Andrew Allard '25
Editor-in-Chief
Students and faculty at the Supreme Court Litigation Clinic are representing a straight client in a Title VII “reverse discrimination” claim. The Law School announced in early October that the Supreme Court had agreed to hear the case, Ames v. Ohio Department of Youth Services.[1] But the clinic’s filings in Ames date back to February, suggesting that clinic members have been working on the case for almost nine months. According to UVA Today, the case involves “a state employee’s sexual orientation discrimination claim.”[2]
Source: Phil Roeder
The Supreme Court accepted Ames for argument this term alongside another clinic case, Cunningham v. Cornell University, which involves the Employee Retirement Income Security Act. Securing two cert grants is a milestone for the clinic under its new director, Professor Xiao Wang, who joined the Law School last year. The clinic is also collaborating on a third Supreme Court case, Perrtu v. Richards, which is being defended by the Law School’s Appellate Litigation Clinic.
The Supreme Court Litigation Clinic had only brought three cases before the high court in the five years before Wang became director, most recently arguing Jones v. Hendrix in 2022. Speaking to the Law Weekly’s Hot Bench in September 2023, Professor Wang said that he hoped to change the clinic’s appellate strategy.[3] “I will be trying some creative ways to find more cases for students to work on,” said Wang, citing a downturn in the federal government’s appeals and law firm partners who are part of the Supreme Court bar as possible inroads.
But not all students are celebrating the clinic’s newfound success. Members of the Lambda Law Alliance at UVA (Lambda) have questioned the clinic’s decision to take on Ms. Ames’s reverse discrimination claim. In a statement published to Instagram on October 31, Lambda criticized the clinic’s decision to pursue a case that could use UVA resources to “undermine LGBT+ individuals’ interests and opportunities.” Lambda also criticized the clinic’s perceived lack of transparency in its case selection and assignment process, calling for the disclosure of the rubric and “ethos” guiding the clinic’s decisions.
Responding to an email inquiry on Ames and the clinic’s case selection policies, Professor Sarah Shalf ’01, the Law School’s Director of Clinical Programs, said that how the clinic selects cases is a “question of academic freedom” and that “case selection is a matter for the faculty member to decide.” Professor Shalf noted that the Supreme Court Litigation Clinic is guided by “several factors” in selecting cases, including the strength of legal arguments and pedagogical benefits.
Shalf also highlighted the educational benefits of clinics. “UVA Law’s Supreme Court Litigation Clinic is designed to give students the incredible experience of working as appellate lawyers at the highest level of practice,” said Shalf, noting that the clinic “represents a variety of clients on a wide swath of issues, covering the breadth of the political spectrum, as well as those with no political valence at all.”
Shalf emphasized that representing a variety of clients is both an educational benefit and an ethical duty of attorneys. “[T]he Supreme Court Clinic can and should teach students to engage with and advocate for a position or client that may be personally challenging because this is what lawyers do in practice,” she said. Professor Shalf encouraged students with specific questions about case assignment practices to speak to individual clinic directors for more information.
Last week, Lambda’s President, Marissa Varnado ’26 met with Professor Shalf to discuss Lambda’s concerns about Ames and the clinic’s case selection policies. Citing her conversation with Shalf, Varnado told the Law Weekly that clinics do not generally consider the impact on students when selecting cases. While Shalf reportedly reassured Varnado that clinics would consider student impact in “extreme” cases, she did not explain what would count as an extreme case.
Reflecting on the meeting, Varnado reiterated the need for transparency. “Our concern is that this will continue to be an issue: the Clinic in the dark takes a case that may constrain minority rights, the community finds out about it in a press release, and people continue to question whether they have a place in this community, at this University, or in this field.”
For her part, Professor Shalf expressed openness to continued dialogue about clinic practices. “I appreciate [Lambda’s] willingness to share their views about how to improve the clinical experience at the Law School. I look forward to ongoing conversations with Lambda, and I welcome conversations about clinical programs from any student or group.” Still, Shalf was careful not to suggest that clinics would be able to respond to all student criticisms, noting that “professional ethics rules prohibit us from having a community-wide discussion of the specific reasoning behind taking [Ames] or any other individual case.”
Professor Wang declined to comment, citing ethical and professional obligations. Clinic students assigned to the case likewise declined to comment, citing a general direction from clinic instructors to refrain from speaking publicly about ongoing cases. A disclaimer on the clinic’s webpage states: “The positions that the clinic takes on behalf of its clients are independent of the views of the University of Virginia or the School of Law.” Speaking to UVA Today in October, Professor Wang said of the case “We think that whatever the test is for discrimination, it should apply equally across groups and across individuals.”[4]
The Supreme Court Litigation Clinic is no stranger to controversial cases. Its recent appeal in Jones v. Hendrix also prompted criticism. Jones addressed the availability of post-conviction relief for criminal defendants whose conduct was later determined to fall outside the scope of the criminal law under which they were convicted. Critics noted that recent Supreme Court opinions had narrowed post-conviction relief, making it likely that the clinic’s appeal would resolve a defendant-friendly 8-4 circuit split unfavorably. The Court ultimately ruled against Jones, the prisoner.
Despite the fervor around Ames, Professor Joy Milligan, who teaches Civil Rights and Anti-Discrimination Law at the Law School, said that a win for Ms. Ames in the Supreme Court may not change the outcome of her case. “I don’t think the structure of the prima facie case is driving outcomes in these cases, whether they involve reverse discrimination claims or traditional discrimination ones,” said Professor Milligan, referring to the legal issue before the Supreme Court. “Much more important is simply whether the court thinks the plaintiff has made enough of a showing on their ultimate burden of persuasion to reach a jury.”
In this case, Milligan said Ms. Ames likely didn’t meet that burden. “[M]y read of the [lower court’s] opinion suggests that both the appellate and trial courts would equally have found that she failed to provide enough evidence to allow a jury to find in her favor, even without the finding on the prima facie case or the extra hurdle that their doctrine theoretically imposes at that stage.”
The deadline for briefing in Ames is set for February 2025, with oral argument likely to occur shortly thereafter. Cunningham, the clinic’s other pending case, is scheduled for argument on January 22. Wang is counsel of record in the filings for Ames and Cunningham, making him the most likely candidate for oral argument. They would be his first-ever oral arguments before the Supreme Court.
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tya2us@virginia.edu