Archive for the 'Court' Category

It’s Official: Texas Voter ID Law Violates the Voting Rights Act

On Monday April 17th,  a Federal Judge ruled that the voter ID laws enacted in Texas were enacted with not only the intent to discriminate against minorities but with the purpose of discriminating against those minorities.  This is a huge ruling with implications for both the law, S.B. 14, and the state of Texas as a whole.  This ruling has the potential to leave any law related to voting coming out of Texas subject to federal approval in the future.

However, this ruling is far from out of the blue.  The story of S.B 14 has been a back and forth saga through the courts since 2011.  Let’s take a look at the history of this bill, this most recent ruling, and what that ruling means.

Texas Voter IDThe History of S.B. 14

S.B. 14 is a law which substantially limits the acceptable types of voter IDs in Texas, often in particularly odd ways.  For instance, a hunting license is acceptable ID to vote but a student ID would not.  This is just the tip of the iceberg to what represented an enormous amount of limitations on what was acceptable identification to allow somebody to vote.  While there were suggestions to make funds available to educate the public on the details of the new restrictions and assist poorer voters to obtain sufficient identification, these suggestions were shot down at every turn and nothing of the sort made it into the final law.

When this law was initially passed in Texas in 2011, the Voting Rights Act (VRA) gave the Attorney General (AG) the power to review and shut down voting laws coming out states which had historically had discriminatory voting practices–think Jim Crow and the South.  With the effect the limitations would have and the lack of education on these effects in mind, the Attorney General at the time-Eric Holder-exercised this power and shut down the law.  While challenged this in the courts, AG Holder’s decision was upheld.

However, in 2013, a Supreme court ruling known as Shelby substantially limited the powers of the VRA.  Section 5 of the VRA allowed the federal government to pre-clear any voting laws coming out of states that previously had issues, as discussed above.  In Shelby, the Supreme Court analyzed the constitutionality of the VRA and Section 5 in particular.  They ultimately determined that, while Section 5 itself was constitutional, Section 4 was not.  Section 4 was the part of the VRA that allowed enforcement of Section 5.  Without this section, the pre-clearance requirements of the VRA were rendered essentially toothless.  The reasoning behind the Supreme Court’s decision was that justifications for the VRA’s restrictions-the history of discriminatory voting practices-was not the same concern it was when the VRA was enacted in the 60s.  Whether this is true or not, the Supreme Court decided that the provisions of the VRA needed to be reviewed by Congress if they were to remain in effect.

In the wake of this decision, many states-Texas, Mississippi, North and South Carolina-passed voting laws which had previously been shut down as potentially discriminatory by the federal government.  Among these was S.B. 14.  However, the law was immediately challenged in court.  In 2014, the law was determined to have discriminatory intent and purpose and struck down.  It was then appealed to the 5th Circuit Court of Appeals, which upheld the ruling in part, but asked the lower court to revisit the matter of discriminatory intent.

This brings us to ruling of last week.  However, as opposed to the initial ruling, there was one huge difference–AG Jeff Sessions.  Jeff Sessions has made it clear that the potential for discriminatory voting laws is not a priority under his watch, and told his attorneys at the Department of Justice to drop this case altogether.  Despite this, and a request from the DoJ plaintiffs to drop the case, Judge Ramos-the judge handling this case-looked to the facts already submitted in coming to a resounding yes on the discriminatory intent and purpose behind S.B. 14.

Discriminatory Intent and Discriminatory Purpose

Discriminatory intent is shown where racial discrimination is a-although not necessarily the only-motivation behind a governing body’s decision.  Discriminatory purpose goes a little further than intent, implying that the law was enacted because of the adverse effects on an identifiable group.  A law demonstrating discriminatory purpose or effect is unconstitutional. A discriminatory impact is not enough on its own for a law to be unconstitutional on its face, there needs to be at least a partial discriminatory motive.

Judge Ramos found such an intent and purpose behind S.B. 14.  In determining to this, she looked to a number of things.  She noted not only the disproportionate impact that the carefully chosen ID limitations had on minorities, she also pointed to racist remarks made by legislators during deliberations on the law, the bypassing of usual procedures in passing the law, and the outright refusal to include anything which would help the public understand the laws.  Additionally, any amendment proposed to make the provisions less harsh–easing registration procedures, reducing costs to purchase the IDs necessary to vote, expanding the acceptable types of identification-were all rejected with essentially no consideration.  In fact, the Texas Congress was specifically advised of the disproportionate impact that the law would have and advised on a number of ways to lessen this disproportionate impact on minorities-they rejected all of them.

