The National Association of africanamerican owned media. Mr. Scott. Mr. Chief justice may i please the court. The plaintiff may succeed in the 1981 claim merely by showing that it was a factor considered in the defendants decisionmaking even if the decision would have made and was made for entirely appropriate business reasons having nothing to do with race. On this basis they saved them from dismissal. We submit that the decision is wrong and should be reversed for three reasons. First it is contrary to the decisions holding that it is the backbone Congress Must pursue in the federal statutes unless they provide otherwise which we would submit it does not. Second, in 1991, congress amended title vii to provide for the motivating factor standard but did not amend to provide the same even though it was amended in 1981 and other respects at the same time. This shows section 1981 as it requires with respect to the aea in retaliation provisions of title seven. Third, if affirmed it would be easier to recover the damages under section 1981 for the course of actions under any under the law for the discrimination law and thus affirming it would reflectively mean 1981 would displace the regime congress is divided to govern employment discrimination cases. Council, i wonder if the distinction they are fighting over is somewhat academic the Contract Negotiation process there may be several steps along the way it may be hard to prove but for the causation is harder to ignore the state in which there was clearly evident racial animus. I dont know about the thpossibility that it may ellede such an expression of animus that it could actually imply if it does allege that for the causation. Its also the case it was made in the end blame and context they were a factor in the Decision Making and theyve already determined the factfinder would have to make the decision to whether that factor not only played a role butci also had a determinative effect in the decisionmaking. You said that the respondents continue to say they dont have to prove but for the causation. Im a little confused abouto tt point and a in your reply brief you make the point that on page 47 or 49 of the respondents brief they seem to say the opposite. They are going to have to prove that for causation at the end and the question here is what they have to allege now. Lets just assume that its true. They are going to have to prove but for causation at the end. The plaintiff isnt going to know what the defendant was thinking about. What do you think the plaintiff has to allege at the beginning the ninth circuits ruling difference f between pleading ad merits and it was needed to prevail on the merits to than upholding the complaints if my assumption holds that the respondents did have to prove this at the end of the second point i was going to make we dont d know what the position s on that but the case may be in the sense that it defends what actually is happening that they are arguing for the Price Waterhouse framework without daring to name its name. This is to shift the burden of causation on to you but they dont have to be saying that. You dont want people throwing auound baseless allegations in the complaint. A complaint should be found sufficient even if it doesnt allege that for causation. Its enough to say they made a racist remark and they gave contracts to firms that were not as good as ours and that is enough. Answer to is line very clear from a discrimination case where they said we do not want people to open the door for discovery based on formulaic assertions. In our view that is what we have in this case. It isnt an answer to say because you can say that in practically every case but the fact especially with the mental state isnt it perfectly common when you are alleging a mental state of an opposing party and have yet to have discovery to a ledge on information and belief ted isnt that the simple solution here . Yes and no. You can allege that but if theres a statement and you have some factual circumstances that might lead to that inference then you would plead that mental state. And if you plead the circumstances that give ris gavo the inference then you would have a casece that complies decided voluntarily and that seems right, but we had the case before and its in the title vii context and that case is still a good law. What is sad is this is a shifting case. They said you dont actually have to even show the prima facie case that we understand the pleadings in the field were different and they say that its still good law. With all due respect that isnt fully accurate of the case or habit is distinguished. What was happening as the Second Circuit had a rule that it was efficient because they failed to allege the framework in the complaint. They pointed out that the framework plaintiff may choose to use at a trial, not depleting framework and that is what was later reaffirmed and what she was basically saying is you may choose to prove your case in a particular way tha but you are t requiredse to plead that in all cases. Mcdonnell douglas doesnt even apply if you have the direct discrimination in this as a way to move the case circumstantially so it doesnt make sense the burden to prove the pleading and i think all the court was saying is that if a plaintiff has the choice down the road to prove his case in a particular way that isnt a requirement of screaming but none of that has anything to do with i go back to the chief justices initial point which is if i come forward and show that race was a motivating factor, it can also be the butt for until a defendant is deposed and the discovery is held then that becomes an issue for the facts of whether or not that motivating to courtesy but for cause. So i think as long as you