Thursday, August 11, 2016
The Seventh Circuit ruled today in Kristofek v. Village of Orland Hills that a police officer's allegation of official misconduct in the higher ranks was protected speech under the First Amendment.
The ruling reverses the district court on the point and on its companion ruling that the police chief enjoyed qualified immunity. But the court rejected the officer's municipal liability claim.
The case arose when a part-time police officer, Kristofek, complained to colleagues and then to the FBI that a driver that he cited and detained may have been released, and charges dropped, because of official misconduct. (The driver's mother, a former township trustee, successfully intervened with local politicians and the police on behalf of her son. Kristofek thought that this might constitute official misconduct, based on a misconduct training that he attended.) Police Chief Scully then fired Kristofek.
Kristofek sued, arguing that his termination in retaliation for protected speech violated the First Amendment, and that the township was liable under Monell. The district court granted summary judgment to the defendants.
The Seventh Circuit reversed on the First Amendment claim. The court ruled that Kristofek spoke as a private citizen on a matter of public concern when he complained to his colleagues and to the FBI, and that the Pickering balance favored his speech. The court also denied qualified immunity to Scully.
But the court rejected Kristofek's Monell claim, because Scully didn't have authority to unilaterally fire Kristofek or to set department firing policy.
The ruling sends the case back for proceedings consistent with the opinion. But it also assigns the case to a new judge.
Wednesday, August 10, 2016
The D.C. Circuit yesterday rejected a constitutional challenge to Security and Exchange Commission Administrative Law Judges, ruling that SEC ALJs are not "officers" or "inferior officers" whose appointments need to meet the requirements of the Appointments Clause.
The court also rejected a broadside attack against the way the D.C. Circuit analyzes whether any ALJ (SEC or not) is subject to the Appointments Clause.
The petitioner's challenge was novel and sweeping. A ruling in its favor could have been quite significant, potentially threatening the authority of SEC ALJs, certain ALJs in other agencies, and possibly even ALJs across the board (at least insofar as their appointments don't satisfy the Appointments Clause). But the petitioner's novel claims ran up against circuit law. The ruling is thus a decisive win, if not a totally unpredictable one, for the government.
The case turned on whether SEC ALJs are "officers" (who, under Article II, require presidential nomination and advice and consent of the Senate), "inferior officers" (who, under Article II, may be appointed by the President alone, the courts, or the head of a department, depending on what Congress says), or just employees (who are not covered by the Appointments Clause). Under circuit law, the line between "inferior officers" and employees, in turn, depends on (1) the significance of the matters resolved by the officials, (2) the discretion they exercise, and (3) the finality of their decisions.
The court said that decisions of SEC ALJs are not final under the third prong, and therefore SEC ALJs are employees, not subject to the Appointments Clause. That's because under the law the SEC itself makes the final decision, even if only by passively adopting an ALJ's decision. The court explained:
Until the Commission determines not to order review, within the time allowed by its rules, there is no final decision that can "be deemed the action of the Commission." As the Commission has emphasized, the initial decision becomes final when, and only when, the Commission issues the finality order, and not before then. Thus, the Commission must affirmatively act--by issuing the order--in every case. The Commission's final action is either in the form of a new decision after de novo review, or, by declining to grant or order review, its embrace of the ALJ's initial decision as its own. In either event, the Commission has retained full decision-making powers, and the mere passage of time is not enough to establish finality. And even when there is not full review by the Commission, it is the act of issuing the finality order that makes the initial decision the action of the Commission within the meaning of the delegation statute. . . .
Put otherwise, the Commission's ALJs neither have been delegated sovereign authority to act independently of the Commission nor, by other means established by Congress, do they have the power to bind third parties, or the government itself, for the public benefit.
The court went on to uphold the Commission's finding of liability and sanctions against the petitioner on other grounds.
Monday, August 8, 2016
Judge Rosemary Collyer (D.D.C.) on Friday dismissed a case by the Libertarian and Greens against the Commission on Presidential Debates and others challenging their exclusion from the 2012 presidential debates and seeking to participate in the 2016 debates.
The ruling is hardly a surprise, despite the plaintiffs' mighty efforts to navigate well settled precedent.
The Libertarians and Greens argued that their exclusion under the Commission's 15% rule (a candidate needs 15% support in the polls to participate) violated antitrust laws and the First Amendment. But Judge Collyer held that they lacked standing, and that they failed to state a claim.
Judge Collyer said that the plaintiffs lacked standing, because their injury (lack of electoral support) was too speculative and was not traceable to Commission action (on the First Amendment claim) and because their injury wasn't a harm to the market (on the antitrust claim).
Judge Collyer went on to say that the plaintiffs failed to state a claim, because the Commission isn't a government actor subject to the First Amendment (on the free speech claim) and because they failed to allege an injury to competition in a commercial market (on the antitrust claim).
Given the plaintiffs' attempts to navigate well settled First Amendment law, Judge Collyer's ruling sometimes reads like a law exam answer--covering everything from the public function exception to the state actor doctrine, to right-to-access laws, to forum analysis, to the Jaybird primaries.
Despite the plaintiffs' efforts, however, they still lost. The ruling means that the Libertarians and Greens won't be at the 2016 presidential debates, at least not by court order.
