SCOTUS News

The Supreme Court said Monday it will not take up a dispute over whether transgender students must be allowed to use restrooms that match their gender identities. The justices also added a First Amendment case and an immigration case to their docket for next term, and they ordered a lower court to take a closer look at a wrongful-death lawsuit by the parents of a man who died after police officers pinned him to the ground while he was handcuffed. Those items and others were part of a busy Monday-morning order list.

Transgender students and school bathrooms

The decision not to take the case about transgender students, Gloucester County School Board v. Grimm, leaves in place a lower-court ruling that found that a Virginia school district violated federal law when it barred students from using the restrooms that align with their gender identities. The denial of review was celebrated as a victory for LGBTQ rights, although it doesn’t foreclose the possibility that the Supreme Court could take up a similar issue in another case in the future.

The dispute that led to the school board’s petition for review is one with which the justices are very familiar. In 2014, Gloucester High School agreed to allow Gavin Grimm, a transgender boy who was then a sophomore at the school, to use the boys’ restroom. That decision prompted complaints from students and parents, which led the school board to adopt a policy that would require students to use only the restrooms and locker rooms that corresponded with the gender that they were assigned at birth.

Grimm went to federal court, where he argued that the school board’s policy violated both the Constitution’s guarantee of equal protection under the laws and Title IX, a federal law prohibiting sex discrimination in education. The Supreme Court in 2017 agreed to take up the case, but it ultimately sent the case back to the lower courts for another look, without hearing oral argument, after the Trump administration rescinded the Department of Education guidance on which the U.S. Court of Appeals for the 4th Circuit had relied in ordering the school board to allow Grimm to use the boys’ restroom.

Grimm is now 22 and out of high school, but the case has continued. Last year, the 4th Circuit again ruled against the school district on both the constitutional and Title IX issues. The school board came to the Supreme Court in February, asking the justices to weigh in on whether it was required to allow transgender students to use the restrooms consistent with their gender identities when there are also single-user restrooms available for all students. After considering the case for the first time at their private conference last week, the justices on Monday turned down the school board’s request without comment, leaving the 4th Circuit’s ruling in place. Justices Clarence Thomas and Samuel Alito indicated that they would have granted the school board’s petition for review.

Two new grants on immigration, free speech

The justices added two new cases to their docket for the fall. They granted a petition filed by Pankajkumar Patel, a citizen of India who came to the United States without authorization nearly 30 years ago. In 2010, the Department of Homeland Security rejected Patel’s application to become a permanent resident of the United States, on the ground that when he had applied to renew his Georgia driver’s license in 2008, he had indicated that he was a U.S. citizen. In 2012, the federal government began proceedings to deport Patel and his family. An immigration judge ordered their deportation, and the Board of Immigration Appeals upheld that ruling. The board concluded that Patel had “falsely represented” that he was a U.S. citizen to receive a benefit under state law.

The U.S. Court of Appeals for the 11th Circuit ruled that it lacked the authority to review the board’s finding. Patel then came to the Supreme Court, asking the justices to review the 11th Circuit’s ruling on the question of its authority; he also asked the justices to weigh in on whether he could be deported even if U.S. citizenship wasn’t required to obtain a Georgia driver’s license, so that the misrepresentation didn’t ultimately matter. The federal government agreed with Patel that the justices should take up the first question, and the justices on Monday followed that recommendation, granting only the first question presented in Patel’s petition for review.

In City of Austin v. Reagan National Advertising, the justices will weigh in on a challenge to Austin’s “sign code,” which allows businesses to install digitized signs on site, but bars digitized signs – such as the billboards that the challengers own and operate – “off premises.” The city argued that it had adopted the code to preserve its aesthetic values and protect public safety, but the U.S. Court of Appeals for the 5th Circuit ruled that the code violated the First Amendment.

