RebKell's Junkie Boards

[pilight]

http://sports.yahoo.com/ncaaw/news;_ylc=X3oDMTBpY3E1NTBnBF9TAzk1ODYyMzQ4BHNlYwN0aA--?slug=ap-pennstate-biasclaim&prov=ap&type=lgns

_________________
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I ain't got a home

[Carol Anne]

[00NDROCKS]

[womens_hoops]

there are multiple causes of action -- about 25, in fact. some are based on racial discrimination. some are based on gender discrimination. some are based on orientation discrimination. and some are based on legal theories that have nothing to do with discrimination.

it's about a lot of things, in other words.

[bballjunkee212]

Yeah, it's customary to throw every allegation you can think of into a complaint like this- litigants are required by rule to state all possible claims you may have against the defendant in one lawsuit- you can't sue for one thing, litigate, then turn around and sue for something else- you hafta put all your eggs in one basket. Besides, you never know which claim will end up being the one that sticks.

I only skimmed the complaint, but it seems to me that every count is based on the same core of facts, which we here already are familiar with. I would say that most of the counts are throw-aways. I will be interested to see how the Title IX claim fares, as well as the ones for breach of contract and violation of school policy.

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~Bill

[womens_hoops]

i agree that many/most of the counts are throw-aways.

for example, they make a substantive due process/privacy claim under both state and fed constitutions. it looks like something based on Lawrence. that really has no chance.

they also argue that Rene's public response to the claims constituted not only defamation but also First Amendment retaliation under Pickering. that too is a real stretch.

i'm no torts expert, but most of the various privacy torts claims look shady too.

the various gender discrimination counts still seem like the most likely to survive. the breach of contract thing is interesting -- NCLR claims that Jen's scholarship agreement incorporated PSU's antidiscrimination policy, and so by violating that policy, the school and Rene also breached the contract. it's very hard to know what to make of that without seeing the wording of the scholarship agreement, but that one might have some teeth.

don't know what to say about the racial discrimination. there is no allegation of overt animus or anything of the sort. mostly it's just: rene was more likely to enforce her anti-gay and anti-butch norms against black players. that will require some response, and it would probably at least survive 12(b)(6), but it still seems like a long shot.

all in all... i would guess that a whole bunch of the counts will probably be dismissed early on. but not all of them. i think NCLR has alleged enough facts to at least move forward.

a jury trial still seems terribly unlikely to me. but i'm not sure Rene will be able to avoid it just with 12(b)(6) and summary judgment motions.

[bballjunkee212]

Yes, there will be a series of 12(b)(6) motions.

Brief primer here: The courts can grant relief only for certain specified things- there are a lot of them, but only those things, which we call "claims" and which are stated in the complaint as "counts". A 12(b)(6) motion is a motion by the defendant designed to dismiss counts because they fail to state a claim that the court can grant relief on. Such motions do not consider the substance of the accusations. Rather, they only look to see if the claim is one of those specified that the court can grant relief on. If so, it's in. If not, it's out.

So there will be 12(b)(6) motions until the Complaint is whittled down from the political document that it is now to a legal statement of the claims and the basis for those claims. This will take a while- don't expect this case to get resolved any time soon.

However, the motion for summary judgment is a different matter. Motions for summary judgment ask the court to decide whether whether there are any facts for the jury to decide. If so, the case goes to trial. If not, the court can rule on the case right then and there. (This grossly simplifies the matter, but we're not all lawyers.)

The thing is, federal courts are hostile to discrimination suits. Why is this so, you may ask, when the federal laws provide so much anti-discriminatory protection? Because lawmakers, who must be elected, write laws which people like. And because judges, who are appointed for life, are highly educated, upper middle class, politically conservative, mostly white, mostly male members of the mainstream who do not fully believe that discrimination happens any more. If the court can conceivably knock Harris's lawsuit out on summary judgment, it will happen.

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~Bill

[womens_hoops]

but one of the key points is: even on summary judgment, the court must view all of the facts in the light most favorable to the plaintiff. This appears to be a "she said-she said" case. So if it comes to summary judgment, and Jen submits an affidavit saying "Rene said x", and Rene submits an affidavit saying "No I didn't," the court must assume that Jen is telling the truth and Rene is lying.

[kinkitola]

in the article it says Portland is not being represented by PSU's attorneys, is that common practice?

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mama can't help your jumpshot

[bballjunkee212]

<<

[Admiral_Needa]

Very interesting commentary bballjunkee. Looks like you're the real expert on law here. No doubt this board will need your experience as more info come to light in this case.

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[hooper1]

At the least, this is going to be incredibly expensive for Portland and the university. They have to respond to all of these allegations.

[Alepp03]

Having just taken a law class, and spent about 2 weeks on summary judgement, I am just going to give the thumbs up to what bballjunkee said regarding the summary judgement.

If Rene and Jen differ on the material (crucial) facts of their stories, we will be seeing a trial. Summary Judgements can be made when the two sides of the case are in agreement of the material facts, and further testimony would merely be a regeneration of the facts already agreed upon.