The stated goal of the bill was to avoid voter fraud.  However, despite the Texas Legislature being shown evidence that in person voting happened in about two out of every twenty million cases in the last decade and provided evidence that mail-in voting was much more commonly vulnerable to fraud, the Legislature didn’t feel the need to include any provisions on mail-in voting and focused exclusively on in-person voting.

With all this in mind, Judge Ramos ruled that she could find no non-discriminatory purpose for how Texas had approached S.B. 14.

What Will This Ultimately Mean

Unfortunately, despite years of rulings saying this law was intended to prevent minority voters from being represented at the polls, there’s a good chance this law will win out in the end.  Jeff Sessions has, as Attorney General, told the attorneys of the DoJ to cease litigating the case completely.  While Judge Ramos followed through with the case, Texas will certainly appeal her decision.  This appeal will probably have no lawyers opposing Texas, unless an outside group steps in to handle the litigation.  If this is the case, the chances of beating this law drop precipitously.  However, should somebody step in to help fight the law this is a case that has a good chance to make its way to the Supreme Court.  As it stands, even with the addition of Justice Gorsuch, the makeup of the court makes it likely that this law would be struck down and Texas would continue to require preclearance from the federal government for any new law effecting voters.

This hasn’t been a particularly good year for Texas when it comes to their voting process being ruled racially discriminatory.  Two separate courts have already ruled, this year alone, that Texas’ district maps are gerrymandered to “pack and dilute” minority votes.  The determination of Shelby limited the VRA on the premise that discriminatory voting practices were a thing of past generations.  However, this ruling and many other rulings this year have shown the opposite.  It is unlikely that congress, in its current state, will pass any legislation giving teeth back to the VRA.  However, as cases like this are appealed to the Supreme Court, they have the potential to create precedent for a future court ruling reevaluating Shelby.  However, it seems unlikely in the near the future.  Only time will tell how momentous this ruling may be, for now Judge Ramos’ ruling will serve to protect voting rights for minorities in Texas.

United Faces a Beating… in Court

Over the last week, the news (and many videos) of one Dr. David Dao being brutally attacked by Aviation Security Officers and dragged from his legally purchased seat on United Flight 3411 has been absolutely everywhere.  The incident has caused a firestorm of public outrage against United.

For those who have not seen the videos or read the news, passengers of Flight 3411 from Chicago to Louisville were told before boarding that the flight had been overbooked (United had sold more tickets to the flight than there were seats on the plane) and asked for volunteers to take $400 and a hotel stay to take a flight the following day.  This was apparently resolved, and the passengers were allowed to board the plane.  However, after the flight was boarded, United decided that it wanted four seats to fly employees to Louisville for their work on a flight the following day–it should be noted that the drive to Louisville is just over four hours.  United again requested volunteers to get off the plane, then when nobody was willing upped their offer to $800.  However, there was still nobody willing to get off.   Finally, United had a computer randomly select people to be kicked off the plane.  Dr. Dao was one member of the second couple to be randomly selected.

Dr. Dao refused to get off the plane and security was called to remove him–and remove him they did.  The footage from the many recordings made by other passengers on the flight show Dr. Dao’s head being slammed into the armrest next to him before he is pulled from his seat and, as onlookers scream in horror, his motionless form is dragged down the aisle of the plane–mouth bleeding, glasses askew, and shirt riding up his belly.  After this happened, the passengers were all removed from the plane so United employees could clean up the blood before the plane took off.

Since then, Dr. Dao has retained attorneys and has filed a motion to preserve evidence from the incident for a future lawsuit.  His attorneys report that he suffered a concussion, lost two front teeth, had his nose broken, and his sinuses were so badly damaged that he will require reconstructive surgery.

So the question is, how the heck did this happen in the first place?  The answer may surprise you, airlines have an enormous amount of leeway in a post-9/11 world.  So, with this in mind, let’s look at the law here and Dr. Dao’s chances in his upcoming lawsuit.

