Law & Courts

U.S. Supreme Court Rules on Race-Bias in Contracting, Copyright Immunity

By Mark Walsh — March 23, 2020 8 min read
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In two cases with potential implications in education, the U.S. Supreme Court on Monday issued rulings that will benefit employers in lawsuits over race discrimination in contracting and bolster states against allegations of copyright infringement.

In a major departure from normal practice due to coronavirus concerns, the justices issued opinions in four argued cases without taking the bench. The court earlier this month had closed its building to the general public and postponed the two-week argument session that was to begin today.

Kathleen Arberg, the court’s public information officer, said Friday that all the justices are healthy and some participated in that day’s private conference by telephone, though she did not specify which ones. (Update: On Monday, Arberg said that Chief Justice John G. Roberts Jr. led the call from the conference room at the court, but that all other justices participated remotely.)

Among the postponed cases is Our Lady of Guadalupe School v. Morrissey-Berru (and its companion case, St. James School v. Biel), which was to be argued April 1 and involves whether religious schools may be shielded from anti-discrimination lawsuits by lay teachers under the “ministerial exception” to civil rights law.

On Monday, as part of its regular orders list, the Supreme Court denied a motion from Virginia and 15 other states, along with the District of Columbia, to participate in the oral arguments in the religious school case. The states sought 10 minutes of argument time on the side of the teachers who faced adverse employment actions, saying their own state job-discrimination laws would be affected by the court’s ruling.

The justices denied the states’ request without comment, while at the same time allowing the U.S. solicitor general to share argument time with the two Roman Catholic schools that invoked the ministerial exception. Of course, it’s not clear when the postponed arguments in the case will occur.

Race in Contracting

Meanwhile, the court ruled in a business case that a Reconstruction-era law aimed at eliminating racial discrimination in contracting places a higher burden on a plaintiff to prove that such race bias was the cause of an injury.

In Comcast Corp. v. National Association of African American-Owned Media (No. 18-1171), the justices ruled unanimously that a plaintiff suing under the Civil Rights Act of 1866, also known as Section 1981, must show that race was the “but-for” cause of his or her injury, and that burden remains throughout the lawsuit. “But-for” means that except for the consideration of race, the contracting decision would have a different outcome.

Writing for a unanimous court, Justice Neil M. Gorsuch said the statute’s text and history supported a reading requiring a “but-for” causation standard. While Title VII of the Civil Rights Act of 1964, as amended, has a motivating-factor standard that is less burdensome to plaintiffs, that was irrelevant for analyzing the 1866 law, he said.

“So we have two statutes with two distinct histories, and not a shred of evidence that Congress meant them to incorporate the same causation standard,” Gorsuch wrote. Justice Ruth Bader Ginsburg joined most of the opinion but wrote a short concurrence debating Gorsuch on a fine point.

Entertainment entrepreneur Byron Allen had sued Comcast alleging race bias under Section 1981 after the cable-TV giant had refused to carry a set of channels owned by Allen. Comcast said it had business reasons for its decision, but a federal appeals court held that Allen’s suit could go forward as long as the suit pleaded facts that plausibly showed race played “some role” in the decisionmaking process.

Comcast had support from, among other groups, the National School Boards Association.

“Section 1981 was intended to protect people who have been harmed because of discrimination,” the NSBA said in a friend-of-the-court brief it joined. “It should not be turned into a tool for plaintiffs who have not actually been harmed by discrimination (and who would have been treated the same way regardless of their race) to impose litigation burdens and settlement demands on businesses, local governments and school districts, and other contracting entities merely by alleging that race was a factor in the challenged decision.”

Civil rights groups filed briefs in support of Allen.

“The arguments advanced by [Comcast] are inconsistent with the plain text of Section 1981, and they would frustrate the fundamental purpose of the statute’s drafters—to place African Americans on equal footing as white citizens in our nation’s economy without the taint of racial discrimination,” said a friend-of-the-court brief filed by the NAACP Legal Defense and Educational Fund.