Wednesday, August 3, 2016
The Court today issued a stay in G.G. v. Glouster County School Board, the case from the Fourth Circuit concluding that Title IX's ban on sex discrimination, 20 U.S.C. § 1681(a), requires schools to provide transgender students access to restrooms congruent with their gender identity. As we discussed,while the constitutional issues are not "front and center," the case implicates both the constitutional power of Executive branch agencies, federalism, and Equal Protection.
The stay opinion divides the Court, with Justices Ginsburg, Sotomayor, and Kagan dissenting without opinion.
Justice Breyer - - - the crucial vote for the majority - - - writes separately to concur stating that he votes to grant the stay "as a courtesy" joining the four other Justices to "preserve the status quo (as of the time the Court of Appeals made its decision)," meaning presumably, before the Fourth Circuit rendered its decision.
[Caricature image of Justice Breyer by Donkey Hotey via]
Monday, August 1, 2016
It's August and ConLawProfs in the North America are thinking about classes for the Fall semester. So, it's a good time to focus on pedagogy, as we'll be doing this month.
Yet if August brings the joys of contemplating going back in the classroom, it also brings the panic of impending deadlines, even if those deadlines are self-imposed. The legal academy has a tradition - - - and often incentives of "summer scholarship," although these may be fading given other pressures.
One way to address the annual August anxieties is to reject the idea of a stark separation between "summer" and the "academic year," and look for synergies between scholarship and teaching that enliven both. I've tried to do this in an essay, Enhancing Reciprocal Synergies Between Teaching and Scholarship, published in the Journal of Legal Education last year and available - - - for now - - - on the once-open source ssrn.
The article discusses the types of synergies that exist between teaching and scholarship for the legal academic - - - the professional, methodological, theoretical and doctrinal - - - which are easily adaptable to other academics. As is the overall suggestion that we should try to "pay attention" to the synergies between teaching and scholarship rather than viewing them as discrete, or even conflicting.
The article closes with a discussion of three "habits" of paying attention aimed at enhancing the reciprocal synergies between teaching and scholarship: letting the subconscious work, commemorating one's thoughts & ideas, and engaging - - - or not - - - in "daily practice."
Friday, July 29, 2016
In its extensive opinion in North Carolina State Conference of the NAACP v. McCrory, the Fourth Circuit has permanently enjoined the implementation of North Carolina SL 2013-381’s photo ID requirement and changes to early voting, same-day registration, out-of-precinct voting, and preregistration. The Voter Information Verification Act, the Fourth Circuit concluded, made a racial classification although it seemed neutral, reasoning that
on the day after the Supreme Court issued Shelby County v. Holder (2013), eliminating preclearance obligations, a leader of the party that newly dominated the legislature (and the party that rarely enjoyed African American support) announced an intention to enact what he characterized as an “omnibus” election law. Before enacting that law, the legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.
In response to claims that intentional racial discrimination animated its action, the State offered only meager justifications. Although the new provisions target African Americans with almost surgical precision, they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist. Thus the asserted justifications cannot and do not conceal the State’s true motivation.
The Fourth Circuit concluded that the North Carolina Voter Information Verification Act violated both the Fourteenth Amendment's Equal Protection Clause and §2 of the Voting Rights Act. For both, the hurdle was finding the legislature acted with racially discriminatory intent. Most of the opinion is devoted to this discussion. The Fourth Circuit reversed the district judge on this basis, writing that the judge seemed "to have missed the forest in carefully surveying the many trees," and ignoring "critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina."
In the Equal Protection analysis, the Fourth Circuit applied the well-established requirement of racial intent (as well as effects) from Washington v. Davis. In considering whether the seemingly-neutral voting requirements were enacted “because of,” and not “in spite of,” their discriminatory effect, citing Pers. Adm’r of Mass. v. Feeney (1979), the Fourth Circuit discussed the factors of Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977):
In Arlington Heights, the Court set forth a nonexhaustive list of factors to consider in making this sensitive inquiry. These include: “[t]he historical background of the [challenged] decision”; “[t]he specific sequence of events leading up to the challenged decision”; “[d]epartures from normal procedural sequence”; the legislative history of the decision; and of course, the disproportionate “impact of the official action -- whether it bears more heavily on one race than another.”
The Fourth Circuit then discussed these factors individually. Importantly, on the sequence of events, the opinion stated that
the General Assembly’s eagerness to, at the historic moment of Shelby County’s issuance, rush through the legislative process the most restrictive voting law North Carolina has seen since the era of Jim Crow -- bespeaks a certain purpose. Although this factor, as with the other Arlington Heights factors, is not dispositive on its own, it provides another compelling piece of the puzzle of the General Assembly’s motivation.
But, as the Fourth Circuit noted - - - and for which it faulted the district court - - - the factors should not be considered in isolation. Instead, Arlington Heights requires a totality of circumstances analysis.
The Fourth Circuit having found that race was a factor in the enactment of the Voter Information Verification Act (emphasis in original), the burden shifted to the state to demonstrate that the law would have been enacted without this factor, by assessing "whether a law would have been enacted without a racially discriminatory motive by considering the substantiality of the state’s proffered non-racial interest and how well the law furthers that interest." The Fourth Circuit faulted the district judge for conducting this analysis through a "rational-basis-like lens," when such deference is "wholly inappropriate."
