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Court adds five new cases, including transgender bathroom dispute, to docket

[Update at 5:29 p.m.: This post has been expanded to include a discussion of all today’s grants.]

The Supreme Court added five new cases to its docket this afternoon. Among the new grants was Gloucester County School Board v. G.G., the case of a transgender student who identifies as a boy and wants to be allowed to use the boys’ bathroom at his Virginia high school. The announcement that the justices would hear oral argument in the case was not particularly surprising: Last summer, the court granted the school board’s request to put the lower court’s ruling in the student’s favor on hold until the school board could file its petition for Supreme Court review. That ruling required the votes of five justices – the court’s four more conservative justices plus Justice Stephen Breyer, who announced that he was voting to block the lower court’s ruling as a courtesy – while the votes of only four justices are required to grant review on the merits.

Although the controversy over the school board’s policy requiring students to use the restrooms and locker rooms that match the gender that they were assigned at birth instantly became the highest-profile case of the court’s term so far, the dispute actually centers on more technical (and, some would say, rather dry) legal issues. In this case, the district court ruled against G.G., relying on a 1975 regulation that allows schools to provide “separate toilet, locker room, and shower facilities on the basis of sex,” as long as those facilities are comparable to those provided to the opposite sex. But, in January 2015, the Department of Education’s Office of Civil Rights issued an opinion letter stating that, if schools separate students in restrooms and locker rooms on the basis of their sex, a “school generally must treat transgender students consistent with their gender identity.” In light of the 2015 letter, the U.S. Court of Appeals for the 4th Circuit reversed and ruled for G.G. It relied on the Supreme Court’s 1997 decision in Auer v. Robbins, which held that courts generally should defer to an agency’s interpretation of its own regulation.

In granting review today, the justices sidestepped the most prominent issue they had been asked to take on: whether they should overrule their decision in Auer, which has been the target of criticism by conservative lawyers and jurists. Instead, they agreed only to weigh in on two other, lower-profile questions presented in the school board’s petition: whether courts should defer to a letter, like the Department of Education opinion letter in this case, that was issued as part of the specific dispute before the court; and whether the Department of Education’s interpretation of the federal civil rights laws and the 1975 regulation as requiring schools to treat transgender students consistent with their gender identity should be given effect.

The school board’s case, as well as the others in which the justices granted review today, likely will be argued during the court’s February sitting, which begins on February 21.

Among the court’s other grants today, Packingham v. North Carolina is the case of Lester Packingham, a North Carolina man who became a registered sex offender after he was convicted, at the age of 21, of taking indecent liberties with a minor. Six years after Packingham’s conviction, North Carolina enacted a law that made it a felony for registered sex offenders to access a variety of websites, from Facebook to The New York Times and YouTube. Packingham was convicted of violating this law after a police officer saw a Facebook post in which Packingham celebrated, and gave thanks to God for, the dismissal of a traffic ticket. The justices today agreed to review Packingham’s contention that the law violates the First Amendment.

Today’s grant in Kindred Nursing Centers Limited Partnership v. Clark reflects the justices’ ongoing interest in issues related to arbitration. In this case, patients at a Kentucky nursing home gave power of attorney to family members, who then signed their admissions paperwork – which included an agreement to arbitrate disputes. The family members filed lawsuits after the patients died, alleging (among other things) that the patients had been the victims of nursing home abuse, but the nursing home asked the court to dismiss the case or stay the lawsuits based on the arbitration agreements. The Kentucky Supreme Court refused to enforce the arbitration agreements. It reasoned that, although the family members who signed the admissions paperwork had power of attorney, they lacked the authority to enter into arbitration agreements.

In Esquivel-Quintana v. Lynch, the justices will make another foray into an area of law known as “crimmigration” – the intersection of immigration and criminal law. The petitioner in the case, Juan Esquivel-Quintana, was a lawful permanent resident of the United States in 2009, when he was charged with violating a California law that makes it a crime to have sexual relations with someone under the age of 18 when the age difference between the two people involved is more than three years; he had had consensual sex with his 16-year-old girlfriend when he was 20 and 21 years old. The federal government then sought to remove Esquivel-Quintana from the United States on the ground that his conviction constituted the “aggravated felony” of “sexual abuse of a minor.” The lower courts agreed with the federal government, but now the Supreme Court will decide.

The facts of Dean v. United States read like a “true crime” novel, involving robberies of drug dealers in the Midwest. Levon Dean, the defendant in the case, was convicted under the Hobbs Act, a federal law that makes it a crime to “obstruct, delay, or affect commerce” through a robbery. The justices today declined to review Dean’s challenge to his Hobbs Act convictions, but they agreed to weigh in on a separate question: the scope of a federal trial court’s discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c), which makes it a crime to use or carry a firearm during a crime of violence, in determining a sentence for the felony that serves as the basis for the Section 924(c) conviction. Dean argued that the district court had the authority to impose a very short sentence – as little as one day – for his Hobbs Act convictions, to take into account the much longer sentence required by Section 924(c), but the lower courts disagreed.

[Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel in Packingham. The author of this post, however, is not affiliated with the firm.]

Recommended Citation: Amy Howe, Court adds five new cases, including transgender bathroom dispute, to docket, SCOTUSblog (Oct. 28, 2016, 4:44 PM),