have enough in the complaint to show the racial animus and the reasonable inference can be drawn that it is a bug for cause i think that the plaintiff has done enough which you seem to be suggesting is that they are required to anticipate every potentially independent reason you may have had without even knowing it. They have said nothing to that effect. I said that a plaintiff is required to allege facts not the element of the offense that gave rise to the inference. The problem is the ninth circuit and even the government admits that it did. Through the lens that would we find but for causation. I would point out you would then have to examine that under the requirements. Dot us, the ninth circuit. Somebody. It is a discrimination case and you examine that it would be informative for the lower court. It wouldnt be with all due respect as many efforts have been made in thiss case to the identification of the court it is worth reading because there are any number of allegations in the complaint now agreerespondents that in the end the substantive standard is but for. Or is the only question before us whether enough facts were plaid which seems to have devolved into which isnt a big issue that has been per trade. They would have to further agree on the causation and they bear the burden. Said the disagreement of land would be if the evidence is exact which way would it go. I think what they mean to say in accepting the standard is not for the Price Waterhouse opinion they just dont want to call it that. The burden of persuasion under Price Waterhouse the burden of persuasion shifts to the defense by the preponderance. I think what is going on is that they are arguing Price Waterhouse. They did expressly in both courts below they are not actually citing it. That is also equally wrong for a number of different reasons. I dont know why they have argued the case the way they did, but if you look at the facts i on pages three to five f the respondents briefing, would you say those are insufficient to to satisfy the standard even if it is but for causation and Entertainment Studios channels are good enough supporting the field it turned out that according to them it didnt matter whether they got support in the field. We do say that that is enough and we have a number of reasons forr that. Some of what they say is not in the complaint. Some of what they say about the demand for the services is of something that they were able to allege in the third and last complaint. The notion about how they are courageous driven by the fact. They were suing at t and that tv. Mr. Chief justice may please the court, a plaintiff can prevail under section 1981 if yoitplayed any role in the decin not to contract. Its under the decisions and nobody defends that as the causation under section 1981. Instead, and i think that this gets to the line of questions respondents in the shifting argue a motivating factor can be enough. That might have been true under Price Waterhousebe burden shiftg but they no longer controls over the first time they turn to this shifting instead but even if it applies in this context it isnt relevant to the causation question. A shift so made the burden of production and trial so it cannot affect the element a plaintiff needs to prove or plead. And the decision underscores that and says there is no different analysis under what was the old notice pleading standard for these types of cases. Can i take you back to the basic structure and he can speak to himself what burden he is accepting or not. I am looking at the statute, and i do not see any of the butt for language because of any we have interpreted in any other statute. I see a statute that says all citizen should have thea same right. If you talk about the execution of the contract its designed to eliminate all discrimination. Igim not sure how we can square away those with a dot four. How can it be treated differently in the contract but you are denied the contracts for another reason that other people may have been denied up or that you were treated differently, more burdens were put on you, expenses were put on you and at the end they say we never would take on anyone like you with your business cause, and its true nobody with your Business Plan has been affected but you have run around in circles and spent a lot of money. Why is that not actionable . And somebody but never had the contract regardless of their race or whether they were denied the same right t rights to makee contract i think people would say no. The dictionary says the definition of making it is a process of being made. There are different words in the statute. Im happy to address the points of god. I want to go back to the broad point which is how can you say that you have the same right and that we are eliminating all vestiges of discrimination if we are not using demotivating factor they made an endorsement mechanism and that is the buck for language and its a good indication of the scope and true enough 100 years later the court entered a private right of action but i dont think that can change the substantive scope the congress enacted. The chief justices question as i understand, i dont understand what is the difference. They have some evidence in its own information we believe that of the defendants here they used race improperly to deny the contract. Who cares whether they say that it was a motivating factor. I understand if making a difference later when you decide who has the burden of proof because at that point, you know, that didnt maybe should. He knows what is going on in his mind into the plaintiff doesnt. Or maybe you should say split it that we are not apparently arguing about that we are just arguing about the complaint. Sure, use a motivating factor