September 25, 2019
October Term 2019: Supreme Court Cases We're Watching
This blog covers cases also discussed in ACS's 2019-2020 Supreme Court Preview. Watch the video here.
It seems trite to say of the Supreme Court term that every case matters. Of course, every case matters a great deal to the parties involved and others directly affected, but with the Supreme Court granting cert in only about 75 cases each term, a number of the cases it reviews have significant consequences for many or all of us. Here are a few of the cases we’re watching closely:
The Meaning of Sex: Who is Protected Under Title VII?
The Court has three cases on the docket that pose the question of whether Title VII’s prohibition against sex discrimination includes discrimination based on gender identity and sexual orientation. (Altitude Express Inc. v. Zarda; Bostock v. Clayton County, GA; R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission). Supreme Court precedent holds that adverse employment actions because of sex stereotyping violate Title VII (Price Waterhouse v. Hopkins), explaining as long ago as 1989 in a case where a female employee was denied promotion because she was perceived as too aggressive that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group….” Given that principle, petitioners in these cases, who are transgender and gay, assert that the anti-discrimination law protects them. The EEOC has previously held that "sexual orientation is inherently a 'sex-based consideration;'’ and that “an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII."(Baldwin v. Foxx) The Commission also takes the position in the Harris case that the petitioner’s dismissal because of her transgender status violated Title VII. While the Second and Sixth Circuits agreed with the petitioners in these cases, the Eleventh Circuit refused to apply Title VII’s protections to sexual orientation discrimination. How the Court resolves this conflict will affect the ability of LGBTQ people to remain gainfully employed free from discrimination based on that status. Oral argument is scheduled for October 8th.
For more, read Katie Eyer's blog on ACS Expert Forum: Understanding the Role of Textualism and Originalism in the LGBT Title VII Cases
The Future of DACA
The Deferred Action for Childhood Arrivals (DACA) program is also the subject of three cases before the Court this term (Department of Homeland Security v. Regents of the University of California; McAleenan v. Vidal; Trump v. NAACP). DACA, which was established by the Obama Department of Homeland Security as an exercise of prosecutorial discretion, temporarily deferred the removal of DREAMERs, individuals who were brought to the U.S. as children and have lived here most of their lives. In September 2017, then-Attorney General Jeff Sessions announced the termination of the DACA program, asserting that it was an “unconstitutional exercise of authority by the Executive Branch.”
The Government contends, among other things, that its decision to revoke DACA is not reviewable by the courts. The Respondents assert that the Administration’s rescission of DACA violated the Administrative Procedures Act because it did not provide a “satisfactory explanation” for changing course, and its actions were “arbitrary and capricious.” In addition to challenging the Government’s position on the merits in these cases, Respondents also object on procedural grounds. As is happening more and more often, the Administration bypassed full appellate review, bringing these cases to the Court on appeal from preliminary injunctions issued by district courts. As a result, the case on the merits may not have been fully developed below.
Approximately 800,000 people are the beneficiaries of DACA, and how the Court decides these cases will first and foremost have critical impact on their lives. Additionally, it will signal to the Trump Administration (and future administrations) the permissible scope of DHS discretion with regard to immigration enforcement. Oral argument is scheduled for November 12th.
Public Funding for Religious Schools
On appeal from the Montana Supreme Court, the Court will review a challenge to a state program that allows for tax credits to be applied toward tuition at non-sectarian private schools. The State excluded religious schools from the program, believing that to be required by the Montana Constitution, which prohibits the use of public funds, directly or indirectly, to aid religious institutions. The petitioning parents claim that the program violates the First Amendment’s Religion Clauses and the Equal Protection Clause.
“No aid” provisions like Montana’s are contained in numerous state constitutions and are often called “Blaine Amendments,” for the Maine Senator who in 1875 proposed amending the federal Constitution to include such a prohibition, though his effort failed. While there is general consensus that the motivating animus behind the original Blaine Amendment was anti-Catholic bigotry and a wish to withhold public funds from Catholic parochial schools, many who support these constitutional prohibitions today do so out of support for public schools and/or the belief that they are necessary to maintain the “separation of Church and State.” Indeed, the Montana Constitution was ratified in 1972, long after the original Blaine Amendment was proposed.
As many commentators have put it, this case raises the question of whether a state “must,” as opposed to “may,” provide funds to a religious institution if its program benefits secular ones. Some argue that the Court’s 2017 ruling in Trinity Lutheran Church v. Comer that a state program offering funds to schools for the resurfacing of their playgrounds could not exclude religious schools answers this question. Others point to a footnote in the opinion explicitly limiting the holding to the specific facts and context under consideration, as well as to the Court’s 2004 Locke v. Davey decision upholding a state scholarship program providing funds for higher education but not if the applicant were seeking a degree in “theology,” understood to mean a course of study "devotional in nature or designed to induce religious faith."
How the Court decides this case could have significant impact on the “school choice” debate and whether states that wish to limit the use of public funds to non-sectarian institutions in all kinds of contexts will be allowed to do so. Oral argument is not yet scheduled.