March 25, 2013
Supreme Court Takes Another Affirmative Action Case: Michigan's Prop 2
Even as we await the United States Supreme Court's opinion on the constitutionality of a university's affirmative action plan in Fisher v. University of Texas argued October 10, it has become clear that Fisher will not be the Court's last affirmative action case.
Today, the Court granted a petition for certiorari in Schuette v. Coalition to Defend Affirmative Action to the Sixth Circuit's en banc decision in Coalition to Defend Affirmative Action v. Regents of the University of Michigan decided last November. Recall that the Sixth Circuit majority held Michigan's anti-affirmative action constitutional amendment, passed in 2006 as a ballot initiative Proposal 2, unconstitutional.
The en banc Sixth Circuit was seriously fractured, but none of the opinions considered the Court's affirmative action cases of Grutter and Gratz (or the pending case of Fisher). Instead, the relevant doctrine was the so-called "political process" aspect of the Equal Protection Clause which asks whether a majority may vote to amend its constitution to limit the rights of a minority to seek relief? This underlying problem is similar to some of the arguments in the Proposition 8 case - - - Hollingsworth v. Perry - - - to be argued before the Supreme Court tomorrow, March 26, and certainly resonates with the Ninth Circuit's reasoning in Perry finding that Prop 8 was unconstitutional.
In the case of Michigan's Prop 2, the Sixth Circuit majority found it troublesome that only as to racial classifications in university admissions would a person seeking to change policy have to amend the state constitution, as contrasted to other classifications that could be changed by various other means, including simply persuading an admissions committee.
As to what the Court's grant of certiorari in Coalition to Save Affirmative Action might mean for Fisher, reading the "tea leaves" is difficult. As we observed when the Sixth Circuit decided Coalition to Save Affirmative Action, a very broad approach in Fisher - - - such as a declaration that all racial affirmative action policies in education were per se unconstitutional - - - would seriously undermine the rationale of the Sixth Circuit opinion. However, a grant of certiorari in Coalition to Save Affirmative Action does not mean that Fisher will be narrow or that it will uphold the University of Texas' affirmative action plan.
And one additional "wrinkle": Justice Kagan is recused in Coalition to Save Affirmative Action.
[image Affirmative Action demonstration in 2003, via]
March 07, 2013
"Racial Entitlement": Professor Scalia, then and now
Justice Antonin Scalia's remark during the oral arguments in Shelby County v. Holder last week characterizing the preclearance provision of the Voting Rights Act as a "racial entitlement" has garnered much attention, including "gasps" in the Supreme Court chambers itself.
Of course, the ability of Scalia's comments to provoke is not new: his statements in last year's oral arguments in Arizona v. United States regarding the constitutionality of SB1070 drew particular attention.
In the Shelby argument, Scalia described the Voting Rights Act provision and its reenactments as
a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
To what writings does Justice Scalia refer? ConLawProf Chad Flanders, in a news commentary that is itself garnering attention, suggests that Justice Scalia might be referencing Professor Scalia's own writings. Flanders points to Scalia's article, The Disease as Cure: “In Order to Get Beyond Racism, We Must First Take Account of Race,” 1979 Wash. U. L. Rev. 147, available here.
Scalia's writing is not an article but rather published as a "Commentary" and obviously taken from his remarks on a panel at a Symposium entitled "The Quest for Equality." Scalia describes himself as the "anti-hero" of the panel: the other commentator was Herma Hill Kay and the main paper was by Harry T. Edwards. (Ruth Bader Ginsburg delivered the main paper on the next panel.) His subtitle is derived from Justice Blackmun's dissenting and concurring opinion in Regents of University of California v. Bakke, 438 U.S. 265, 407 (1978).
Scalia indeed does use the term "racial entitlement" in his remarks:
The affirmative action system now in place will produce the latter result because it is based upon concepts of racial indebtedness and racial entitlement rather than individual worth and individual need; that is to say, because it is racist.
But of course, his rejection of "racial indebtedness" was clear in his 1995 concurring opinion in Adarand Constructors, Inc. v. Pena, 515 U.S. 200, in which the Court held an affirmative action policy unconstitutional. Scalia wrote then:
[image: caricature of Antonin Scalia by DonkeyHotey via]
February 14, 2013
Daily Read: Dworkin on Winn and Bennett (and more)
Writing in The New York Review of Books in 2011, the late Ronald Dworkin described two recently rendered United States Supreme Court cases as "embarrassingly bad." The cases were Arizona Christian School Tuition Organization v. Winn and the then-pending Arizona Free Enterprise Club PAC v. Bennett.
