'n of African Am.-Owned Media, 140 S. Ct. 1009 (2020); see also Charles G. Addison, Wrongs and their Remedies, a Treatise on the Law of Torts 775 (1860).

[22] Id.; see also Joseph H. Beale, Proximate Consequences of an Act, 33 Harv. L. Rev. 633, 641 (1920).

[23] See Nicholas St. John Green, Proximate and Remote Cause, 4 Am. L. Rev. 201, 205 (1870); see also William Prosser, Proximate Cause in California , 38 Calif. L. Rev. 369, 396 (1950).

[24] Prosser, supra note 23, at 377.

[25] Stacy v. Knickerbocker Ice Co., 54 N.W. 1091 (Wis. Sup. Ct. 1893); Prosser, supra note 23, at 377 n. 22.

[26] Beale, supra note 22, at 636.

[27] Id.

[28] Id.

[29] Gross v. FBL Fin. Servs., 557 U.S. 167, 174 (2009).

[30] 29 U.S.C. § 623(a)(1) (2015).

[31] Gross, 557 U.S. at 176 (citations omitted).

[32] Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013).

[33] Id. at 352.

[34] Id. at 355–56.

[35] Id.

[36] Sebelius v. Cloer, 569 U.S. 369, 376 (2013) (citation omitted).

[37] 42 U.S.C. § 1981(a) (emphasis added).

[38] Nat’l Ass’n of African Am.-Owned Media, v. Charter Commc’ns, 915 F.3d 617, 626 (9th Cir. 2019); see also Brown v. J. Kaz, Inc., 581 F.3d 175, 182 n.5 (3d Cir. 2009) (“If race plays any role in a challenged decision by a defendant, the plain terms of the statutory text suggest the plaintiff has made out a prima facie case that section 1981 was violated because the plaintiff has not enjoyed ‘the same right’ as other similarly situated persons.”).

[39] Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, 140 S. Ct. 1009, 1015 (2020).

[40] Id.

[41] Id.

[42] The Civil Rights Act of 1866, Pub. L. No. 39–31, 14 Stat. 27 (1866).

[43] Id.

[44] See e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004) (explaining that the “usual rule [is] that ‘when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended’”) (quoting Norman J. Singer, Statutes and Statutory Construction 194 (6th rev. ed. 2000).

[45] See Robert J. Kaczorowski, Congress’s Power to Enforce Fourteenth Amendment Rights: Lessons from Federal Remedies the Framers Enacted, 42 Harv. J. on Legis. 187, 199–200 (2005) (“[O]ne of the principal objectives of the Thirty-Ninth Congress was to make the Constitution’s guarantees of freedom and fundamental rights a practical reality. Republicans achieved this objective by enacting the Civil Rights Act of 1866 . . . .”).

[46] Civil Rights Cases, 109 U.S. 3, 22 (1883).

[47] Jones v. Alfred Mayer, 392 U.S. 409, 433, 435 (1968); see also id. at 431–32 (Senator Trumbull, the proponent of the bill that became the Civil Rights Act of 1866, said that the purpose of the law was to give “practical freedom” to the newly freed slaves and that it would affirmatively secure basic civil rights by “break[ing] down all discrimination between black men and white men”).

[48] Trymaine Lee, A Vast Wealth Gap, Driven By Segregation, Redlining, Evictions and Exclusion, Separates White and Black America, N.Y. Times Magazine (Aug. 18, 2019).

[49] Minority Bus. Dev. Agency, U.S. Dep’t of Commerce, Fact Sheet: U.S. Minority-Owned Firms (2016).

[50] The State of the Television and Video Marketplace: Hearing Before the Subcomm. on Commc’ns, Tech., Innovation, and the Internet of the S. Comm. on Sci., Commerce, and Transp., 116th Cong. 17 (2019) (written testimony of Craig Aaron, President and CEO, Free Press).

[51] Indus. Analysis Div., Fed. Commc’ns Comm’n, Third Report on Ownership of Commercial Broadcast Stations: Ownership Data as of October 1, 2015  7 (2017).

[52] Price Waterhouse v. Hopkins, 490 U.S. 228, 264 (1989) (O’Connor, J., concurring).

[53] Comcast Corp. v. Nat’l Ass’n of African-Am.-Owned Media, 140 S.Ct. 1009, 1019 (2020).