By James Sprague
The Supreme Court of the United States has the opportunity to shape the future of civil rights litigation in Comcast Corp. v. National Association of African American-Owned Media & Entertainment Studios Networks, Inc. Although 42 U.S.C. § 1981 bars racial discrimination in contracting, circuits disagree on the causation standard necessary to sustain a claim. The Seventh Circuit, for instance, requires racial animus to be a but-for cause of the defendant’s refusal to transact. By contrast, the Ninth Circuit merely requires racial animus to be a motivating factor in the defendant’s refusal, similar to the causation framework available under Title VII discrimination cases.
Due to the difficulty of showing but-for causation in discrimination cases before discovery, the Supreme Court could significantly limit the availability of § 1981 relief if it requires pleadings under the statute to show but-for cause. On the other hand, a relaxed causation standard could expose defendants to predatorial plaintiffs lacking bona fide claims, thereby subjecting blameless defendants to frivolous lawsuits, burdensome discovery, and unnecessary expenses and settlements.
The Backdrop of the Case
ESN is a wholly African American-owned media company that owns and operates numerous television channels and their content. After more than a decade of negotiations, Comcast refused to carry any of ESN’s networks. Alleging racial discrimination in contracting, ESN filed suit in the Central District of California pursuant to 42 U.S.C. § 1981. The district court dismissed ESN’s case three times, but the Ninth Circuit reversed, holding that ESN’s allegations supported the inference that “discriminatory intent played at least some role in Comcast’s refusal to contract.” A brief recitation of ESN’s allegations follows.
- Comcast executives required ESN to achieve support “in the field” from Comcast’s regional offices and management. After achieving such support, Comcast told ESN that field support did not matter.
- Comcast corporate representatives told ESN to obtain Division support, but the Divisions told ESN that they deferred to corporate.
- Comcast executives told ESN that Comcast would carry ESN’s channels if Comcast’s principle competitors, Verizon FIOS, AT&T U-verse, and DirecTV, carried ESN’s channels. Comcast still refused to contract with ESN after Comcast’s principle competitors started carrying ESN’s channels.
- Comcast consistently cited a lack of carrying capacity when declining to carry ESN’s shows but has launched over 80 channels since 2010, including lesser-known, white-owned channels.
- Comcast cited a lack of demand for ESN’s productions, but over 50 multichannel video programming distributors broadcast ESN’s channels to an 80-million-person subscriber base, and one of ESN’s channels has won an Emmy Award.
- Comcast broadcasts all of the channels carried by its principle competitors except ESN’s channels.
- To affect its merger with NBC Universal, Comcast entered into a memorandum of understanding with civil rights groups requiring Comcast to launch four African American-owned networks. Rather than choose ESN’s channels, Comcast launched new, untested networks that “are predominately white-owned with African American figureheads.”
On March 8th, 2019, Comcast petitioned the Supreme Court for certiorari, arguing that Comcast’s actions were consistent with legitimate business reasons, “namely lack of demand for ESN programming and the bandwidth costs for carrying ESN’s channels,” and were unmotivated by race. Because ESN failed to allege facts inconsistent with legitimate reasons, Comcast asserted, ESN did not plausibly show any discriminatory intent animating Comcast’s refusal to contract, thereby failing the pleading standards mandated by Ashcroft v. Iqbal. The Court granted Comcast’s petition on June 10th, 2019. The narrow issue to be considered before the Court is “whether a claim for race discrimination under 42 U.S.C. § 1981 fails in the absence of but-for causation.”
The Chief Legal Arguments
First, Comcast asserts that the plain language of § 1981 confirms but-for causation as an element of the claim. Section 1981 guarantees “[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” Accordingly, if a defendant would have refused to contract with a white person under the same circumstances, the § 1981 plaintiff has not been denied the same right to contract as white citizens. As such, according to Comcast, the defendant must refuse to contract because of the plaintiff’s race; that is; “but for” the plaintiff’s race, the defendant would have assented to the contract. Because § 1981 requires but-for causation, then, plaintiffs must plausibly establish such causation through the factual allegations in their pleadings.
Furthermore, Comcast argues that but-for cause is the default causation rule when in, terpreting federal statutes, quoting the Supreme Court in University of Texas Southwestern Medical Center v. Nassar: “Causation in fact . . . is a standard requirement or any tort claim . . . this standard requires the plaintiff to show ‘that the harm would not have occurred’ in the absence of—that is, but for—the defendant’s conduct.” Thus, without language expressly indicating Congress’s intent to the contrary, courts must presume a but-for causation requirement when interpreting statutes. Because § 1981 has no such language, any pleadings arising under the statute fail, absent plausible allegations of but-for cause.
Finally, Comcast argues that Congress first authorized the motivating factor standard in the Civil Rights Act of 1991, over a century after Congress passed the Civil Rights Act of 1866 (which it later recodified as 42 U.S.C. § 1981). Even then, Congress only authorized the motivating factor standard with respect to specific claims under Title VII and the Civil Rights Act of 1964. Because Congress could have authorized the motivating factor standard in § 1981 when it amended the other civil rights statutes, its decision otherwise, according to Comcast, implies Congress’s unwillingness to authorize the approach endorsed by the Ninth Circuit.
First, ESN argues that the Court’s previous holdings, and therefore stare decisis, favor a motivating factor and burden-shifting approach under § 1981, and do not require but-for causation. In Patterson v. McLean Credit Union, the Court expressly held that Title VII’s burden-shifting framework applies to claims arising under § 1981. This standard, rather than requiring plaintiffs to plead but-for causation, requires plaintiffs to allege facts “creating an inference of racial discrimination,” after which the burden shifts to the defendant to show that its motivations were legitimate and non-discriminatory.
