Prominent plaintiffs’ law firm Lieff Cabraser Heimann & Bernstein LLP and the Education Civil Rights Alliance (ECRA) filed a friend-of-court brief today on behalf of youth advocates and experts in educational access. This brief contributes to the records of two cases currently pending before the U.S. Supreme Court: Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 19-2005 (U.S. March 1, 2021) and Students for Fair Admissions, Inc. v. University of North Carolina, et al., No. 21-2263 (U.S. November 15, 2021).

The fifteen amici describe compelling research showing how the life experiences of students contribute to the skills they bring to succeed in college, and how life experiences related to racial identity can reveal attributes which might otherwise be omitted from myopic review of resume entries, bereft of race-conscious consideration. Amici also describe the negative impact of baked in racial disparities in public elementary and secondary school funding on the applications from youth of color. The brief concludes that if colleges truly want the most qualified candidates with such key attributes as maturity, resilience, intellectual curiosity, honesty, and motivation, it is imperative that they be permitted to take into account the race-related life experiences that reflect such attributes. Amici call upon the Supreme Court to affirm the decisions of the First Circuit Court of Appeals and the Middle District of North Carolina.

Signatories to the brief include the following members and allies of the Education Civil Rights Alliance: Civitas ChildLaw Center; Clearinghouse on Women’s Issues; Education Deans for Justice and Equity; Feminist Majority Foundation; Intercultural Development Research Association; National Center for Youth Law; National Immigration Law Center; Native American Disability Law Center; Peer Defense Project; Public Counsel; Shriver Center on Poverty Law; Society for the Study of Psychiatry and Culture; Southern Coalition for Social Justice; Teach For America; and Washington Lawyers’ Committee for Civil Rights and Urban Affairs.

Comments:

“Competitive colleges want talented and diverse student bodies. Without race-conscious admissions, that goal is impossible both because of the inequities in public K-12 education and because of the centrality of race to the identities of young people of color,” said Miriam A. Rollin, an attorney at NCYL and Director of the Education Civil Rights Alliance. “I am proud to have brought together a range of Education Civil Rights Alliance members and allies – including the National Center for Youth Law – to ensure that the United States Supreme Court understands the important role that race-conscious admissions must continue to play in post-secondary education.”

“All students should be able to share their complete and authentic selves, including their racial and ethnic background, when they apply to college,” said Celina Moreno, J.D., President and CEO of the Intercultural Development Research Association (IDRA). “A holistic admissions process should not censor any aspect of a student’s identity and is critical to ensure all young people have a fair opportunity to achieve their highest potential.”

“Our identities overlap,” said Maryam Salmanova, youth leader at the Peer Defense Project. “We cannot communicate our truth if higher education requires us to separate and hide key aspects of our personhood.”

“Education is the engine of equality and opportunity in the United States,” said Tara Ford at Senior Counsel at Public Counsel. “Public Counsel will always stand alongside students for equal access to education.”

“Education is an essential part of the very fabric of our society,” said Marja Plater, the John E. Nolan Youth Justice Counsel at the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. “Allowing colleges and universities to consider race as one part of a comprehensive admissions policy, ensures that the best and brightest students from diverse backgrounds with varied experiences have an opportunity to continue to pursue their education, which not only benefits those students but also the college or university’s student body as a whole.”

“At Lieff Cabraser, we are deeply invested in supporting equity, including at all levels of education,” said Kelly M. Dermody, the Managing Partner of Lieff Cabraser’s San Francisco office. “We are proud to join our colleagues in the youth justice and educational access community on this important issue.”

Information about Authors:

Education Civil Rights Alliance (ECRA): ECRA is convened by the National Center for Youth Law (NCYL). It is a diverse and experienced group of organizers, educator organizations, community groups, professional associations, and civil rights organizations committed to protecting the civil rights of marginalized students.