The Fourth Circuit discussed each challenged provision of the Voter Information Verification Act. On the voter identification requirement specifically, the Fourth Circuit found Crawford largely inapplicable given that Crawford did not involve even an allegation of intentional race discrimination. It found that while preventing voter fraud is a valid government interest, the means chosen are both too narrow and too broad. Similarly, the Fourth Circuit found that the other provisions could not satisfy the standard:
In sum, the array of electoral “reforms” the General Assembly pursued in SL 2013-381 were not tailored to achieve its purported justifications, a number of which were in all events insubstantial. In many ways, the challenged provisions in SL 2013-381 constitute solutions in search of a problem. The only clear factor linking these various “reforms” is their impact on African American voters. The record thus makes obvious that the “problem” the majority in the General Assembly sought to remedy was emerging support for the minority party. Identifying and restricting the ways African Americans vote was an easy and effective way to do so.
The Fourth Circuit panel was unanimous to this point, but divided as to the relief. Judge Diana Gribbon Motz, wrote the panel's opinion except to Part V.B., from which she dissented. Her dissent is from a permanent injunction as to the photo identification requirement given that the North Carolina legislature passed a "reasonable impediment exception" from that requirement. She would"only temporarily enjoin the photo ID requirement and remand the case to the district court to determine if, in practice, the exception fully remedies the discriminatory requirement or if a permanent injunction is necessary."
The dissenting point is a small one. The Fourth Circuit panel unanimously held that the North Carolina Voter Information Verification Act violates both the Equal Protection Clause and §2 of the Voting Rights Act.
Friday, July 22, 2016
Alaska Supreme Court Holds Parental Notification Law Violates State Constitution's Equal Protection Clause
In its opinion in Planned Parenthood of the Great Northwest v. State of Alaska, the Alaska Supreme Court held unconstitutional the 2010 voter-enacted Parental Notification Law which required 48-hour advance parental notice before a physician may terminate a minor’s pregnancy, but importantly not before a physician could provide other care. The court's majority opinion, authored by Justice Daniel Winfree, found that the Parental Notification Law violates the Alaska Constitution’s equal protection guarantee by unjustifiably burdening the fundamental privacy rights only of minors seeking pregnancy termination, rather than applying equally to all pregnant minors.
Although explicitly under the state constitution, the court's equal protection analysis is a familiar one and executed with great precision. The court first identifies the classification - - - pregnant minors seeking termination and pregnant minors seeking to carry to term - - - and then identifies the level of scrutiny; because the right at stake is the fundamental one of reproductive choice is strict scrutiny. Applying the level of scrutiny, the court then examined the state's interests and the means chosen to effectuate those interests.
The court noted that to "justify differently burdening fundamental privacy rights, the State’s interests in doing so must be compelling," and that the State asserts two main interests as justifying the Notification Law’s disparate treatment of pregnant minors: (1) “aiding parents to fulfill their parental responsibilities” and (2) “protecting minors from their immaturity.” The court accepted that these were compelling interests, even as it refined the immaturity interest because "immaturity in and of itself is not a harm." Instead, the court defined the interest in “protecting minors from their immaturity” as "protecting minors from specific pitfalls and dangers to which their immaturity makes them especially susceptible" which in this case would be risks to mental and physical health and from sexual abuse.
The problem arose - - - as it so often does in equal protection - - - with the "fit" between the state's chosen means to effectuate its interests. As to the parental responsibility interest:
We conclude that vindicating the State’s compelling interest in encouraging parental involvement in minors’ pregnancy-related decisions does not support the Notification Law’s disparate treatment of the two classes of pregnant minors. Parents do have an “important ‘guiding role’ to play in the upbringing of their children.” We have said that “it is the right and duty, privilege and burden, of all parents to involve themselves in their children’s lives; to provide their children with emotional, physical, and material support; and to instill in their children ‘moral standards, religious beliefs, and elements of good citizenship.’ ” But as the State acknowledged at oral argument, this must be true for all pregnant minors’ parents, not just those whose daughters are considering termination.
[footnotes omitted; emphasis added]. Similarly, regarding the minor's immaturity, the court concluded that the statute suffered from being
under-inclusive because the governmental interests asserted in this case are implicated for all pregnant minors — as they face reproductive choices and as they live with their decisions — and the asserted justifications for disparate treatment based upon a minor’s actual reproductive choice are unconvincing.
One of the complicating legal issues of the case was the effect of a previous decision regarding a parental consent law, which the concurring opinion argued precluded an equal protection analysis. Instead, the concurring opinion argued that the 2010 statute was unconstitutional under the state constitution's privacy provision.
One of the five Justices of the Alaska Supreme Court dissented, arguing that the 2010 Parental Notification law violated neither equal protection nor privacy and was thus constitutional.
As the majority opinion notes, other states have similarly found state constitutional infirmities with parental notification laws. The Alaska opinion, however, is particularly well-reasoned and applicable to many state constitutions.
July 22, 2016 in Abortion, Cases and Case Materials, Due Process (Substantive), Equal Protection, Family, Gender, Medical Decisions, Privacy, Sexuality, State Constitutional Law | Permalink | Comments (5)
Thursday, July 21, 2016
The en banc Fifth Circuit yesterday ruled that Texas's voter-ID law, widely described as the most restrictive voter-ID law in the country, had a discriminatory effect in violation of Section 2 of the Voting Rights Act.
The ruling is a decisive victory for voting-rights advocates and opponents of Texas's voter-ID law. If the state appeals, it'll face an 8-member Supreme Court (assuming the Court would take the case). If the Supreme Court were to divide 4-4, the Fifth Circuit's ruling stays in place. (The Texas AG hasn't said yet what he plans to do, if anything.)
