Discrimination and the “Leveling Down” Puzzle

MICHAEL C. DORF

Cornell law professor Michael C. Dorf considers how much freedom the government has to “level down” in response to a finding of impermissible discrimination. Dorf discusses several of the U.S. Supreme Court’s precedents on leveling down and points out that these decisions are difficult to reconcile with each other and leave unresolved the questions whether and when leveling down is permissible.

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S.H. v. D.W.

Docket: 19S-PO-118

Opinion Date: January 31, 2020

Judge: Slaughter

Areas of Law: Family Law

The Supreme Court reversed the judgment of the trial court entering a second two-year protective order against Respondent, holding that there was insufficient evidence showing that Respondent presented a present, credible threat to Petitioner's safety in order to support the protective order. In 2016, Petitioner filed a petition seeking a protective order against Respondent. The trial court entered a two-year protective order against Respondent. In 2018, just days before the 2016 protective order was set to expire, Petitioner petitioned for another protective order against Respondent. After a hearing, the trial court issued another two-year protective order. The Supreme Court reversed, holding that there was insufficient evidence that Respondent posed a present, credible threat to Petitioner to justify the 2018 protective order.