Foreman, formerly deputy director of legal programs for the Lawyers’ Committee for Civil Rights Under Law, now directs the law school’s Civil Rights Appellate Clinic. Although he has argued cases in three state supreme courts and multiple times in all but two federal circuit courts, he will make his first high court argument on Jan. 11 in Coleman v. Maryland Court of Appeals.
“It’s a whole different ball game,” he said, adding as the argument draws nearer, “I wake up in the middle of the night with a question from a justice on my mind and I’ll jot down the name and question.”
The Coleman case asks the justices whether Congress validly abrogated the states’ 11th Amendment immunity from suit when it enacted the so-called self-care provision in the Family and Medical Leave Act (FMLA).
Foreman has done civil rights work for most of his legal career. Besides his more recent work with the Lawyers’ Committee, 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 pilot civil rights advocacy clinic at Harvard Law School.
Foreman has one other notable distinction: he is a certified hero. The attorney was awarded the Carnegie Medal for Outstanding Heroism for saving the life a nine-month-old boy in Pittsburgh, Pa., in 1986. The boy was in his family’s apartment when a man assaulted the boy’s mother with a knife. The injured mother ran from the building calling for help.
Hearing the mother’s screams, Foreman, then 31, left his nearby house, entered the apartment, and discovered that the child had been stabbed repeatedly by the man. Foreman disarmed the man and carried the infant outside to his mother. The infant was hospitalized in critical condition, and he recovered. To receive the award, a candidate “must be a civilian who voluntarily risks his or her life to an extraordinary degree while saving or attempting to save the life of another person. The rescuer must have no full measure of responsibility for the safety of the victim,” according to the Carnegie Commission.
Foreman grew up about 50 miles from his clinic, which is located in University Park, Pa. “Part of the reason I came to Penn State was I knew there was Dickinson Law School and that Penn State wanted to start a law school,” he recalled. “My feeling was if they were starting a law school, they would be very committed to research and to try to make it the best academic program they could do. That pleased me to be in on the ground floor. Other schools do have wonderful appellate programs, but then you’re fitting into their molds.”
His clinic is small, he said, and takes six to eight students each semester — second semester second-year students or third-year students. They have worked on amicus briefs and petitions to the Supreme Court. “One of the things we do in the clinic is I have all the students submit cases they think would be of interest, that have a civil rights angle, and in which the clinic could play an important role,” said Foreman.
One of his students identified Daniel Coleman’s case. He and his students contacted Coleman’s counsel and discussed their interest in the case. Coleman’s lawyer agreed to have the clinic file a petition for cert on Coleman’s behalf.
The federal FMLA provides employees with up to 12 weeks of unpaid leave for medical reasons or other qualifying circumstances. The self-care provision states that an employee is eligible for leave “because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.”
Coleman, who was employed by the Maryland Court of Appeals, sent his supervisor a request for sick leave in August 2007. At the time he was under a doctor’s care for 10 days to recover from a documented illness, according to the petition. His supervisor denied Coleman’s request and told him to either resign with 30 days’ leave or be terminated immediately. Coleman alleges that he was fired upon his refusal to resign. Coleman sued, claiming, among other charges, that the refusal to give him self-care leave violated the FMLA.
The U.S. Court of Appeals for the 4th Circuit affirmed the district court’s dismissal of Coleman’s lawsuit, ruling that the FMLA’s legislative history showed that gender discrimination was not a motivating factor for enacting the self-care provision and Congress had not abrogated states’ 11th Amendment immunity.
Foreman argues in his petition that as the Supreme Court held in 2003 in Nevada Dept. of Human Resources v. Hibbs, “Congress unambiguously intended to abrogate the States’ Eleventh Amendment immunity when it passed the family-care provision of the FMLA. That intent, combined with historic sex discrimination and the legislative record of the FMLA, demonstrate that Congress meant to target gender discrimination in the granting of family-care leave by private and state employers. This rationale applies with equal force to the self-care provision of the FMLA.
“The self-care provision provides gender-neutral access to leave to employees with serious medical conditions, including, but not limited to, pregnancy-related disabilities.”
Foreman has four students working on his reply brief, which is due Dec. 28. At the same time, he is preparing for argument by reading all background materials and gearing up for several moot courts. “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.”
He and his students also have taken time to get to know Daniel Coleman. “I want to know the client, talk to the client, and know where the client is coming from,” he said. “I had my students go down and meet Mr. Coleman. While this is an appellate practice, I don’t want my students to be removed from the people in these cases. I want them to know a life is affected.”
Marcia Coyle can be contacted at firstname.lastname@example.org.