New ACS Issue Brief Says Supreme Court Cases Are Narrowing
Access to Courts
Civil Rights Attorneys Urge Congress to Restore Pleading Standards
FOR IMMEDIATE RELEASE:
Sept. 17, 2010
CONTACT: Jeremy Leaming
202-393-6181
[email protected]
Washington, D.C. – Recent Supreme Court decisions have made it far more difficult for a
growing number of people to file lawsuits seeking vindication of their rights, two civil liberties
attorneys write in a new ACS Issue Brief. The authors urge congressional action to ease federal
pleading standards, saying the high court decisions are already prompting unnecessary dismissal
of too many cases.
Joshua Civin, an assistant counsel at the NAACP Legal Defense & Educational Fund, Inc.,
(LDF) and Debo P. Adegbile, associate director-counsel and director of litigation at LDF,
maintain that the Supreme Court has “skewed the balance away from access to the courts by
elevating the threshold standard that all plaintiffs must meet to pursue legal claims.” Two cases,
Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, have “without clear necessity overturned
well-settled law and imposed a more stringent standard for federal cases to survive.”
The decisions by “dramatically frontloading litigation and inviting judges to substitute their
threshold personal judgments in place of evidence, go far beyond the familiar „verdict first, trial
second‟ problem of which high-profile defendants complain,” they write in “Restoring Access to
Justice: The Impact of Iqbal and Twombly on Federal Civil Rights Litigation.”
These new pleading standards, which allow judges to shut down cases before reviewing much
evidence, the authors write, can have a profound impact for those individuals trying to prove
discrimination. The authors maintain that the Supreme Court has “usurped by judicial fiat the
deliberative and inclusive process that Congress has established ….”
“A powerful example,” they write, can be seen in “Swann v. Charlotte-Mecklenburg Board of
Education, a landmark school desegregation case litigated by LDF. In a rather remarkable
passage, the district court judge acknowledged that it was only through litigation that he had
come to appreciate the gravity of the discrimination that African-American school children
experienced: „The case was difficult. The first and greatest hurdle was the district court. The
judge, who was raised on a cotton farm which had been tended by slave labor in his
grandfather‟s time, started the case with the uniformed assumption that no active segregation was
being practiced in the Charlotte-Mecklenburg schools, that the aims of the suit were extreme and
unreasonable, and that a little bit of push was all the Constitution required of the court.‟
“Yet, after the plaintiffs presented reams of evidence to support their claims, „they produced a
reversal in the original attitude of the district court,‟ the authors write, citing the district court in
Swann.
Civin and Adegbile explain that when the Federal Rules of Civil Procedure were adopted in
1938, “they transformed civil litigation by establishing a liberal standard for what plaintiffs must
plead in their complaints to initiate a federal lawsuit and withstand a motion to dismiss.”
Specifically, the two note that Rule 8(a)(2) “requires only that a plaintiff‟s complaint include „a
short and plain statement of the claim showing that the pleader is entitled to relief.‟”
But with Twombly and Iqbal, the high court has opened a new era in which judges can dismiss
cases “at first glance, without the benefit of any discovery or meaningful fact-finding.”
“This outcome,” the Issue Brief states, “is fundamentally at odds with Congress‟s intent to
provide effective enforcement of our nation‟s civil rights laws. Short-circuiting litigation through
artificial procedural barriers undermines our national interest in robust and expansive
applications of these laws.”
The Twombly case applied specifically to antitrust lawsuits, but in the 5-4 Iqbal decision, the
majority expanded the more stringent pleading standards to all civil cases. Writing for the narrow
majority, Justice Anthony Kennedy held that for a complaint to survive a motion to dismiss,
plaintiffs must provide much more specific factual information, and that a court can “draw on its
judicial experience and common sense,” in determining whether to dismiss the complaint, the
authors write.
“The new emphasis on factual specificity is especially onerous for civil rights plaintiffs,” Civin
and Adegbile write. “In many civil rights, most, if not all, pertinent information is within the
exclusive province of the defendant – through its agents, employees, records, and documents.”
Civin and Adegbile urge Congress to pass legislation to return the pleading standards to those
used for five decades and required courts “to view allegations in the complaint in the light most
favorable to the plaintiff.”
The ACS Issue Brief is available here. Please contact the ACS Communications Department to
arrange interviews with the authors.
The American Constitution Society for Law and Policy is one of the nation’s leading progressive
legal organizations, comprised of lawyers, judges, students and policy makers committed to
promoting the vitality of the Constitution and the fundamental values it expresses. The views of
the authors and speakers are their own and should not be attributed to ACS. For more
information about ACS, visit www.ACSLaw.org.
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