Both were 5-4 decisions and both continue to be controversial, although the Bennett is overshadowed by Citizens United.
Dworkin's article is worth a (re)read.
For those in a more reflective mood, the New York Review of Books has highlighted his 2011 essay "What is a Good Life?" Dworkin wrote:
We are charged to live well by the bare fact of our existence as self-conscious creatures with lives to lead. We are charged in the way we are charged by the value of anything entrusted to our care. It is important that we live well; not important just to us or to anyone else, but just important.
Dworkin's voice will be missed.
February 14, 2013 in Affirmative Action, Campaign Finance, Cases and Case Materials, Current Affairs, First Amendment, Religion, Speech, Standing, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack
January 14, 2013
Daily Read: Sotomayor on Sotomayor
Sonia Sotomayor's memoir, My Beloved World, is now out in the world.
Writing about the book in WaPo, Dahlia Lithwick states "It is nearly impossible to read “My Beloved World” without comparing it with the only other deeply personal autobiography by a sitting Supreme Court justice, Clarence Thomas’s 2007 memoir, “My Grandfather’s Son.” Lithwick's comparison demonstrates a wide gap between the two Justices' self-presentations.
Discussing the book for NPR, Court correspondent Nina Totenberg echoed the Thomas' comparison, saying:
Justice Clarence Thomas was the last member of the court to write a book that topped the list of national book sales, but while his vividly written autobiography sizzles with rage and resentment, Sotomayor's hums with hope and exhilaration.
And in the Boston Globe review, Jax Wexler also makes reference to Clarence Thomas:
Readers seeking insight into Sotomayor’s judicial philosophy or her positions on hot-button issues will be largely, though not entirely, disappointed. With the constitutionality of racial preferences on the court’s docket again this term, it is refreshing to hear the views of a justice who benefitted from affirmative action and who is not Clarence Thomas. In her memoir, Sotomayor eloquently defends preferences for creating “the conditions whereby students from disadvantaged backgrounds could be brought to the starting line of a race many were unaware was even being run.”
Yet these first reviews - - - and surely more will follow - - - also stress the literary quality of Sotomayor's prose as much as its empathetic message and remarkable content.
This looks like it will be an excellent read.
January 04, 2013
ConLaw at AALS: Looking Towards Fisher
In 1973, the Court held in Rodriguez that there was no fundamental right to education. Plaintiffs alleged that substantial disparities in educational opportunity violated the Constitution. The Court found the Texas elementary and secondary school finance system constitutional because it was rationally related to advancing local control of education; the Court hesitated to second guess the Texas legislature in light of federalism principles and concerns about judicial competency to deal with school finance systems.
The first panel will focus on the legacy of Rodriguez and how the law can address educational disparities in elementary and secondary education. Panelists also will discuss the effect of limits on use of race-conscious programs under the 2007 Parents Involved decision, and will consider the implications of the grant of review in Fisher.In 1978, a deeply fractured Court decided Bakke. Only one paragraph of Justice Powell’s pivotal opinion was joined by four other justices; it held that a “properly devised admissions program” that took race into account could be constitutional. He envisioned a flexible, individualized program that would provide the educational benefits of a diverse class. In 2003, the Court in Grutter held that diversity could be a compelling interest; the Court upheld Michigan Law School’s program, even as it held (in Gratz) that Michigan’s more mechanical undergraduate affirmative action program violated equal protectio
The second panel will consider the legacy of Bakke and discuss how the Court should decide Fisher. Is racial diversity a compelling interest? What is the role of empirical evidence? What do the empirical studies tell us about the benefits or harms of affirmative action? Diversity may provide better learning outcomes for all students (or for certain students), better preparation of students for a diverse world, and better social results due to formation of a diverse group of leaders. Which potential benefits “count”? How can a program be narrowly tailored to advance the interest in educational diversity?
Kevin D. Brown, Indiana University Maurer School of Law
Speaker: Erwin Chemerinsky, University of California, Irvine School of Law
Speaker from a Call for Papers: Paul Horwitz, The University of Alabama School of Law
Speaker: Jennifer Mason McAward, Notre Dame Law School
Speaker from a Call for Papers: Eboni S. Nelson, University of South Carolina School of Law
Speaker: Angela I. Onwuachi-Willig, University of Iowa College of Law
Speaker: Michael A. Rebell, Columbia University School of Law
Co-Moderator: Kimberly Jenkins Robinson, The University of Richmond School of Law
Speaker: Richard H. Sander, University of California, Los Angeles School of Law
Co-Moderator: Mark S. Scarberry, Pepperdine University School of Law
More information here.
