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Suing for discrimination just got harder, thanks to Byron Allen’s Supreme Court loss ...

Updated: Apr 8

Mark Harris | Special To California Black Media Partners

Attorney Mark T. Harris

Businessman Byron Allen, Comcast and the Supreme Court all had hands in weakening the strongest anti-discrimination law in the history of the United States — as we are consumed watching Coronavirus updates.

Section 1981 of the United States Congress’ Civil Rights Act of 1866 banned racial discrimination in making and enforcing contracts, and granted African Americans the same rights as “White Citizens” in employment, contracting and other business agreements.

President Andrew Johnson vetoed the legislation twice, but a two-thirds majority in both the Senate and the House of Representatives overrode his veto and passed the bill into law.

Now, a unanimous U.S. Supreme Court decision handed down last week in the case National Association of African American Owned Media (NAAOM) (Allen) vs. Comcast severely weakened that 154-year-old statute.

Here’s the back story of the case that led to that decision and what it means for African Americans.

Allen, the former comedian, actor and talk show host, starred in the well-known television show  “Kickin It with Byron Allen” (formerly “Jammin”). It was broadcast live for over twenty years and is among the longest running shows in television history. Allen got his start in entertainment as a member of the writing team for JJ “Dy-no-mite” Evans, actor Jimmie Walker’s character on the popular 1970s sitcom Good Times.

In 2019, Allen along with Sinclair Broadcast Group and Diamond Holdings, purchased 21 regional Fox sports networks from the Disney Company. Today, Allen’s company is a global media conglomerate that owns 10 cable television networks, including: The Weather Channel; Comedy TV; and Justice Central TV, among others. Allen also owns Entertainment Studios Motion Pictures, which produced the motion pictures 47 Meters Down, Chappaquiddick and Uncaged.

In 2015, Allen filed a $20 billion federal lawsuit against Comcast, the cable company, alleging racial discrimination. Allen, along with others, filed the federal case of NAAOM (Allen) vs Comcast. In their complaint, Allen and other plaintiffs contend that Comcast turned down Allen’s potential deal to feature six of his stations on Comcast. Allen alleges he was denied the deal due to his ethnicity in violation of a portion of the 42 U.S.C. Section 1981. Section 1981 is a Reconstruction-era federal statute providing all persons the same right “enjoyed by white citizens” to “make and enforce contracts” and “to sue” for the enforcement of those contracts.

Comcast has vigorously defended its record on diversity and refuted Allen’s claims of discrimination.

A key element of Allen’s argument centers on Comcast’s alleged collusion, against his interests, with certain African-American leaders and organizations during its 2010 purchase of NBC Universal. As part of the NBC Universal deal, Comcast agreed to add four new African-American owned networks over eight years. Two of those networks were owned by Sean “Diddy” Combs, and NBA Hall of Famer Magic Johnson.

Allen argued that the organizations that helped broker the deal — the National Urban League, Reverend Al Sharpton’s National Action Network and the NAACP — were essentially “bought off” by Comcast, which has donated money to them. According to Allen, the agreement provided only token investment in Black-owned networks and has been used to justify blocking Black entrepreneurs from getting a seat at the multi-billion dollar cable television ownership table.

At the federal trial level, the case was dismissed. Next, the United States Court of Appeals for the Ninth Circuit, resurrected Allen’s case holding that the trial court considering the lawsuit had improperly dismissed it.  Comcast appealed that decision to the United States Supreme Court.

Allen proceeded with his opposition to the Comcast appeal and the case came before the U.S. Supreme Court, for oral argument, in November of 2019.

The narrow issue the U.S. Supreme Court considered was not the specifics of Allen’s dispute with Comcast, but the standard for proving racial discrimination under 42 U.S.C. Section 1981. The justices seemed to focus on the question of whether a plaintiff like Allen must make the case that racial discrimination was the main factor or just a contributing factor in Comcast’s decision to reject his company’s deal.

Then, this past week, in a unanimous decision, the U.S. Supreme Court sided with Comcast and set a new “but for” standard in cases involving allegations of contractual discrimination under Section 1981. The case was then remanded back to the trial court to determine whether Allen could meet the new standard. Allen will have to prove that “but for” his ethnicity as an African American, he would have been awarded the contract with Comcast.

What does this dispute between Allen and Comcast mean to the African-American community?

First, the words of the Kenyan proverb “when elephants fight, it is the grass that suffers” come to mind. The fact that this litigation will have long-term implications on the next litigants who allege they were denied a contract, employment or business opportunity due to racial discrimination is inescapable.

The U.S. Supreme Court’s decision in this case has effectively increased the burden of proof on the next litigant and made it much harder for them to succeed in Section 1981 litigation. One is left to wonder why such powerful members of our community could not have somehow come together to protect the interests all African Americans.  Here, by the insistence of Allen to proceed with this litigation, the African-American community runs the risk of becoming “trampled grass” when the litigation is finally resolved and the “elephants” have ceased fighting.

Second, ultimately Allen’s group will have their “day in court” at the trial court level where they will have to prove that they suffered specific discrimination at the hands of Comcast relative to its decision to reject their proposed cable deal.  The legal standard will now be higher with a requirement that Allen’s group prove that “but for” being a black-owned enterprise, they would have been awarded the cable deal by Comcast. This will prove a very difficult standard to meet.

Third, one must wonder how it is that this opinion of the U.S. Supreme Court was authored by Associate Justice Neil Gorsuch, a Trump appointee, and concurred with by every other member of the Supreme Court including the Democratic appointees of Presidents Clinton and Obama. At a time when one of the strongest arguments being used to motivate Black voters to “show up and show out” on election day, is the opportunity to transform the federal courts.  If even our Supreme Court allies vote against the interests of the African-American community, as evidenced by the unanimous opinion in the Allen case, some may wonder whether the institution of the U.S. Supreme Court and the federal courts will remain virtually disaffected by whomever becomes the next president. Even Justice Ruth Bader Ginsburg, the Court’s most liberal member, joined with the majority.

Let’s hope at some point in the future, despite this ruling by the U.S. Supreme Court, our community finds a way to “regrow the grass” relative to the protections provided under 42 U.S.C. Section 1981.


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