Airlines Overbooking and Booting Paying Customers

As anybody who’s flown in the last few years can attest, overbooking flights is an extremely common practice nowadays.  The heartbreak and annoyance of buying a ticket months in advance then being told that an airline sold more tickets than there were seats happens all the time-but it rarely escalates as far as it did in this case.

Almost every major airline currently intentionally overbooks the majority of its flights for the simple reason that it usually makes them more money than it loses them–despite how awful that is from a customer service standpoint.  The reason for this is not only the careful algorithms these airlines apply to overselling their flights, but also because these airlines are protected under both the contract you agree to and-believe it or not-federal law.

First and foremost, when you buy a ticket you are essentially agreeing to a contract with the airlines.  You best believe this contract gives the airlines enormous leeway to, among many other things, boot you off a plane.

United’s contract, a behemoth at just a bit over 37,000 words long, specifically says that when a flight is oversold passengers may be “denied boarding involuntarily.”  Overbooked is defined in their contract as when there are more passengers with valid confirmed tickets than seats before check-in time.  “Passenger” is defined as any non-crew person holding a confirmed registration.  The contract also gives them the right to boot disruptive or violent passengers–or to boot passengers for any number of other reasons.

When you buy an airplane ticket, you’re usually agreeing to something like this–United or no.  In fact, almost every major airline–with the notable exceptions of JetBlue and Virgin America–have some sort of provision allowing them to “deny boarding involuntarily.”

Code of Federal Regulations § 250.5–titled “Amount of denied boarding compensation for passengers denied boarding involuntarily”–not only allows this but substantially limits the amount an airline needs to pay out to a booted customer.  This makes overbooking even more appealing to airlines.  All the provisions require is that any involuntarily booted passenger be provided notice in writing (see the contract you totally read when you bought the ticket) and they are compensated.  However, compensation is limited to a maximum of 200% of the one way value of the ticket ($675 maximum) if the airline offers alternative transportation and 400% ($1,350 maximum) if they don’t.  If the alternative transportation is less than an hour away–they don’t have to give you anything.  They can even offer you vouchers for their own flights in lieu of cash or check in some situations–read most situations.

This is pretty cheap for the rare occasion where the airlines actually have to pay out, so it’s no surprise they aren’t shy about overbooking.  Since the United incident occurred, the Department of Transportation has said that they are reviewing whether overbooking rules were followed here–but they doubled down on the legality of bumping passengers and are not reviewing the rule in place.

UnitedDr. Dao’s Lawsuit

So, United can bump people off planes.  They can even do it involuntarily.  However, you’ll notice that there are a few issues in their contract that are definitely going to come up in any lawsuit with Dr. Dao.

First, they are allowed to boot passengers where a plane is overbooked–but was the plane overbooked by their own definition?  There were the exact same number of paying customers as there were seats, United just wanted to jam in four of its employees.  The question is, were these employees passengers?  If they count as crew they definitely were not.  What’s more, if they didn’t have a boarding pass at time of check-in it’s unlikely they’d count as a passenger.  If the flight wasn’t overbooked, then United didn’t have the right to boot Dr. Dao in the first place.  If Dr. Dao was being disruptive or belligerent, United may still have grounds under their contract to remove him from the plane.  However, despite the police report describing him as “irate” the videos and passenger accounts put him calmly on the phone with what turned out to be his attorney.  There is some question over the mere act of refusing to disembark from the plane was sufficient to give United grounds under their contract to remove Dr. Dao.

This being said, if remove Dr. Dao from the plane was all United did this would be much less of a media explosion–the Aviation Security Officers seriously injured Dr. Dao.  The contract you sign with United absolutely does not give them the right to assault, batter, or intentionally inflict emotional distress upon a passenger.    These are all civil torts which could Dr. Dao could use as a cause of action against United.

However, even these actions might have a bit of a hiccup.  The question would become whether the Aviation Secutity Officers acted as agents of the airline or in their own independent capacity as police officers.  If the officers were not acting as agents of the airline-or it can found that the airline sanctioned them to use such force in removing Dr. Dao-then the airline is unlikely to be held liable for the actions of their officers.

