Equal Protection Project Files SCOTUS Brief To Level Legal Playing Field For “Majority” Plaintiffs In Discrimination Cases

Equal Protection Project Files SCOTUS Brief To Level Legal Playing Field For “Majority” Plaintiffs In Discrimination Cases

The Equal Protection Project (EPP) (equalprotect.org) has filed over 50 civil rights complaints involving over 130 programs that discriminate based on race and/or more recently sex.

Details on our most recent filing, which has generated significant media interest, can be reviewed here: Fifty-One Discriminatory Scholarships At University of Rhode Island Challenged By Equal Protection Project.

Significantly, almost all of the discriminatory programs EPP has challenged have involved so-called “reverse discrimination,” or discrimination against Whites, or other “majority” parties. For example, in the University of Rhode Island (URI) case described above, as EPP’s Complaint sets out, using URI’s own website description, the “Benson Scholarship Endowment” provides funding for “a scholarship awarded annually to an African American student.” And the “Dr. M. Beverly Swan Scholarship Endowment” provides funding for “an incoming freshman” who is “a female student majoring in English.” Keep in mind that these are just two of the 51 such discriminatory programs at URI.

In fact, EPP has found since its founding in February 2023, that this is the norm. Almost all the programs EPP has challenged have involved such “reverse discrimination,” or discrimination against White, male students.

So EPP’s interest was piqued when we learned about a new U.S. Supreme Court case that highlights a strange, judge-made rule (i.e. it is not part of any statute or regulation) that makes it almost impossible for White, male, or other “majority” party plaintiffs in an employment case to prove discrimination in the courtroom and win.

In this case, titled Marlean A. Ames v. the Ohio Department of Youth Services, it was undisputed that Marlean Ames proved a prima facia case of discrimination because the Court agreed that she had been denied a promotion and then fired because she was “straight,” or heterosexual, and the two jobs Ames lost out on went to gay persons who were not even qualified for the jobs.

But Ames still lost the case.

Why? Because of the bizarre “background circumstances” rule. That rule, which was invented by the federal U.S. Court of Appeals for the District of Columbia Circuit in 1981, says that in addition to showing the normal factors of racial discrimination in an employment case (i.e. basically that a person was fired or not hired because of their race), a so-called “majority” plaintiff in a case of so-called “reverse discrimination” must also show “background circumstances [to] support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Parker v. Baltimore & Ohio R.R. Co., 652 F.2d 1012, 1017 (D.C. Cir. 1981).

Is this rule found in Title VII, which governs discrimination in employment?

It is not.

What Title VII says is “[i]t shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (emphasis added).

No mention of majority, or minority for that matter, persons. Everyone is to be treated the same.

And the U.S. Supreme Court has emphasized this point in the past. From the Supreme Court’s seminal McDonald v. Santa Fe Trail Transport Co. case, authored by Justice Thurgood Marshall, the hero of Brown v. Board of Education:

Title VII of the Civil Rights Act of 1964 prohibits the discharge of ‘any individual’ because of “such individual’s race.” Its terms are not limited to discrimination against members of any particular race…[W]e [have] described the Act as prohibiting (d)iscriminatory preference for Any (racial) group, Minority or Majority. Similarly the EEOC, whose interpretations are entitled to great deference, has consistently interpreted Title VII to proscribe racial discrimination in private employment against whites on the same terms as racial discrimination against nonwhites, holding that to proceed otherwise would ‘constitute a derogation of the Commission’s Congressional mandate to eliminate all practices which operate to disadvantage the employment opportunities of any group protected by Title VII, including Caucasians.’

McDonald v. Santa Fe Trail Transp. Co., 427 U.S 273, 278-79 (1976) (citations omitted).

Nonetheless, the D.C. Circuit, which invented the rule, as well as the federal Sixth Circuit (HQ in Cincinnati, Ohio), Seventh Circuit (HQ in Chicago, Illinois), Eighth Circuit (HQ in St. Louis, Missouri), and Tenth Circuit (HQ in Denver, Colorado), which have all adopted the “background circumstances” rule, all require “majority” plaintiffs to make this extra showing.

