Amicus Brief Urges Ohio Supreme Court to Hear Appeal in High-Profile Case about First Amendment Protections
Our Pro Bono Commitment
Jenner & Block filed an amicus brief on behalf of the NAACP and the Ohio State Chapter of the NAACP urging the Ohio Supreme Court to hear Oberlin College’s appeal in Gibson Bros, Inc., et al., v. Oberlin.
Oberlin is seeking to reverse a lower court decision finding the college liable for more than $30 million in damages for allegedly facilitating the distribution of defamatory statements during student protests against a local bakery.
Oberlin students were protesting Gibson’s bakery after a 2016 incident involving an altercation between three Black Oberlin students and an employee of the bakery. The three students were arrested, but not the employee. Oberlin students organized a boycott of Gibson’s bakery to protest, among other things, the use of force against a Black student, the law enforcement response, and other accounts of racial profiling and discrimination involving the bakery. Student activists created fliers expressing outrage over the “assault” and the bakery’s “long account of racial profiling,” and the Student Senate passed a resolution expressing similar sentiments.
Gibson’s sued Oberlin, asserting that the college and its personnel facilitated the distribution of defamatory statements during the protests. The trial court found that, although the students’ chants were constitutionally protected, Oberlin could be liable for supporting the distribution of the allegedly defamatory statements in the flier.
Oberlin has petitioned the Ohio Supreme Court to reverse this ruling and find that those statements fall within the free speech and association protections guaranteed by the First Amendment and the Ohio Constitution.
Jenner & Block’s brief supports Oberlin’s appeal, based on the important constitutional protections that are threatened by the lower court decisions. The brief outlines the historical development of First Amendment principles protecting free speech and political expression, driven by the crucial role that boycott and protest played during the civil rights movement. This history also demonstrates the importance of student organizing, in particular in opposing discriminatory practices or actions taken by private businesses. The brief also notes that civil tort liability has historically been wielded as a weapon by opponents of civil rights to stifle and suppress essential political organizing and alerts the court to the grave implications of this decision.
Partner Jessica Ring Amunson led the team, joined by Partner Ishan K. Bhabha, Associate Deanna Krokos, Senior Paralegal Cheryl Olson, and Manager of Docketing Services Tyler Edwards.
Defending Transgender Youth Rights with Lambda Legal and the ACLU
Jenner & Block filed an amicus brief in Travis County, Texas in Doe v. Abbott on behalf of Professor Ron Beal, a Texas administrative law expert, in support of the plaintiffs’ application for a temporary injunction and as part of our pro bono work with Lambda Legal and the ACLU to defend transgender youth rights.
In the brief, the plaintiffs challenged the decision of the Texas Department of Family and Protective Services (DFPS) to follow the directive of Governor Abbott to investigate gender-affirming care for transgender minors as “child abuse” under the Texas Family Code pursuant to a non-binding opinion issued by Attorney General Paxton.
Professor Beal argued that the DFPS decision to enforce the Attorney General’s novel interpretation of the Texas Family Code in conducting abuse and neglect investigations exceeded the agency’s statutory authority. The Texas Legislature previously considered and declined to amend the definition of “child abuse” under the Family Code to include medical procedures identified in the Attorney General’s opinion, and neither DFPS nor its commissioner had the authority to expand the definition of “child abuse” under Texas law. The brief also explained that, even if DFPS and its commissioner had the authority to enforce an expanded definition of “child abuse,” that the action constituted an interpretive rule, which failed to comply with the mandatory notice, comment, and justification procedures under the Texas Administrative Procedures Act.
Special Counsel Benjamin T. Halbig and Associate Reanne Zheng took the lead in authoring the brief, supervised by Partner Clifford W. Berlow. Partners Adam G. Unikowsky, Mark Davis, and Laurie Edelstein; Associates Steven Tinetti and Chasel Lee; Pro Bono Counsel Nura Maznavi; and Junior Paralegal Grace Liberman assisted.
Firm’s Amicus Brief Opposes Efforts to Block Construction of the Obama Presidential Center
On July 15, the firm submitted an amicus brief, pro bono, on behalf of 16 iconic Chicagoland museums and cultural institutions that oppose efforts to block construction of the Obama Presidential Center in Jackson Park.
The plaintiffs inProtect Our Parks, Inc., et. al. v. Pete Buttigieg, Secretary of the US Department of Transportation, et. al., No. 21-cv-2006 (N.D. Ill.) sought a preliminary injunction to stop the center. The brief argues that the court should deny that request. On August 5, Judge John Robert Blakey issued a one-page opinion denying the request, writing that the plaintiffs “have not met the standard for injunctive relief on their federal claims.”