November 27, 2012
Daily Read: Political Parties and Judging
It's something that is, perhaps increasingly, difficult to ignore: the political affiliations of federal judges.
Adam Liptak's article in the NYT yesterday takes on the subject with a focus on the recent Michigan affirmative action decision from the en banc Sixth Circuit. Liptak provides the breakdown: "Every one of the eight judges in the majority was nominated by a Democratic president. Every one of the seven judges in dissent was nominated by a Republican president." This, he argues, is consistent with a forthcoming book, The Behavoir of Federal Judges, an empirical study authored by Lee Epstein, William Landes, and Richard Posner.
Liptak thus rejects - - - at least implicitly - - - the practice of SCOTUSBlog's preeminent reporter and commentator Lyle Dennison whose "note to readers" in his discussion of the Michigan affirmative action case explained; that he would not include "references to the political party affiliation of the Presidents who named the judges to the bench" because "the use of such references invites the reader to draw such a conclusion about partisan influence, without proof." Denniston, however, did include a caveat: he would provide that information" when "it is clearly demonstrated that the political source of a judge’s selection had a direct bearing upon how that judge voted — admittedly, a very difficult thing to prove."
Whether it is a question of causation, correlation, or coincidence is an issue often raised by law students in ConLaw classes, and one that ConLawProfs struggle to answer from various perspectives.
For Liptak, however, there is predictive certainty. Referencing the affirmative action case of Fisher v. University of Texas argued in October, he writes:
The justices’ votes in the Texas case are as yet unknown. But here is a good bet: every vote to strike down the program will come from a justice appointed by a Republican president, and every vote to uphold it will come from a justice appointed by a Democratic one.
November 15, 2012
En Banc Sixth Circuit Finds Michigan's Anti-Affirmative Action Proposal 2 Unconstitutional
In its opinion today in Coalition to Defend Affirmative Action v. Regents of the University of Michigan, the en banc Sixth Circuit has declared Michigan's anti-affirmative action constitutional amendment, passed in 2006 as a ballot initiative Proposal 2, unconstitutional.
The majority opinion, written by Judge Cole, and joined in full by seven other judges, and in part by others, applies the "political-process" doctrine of Equal Protection Clause. Disagreeing, there is a splintering of five other mostly dissenting opinions, joined by various other judges, with two judges not participating.
The opinion begins with a concrete illustration of the "political process" doctrine:
A student seeking to have her family’s alumni connections considered in her application to one of Michigan’s esteemed public universities could do one of four things to have the school adopt a legacy-conscious admissions policy: she could lobby the admissions committee, she could petition the leadership of the university, she could seek to influence the school’s governing board, or, as a measure of last resort, she could initiate a statewide campaign to alter the state’s constitution. The same cannot be said for a black student seeking the adoption of a constitutionally permissible race-conscious admissions policy. That student could do only one thing to effect change: she could attempt to amend the Michigan Constitution—a lengthy, expensive, and arduous process—to repeal the consequences of Proposal 2. The existence of such a comparative structural burden undermines the Equal Protection Clause’s guarantee that all citizens ought to have equal access to the tools of political change.
The court specifically discounted the Supreme Court's decisions in Grutter and Gratz - - - which arose in Michigan and prompted Proposal 2 - - - by stating it was "neither required nor inclined to weigh in on the constitutional status or relative merits of race-conscious admissions policies as such." Indeed, the majority charges the dissenters with seeking to take a "second bite" at Grutter. Instead, the constitutional challenge involved a "state amendment that alters the process by which supporters of permissible race-conscious admissions policies may seek to enact those policies."
With this interpretation, the court looked to Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969), cases that
expounded the rule that an enactment deprives minority groups of the equal protection of the laws when it: (1) has a racial focus, targeting a policy or program that “inures primarily to the benefit of the minority”; and (2) reallocates political power or reorders the decisionmaking process in a way that places special burdens on a minority group’s ability to achieve its goals through that process.
The court then applied the rule to conclude that Proposal 2 targets a program that “inures primarily to the benefit of the minority” and reorders the political process in Michigan in a way that places special burdens on racial minorities."
Interestingly, the en banc majority rejected any distinction based upon the race benefited or burdened:
The Attorney General and the dissenters assert that Hunter and Seattle are inapplicable to Proposal 2 because those cases only govern enactments that burden racial minorities’ ability to obtain protection from discrimination through the political process, whereas Proposal 2 burdens racial minorities’ ability to obtain preferential treatment. At bottom, this is an argument that an enactment violates the Equal Protection Clause under Hunter and Seattle only if the political process is distorted to burden legislation providing constitutionally-mandated protections, such as anti-discrimination laws. Under this theory, a state may require racial minorities to endure a more burdensome process than all other citizens when seeking to enact policies that are in their favor if those policies are constitutionally permissible but not constitutionally required. This effort to drive a wedge between the political-process rights afforded when seeking anti- discrimination legislation and so-called preferential treatment is fundamentally at odds with Seattle.