The sharply divided ruling sends the case back to the district court to fashion a remedy for the November elections.
Recall that Texas's voter-ID law was denied preclearance under the VRA, but Texas implemented the requirements as soon as the Supreme Court struck the coverage formula for preclearance in Shelby County.
This suit challenged the law under Section 2. The district court ruled that the law had a discriminatory purpose and a discriminatory effect in violation of Section 2.
The Fifth Circuit yesterday walked that ruling back, but just slightly. The court said that the district court erred in its analysis of discriminatory purpose, and sent the case back for further proceedings on that ground (because there may be sufficient evidence of discriminatory purpose, but the district court analyzed it the wrong way). But the court went on to agree with the district court that the law had a discriminatory effect.
Given the timing of the ruling (so soon before the fall elections), the Fifth Circuit instructed the district court to fashion a remedy for the law's discriminatory effect as to "those voters who do not have SB 14 ID or are unable to reasonable obtain such identification," with an eye toward one of the legislature's purposes, reducing voter fraud. That remedy could include something like voter registration cards, or an indigency exception to the ID requirement. The Fifth Circuit also instructed the lower court to "consider the necessity of educational and training efforts to ensure that both voters and workers at polling places are capable of making use of whatever remedy the district court selects."
The Fifth Circuit did not rule on the constitutional claims.
Monday, July 18, 2016
Judge Ellen Segal Huvelle (D.D.C.) ruled last week in State national Bank of Big Spring v. Lew rejected a Recess Appointments Clause challenge to Consumer Protection Financial Bureau Director Richard Cordray. At the same time, the court declined to rule on the plaintiffs' separation-of-powers challenge to the Bureau itself.
The ruling is a decisive win for Director Cordray and actions he took during his period of recess appointment (before he was confirmed by the Senate). But it leaves open the question whether the CFPB itself it unconstitutional--a question that the D.C. Circuit could answer any day now.
This is just the latest case in a spate of challenges to Cordray's appointment and the CFPB. We posted on this case when the D.C. Circuit ruled that the plaintiffs had standing.
The plaintiffs argued that Director Cordray's recess appointment in January 2012 violated the Recess Appointments Clause. And they had good reason to think they were right: the Supreme Court ruled in NLRB v. Noel Canning that the President's recess appointments to the NLRB on the same day he appointed Cordray violated the Clause.
But Judge Huvelle didn't actually rule on that argument. That's because President Obama re-nominated Cordray in 2013, and the Senate confirmed him; he then (as validly appointed head of the CFPB) issued a notice in the Federal Register ratifying all the actions he took during his recess-appointment period. Judge Huvelle said that under circuit law the ratification cured any actions during this period that would have been invalid because of his invalid recess appointment.
But at the same time, the court punted on the plaintiffs' separation-of-powers challenge to the CFPB itself. That argument--which says that the CFPB invalidly combines legislative, executive, and judicial powers in the hands of a single individual--is currently pending at the D.C. Circuit in another case, PPH Corp. v. CFPB, and the court could rule any day now.
Judge Huvelle's ruling is a clear win for the CFPB and Cordray. But the real heart of opponents' claims against the Bureau are the ones now at the D.C. Circuit--that the CFPB violates the separation of powers.
Saturday, July 16, 2016
The D.C. Circuit yesterday upheld a lower court's dismissal of David Patchak's long-running attempt to stop the Match-E-Be-Nash-She-Wish Band's casino in Wayland Township, Michigan, based on a federal law that stripped the courts of jurisdiction over the case.
The ruling ends this dispute in favor of the Band and its casino, with little or no chance of further appeals.
The case started when David Patchak sued the Interior Department for putting certain land in Wayland Township in trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians to build a casino. Patchak, a neighboring property owner, argued that Interior lacked authority under the Indian Reorganization Act and sought damages for economic, environmental, and aesthetic harms.
The case went to the Supreme Court on justiciability grounds, and the Court ruled in 2012 that Patchak had prudential standing.
After that ruling came down, Congress enacted a stand-alone law that affirmed that Interior had authority to put the land in trust and divested the courts of jurisdiction over Patchak's case. The act, in relevant part, read:
NO CLAIMS -- Notwithstanding any other provision of law, an action (including an action pending in a Federal court as of the date of enactment of this Act) relating to the land described in subsection (a) shall not be filed or maintained in a Federal court and shall be promptly dismissed.
The district court then dismissed Patchak's case, and yesterday the D.C. Circuit affirmed.
The court first rejected Patchak's claim that the jurisdiction-stripping provision violated the separation of powers. The court looked to the familiar distinction (recently sharpened by the Court's ruling in Bank Markazi) between a congressional act that applies a new legal standard in pending civil cases (which is OK) and an act that "prescribes a rule of decision" in those cases (which is not). The court said that this act falls squarely in the former class, even though Congress set the legal standard in a separate, stand-alone statute (and not the statute at issue in the case, the IRA).
The court next rejected Patchak's various individual-rights claims. The court said that the Act did not violate Patchak's First Amendment right to access the courts, because that right isn't absolute, and it yields to Congress's power to set the jurisdiction of the lower federal courts. The court said that the Act also did not violate Patchak's due process rights (because the legislative process provided Patchak any process that he might have been due) and the Bill of Attainder Clause (because the Act wasn't punishment).
