The Lawletter Vol 37 No 5

Steve Friedman, Senior Attorney, National Legal Research Group

The Establishment Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment, provides that "Congress shall make no law respecting an establishment of religion."  U.S. Const. amend. I, cl. 1.  Among other things, a Government violates the Establishment Clause if its practice could be viewed by a reasonable observer as endorsing religion, either by fostering excessive entanglement with religion, see Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), or by applying coercive pressure to support or participate in religion, see Lee v. Weisman, 505 U.S. 577, 587 (1992); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 312 (2000).

In Doe v. Elmbrook School District, No. 10-2922, 2012 WL 2996743 (7th Cir. July 23, 2012) (en banc), a divided en banc Seventh Circuit held that the Establishment Clause prohibits having high school graduation and related events at a church with an emphatically Christian atmosphere.  Due to the hot, cramped, and uncomfortable confines of the high school gymnasium shared for graduation-related events by two area high schools in the Elmbrook, Wisconsin, School District (the "District"), the senior class of 2000 looked for alternative locations in which to hold them.  With the backing of the District, they ultimately chose a local evangelical Christian church (the "Church").  "The atmosphere of the Church, both inside and outside the sanctuary, is indisputably and emphatically Christian.  Crosses and other religious symbols abound on the Church grounds and the exterior of the Church building, and visitors encounter these symbols as they drive to the parking lot and walk into the building."  Id. at *4.  A group of students and their parents brought suit against the District, claiming that holding graduation in the Church violated the Establishment Clause.

On cross-motions for summary judgment, the trial court granted the District summary judgment.  The plaintiffs appealed, and the District's judgment was affirmed by a panel of the Seventh Circuit.  On rehearing en banc, however, in a 4-3 decision, the Seventh Circuit reversed and remanded, holding that the District's practice violated the Establishment Clause.

In relevant part, the majority held first that the District's practice "conveyed a message of endorsement" and that "the sheer religiosity of the space created a likelihood that high school students and their younger siblings would perceive a link between church and state." Id. at *10.  In addition to the large Latin cross at the front of the sanctuary, the lobby contained numerous child-oriented proselytizing pamphlets, and church staff manned booths during some of the District's activities.  Not only was the Church adorned with its own symbols, but it was covered with high school decorations too, such that the District placed its imprimatur on the Church's religious message.

The majority also held that the District's practice constituted religious coercion.  By directing students to attend a pervasively Christian, proselytizing environment, the District created a captive audience.  "The only way for graduation attendees to avoid the dynamic is to leave the ceremony.  That is a choice . . . the Establishment Clause does not force students to make."

August 21, 2012

John Stone, Senior Attorney, National Legal Research Group

Among the less frequently litigated federal civil rights statutes is 42 U.S.C. § 1981, which prohibits race discrimination related to making and enforcing contracts. The term "make and enforce contracts" in the statute means "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship."  42 U.S.C. § 1981(b).  Within the category of cases deciding claims under this provision, there are fewer still that involve actions brought by customers against retail businesses.  In a recent case, the Eleventh Circuit had to decide whether a customer could succeed on his § 1981 cause of action, where he had been subjected to racially motivated treatment that delayed and obstructed his shopping but that did not, in the end, prevent him from completing the transaction.  The court answered this question in favor of the defendant store, affirming dismissal of the § 1981 claim.  Lopez v. Target Corp., 676 F.3d 1230 (11th Cir. 2012).

The Hispanic plaintiff in Lopez had selected some items to purchase at a big-box store and stood in a checkout line.  When he reached the register, the white female cashier "rudely" told him that her register was closed, then proceeded to help the next customer, who was white, after Lopez had walked away.  As she did this, the cashier laughed at, and gestured toward, Lopez.  When Lopez headed toward a different line, a supervisor, who had apparently witnessed Lopez's first attempt to check out, told Lopez to go back to the same line, where the same cashier would accept his payment.  Given a second chance to get it right, the cashier squandered the opportunity and instead revealed her bias more plainly.  The cashier did not use any racial terms, but when Lopez reached her, she very loudly said, "Don't you listen? I'm closed!"  Id. at 1232.  When Lopez explained that a supervisor had sent him back to her, she said, even more loudly, "Don't you understand? I'm closed to YOU!"  Id.  Again Lopez left the line, and again the cashier gestured at him and laughed as he went.  At that point, Lopez was finally able to buy his items from a different cashier, who heard his story and summoned a supervisor, who apologized profusely.  The opinion does not indicate the fate of the rude cashier, but Lopez, "in a state of shock" and still distraught, finally left the store with his purchased items and $9 worth of coupons from the apologetic supervisor.