Notably, the federal Third and Eleventh Circuit have expressly rejected the “background circumstances” rule. From Eleventh Circuit Judge Gerald Bard Tjoflat, a Korean War veteran who has been a federal judge for 54 years and who I had the distinct pleasure of being a law clerk for, from 2012-2013:

We note that, in “reverse” discrimination cases like this one, some circuits…require majority-member plaintiffs to establish that “background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.” Parker v. Balt. & Ohio R.R. Co., 652 F.2d 1012, 1017 (D.C.Cir.1981) (emphasis added). We, however, have rejected a background circumstances requirement…because “Discrimination is discrimination no matter what the race, color, religion, sex, or national origin of the victim.”

Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1325 n.15 (11th Cir. 2011).

And the Third Circuit said that requiring a show of “background circumstances” is an “arbitrary barrier which serves only to frustrate those who have legitimate Title VII claims.” Iadimarco v. Runyon, 190 F.3d 151, 159 (3d Cir. 1999).

So the U.S. Supreme Court, in October, decided to take the case to decide whether the “background circumstances” rule is good law.

And on Monday, December 16, 2024, EPP submitted an amicus curiae, or “friend-of-the-court” brief to the Supreme Court in support of Marlean Ames. You can review EPP’s brief here, or at the end of this post.

Keep in mind that the point of an amicus brief is not to simply regurgitate arguments that the main parties already made, but to add something different that the parties hadn’t briefed that might be helpful to the justices.

In her main brief, Marlean Ames’ attorneys emphasized the excessive burden placed on “majority” plaintiffs by the “background circumstances” rule, how the rule conflicts with the text of Title VII (see above), and how it conflicted with the Supreme Court’s prior rulings.

So, EPP, while agreeing with and joining Ames’ arguments, spent the majority of our time emphasizing two other key points.

First, that while discrimination against so-called “majority” parties might have bee rare in 1981, it no longer is – in fact, it is the norm. From our brief:

EPP argues additionally, however, that even if the “background circumstances” rule had been correct when invented by the D.C. Circuit in Parker, it is no longer applicable or useful because discrimination against so-called “majority” citizens is no longer “unusual,” but rather has become common. For example, of the over 40 cases of racial and sex discrimination EPP has filed civil rights complaints against since February 2023, most have entailed discrimination against “majority” parties. In fact, a recent addition to the EPP team, Professor Mark Perry, has filed over 2,000 civil rights complaints in cases involving Title VI and Title IX race and sex discrimination, most of which involved discrimination against majority parties. As the organization Do No Harm, which advocates for “keeping identity politics out of medical education, research, and clinical practice,” has stated, “[a]lmost every U.S. medical school has at least one scholarship, fellowship, clerkship, award, special preference, or academic program that violates federal civil rights laws. Most of them involve favoritism toward students typically considered to be Underrepresented in Medicine (URiM).”

In other words, these programs routinely discriminate against majority parties. In sum, what was once “unusual” has now become ubiquitous, making the “background circumstances” requirement an anachronism that must be relegated to the dustbin of judicial history.

We also pointed out some of the work EPP has done and what we have encountered:

EPP has direct experience with racial and sex discrimination in institutions of higher learning, having filed, as mentioned, civil rights complaints against over 40 schools involving over 130 individual racially discriminatory education and education-related programs, most of which entailed discrimination against majority parties. EPP pauses to illustrate three such representative cases.

First is EPP’s civil rights complaint against the University of Illinois Urbana-Champaign (“UIUC”), in which EPP cited 42 UIUC scholarships that discriminated based on race or sex in violation of Title VI and Title IX, respectively. 39 out of 42 of these scholarships discriminated against majority students. From EPP’s Complaint:

UIUC offers, administers, and promotes 42 scholarships that discriminate based on race, sex, or both. . . . Given the vast array of discriminatory scholarships, it is clear that UIUC has a systemic non-compliance with federal civil rights laws. We request that [the U.S. Department of Education’s Office for Civil Rights] investigate UIUC for the multiple violations of federal civil rights laws (Title IX and Title VI) as set out below, and impose remedial and other relief[.]

Second is EPP’s civil rights complaint against Indiana University (IU), in which IU’s Indianapolis campus, the IU Kelley School of Business, and the IU McKinney School of Law all discriminated against majority students in 19 separate discriminatory scholarships. From EPP’s Complaint:

We make this civil rights complaint against Indiana University, a public institution which offers, promotes, and administers at least 19 race-based scholarships at the Kelley School of Business, the IU Indianapolis campus and the McKinney School of Law. The number of discriminatory scholarships we are challenging and the number of IU institutions at which they are offered reflects a pervasive and systemic failure to comply with constitutional and statutory requirements at IU, warranting expedited investigation by OCR. . . . For some of the scholarships terms such as ‘minorities’ or variations on that term are used. It is clear from the context of the scholarships and the usage of such terms by Indiana University that these terms reflect a racial and/or ethnic descriptor that excludes whites.

