The Appellate Section has primary responsibility for handling civil rights cases in the courts of appeals and, in cooperation with the Solicitor General, in the Supreme Court. The Section also provides legal counsel to other components of the Department of Justice regarding civil rights law and appellate litigation.

Most of the Section's appeals are from district court judgments in cases originally handled by trial sections within the Division. The appellate caseload is both affirmative and defensive. Thus, the Section handles all appeals from both favorable and adverse judgments in which the government participates.

A significant proportion of the Section's work involves participation as amicus curiae (friend of the court) in cases that have the potential for affecting Division enforcement responsibilities. In this capacity, the Appellate Section closely monitors federal court cases to which the United States is not a party. In many of these cases, especially those concerned with developing or problematic areas of civil rights law, the Section uses the federal government's authority to file an amicus curiae brief to register the government's position.

The following are summaries of cases in the Supreme Court and Courts of Appeals in which the Section recently participated on behalf of the United States as a party or amicus curiae.

In the Supreme Court:

Meyer v. Holley, 01-1120. This is an action under Fair Housing Act. Plaintiffs sought to hold the president, sole shareholder, and licensed "officer/broker," of a real estate firm liable for the discriminatory actions of a real estate agent. The Supreme Court unanimously held, consistent with the position of the United States as amicus curiae, that the FHA imposes liability without fault upon the employer in accordance with traditional agency principles, i.e., it normally imposes vicarious liability upon the corporation but not upon its officers or owners. Consistent with these principles, the Court noted that the court of appeals on remand may consider (1) whether state law rules governing the relationship between a real estate broker and a salesperson create an agency relationship; and (2) whether plaintiffs sufficiently alleged that the defendant could be held vicariously liable as an agent of the salesperson under a veil-piercing theory.

City of Cuyahoga Falls v. Buckeye Community Hope Foundation, No. 01-1269. Buckeye brought this action alleging violations of the Fair Housing Act, the equal protection clause, and due process, after the City denied it a building permit for low-income housing, as a result of a referendum opposing construction of the housing. The Supreme Court unanimously reversed the Sixth Circuit's decision finding genuine issues of fact to preclude summary judgment for the City. Agreeing with the government's position as amicus curiae, the Court concluded that Buckeye had not offered any evidence to show that private motives behind the referendum could be attributable to the State and, consequently, Buckeye failed to show the requisite intentional discrimination for its FHA and equal protection claims. The Court also held that Buckeye's substantive due process claim lacked merit because the City's referendum process did not constitute arbitrary government conduct, and vacated the portion of the Sixth Circuit's decision concerning Buckeye's disparate FHA impact claim, which Buckeye had abandoned.

Branch v. Smith, Nos. 01-1437, 01-1596. This case arises out of the State of Mississippi's failure to adopt a redistricting plan for congressional elections after it lost one seat in the U.S. House of Representatives following the 2000 census. A federal three-judge court issued its own redistricting plan when it determined that a plan developed by a state court required preclearance under Section 5 of the Voting Rights Act, which was not obtained in time for implementation for the upcoming congressional elections in November, 2002. The Supreme Court affirmed. The Court agreed with the Government that the federal court properly issued its own plan because the state court plan was not precleared. The Court held that the Department's request for additional information was not frivolous or unwarranted and, therefore, tolled the 60 day statutory period for ruling on submissions. Consistent with the Government's position, the Court also held that the district court properly issued its own redistricting plan rather than ordering that the federal elections be held at large.

Commonwealth of Virginia v. Black, No. 01-1107. This case involves the constitutionality of a Virginia statute that makes it a criminal offense to burn a cross with the intent of intimidating any person or group of persons, and provides that the burning of a cross is prima facie evidence of the intent to intimidate. The Supreme Court of Virginia held the statute facially unconstitutional. The United States Supreme Court affirmed in part and vacated in part. Consistent with the position of the United States as amicus curiae, six members held, in four separate opinions, that a State may, consistent with the First Amendment, ban cross burning carried out with the intent to intimidate. A separate majority concluded, in four opinions, that the provision in the Virginia statute treating any cross burning as prima facie evidence of intent to intimidate was unconstitutional, at least as applied in one of the cases below. The United States did not address the validity of the prima facie provision.

Grutter v. Bollinger, No. 02-241, and Gratz v. Bollinger, No. 02-516. The United States achieved mixed results in these cases challenging the constitutionality of affirmative action in higher education. In Grutter, the Court held that the University of Michigan Law School's race and ethnic-conscious admissions program, designed to admit a "critical mass of preferred minority students," is constitutional because the Law School's interest in obtaining the educational benefits that flow from a diverse student body is compelling and its use of race was narrowly tailored. In Gratz, the Court held that the University of Michigan's race and ethnic- conscious admissions program was not narrowly tailored because it failed to provide an individualized selection process as a result of its awarding a predetermined number of points for specific qualities regardless of the nature of the applicant and the extent of the specific talents. The Court also pointed out that the automatic distribution of 20 points on account of an applicant's membership in certain racial groups had the effect of making race a decisive factor for virtually every minimally-qualified underrepresented minority applicant. The United States argued, as amicus curiae, that both the law school and the undergraduate admissions programs should be held unconstitutional because they were not narrowly tailored.

Follow this link to the Office of the Solicitor General for briefs filed in the Supreme Court.