Lopez brought suit in state court against the store and the cashier, and the presence of the federal claim under § 1981 allowed the case to be removed to federal court.  When Lopez's claims were dismissed by the district court, the Eleventh Circuit had before it the ' 1981 claim and the state law tort claim for intentional infliction of emotional distress ("IIED").  It affirmed the lower court's rulings.

The Lawletter Vol 37 No 2

John Stone, Senior Attorney, National Legal Research Group

Police arrested Christina outside Chicago's Midway Airport.  She had purchased a ticket from Southwest Airlines but was behaving so oddly while waiting to board the airplane that agents called the police, who escorted her from the airport.  Christina walked to the rail and bus terminal of the Chicago Transit Authority, immediately outside the airport, where she started singing loudly, ranting about the price of oil, and screaming at other people, with her face only inches from theirs.  She would not or could not stop, despite multiple requests, leading to her arrest.

Experts in the ensuing litigation concluded that Christina had been in an acute manic phase. She did not tell the police about her mental‑health background, however, and was uncooperative after her arrest—sometimes refusing to answer questions, sometimes screaming, sometimes providing false or unresponsive answers.  Telephone calls from her mother and her stepfather informed officers in Chicago that Christina had bipolar disorder, but the officers did not believe the stepfather, and the officer who took the calls from the mother failed to tell anyone else or record the information in Christina's file.  While Christina was in custody, some officers thought that she was just being difficult, some thought that she was on drugs, some thought that she was no worse than the run-of-the-mill loud and uncooperative people who do not want to be in custody, and those who thought that she needed mental‑health care were ignored or overruled.

While detained at a police station, Christina alternated between calm and manic conduct, sometimes chatting amiably and sometimes screaming, chanting rap lyrics, smearing menstrual blood on the cell's walls, and taking off her clothes.  Officers processed the paperwork to release her on an individual‑recognizance bond.  Christina signed the bond and walked out of the station house.  She had no idea where she was and did not do the most sensible things—hail a taxi or head for a bus station and get out of the area during the remaining daylight.  It was evening, and the police station was close to a public‑housing project with an exceptionally high crime rate; the police had not returned her cell phone, so she could not easily summon aid; she was lost, unable to appreciate her danger, and dressed in a manner that attracted attention (a cutoff top with a bare midriff, short shorts, and boots); and she was white and well-off while the local population was predominantly black and not affluent, thus, in the court's view, causing her to stand out as a person unfamiliar with the environment and a potential target for crime.

Soon Christina joined a cluster of 15 to 20 people on a street corner outside one of the project's high‑rise buildings.  She accompanied several young men to an apartment that was vacant and had been taken over as a hangout.  Some of the occupants told her that it was unsafe and that she should leave, but Christina was too confused to act on that advice.  About five hours after the police let Christina go, a man found her in the apartment, forced the others out, and raped her at knifepoint.  People outside tried and failed to break down the door in time to save her.  Trying to escape, Christina jumped out the window, which was seven stories aboveground.  Although she survived the fall, her brain was seriously damaged.  She has undergone years of physical therapy, but her brain functioning is permanently that of a child.

April 24, 2012

John Stone, Senior Attorney, National Legal Research Group

Title IX of the Education Amendments of 1972 prohibits gender‑based discrimination by federally funded educational institutions. It provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a).  In Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), the Supreme Court held that retaliation against a person because that person has complained of sex discrimination is also a form of gender‑based discrimination actionable under Title IX.