This approach, according to ESN, is essential because showing but-for cause in § 1981 pleadings often, in the words of Justice O’Connor, “demands the impossible.” As such, many potentially meritorious claims would be unable to survive a motion to dismiss under pleading standards requiring but-for causation. This is especially true in civil rights cases “where the defendant is typically the only party with access to evidence of the defendant’s motives.” By contrast, a motivating factor requirement would allow such cases to at least proceed to discovery.
Furthermore, ESN asserts that §1981’s plain language supports plausible allegations showing motivating factor rather than but-for cause. Section 1981 guarantees that all American citizens have the “same” right to contract as white Americans. Because statutory terms, when undefined within the statute, carry their ordinary meaning, “same” means “identical.” As such, African Americans and other racial minorities do not receive identical treatment if race is a motivating factor in the defendant’s refusal to contract. Additionally, ESN points out that the Supreme Court has endorsed the motivating factor and burden-shifting framework instead of but-for cause in other statutes that use the word “same.” Finally, ESN argues that a motivating factor framework aligns with the comprehensive remedial purpose of § 1981.
In deciding this case, the Supreme Court will
have to consider the accessibility of discovery for claims arising under 42
U.S.C. § 1981. Numerous amicus briefs support ESN, including briefs submitted
by the NAACP and teams of law professors. The
United States filed an amicus brief in support of Comcast. The
Supreme Court will hear oral arguments on November 13th, 2019.
 42 U.S.C. § 1981 (2012).
 Bachman v. St. Monica’s Congregation, 902 F.2d 1259, 1262–63 (7th Cir. 1990) (“To be actionable, racial prejudice must be a but-for cause, or in other words a necessary condition, of the refusal to transact . . . otherwise there is no harm from the prejudice—the harm would have occurred anyway.”).
 Nat’l Ass’n of African Am.-Owned Media v. Charter Commc’ns, Inc., 915 F.3d 617, 626 (9th Cir. 2019) (“Even if racial animus was not the but-for cause of a defendant’s refusal to contract, a plaintiff can still prevail if she demonstrates that discriminatory intent was a factor in that decision.”).
 Brief for Respondent at 17, Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media (Sep. 23, 2019) (No. 18-1171), https://www.supremecourt.gov/DocketPDF/18/18-1171/116717/20190923163651003_38584%20pdf%20Chemerinsky.pdf; see Price Waterhouse v. Hopkins, 490 U.S. 228, 264 (1989) (O’Connor, J., concurring) (recognizing that the but-for test, at times, “demands the impossible”).
 Brief for Petitioner at 44, Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media (Aug. 8, 2019) (No. 18-1171), https://www.supremecourt.gov/DocketPDF/18/18-1171/111674/20190808133518678_Comcast-NAAAOM%20Opening%20Merits%20Brief%20TO%20FILE.pdf.
 Nat’l Ass’n of African Am.-Owned Media v. Comcast Corp., 743 F. App’x 106, 106 (9th Cir. 2018).
 Id. at 107.
 Brief for Respondent, supra note 4, at 51.
 Id. at 52.
 Petition for a Writ of Certiorari at 8, Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media (Mar. 8, 2019), https://www.supremecourt.gov/DocketPDF/18/18-1171/91371/20190308153623647_Comcast%20-%20NAAAOM%20Petition%20TO%20PRINTER.pdf.
 Id.; see Ashcroft v. Iqbal, 556 U.S. 662, 687 (2009).
 Comcast Corp. v. Nat’l Ass’n of African Am.-Owned Media, SCOTUSblog, https://www.scotusblog.com/case-files/cases/comcast-corp-v-national-association-of-african-american-owned-media/ (last visited Nov. 3, 2019).
 Brief for Petitioner, supra note 5, at 20.
 Comcast articulates this argument by citing the reasoning of the Third Circuit: “[If] the same decision would have been made regardless of the plaintiff’s race, then the plaintiff has, in effect, enjoyed ‘the same right’ as similarly situated persons.” Brown v. J. Kaz, Inc., 581 F.3d 175, 182 n.5 (3d Cir. 2009).
 Brief for Petitioner, supra note 5, at 19.
 570 U.S. 338, 346–47 (2013).
 Brief for Petitioner, supra note 5, at 22.
 Congress passed the Civil Rights Act of 1866 (by overriding President Johnson’s veto) in an attempt to void the Black Codes of the South. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 426 (1968). Congress would later recodify this Act as 42 U.S.C. § 1981. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 372 (2004).
 Brief for Petitioner, supra note 5, at 28.
 Id.; See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 174–75 (2009); “When Congress amends one statutory provision but not another, it is presumed to have acted intentionally . . . [and the] negative implications raised by disparate provisions are strongest . . . when the language raising the implication [in this case, the language authorizing a motivating factor standard] was inserted.”).
 Brief for Respondent, supra note 4, at 18.
 491 U.S. 164, 186-87 (1989).
 Price,490 U.S. at 264 (O’Connor, J., concurring).
 Id.; Brief for Respondent, supra note 4, at 11.
 Brief for Respondent, supra note 4, at 11.
 Price, 490 U.S. at 264.
 Brief for Respondent, supra note 4, at 28.
 42 U.S.C. § 1981 (2012).
 Sebelius v. Cloer, 569 U.S. 369, 376 (2013); Noah Webster, An American Dictionary of the English Language (Noah Porter ed., 1864) (defining “same” as “identical”).
 Brief for Respondent, supra note 4, at 28.
 Young v. United Parcel Service, Inc., 135 S. Ct. 1338, 1345, 1353–54 (2015).
 Brief for Respondent, supra note 4, at 44.
 SCOTUSblog, supra note 19.