The only way to find the Hunter/Seattle doctrine inapplicable to the enactment of preferential treatment is to adopt a strained reading that ignores the preferential nature of the legislation at issue in Seattle, and inaccurately recast it as anti-discrimination legislation.
None of the opinions mention the recently argued case of Fisher v. Texas. If the United States Supreme Court were to take a very broad approach and declare that all racial affirmative action policies in education were per se unconstitutional, the rationale of today's opinion in Coalition to Defend Affirmative Action would be seriously undermined.
[image: "Women's Studies Turns 40" from the University of Michigan, via]
November 14, 2012
Constitutionalism and Jobs
In New York City on Friday:
October 18, 2012
Daily Read: Amicus Brief of the Family of Heman Sweatt in Fisher v. UT
Of the many amicus briefs filed in Fisher v. University of Texas-Austin, argued last week, the brief on behalf of the family of Heman Sweatt stands out. Heman Sweatt, of course, was the plaintiff in Sweatt v. Painter, decided by the Supreme Court in 1950. As the "interest of amicus curiae" section of the brief explains:
Amici curiae are the daughter and nephews of Heman Marion Sweatt, who in 1946 was denied admission to The University of Texas Law School for one reason: “the fact that he is a negro.” Texas law forbade UT from considering any of his other qualities: not his intelligence, not his determination, not the grit he gained living under and fighting Jim Crow.
In 1950 – four years before Brown v. Board of Education – this Court held that Sweatt must be admitted to UT, because the separate law school created to accommodate him was not equal in – among other things – intangibles such as reputation and because Sweatt would be “removed from the interplay of ideas and the exchange of views” with “members of the racial groups which number 85% of the population of the State.”
Today, UT honors the legacy of Heman Sweatt in many ways, none more important than its commitment to creating a genuinely diverse student body. It does so through an admissions policy that considers (to the extent allowed by the Texas Top Ten Percent Law, which depends on secondary-school segregation to increase minority enrollment) all aspects of an applicant’s character – including, in part, how that character has been shaped by race.
The brief not only highlights the "importance of race" but also the "importance of patience," arguing that the "25-year horizon Justice O’Connor envisioned for race-conscious admissions decisions [in Grutter] may have been optimistic."
More about Sweatt's case in the United States Supreme Court is available at the UT Tarlton Law Library's holding of the papers of Justice Thomas C. Clark.
[image: Prints & Photographs Collection, Heman Sweatt file, The Center for American History, University of Texas at Austin, via]
October 11, 2012
Daily Read: Rebecca Lee on Core Diversity
Professor Rebecca Lee (pictured) notes that "in this age of “diversity talk,” it may seem that the issue of workplace discrimination is somewhat passé, or at least not as much of the problem it was in the past." That was certainly some of the sentiment in yesterday's oral argument in Fisher v. UT. But Lee offers a more sophisticated interpretation, arguing that
Most employers implement models of diversity that promote only what I call “surface diversity” and “marginal diversity,” both of which focus on diversifying the organization’s ranks but which stop short of valuing diversity in full form, thus inhibiting substantive equity. The surface and marginal diversity paradigms neglect to treat the malady of embedded discrimination because they emphasize demographic diversity rather than diversity in a substantive sense. A focus on numerical parity alone, however, will not bring about racial and gender equity. Although women and people of color have been entering various workplaces in increasing numbers, the way in which work gets done has not changed much. This is because simply adding more members of previously excluded groups to the organization may not change dominant organizational practices that remain biased against such groups.
Instead in her 2010 article entitled Core Diversity, available on ssrn, Lee argues that much deeper and more structural change is necessary. This is definitely worth a read.
Lee's follow-up article, Implementing Grutter's Diversity Rationale: Diversity and Empathy in Leadership, available on ssrn, is also essential reading. In this article, Professor Lee makes more explicit the links between educational diversity and employment diversity.
October 10, 2012
Fisher v. University of Texas: Oral Argument
Bert Rein, arguing on behalf of petitioner Abigal Fisher opened his argument with a classic issue statement:
The central issue here is whether the University of Texas at Austin can carry its burden approving that its use of race as an admissions-plus factor in the consequent denial of equal treatment, which is the central mandate of the Equal Protection Clause, to Abigail Fisher met the two tests of strict scrutiny which are applicable.
