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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.

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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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COMMENTARY: Coach Saban, Shut Up and Coach

NNPA NEWSWIRE — Jackson State will continue to get its fair share of 5-Star recruits. Coach Prime and all HBCUs can offer an experience that Alabama certainly can’t. It’s nothing like an HBCU experience. This is just the beginning. We will continue to see 5-Star Black athletes signing with HBCUs.
The post COMMENTARY: Coach Saban, Shut Up and Coach first appeared on BlackPressUSA.

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By Burl “The Coach” Jones, Sports Editor, Houston Forward Times

Recently, Alabama Head Football Coach Nick Saban made a statement that Texas A&M bought every player they signed with NIL (Name, Image, and Likeness) deals.

Alabama came in second in recruiting this year. That has rarely happened since Saban stepped on campus at Alabama. He also stated that Jackson State University, an HBCU coached by Deion Sanders, signed the #1 recruit in the country to a $1 million NIL deal.

The NIL phenomenon was created in June 2021 by the NCAA. This allows athletes to be paid for the use of their name, image, and likeness. Previously, the NCAA made billions in revenue off the backs of college athletes. With the advent of the NIL, expect a shift in the landscape of college football recruiting.

Schools like Texas A&M, Texas, and Oklahoma, have very rich boosters and alumni who have access to millions. They will come up with very creative ways to offer lucrative NIL deals to 5-star recruits. This apparently doesn’t sit well with Coach Saban, who is used to having his way, and getting most of the 5-Star recruits to sign with Alabama.

This will definitely level the playing field and gives schools like Texas A&M, that hasn’t won a National Championship in decades, a chance to recruit 5-Star athletes on a national level and could eventually lead to them winning a National Championship in the near future.

At least that’s what they hope in College Station.

As far as Coach Saban’s statement about Jackson State signing the #1 recruit in the country to a $1 million NIL deal is concerned, that was quickly debunked by Coach Prime, who immediately tweeted that he will address that lie. He followed that up with this statement:

“I haven’t talked to Coach Saban. I’m sure he tried to call. We need to talk publicly- not privately. What you said was public, that doesn’t require a private conversation. Let’s talk publicly and let everybody hear the conversation.”

Coach Saban is speaking from a place of privilege and bigotry. He is used to having his way and getting the players he wants. How dare a little old HBCU such as Jackson State get the #1 recruit in the country? It’s a slap in the face to all HBCUs to insist that they must pay a Black kid to attend an HBCU.

Paying recruits is certainly not new; it has been going on for years.

Former Houston Texan Travis Johnson, who was a 5-Star recruit, recently stated that Alabama offered him six figures in 2000 when he was being recruited.

“Y’all were the NIL before the NIL,” he said.

Jackson State will continue to get its fair share of 5-Star recruits. Coach Prime and all HBCUs can offer an experience that Alabama certainly can’t. It’s nothing like an HBCU experience. This is just the beginning. We will continue to see 5-Star Black athletes signing with HBCUs.

Coach Saban needs to be concerned about that pipeline that he had in Texas, getting those 5-Star recruits to leave the state. That oil money in Texas will be keeping those boys at home. Texas and Oklahoma will be joining the SEC in a few years and that will also influence Saban’s ability to recruit in Texas.

With all those factors coming into play, here is a bit of advice Coach Sabin:

SHUT UP AND COACH!!

“I’m just Telling It Like It Is!!”

The post COMMENTARY: Coach Saban, Shut Up and Coach first appeared on BlackPressUSA.

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COMMENTARY: Racism Rears Its Ugly Head in the Buffalo Shootings

NNPA NEWSWIRE — Racial tragedy struck Buffalo, New York, on May 14th. Hate came up from the ground and reared its inhumane and immoral head. Ten Black people were murdered by a White man who hated Black people. It’s that simple and that sad. Payton S. Gendron, 18 years old, was the shooter. He also injured 3 people as well during this shooting spree.
The post COMMENTARY: Racism Rears Its Ugly Head in the Buffalo Shootings first appeared on BlackPressUSA.

