Category: Equal Protection

  • Supreme Court Green-Lights Trump’s Hasty Termination of Temporary Protected Status

    The Supreme Court allowed the Trump Administration to proceed with its hasty termination of temporary protected status for Haitian and Syrians. The ruling means that hundreds of thousands of Haitians and Syrians may not lawfully remain in the United States. At the same time, they cannot safely return to their home countries, both of which the State Department itself says are too dangerous for travel.

    While the ruling is preliminary–allowing the Administration to terminate TPS while the case moves forward on the merits in the lower courts–the practical effect is to end protection for Haitians and Syrians, and to invite to the Administration to hastily end protection for others, too.

    The case, Mullin v. Doe, tested whether the Trump Administration’s termination of TPS for Haitians and Syrians violated federal law and equal protection. (TPS is a program that offers temporary and lawful refuge in the United States for nationals of countries where the conditions are unsafe. The Secretary of Homeland Security first designated Haiti for TPS in 2010, following a devastating earthquake. The Secretary first designated Syria in 2012 because of the brutal and repressive government there. Secretaries have since redesignated the countries based on their dangerous conditions.)

    Plaintiffs brought two claims. First, the plaintiffs argued that the Secretary failed to “consul[t] with appropriate agencies of the Government” and “determine whether the conditions for [TPS] designation . . . continue to be met,” as required by 8 U.S.C. Sec. 1254a(b)(3)(A). The plaintiffs said that a single cursory and perfunctory e-mail exchange between DHS and the State Department–in which State replied simply that there were no foreign policy concerns with terminating TPS for Haiti and Syria–didn’t cut it.

    Next, the Haitian plaintiffs argued that the Administration’s termination was motivated at least in part by race, in violation of equal protection.

    As to the lack-of-consultation claim, the Court ruled that a statutory bar on judicial review prevented the Court from weighing in. 8 U.S.C. Sec. 1254a(b)(5)(A) bars “judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state.” The Court said that “determination” includes not just the final decision to terminate, but also any decision to consult (or not) under Section 1254a(b)(3)(A). As a result, the Court said that courts lack jurisdiction to review the Secretary’s compliance with the consultation requirement (and, by extension, any other procedural requirement leading to the final decision).

    As to the equal protection claim, the Court held that the many racially-tinged statements by the President and the Secretary–the plaintiffs’ principal evidence of racial discrimination–weren’t “overtly racial” and could have merely reflected President Trump’s general opposition to immigration and his particular antipathy to the TPS program. Because these statements didn’t reflect a racial motivation to end protection, the decision didn’t violate equal protection.

    Justice Thomas concurred, arguing that the statutory ban on judicial review covered the plaintiffs’ equal-protection claim (in addition to their statutory failure-to-consult claim) and that in any event “aliens have no equal protection rights against the Federal Government.”

    Justice Kagan wrote a scathing dissent, joined by Justices Sotomayor and Jackson. She argued that the statutory ban on judicial review only applied to the Secretary’s final decision, and not to procedural steps leading to the decision, including the consultation requirement. She noted that the majority’s reasoning effectively strips the statute of its procedural requirements and invites the Administration to ignore them: “the majority’s holding makes everything in the statute precatory, including procedural requisites whose enforcement would seem to fall smack in the middle of the judicial wheelhouse.”

    As to equal protection, Justice Kagan argued that the President’s statements about Haitians reflect a clear racial motivation behind the decision to terminate:

    the Haitian plaintiffs have carried their burden. The evidence they have offered includes statements by the President so repellent and racially inflected that the majority declines to put them in print. [She recounts them, page 11.] The statements fairly shout, in their racial undertones and overtones alike, that race entered into the President’s resolve to remove Haitians from this country.

  • Second Circuit Vacates Ruling for Schools in Transgender Pronouns Case

    The Second Circuit vacated a lower court ruling that dismissed a parent’s challenge to a school district’s policy of using “the name and pronoun that corresponds to the gender identity the student consistently asserts at school” without requiring notification to the parents.

    The ruling is notable, among other reasons, because it orders the lower court to reconsider how the Supreme Court’s recent emergency-docket ruling in Mirabelli v. Bonta applies. (Emergency-docket rulings, or “shadow-docket” rulings, are preliminary and deal only with the likelihood of success on the merits, not the merits themselves. They therefore lack the full precedential value of a merits ruling. Still, lower courts often treat emergency-docket rulings as precedential, and some on the Supreme Court have suggested that emergency-docket rulings enjoy at least some precedential value.) More on Mirabelli below.