In this case, Dr. Dao may need to sue the police department of Chicago itself.  One would expect that, if and when a lawsuit finally does come there would be lawsuits target both United and the police department.  Police acting in their official capacity enjoy a certain level of immunity to lawsuits.  However, if it can be shown that the use of force was excessive here–an analysis made by looking at, among other things, standard police procedure and the level of threat posed by a suspect–Dr. Dao may still be able to bring a case.

Since the incident, the three Aviation Security Officers who attacked Dr. Dao have been placed on paid leave.  However, it is worth noting that the general procedure for the security officers is to–where there is no imminent threat–contain the situation until the officers from the Chicago Police Department arrive.  In fact, according to a deputy commissioner overseeing airport security, the protocol for Aviation Security Officers is apparently to not even go on the plane if it’s a customer service issue.  While at least one of the Aviation Security Officers wore a jacket reading “police,” they are not actual police officers and the practice of wearing such a jacket was banned a few months back.

All of this points to excessive force, a situation unnecessarily escalated in violation of standard protocol.  This would strengthen any case brought by Dr. Dao.

Almost Certain to Settle

You can see that, while Dr. Dao has several causes of action with merit, none of them are without their issues.  However, it’s very unlikely to reach that point.  This whole situation has been a PR nightmare for United and they have been judged in the court of public opinion–this is not the sort of case they are likely to want to bring before a jury.  Dollars to donuts says a settlement will be forthcoming.

Since the video hit the internet, United lost around a billion dollars in value before recovering to a mere quarter of a billion loss.  The CEO of United, Oscar Munoz, has been all over the news apologizing for the incident, although he has been doing a fairly poor job of it–first describing Dr. Dao’s beating as a “re-accomodation,” then telling United employees he thinks they did nothing wrong and calling Dr. Dao “belligerent”, then finally making an unequivocal apology.  He’s since been on television promising that United would never again let law enforcement remove a “booked, paid, seated passenger”–although he had no promises regarding overbooking in general.  Mr. Munoz has also publically stated that Dr. Dao cannot be at fault for what happened and should not have been treated like he was.  These are not the responses of somebody looking to go the long haul on a lawsuit with Dr. Dao.  I would expect a settlement to hit the news sooner rather than later.

Trump U: $25M Settlement in University’s Fraud Case

Back in Novemeber of last year, now-President Trump agreed to settle a class-action fraud case against him for a whopping $25 million.  Now, months later, Judge Gonzalo Curiel-the same judge President Trump accused of prejudice for being “Mexican” (the Honorable Judge Curiel was born in Indiana)-has finally given approval for the settlement to go through.

You’re probably wondering to yourself why the settlement took so long to go through.  The answer is that, like most settlements, the settlement paid out to the many plaintiffs but admitted no fault whatsoever on the part of Trump.  For at least one plaintiff, a Ms. Sherri Simpson, this was not enough.  She felt that she wasn’t given enough of a chance to opt-out of the class action (choose to sue Trump on her own) and she has been challenging the settlement as insufficient.  Ms. Simpson wanted to see criminal racketeering charges brought against Trump and felt that she deserved at least an apology from Trump.  Ms. Simpson was quoted as saying “for him to out there and say, well ‘I didn’t do anything wrong’ it’s disgusting…I want an apology.

After much deliberation on the issue, Judge Curiel has finally determined that the settlement offer is fair-it’s around two-thirds of all the profits Trump University ever made and five times what Trump himself took in-for the entire class of plaintiffs including Ms. Simpson.  However, for those who have forgotten some of the details of the Trump U fraud case, let’s take a look at the charges brought against President Trump and why Ms. Simpson may have wanted to see some culpability on the part of President Trump.

Trump UTrump Accused of Fraud

Starting in 2005, Trump provided seminars of “Trump University” which–first and foremost–was not a university.  As soon as the “university” was established, the New York State Education Department warned Trump that he was violating New York law by failing to receive a license to operate as a school.  Trump never paid any attention to these warnings, despite a second warning in 2010, but ultimately changed the name of the business to the Trump Entrepreneur Initiative (TEI).

However, in the case itself the issues of education law violations were set aside in favor of the most important charges against Trump–fraud.  The complaints against Trump U from plaintiffs essentially alleged that, beyond providing nothing of benefit, nearly every advertised feature of the classes was untrue.  They sued under New York Executive Law 63.12, defining fraud as any “device, scheme or artifice to defraud and any deception, misrepresentation, concealment, suppression, false pretense, false promise or unconscionable contractual provisions.” The law provides remedies for ongoing and persistent cases of fraud.