Although most lawsuits against schools alleging race discrimination are filed under Title VII, which bars employment discrimination on the basis of race and other factors, some plaintiffs sue school districts for race-bias under Section 1981. And the 1866 statute was the basis for the Supreme Court’s 1976 decision in Runyon v. McCrary, which prohibited private schools from discriminating on the basis of race.


The copyright decision stems from a colorful case involving the 1996 discovery of the wreck of the Queen Anne’s Revenge, the flagship of the notorious pirate Edward Teach, or Blackbeard, off the coast of North Carolina.

Under federal and state law, the wreck belongs to the state of North Carolina, and the state hired a company to salvage it. That company hired a videographer named Rick Allen to document the work in photos and video. In 2013, Allen accused the North Carolina Department of Natural and Cultural Resources of copyright infringement for posting some of his photos and video online.

They settled the suit, and the state enacted what has been called “Blackbeard’s Law,” which says any photos, videos, or other documentation of a shipwreck or derelict vessel is a public record in the state. Allen sued again, alleging further infringements, and the state asserted its 11th Amendment immunity. But Allen argued that Congress had abrogated the state’s immunity in the copyright arena with the Copyright Remedy Clarification Act of 1990.

In its opinion in Allen v. Cooper (No. 18-877), the Supreme Court held unanimously that Congress lacked the authority to abrogate the states’ immunity from copyright-infringement suits with the CRCA.

Justice Elena Kagan, writing for six justices in full and joined in most part by a seventh, said the outcome was largely dictated by a 1999 decision, Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, which struck down a law that had sought to abrogate state immunity from patent infringement suits.

“There is no difference between copyrights and patents under the [U.S. Constitution’s Intellectual Property] Clause, nor any material difference between the two statutes” at issue in Florida Prepaid and the new case, Kagan said.

The statute might be able to overcome obstacles if it was supported by substantial evidence of state copyright infringement, but the record before Congress with the CRCA “is scarcely more impressive than what the Florida Prepaid Court saw” with regard to the patent law, she said.

She cited the report Congress had assigned the then-register of U.S. copyrights, Ralph Oman, to study the issue of copyright infringement by states and their entities. Oman had interviewed copyright holders, including educational textbook publishers, and purported to find widespread infringement.

Of interest to K-12 educators, Oman’s report included part of a submission from the educational publisher then known as Harcourt Brace Jovanovich: ""Schools expect permission to create literally thousands of copies of translations or thousands of audio cassettes or derivative works and they expect publishers to grant these permissions at no charge.”

Kagan said of Oman’s report: “Despite undertaking an exhaustive search, Oman came up with only a dozen possible examples of state infringement.”

It is worth pointing out that in most states, K-12 school districts are not considered arms of the state for 11th Amendment immunity purposes. But there are some exceptions, based on state law. A big one is California, and at least two friend-of-the-court briefs in support of Allen argued that copyright infringement by school districts has been a continuing problem, includuing several cases against the Los Angeles Unified School District cited in a brief by Oman.

Chief Justice Roberts and Justices Samuel A. Alito Jr., Sonia Sotomayor, Gorsuch, and Brett M. Kavanaugh joined Kagan’s opinion in full. Justice Clarence Thomas joined most of it and wrote a separate concurrence. Justice Stephen G. Breyer wrote an opinion concurring in the outcome, joined by Ginsburg.

Breyer, who had posed a hypothetical during oral arguments about the University of California making 50,000 unauthorized copies of a Norman Mailer book available to students, expressed concern in his opinion about “the risk of unfairness to authors and inventors alike” and said that Congress could perhaps try again to abrogate state immunity in a way that passes constitutional muster.

Although K-12 groups did not get involved in the case, several groups representing universities and libraries filed friend-of-the-court briefs in support of North Carolina.

“Preserving state sovereign immunity helps protect [the] strong public purpose of state universities,” said a brief filed by the Association of Public and Land-Grant Universities and the Association of American Universities. “The unlawful abrogation of state sovereign immunity will cause state universities to face numerous meritless copyright-infringement suits for damages.”

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A version of this news article first appeared in The School Law Blog.