Today's SCOTUS decision in the #Comcast case is getting credit because it's not as bad as it could have been (see Justice Ginsburg's concurrence), but it is still harmful for civil rights plaintiffs, placing on them an add'l burden at the very outset of their claim.
The CR Act of 1866 was enacted to put African Americans on equal footing w/white ppl in access to economic opportunity. By placing an addl burden on plaintiffs who claim discrimination at the very outset of their case, today's decision weakens the effectiveness of the statute.
Mr. Allen's case survives because the Court refrained from offering an opinion on whether his complaint meets the standard it announced today, and instead remanded the case back to the 9th Circuit to once again review the lower court’s rejection of Mr. Allen’s complaint.
We believe that even under the Court’s stringent new standard announced today, Mr. Allen has sufficiently plead a claim under section 1981 and the dismissal of his claim should once again be reversed.
Justice Ginsburg’s concurrence offers evidence that the Court could have done even more damage had it taken up Comcast’s argument that Section 1981 should not even cover discrimination in contract formation, but should be limited to discrimination in final contract outcomes.
We will need to closely watch and move swiftly should Comcast or other defendants in Section 1981 cases seek to resuscitate this argument that would severely limit & undermine the very purpose of the Civil Rights Act of 1866 to root our discrimination in the making of contracts.
A link to today's opinion: supremecourt.gov/opinions/19pdf…