Given the Supreme Court's powerful reaffirmation of congressional authority of federal court jurisdiction in Bank Markazi, the D.C. Circuit's ruling almost certainly ends Patchak's challenge.
Thursday, July 14, 2016
While the constitutional issues are not front and center in the controversies and litigation over gender identity and school bathroom access, the disputes certainly implicate constitutional issues of equal protection, federalism, unconstitutional conditions, and executive/agency as well as judicial powers.
A Virginia school board has filed a stay application in the United States Supreme Court pending a petition for writ of certiorari to the Fourth Circuit's opinion in G.G. v. Glouster County School Board. In G.G., a divided panel, reversing the senior district judge, concluded that Title IX's ban on sex discrimination, 20 U.S.C. § 1681(a), requires schools to provide transgender students access to restrooms congruent with their gender identity. (The senior district judge had not reached the Equal Protection claim, so it was not before the Fourth Circuit.) In construing Title IX, the Fourth Circuit relied upon a January 7, 2015 opinion letter from the United States Department of Education, Office for Civil Rights, with a similar conclusion. The Fourth Circuit accorded deference to the agency interpretation of Title IX under Auer v. Robbins (1997), because the relevant regulation was ambiguous - - - perhaps not in the plain meaning, but in its application:
Although the regulation may refer unambiguously to males and females, it is silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms. We conclude that the regulation is susceptible to more than one plausible reading because it permits both the Board’s reading— determining maleness or femaleness with reference exclusively to genitalia—and the Department’s interpretation—determining maleness or femaleness with reference to gender identity. [citation omitted]. It is not clear to us how the regulation would apply in a number of situations—even under the Board’s own “biological gender” formulation. For example, which restroom would a transgender individual who had undergone sex-reassignment surgery use? What about an intersex individual? What about an individual born with X-X-Y sex chromosomes? What about an individual who lost external genitalia in an accident? The Department’s interpretation resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.
The Fourth Circuit panel rejected G.G.'s request to have the case reassigned to another district judge, but did reverse, vacate, and remand the district court's order dismissing the complaint. The Fourth Circuit panel, in an unpublished opinion on July 12, denied the school board's motion for a stay pending appeal, again with one dissent.
The stay application in the United States Supreme Court pending a petition for writ of certiorari argues that the Fourth Circuit's opinion in an "extreme example" of judicial deference to an administrative agency and is the "perfect vehicle" for the Court's reconsideration of Auer v. Robbins (1997). The motion notes that several Justices have signaled such a reconsideration might be warranted, notably the late Justice Scalia, as well as Alito and Thomas, and Chief Justice Roberts. The application also argues that the DOE and DOJ have "seized momentum" and issued further instructions (citing a May 13 DOE "Dear Colleagues" Letter) which would further solidify Auer deference, making action by the Court necessary.
Meanwhile, thirteen states have filed a complaint and application for preliminary injunction in Texas, based on the same letter:
The central challenge is failure to conform with the Administrative Procedure Act, including notice and comment for rule-making. However, the complaint also alleges that the federal government defendants "violated the Spending Clause" by engaging in "unconstitutional coercion" by "economic dragooning." The complaint relies on that portion of the "Obamacare" case, NFIB v. Sebelius, in which a plurality found constitutional issues with the medicaid expansion program.
On May 13, 2016, following years of incremental preambles (“guidances,” “interpretations,” and the like), Defendants informed the nation’s schools that they must immediately allow students to use the bathrooms, locker rooms and showers of the student’s choosing, or risk losing Title IX-linked funding. And employers that refuse to permit employees to utilize the intimate areas of their choice face legal liability under Title VII. These new mandates, putting the federal government in the unprecedented position of policing public school property and facilities, inter alia, run roughshod over clear lines of authority, local policies, and unambiguous federal law.
July 14, 2016 in Cases and Case Materials, Current Affairs, Equal Protection, Executive Authority, Federalism, Fourteenth Amendment, Gender, Interpretation, Sexuality, Theory | Permalink | Comments (0)
Justice Ginsburg's comments about presidential candidate Donald Trump have caused controversy and invited comparisons with the late Justice Scalia's remarks and relationship with a sitting Vice President and his refusal to recuse himself from a case involving the VP which Scalia himself described as "heroic" in an interview. (Amy Howe for SCOTUSBlog has a great round-up of commentary on the controversy; Howard Bashman also has a good list).
But interestingly, Justice Scalia - - - as well as Justice Kennedy - - - broached the possibility of a Donald Trump presidential candidacy more than 25 years ago, in the 1989 oral arguments in Austin v. Michigan Chamber of Commerce. The Court in Austin upheld the constitutionality of a Michigan statute that prohibited corporations, excluding media corporations, from using general treasury funds for independent expenditures in connection with state candidate elections, rejecting both First Amendment and Equal Protection claims, and recognizing a government interest in preventing corruption or the appearance of corruption in the political arena from large corporate treasuries. Both Scalia and Kennedy dissented. Twenty years later, the Court, 5-4, with Kennedy authoring the opinion and Scalia joining, overruled Austin in the controversial 2010 Citizens United v. FEC.
Near the beginning of the Austin oral arguments, Justice Scalia uses Donald Trump, alluding to the wealth that would allow him to self-finance a campaign, as a comparison to corporate financing:
General Caruso, why is there a greater risk to the political process from an independent political expenditure by a family corporation, closely held corporation, eight family members, and they want to spend the corporation's money for a particular candidate whom they think will favor their business.