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By James B. Ewers Jr. Ed.D., Houston Forward Times

Racism is a longstanding social illness in the United States of America. Seemingly, there is no cure for it.

It has been with us for as long as I can remember. The result of it has created heartache and heartbreak.

Lives have been lost and it has left the stain of disgrace on this country. Accomplishments, it could be argued, are sometimes overshadowed by our blatant disregard for some members of our beloved community.

I know for sure that racism will be around for as long as I live. It has been a part of my life experiences.

Unfortunately, and I say this with no pride, I have witnessed racism up close and personal.

I have been around long enough to watch the many levels of racism that exist in this country.

For example, we have had educational racism. Segregated schools were the norm until the case, Brown versus the Board of Education of Topeka ended it.

Did that stop us from getting an education?

The answer is a resounding no!

Black colleges, now called Historically Black Colleges and Universities (HBCUs), were founded in order that higher education was afforded to African Americans.

At this moment, HBCUs are the hottest and most talked about educational venue in the land.

Everybody wants to attend an HBCU. I am a graduate of an HBCU (Johnson C. Smith University), and I know the power and influence they have.

The right to vote has always been problematic for African Americans. It is a fundamental right for all Americans, according to the Founding Fathers.

The problem is that the ‘current fathers’ don’t see it that way.

Will that stop us?

The answer is another resounding no!

African Americans are now voting in record numbers and that trend will continue.

There are states in this union that are creating trumped-up rules to keep us from exercising our privilege at the polls.

Some in this country have taken racism below ground zero. There are people in our states who hate Black people and want to kill us.

That is a powerful statement, yet it is factual and true.

Interestingly, there are citizens who believe the opposite. I suspect their experiences are different, and they live in an almost contactless America.

If you are one of those people, pay close attention now.

Racial tragedy struck Buffalo, New York, on May 14th.

Hate came up from the ground and reared its inhumane and immoral head.

Ten Black people were murdered by a White man who hated Black people.

It’s that simple and that sad.

Payton S. Gendron, 18 years old, was the shooter. He also injured 3 people as well during this shooting spree.

The victims were assaulted at a Tops Friendly Markets store and the victims ranged in ages from 20-86.

This crime of hate is unthinkable and was done with malicious intent.

The killer was not a Buffalo resident. He drove approximately 200 miles from Conklin, New York, to commit this heinous crime.

Gendron had already scouted out the place for his crime. He knew that many African Americans shopped at that location. That is sick beyond words.

According to reports, Police Commissioner Joseph Gramaglia said, “We found some things that show he was here in early March, and then again, we know he was here on Friday, basically doing reconnaissance on the area.”

Gramaglia added, “He was in the store, both on Friday and Saturday.”

These statements were made by him to CNN’s Erin Burnett.

Payton S. Gendron surrendered to police after this life-altering atrocity.

America, where are we headed? Only time will tell.

The post Racism Rears Its Ugly Head in the Buffalo Shootings appeared first on Houston Forward Times.

The post COMMENTARY: Racism Rears Its Ugly Head in the Buffalo Shootings first appeared on BlackPressUSA.

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American Petroleum Institute Lays Out Solutions to Rising Gas Prices

NNPA NEWSWIRE — A study of fact sheets provided by the American Petroleum Institute suggests that the complicated answer includes more production in America, which could add more supply. “More U.S. supply means relief for the global market,” Lem Smith, API’s vice president for Federal Relations, wrote in an op-ed.
The post American Petroleum Institute Lays Out Solutions to Rising Gas Prices first appeared on BlackPressUSA.

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By Stacy M. Brown, NNPA Newswire Senior National Correspondent
@StacyBrownMedia

The average price for a gallon of gasoline has hit record numbers in Los Angeles and Philadelphia.

