The Supreme Court declined to take up the appeal of a school administrator who claimed a school district retaliated against her for drawing attention to a funding disparity in the construction of schools in black and white neighborhoods.
The Supreme Court denied the petition for certiorari, or review, in Warren v. Kemp, in an unsigned order on Feb. 26.
No justices dissented. The court did not provide reasons for its decision. At least four of the nine justices have to vote to grant the petition for it to advance to the oral argument stage.
The petitioner is Janice Hargrove Warren, who claimed she was unfairly passed over by the school district for the position of superintendent.
The lead respondent is Mike Kemp, a member of the board of the Pulaski County Special School District. The school district is a co-respondent in the appeal.
The case goes back to 2017 when Ms. Warren, at the time the school district’s assistant superintendent for equity and pupil services, was allegedly retaliated against for disclosing school facility disparities. The information was used in a desegregation lawsuit, which upset several members of the board.
Ms. Warren said board members were unhappy after she told federal court about differences in the funding and building of Mills High School and Robinson Middle School.
Officials reduced the sum of $50 million a court ordered to be spent on Mills in a predominantly black neighborhood to $37 million and diverted funds from the project to Robinson in a predominantly white neighborhood. This action was discriminatory, she argued.
A court was monitoring the school board’s adherence to court-ordered desegregation. The school district, which has been federally supervised since 1982, but in 2021 was found to be in compliance except with respect to facilities.
A federal district court previously ruled in 2011 that the school district had “devoted a disproportionate share of its facilities spending to predominantly white areas.”
Ms. Warren sued under Title VII of the Civil Rights Act of 1964 and Section 1981 of the Civil Rights Act of 1866.
Title VII forbids discrimination with respect to “compensation, terms, conditions, or privileges of employment, because of [an] individual’s race, color, religion, sex, or national origin.” Section 1981 outlaws discrimination on the basis of race, color, and ethnicity in creating and enforcing contracts.
After a seven-day trial in 2022, a federal jury found the district did not discriminate against her on the basis of race or sex. But the jurors did find the district retaliated against her.
The U.S. District Court for the Eastern District of Arkansas ordered the Pulaski County Special School District to pay Ms. Warren $208,025 in damages for lost wages and benefits, plus $125,000 in other damages and $50,000 in combined punitive damages against two co-defendants.
Ms. Warren had initially sought almost $35 million in damages and back pay but reduced the amount sought to under $2 million during the trial.
In August 2023, a three-judge panel of the U.S. Court of Appeals for the 8th Circuit reversed the lower court and vacated the judgment.
The school district argued the decision had to be overturned because Ms. Warren’s reporting of disparities did not count as a legally protected activity, she did not experience an adverse employment action, and there was inadequate evidence to show she was not hired as superintendent because she disclosed the disparities.
“We conclude that Dr. Warren did not engage in a protected activity, so we need not reach the defendants’ other arguments,” the circuit court stated.
Ms. Warren was not engaging in a protected activity “because she did not report an underlying discriminatory employment practice.” She did not argue that her report concerned an employment practice but instead argued that “that making the report was a required employment practice, so she engaged in a protected activity.”
“But simply performing one’s job duties is not itself a protected activity under Title VII; a plaintiff must oppose a discriminatory employment practice,” according to the court.
In its decision, the circuit “held racial ‘disparity in the facilities had nothing to do with ‘compensation, terms, conditions … or privileges of employment’ under Title VII and, concomitantly, Section 1981. … The Eighth Circuit is wrong! Facilities, workplaces, and working conditions have everything to do with ‘compensation, terms, conditions … or privileges of employment’ under Federal employment law whether the question is raised in the context of sex, race, religion, or national origin.”
The 8th Circuit arrived at its conclusion without considering its own precedents on sex discrimination or the opinions of other circuit courts, she said in the petition.
“Because it held Title VII ‘had nothing to do with terms, conditions, or privileges of employment,’ the Eighth Circuit erroneously concluded that opposing discrimination in facilities was not a protected activity.”
Mr. Kemp waived his right to respond to the petition.
The Epoch Times reached out for comment to Ms. Warren’s attorney, Sarah Howard Jenkins of Little Rock, Arkansas, and to Mr. Kemp’s attorney, Cody Kees of Bequette, Billingsley, and Kees, also of Little Rock.
No replies had been received as of press time.