TEI advertised teachers handpicked by Trump, but when asked at deposition Trump couldn’t name a single teacher at his “school.”  It became clear that Trump had had no connection to any teacher from his seminars.

While TEI was advertised as revealing Trump’s business secrets, it turned out that Trump himself had never reviewed any of the materials for Trump University whatsoever-instead allowing a third-party company (which primarily focused on making materials for motivational speaking and timeshare seminars) to design the full curriculum.  This curriculum included such riveting secrets as looking at the IRS website to learn about taxes.  In fact, many of the plaintiffs complaints revolved around the majority of the information in the curriculum–for classes which were sometimes as expensive as $35,000–being easily accessible on the internet.

TEI also promised access to private lenders, financing, a year-long apprenticeship support program, and even promised to improve the credit scores of its students.  None of these promises ever materialized.

Instead of curriculum, the “Playbook” to TEI (basically an operations manual) was focused on upselling more TEI services.  It included nothing about presentations, speakers, or teaching points.  Instead, it focused on advising employees to avoid all reporters, providing sales tactics and how to respond if a district attorney ever showed up.

So as you can see, the allegations and facts certainly seem to include false promises aplenty in Trump University–making a strong case under Executive Law 63.12.  Judge Curiel had already ruled that Trump himself could be held personally liable for fraud should the case succeed, although the statute of limitations only allowed claims for the last six years of operation.  An especially large issue since TEI closed its doors in 2011.  However, should the case have succeeded, a personally liable Trump had more at stake than you might have expected.

Why Simpson May Have Wanted to Go Further–And Why Trump Was Quick to Settle

When Trump initially settled the case, he characterized the choice to settle as a cheap way to remove an inconvenience.  He tweeted out ” “I settled the Trump University lawsuit for a small fraction of the potential award because as President I have to focus on our country.”  However, $25M is far from a small fraction of the award as mentioned above–five times what Trump himself made off TEI.  The truth is, the implications of a fraud case against Trump that stuck were serious.

A settlement is not guilt-period.  The truth is that many settle just to avoid the potential costs inherent in litigation.  This means that, without a fully litigated case, it would be irresponsible to say that Trump did or did not commit fraud here–regardless of the evidence lined up against him.  However, had Trump been found guilty of fraud–or criminal racketeering as Ms. Simpson hoped–that would fall among the high crimes and misdemeanors which can lead to impeachment.  Even when committed before a president enters offices, and determined in a civil court as opposed to a criminal court, a verdict against Trump might have left him in a particularly precarious position in terms of his presidency.

This is very likely why Ms. Simpson was so adamant about pursuing her case and holding Trump himself accountable.   It’s also, despite what Trump himself may say, likely a large factor in why Trump–up until that point doggedly fighting the lawsuit from every angle from attacking the judge in the case to filing ultimately nearly frivolous $100M counterclaims against the plaintiffs in the case–chose to settle on the eve of his inauguration.  However, with the settlement finalized there will never be a fraud ruling against Trump in this case.  Settlements aren’t and should not be thought of as admissions of guilt, they are a generally a business decision, but as this chapter closes and the settlement is finalized it’s worth looking back at the case itself and how both Trump and the plaintiffs got here.

H.B. 2: North Carolina Bathroom Bill Repealed for Basketball

North Carolina’s controversial “bathroom bill,” which required transgender people to use a bathroom matching the gender on their birth certificate, has been repealed–at least in part. Unfortunately, while the removal of this discriminatory rule-H.B. 2-is good news, the changes leave some of the worst elements of the law in force for the foreseeable future. In fact, the compromise reached between the conservative majority and liberal majority in North Carolina’s Congress in achieving this repeal has people on both side of the issue criticizing the outcome–some calling any compromise on the law a mistake and the other side pointing to how damaging the parts that remain are to the LGBT community.

The original rule was put in place after Charlotte passed a local law including LGBT persons in their anti-discrimination laws–the North Carolina Congress felt that it was so pressing that they called an emergency session to put a rule in effect blocking cities from passing anti-discrimination laws beyond what the state already has–the bathroom ban was a part of this law. While the bathroom rules have been repealed, the new version leaves in place the rules forbidding any individual city from passing local laws which prohibit discrimination based on sexual orientation or gender identity until 2020.   This is certainly better than the previous version which included the same restrictions but lasted indefinitely, however, it still leaves several years where the LGBT community will be left adrift.