Lieff Cabraser Heimann & Bernstein, LLP: Lieff Cabraser is one of the country’s largest and most successful firms exclusively representing plaintiffs in civil litigation, having secured verdicts or settlements worth over $124 billion for clients nationwide. With over 100 attorneys, the firm has led some of the most significant litigation of the last decade, including the VW clean diesel emissions case, which resulted in over $15 billion for VW owners (In re: Volkswagen ‘Clean Diesel’ Marketing, Sales Practices, and Products Liability Litigation, MDL No. 2672 (Northern District of California federal court)); the CARES Act litigation on behalf of incarcerated individuals and their families resulting in over $1.5 billion in cash benefits (Scholl v. Mnuchin, 4:20-cv-05309-PJH (Northern District of California federal court)); and the high-tech cold-calling wage conspiracy case alleging an agreement among prominent technology companies to not poach each other’s employees, which resulted in settlements totaling $435 million (In re: High-Tech Employee Antitrust Litigation, 11-cv-2509-LJK (Northern District of California federal court)).

For more information:

Kelly M. Dermody
Lieff Cabraser Heimann & Bernstein, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000 ext. 3333
kdermody@lchb.com

Miriam A. Rollin
Director, Education Civil Rights Alliance
Attorney, National Center for Youth Law
1212 Broadway, Suite 600
Oakland, CA 94612
Telephone: (510) 835-8098
mrollin@youthlaw.org

Watershed criminal justice result based in part on pro bono amicus work by Lieff Cabraser attorney Evan Ballan

On March 11, 2022, the North Carolina Supreme Court issued an order creating a critical new criminal justice standard, permitting criminal defendants to seek post-conviction DNA innocence testing even if they had pled guilty in the original criminal matter. This is expected to be a transformative shift, because while over 10% of wrongful convictions in the U.S. tied to DNA evidence involve a guilty plea, most states prohibit allowing convicted defendants access to the DNA evidence that might have led to a wrongful conviction for rightful appeals of those convictions, and as a result many current laws fail to include adequate safeguards for the preservation of the potentially exonerating DNA evidence. Many criminal defendants make a guilty plea even when they know they are innocent because the alternative of facing a trial could result in much more substantial incarceration or even execution. The nation’s court records reflect myriad examples of defendants who pled guilty, only to later be exonerated when critical DNA evidence was found or properly reinterpreted.

The trigger case was State v. Alexander in the North Carolina courts, in the wake of which Lieff Cabraser and firm attorney Evan Ballan represented the Innocence Network, a consortium of innocence and criminal justice groups, in amicus briefing in support of criminal defendant Kelvin Alexander. Mr. Alexander pled guilty to second-degree murder in 1993 following a gas station robbery. In 2016, Mr. Alexander filed a post-conviction motion under state law seeking DNA testing of evidence from his case. The trial court ruled against Mr. Alexander; Mr. Alexander appealed, and the State argued that the trial court was correct in excluding the evidence on materiality grounds, and that Mr. Alexander was in any event barred from seeking proper review of DNA data because he had pled guilty.

The appellate court affirmed the trial court’s denial on the materiality, but issued a split decision that a guilty plea should not preclude a defendant from seeking DNA review and or testing in appropriate cases. Both issues were appealed to the North Carolina Supreme Court.

On Friday, March 11th, 2022, that Court issued an order adopting the lower court’s determination on issues of materiality (ruling against Mr. Alexander on those elements of his case), but reached the groundbreaking conclusion that post-conviction access to DNA testing and data for defendants who plead guilty should be admitted, with favorable citation to Evan’s amicus brief and express reliance on many of its sources throughout the opinion, including in the following passages:

Any argument that innocent people do not enter guilty pleas and that the General Assembly could not have intended to create a situation in which defendants were allowed to make conflicting sworn statements concerning their guilt or innocence fails for a number of reasons as well. Aside from the fact that at least one North Carolina defendant who had been convicted based upon his plea of guilty had been exonerated through the use of DNA testing even before enactment of N.C.G.S. § 15A-269, of the 2,997 documented cases since 1989 in which individuals who have been exonerated after having been wrongfully convicted, 672—or over 22 percent—involved guilty pleas,6 with this number including thirteen cases arising in North Carolina, eight of whom were exonerated on the basis of DNA testing.7 For that reason, the available evidence clearly suggests that innocent people do, in fact, enter guilty pleas.

