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OP-ED: How heavy a burden does a person of color alleging discrimination have to carry to have his day in court?

NNPA NEWSWIRE — The United States Supreme Court’s decision will determine whether a plaintiff who alleges race discrimination pursuant to 42 USC 1981 may have his or her day in court if he or she can show that racial discrimination was a factor, even among others, in a defendant’s refusal to do business.

Published

5 years ago

November 13, 2019

Oakland Post

By Falen O. Cox, Esq., Founding Partner, Cox, Rodman, and Middleton

The case, Comcast Corp. v. National Association of African American Owned Media and Entertainment Studios Networks, is, on the surface, a case about procedural issues. Beneath the surface it is about the ease or complexity a plaintiff may face when raising claims of racial discrimination under 42 US 1981.

Even though it has reached the United States Supreme Court, procedurally, the lawsuit is in the beginning stages, and the Supreme Court will be deciding whether the plaintiffs (Byron Allen company) may move forward in the legal process to have its “day in court” before a jury, or whether its suit should be dismissed before it reaches a jury or the investigatory process that we lawyers call “discovery.”

During the discovery process each side has an opportunity to ask questions of the other and compel answers, to request documents, and to question potential witnesses. This process is “investigative” and allows the plaintiff to gather the information necessary to present his or her case to a jury, and the defendant the ability to form any defenses he or she may have.

For example, if a plaintiff sues a defendant for rear-ending her at a red light, during the discovery process the plaintiff can ask the defendant whether he was texting at the time of the accident — if he was, the plaintiff can use that to show that the defendant was negligent.

On the other hand, if the plaintiff claims that she has back pain as a result of the collision, the defendant can ask if she has ever had back problems before. If she had been seeing a doctor about back pain prior to the collision, the defendant may be able to show that her back pain was not a result of the collision. However, if the court dismisses a case before the discovery process begins, the case is over, and these “discoveries” are never made.

In short, whether a case makes it to the discovery process, depends on whether the case is allowed to move forward after the plaintiff files a complaint. As common practice, defendants usually file a motion for summary judgement, asking the court to dismiss the plaintiff’s complaint prior to discovery and prior to any decision on the merits of the plaintiff’s claim along with its answer to the plaintiff’s complaint. It is a procedural tactic to prevent the lawsuit from moving further than the written complaint.

There are valid reasons for motions for summary judgement (dismissal). It is designed to make sure that frivolous claims do not overwhelm the court system and to ensure that the court’s limited resources and time are spent on legitimate claims. Additionally, defending a lawsuit can be time consuming and extremely costly for a defendant. A defendant should not have to spend thousands (or in this case probably hundreds of thousands) on legal fees and lost productivity to defend a frivolous claim. The motion for summary judgement acts as a gatekeeper to the legal system.

In this case, the National Association of African-American Owned Media and Entertainment Studios Networks, Inc. (the “Plaintiffs”) filed suit against Comcast, Time-Warner Cable, the former FCC Commissioner, the NAACP, the National Urban League, the National Action Network, and Reverend Al Sharpton alleging that Comcast and the others conspired together to deny it a contract to carry its network/television shows because it is a 100% black-owned company. (Editor’s note: NAN, NUL, and NAACP each are no longer party to the lawsuit).

However, the Court dismissed the suits against everyone except Comcast and Time-Warner for lack of personal jurisdiction, and the plaintiffs abandoned its argument of conspiracy.

At issue now, and before the United States Supreme Court, is whether Comcast, in refusing to contract with the Plaintiff, is in violation of 42 USC 1981. More specifically, whether a plaintiff who alleges discrimination in violation of 42 USC 1981 must allege that racial discrimination was the but for cause of the refusal to contract: “But for the plaintiff’s race, Comcast would have contracted with the plaintiff,” or whether the plaintiff may allege that race was a motivating factor in Comcast’s refusal to contract.