In the Courts of Appeals:

Downing v. Board of Trustees of the University of Alabama at Birmingham, No. 00-10481. Agreeing with the United States, the Eleventh Circuit upheld the constitutionality of Title VII and its anti-retaliation provision as applied to a same-sex harassment case. The Court held that Title VII simply codifies the Constitution's prohibition against sex discrimination which, the Court held, includes a prohibition against same-sex sexual harassment. The anti-retaliation provision effectuates that constitutional right by removing a potential impediment to injured employees' making and litigating claims of sexual harassment under Title VII.

Peters v. School Board of the City of Virginia Beach, No. 01-2413. Agreeing with the United States' argument as amicus curiae, the Fourth Circuit held that Title VI of the Civil Rights Act of 1964 prohibits retaliation and thus individuals may bring a suit in federal court under Title VI seeking damages against those entities that intentionally retaliate against them for opposing race discrimination.

ProEnglish, et al. v. Bush, et al., No. 02-2044. This lawsuit was filed on behalf of ProEnglish, a national English-only advocacy group, the group's executive director, and several physicians who receive financial assistance from the Department of Health and Human Services (HHS). The plaintiffs challenged the constitutionality of Executive Order 13,166 and various policy guidance documents drafted by the Department of Justice and HHS clarifying the obligation of those agencies' grant recipients to provide language assistance to ensure meaningful access of programs and activities by persons who are limited in English proficiency to avoid discrimination on the basis of national origin in violation of Title VI and that statute's implementing regulations. The district court dismissed the complaint on standing and ripeness grounds, and the Fourth Circuit affirmed.

Bronx Household of Faith v. Board of Education of the City of New York, No. 02-7781. Bronx Household sought to rent public school property for its weekly worship meetings pursuant to the school's community use policy. The school district denied access, asserting that its regulations do not permit "worship" services on school property. In granting Bronx Household's motion for a preliminary injunction, the district court held that the school engaged in viewpoint discrimination since Bronx Household's meetings met the neutral criteria for permissible activities. The Division argued as amicus curiae that the inclusion of religious elements in the meetings does not prevent Bronx Household's conformance to the criteria for access to school property and that allowing Bronx Household to rent school property does not violate the Establishment Clause since access would be granted on content-neutral grounds to religious and non-religious organizations. The Second Circuit affirmed, holding that in light of the Supreme Court's opinion in Good News Club, Bronx Household is substantially likely to prevail on the merits.

United States v. Mohr, No. 01-5002. The Fourth Circuit affirmed the conviction of Stephanie Mohr, a former Prince George's County police officer. Mohr was convicted of violating 18 U.S.C. 242 by using unreasonable force against a homeless man who had surrendered to police. She had her police dog attack the man, causing him serious injury, even though he obeyed police commands, never attempted to flee, and never presented a danger to the police or public. The Fourth Circuit held that the district court did not abuse its discretion in: (1) admitting evidence under Fed. R. Evid. 404(b) of two other incidents in which Mohr intentionally misused her police dog by attacking or threatening individuals who were not resisting and posed no threat; (2) allowing an expert to testify that Mohr's version of what occurred during the incident was not in accord with prevailing police practices; and (3) admitting a witness's prior consistent statement and allowing him to testify that his motivation for making the statement was his fear of failing a polygraph examination.

United States v. Rayborn, No. 01-5632. Rayborn was charged with two counts of mail fraud and one count of arson in violation of 18 U.S.C. 844(i), in connection with the burning of the New Mount Sinai Missionary Baptist Church. The district court dismissed the Section 844(i) count, ruling that the church was not a building used in an activity affecting interstate commerce, as required by the statute. The United States appealed, and the Sixth Circuit reversed. The court of appeals concluded that a rational jury could find that the church was actively employed in commercial activities with an effect on interstate commerce, including weekly collection of contributions from members residing in several states, broadcast of its services and advertising on interstate radio stations, sponsorship of gospel concerts for which donations were accepted and which featured out-of-state singers, payment of employees, and purchase of goods in interstate commerce to provide services to members and the public.

Murphy v. Arlington Central School District, No. 00-7358. This case involves the "stay-put" provisions of the Individuals with Disabilities Education Act (IDEA), which states that while there is a challenge going on to a proposed placement, the child must stay in the last proper placement, or the last placement that the parents and school system agreed was proper. The Second Circuit held that once a state hearing officer issues a decision in a due process hearing in favor of the student, the placement the hearing officer orders becomes the placement that the parents and school system have agreed upon for purposes of future application of the "stay-put" provision. The court also held that students need not exhaust administrative remedies when relying on the stay put provisions. The Division and the Department of Education filed a joint amicus brief asserting the positions the court of appeal adopted.

Girty v. School District of Valley Grove, No. 01-3934. This is a case brought pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. 1400-1419. A state hearing officer found that the individualized education program (IEP) developed for the child would not educate the child in the least restrictive environment. A state appeals panel reversed this finding and the parents sought review in federal district court, which held that the proposed IEP would not educate the child in the least restrictive environment and remanded the case for the school district to reconsider the IEP. The school district appealed this decision to the Third Circuit. The Division filed an amicus brief in support of the parents, arguing that the appeals panel used an incorrect legal standard when it reversed the hearing officer, that the district court decision is not clearly erroneous, and that the relief entered by the district court is proper. The Third Circuit affirmed, "substantially for the reasons set forth in the district court's thoughtful Memorandum Opinion."