    The case, Vitsaxaki v. Skaneateles Central School District, a non-precedential summary order, arose out of a parent’s challenge to the school district’s policy of recognizing the gender identity of students at school without sharing that gender identity with the parents. A parent sued, arguing that the policy violated the Free Exercise Clause and their substantive-due-process right-to-parent under the Due Process Clause. They sought monetary damages and declaratory relief.

    The court held that the parent lacked standing to claim declaratory relief, because they failed to plead any likelihood of future harm.

    As to the damages claim, the court vacated the lower court’s dismissal and remanded the case to apply Mirabelli. Mirabelli says that a similar policy in California likely violated the Free Exercise Clause and parents’ “primary authority with respect to ‘the upbringing and education of children.’” Pierce v. Society of Sisters (1925).

    Mirabelli says “likely” violated (and not certainly violated), because the case came to the Court as an emergency request to reinstate a lower-court ruling enjoining the law (and not on the Court’s regular merits docket). As a result, Mirabelli lacks the same precedential value of a fully-briefed and fully-argued merits-docket ruling. Still, Mirabelli was enough for the Second Circuit to order a remand and order the lower court to consider how it applied to this case.

    Justice Kagan, joined by Justice Jackson, dissented in Mirabelli and argued why the Court jumped the gun in that case.

    The Second Circuit ruling leaves the school policy in limbo. On the one hand, the court didn’t formally enjoin or strike the policy, or rule the policy unconstitutional, and nothing in the opinion says that the district can’t continue to enforce the policy. On the other hand, Mirabelli strongly suggests that the policy is likely unconstitutional, and, given how lower courts increasingly treat emergency-docket rulings of the Supreme Court, the lower court may well agree.

  • Juneteenth Celebration and Educational Resources

    Some resources:

  • DOJ Purports to Limit Disparate-Impact under Title VII

    The Department of Justice Office of Legal Counsel issued an opinion last week that would sharply limit, or even eliminate, disparate-impact claims for employment discrimination under Title VII. OLC said that certain “limiting principles” were necessary to ensure that disparate-impact claims don’t violate equal protection. As a practical matter, these principles could eviscerate disparate-impact claims under Title VII.

    According to OLC, the Equal Employment Opportunity Commission’s guidelines for disparate-impact claims under Title VII do not incorporate these principles. OLC opined that the guidelines are therefore unconstitutional.

    The opinion is not legally binding in the same way a court ruling is. Still, the opinion will affect the way EEOC investigates and processes Title VII complaints. In particular, EEOC will adopt OLC’s interpretation of disparate-impact theory under Title VII. And because EEOC is the gate-keeper for Title VII claims (plaintiffs have to file a complaint with EEOC before bringing their case in court), EEOC will almost surely reject most or all disparate-impact claims going forward. At the very least, the OLC opinion gives employers a roadmap for avoiding disparate-impact liability. (If EEOC rejects a claim, a plaintiff can still sue on their own in court. The OLC opinion does not bind courts, although they may find it persuasive. And whatever happens with the government’s new approach to disparate impact, plaintiffs can still turn to state-law anti-discrimination remedies that may provide greater disparate-impact protection. OLC’s opinion doesn’t, and can’t, change that.)

    Title VII imposes liability for both (1) employment actions based on intentional discrimination and (2) employment actions that are facially neutral but nevertheless have a disparate impact based on race, color, religion, sex, or national origin.

    Under Title VII, to prevail on a disparate-impact claim, a plaintiff must first establish a prima facie case of discrimination by showing that a particular employment practice created a disparate impact. If a plaintiff carries this burden, then the burden shifts to the employer to show “that the challenged practice [wa]s job related for the position in question and consistent with business necessity.” Finally, if an employer makes this showing, the burden shifts back to the plaintiff to demonstrate that the employer refuses to adopt an “alternative employment practice” that would reduce the disparity. 42 U.S.C. Sec. 2000e-2(k).

    OLC opined that disparate-impact theory under Title VII raises “serious equal-protection” concerns, because it “tends to incent–and even coerce–employers to make race-based decisions to avoid liability or the threat of liability.” And: “By pressuring employers to take race-based actions in the name of proactively addressing potential statistical disparities, disparate-impact liability allows the government to engage in race discrimination indirectly.” OLC said that this government “incent[ing]” and “coerc[ing]” violates equal protection.