Even though there may have been other reasons that Comcast did not contract with Plaintiffs, the fact that it is a black company was a motivating factor. For context, 42 USC 1981 was enacted in 1886 during Reconstruction (after slavery) and reads:

“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”

The District Court, which acts as a trial court in the federal court system, dismissed the Plaintiff’s complaint three times for failure to state a claim for which relief can be granted. It held that the Plaintiff’s complaint failed to show that, but for racial discrimination, Comcast would have contracted with Plaintiff, and that Plaintiff failed to allege that other companies that Comcast did in fact contract with were similarly situated to Plaintiff.

However, Plaintiff appealed the District Court’s decision to the 9th Circuit Court of Appeals which reversed the District Court’s rulings and held that Plaintiff could move forward with its lawsuit. It denied Comcast’s motion for rehearing. Comcast filed a petition for certiorari in the United States Supreme Court, which was granted.

Comcast argues that Plaintiff’s lawsuit should be dismissed because it alleges that Plaintiff’s complaint was insufficient and that it did not allege “but for” causation or refute what Comcast alleges are legitimate business considerations for its refusal to contract with Plaintiff.

Comcast argues that it did not extend a contract to Plaintiff’s as a result of legitimate business practices, e.g.: that it did not have the bandwidth necessary, that it had a preference for sports and news programming, and that there was a lack of demand for Plaintiff’s programming. As a result, Comcast argues that Plaintiffs have failed to show that Comcast would have contracted with them but for Plaintiff’s race.

Comcast points out that it had, within the same time period, considered contracting with ESN; that it had in fact contracted with “Aspire” led by Earvin “Magic” Johnson and Revolt TV led by Sean “Diddy” Combs, which it claims has majority or substantial African-American ownership. Additionally, Comcast alleges that it has carried two 100% black-owned networks, African Channel and Black Family Channel.

Lastly, Comcast argues that Plaintiff’s case should be dismissed because Plaintiff has failed to show that it was similarly situated to the white-owned channels that it did contract with. The reasoning there is that apples must be compared to apples. For instance, if there is a white-owned channel with tremendous interest that is within Comcast’s preferred programming, then the fact that Comcast contracted with that network as opposed to Plaintiff’s — which Comcast alleges does not have interest and is not its preferred programing —is not a result of race discrimination, but instead is Comcast simply choosing the best content for its company.

On the other hand, Plaintiffs allege that it has attempted to contract with Comcast for approximately 8 years and has repeatedly been passed over for white-owned companies despite Comcast’s assurances that its channels were “good enough” and that it was on a “short list.” Additionally, Plaintiff offered its Justice.TV network to Comcast for free and without licensing fees. Comcast declined. As it relates to the lack of bandwidth that Comcast claims is a reason for its refusal to contract, Plaintiff notes that Comcast carries every channel (more than 500) that its competitors carry, except for Plaintiff’s.

Plaintiff’s channels are currently carried on Verizon, FIOS, AT&T, U-Verse, Direct TV, Sudden Link, RCN, Century Link, and many others. Additionally, despite its refusal to contract with Plaintiff as a result of its alleged bandwidth scarcity, Comcast has launched more than 80 lesser known white-owned channels. Plaintiff alleges that during the 8 years that it attempted to contract with Comcast, Comcast directed it to gain field support within the Comcast corporation, once that support had been gained, Plaintiffs were told that field support was no longer a factor.

Next, Plaintiffs were told that it needed Division Support only to be told by the Divisions that it deferred to corporate.

Plaintiffs allege that it spent hundreds of thousands of dollars in marketing and travel to gather support that was deemed necessary, but once achieved, was no longer sufficient.

Most explicit, is Plaintiff’s claim that a Comcast Executive stated, “We’re not trying to create anymore Bob Johnsons.” Bob Johnson is the founder and former owner of B.E.T. which was sold to Viacom for a reported $3 billion.

Plaintiffs allege that Comcast’s refusal to contract, in addition to being motivated by race alone, is also motivated by its desire not to have its networks (and the white-owned networks that it carries) be required to compete with Plaintiff’s networks, which are black-owned.

The United States Supreme Court’s decision will determine whether a plaintiff who alleges race discrimination pursuant to 42 USC 1981 may have his or her day in court if he or she can show that racial discrimination was a factor, even among others, in a defendant’s refusal to do business. If so, the plaintiff will be able to move forward through the legal process — and most importantly, through the discovery process — to investigate his or her claim and obtain the evidence necessary (if it exists) to put the question before a jury.