in the day was a motivating to her. Can you give me a case where it makes a difference . And i think it is often going to make a difference later down the line. Let me give you a hypothetical. This is a silly one, but think of it as did we plausibly make a difference thats what he wants to bee associated they get a letter back where they think that theres some sort of racial language and the letter also says we are not hiring you because you never went to law school. You see that in the court of appeals decision is the idea that the race could have been some sort of consideration, but the consideration that had no ultimate effect. If the applicant it could be so it says you should treat a white person in a black person alike. If it really does make a difference, i am stuck on both of those planes. Then you would have that causation but it does not mean even though a black person and white person wouldnt be treated that way it. On that separate question it doesnt say everybody is to be treated alike for all purposes it says everybody regardless of race has the same right to enter a contract and we certainly agree any consideration of race is pernicious and has no role and this court made clear in Dominos Pizza that it isnt in on the best and ominous remedy. To toss the 12 b6 stage quick. That want to get to the particulars we dont have the view i think often times the additional allegations on top of other allegations that was possible. What you say a complaint has to do to survive the 12 b6 i quick. His area exactly the same thing the complaint used to do under the ada and under title vii retaliation claim and to think that the race made a difference and that will be enough to survive. And with the burden shifting the burden remains with the plaintiff and then to set forth the reasons spirit the court said in patterson in the 1981 cases to embrace the context its an open question whether it is beyond the employment contex context. I dont think so for purposes of this case. The question presented is what the standard was. Mcdonnell douglas does not change the standard its only the order of introducing evidence athe trial with the ultimate standard. Thank t you counsel. Good morning mister chief justice may it please the court the statutory language using the words the court never a requirement and using no such words in 1981 with that procedural posture on a motion to dismiss all the ninth circuit held was sufficient to state a claim that race was a motivating factor this on page two a of the supplement. Its a good deal of confusion for causation and burden shifting. And that motivating standard with that framework and its true and statutory cases like Mcdonnell Douglas and for causation with the burden shifting ultimately your honor the case is to be resolved by looking at the plain language of section 1981 to start with the plain language section 1981 says all persons should have the same right as white individuals so this requite on as the requirement to be colorblind and then to deny it is not the same rate for contracting. Also its very important to compare section two of the civil rights act. Section two does use causal language. Section one does not use such language. At the end of the day what is the persuasion and like this quick. We have not presented this year on the proceedings ultimately does the burden of persuasion remain with the plaintiff at all times . So the adopting of Mcdonnell Douglas with the burden of persuasion. So what is your view . With the last analysis ultimately does the but for causation have to be shown quick. With a Mcdonnell Douglas framework it does indicate the burden of persuasion in the end rest with the plaintiff. But for what issue quick. To show the contract would not be issued but for risk. So this is just ao pleading case 12 b6. Exactly right. With page two a of the supplement which in this case that race was a motivating factor. Youre not agreeing with the ninth circuit. Yot. All the ninth circuit should focus on is a motion to dismisshe there is an issue down the road to say at the very end to has the burden of persuasion. I thought that Justice Kagan at the end of showing the but for causation. The the court adopted the framework it suddenly shifts the burden of production but never the burden of persuasion so in thatdu sense it seems to answer the question. So if you plead a motivating factor its enough. But would you accept as a matter of burden at trial you do have to prove but for fcausation. So what do you do with the examples the assistant solicitor general raised . You are black but you are not a lawyer we dont hire nonlawyers. For that you graduated from law school. In that instance so just imagine a different example of somebody files a complaint that says i went to a hotel to rent a room and i was told i could not get a room because none was available but i was also told that because they dont rent to blacks is that sufficient to survive the amount the motion . We say yes the argument is if it doesnt allege the but for causation it would not be enough it shows that is an impossible standard. If i understand your answer about the hypothetical why is it that fails under your view . Based on the racial indication it would be a motivatinge factor. Then that is sufficient. Even if the person is not a lawyer quick. It is possible the plaintiff could recover if that element is not present then it is not plausible then thats the question. So it would be absent in the hypothetical. So is it plausible in the hypothetical that was given. But even though a white person would not have had that discriminatory, they are not treated the h same. Because one is discriminatory conduct. You are right your honor. If race was a motivating factor that should