His attempt to expand - - - by stating "first" - - - was quickly interrupted by Justice Ginsburg who raised the issue of standing, an inquiry that Justice Sotomayor joined. Justice Scalia attempted to provide an answer, referring to Fisher's as being "that she was denied a fair chance in the admission lottery."
Justice Breyer moved to the question of whether Fisher was asking the Court to "overrule Grutter," a question that Rein answered by stating that Fisher "could satisfy Grutter" if the case was "properly read."
During the rebuttal argument, Sotomayor asked "So you don't want to overrule Grutter, you just want to gut it."
MR. REIN: Excuse me?
JUSTICE SOTOMAYOR: You just want to gut it. You don't want to overrule it, but you just want to gut it.
MR. REIN: Well -
JUSTICE SOTOMAYOR: Now you want to tell universities that once you reach a certain number, then you can't use race anymore.
MR. REIN: Justice Sotomayor, I don't want to gut it. And the only way one could reach that conclusion is to assume that Grutter is an unlimited mandate without end point to just use race to your own satisfaction and to be deferred to in your use of race. That is unacceptable. That is the invasion of Abigail Fisher's rights to equal protection under the law. Thank you.
During the main argument, however, the Grutter discussion led to an extended discussion of the effect of Texas' "ten percent" program, to which the Grutter type admissions policy was only an augment.
Arguing for University of Texas, Gregory Garre also opened with a classic issue articulation - and was also quickly interrupted:
For two overriding reasons, the admissions plan before you is constitutional under this Court's precedents. First, it is indistinguishable in terms of how it operates in taking race into account as only one modest factor among many for the individualized considerations of applicants in their totality from plans that this Court has upheld in Grutter and plans that this Court approved in Bakke and the Harvard plan.
JUSTICE SOTOMAYOR: I -- I put that in the narrow tailoring category, that it is narrowly tailored the way Grutter did, said.
Chief Justice Roberts soon focused on the question of numbers and identity categories:
MR. GARRE: Your Honor, there is a multiracial box. Students check boxes based on their own determination. This is true under the Common Application -
CHIEF JUSTICE ROBERTS: Well, I suppose a person who is one-quarter percent Hispanic, his own determination, would be I'm one-quarter percent Hispanic.
MR. GARRE: Then they would check that box, Your Honor, as is true -
CHIEF JUSTICE ROBERTS: They would check that box. What about one-eighth?
And arguing for the federal government, supporting the position of University of Texas, Solicitor General Verrilli referred numerous times to Kennedy's dissent in Grutter and concurring opinion in Parents Involved, ending by stating:
I think it is important, Your Honors, not just to government, but to the country, that our universities have the flexibility to shape their environments and their educational experience to make a reality of the principle that Justice Kennedy identified in Parents Involved, that our strength comes from people of different races, different creeds, different cultures, uniting in a commitment to freedom, and to more a perfect union. That's what the University of Texas is trying to do with its admissions policy, and it should be upheld.
Daily Read: Malcolm Gladwell on Ivy League Admissions
Writing in the New Yorker in 2005, Malcolm Gladwell (pictured) argued that the fuss over admissions is best understood as consumerist: ivy league schools are a "luxury brand" - - - "an exquisitely constructed fantasy of what it means to belong to an élite - - - and they have always been mindful of what must be done to maintain that experience."
Most élite law schools, to cite another example, follow a best-students model. That’s why they rely so heavily on the L.S.A.T. Yet there’s no reason to believe that a person’s L.S.A.T. scores have much relation to how good a lawyer he will be. In a recent research project funded by the Law School Admission Council, the Berkeley researchers Sheldon Zedeck and Marjorie Shultz identified twenty-six “competencies” that they think effective lawyering demands—among them practical judgment, passion and engagement, legal-research skills, questioning and interviewing skills, negotiation skills, stress management, and so on—and the L.S.A.T. picks up only a handful of them. A law school that wants to select the best possible lawyers has to use a very different admissions process from a law school that wants to select the best possible law students. And wouldn’t we prefer that at least some law schools try to select good lawyers instead of good law students?
This search for good lawyers, furthermore, is necessarily going to be subjective, because things like passion and engagement can’t be measured as precisely as academic proficiency. Subjectivity in the admissions process is not just an occasion for discrimination; it is also, in better times, the only means available for giving us the social outcome we want.
While Gladwell doesn't discuss the specific type of "affirmative action" at issue in Fisher, his essay is certainly relevant to law school admission policies and to Fisher's articulation of the harm of not being admitted to UT undergraduate school.