    OLC said that disparate-impact theory requires updating, in the same way that the Supreme Court’s recent ruling in Louisiana v. Callais (2026) updated the disparate-impact approach to racial gerrymandering in Section 2 of the Voting Rights Act. This updating requires three things:

    “First, the business-necessity defense to liability must provide defendants significant ‘leeway to state and explain the valid interest served by their policies.’” According to OLC, this means that “a challenged practice need only be a ‘reasonable’ way of accomplishing a ‘valid’ interest.” OLC wrote that this new low standard allows employers to offer “competing explanations” of the disparities.

    “Second, any disparate-impact claim must satisfy a robust causality requirement to avoid reading Title VII as imposing an unconstitutional quota system.” According to OLC, this will “ensure that [employers] will not resort to impermissible ‘racial quotas’ to stave off lawsuits.”

    “Third, the plaintiff must offer a viable alternative to the challenged practice that accomplishes the employer’s legitimate goals ‘just as well.’”

  • Supreme Court Upholds Alabama Congressional Map, Further Erodes Protections Against Racial Gerrymandering

    The Supreme Court late yesterday allowed Alabama to use a congressional district map that was based on intentional race discrimination, according to an earlier three-judge court decision.

    The ruling almost certainly means that Alabama will have one less Black representative in Congress, and one less Democrat.

    It also means that plaintiffs will have an even tougher time proving illegal racial discrimination in legislative districting going forward–that is, even more difficult than after the Court’s recent ruling in Louisiana v. Calais. In other words, yesterday’s ruling, as a practical matter, all but eliminates racial discrimination claims in legislative districting. That’s because the Court made it yet easier (again, easier even than Calais) for states to evade claims of racial discrimination by simply providing political reasons for their maps, even political reasons that overlap with race. And if states can’t even manage that, they can evade claims by playing the courts.

    To see all this, here’s a brief history of this up-and-down case:

    In 2021, Alabama adopted a new congressional map with just one majority-Black congressional district. A three-judge court ruled that the map violated Section 2 of the Voting Rights Act, because it had a racially discriminatory effect and diluted Black voters’ voting strength. The court ordered the state to adopt a map that included a second district where Black voters could elect a candidate of their choice.

    Alabama appealed to the Supreme Court, arguing that it didn’t have time to implement the lower court’s ruling. (The lower court issued its ruling in January 2022, and Alabama’s primary election was slated for May 2022.) The Court stayed the lower court ruling and allowed Alabama to use the 2021 map (the one with just one majority-Black district).

    The Supreme Court later affirmed the lower court’s ruling (that the 2021 map violated Section 2 of the VRA) and its remedy (to draw a second district where Black voters could elect a candidate of their choice). The Court said that the lower court faithfully applied Court precedent in its ruling and remedy.

    In response, in 2023 Alabama adopted another map, also with just one district where Black voters could elect a candidate of their choice. (In other words, the state thumbed its nose at the Supreme Court ruling.)

    Plaintiffs then challenged the 2023 map, arguing that it violated both Section 2 of the VRA and the Equal Protection Clause of the Fourteenth Amendment. (Although those are related, they are two different, distinct claims.) The district court ruled that the new map violated the VRA. The court instituted a remedial map, drawn without reference to race. This map governed the 2024 election.

    Alabama again appealed to the Supreme Court. While the appeal was pending, the Court decided Callais. Callais revised the test for Section 2 claims under the VRA and made it substantially harder (maybe impossible) for racial minority voters to prove a Section 2 violation. (That’s because Callais now requires plaintiffs to dis-aggregate and account for any state political objective in redistricting–a near impossible feat in the racially-polarized political environments where Section 2 does its work. In other words, after Callais, states can insulate themselves from a Section 2 claim simply by providing political objectives for their gerrymander.)

    But Callais did not change the test for equal protection claims.

    After it issued Callais, the Court vacated the lower-court ruling and remanded the case for reconsideration in light of Callais. Alabama announced that it would use the 2023 map (which, recall, the district court struck as a racial gerrymander) for the upcoming 2026 election. (The governor called a special primary election for August 11 (months later than the regularly scheduled primary) in four of the districts that were affected by all this.)

    On remand, the three-judge district court ruled again that the map violated the VRA. It also ruled that the map was based on intentional racial discrimination in violation of the Equal Protection Clause. (The court said that its earlier decision on intentional racial discrimination was “undisturbed by Callais.” That’s not surprising, because, remember, Callais changed the Section 2 test (for discriminatory effect), not the equal protection test (for discriminatory intent).) It wrote, “[D]espite our searching review of all the evidence before us–much of it directly from the Legislators and Legislature, none of it in dispute–try as we might, we cannot understand the 2023 Plan as anything other than an intentional effort to dilute Black Alabamians’ voting strength and evade the unambiguous requirements of court orders standing in the way.” (Just a quick note on that: Under Supreme Court precedent, without direct evidence of racial discrimination, it’s tough–really tough–to prove that a racial gerrymander is based on intentional racial discrimination.)