“The Chicagoland Museums believe the Obama Presidential Center will be a cultural and economic treasure for Chicago that will benefit the public by bringing new amenities and positive development to the surrounding community, boosting the local economy, and serving as a magnet for visitors to the City and the region. It will serve as an enduring and powerful symbol of the promise of America and the American Dream. In other words, the public interest strongly favors allowing construction to move forward without any further delays,” the brief reads.
The brief highlights the area’s long and rich history of featuring these world-class institutions: “Museums provide major educational and economic benefits and advance the public’s interest in knowledge and understanding. The Chicagoland Museums offer benefits to the public, the City, and the Chicago Park District—and offer benefits to each other when they are clustered together. Each museum is truly a treasure and Chicagoland, its residents, and visitors are fortunate to have them.”
The brief is signed by Co-Managing Partner Randy Mehrberg, joined by Partners Daniel J. Weiss and Gabriel K. Gillett and Associate Elena M. Olivieri.
The Chicagoland museums and cultural institutions that joined the brief include the following: Adler Planetarium, The Art Institute of Chicago, Bronzeville Children’s Museum, Chicago Academy of Sciences/Peggy Notebaert Nature Museum, Chicago Architecture Center, Chicago History Museum, DuSable Museum of African American History, Field Museum of Natural History, Illinois Holocaust Museum & Education Center, Lincoln Park Zoo, Millennium Park Foundation, Museum of Contemporary Art, Museum of Science and Industry, National Museum of Mexican Art, The National Museum of Puerto Rican Arts & Culture, and Shedd Aquarium.
This is the third brief the firm submitted in support of the Obama Presidential Center. In 2018, the firm submitted a brief in the district court on behalf of 11 museums in Protect Our Parks, Inc. v. Chicago Park District, and submitted a brief in the Seventh Circuit when the plaintiffs appealed their loss. WTTW reported on the latest brief.
Amicus Brief Urges Seventh Circuit to Reverse Lower Court’s Dismissal of Pro Se Litigant’s Case
In Cordell Sanders v. Michael Melvin, et al., the district court dismissed a plaintiff’s entire case as a sanction based on imprecise allegations the plaintiff — who is mentally ill and had been housed in solitary confinement for years—had included in their years-old, pro se complaint, and did so despite that a pending summary judgment motion showed a factual dispute regarding those allegations. This dismissal is now on appeal.
Led by Dean Erwin Chemerinsky, amici are five legal professors who are experts on civil rights litigation, civil procedure, federal procedure, and the application of pleading standards to pro se litigants. They urge the Seventh Circuit to reverse the lower court’s decision and remand for further proceedings. They argue that affirming such a dismissal would be contrary to the established principles of leniency afforded pro se and inmate litigants, would violate the well-known rule that sanctions be narrowly-tailored to misconduct, and would contravene the policy favoring resolving cases on their merits, among other things. The legal system, they note, is complex and challenging – “especially for those without legal training.” They argue that the Seventh Circuit has held “that courts have an affirmative obligation to ensure that a pro se litigant’s claims are not dismissed as a result of procedural unfairness.” In this case, they argue, the district court was “particularly harsh and unnecessarily punitive.” Regarding sanctions against the litigant, the brief notes that “less draconian” alternatives are available. And dismissal with prejudice, according to the brief, is the “most severe” sanction that should be meted out “only with extreme caution.” “Sanctions should be used as a scalpel to surgically address issues where appropriate, not as a sledgehammer to squash an entire case,” the brief reads.
The team writing the brief pro bono includes Partner Gabriel K. Gillett and Associates Grace C. Signorelli-Cassady, Jeremy M. Sawyer, and Elena M. Olivieri, with valuable assistance from Paralegal Mary Frances Patston.
Central District of California Cites Jenner & Block Amicus Brief in an Order Granting Injunctive Relief to At-Risk ICE Detainees
On April 20, 2020, the Honorable Jesus G. Bernal of the United States District Court for the Central District of California granted a preliminary injunction to a nationwide class of persons detained by Immigration and Customs Enforcement (ICE). The injunction requires that ICE do more to protect detainees from the risks of COVID-19, including by freeing many of those who face the greatest risk of serious harm due to their preexisting medical conditions. The court’s decision cited and drew from a brief filed by Jenner & Block Partners Clifford W. Berlow, Michele L. Slachetka and Christopher J. Rillo and Associate Faaris (Fares) Akremi on behalf of 16 public health experts as amici curiae in support of the class plaintiffs.
