While many Penn State Law students are headed home for some rest and relaxation during the holiday break, students in the Civil Rights Appellate Clinic are busy hammering out the details of a reply brief in Coleman v. Maryland Court of Appeals that is due to be filed with the U.S. Supreme Court on Dec. 29. Work began on the brief over the Thanksgiving holiday. Clinic director Professor Michael Foreman will argue the case, set for Jan. 11.
The clinic represents Petitioner Daniel Coleman, an African-American, who filed suit against Maryland Court of Appeals and individual defendants for violations of Title VII of the Civil Rights Act and the Family Medical Leave Act. The Coleman case asks whether Congress constitutionally abrogated the states’ 11th Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act. A number of organizations, including AARP, the National Partnership for Women and Families, the American Civil Liberties Union, the National Employment Lawyers Association, the National Senior Citizens Law Center, the National Women’s Law Center, and the National Association of Working Women have filed a friend of the court brief (an amicus brief) in support of the clinic’s arguments.
Senator Tom Harkin and Representative George Miller on behalf of a number of U.S. senators and representatives also filed a brief supporting the clinic’s arguments. The Congressional brief emphasized that Congress intended the FMLA to be a remedy against sex discrimination in the workplace, and urged the Court to defer to Congress when deciding this case. Two other amicus briefs were filed on behalf of Coleman – one filed by the Constitutional Accountability Center and another filed by the Lawyers’ Committee for Civil Rights Under Law.
Supreme hands-on experience
Under Foreman’s supervision, second- and third-year law students experience appellate practice by representing clients in appeals by filing briefs and petitions to the Supreme Court and filing amicus briefs in cases involving civil rights issues. Graduate Fellow Kimberly Hibbard, who worked on the Coleman case as a student before graduating in 2011, continues to be a constant in the case — helping to keep Foreman and his students on track with meeting deadlines and adhering to important details required in filing a case with the Court.
As part of the hands-on learning experience, Foreman has all the students identify cases in which they think the clinic could play an important role, which is how the Coleman case was selected. After one student suggested Daniel Coleman’s case, Foreman and his students contacted Coleman’s counsel and discussed their interest in the case. Coleman’s attorney agreed to have the clinic file a petition for certiorari on Coleman’s behalf which was granted on June 27.
Of the 10,000 or so requests to review a lower court decision, on average the court grants and hears argument in only about 1 percent of those cases. So while elated to hear that the Coleman case was accepted for review, Foreman and his students had little time to revel in the good news with their work cut out for them in the coming months.
Work on the Petitioner’s merits brief began immediately. When most students were finishing up internships and returning back to Penn State for another school year, the students in the clinic were well on their way to finishing a brief that would go before the U.S. Supreme Court. The clinic filed its brief and joint appendix with the Supreme Court on Sept. 20, 2011. However, their work was far from over. Upon receiving Respondent’s brief over the Thanksgiving break, the students began its reply. In order to meet its deadline of December 29, the students worked though their finals and holiday break. While the students are busy working on the reply brief, Foreman is busy preparing for oral argument by reading background materials and participating in several moot courts empaneled with Penn State Law faculty, local judges, and other appellate lawyers. “Having done appellate work, I’m a firm believer in moot courts and with individuals who may not be like-minded. I’m doing several different types of moot courts so hopefully I’ll get a broad peppering of questions across the spectrum.”
Foreman has done civil rights work for most of his legal career. He was selected Appellate Lawyer of the Week by the “National Law Journal” which cited his work on the Coleman case and profiled other accomplishments including receipt of the Carnegie Award for Outstanding Heroism. Prior to joining Penn State Law, Foreman was deputy director of Legal Programs for the Lawyers’ Committee for Civil Rights Under Law. Previously he was the acting deputy general counsel for the U.S. Commission on Civil Rights, where he led the commission’s investigation of the voting irregularities in the 2000 presidential election. He also served as general counsel for the Maryland Commission on Human Relations and supervised a civil rights advocacy clinic at Harvard Law School.
Ellen Foreman, Penn State University