On the other hand, if the Court rules instead that a plaintiff must allege that, but for racial discrimination, the defendant would have contracted with him or her, a plaintiff looking to have his or her day in court will need much stronger evidence, and will be required to disprove any other reason given by the defendant for its refusal to contract without the benefit of discovery.

For example, if a defendant denies discrimination and instead says that it refused to contract because of limited resources without the benefit of discovery, the plaintiff may never learn that the defendant doubled its spending with white-owned companies within that same time period. To the contrary, this is information that the plaintiff might learn through the discovery process if his or her case is allowed to proceed.

This case, like so many other recent cases, will test the Supreme Court’s interpretation of the strength of civil rights law.

Falen O. Cox is the founding partner and director of operations at the Savannah, Ga.-based law firm of Cox, Rodman and Middleton.

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IN MEMORIAM: Beloved ‘Good Times’ Star and Emmy-Nominated Actor, John Amos, Dies at 84

NNPA NEWSWIRE — Amos’ acting career spanned over five decades, with his most iconic role being that of James Evans Sr., the no-nonsense, hard-working father on the groundbreaking CBS sitcom “Good Times” (1974–1979). The show, which was the first sitcom to center on an African American family, became a cultural touchstone, and Amos’ portrayal of James Evans Sr. made him a symbol of strength and dignity for countless viewers.

Published

4 weeks ago

October 6, 2024

Oakland Post

March 10, 2011 - Actor/Producer John Amos in a publicity photo for, “Their Voices, Their Stories: African American Veterans Who Served on Iwo Jima.” Catherine Farmer, National Archives.

By Stacy M. Brown
NNPA Newswire Senior National Correspondent

John Amos, the Emmy-nominated actor and pioneering television star who brought to life some of the most beloved characters in entertainment history, has died. He was 84. His son, K.C. Amos, confirmed in a statement that Amos passed away more than a month ago, on Aug. 21, in Los Angeles of natural causes. The younger Amos didn’t say why he kept his father’s death under wraps for more than a month.

“It is with heartfelt sadness that I share with you that my father has transitioned,” K.C. said. “He was a man with the kindest heart and a heart of gold… and he was loved the world over. Many fans consider him their TV father. He lived a good life. His legacy will live on in his outstanding works in television and film as an actor.”

Amos’ acting career spanned over five decades, with his most iconic role being that of James Evans Sr., the no-nonsense, hard-working father on the groundbreaking CBS sitcom “Good Times” (1974–1979). The show, which was the first sitcom to center on an African American family, became a cultural touchstone, and Amos’ portrayal of James Evans Sr. made him a symbol of strength and dignity for countless viewers.

However, his time on the series was cut short after three seasons due to creative differences with the show’s producers. Amos famously clashed with the show’s direction, objecting to what he saw as the stereotypical portrayal of his on-screen son, J.J., played by Jimmie Walker.

“We had a number of differences,” Amos recalled in later interviews, according to the Hollywood Reporter. “I felt too much emphasis was being put on J.J. in his chicken hat, saying ‘Dy-no-mite!’ every third page.” Amos’ insistence on portraying a more balanced, positive image of the Black family on television led to his departure from the show in 1976, when his character was written out in a dramatic two-part episode.

Born John Allen Amos Jr. on Dec. 27, 1939, in Newark, New Jersey, Amos began his professional life with dreams of playing football. He played the sport at Colorado State University and had brief stints with teams like the Denver Broncos and Kansas City Chiefs. But after a series of injuries and cutbacks, Amos transitioned to entertainment, beginning his career as a writer and performer.

Amos got his first major acting break as Gordy Howard, the good-natured weatherman on “The Mary Tyler Moore Show,” appearing on the iconic series from 1970 to 1973. He would go on to write and perform sketches on “The Leslie Uggams Show” and later landed roles in various television series and films.