An innocent person may plead guilty to the commission of a criminal offense for a number of perfectly understandable reasons. For example, an innocent defendant may elect to plead guilty to avoid the risks and uncertainties associated with a trial that may result in a more severe sentence than the one offered by the prosecutor pursuant to a plea agreement. [citations omitted]. As evidence of that fact, we note that a 2002 report by the North Carolina Sentencing and Policy Advisory Commission, a body that provides recommendations to the General Assembly regarding sentencing legislation, found that defendants who enter guilty pleas “may get a shorter active sentence or avoid active time altogether by getting probation.” [citations omitted]. In addition, entering a guilty plea provides the defendant with “more control over the sentence” and facilitates an outcome that “is more predictable than what a judge and jury may decide to do.” Id. Finally, defendants often plead guilty “out of pure fear” that they will be treated more harshly if they insist upon pleading not guilty and going to trial, [citations omitted], as is evidenced by the Sentencing and Policy Advisory Commission’s conclusion that “prosecutors are more likely to seek an aggravated sentence or to ask for consecutive sentences in cases that proceed through trial,” despite the fact that a defendant has a constitutional right not to be penalized for exercising the right to plead not guilty and be tried by a jury of his or her peers.

An innocent defendant may be particularly prone to enter a guilty plea in a potentially capital case like this one. As the Innocence Network points out in its amicus brief, an innocent defendant may be confronted with the difficult choice of “falsely plead[ing] guilty and serv[ing] time in prison, or risk[ing] execution,” with “many understandably choos[ing] the guilty plea” when “[f]aced with that dilemma.” Similarly, Judge Jed S. Rakoff of the United States District Court for the Southern District of New York has noted that the “plea bargain[ing] system, by creating such inordinate pressures to enter into plea bargains, appears to have led a significant number of defendants to plead guilty to crimes they never actually committed,” with defendants charged with rape and murder having presumably done “so because, even though they were innocent, they faced the likelihood of being convicted of capital offenses and sought to avoid the death penalty, even at the price of life imprisonment.” [citation omitted]. As a result, an innocent defendant may well choose the relative certainty of the more lenient sentence associated with the entry of a guilty plea to the risk of receiving a more severe one following a guilty verdict rendered at trial. Any decision to limit the scope of the relief that the General Assembly intended to make available by means of the enactment of N.C.G.S. § 15A-269 to those whose convictions resulted from decisions made at the conclusion of trials on the merits overlooks the extent to which innocent people can be wrongfully convicted after pleading guilty, with there being no reason that we can identify for the General Assembly to have decided that wrongfully convicted individuals who pled guilty should be treated differently than wrongfully convicted individuals who were incarcerated as the result of decisions made by juries or trial judges sitting without a jury.

(Amicus Brief, various pages)

Congratulations to Evan and the Innocence Network on their work helping the Court reach this ruling, a watershed moment in the ongoing fight for true justice.

Click here to read the full amicus brief.

It seems a fairly simple and straightforward thing that staff at nursing homes should call transgender residents by their correct names/pronouns.

This simple human courtesy was undermined by a recent 3rd Appellate District order striking down a California law requiring such accurate and respectful address of elders.

We are proud to have assisted leading scholars in social work, gerontology, and social science in supporting the California Attorney General on an amicus brief in the case. The brief seeks to obtain California Supreme Court review of the 3rd District’s order.

Read a copy of the letter brief.

The opinion is expected to have far-ranging effects in what was a previously insufficiently-explored area of contract formation and consumer rights in the new high-tech era

On January 4, 2021, the Massachusetts Supreme Judicial Court issued an opinion in the high-profile Massachusetts Uber consumer contracts case about how contracts get formed online and what constitutes adequate communication/imposition of strict contract terms. The court ruled that the same two-part test governs agreements consummated over computer or mobile device as for any other type of contract: reasonable notice of contract terms and clear manifestation of assent to those terms. Extending that into the instant consumer case against Uber, the Court held that Uber’s frictionless “one-button” imposition of terms that multiply abridge consumer’s rights is improper.