This week prices rose nationally by four cents, and consumers wondered why the cost is so high.

A study of fact sheets provided by the American Petroleum Institute suggests that the complicated answer includes more production in America, which could add more supply. “More U.S. supply means relief for the global market,” Lem Smith, API’s vice president for Federal Relations, wrote in an op-ed.

“America has an abundance of resources right under our feet, and policymakers should send a clear message that America is open for energy investment,” Smith declared.

API noted that gasoline prices are determined by the supply and demand of crude oil and expenses for refining, distribution, retailing, and taxation. Those fundamental market realities drive prices at the pump, officials stated.

The main components of retail gasoline prices are the cost of crude oil, taxes, refining costs, and distribution and marketing costs, API officials stated.

Of those, the price of crude oil has the most significant impact – accounting for 56 percent of the cost.

“Because of this, changes in the price reflect the global cost of crude oil, which is influenced by current conditions and expectations of consumer demand, supply, inventories, geopolitical events, and other factors, generally have an effect on pump prices,” the organization stated in a fact sheet.

Further, federal, state, and local governments levy various taxes in fees on transportation fuels.

The nationwide average tax on gasoline is 57.09 cents per gallon, including a federal tax of 18.4 cents per gallon and state-level taxes that range from 68.15 cents per gallon in California and 15.13 cents per gallon in Alaska.

API President and CEO Mike Sommers recently discussed the critical importance of American energy leadership “at a time of geopolitical volatility and rising energy costs around the world.”

Sommers urged policymakers to advance U.S. natural gas and oil production to support stability in global energy markets and ensure access to affordable, reliable energy for American consumers and our allies overseas.

“Most everyone knows that the world needs oil and natural gas in a big way and will for decades or more to come; the only question is where that oil and gas is going to come from,” Sommers remarked.

“As much as ever, we need to think hard about that economic truth and our energy future. That means recognizing energy from natural gas and oil as the critical strategic asset it is to America.”

“We can’t treat oil and natural gas as a kind of switch that is turned on or off to suit the moment,” Sommers continued.

“Production and delivery don’t work that way. Yet the overriding policy lately has been to cancel pipelines, block permits and deny leases – all things that discourage investment.

“As more Americans face the consequences of bad policy, the elements of good policy become that much more apparent and desired. We have an opportunity together to re-center the energy discussion with basic realities and good common sense as our starting point.”

Sommers called on the administration and Congress to develop a new five-year offshore leasing program; hold onshore leases on federal lands per the Mineral Leasing Act; approve LNG export applications and allow the approval of exports to non-free-trade-agreement nations, and craft transparent, consistent permitting regulations to enable the development of vital energy infrastructure.

The U.S. has pledged to increase LNG exports to Europe by 65 percent over the next six years.

How quickly could U.S. oil producers scale up production to put downward pressure on domestic gasoline costs?

What could the federal government do to promote that production?

API officials said it begins with access to resources, advancing infrastructure, and enabling – rather than deterring – the industry’s financing.

“Importantly, financial markets have become less hospitable to the natural gas and oil industry partly because of the Biden administration’s positions, policies, and signals,” API officials asserted.

“Those who have capital may be reluctant to invest in long-lived energy assets in such a climate, and a relatively fixed pool of cash flows that could be re-invested by industry have been increasingly spread thin.”

API listed four “concrete actions” the organization believes the Biden-Harris administration could immediately take to support American production.

They include conducting federal lease sales, completing a new five-year program for federal offshore leasing, supporting energy infrastructure, and reopening access to Alaska.

“The administration should reinstate the leases it suspended in Alaska’s Arctic National Wildlife Refuge and the permit development it approved in the National Petroleum Reserve,” API officials wrote.

“These were permitted with stringent environmental standards and could prove a significant source of domestic production over time.”

The post American Petroleum Institute Lays Out Solutions to Rising Gas Prices first appeared on BlackPressUSA.

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