Finally, EPP brought a civil rights complaint against Missouri State University for a single discriminatory program. From EPP’s Complaint:

We bring this civil rights complaint against the Missouri State University (“MSU”), a public institution, for engaging in racial- and gender-based discrimination through its sponsorship, promotion and hosting of a small business training ‘boot camp’ that limited participation to individuals who identify as ‘BIPOC’ – an acronym for non-white individuals who are ‘Black, Indigenous and Persons of Color’ – or who are female. White males, and white males alone, were excluded from eligibility.

These examples all serve to show that even if the “background circumstances” rule had some validity when it was invented in 1981, in that discrimination against majority parties was “unusual” then, it no longer is. The “background circumstances” rule, therefore, has outlived whatever purpose it may have once had and should be stricken from this Court’s discrimination jurisprudence.

Anyway, our other major argument is that if you dig into Parker, the D.C. Circuit case that invented the “background circumstances” rule, you find that the authority it cited for the rule not only didn’t set out the rule, it, in fact expressly disclaimed anything like it.

From our brief:

The D.C. Circuit’s Parker case is widely cited as being the starting point of the “background circumstances” rule…But Parker cited only one case as authority for the rule that it invented out of whole cloth, and that case specifically disclaimed anything like the “background circumstances” requirement.

This court has allowed majority plaintiffs to rely on the McDonnell Douglas criteria to prove a prima facie case of intentionally disparate treatment when background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.

652 F.2d at 1017 (citing Daye v. Harris, 655 F.2d 258 (D.C. Cir. 1981) as authority for the background circumstances requirement).

But did Daye specifically say that majority plaintiffs were required to show background circumstances sufficient to “support the suspicion that the defendant is that unusual employer who discriminates against the majority?” It did not.

What Daye did say is the opposite. Citing a then-recent Title VII case entitled Bundy v. Jackson, 641 F.2d 934, 951 (D.C. Cir. 1981), Daye held only that:

to make out a prima facie case the plaintiff must show that she belongs to a protected group, that she was qualified for and applied for a promotion, that she was considered for and denied the promotion, and that other employees of similar qualifications who were not members of the protected group were indeed promoted at the time the plaintiff’s request for promotion was denied.

655 F.2d at 262 n.11 (citing Bundy, 641 F.2d at 951). In fact, Daye expressly disclaimed any requirement that a majority plaintiff show “background circumstances” when it held “[t]hat [Daye] is white is no impediment to this suit; white employees are protected by Title VII.” Id. (citing McDonald, 423 U.S. 923, which expressly held that Title VII protects all plaintiffs against discrimination equally).

Especially when contrasted with the text of Title VII, which does not distinguish between majority and minority plaintiffs, there was no basis for the court in Parker, based on the only authority cited, i.e. Daye, to invent the “background circumstances” rule as a necessary requirement for majority plaintiffs to make out a prima facie case of discrimination.

For this reason, the “background circumstances” rule rests on exceedingly thin legal grounds and should be rejected on this basis alone.

Hopefully some enterprising Supreme Court clerk (hopefully for Justice Alito or Thomas) will take a look at our brief and point one of the Justices to it.

Especially on our point that anti-majority discrimination is absolutely the norm these days – which makes a rule like the “background circumstances” rule worse than useless – the rule itself discriminates against White and other “majority parties – a point one of the judges made when the case was still at the Sixth Circuit:

The ‘background circumstances’ rule is not a gloss upon the 1964 Act, but a deep scratch across its surface. The statute expressly extends its protection to ‘any individual’; but our interpretation treats some ‘individuals’ worse than others— in other words, it discriminates—on the very grounds that the statute forbids.”) (Kethledge, J., concurring)

Ames, 87 F.4th at 817.

We will keep you updated on the progress of the case.

Incidentally, eight other amicus briefs were filed along with EPP’s brief. See the SCOTUS docket here. And interestingly, the Biden Administration filed a brief supporting Marlean Ames because it argues that the “background circumstances” rule conflicts with the text of Title VII.

Sometimes litigation makes for strange bedfellows.

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