That... that is prohibited by this.
But if Donald Trump wants to come in and spend as much money as he likes, that is perfectly all right.
Why wouldn't it make much more sense, if you are worried about the problem, to establish an amount of money as the criterion?
A few moments later, Kennedy follows:
Then it... it seems to me that Justice Scalia's question indicates that you have to give a specific reason why a corporation of that type presents more [of] a danger than Donald Trump, and I didn't really hear the answer to that question.
Louis J. Caruso: Well, the thing of it is--
Anthony M. Kennedy: And it has to be answered in the terms of a compelling interest that is narrowly tailored.
Did Justice Kennedy actually call Donald Trump a "danger" in 1989?
h/t Navid Khazanei
July 14, 2016 in Campaign Finance, Cases and Case Materials, Courts and Judging, Elections and Voting, Equal Protection, First Amendment, News, Oral Argument Analysis, Speech, Supreme Court (US) | Permalink | Comments (0)
Monday, July 11, 2016
In a just-published article, Black Lives Matter and Respectability Politics in Local News Accounts of Officer-Involved Civilian Deaths: An Early Empirical Assessment, 2016 Wisconsin Law Review 541, ConLawProf Osagie K. Obasogie (pictured below) and UC Hastings law student Zachary Newman present a compelling discussion of how news media - - - and by extension the general public - - - engage in the politics of respectability with regard to allegations of police misconduct, focusing on the conduct or character of the victim.
The authors argue that although " sustained media attention to Black Lives Matter may lead some to conclude that journalists have become more sensitive to how respectability politics can lead to inaccurate reporting and encourage more balanced descriptions of these events, our qualitative assessment of the selected data suggests that journalists’ reporting of these incidents continues to reflect a troubling respectability politics that minimizes the lives lost and overstates the legitimacy of police use of deadly force."
In looking at news reports from 2013 until July 2015, the authors conclude that
overall, as a qualitative matter, there is a notable discursive consistency across pre– and post–Black Lives Matter reporting on officer-involved killings, suggesting that the movement’s concerns over race and respectability are not reflected in journalists’ accounts. This overall finding is empirically supported by three persistent themes throughout the data: (1) a strong commitment to colorblindness in discussing the race of the parties involved, (2) the dominance of the police perspective in reporting these incidents, and (3) continued use of criminalizing language unrelated to the incident itself to characterize the victim’s respectability.
The authors insights could be extended to more recent events, including those of this past week, which will be sure to still be on the minds of law students in our classes and this article could be a great introductory reading for 1L students.
Additionally, more must-read discussions of respectability politics including the events of the last week is over at Race and the Law Prof Blog, including Atiba Ellis's, On Respectability, the Dallas Shootings, #BlackLivesMatter, and Reasoned Discourse which links to that blog's online symposium on Respectability Politics.
July 11, 2016 in Current Affairs, Equal Protection, Fourteenth Amendment, Interpretation, News, Profiles in Con Law Teaching, Race, Reconstruction Era Amendments, Scholarship | Permalink | Comments (4)
In its opinion in Lone Star Security and Video v. City of Los Angeles, the Ninth Circuit upheld L.A.'s mobile billboard ordinances against a First Amendment challenge distinguishing the United States Supreme Court's 2015 Reed v. Town of Gilbert.
Recall that in Reed, Justice Kagan separately concurred in the unanimous decision to warn that strict scrutiny was not always appropriate and that "we may do well to relax our guard so that 'entirely reasonable' laws imperiled by strict scrutiny can survive." Here, it seems that the Ninth Circuit panel has taken that advice, applying the relaxed standard of time, place, and manner doctrine rather than content-discrimination meriting strict scrutiny.
The L.A. ordinances are directed at "advertising signs" on vehicles or attached to vehicles. Signs on vehicles - - - painted or permanently affixed - - - are allowed as long as they do not extend beyond the vehicle or make the vehicle unsafe. Signs that attached to non-motorized vehicles, such as those on standalone trailers, are prohibited from parking on city streets.
Judge Mary Murguia, writing for the unanimous panel, concluded that the ordinances applicability to "advertising" did not render the ordinances content-based. The opinion relied on a state case that construed advertising as displaying any message to the public rather than the content of that message and upheld an ordinance as applied to a nonprofit organization protesting animal cruelty. Moreover,
The Supreme Court’s recent decision in Reed does not alter our conclusion. Unlike Reed, the mobile billboard ordinances do not single out a specific subject matter for differential treatment, nor is any kind of mobile billboard exempted from regulation based on its content. There has been no suggestion that the ordinances apply differently to Lone Star Security’s political endorsements than to its commercial promotional campaigns, for example. Rather, an officer seeking to enforce the non-motorized billboard ordinances must decide only whether an offending vehicle constitutes a prohibited “advertising display” because its primary purpose is to display messages, as opposed to transporting passengers or carrying cargo. . . . In the case of the motorized billboard ordinance, an enforcing officer would simply need to distinguish between signs that are permanent or non-permanent, and larger or smaller than the vehicles to which the signs are affixed to determine whether the vehicle violates the ordinance.
[ellipses added; citations omitted]. Once having determined the correct standard was not strict scrutiny, the panel easily found that the ordinances survived review.
The parties do not dispute that the cities’ stated interests in traffic control, public safety, and aesthetics are sufficiently weighty to justify content-neutral, time, place, or manner restrictions on speech, nor could they.