    Yesterday, the Supreme Court stayed that ruling. In a brief, shadow-docket opinion, the Court wrote that the district court failed to apply a presumption of good faith to the state’s behavior and failed to apply the new Callais standard.

    Significantly, the Court extended the new Callais standard to the equal protection claim, writing, “And, as to both claims, the District Court’s analysis departed from Callais.” (Recall that Callais revised the standard for Section 2 claims under the VRA. Callais said nothing about equal protection claims like the one at issue in this case.) This shoehorns the new Callais standard into equal protection claims and makes it equally difficult (or impossible) for plaintiffs to challenge a racial gerrymander under the Equal Protection Clause as it now is to challenge a racial gerrymander under the VRA.

    The ruling also validated the state’s efforts to manipulate the courts. Recall that the state previously told the Court that it couldn’t comply with the first district court ruling, because it didn’t have enough time before its scheduled election (from January 2022 to May 2022). Yet the state now says that it can switch from the district court’s earlier remedial map (which the state used in the 2024 elections) to the 2023 map for the 2026 primary elections–on a much tighter timeline. Moreover, recall that the state ignored the Court’s earlier ruling that affirmed the district court’s holding that the 2023 map likely violated the VRA and the district court’s order requiring the state to draw a second majority Black district. The Court’s ruling yesterday validates all this behavior.

    Justice Sotomayor dissented, joined by Justices Kagan and Jackson. She concluded, “Because I choose to defend the rule of law and the right of all Alabamians to participate equally in democracy, I respectfully dissent.”

  • D.C. Circuit Says Ban on Transgender Military Service Likely Violates Equal Protection

    A divided three-judge panel of the D.C. Circuit ruled yesterday that the Trump Administration ban on transgender individuals serving in the military likely violated equal protection.

    The ruling, while only preliminary (thus holding the plaintiffs were likely to succeed) and while applicable only to the plaintiffs in the case, nevertheless deals a significant blow to the Trump Administration efforts to ban transgender individuals from military service. It also offers a scathing assessment of those efforts, concluding that they were arbitrary and based on sheer animus.

    The ruling says that the government can’t base policy, even military policy, on animus alone; instead, the government has to have legitimate reasons.

    The case, Talbott v. United States, challenges the Administration’s ban on transgender individuals serving in the military. That ban arose out of President Trump’s January 27, 2025, Executive Order proclaiming that persons “expressing a false ‘gender identity’ divergent from an individual’s sex cannot satisfy the rigorous standards necessary for military service.” President Trump, and later Secretary Hegseth, also declared that persons afflicted with gender dysphoria are unfit for military service because, among other things, their character is “inconsistent” with the “high standards . . . [of] honesty, humility, . . . and integrity.” The “Hegseth Policy” deems transgender applicants for military service unqualified; and it mandates that currently serving transgender individuals go through the administrative separation process, a process usually reserved for personnel accused of misconduct. (The Policy specifically disqualifies anyone with a history of gender dysphoria. But its broad language effectively disqualifies any transgender person, whether they have a history of gender dysphoria or not.)

    The district court ruled that plaintiffs were likely to succeed in their challenge to the Policy and entered a preliminary injunction halting the Policy’s implementation as to the plaintiffs.

    The divided three-judge panel of the D.C. Circuit affirmed in part and vacated in part.

    Two judges agreed that the Policy likely violated equal protection. Judges Wilkins and Rogers concluded that the the Policy was based only on animus and therefore failed at any level of review. In short, they said that the Administration failed to provide a legitimate reason for the Policy, and that President Trump’s and Secretary Hegseth’s stated justifications amounted only to “a bare . . . desire to harm a politically unpopular group.” USDA v. Moreno (1973). They said that neither United States v. Skrmetti (2025) (upholding state bans on certain medical treatments for transgender minors) nor Trump v. Hawaii (2018) (upholding President Trump’s first-term travel ban) changed this.

    Judge Walker, in dissent, argued that the court should give greater deference to the Administration’s military judgment. “We have neither the expertise nor the authority to decide whether the military can exclude the plaintiffs from its ranks. The Constitution assigns that authority to Congress and the Commander in Chief.”

    Ultimately, the court only affirmed the district court injunction as to those plaintiffs already in the military, and not to the plaintiffs who are seeking accession into the military.