Again, to reiterate, bballjunkee is correct, and his numbers are pretty accurate. If this goes to Summary Judgement, expect it to be thrown out, or some sort of slap on the wrist. This is because of a lot of the reasons mentioned in terms of the demographics of judges, and also the general perception that the institution or employer is innocent without cold hard facts proving otherwise. I don't seen Rene agreeing to facts that would make her look guilty, thus Summary Judgement does not look like a good option in this case.

Harris's side will be looking to take this to trial and to crush Portland making a clear and defined statement that this is not to be tolerated.

Portland's side will act confused as to why this is even an issue and play eternally ignorant to the entire problem.

_________________
In a world full of people only some want to fly, isn't that crazy?

[womens_hoops]

[womens_hoops]

Here is one of the better recent empirical analyses of the disposition of civil cases. It isn't limited to Title VII or other discrimination suits, but it is still instructive.

http://law.bepress.com/cgi/viewcontent.cgi?article=1011&context=usclwps

The number of cases that proceed to an actual jury (or bench) verdict is very small. But summary judgment and 12(b)(6) are only part of that -- and they make up far less than 80% of dispositions. It's closer to 20%.

The biggest factor is, of course, settlement.

Which isn't terribly surprising. Defendants and their lawyers are pretty good at figuring out whether the case against them has merit. If it does, they settle. If it doesn't, they may seek dismissal through Rule 12 or summary judgment.

[womens_hoops]

[womens_hoops]

[dtsnms]

[Admiral_Needa]

It's with Roberta Flack and Donnie Hathaway.


If not, try asking DeLisha Milton's husband.

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2002 WNBA Virtual GM Overall Winner
2006 WNBA Triple Threat Overall Winner
2007 NBA ESPN Fast Break Overall Winner

[womens_hoops]

[dtsnms]

[CamrnCrz1974]

[Keegan]

[CamrnCrz1974]

Womens_hoops and BBall....generalizations about employment discrimination claims in the federal court system have some merit...depending on certain factors.

District of Arizona...likely to grant summary judgment motions on ED claims.
Ninth Circuit...likely to overturn those summary judgments.
And we all know what the Supreme Court thinks of the Ninth Circuit.

One other wrinkle to the burden-shifting analysis...Harris can also demonstrate the Price Waterhouse "mixed motives" situation. If Harris cannot fully demonstrate Portland's reason for dismissal was completely pretextual. she may be able to establish there were both legitimate and illegitimate reasons for her dismissal from the basketball team.

If the university is concerned about bad publicity, the case will settle. If not, the university will try to dismiss the case via Rule 56.

As for Rule 12(b)(6), this might come into play on the issue of sexual orientation. If the perceived discrimination is crouched in terms of gender roles and stereotypical notions thereof, then it will survive a motion to dismiss (again, similar to Price Waterhouse, which involved the notion of gender roles and conforming to stereotypical notions of that gender).

[womens_hoops]

yeah, cam, I'm not saying that we can never make generalizations. I think I agree with beeball that the courts, in general, are too willing to kick out discrimination (and lots of other kinds of) cases on SJ. (The reason, I think, has more to do with docket bulge and workload, but that's another story.) I just think that a generalization like "federal courts are hostile to discrimination suits" is coarse and misleading.

Most of my experience is with the Ninth, and it is anything but hostile to discrimination suits. The paradigmatic example -- and most relevant example for this case -- is Rene, where the Ninth went way out of its way to stretch Title VII to a place that Congress obviously never intended it to reach.

Of course, the Fourth Circuit is a lot different from the Ninth; Luttig is a lot different from Reinhardt. The Seventh and the Third are somewhere in the middle. But in Bibby, at least, the Third signaled some receptiveness to innovation along the lines of Rene.

More generally... I just grow tired of some of the generalization arguments. They are nothing more than masks for political strife.

Liberals say that the courts are too conservative because they are made up of mostly rich white men. Conservatives say that the courts are too liberal because the judges are all part of elitist cosmopolitan academic culture.

Criminal defense attorneys like me say that the courts are too biased toward the state and don't care at all about the rights of criminal defendants. Prosecutors say that the courts are too biased toward defendants and too willing to let guilty people free on technicalities.

Plaintiffs' lawyers like beeballjunkie say that the courts are to willing to dismiss civil lawsuits. Corporate lawyers and tort reformers say that the courts have expanded antidiscrimination and other laws far beyond their intent, and have created a flood of frivolous litigation as a result.

I just get tired of those kinds of arguments. There's no way to get traction in any of it.

I don't think we get anywhere without talking in more concrete terms -- without engaging specific arguments and identifying specific errors.

And let's be honest -- much as I don't like Rene, Jen Harris's legal claims are pretty borderline. If her case gets dismissed on summary judgment, it won't necessarily be because the courts are biased. It might just be because she isn't entitled to relief under the law.