In 1977, Amos received an Emmy nomination for his powerful portrayal of the adult Kunta Kinte in the landmark ABC miniseries “Roots,” a role that solidified his status as one of television’s most respected actors. Amos’ performance in “Roots”, one of the most watched and culturally significant TV events of all time, remains one of his most enduring achievements.

In addition to his success on television, Amos made his mark in films. He appeared in Melvin Van Peebles’ groundbreaking blaxploitation film “Sweet Sweetback’s Baadasssss Song” (1971) and “The World’s Greatest Athlete” (1973). He was widely recognized for his role in “Coming to America” (1988), where he played Cleo McDowell, the owner of McDowell’s, a fast-food restaurant parody of McDonald’s. Amos reprised the role over three decades later in “Coming to America 2” (2021).

His filmography also includes the Sidney Poitier and Bill Cosby classic “Let’s Do It Again” (1975), “The Beastmaster” (1982), “Die Hard 2” (1990), “Ricochet” (1991), “Mac” (1992), “For Better or Worse” (1995), “The Players Club” (1998), “Night Trap” (1993), and “Because of Charley” (2021).

Amos was also a familiar face on television throughout the 1980s, 1990s, and 2000s, with recurring roles in shows like “The West Wing” as Admiral Percy Fitzwallace, chairman of the Joint Chiefs of Staff, and “The Fresh Prince of Bel-Air” as Will Smith’s stepfather. He appeared in “The District,” “Men in Trees,” “All About the Andersons” (as Anthony Anderson’s father), and the Netflix series “The Ranch.”

Beyond acting, Amos had a passion for writing and performing in theater. In the 1990s, when he found it challenging to secure roles in Hollywood, he wrote and starred in the one-person play “Halley’s Comet,” about an 87-year-old man waiting in the woods for the comet’s arrival. He toured with the production for over 20 years, performing in cities across the United States and abroad.

In addition to his onscreen and stage accomplishments, Amos co-produced the documentary “America’s Dad,” which explored his life and career. He was also involved in Broadway, appearing in Carl Reiner’s “Tough to Get Help” production in 1972.

John Amos’ life and career were not without personal challenges. In recent years, he was embroiled in a public legal battle between his children, K.C. and Shannon, over accusations of elder abuse.

This unfortunate chapter cast a shadow over his later years. However, his legacy as a beloved television father and one of Hollywood’s pioneering Black actors remains untarnished.

Both K.C. and Shannon, children from his first marriage to artist Noel “Noni” Mickelson and his ex-wife, actress Lillian Lehman, survive Amos.

Photo of the Evans family from the television program “Good Times.” From left: Ralph Carter (Michael), BernNadette Stanis (Thelma), Jimmie Walker (J.J.), Esther Rolle (Florida), John Amos (James).

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Reading and Moving: Great Ways to Help Children Grow

NNPA NEWSWIRE — In these formative years, your little one will learn to walk, learn how to grab and hold items, begin building their muscle strength, and more. Here are some ways to facilitate positive motor development at home:

Published

2 months ago

September 9, 2024

Oakland Post

Council for Professional Recognition

Before a child even steps into a classroom or childcare center, their first life lessons occur within the walls of their home. During their formative years, from birth to age five, children undergo significant cognitive, motor, and behavioral development. As their primary guides and first teachers, parents, and guardians play a pivotal role in fostering these crucial aspects of growth.

The Council for Professional Recognition, a nonprofit, is dedicated to supporting parents and families in navigating questions about childcare and education training. In keeping with its goal of meeting the growing need for qualified early childcare and education staff, the Council administers the Child Development Associate (CDA). The CDA program is designed to assess and credential early childhood education professionals. This work gives the Council great insights into child development.

Cognitive Development: Building the Foundation of Learning

Cognitive development lays the groundwork for a child’s ability to learn, think, reason, and solve problems.

Read Together: One of the most powerful tools for cognitive development is reading. It introduces children to language, expands their vocabulary, and sparks imagination. Make reading a daily ritual by choosing age-appropriate books that capture their interest.
Play Together: Play is a child’s entry to the physical, social, and affective worlds. It’s a critical and necessary tool in the positive cognitive development of young children and is directly linked to long-term academic success.
Dance and Sing Together: These types of activities help young children develop spatial awareness and lead to improved communication skills. As a bonus, it’s also helpful for improving gross motor skills.
Invite your Child to Help you in the Kitchen: It’s a fun activity to do together and helps establish a basic understanding of math and lifelong healthy eating practices.
Encourage Questions: As children find their voice, they also find their curiosity for the world around them; persuade them to ask questions and then patiently provide answers.