The Democratic Governor of North Carolina, Roy Cooper, ran on a platform of repealing the “bathroom bill.”  The repeal now is a result of a number of failed initiatives to get rid of the law–ultimately leading to the compromise we see today. The Governor described the repeal as “not perfect” but “an important step forward.”  It’s certain that he has had an uphill battle in even reaching this point trying to push the change through a Republican-majority state legislature. The step is just that, a step. However, in the face of such serious restrictions on protecting the LGBT community it feels like a baby step at best.

H.B. 2The Story Behind The Rule’s Repeal

With the odds so stacked against any change to the law whatsoever, you may be wondering how any repeal got through the North Carolina Legislature at all. The truth is that the changes are as much a story of money and basketball as a story of overcoming discrimination.

When the original law was passed, it led to serious sanctions from some of the biggest cities in the nation. The mayors of Salt Lake City, Seattle, San Francisco, New York, Washington, and a number of other cities all placed bans on state-sponsored travel to North Carolina. The entire states of Connecticut, New York, Minnesota, Washington, and Vermont have banned travel by public employees and representatives to North Carolina

A number of businesses also got in on refusing to business with North Carolina. Paypal and Deutche bank are notable examples of businesses which took a stand by cancelling expansion plans in North Carolina after the law was passed. Musicians and artists, from Bruce Springsteen to Cirque de Soleil, all refused to perform and cancelled performances in North Carolina  The 2017 NBA All-Star game was pulled from Charlotte.

H.B. 2 also led to something which, for North Carolina, was maybe even more serious–sanctions from the NCAA. The NCAA pulled all tournaments out of North Carolina-golf, swimming, and (most importantly) basketball. North Carolina currently has the number one ranked college basketball team and college basketball is huge business in North Carolina. As long as H.B. 2 continued to exist, the NCAA refused to host any events in North Carolina.

All told, conservative estimates had the economic losses suffered due to H.B 2 in the hundreds of millions with projections that they would stand to lose billions in the coming years. The partial repeal of H.B. 2 came shortly before a NCAA deadline which would have cost North Carolina future hosting opportunities if H.B. 2 remained in place. It’s no stretch to say that it is near certain that economics, and not a desire to end discrimination, were the real motivation behind the changes to H.B. 2.

North Carolina May Still Not Get What They Want

Economics may be the motivation behind the changes, but the changes themselves may be too half-hearted to convince governments, businesses, and the NCAA to change their mind on North Carolina. The mayors of San Francisco, Seattle, Salt Lake City, New York and Washington have already said the changes leave the worst of the law in place and they won’t be lifting their sanctions.

The NCAA has publically announced that it based its ban, at least in part, on both the bathroom ban, the bar on local LGBT anti-discrimination laws, and the travel bans from states and cities. Both the bar on local laws and the travel bans look to be staying in place. However, in the wake of the repeal, the NCAA has “reluctantly voted” to remove their ban on hosting events in North Carolina. The decision led to much criticism after the NCAA itself described the repeal as having “minimally achieved” a non-discriminatory environment. This being said, the NCAA is making it clear that they may change their mind at any time as the situation evolves.

North Carolina Conservatives Gambling on the Fed

The Republican North Carolina Senate Leader Phil Berger has made it clear that changing the prohibition on local anti-discrimination laws from indefinite to lasting until December of 2020 is a move attempting to “allow federal litigation to play out.”  In other words, they believe Congress will pass laws explicitly limiting anti-discrimination laws when it comes to the LGBT community and make H.B. 2 irrelevant.

In the courts, the opposite trend seems to be the case. A number of cases out the EEOC in recent years have included sexual orientation and gender identity as a protected subsection of gender. In fact, just around a week ago the highest court yet–a Federal Appeals Court in Chicago—made a ruling saying just this.

On the flip side, President Trump recently rescinded an Obama-era Fair Pay and Safe Workplaces Executive Order which prohibited federal contractors from discriminating on the basis of sexual orientation or gender identity–basically saying it is alright to start discriminating on this basis.