On its first occasion to say what a plaintiff must prove to prevail on a retaliation claim under Title IX, the Ninth Circuit has reinstated a case for a plaintiff whose claim had been dismissed on summary judgment by a federal district court.  Emeldi v. Univ. of Or., No. 10-35551, 2012 WL 933821 (9th Cir. filed Mar. 21, 2012). As other federal circuits have done, the Ninth Circuit applied the same framework as is used to decide retaliation claims brought against employers under Title VII of the Civil Rights Act of 1964.  See, e.g., Papelino v. Albany Coll. of Pharm. of Union Univ., 633 F.3d 81, 91B92 (2d Cir. 2011) (applying the Title VII framework to a Title IX retaliation claim); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st Cir. 2002) (same).

According to that framework, a plaintiff who lacks direct evidence of retaliation must first make out a prima facie case of retaliation by showing that he or she was engaged in protected activity, he or she suffered an adverse action, and there was a causal link between the two.  Once the plaintiff has made the threshold prima facie showing, the defendant must articulate a legitimate, nonretaliatory reason for the challenged action; if the defendant does so, the plaintiff must then show that the reason is pretextual either directly, by persuading the court that a discriminatory reason more likely motivated the employer, or indirectly, by showing that the employer's proffered explanation is unworthy of credence.

In Emeldi, the plaintiff was a graduate student who alleged that she had been retaliated against because she had complained about bias based on gender. Her complaints were on such matters as the lack of women on the faculty, the failure to give female students the same support and attention as male doctoral candidates received, and the fact that male students had opportunities that were not available to female students, such as access to more and better resources, including more office space and better technology for collecting data.

The court found that the plaintiff's complaints to the Dean of the College of Education and, later, to an administrator about gender‑based institutional bias and about a male professor's—her dissertation committee chair's—unequal treatment of her in particular and of female graduate students in general constituted "protected activity" under Title IX; moreover, the protected status of her alleged statements stayed intact whether or not she would ultimately be able to prove her underlying contentions about discrimination.

The Lawletter Vol 36 No 10

John Stone, Senior Attorney, National Legal Research Group

The Fourth Circuit Court of Appeals has upheld summary judgment granted in favor of a university medical school that had been sued by a dismissed medical student with attention deficit hyperactivity disorder ("ADHD").  Halpern v. Wake Forest Univ. Health Sci., 669 F.3d 454 (4th Cir. 2012).  The claims of disability discrimination were brought under the federal Rehabilitation Act of 1973, which prohibits discrimination against the disabled in programs or activities receiving federal financial assistance, and that part of the Americans with Disabilities Act ("ADA") that prohibits disability discrimination in places of "public accommodation," 42 U.S.C. §§ 12181–12189.

To the extent possible, the ADA and the Rehabilitation Act are construed to impose similar requirements.  Accordingly, despite the different language these statutes use, they require a plaintiff to demonstrate the same elements to establish liability.  In the relevant context of a student excluded from an educational program, to prove a violation of either the ADA or the Rehabilitation Act, a plaintiff must establish that he or she (1) has a disability; (2) is otherwise qualified to participate in the defendant's program; and (3) was excluded from the program on the basis of his or her disability.  If a person, due to his or her disability, requires a modification to meet the essential requirements to participate in an educational program and if the necessary modification is unreasonable, then that person is not "qualified" under the ADA and the Rehabilitation Act to participate in the program.  In Halpern, the dismissed student had a disability, but his claims fell because he was not otherwise qualified to participate in the medical school's program and the modification or accommodations he sought were found to be unreasonable.

From the defendant medical school's viewpoint, the problem was not the student's disability, per se, but his objectionable behavior that may well have stemmed from the disability.  To determine whether a plaintiff has satisfied the burden of establishing that he or she is qualified for an educational program, a court must decide whether the plaintiff has presented sufficient evidence to show (1) that he or she could satisfy the essential eligibility requirements of the program, that is, those requirements that bear more than a marginal relationship to the program at issue; and, if not, (2) whether any reasonable accommodation by the defendant would enable the plaintiff to meet these requirements.  For purposes of this analysis, the court in Halpern began with the premise that the University's professional judgment as to the medical student's ability to continue in the medical program with his ADHD and anxiety disorder and as to whether his proposed accommodations would effect substantial modifications to the program was entitled to deference.