As for the "narrow tailoring" required, the panel found that none of the ordinances were broader than necessary. Additionally, the panel found that there were ample alternative channels for communication, including advertising.
Appellants are free to disseminate their messages through myriad other channels, such as stationary billboards, bus benches, flyers, newspapers, or handbills. Appellants may also paint signs on vehicles and attach decals or bumper stickers. Although mobile billboards are a unique mode of communication, nothing in the record suggests that Appellants’ overall “ability to communicate effectively is threatened.”
The last quotation is from the United States Supreme Court's City of Los Angeles v. Taxpayers for Vincent (1984), on which Judge Murguia heavily relied. However, for Judge John Owens, Taxpayers for Vincent has its own flaws. In a brief concurrence, Judge Owens suggested that the United States Supreme Court should take a "second look" at Taxpayers for Vincent.
This case is about ugly signs on vehicles, and no doubt I would not want these vehicles and their signs parked in front of my house. But under the ordinances at issue, a car with equally ugly decals—including a decal of a vehicle with an ugly sign—would not “go to jail,” but instead treat my curb like the upper left corner of a Monopoly board.
If “aesthetics” are to play a part in speech restriction, then such aesthetics should apply equally, decal or sign. Yet under Taxpayers for Vincent, the Court rejected the very point that I now make. See 466 U.S. 810–12 (rejecting the Ninth Circuit’s holding that “a prohibition against the use of unattractive signs cannot be justified on esthetic grounds if it fails to apply to all equally unattractive signs wherever they might be located”). I think our court was right then, and the Supreme Court should reconsider this portion of Taxpayers for Vincent. As it currently stands, politicians can use Taxpayers for Vincent and its beholderish “aesthetics” to covertly ensure homogeneous thinking and political discourse. That is a dimension we should avoid. See The Twilight Zone: Eye of the Beholder (CBS television broadcast Nov. 11, 1960).
Judge Owens was not part of the Ninth Circuit panel that the Court reversed, although the third member of this Ninth Circuit panel - - - Judge Stephen Reinhardt - - - was. Judge Reinhardt, born in 1931, may also have seen the original episode of The Twilight Zone to which Judge Owens, born more than a decade after its original airing, refers.
Thursday, July 7, 2016
The Ninth Circuit ruled this week that a prosecutor is not entitled to absolute immunity for swearing out a false declaration in support of a subpoena for medical records of an unindicted third-party witness in a murder trial.
At the same time, however, the court said that the prosecutor is entitled to absolute immunity for issuing the subpoena and using the medical records at trial.
The case arose when a prosecutor sought Detrice Garmon's medical records in preparation for Garmon's son's murder trial. Garmon was set to testify as an alibi witness in her son's trial, but she was scheduled to undergo brain surgery with an uncertain outcome before the trial date. So she gave a deposition. She also authorized her medical plan to disclose to the prosecution medical records related to her brain tumor.
But the prosecutor in the case instead swore out a declaration that Garmon was the murder victim, and issued a subpoena for all of Garmon's medical records. The prosecutor then used Garmon's unredacted records to impeach her at trial, and Garmon's son was convicted.
Garmon sued, but the trial court held (among other things) that the prosecutor enjoyed absolute immunity.
The Ninth Circuit reversed. The court applied the distinction between a prosecutor's advocacy functions (triggering absolute immunity) and a prosecutor's administrative or investigative functions (triggering the lesser qualified immunity). The court said that the prosecutor's declaration was more investigative, and only gets qualified immunity, while the prosecutor's subpoena and use of the records at trial was more advocacy, triggering absolute immunity.
The ruling means that the prosecutor in the case has some protection, but not absolute protection, against Garmon's civil rights suit based on the false declaration.
The court also rejected Garmon's argument that absolute immunity is unavailable against claims of unindicted third-party witnesses. The court's ruling aligns it with the Second, Sixth, and Seventh Circuits. There's no circuit that goes the other way.
The case now goes back to the trial court, where Garmon will have a chance to amend her complaint to square with Monell on municipal liability.
Friday, July 1, 2016
Federal Judge Issues Preliminary Injunction Against Mississippi Law Seeking to Protect LGBT Discrimination
In a 60 page opinion in Barber v. Bryant, United States District Judge Carlton Reeves (pictured below) found Mississippi HB 1523, set to become effective July 1, constitutionally problematical under both the Establishment Clause and the Equal Protection Clause, and thus preliminary enjoined its enforcement.
The bill, Protecting Freedom of Conscience from Government Discrimination Act," sought to insulate the specific "sincerely held religious beliefs or moral convictions" that:
(a) Marriage is or should be recognized as the union of one man and one woman;
(b) Sexual relations are properly reserved to such a marriage; and
(c) Male (man) or female (woman) refer to an individual's immutable biological sex as objectively determined by anatomy and genetics at time of birth.
Judge Reeves characterized HB 1523 as a predictable overreaction to the Court's same-sex marriage opinion in Obergefell v. Hodges a year ago. In discussing the debates around the HB 152 and its texts, Judge Reeves also noted that the challenges to HB 1523 were also predictable, providing his rationale for consolidating the four cases.
Judge Reeves then considered standing of the various plaintiffs as well as Eleventh Amendment immunity, followed by the established preliminary injunction standards which have at their heart the "substantial likelihood of success on the merits."