The city came to the Supreme Court in January, where it asked the justices to review the 5th Circuit’s holding that the sign code’s distinction is an unconstitutional content-based regulation under the court’s 2015 decision in Reed v. Town of Gilbert. In Reed, the Supreme Court struck down a town ordinance that imposed different limits on different kinds of signs – for example, political advertisements compared with signs for church services. By a vote of 6-3, the justices ruled that laws that distinguish based on the content of the signs are subject to the most stringent constitutional test, known as strict scrutiny. After considering the city of Austin’s petition at conferences on June 17 and June 24, the justices agreed to weigh in on the sign code.

Summary opinions on excessive force, property rights

In an unsigned opinion — and over the dissents of three justices – the Supreme Court sent the case of a homeless man who died in police custody back to the lower court for another look. The lawsuit at the center of Lombardo v. City of St. Louis arose from the 2015 death of Nicholas Gilbert, who was arrested on charges that included trespassing and failing to appear in court for a traffic violation. For 15 minutes, six police officers applied pressure to Gilbert while he lay face down on the floor of his cell, with his hands cuffed behind his back and his legs shackled. Gilbert tried to lift his body up to breathe and pleaded with the officers to stop, saying “It hurts.” Gilbert was taken to a hospital, where he was pronounced dead.

Gilbert’s parents sued the city and the officers, alleging (among other things) that the officers had used excessive force against Gilbert in violation of his constitutional rights. The U.S. Court of Appeals for the 8th Circuit dismissed the claims, holding that no reasonable jury could find that officers had used excessive force and therefore the officers could not be held liable. Gilbert’s parents came to the Supreme Court in September, asking the justices to review that decision. The parents noted that the 8th Circuit’s ruling had “already been invoked by one officer charged by state prosecutors” in the death of George Floyd and could “also hamper any attempt” by the U.S. Department of Justice “to prosecute the officers responsible for Floyd’s death.”

After rescheduling the case 13 times and then considering the case at several conferences, the court on Monday issued a four-page decision in which it emphasized that the determination whether police officers have used excessive force “requires careful attention to the facts and circumstances of each particular case” – including factors such as “the relationship between the need for the use of force and the amount of force used” and “the threat reasonably perceived by the officer” and “whether the plaintiff was actively resisting.” The court of appeals cited these factors, the Supreme Court acknowledged, but it isn’t clear from the lower court’s opinion whether the court believed that officers could always restrain someone face down as long as the person being restrained “appears to resist officers’ efforts to subdue him.” Moreover, the justices added, the court of appeals described other facts – such as that Gilbert had already been handcuffed and his legs were shackled – as “insignificant,” when they actually could have been important. Because the court of appeals apparently either “failed to analyze such evidence or characterized it as ‘insignificant,’” the Supreme Court concluded, it had not conducted the kind of “careful, context-specific analysis required by this Court’s excessive force precedent.”

The justices stressed that they were not weighing in on whether the officers had in fact used excessive force or whether, if they did, the officers would ultimately be entitled to qualified immunity. Instead, they wrote, they were simply giving the 8th Circuit “the opportunity to employ an inquiry that clearly attends to the facts and circumstances in answering those questions in the first instance.”

Alito dissented, in an opinion that was joined by Thomas and Justice Neil Gorsuch. In Alito’s view, the 8th Circuit “applied the correct legal standard and made a judgment call on a sensitive question.” He suggested that the court had decided to send the case back to the 8th Circuit, however, because his colleagues didn’t care for their other options in disposing of the case: either “denying the petition (and bearing the criticism that would inevitably elicit)” or granting review on the merits “(and doing the work that would entail).” But the middle ground, Alito posited, is “unfair to the Court of Appeals,” which got it right: “If we expect the lower courts to respect our decisions,” he argued, “we should not twist their opinions to make our job easier.”

The justices also issued an unsigned summary opinion vacating a ruling by the U.S. Court of Appeals for the 9th Circuit in favor of the city and county of San Francisco in a property-rights case. The petition for review was filed by Peyman Pakdel and Sima Chegini, a married couple from Ohio who in 2009 bought an interest in a six-unit apartment building in San Francisco’s Russian Hill neighborhood. Their interest gave the couple the right to occupy one of the units, which they planned to live in when they retired in roughly a decade; until then, they rented the apartment to a tenant.