be enough for them motion to dismiss. It is the but for causation test if he had not been black. Cant you put your bottom line and but for except the racial discrimination. It doesnt matter if thats a motivating factor. There is an enormous difference. F that the hotel says to an individual we are not renting a room to because we have no rooms and because you are black it does allege it is the but for cause. But that is every tort case for every student. Correct. Thank you. Head of the class. B[laughter] if they both it would have been sufficient. That does not meet the but for causation test but it wouldve happened to literally anyway. But this court is between the motivating factor in the but for causation. But to allege the but for causation it is a motivating factor. Please answer Justice Breyers question with a very hypothetical satisfied the butt for causation test quick. T no. Do you disagree with the case quick. No. Thats good. Thats a start. [laughter] but that is not the position. But its just plausible that it caused thebl injury. And they are the but for cause so why would that be exactly the case that survives. I hope that it would. And then to say look. And then normally how could you . So all you have to do is allege that he thinks this racial part was motivating and now they call that motivating. But he has to c believe that and then to go on what is difficult. The answer is this complaint goes forward either way. [laughter] you just want to win. Either way. [laughter] but the motivating factor is sufficient. Wouldnt it be unusual for us to say the test for the stage is a motivating factor but at the trial or Summary Judgment is the but for cause. Know your honor. Because this is so many context with the but for cause. No. Price waterhouse is a motivating factor throughout. It is the but for cause test and the prima facia case of the but for causation or the motivating factor. Rc it was unanimous it does not need to be prima facie second. We can disagree but wouldnt it be a little unusual to find different legal standards at different stages of the same case quick. Know yourre honor take constitutional cases. All this required of a motivating factor at the end it is the but for causation it is true with Mcdonnell Douglas as well. But what if the complaint alleges this was not the but for cause of the adverse actional but it was a motivating factor is that sufficient to go forward quick. With the hypothetical all that should be required is a motivating factor. Even if it concedes in the complaint of the buttt for clause quick. Unit thats a standard at the end of the day toward inevitable do quick. But the burden shifting framework is to establish what was the actual cause. But that this was the but for cause and to deny all others. But that seems very different from saying you have to have a motivating cause. Its true you cannot expect to navigate Everything Else this is pre discovery the plaintiff will not know Everything Else that is in the defendants mind but as long as the plaintiff comes forward with sufficient allegations that given what i know this defendant made a racist remark to and to firms that were not qualified why do you have to label that anything . Those are the kinds of facts at this stage of the litigation allow the complaint to go forward. As i said earlier those allegations should be sufficient and as Justice Alito pointed ou out. But then. Im just going to read you a sentence. That even if rachel asked racial animus was not the but for cause to contract a plaintiff can still prevail not satisfy the pleading standard by prevail. And then to be a factor in that decision. But the issue before the ninth circuit but here. But before you proceed. I would be grateful to know that dont you agree the ninth circuit was wrong quick. In terms of the statement if it would prevail and that was the issue. If we agreed it was wrong quick. And with the initial question with the burden shifting of Mcdonnell Douglas. I got it we will not have an answer. So in those 1981 cases with the ultimate bird in the persuasion if it wasap the but for cause we vacate the remand for the complaint what is wrong . Big given what justice k again just read from the night Circuit Decision how they assess the complaint and then to analyze the complaint wouldnt that be a better way to go quick. To say that race was a motivating factor. The conclusion with regard to the burden of persuasion doesnt change the pleading state. And in the ninth circuit actually held. We would not say anything about the plea stage it would just say the ultimate burden of persuasion that what they said per Justice Kagan. And they want to take the issue up patterson versus mclean that Mcdonnell Douglas shifts the burden of production but not persuasion. That deals with all the issues we are talking about here. So at least i have in my head. Dont go further if i dont. But this man would not contract with me he is the the bigoted person in state and says all kinds of racistal things and by the way he is my fifth cousin and he hates me. I never met anybody who hated me so much. And he would never have entered into this contract so there we have two sufficientt clauses in the absence of the either and do you win under the statute because the reason it is in the pleading stage what you alleged if there was if you dont win then why do you go further quick. Because we dont want to determine if the pleading stage was the actual cause. So if the plaintiff concedes that i believe the end the plaintiff would not prevail but that doesnt tell us what is required at the pleading stage. It seems the focus is on the availability. But thats not in the question either. The only reason to go to the burden shifting and answers many of