[image of Malcolm Gladwell via]
October 09, 2012
Fisher v. University of Texas: Oral Argument Preview
The oral argument in Fisher v. UT - - - this term's "affirmative action" case - - - is scheduled for tomorrow and has been receiving much attention as SCOTUSBlog notes. One of the more interesting pieces is Adam Liptak's personalized NYT article that includes quotes from Abigal Fisher, who believes she "probably would have gotten a better job offer" if she had "gone to U.T.," as well as quotes from students. There is noteworthy scholarly attention. And as usual Lyle Denniston over at SCOTUSBlog does an excellent job parsing the issues as well as the possible line-ups of the Justices, asking provocatively "is affirmative action about to end?" Moreover, still one of the best templates of the issues is the "dissental" from en banc review in the Fifth Circuit by controversial Judge Edith Jones.
To the extent constitutional and legal arguments matter - - - and for some, that is a debatable question - - - there are several problematic twists that Fisher v. UT presents.
First, there is the standing of Abigal Fisher and relatedly, her claim for injury. This is not a case in which she was disabled from competing from any specific seat, unlike Bakke, and this is also a case in which she did attend university, unlike Barbara Grutter who did not attend law school. Adam Chandler has a terrific explanation of this aspect of the case, that he expanded here.
Second, there are factual discrepancies, and a problematic concession by Fisher regarding UT's government interest in seeking diversity.
If the Justices seem focused on the facts of the case during oral argument, this might be an indication that the Court would not render a decision on the merits because of these sorts of problems.
Third, there is a doctrinal issue in the case that bears notice. As one of its three sub-arguments that the UT plan fails strict scrutiny, Fisher argues that "UT cannot establish a strong basis in evidence that its use of race is necessary to further a compelling interest in student-body diversity." Sandwiched between the usual first prong of the "compelling interest" requirement and the second prong of the "narrowly tailored" requirement, this argument seeks to introduce a new prong. Fisher's argument in the main brief is telling:
UT also must demonstrate that its use of race in admissions is “necessary to further” an unmet compelling government interest. Adarand, 515 U.S. at 237. This demonstration of necessity requires a “strong basis in evidence.” Wygant, 476 U.S. at 277; Croson, 488 U.S. at 500; Grutter, 539 U.S. at 387-88 (Kennedy, J., dissenting) (“Our precedents provide a basis for the Court’s acceptance of a university’s considered judgment that racial diversity among students can further its educational task, when supported by empirical evidence.”) (emphasis added).
Recall that Adarand, Wygant, and Croson each involved "remedying past discrimination" as the compelling government interest (not diversity) and note that the citation from the 2003 Grutter v. Bollinger is from Justice Kennedy's dissent. Kennedy is widely considered the swing vote in Fisher, and much of UT's brief seems addressed to Kennedy.
Nevertheless, this "strong basis in evidence" standard is, of course, directly opposed to the "good faith" standard that Justice O'Connor articulated in Grutter. T he Court could easily "gloss" rather than explicitly overrule Grutter by reading in a high - - - and nearly impossible to meet - - - evidentiary standard.
Thus, at the heart of the matter may be just how much deference the Justices may be willing to pay to a state, including a state university, or how much the "unelected federal judiciary" may substitute its own judgments.
UPDATE: discussion of oral argument here.
October 9, 2012 in Affirmative Action, Current Affairs, Equal Protection, Fourteenth Amendment, Oral Argument Analysis, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack
September 28, 2012
Daily Read: Segall on O'Connor in Grutter
Finally, at the end of Justice O’Connor’s opinion [in Grutter] upholding the law school’s racial preferences, she wrote that, “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” How does Justice O’Connor know what the state of racial affairs know what the state of racial affairs will be in this country in 25 years and what authorizes her to put a sunset provision on the holding of this case? A legislator voting for an unpopular piece of legislation might wish to place her vote in the context of a statement suggesting that a time may come when her vote will change or become necessary. But given the historical and political complexity of the affirmative action debate, for Justice O’Connor to suggest that she has some special awareness as to when race-bases measures ay no longer be necessary, and to identify that time 25 years in advance, is judicial hubris and an inappropriate and arbitrary exercise of judicial power. In fact, it is not “judicial” at all.
It's from Eric Segall's book, Supreme Myths: Why the Supreme Court is Not a Court and Its Justices Are Not Judges (2012).
It is a sentiment with which others, including perhaps the now-retired Justice O'Connor, might agree, albeit in more gentle language.