The court summarized that “[t]he central question presented” by the detainee plaintiffs’ motion for injunctive relief “is whether the conditions in which [ICE] detainees are held during the pandemic likely violate the Constitution, and if so, what measures can and should be taken to ensure constitutionally permissible conditions of detention.” Fraihat v. U.S. Immigration & Customs Enforcement, EDCV 19-1546 JGB (SHKx), slip op. at 1-2 (C.D. Cal. Apr. 20, 2020). In its decision, the court observed that the class plaintiffs were supported by the firm’s clients as amici curiae: 16 professors at American medical schools located across the nation, virtually all of whom are practicing emergency room and intensive care unit physicians. In their brief, the amici had taken the position that ICE’s lackluster infection-control guidance was inadequate to stop the highly contagious, life-threatening disease and contextualized the extreme risk faced by vulnerable people detained in close quarters with no meaningful opportunity to socially distance or practice the protective measures necessary to prevent illness. Further, they had maintained that the risk of an outbreak at an ICE detention facility was not just to the detainees, but instead to all those in neighboring communities whose access to medical care would be jeopardized if local hospitals become overrun with detainees infected with COVID-19.
Embracing these points and the underlying medical and scientific evidence, the court provisionally certified an injunctive class comprising “[a]ll people who are detained in ICE custody” and who suffer from at least one condition or disability—defined broadly in the court’s order—that “plac[es] them at heightened risk of severe illness and death upon contracting the COVID-19 virus.” id. at 21-22 & nn. 20, 21. The court then concluded that “[p]laintiffs have established they will suffer the irreparable harm of increased likelihood of severe illness and death if a preliminary injunction is not entered,” id. at 36, and that the public’s interest tips sharply in detainees’ favor—in large part because, as amici had explained, ICE’s “failure to protect the most vulnerable detainees could quickly overwhelm local hospitals with insufficient ICU” capacities, id. at 37.
The injunctive relief is broad. ICE is required to, nationwide: (1) identify all detainees with any of a broad range of “risk factors” that render them particularly vulnerable to COVID-19; (2) make timely, individualized custody determinations for those detainees, including consideration of whether each detainee herself is willing and able to be released from custody; and (3) issue a performance standard clearly defining “the minimum acceptable detention conditions” for at-risk detainees. id. at 38.
Firm Team Receives Victory for Obama Presidential Center when Judge Dismisses Lawsuit
On June 11, Judge John Robert Blakey of the Northern District of Illinois dismissed the lawsuit challenging construction of the Obama Presidential Center (OPC), providing a significant victory for the delayed project on Chicago’s south side. In Protect Our Parks, Inc. v. Chicago Park District, the plaintiffs alleged that creating the OPC in Jackson Park—and allowing the Obama Foundation to operate the center under an agreement that the Chicago City Council unanimously approved—would violate the Public Trust Doctrine and certain other laws.
Firm Files Amicus Brief Supporting Chicago Museums in Obama Presidential Center Dispute
However, in his 52-page decision, Judge Blakey wrote, “the OPC does not, as a matter of law, violate the public trust under the level of scrutiny applied to never-submerged lands” and “even under the heightened levels of scrutiny (applied to formerly submerged and submerged lands), the OPC still does not violate the public trust.” As a result, he found that “[t]he facts do not warrant a trial, and construction should commence without delay.”
In November 2018, a firm team including Chair Craig C. Martin, Partner Daniel J. Weiss and Associates Gabriel K. Gillett and Henry C. Thomas filed an amicus brief, pro bono, on behalf of all 11 museums located on Chicago parkland. In support of the now-granted motion for summary judgment, the amici provided the court with historical context about the long tradition of locating museums in Chicago’s public parks and highlighted the potential practical consequences that may result if the OPC was not allowed to open on parkland.
Jenner & Block filed an amicus brief, pro bono, on behalf of all 11 museums located on Chicago parkland. In Protect Our Parks, Inc. v. Chicago Park District, the plaintiffs allege that creating the Obama Presidential Center in Jackson Park—and allowing the Obama Foundation to operate the Center under an agreement that the Chicago City Council unanimously approved—would violate the Public Trust Doctrine and certain other laws. The City of Chicago and the Chicago Park District moved to dismiss the complaint, arguing that the Obama Center’s creation and operation is consistent with the Public Trust Doctrine and all other federal and state laws. The amici supported that motion by offering their unique insight and perspective. In particular, the museums provided the court with historical context about the long tradition of locating museums in Chicago’s public parks and highlighted the potential practical consequences that may result if the Obama Presidential Center is not allowed to open on parkland.
“The Park Museums believe the Obama Presidential Center will be a cultural and economic treasure for Chicago that will bring new amenities and positive development to the surrounding community, boost the local economy, and serve as a magnet for visitors the City and the region,” the brief says. “It will serve as an enduring and powerful symbol of the promise of America and the American Dream.”
Briefing is currently underway in the district court.
The 11 museums that currently operate on parkland in Chicago include the Adler Planetarium, Art Institute of Chicago, Chicago History Museum, DuSable Museum of African American History, The Field Museum of Natural History, Museum of Contemporary Art, Museum of Science and Industry, National Museum of Mexican Art, National Museum of Puerto Rican Arts and Culture, The Chicago Academy of Sciences/Peggy Notebaert Nature Museum and John G. Shedd Aquarium.