Motor Development: Mastering Movement Skills

Motor development involves the refinement of both gross and fine motor skills, which are essential for physical coordination and independence. In these formative years, your little one will learn to walk, learn how to grab and hold items, begin building their muscle strength, and more. Here are some ways to facilitate positive motor development at home:

Tummy Time: Starting from infancy, incorporate daily tummy time sessions to strengthen neck and upper body muscles, promoting eventual crawling and walking. You can elevate the tummy time experience by:
- Giving children lots of open-ended toys to explore like nesting bowls, a pail and shovel, building blocks, wooden animals, and people figures.
- Hanging artwork on the wall that appeals to infants, including bold colors, clear designs, and art from various cultures.
- Providing mobiles that children can move safely and observe shapes and colors.
Outdoor Play: Provide opportunities for outdoor play, whether it’s at a park, playground, or in a backyard. Activities such as running, jumping, climbing, and swinging enhance gross motor skills while allowing children to connect with nature. Also, try gardening together! Not only does gardening promote motor skill development, but it offers many other benefits for young children including stress management, cognitive and emotional development, sensory development, and increased interest in math, sciences, and healthy eating.
Fine Motor Activities: Fine motor skills relate to movement of the hands and upper body, as well as vision. Activities that encourage hand-eye coordination and fine motor skill development include:
- Drawing and coloring
- Doing puzzles, with size and piece amounts dependent on the age of the child
- Dropping items or threading age-appropriate beads on strings
- Stacking toys
- Shaking maracas
- Using age-appropriate, blunt scissors
- Playing with puppets or playdough

This is the type of knowledge that early childhood educators who’ve earned a Child Development Associate credential exhibit as they foster the social, emotional, physical, and cognitive growth of young children.

Supporting Early Childhood Educators

Recently, a decision in Delaware has helped early childhood professionals further their efforts to apply this type of knowledge. Delaware State University, Delaware Technical Community College, and Wilmington University have signed agreements to award 12 credits for current and incoming students who hold the Child Development Associate credential.

Delaware Governor John Carney said, “I applaud the Department of Education and our higher education partners for this agreement, which will support our early childhood educators. Research shows how important early childhood education is to a child’s future success. This new agreement will help individuals earn their degrees and more quickly get into classrooms to do the important work of teaching our youngest learners in Delaware.”

Council for Professional Recognition CEO Calvin E. Moore, Jr., said his organization is honored to be a part of this partnership.

“Delaware and the work of these institutions is a model that other states should look to. This initiative strengthens the early childhood education workforce by accelerating the graduation of more credentialed educators, addressing the critical need for qualified educators in early childhood education. We have already seen the impact the work of the Early Childhood Innovation Center has brought to the children of Delaware.”

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Student Loan Debt Drops $10 Billion Due to Biden Administration Forgiveness

NNPA NEWSWIRE — The Center for American Progress estimates the interest waiver provisions would deliver relief to roughly 6 million Black borrowers, or 23 percent of the estimated number of borrowers receiving relief, as well as 4 million Hispanic or Latino borrowers (16 percent) and 13.5 million white borrowers (53 percent).

Published

2 months ago

September 9, 2024

Charlene Crowell NNPA Newswire Columnist

New Education Department Rules hold hope for 30 million more borrowers

By Charlene Crowell, The Center for Responsible Lending

As consumers struggle to cope with mounting debt, a new economic report from the Federal Reserve Bank of New York includes an unprecedented glimmer of hope. Although debt for mortgages, credit cards, auto loans and more increased by billions of dollars in the second quarter of 2024, student loan debt decreased by $10 billion.

According to the New York Fed, borrowers ages 40-49 and ages 18-29 benefitted the most from the reduction in student loan debt.

