2020 Grantees Submit Results of Grant Funded Cases
The Barbara McDowell Foundation maintains communications with its grantees to monitor the status of its grants. As the cases which the Foundation funds sometimes do not resolve in the one-year grant period, the Foundation also annually contacts previous grantees to receive updates on their cases .
The Foundation recently received the following updates from its 2020 Grantees, whose grant period ran from October 1, 2019, to September 30, 2020, on their grant-funded cases.
Fair Elections Center
The case challenges Kentucky’s arbitrary process for voting rights restoration for felons. The lawsuit was filed on behalf of eight former felons. Kentucky is one of three states that deny the right to vote to all former felons until they petition for rights restoration.
On April 19, 2021, the United States District Court for the Eastern District of Kentucky denied the plaintiff’s motion for reconsideration of the earlier judgment dismissing the case (Harbin v. Bevin) as moot.
The plaintiffs (Fair Elections Center and their partners) still believe this decision is incorrect, so they appealed to the United States Court of Appeals for the Sixth Circuit on May 4, 2021. The appeal asks the Court to find that the case is not moot and that the District Court erred by deciding the merits of the case while dismissing the case as moot. Fair Elections Center and their partners expect to receive a decision from the appellate court once the issue has been fully briefed by both parties.
National Center for Law and Economic Justice ("NCLEJ")
A class action suit entitled McCullough v. City of Montgomery was filed challenging a series of interwoven policies and practices of the City of Montgomery, Alabama designed to increase municipal budgets at the expense of low-income people of color by repeatedly ticketing them, subjecting them to coercive private “probation” schemes, jailing them when they lacked the ability to pay, and then forcing them to work while jailed to pay off their debt.
The district court ruled in July 2020 that the case could proceed to trial on claims for damages for violations of federal constitutional due process, equal protection rights, and state tort law prohibiting false imprisonment and abuse of process. Since July 2020, NCLEJ and their partners have focused on obtaining class certification and are awaiting decision on their second appeal of a denial of class certification.
National Veterans Legal Services Program (“NVLSP”)
Springs v. Braithwaite, was filed along with pro bono counsel from the Dechert law firm on November 20, 2020.
The suit alleges that the Navy failed to provide ratings for Category II disability conditions resulting in the improper denial of medical retirement to thousands of Navy and Marine Corps servicemembers. The government filed an answer on February 9, 2021, in which they conceded that they did not rate Category II conditions. At that time, the name of the case changed to Springs v. Harker, to reflect a new Acting Secretary of the Navy. The government filed the amended administrative record on May 27, 2021. On June 15, 2021, NVLSP and co-counsel filed a motion for class certification. NVLSP expects a full briefing on the motion for class certification in the coming months. Following a decision on that motion, they anticipate cross motions for summary judgment.
National Women’s Law Center (“NWLC”)
NWLC received support for two lawsuits Equal Rights Advocates v. DeVos and Victim Rights Law Center v. DeVos.
The NWLC’s case, Equal Rights Advocates v. DeVos, brought with co-counsel from Democracy Forward and filed in the Northern District of California in 2018, challenged an interim Guidance issued in 2017 by the Department of Education that required schools to implement mandates for survivors of sexual harassment with respect to reporting incidents of sexual harassment. This interim Guidance was followed with a Notice of Proposed Rulemaking in November 2018, which sought to codify many of the aspects of the interim guidance and added new provisions, including requiring schools to dismiss many allegations of sexual harassment absent any investigation whatsoever. The final Title IX regulations incorporating these provisions were issued on May 6, 2020, with an effective date of August 14, 2020.
The NWLC also filed Victim Rights Law Center v. DeVos in early June 2020 in the District of Massachusetts with co-counsel Morrison and Foerster and Diane Rosenfeld of Harvard Law School which challenges the Department’s final Title IX regulations on sexual harassment, arguing that the regulations and the process by which they were issued violate the Administrative Procedures Act and constitute sex discrimination in violation of the Constitution.
In November 2019, the district court granted summary judgment to the Department of Education in Equal Right Advocates, based on its conclusion that the interim guidance did not constitute final agency action. NWLC appealed this decision to the Ninth Circuit and the parties agreed to a consent motion to stay the appellate proceedings. This consent motion was granted by the Ninth Circuit.
In Victim Rights Law Center, the NWLC filed an amended complaint in July 2020 adding seven student survivors of sexual harassment as plaintiffs, who face educational, psychological, and emotional harm if the new regulations go into effect. NWLC also moved for a preliminary injunction staying the effective date of the regulations, which was argued on September 2, 2020. Rather than ruling on the motion for preliminary injunction, the district court judge consolidated the preliminary injunction motion with a bench trial on the merits, which went forward on November 12, 2020. During the bench trial, the judge expressed concerns that the Department of Education rule would potentially prohibit schools from considering a wide range of relevant evidence in determining responsibility for sexual harassment. Since November 2020, the NWLC has been awaiting a decision on the merits from the district court.
On March 8, 2021, President Biden issued an Executive Order instructing the Department of Education to initiate a review of the Title IX rule for consistency with law and administration policy and to consider suspension, revision, or rescission of its prior rule. In June 2021, the Department of Education held a week of virtual hearings to hear feedback from stakeholders regarding the rule. The most recent Unified Regulatory Agenda does not anticipate that a new proposed rule will be put forward until May 2022 at the earliest.