The team authoring the brief includes Litigation Department Chair Craig C. Martin, Partner Daniel J. Weiss and Associates Gabriel K. Gillett and Henry C. Thomas.
Firm Team Urges Second Circuit to Keep DACA Program
In an amicus brief, the team argues that President Trump’s decision to end the Deferred Action for Childhood Arrivals (DACA) program would harm American colleges and universities. The Obama-era program protects from deportation individuals brought to the country illegally as children. Trump ended the program last year, but the courts have blocked its elimination for now. Submitted on behalf of more than 70 schools including Pomona College, Rice University, and the California State University System, the brief contends that students protected by DACA “are among the most engaged both academically and otherwise” and enrich the campuses they attend. The colleges also argue that they will "almost certainly lose students mid-way through their degree programs, and the retention rate for this population will drop dramatically and beyond what institutions are prepared to accommodate through normal attrition cycles."
The brief was written on a pro bono basis by a team including Partners Ishan K. Bhabha, Lindsay C. Harrison and Thomas J. Perrelli and Associate Jennifer J. Yun.
The same team also filed a federal lawsuit that seeks to preserve DACA. That suit was filed in November 2017 on behalf of Princeton University, a Princeton student and Microsoft. It argues that the rescission of DACA violates both the United States Constitution and federal law.
Firm Files Amicus Brief Supporting Transgender High School Boy Seeking to Use Boys’ Restroom
Jenner & Block lawyers submitted an amicus brief in Gloucester County v. G.G., a case that was scheduled to be argued to the US Supreme Court on March 28, 2017. The case was an appeal from a ruling of the US Court of Appeals for the Fourth Circuit allowing a transgender student who identifies as a boy to use the boys’ restroom in his Virginia high school. On March 6, 2017, the US Supreme Court decided not to hear the case at this time, vacating the Fourth Circuit’s judgment and remanding the case for further proceedings.
The brief, in support of the respondent G.G., was filed on behalf of 20 leading medical and mental health organizations representing hundreds of thousands of physicians and mental health professionals, tens of thousands of medical students, over one hundred thousand physician assistants and millions of nurses. Citing the medical consensus regarding transgender individuals and generally accepted treatment protocols for gender dysphoria, a condition that affects many transgender individuals, the brief argues that access to single-sex facilities corresponding to one’s gender identity is a critical aspect of treatment of the condition. By contrast, the brief asserts, excluding transgender individuals from facilities consistent with their gender identity undermines their treatment, exposes them to stigma and discrimination as well as potential harassment, harms their physical health and impairs their social development, contributing to poorer health outcomes throughout life.
Partner Scott B. Wilkens led the firm’s team in drafting the brief, assisted by Partner Erica Ross and Associates Nicholas W. Tarasen and Ben J. Brysacz. Senior Paralegal Cheryl L. Olson also made valuable contributions.
In August 2016, the firm won a preliminary injunction preventing the University of North Carolina from enforcing North Carolina’s House Bill 2 against three transgender plaintiffs. House Bill 2 effectively prohibits transgender North Carolinians from using restrooms or other facilities consistent with their gender identity in public buildings. Further trial court proceedings in that case have been stayed pending a decision in the Gloucester County case. Mr. Wilkens also leads the team in the House Bill 2 case, assisted by Partner Luke C. Platzer and Associates Mark P. Gaber, Lorenzo G. Di Silvio, Thomas D. Garza, Mr. Tarasen and Mr. Brysacz.
Firm Files Amicus Brief in Support of California Statute to Protect Victims of Domestic Violence
Partner Daniel A. Rozansky, Associate Anna Marie A. Van Hoesen and Law Clerk Daixi Xu submitted an amicus brief in concert with the (FVAP) on behalf of FVAP and 10 other California-based nonprofit organizations that work with domestic violence survivors and their children. Filed in the California Court of Appeal for the Second District, the amicus brief supports the appellant, a victim of domestic violence, in appealing an order granting joint custody of her two young daughters to her abusive partner. Although California Family Code Section 3044 creates a rebuttable presumption against awarding custody to domestic abusers, trial courts such as this one have repeatedly failed to apply that presumption or properly consider the factors required to rebut it. As set forth in the brief, joint custody arrangements provide the opportunity for batterers to further abuse their former partners and their children. Studies have found that victims of domestic violence face serious safety risks in such custody arrangements and that children exposed to domestic violence are 74 percent more likely to commit crimes against other people, 50 percent more likely to abuse drugs and alcohol, and much more likely to abuse their own partners. Accordingly, the brief urges the court of appeal to provide much needed guidance so that trial courts will understand and effectuate the legislative intent to protect children from the known harms associated with granting custody to domestic abusers.