Supreme Court to Hear Oral Argument in Case Called “the Final Nail in DEI’s Coffin”
You might recall that in December of last year, the Equal Protection Project (EPP) (equalprotect.org) filed an amicus curiae, or friend-of-the-court, brief with the United States Supreme Court in a case called Ames v. Ohio Department of Youth Services: Equal Protection Project Files SCOTUS Brief To Level Legal Playing Field For “Majority” Plaintiffs In Discrimination Cases. The case involves so-called “reverse discrimination,” or discrimination against “majority parties.” This can take the form of (most commonly) anti-White racial discrimination, anti-male sex discrimination, etc.
In Ames, the weird thing was that the Plaintiff, Marlean Ames won her discrimination case in court, but lost the case anyway. How, you ask? Well, it turns out that she was the victim of reverse discrimination, this time in the form of discrimination against “straight,” i.e. not homosexual, persons. In this case, Ames was not promoted to one position, and then fired and demoted from her own position, both in favor of gay persons who were not even qualified for the jobs at issue. And in some, but not all, of the federal court circuits, which each cover several states, a “majority” plaintiff, in addition to showing 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). Because Ames couldn’t show that her employer routinely discriminated against majority parties, she lost (and you can’t use your own case to show “background circumstances,” by the way).
So EPP filed an amicus brief to argue that while the “background circumstances” rule might have had some validity when it was invented by the D.C. Circuit in Parker in 1981, it no longer does. Now it is commonplace for many employers to discriminate against majority parties.
It’s called DEI. You may have heard of it.
Anyway, SCOTUS is set to hear oral argument in the case this coming Wednesday, February 26, 2025, at 10 a.m. You can listen in live here, at the appointed time, if you want. We’ll be listening and will provide our hot take on the proceedings.
For a great legal take on all the ins and outs of the case, read this great summary by the awesome Amy Howe at SCOTUSBLOG: Ohio woman asks court to weigh in on requirements for reverse discrimination claim.
And for a more wide-ranging summary, with a more political bent, read all of Will the Supreme Court’s Decision in ‘Ames’ Be the Final Nail in DEI’s Coffin?
From the article:
A wave of anti-DEI lawsuits, executive orders, and social media movements has swept the country. On Feb. 26, 2025, the United States Supreme Court will hear Ames v. Ohio Department of Youth Services, a case that directly impacts the growing anti-DEI “reverse discrimination” movement.In deciding the case, the court is expected to clarify the requirements for a plaintiff to establish a prima facie case of reverse discrimination and may very well seal the fate of DEI in an already changing world…The court will not decide Ames in a vacuum; employers already are under pressure from a series of recent anti-DEI reforms coming from the executive branch, private litigants, advocacy groups, social media influencers, consumers, and shareholders…Within the first two days of his second term, President Trump immediately set his sights on dismantling DEI programs. He issued two Executive Orders (“EOs”) targeting diversity initiatives: (1) Ending Radical and Wasteful Government DEI Programs and Preferencing and (2) Ending Illegal Discrimination and Restoring Merit-Based Opportunity.The first EO targets federal agencies and directs the Director of the Office of Management and Budget to terminate “all ‘diversity, equity, inclusion, and accessibility’ (DEIA) mandates, policies, programs, preferences, and activities in the Federal Government, under whatever name they appear.” The OMB Director acted quickly and placed all federal employees in DEI offices on paid leave within two days of the Order.The second EO extends beyond federal actors and targets private entities in several notable ways. First, the “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” Order eliminates Executive Order 11246, which has been in place since 1965 and prohibited discrimination by federal contractors and required affirmative action to ensure equal employment opportunity. Among other requirements, it required federal contractors with at least 50 employees and a single contract of $50,000 or more to develop an affirmative action program.In the second EO, President Trump also ordered the Attorney General to work with agency heads over 120 days to put together a report with “recommendations for enforcing Federal civil-rights laws” and encouraging “the private sector to end illegal discrimination and preferences, including DEI.”* * * *Anti-DEI litigants have also challenged grant funding programs under 42 U.S.C. § 1981, a reconstruction-era statute. In American Alliance for Equal Rights v. Fearless Fund Management, LLC, 103 F.4th 765 (11th Cir. 2024), the Eleventh Circuit Court of Appeals reversed the district court’s denial of a preliminary injunction against a venture capital fund over its grant contest for Black-women-founded companies.The appellate court found that the contest likely violated the non-Black plaintiffs’ rights under a provision of the 1866 civil rights act that states: “all persons within…the United States shall have the same right . . . to make and enforce contracts…as is enjoyed by white citizens.” Since the Fearless Fund decision, litigants have challenged other grant programs by companies such as McDonalds.
You might recall that EPP filed an amicus brief in the Fearless Fund case, as well, and considers that case a significant win against DEI and anti-White racial discrimination: Equal Protection Project Influence Reflected in Court of Appeals “Fearless Fund” Antidiscrimination Ruling
In any case, while the Ames case might turn on an arcane, and long-outmoded, legal rule, its implications for finally burying DEI are apparent. We are hoping for a positive outcome, where all people, regardless of race, sex, or sexual preference, are treated equally in discrimination cases in court.
Finally, one of the stranger things about this case is that on December 16, 2024, i.e. during the Biden Administration and more than a month before President Trump took office, Biden’s Solicitor General, Elizabeth Prelogar, who argues most of the federal government’s cases at SCOTUS, filed her own amicus brief on behalf of the “United States,” supporting…wait for it…Marlean Ames!! And now, the Trump Administration is running the show, and the Supreme Court has granted Prelogar’s motion to participate in oral argument (she got Petitioner Ames’ consent), so Ames will get 20 minutes, Prelogar will get 10 minutes, and then the Ohio Department of Youth Services will get 30 minutes.
It’s gonna be fun!
We will keep you posted.
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