President’s weekly report — November 15, 2013

November 15, 2013 | By ROB RIVETT

Equality Under the Law Program — Disparate Impact

We have mixed emotions about the settlement in Township of Mt. Holly v. Mt. Holly Gardens.  This is the case where homeowner challengers to a redevelopment plan brought a “disparate impact” claim against the redevelopment, claiming that it had a disproportionate adverse impact on minorities in violation of the Fair Housing Act.  As much as we sympathize with the homeowners, and dislike such redevelopment plans on their own terms, the use of “disparate impact” theory is especially problematic.  It means that an entity can be charged with unlawful discrimination based on statistics alone, even without any showing of discriminatory intent.  Thus banks and even car dealerships are caught up in discrimination claims even when they employ color-blind criteria in making loans.  Or as the Wall Street Journal put it yesterday, Your Car Dealer Must be a Racist.  Or employers are dinged for declining to hire people with criminal backgrounds because that might have a disparate impact on minorities — leading to this Texas lawsuit.  Schools are pressured to drop expelling students for the same reason.  So we were pleased to see the Supreme Court take up the Mt. Holly case so we could argue against the use of disparate impact theory.  Alas, as it had done the only other time one of these cases made it to the high Court, in the Magner case,  the Justice Department crafted a settlement by buying out the plaintiffs so they would drop their lawsuit.  So, we’re happy to see that the homeowners are getting some real money here and a chance to relocate.  But we’re disappointed that the Justice Department has managed to evade, once again, putting its disparate impact theory to the Supreme Court test.  It seems that when it comes to the Justice Department, money really can buy silence, at least when it comes what the Constitution and statutes might have to say about notions of disparate impact theory.

Environment — California Cap & Trade Auctions

The trial court ruled in favor of California’s cap and trade auction program this week.  In Morning Star Packing Company v. California Air Resource Board, we had argued that these revenue-generating auctions were not authorized by California’s AB32 greenhouse gas legislation, and even if they were would violate either Proposition 13 or Proposition 26 for being an illegal tax or an illegal fee, respectively.  The trial court found the case to be “close” but ultimately ruled in favor of the State.  For more details, see our blog.   This one will be appealed.

Environment — Sea Otters vs. Sea Urchins

We filed our opposition to the government’s motion to dismiss this week in California Sea Urchin Commission v. United States Fish & Wildlife Service.  This is the case, as explained in our blog, where the federal government unilaterally decided to ignore the law requiring it to better manage the sea otters it transplanted into southern California waters.

Environment — California Air waiver

We filed two petitions for review of the CARB waiver grants (which allow for the imposition of stricter air emissions in California without adequate justification) before both the 9th Circuit and the D.C. Circuit.  The dual filing is a protective measure due to the great ambiguity in the statute as to where the petitions must be filed.  With a short time deadline, we decided to file in both places and then let the respective courts decide which one will take it up on the merits.

Education Reform — School choice

We filed this amicus brief in Duncan v. New Hampshire in support of that State’s school choice law.  As explained in our blog post, New Hampshire  provides tax breaks to businesses that donate to organizations that provide scholarships to students to attend private schools, thus enabling many lower-income families the ability to seek a quality education of their choice for their children.

Education Reform — California Charter Schools

We also filed this amicus brief before the California Supreme Court  in California Charter Schools Association v. Los Angeles County Unified School District.  As our blog post explains, California’s Proposition 39 requires school districts to provide facilities to schools operating according to approved charters.  LAUSD is trying to evade its responsibilities by employing “norming ratios” in order to provide less space than required by statewide regulations.  The upshot of this technical end-run, would be the effective evisceration of this important avenue of school choice in California.

Free Enterprise Project — Class Arbitrations

We filed this amicus brief in Southern Communications Services v. Thomas.  We are supporting his petition for writ of certiorari before the United States Supreme Court.  Here, Mr. Derek Thomas is trying to bring a class action arbitration against his former phone company’s early termination fees.  The trouble is, his contract made no mention of class arbitrations and his phone company wants no part of such an arbitration because, as explained in the brief and in our blog, it denies basic procedural fairness both to the phone company and many of its other customers.