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Penn State Law Clinic Files Brief with Supreme Court

Penn State Law is again on record with the Supreme Court of the United States. The Law School’s new Civil Rights Appellate Clinic filed an amici curiae brief in Gross v. FBL Financial Services, No. 08-441, on Tuesday, February 5. The clinic served as counsel of record for five national civil rights organizations.
Clinic students and director Michael Foreman

Penn State Law is again on record with the Supreme Court of the United States. The Law School’s new Civil Rights Appellate Clinic filed an amici curiae brief in Gross v. FBL Financial Services, No. 08-441, on Tuesday, February 5. The clinic served as counsel of record for five national civil rights organizations.

The brief marks the second court submission by the Penn State Civil Rights Appellate Clinic, which became fully operational in January 2009 and is directed by Professor Michael Foreman. The case is scheduled for arguments on March 31, and clinic students are expected to attend the session.

“The way the students came together, worked as a team and built this brief so quickly was phenomenal. These students sprung into action and, in less than four weeks, produced a very good product,” said Foreman.

Throughout the fast-paced research and writing process, the team of students worked hand-in-hand with top civil rights attorneys and appellate litigators. The brief was written in cooperation with Cohen, Milstein Sellers & Toll in Washington, D.C., a firm that has successfully litigated landmark civil rights cases and currently represents more than 1.5 million women in a class action against Wal-Mart Stores, known as Dukes, et al. v. Wal-Mart Stores.

The brief was filed by several groups acting as amici curiae (friends of the court), that is nonparties to the case who have obtained permission to present their views to the Court. Collaborating organizations include the Lawyers’ Committee for Civil Rights Under Law, the Asian American Justice Center, the Mexican American Legal Defense and Education Fund, the National Partnership for Women & Families, and the National Women’s Law Center.

The clinic students earned high praise from attorney Christine Webber, partner at Cohen, Milstein Sellers & Toll. “I just wanted to say how very much better the clinic has made the brief and this experience,” Webber wrote in an e-mail to Foreman. “With the time constraints, we never would have been able to do so much without the clinic's work.”

Students dove into the project knowing that time was of the essence.

“In our first meeting, Professor Foreman asked if we wanted to work on this amicus brief, knowing it would be a frenetic start to the clinic. We all agreed,” said Penn State law student Brian Bevan ’09. The clinic students started work on January 9 and submitted the final copy on February 2 — less than four weeks later.

Bevan relishes the sense of accomplishment after the project. He said, “I take great pride knowing something I helped craft will be read by the Supreme Court. To me, it makes me feel I played some small role in bringing about important legal changes, if in fact the decision goes the way we want it to.”

Other Civil Rights Appellate Clinic students who participated in writing and researching the brief are: Michael Berkheimer ’09, Terrence Burke ’09, Edalia George ’09, Andrew Schnitzel ’10, and Bret Shaffer ’10.

The question before the Court in Gross v. FBL Financial Services is whether a plaintiff in an Age Discrimination in Employment Act (ADEA) of 1967 claim must provide direct evidence that age was a motivating factor in an employer’s adverse actions before the plaintiff obtains the benefit of a “mixed motive” jury instruction at trial. Foreman explained that in the context of age discrimination, a "mixed motive" instruction directs a jury to find in favor of a plaintiff if the jury determines that age was “a motivating factor” in an employer's employment decision, even if the other considerations were proper.

At the trial court level in this case, the plaintiff received the benefit of a “mixed-motive” jury instruction without presenting direct evidence that age was one of several factors in the employer’s actions against him. The Eighth Circuit held that direct evidence was required for such a jury instruction and remanded the case for a new trial, and the Supreme Court granted certiorari on December 5, 2008.

Foreman, who is listed as counsel of record on the brief, emphasizes that the reliance on direct evidence is misplaced. “Plaintiffs in ADEA cases should be allowed to prove their cases like everybody else,” he said.

The clinic brief argues that direct evidence of a discriminatory motive is not required from a plaintiff in Title VII cases and that it should not be required of a plaintiff in an ADEA claim.

Providing intensive training in appellate advocacy, the Civil Rights Appellate Clinic is the newest clinic at Penn State Law. Working in small groups on one case, students provide research, draft briefs, and assist in development of substantive legal positions and appellate strategy.

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