As part of their purchase agreement, the couple was required to work with the other owners of the building to convert the owners’ interests to condominiums. In 2015, the owners applied for conversion under a city program that would expedite conversion as long as the owners offered a lifetime lease to existing tenants. This meant that if the couple’s tenant decided to stay, they might never be able to live in their apartment. The couple twice asked the city to excuse them from the lifetime-lease requirement, but their requests were rejected.

The couple went to federal court, where they argued (as relevant here) that the lifetime-lease requirement violated the Fifth Amendment because it was a “taking” of property without compensation. The district court dismissed their claim, and the 9th Circuit upheld that ruling. It held that the couple’s takings claim was not final, as required by the Supreme Court’s 1985 decision in Williamson County Regional Planning Commission v. Hamilton Bank, because – it reasoned – the couple had not obtained a final decision from the city, but had instead only asked for an exemption after the conversion process was approved and they had agreed to the lifetime lease.

The couple went to the Supreme Court, which on Monday vacated the 9th Circuit’s ruling and sent the case back with instructions to give the couple’s case another chance. The justices explained that the requirement in takings cases that a government action be final is “relatively modest” and is intended to show that the plaintiff has actually been harmed by the government’s conduct. The 9th Circuit’s contrary rule, the court observed, would require plaintiffs to exhaust all of their state administrative remedies before bringing a federal takings claim, but that is not necessary if the government’s position is final.

Denials of review on Abu Ghraib, interstate disputes

The justices denied review in a case in which Iraqi citizens are seeking to hold a government contractor liable for abuses at the Abu Ghraib prison in Iraq. The three Iraqis sued in the United States, claiming that they were abused by employees of CACI Premier Technology while detained at Abu Ghraib. Last year the court asked the U.S. solicitor general to weigh in on whether an order denying the company’s claim for derivative sovereign immunity – that is, immunity for government contractors in cases in which the federal government would be immune if the claim were brought against it instead – can be appealed immediately. In August 2020, then-Acting Solicitor General Jeffrey Wall suggested that the justices put CACI’s case on hold until their ruling in Nestle v. Doe, in which they were considering whether U.S. corporations can be sued for violations of the Alien Tort Statute, the law on which the Iraqi plaintiffs were relying, at all. The court’s June 17 ruling in Nestle did not address that question, and the court on Monday turned down CACI’s request for review.

The justices also declined to allow two cases to be brought by states directly in the Supreme Court. In one case, New Hampshire v. Massachusetts, New Hampshire sought to challenge a Massachusetts rule that taxes nonresidents on income for services performed outside the state. The issue arose during the COVID-19 pandemic, when Massachusetts opted to continue taxing out-of-state residents who had worked in the state prior to the pandemic but began to work from home. And in the second case, Montana and Wyoming v. Washington, the justices turned down a request by Montana and Wyoming to file a complaint directly in the Supreme Court over an unsuccessful effort by a private company to build a coal-export facility along the Columbia River in Washington. Montana and Wyoming (whose coal would have been shipped through the facility) contended that Washington’s denial of the permission needed to build the facility discriminated against foreign and interstate commerce.

Although last Thursday was the last regularly scheduled conference before the justices’ summer recess, the court traditionally issues one final order list (sometimes dubbed the “clean-up” order list) after all of the opinions in argued cases have been issued. This means that the justices could still act on some of the cases on which they did not act today, including a challenge to Indiana’s parental-notification law for minors who want to obtain an abortion, a challenge to the constitutionality of a Maine tuition-assistance program that pays tuition for secondary schools only at “nonsectarian” schools, and the case of a florist who argues that her Christian faith prevents her from creating custom floral arrangements to celebrate same-sex weddings.

This article was originally published at Howe on the Court.