the questions. The worst thing we could possibly do is try to describe the standard on the basis of Mcdonnell Douglas or price ewaterhouse which were Summary Judgment burdens. Wasnt simple enough to say from the allegations and the reasonable conclusion that race was the reason for the denial of a contract quick. And i disagree in most circumstances that is a motivating factor. And thats the worst thing they could do. [laughter] we have done a lot worse. It is a reasonable conclusion so alluding to the but for causation. We live in a world of multiple that we believe all thats required of the language of the statute that race is a motivating factor. With the but for causation in the complaint it says the but for causation. And then that paragraph of the complaint so that we meet the but for causation. And with a broad remedial purpose that the prima facie case. It just cites me as confusing with the different causal standards as opposed to the ultimate stage that we understand but not everybody will knowed everything in the way of proof so you show the but for causation thats never a soul cause so if you take away each of these three things but the motivating factor the outcome could be the same and it just seems quite confusing to me to put in something thats not the same question rather than to understand discovery and nobody can be expected to know what the defendant wouldd say. The court has repeatedly adopted the standard if it is the but for cause standard looking at the constitutional cases all of this is a motivating factor is 221 true with title vii as well. So to have that but for causation and with the Price Waterhouse. But as you know these are not usually thrown out and ultimately with the legal test in mind to see as Justice Sotomayor or said if there is a way it would ultimately meet the test for 1981 for discrimination and its a helpful question. Isnt that how it usually works. Ye yes. [laughter] i guess i am now picking up what Justice Kagan go look at the facts alleged in the complaint just to see if they meet the standard and its pretty rare to dismiss at this stage that is a pretty low bar. So to be the opinion that says the only question before us is that the standard is motivating factors. But the problem is they were accessing that arguably with the wrong test in mind. And then allow the complaint to go forward. That all the court needs to say is the ninth circuit is correctt and that perhaps you want to remand so again look at page number three thats exactly what they did that race was a motivating factor. You said we dont even have to do that. Yes we did your honor but its not a requirement but all that is necessary is a motivating factor. And then to say they are not arguing the but for cause but we are supposed to forget aboutin that with this slippery question that isnt even presented under your argument today. I agree with that the only question o presented it is notable there was a second question and that was whether or not all other explanation at the pleading stage and thats why it matters so much. All that it is before the court that race was a motivating factor. I know you didnt draft the complaint it goes on and on including an allegation entering into a racist conspiracy with the naacp kamal sharpton and the national action. Doesnt have any effect of what the District Court did here granting dismissal 12 b6 quick. Its not in the Second Amended complaint. And now it matters before this court is the Second Amended complaint that race was the motivating factor so these are such things and was told there was no channels all of those are carried by the other Cable Companies except for mister allens channels to show that race is a motivating factor. But also enough to allege naacp urban league and other individuals were in on the conspiracy that is not the Second Amended complaint the only matter for this core is the Second Amendment complaint properly before the District Court and this court. Two different perceptions our view there is enough to allege its a motivating factor with but for cause if you think the remedial purposes congress wanted them to open the door not to close it. Thank you. Thank you counsel. Mister chief justice i would before the court starting at page 54 a which the Second Amendment complaint where the current complaint continues to work and a glove with the federal government. To say that we have a minority owned network run by Magic Johnson and artists and claims africanamerican entertainers are to be signed up with comcast as a cover for racial discrimination. The period of the complaint is 2005 to february of 2015 when the complaint was filed so in a nutshell it is a racist book blk with the obama administration, the oldest civilrights organizations in the country. Is that actually in any plan that satisfies i dont know how many paragraphs this has. It could have 100 but any planets that satisfies the Civil Justice system has problems. If i could go back to the questn asked earlier with respect to the allegations the things i wanted to make clear what the settlement which was 2008 to february 2015 is that the carriage by at t and directv which is the largest in the country, 25 million or so is in the complaint said the allegationcomplaints of theallet complaint with respect to the demanddemand they can show by reference to this carriage is one that was introduced pending this litigation. We asked for notice of the fact that they were all pending and this probably had a bearing granting the motion to dismiss. Thank you mr. Chief justice. Thank you, counsel. The case is submitted. Next car acting director of the National Counterterrorism center on preventing terrorist attacks. This event from the Washington Institute is an hour and a