In a separate and recent independent finding, 57 percent of Black Americans hold more than $25,000 in student loan debt compared to 47 percent of Americans overall, according to The Motley Fool’s analysis of student debt by geography, age and race. Black women have an average of $41,466 in undergraduate student loan debt one year after graduation, more than any other group and $10,000 more than men.

This same analysis found that Washington, DC residents carried the highest average federal student loan debt balance, with $54,146 outstanding per borrower. Americans holding high levels of student debt lived in many of the nation’s most populous states – including California, Texas, and Florida.

The Fed’s recent finding may be connected to actions taken by the Biden administration to rein in unsustainable debt held by people who sought higher education as a way to secure a better quality of life. This decline is even more noteworthy in light of a series of legal roadblocks to loan forgiveness. In response to these legal challenges, the Education Department on August 1 began emailing all borrowers of an approaching August 30 deadline to contact their loan servicer to decline future financial relief. Borrowers preferring to be considered for future relief proposed by pending departmental regulations should not respond.

If approved as drafted, the new rules would benefit over 30 million borrowers, including those who have already been approved for debt cancellation over the past three years.

“These latest steps will mark the next milestone in our efforts to help millions of borrowers who’ve been buried under a mountain of student loan interest, or who took on debt to pay for college programs that left them worse off financially, those who have been paying their loans for twenty or more years, and many others,” said U.S. Secretary of Education Miguel Cardona.

The draft rules would benefit borrowers with either partial or full forgiveness in the following categories:

Borrowers who owe more now than they did at the start of repayment. This category is expected to largely benefit nearly 23 million borrowers, the majority of whom are Pell Grant recipients.
Borrowers who have been in repayment for decades. Borrowers of both undergraduate and graduate loans who began repayment on or before July 1, 2000 would qualify for relief in this category.
Borrowers who are otherwise eligible for loan forgiveness but have not yet applied. If a borrower hasn’t successfully enrolled in an income-driven repayment (IDR) plan but would be eligible for immediate forgiveness, they would be eligible for relief. Borrowers who would be eligible for closed school discharge or other types of forgiveness opportunities but haven’t successfully applied would also be eligible for this relief.
Borrowers who enrolled in low-financial value programs. If a borrower attended an institution that failed to provide sufficient financial value, or that failed one of the Department’s accountability standards for institutions, those borrowers would also be eligible for debt relief.

Most importantly, if the rules become approved as drafted, no related application or actions would be required from eligible borrowers — so long as they did not opt out of the relief by the August 30 deadline.

“The regulations would deliver on unfulfilled promises made by the federal government to student loan borrowers over decades and offer remedies for a dysfunctional system that has often created a financial burden, rather than economic mobility, for student borrowers pursuing a better future,” stated the Center for American Progress in an August 7 web article. “Meanwhile, the Biden-Harris administration also introduced income limits and caps on relief to ensure the borrowers who can afford to pay the full amount of their debts do so.”

“The Center for American Progress estimates the interest waiver provisions would deliver relief to roughly 6 million Black borrowers, or 23 percent of the estimated number of borrowers receiving relief, as well as 4 million Hispanic or Latino borrowers (16 percent) and 13.5 million white borrowers (53 percent).”

These pending regulations would further expand the $168.5 billion in financial relief that the Biden Administration has already provided to borrowers:

$69.2 billion for 946,000 borrowers through fixes to Public Service Loan Forgiveness (PSLF).
$51 billion for more than 1 million borrowers through administrative adjustments to IDR payment counts. These adjustments have brought borrowers closer to forgiveness and addressed longstanding concerns with the misuse of forbearance by loan servicers.
$28.7 billion for more than 1.6 million borrowers who were cheated by their schools, saw their institutions precipitously close, or are covered by related court settlements.
$14.1 billion for more than 548,000 borrowers with a total and permanent disability.
$5.5 billion for 414,000 borrowers through the SAVE Plan.

More information for borrowers about this debt relief is available at StudentAid.gov/debt-relief.

Charlene Crowell is a senior fellow with the Center for Responsible Lending. She can be reached at Charlene.crowell@responsiblelending.org.