Segall's chapter on "Affirmative Action" is a good review of the cases and controversies that have led to Fisher. His critical perspective on affirmative action would counsel the Court to defer to the university's use of racial criteria.
Segall's overall thesis - - - captured by the book's subtitle - - - provides a somewhat daunting view of the relevance of constitutional litigation in the Supreme Court, but Segall's book is ultimately an optimistic and engaging read.
September 19, 2012
Daily Read: Radice on Bell on ConLaw Pedagogy
Need some midweek teaching inspiration?
Professor Joy Radice shares her observations of the conlaw teaching of the late Derrick Bell (pictured): "Bell’s classroom community was a safe space to learn constitutional law, to discuss difficult but related issues of race, class, and gender, and to take risks when thinking about legal strategies."
Radice's terrific brief essay, "Derrick Bell’s Community-Based Classroom,” is part of the wonderful collection of essays from the conference last year, now available in Columbia Journal of Race and Law:
- “The Post Racial Era: Race, Silence, the Denial of Race/Racism and Optimism,” –Leonard Baynes, St. John’s University School of Law
- “Notes Toward a Critical Contemplation of the Law,” –Sonia Katyal, Fordham University School of Law
- “Derrick Bell’s ‘Afrolantica’ and Gentrification in Harlem,” –Twila Perry, Rutgers University School of Law
- “How Derrick Bell Helped Me Decide to Become an Educator, Not Just a Faculty Member,” –Vanessa Merton, Pace University School of Law
- “Derrick Bell’s Community-Based Classroom,” –Joy Radice, University of Tennessee College of Law
- “ ‘A Living Working Faith’: Remembering Our Colleague Derrick A. Bell, Jr. as Teacher,” –Andrea McArdle, CUNY School of Law
- “A Legacy of Teaching,” –Robin Lenhardt, Fordham University School of Law
- “Derrick Bell’s Children,” –I. Bennett Capers, Brooklyn Law School
- “From Interest Convergence to Solidarity,” –Julie Suk, Cardozo School of Law, Yeshiva University
- “A Multiplicity of Interests,” –Rachel Godsil, Seton Hall University School of Law
- “Racial Fortuity, Rights Sacrifice, and the Promise of Convergence in Prison and Policing Policy,” –Taja-Nia Henderson, Rutgers School of Law – Newark
Each one of these essays is worth a read.
September 17, 2012
Daily Read: Sanders on Fisher v. UT
Why should courts deciding constitutional questions give deference to a bunch of professors?
ConLawProf Steve Sanders (pictured) poses this query with reference to the Court's decisionmaking in Fisher v. University of Texas in his brief essay over at SCOTUSBlog (part of SCOTUSBlog's terrific Fisher Symposium).
The best answer, Sanders tells us, "is that faculty members’ educational judgments are formed by the specialized training, engagement with scholarly disciplines, and daily classroom experience they bring to their work, and judges lack these things."
An interesting take on academic freedom in the context of affirmative action.
September 03, 2012
Labor Day Scholarship Pick: "Labor and Racial Solidarity"In their draft "So Closely Intertwined: Labor and Racial Solidarity," available on ssrn, Professors Nancy Leong (Denver) and Charlotte Garden (Seattle) seek to bring alive the words of Martin Luther King from which their title is derived: "As I have said many times, and believe with all my heart, the coalition that can have the greatest impact in the struggle for human dignity here in America is that of the blacks and forces of labor, because their fortunes are so closely intertwined.”
ConLawProfs Leong and Garden deploy a variety of theories and doctrines, anchoring their article in "an interdisciplinary literature that includes insights from legal, economic, psychological and sociological scholarly research." They view their narrative as a counter-narrative to the conventional wisdom that the relationship between unions and people of color is one of rivalry. Their first section takes on four pieces of conventional wisdom:
- Interests of White and Non-White Workers Are Fundamentally Opposed
- Unions Benefit Only White Workers
- Unions Lack Racial Empathy
- Unions Don’t Care About Communities of Color
These myths are worth debunking, although Leong and Garden also discuss their genesis in scholarship and doctrine. One of the joys of the paper as a piece of co-authored scholarship is the authors' frank portrayal of their own attempts at understanding and their disagreements. In considering the difficulty in discerning how to interpret the "Black History Month event" organized by the SEIU, Service Employees International Union, the professors agree that there was "overt exoticism," but differed as to how broadly problematic the entire event should be judged.
The constitutional theory is mostly implicit, but this is an important piece bridging racial equality and employment equality for this Labor Day.
