BURDENS OF PROOF IN RACE CASES ARE UNFAIR
The different burdens of proof at trial are where the true burdens began for blacks litigating civil rights claims in federal court: “Burdine” was the case frequently cited.
These standards were established by the United States Supreme Court in a series of cases starting with Green v. McDonnell Douglas in the 1960’s.
Tomorrow, it will (or may) confront its legacy in the Byron Allen v. Comcast et al. case. In this case the question of the proper burden of proof for black litigants is dramatically, spectacularly, presented yet again. Whether race must be proven by the plaintiff to be the “sole cause” of the alleged discrimination is the most pressing procedural issue that is pending.
This disparate burden of proof has been imposed on the plaintiffs not only in “failure to contract cases,” like Byron Allen’s, under the Civil Rights Act of 1866 (amended by Congress in 1991); but the same unfair and unfavorable burdens of proof has been applied perniciously, consistently in cases under Title VII of the Civil Rights Act of 1964, in discrimination law suits by blacks.
Women—white women—who were benign beneficiaries of the black litigation experience by, political legerdemain, have not been, thus far, subjected to the same proof burdens as less-fortunate blacks.
Even in criminal murder cases , “intent” may be inferred from the circumstances, unlike civil rights cases involving black plaintiffs, who must “prove” defendant’s “intent!”
Those few of us lawyers who were foolish (and conscientious) enough to pursue civil rights law for a living know these are facts, all too well!
When we civil rights lawyers fled the federal courts for state courts, seeking a respite from relentless bigotry in legal procedural burdens, then, invariably the big defense firms’ well-heeled counsel would “remove” our fugitive state civil rights cases into federal courts, with us kicking and screaming !
There they could easily get Rule 56 “summary judgments” against the blacks without trials, based on filing affidavits of non-discrimination and relying on the impossible procedural burdens of proof that were applied to the blacks, exclusively ! These unfair proof burdens had already been imposed on us by Supreme Court or by most lower federal circuit courts of appeals, whose cases the Supreme Court refused to review, or denied certiorari to.
These burdens of proof were unique to blacks in civil rights cases. It was as though the black plaintiffs were defaming corporate defendants by even daring to sue them for their discriminatory deeds, per law.
Many of us civil rights lawyers (black and white) were punished, were victimized by the imposition of monetary sanctions that we had to pay to stay licensed, for daring to sue for discrimination, pursuant to law. Sometimes even our own clients would file bar complaints against us after losing a contingent fee case, (that we had urged them to settle) or were sanctioned by the bar for seeking to withdraw from a doomed civil rights case under the circumstances, as happened to me!
The point being missed in much of public discussion about 42 U.S. C. 1981, is this procedural one that kills the cases, while dissembling fairness! Watch carefully how the Court rules on the burdens of proof.
Will the plaintiffs have the burden of proof about race put on the same plane as other civil litigants? Will the Court rule that “race” (intent) was the sole, only,

factor leading to Byron Allen’s denial of access on Comcast and Charter’s cable servers? Or might the court rule that race discrimination may be proven if race (intent) was merely a motivating , not the sole factor, and thus affirm the Ninth Circuit ruling.
Even if Byron Allen wins, he must still convince a California jury on a trial of the merits that race was a factor in his non-selection by the cable giants, itself, a very tall task!
Tuesday, November 12, 2019
RACE CASES' BURDENS
BURDENS OF PROOF IN RACE CASES ARE UNFAIR
The different burdens of proof at trial are where the true burdens began for blacks litigating civil rights claims in federal court: “Burdine” was the case frequently cited.
These standards were established by the United States Supreme Court in a series of cases starting with Green v. McDonnell Douglas in the 1960’s.
Tomorrow, it will (or may) confront its legacy in the Byron Allen v. Comcast et al. case. In this case the question of the proper burden of proof for black litigants is dramatically, spectacularly, presented yet again. Whether race must be proven by the plaintiff to be the “sole cause” of the alleged discrimination is the most pressing procedural issue that is pending.
This disparate burden of proof has been imposed on the plaintiffs not only in “failure to contract cases,” like Byron Allen’s, under the Civil Rights Act of 1866 (amended by Congress in 1991); but the same unfair and unfavorable burdens of proof has been applied perniciously, consistently in cases under Title VII of the Civil Rights Act of 1964, in discrimination law suits by blacks.
Women—white women—who were benign beneficiaries of the black litigation experience by, political legerdemain, have not been, thus far, subjected to the same proof burdens as less-fortunate blacks.
Even in criminal murder cases , “intent” may be inferred from the circumstances, unlike civil rights cases involving black plaintiffs, who must “prove” defendant’s “intent!”
Those few of us lawyers who were foolish (and conscientious) enough to pursue civil rights law for a living know these are facts, all too well!
When we civil rights lawyers fled the federal courts for state courts, seeking a respite from relentless bigotry in legal procedural burdens, then, invariably the big defense firms’ well-heeled counsel would “remove” our fugitive state civil rights cases into federal courts, with us kicking and screaming !
There they could easily get Rule 56 “summary judgments” against the blacks without trials, based on filing affidavits of non-discrimination and relying on the impossible procedural burdens of proof that were applied to the blacks, exclusively ! These unfair proof burdens had already been imposed on us by Supreme Court or by most lower federal circuit courts of appeals, whose cases the Supreme Court refused to review, or denied certiorari to.
These burdens of proof were unique to blacks in civil rights cases. It was as though the black plaintiffs were defaming corporate defendants by even daring to sue them for their discriminatory deeds, per law.
Many of us civil rights lawyers (black and white) were punished, were victimized by the imposition of monetary sanctions that we had to pay to stay licensed, for daring to sue for discrimination, pursuant to law. Sometimes even our own clients would file bar complaints against us after losing a contingent fee case, (that we had urged them to settle) or were sanctioned by the bar for seeking to withdraw from a doomed civil rights case under the circumstances, as happened to me!
The point being missed in much of public discussion about 42 U.S. C. 1981, is this procedural one that kills the cases, while dissembling fairness! Watch carefully how the Court rules on the burdens of proof.
Will the plaintiffs have the burden of proof about race put on the same plane as other civil litigants? Will the Court rule that “race” (intent) was the sole, only,

factor leading to Byron Allen’s denial of access on Comcast and Charter’s cable servers? Or might the court rule that race discrimination may be proven if race (intent) was merely a motivating , not the sole factor, and thus affirm the Ninth Circuit ruling.
Even if Byron Allen wins, he must still convince a California jury on a trial of the merits that race was a factor in his non-selection by the cable giants, itself, a very tall task!