The court made several important observations about consumer behavior and online terms of use: that people associate signing documents with serious legal consequences but may not appreciate that the same serious legal consequences can flow from clicking a button or proceeding to the next screen in an online sign-up process; that Uber’s Terms of Use abridge customers’ rights in multiple ways, such as by immunizing Uber for any claims for damages and requiring customers to indemnify Uber for any costs expended based on a customer’s “breach” of the terms; and that there is a mismatch between the frictionlessness, ease and speed of the sign-up process and the weighty rights that consumers give up through that process.

This case arose after Christopher Kauders, a blind man who travels with a guide dog, was denied transportation by several Uber drivers. He filed a discrimination action in state court but Uber successfully compelled his claims into arbitration. The arbitrator then ruled that though he had suffered discrimination, Uber was not responsible for the actions of its drivers (another term customers “agree” to when they sign up for Uber’s services). By the time Uber moved to confirm the award, the First Circuit had decided Cullinane v. Uber Technologies, 893 F.3d 53 (1st Cir. 2018), which ruled that Uber’s registration process did not form an enforceable contract under Massachusetts law based on lack of notice. Mr. Kauders asked the trial court to reconsider its earlier order compelling arbitration based on Cullinane and the court agreed, resulting in this appeal.

Lieff Cabraser filed an amicus brief in the case on behalf of Public Justice and The National Consumer Law Center in support of Mr. Kauders. The brief, co-authored by Lieff Cabraser, Karla Gilbride of Public Justice, and Stuart Rossman of the National Consumer Law Center, focuses on the one-sided, rights-limiting nature of the Terms of Use as a whole in reaching its conclusion that Uber does not provide reasonable notice of critical contract terms to its customers. The Court followed the same approach in its decision, going so far as to emphasize how corporations like Uber make it as easy as possible for people to sign up for products and services from the comfort of home while deliberately obscuring the legal rights they are relinquishing.

Congratulations to all involved in securing this important victory, including Jeff White of AAJ and Thomas Murphy of the Massachusetts Academy of Trial Attorneys, who also submitted an excellent amicus brief.

On September 4, 2020, United States District Judge Dabney L. Friedrich issued an Order granting summary judgment in favor of plaintiffs in the lawsuit filed on behalf of public school students from California, Georgia, Texas, and Virginia challenging an unlawful restriction imposed by US Department of Education and Secretary Betsy DeVos on over $16 billion in funds that Congress allocated to schools under the Coronavirus Aid, Relief, and Economic Security Act (“CARES”) Act.

The Court found the Department of Education’s Interim Final Rule (forcing school districts to divert funds from low income students and public schools towards private schools) to be in direct contravention of the express textual mandate of Congress, as expressed in the CARES Act. Judge Friedrich’s Opinion noted that, “Because of this unlawful rule, public schools would have received insufficient funding to reopen safely or to provide remote learning for their students, jeopardizing the health and education of countless children.”

Earlier, on August 28, 2020, Lieff Cabraser filed an amicus brief in support of the plaintiff schools and students. Attorney Christopher Jordan, who spearheaded the firm’s effort, said “It was an honor to represent our amici school districts, both urban and rural, large and small, and the 350,000 students they serve in this crucial case. We are excited to know that school districts will receive the federal aid under the CARES Act they are lawfully entitled to and we hope this decision helps schools reopen safely and carry out their important goal of educating our youth.”

“We are very happy that in vacating the Department of Education’s rule, the Court has ensured that millions of low-income students and public schools will get the resources and support they need,” adds Lieff Cabraser associate Kartik S. Madiraju, who drafted and shepherded the brief through to filing. “This ruling is based on the clear textual mandate of Congress, and gives effect to the intent of our elected representatives.”