Date Filed: 03/14/2018

Much of our nation’s progress toward the Constitutional aspiration of a “more perfect Union” occurred because ordinary people have had ready access to litigate worthy but often novel or difficult-to-prove cases in our courts.  Recently, however, a pair of Supreme Court decisions has skewed the balance away from access to courts.  In Bell Atlantic Corp. v. Twombly (2007) and Ashcroft v. Iqbal (2009), the Court suddenly and without clear necessity overturned well-settled law and imposed a more stringent standard for federal cases to survive. 

It is not an overstatement to say that the key successes of civil rights litigation were due, in part, to the long-standing, liberal standard for what plaintiffs must plead in their complaints to initiate a federal lawsuit and withstand a defendant’s motion to dismiss.  This liberal threshold standard was established by the Federal Rules of Civil Procedure (adopted in 1938) and later enforced by the Supreme Court in Conley v. Gibson, a seminal 1957 decision that permitted African-American railroad workers to proceed with their lawsuit to compel their union to treat all members fairly, regardless of their race.

As the Supreme Court recognized in Conley, “The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.”  For five decades after Conley, courts were directed to view allegations in a plaintiff’s complaint in the light most favorable to the plaintiff.  By contrast, the new, heightened pleading standard that the Court established in Twombly and Iqbal gives the benefit of the doubt to the defendant.  

This newly elevated pleading standard is particularly burdensome for civil rights plaintiffs.  Under the new standard, cases can be dismissed at first glance, without the benefit of any discovery or meaningful fact-finding.  Yet, without depositions and other discovery tools, it is extremely costly—and often impossible—for a plaintiff to prove a defendant’s discriminatory intent, even with support from the most capable and committed lawyers.  The danger of the Supreme Court’s new pleading standard is that it denies victims of discrimination the opportunity to expose barriers to justice and equal opportunity that, unfortunately, remain an enduring aspect of American life.

LDF is part of a broad mobilization urging Congress to overturn these two decisions and restore the liberal pleading standard that, for decades, has enabled civil rights litigants to root out discrimination wherever it exists.  Immediate Congressional action is needed to ensure that Twombly and Iqbal do not create an undesirable safe harbor that places some defendants beyond the reach of civil rights laws.