The reliance on Congress to limit anti-discrimination in this way seems to read the priorities and positions of the Trump administration fairly well. However, the trends in the courts show that any such law would face serious legal challenge and more and more precedent saying that such a move might be unconstitutional.

The repeal of H.B. 2 feels like a mostly symbolic gesture in light of how bad the parts of it that remain are for the LGBT community. That being said, the changes still help restore some of dignity stolen from transgender people in North Carolina–and that is a victory. The story of laws like this is not over, Texas already is considering a similar law despite the backlash against North Carolina. What’s more, the belief that the issue will be addressed–one way or another–at a federal level is feeling more and more like an inevitability. This repeal is a small victory, but both sides will have eyes to the future for the ultimate determination of the underlying issue–sexual orientation and gender identity as a legally protected class.

Proof of Residency is Not Required to Eat Out

Are you required to show identification before sitting down for lunch?  If you’re ordering alcohol, sure.  But what if you were asked to show proof of legal residency?  Brenda Carrillo and a friend sat down at the Saint Marc Pub-Café, an upscale eatery in Huntington Beach, when a waiter asked:

“Can I see your proof of residency?”

When the patrons repeated the question back to the waiter in disbelief, the waiter responded with:

“I need to make sure you’re from here before I serve you.”

Is this legal?  After complaints to the manager, the patrons were offered to be re-seated, but declined and left the restaurant.  Castillo commented that she had never felt so judged in her entire life.

Proof of ResidencyNo Shoes, No Service

You know those signs that read, “We reserve the right to refuse service” or “No shoes, no service”?  Can a restaurant really refuse service to whoever they want?  The short answer is no.  After Trump’s inauguration, it seems some feel emboldened to start showing their prejudices and, despite the waiters cruel and discriminatory intent, it doesn’t come as much of a surprise to hear these types of stories popping up across the country.

When is a restaurant justified to legally refuse service then?  For starters, a restaurant can never refuse service based on discrimination.  The Civil Rights Act of 1964 explicitly prohibits places of public accommodation from discriminating based on race, color, religion or national origin.  Although a restaurant is considered private property, it’s still considered a place of public accommodation—equal protection laws still apply.

There aren’t necessarily a set of circumstances that would warrant a legal right to refuse service but, as a general rule of thumb, restaurants can refuse service if a guest puts the health, safety, or welfare of the establishment, or other guests, at risk.  That doesn’t help much, does it?  Certainly not an exhaustive list, but here are a few instances when a restaurant could legally refuse service:

  • When a guest is acting unreasonably rowdy or threatening other patrons,
  • When a guest doesn’t meet the company’s health requirements (think lacking adequate hygiene),
  • When a guest breaks lawful rules such as no-pet policies,
  • When the establishment has met capacity limits, or
  • When the establishment is getting ready to close.

Have you ever seen those signs that say ‘dress shirt and tie required’?  A restaurant can even refuse service if a guest doesn’t meet their clothing requirements., but refusing to serve a patron based on residency is not an acceptable reason because it’s a form of discrimination that the Civil Rights Act strictly prohibits.

I.D. Required Only in Limited Circumstances

The waiter had no right to ask the guests for identification.  When is proof of residency required?  One of the most obvious instances is obtaining a driver’s license or showing proof of citizenship to get a U.S. passport.  Many jobs require proof that you’re legally eligible to work in the U.S. and laws requiring a person suspected of a crime to show identification are legal as well.

The restaurant contacted Carillo with an apology after the story showed up on social media accounts.  The restaurant’s manager confirmed the behavior was not within company standards and the waiter was ultimately fired.  When the restaurant offered to host Carillo and her friends as “VIP guests,” Carillo and her friends declined the offer but, instead, asked Saint Marc Pub-Café to donate 10% of the weekend’s sales to an organization that advocates for immigrants living in the country illegally.

Did the patrons have another option?  They certainly could have brought a discrimination suit against the restaurant. Certain types of discrimination and civil rights violation allegations require a person file a claim or complaint with a federal or state agency before a lawsuit is brought, but Carillo likely would have had no problem getting the go-ahead to file a lawsuit.  At that point, it would have been up to Carillo to prove by a “preponderance of the evidence” (that it’s more likely than not that the allegations are true) that the restaurant discriminated against her.