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On October 31, 2022, the Supreme Court of the United States (“SCOTUS” or “the Court”) heard oral arguments in two cases challenging the race-conscious student admissions policies used by Harvard University and the University of North Carolina (“UNC”) to promote diverse school enrollments. The final decision in this case likely will be released at the end of the current term—in late June or early July 2023. It could have important implications not only for colleges and universities but also for public school districts.…

Continue Reading Affirmative Action: The Possible K-12 Impacts of the Supreme Court Cases Involving Harvard and UNC

multiethnic students reading books

On January 24, 2022, the United States Supreme Court (the “Supreme Court” or the “Court”) granted certiorari in the Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (“SFFA v. Harvard”) case. The Court consolidated SFFA v. Harvard with SFFA v. University of North Carolina (“UNC”) because both lawsuits are being brought by the SFFA and seek to reverse the Court’s 2003 decision in Grutter v. Bollinger, 539 U.S. 306 (2003), upholding narrowly tailored, race-conscious measures to promote diverse student bodies in colleges and universities. The Court has extended the briefing schedule, and merits briefing will be completed this summer, with oral argument early in the October 2022 Term.
Continue Reading Supreme Court to Hear Case on the Continuation of Affirmative Action in College Admissions

Group of Children in a Circle

John Kluge, a former music and orchestra teacher at Brownsburg Community School Corporation (“BCSC”) allegedly was forced to resign after refusing to refer to transgender students by the names selected by the students, their parents, and their healthcare providers due to the teacher’s religious objections. Kluge identified as Christian and claimed that referring to students by their preferred names would “encourage students in transgenderism” and “promote gender dysphoria,” which went against his religious beliefs that “God created mankind as either male or female.” Initially, BCSC provided Kluge with the option of referring to students using only their last names, but ultimately, that accommodation was rescinded after several complaints were brought forward from other teachers, students, and parents regarding the negative impacts this practice had on transgender students.
Continue Reading What’s in a name?: Federal Court in Indiana Dismisses Teacher’s Religious Discrimination Over the Use of Students’ Preferred Names

Locker room public school

On November 11, 2017, various groups of parents and several individuals filed suit in federal district court in Oregon challenging Dallas School District No. 2’s policy of accommodating transgender students’ requests to use sex-segregated school facilities on the basis of their gender identity.
Continue Reading Parents for Privacy v. Barr: Takeaways after Cert. Denial

Key Points

  • The ministerial exception protects religious employers from government interference in internal employment disputes involving the selection, supervision, and removal of individuals who play an important role relative to the core mission of the institution.
  • To determine whether the ministerial exception applies in a specific case, courts must assess the nature of the duties or functions performed by the employee for the religious institution.
  • Employees of religious institutions who are designated as performing functions vital to the core mission and that fall within the scope of the ministerial exception cannot pursue an employment claim.
  • The Supreme Court stated: “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.”
  • This exception may apply to other lay employees of religious employers.

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Continue Reading SCOTUS Decision Impacts Discrimination Claims Against Religious Employers

On June 30, 2020, the Supreme Court, in Espinoza v. Montana Department of Revenue, ruled that states must allow religious schools to participate in programs that provide scholarships to students attending private schools.

Background of Espinoza Case

The Montana Legislature established a program that granted tax credits to people who donated to organizations that award scholarships for private school tuition. However, the Montana Constitution contains a “no-aid provision” that prohibits government aid to flow to any school “controlled in whole or in part by any church, sect, or denomination.” To reconcile the program with this state constitutional provision, the Montana Department of Revenue (“Department”) promulgated a rule that prohibited families from using tax credit program scholarship money at religious schools. When the Department’s rule prevented three mothers from using the scholarship money at Christian schools, they sued the Department and alleged that the Rule discriminated on the basis of their religious views and the religious nature of the schools they had chosen. The Montana Supreme Court held that the tax credit scholarship program, without the rule, violated Montana’s no-aid provision and invalidated the program entirely.…

Continue Reading Supreme Court Rules on Religious Schools Case: Espinoza v. Montana Department of Revenue

Title VI Obligations

School districts have an obligation under Title VI not to discriminate on the basis of race, color or national origin. They cannot intentionally discriminate – that is, for example, treat African-American students differently than white students on the basis of race – or engage in practices that have a disparate impact on…

A few weeks ago, the United States District Court of Massachusetts issued its long-awaited decision in the lawsuit brought by Students for Fair Admissions, Inc. (“SFFA”) against Harvard University (“Harvard”).  In a 130-page decision, the court found in favor of Harvard, holding that Harvard’s race-conscious admissions process was lawful.
Continue Reading Harvard Race-Conscious Admissions Process is Lawful

On May 16, 2019, Students for Fair Admissions (SFFA), an anti-affirmative action group, filed yet another lawsuit against the University of Texas at Austin (the University). This is the third such suit SFFA has filed against the University. The new lawsuit alleges the University violates the Equal Rights Amendment of the Texas Constitution by considering race in the admissions process. A similar lawsuit between the parties was dismissed in April due to a lack of standing.

Top Ten Percent Plan

Texas passed a law in 1997 known as the “Top Ten Percent Plan” (TTPP) which requires public state universities to admit all applicants from Texas who rank in the top 10% of their high school graduating class. This law was modified in 2009 for the University to allow for automatic admission of 75% of the incoming freshman class, with the remaining 25% to be chosen based on admissions criteria. Currently, students in the top 6% of their graduating class are eligible for automatic admission at the University in this 75% group.
Continue Reading Affirmative Action Again Under Fire in Admissions

The U.S. Supreme Court has agreed to decide whether a federal law prohibiting employers from discriminating because of sex also protects LGBTQ individuals.

Background of Pending Cases

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against an individual “because of” that individual’s “race, color, religion, sex, or national origin.” In two consolidated cases—Bostock v. Clayton County and Zarda v. Altitude Express—the Court will decide whether Title VII’s ban on “sex” discrimination also prohibits employment discrimination based on an individual’s sexual orientation. And in a third case—R.G. & G.R. Harris Funeral Homes v. EEOC—the Court will decide whether the sex discrimination ban also prohibits discrimination based on an individual’s status as transgender. All three cases will be argued on October 8, 2019.
Continue Reading A Look Ahead: Supreme Court to Review Prohibition of Discrimination Based on Sexual Orientation and Gender Identity