[image: Martin Luther King, 1964, via]
August 17, 2012
Federal DC Judge Enjoins Small Business Affirmative Action Program as Applied to Military Simulators
In an extensive opinion in DynaLantic Corp. v. United States Department of Defense, Judge Emmet G. Sullivan has enjoined the Small Business Administration and the Department of Defense from awarding procurements for military simulators under the Section 8(a) program without first articulating a strong basis in evidence for doing so.
In a nutshell, the judge found that the constitutionality infirmity resided in the agencies' failure to specifically determine "that it is necessary or appropriate to set aside contracts in the military simulation and training industry." Relying upon City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (plurality opinion), Judge Sullivan stated that " Croson made clear that the government must provide evidence demonstrating there were eligible minorities in the relevant market - in that case, the Richmond construction industry - that were denied entry or access notwithstanding their eligibility," and thus the agencies' lack of specific studies relating to the military simulation industry was fatal.
Yet Judge Sullivan rejected the facial challenge to Section 8(a) of the Small Business Act which permits the federal government to limit the issuance of certain contracts to socially and economically disadvantaged businesses. The corporation argued that the Section 8(a) program - - - a program that evolved from Executive Orders issued by Presidents Lyndon B. Johnson and Richard M. Nixon in response to the Kerner Commission - - - violated the Equal Protection component of the Fifth Amendment. Applying the rigorous standard of United States v. Salerno, 481 U.S. 739, 745 (1987). requiring that the "challenger must establish that no set of circumstances exists under which the Act would be valid,” Judge Sullivan carefully considered reams of studies, data, and information, as well as the corporation's arguments attacking the provision for being both overinclusive and underinclusive.
This litigation began in 1995 when the Navy determined it would award its contract for a flight simulator for the Huey helicopter (pictured above) through the Section 8 (a) program. DynaLantic's lawsuit was dismissed for standing, the D.C. Circuit reversed, and then protracted litigation continued as Congress reauthorized the program and a plethora of studies, evidence, and arguments accumulated.
As the educational affirmative action case of Fisher goes to the United States Supreme Court, DynaLantic is a reminder of the continued legacy of Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), as well as Croson in the government procurement context.
July 25, 2012
Scholarly Discussion on Fisher v. University of Texas
The United States Supreme Court is set to hear oral arguments in the affirmative action case of Fisher v. University of Texas on October 10, having granted certiorari from the Fifth Circuit's decision upholding the UT plan and perhaps informed by Judge Edith Jones' stinging dissent from the denial of en banc review, as we discussed.
The Vanderbilt Law Review En Banc Roundtable has just published a series of relatively brief articles on the case:
Girardeau A. Spann, Fisher v. Grutter
James F. Blumstein, Grutter and Fisher: A Reassessment and a Preview
Vikram David Amar, Is Honesty the Best (Judicial) Policy in Affirmative Action Cases? Fisher v. University of Texas Gives the Court (Yet) Another Chance to Say Yes
Gerald Torres, Fisher v. University of Texas: Living in the Dwindling Shadow of LBJ’s America
Tomiko Brown-Nagin, The Diversity Paradox: Judicial Review in an Age of Demographic and Educational Change
Each of these articles is worth a read and the law review editors promise further exchange among the authors.
May 23, 2012
CFP: AALS ConLaw Section
Section on Constitutional Law
Call for Papers for January 2013 AALS Annual Meeting Program:
“Forty Years after Rodriguez, 35 Years after Bakke:
Education, Equality and Fundamental Rights”
The Section on Constitutional Law and the Section on Education Law will be holding a joint program at the January 2013 AALS annual meeting. The program topic is “Forty Years after Rodriguez, 35 Years after Bakke: Education, Equality and Fundamental Rights.” The program will be held on Friday, January 4, from 2:00-5:00pm.
The panel organized by the Education Law Section will emphasize school financing, forty years after the Supreme Court held in Rodriguez that there is no fundamental right to education under the U.S. Constitution and that public school funding disparities are not subject to close scrutiny.
The Section on Constitutional Law panel will deal primarily with the constitutionality of racial affirmative action in higher education admissions. Among other matters, it will consider the implications of the Court’s grant of review in Fisher v. University of Texas, involving an undergraduate affirmative-action admissions program.
The Section on Constitutional Law invites submission of abstracts (of no more than five pages) for purposes of choosing one speaker for this panel. The speaker who is chosen will be expected to produce a paper that can be posted on the AALS web site prior to the annual meeting and that will be published in the Loyola Law Review.
Deadline Date for Submission: August 1, 2012
For more information and submission of abstracts, contact Professor Mark S. Scarberry, Pepperdine University School of Law, mark.scarberry AT pepperdine.edu.