On the Equal Protection claim, Judge Reeves relied on Romer v. Evans, and found that the legislative history established animus in intent:
The title, text, and history of HB 1523 indicate that the bill was the State’s attempt to put LGBT citizens back in their place after Obergefell. The majority of Mississippians were granted special rights to not serve LGBT citizens, and were immunized from the consequences of their actions. LGBT Mississippians, in turn, were “put in a solitary class with respect to transactions and relations in both the private and governmental spheres” to symbolize their second-class status.
Judge Reeves also found that the law would have a discriminatory effect. Judge Reeves applied the lowest level of scrutiny, but found that even "under this generous standard, HB 1523 fails." He agreed with the State's contention that HB 1523 furthers its “legitimate governmental interest in protecting religious beliefs and expression and preventing citizens from being forced to act against those beliefs by their government" is a "legitimate governmental interest." But concluded that the interest is "not one with any rational relationship to HB 1523." Indeed, the court declared that "deprivation of equal protection of the laws is HB 1523’s very essence."
On the Establishment Clause claim, Judge Reeves rehearsed the history of the Clause before focusing on two conclusions: HB 1523 "establishes an official preference for certain religious beliefs over others" and "its broad religious exemption comes at the expense of other citizens."For this latter point, Judge Reeves interestingly relied on and distinguished the recent controversial Burwell v. Hobby Lobby construing RFRA to confer a religious conscience accommodation to closely-held corporations:
The difference is that the Hobby Lobby Court found that the religious accommodation in question would have “precisely zero” effect on women seeking contraceptive coverage, and emphasized that corporations do not “have free rein to take steps that impose disadvantages on others.” The critical lesson is that religious accommodations must be considered in the context of their impact on others.
Unlike Hobby Lobby, HB 1523 disadvantages recusing employees’ coworkers and results in LGBT citizens being personally and immediately confronted with a denial of service.
Judge Reeves opinion is careful and well-reasoned, but is nevertheless sure to be appealed by Mississippi officials unless they alter their litigation posture.
July 1, 2016 in Cases and Case Materials, Courts and Judging, Current Affairs, Equal Protection, Establishment Clause, Federalism, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Opinion Analysis, Recent Cases, Reconstruction Era Amendments, Religion, Sexual Orientation, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0)
Tuesday, June 28, 2016
Judge Says Timber Company is Likely, but not Substantially Likely, to Have Standing to Challenge BLM Timber Sales
Judge Richard J. Leon (D.D.C.) ruled today that a timber company has a sufficient likelihood of showing standing to withstand a motion to dismiss, but not sufficient to get a preliminary injunction, in just the latest order in this six-year litigation thicket challenging the government's timber sales in the Pacific Northwest and the habitat for the northern spotted owl.
The ruling means that the company's case against the Bureau of Land Management can continue (because it has a sufficient likelihood of showing standing to withstand the government's motion to dismiss), but that it will not now get a preliminary injunction ordering the government to sell more timber (because it doesn't have a sufficient likelihood of showing standing to satisfy the "substantial likelihood of success" test for a preliminary injunction).
The six-year old case--or, really, series of cases--involves timber companies' and individuals' challenges to BLM's failure to offer for sale a declared amount of timber from two western Oregon districts in violation of the Oregon and California Railroad and Coos Way Wagon Road Grant Lands Act of 1937. (The government declined to sell a full quota in order to protect the spotted owl.)
In earlier phases of litigation, the government successfully moved to dismiss based on lack of standing. The corporations and individual officers came back with new allegations supporting standing, which formed the basis of today's ruling.
Judge Leon said that only one timber corporation, Rough & Ready, likely satisfied standing requirements to survive the government's motion to dismiss. That's because Rough & Ready, alone among the plaintiffs, alleged with particularity that the BLM's failure to sell timber caused it to close its doors and that its requested relief (an order requiring BLM to sell more timber) would redress that harm (and allow it to re-open).
But Judge Leon went on to say that Rough & Ready didn't show a "substantial likelihood" of standing (a higher standard than a mere likelihood of standing), and thus couldn't show a "substantial likelihood on the merits" in order to get a preliminary injunction that would require the government to sell more timber. Here's Judge Leon:
While the allegations supporting Rough & Ready's standing suffice to satisfy the lower "likely" standard required at [the] motion-to-dismiss phase, they fail to rise to the level of the "substantial likelihood" required at the preliminary injunction phase. In particular, although Rough & Read plausibly claims that its injuries are likely redressable as described above, its "hope to be able to reopen the mill and resume operations" if and when the BLM offers its full ASQ of timber sales is insufficient to establish substantial likelihood of redressability. That is, while the various allegations taken as a whole establish Rough & Ready's injuries are likely redressable, they simply fail to provide the basis necessary to establish the requisite substantial likelihood.
Judge Leon seemed to leave open the possibility that Rough & Ready could later establish this substantial likelihood, however, and perhaps successfully reapply for a preliminary injunction at a later time.
In the meantime, the case can proceed on the merits, though without a preliminary injunction.
Judge Leon dismissed the other plaintiffs' claims for lack of standing--mostly because (unlike Rough & Ready's claims) they weren't specific enough.
Monday, June 27, 2016
The United States Supreme Court's opinion in Whole Woman's Health v. Hellerstdet (previously Cole), declares unconstitutional both the admitting privileges and surgical center requirements of the controversial Texas HB2 statute passed in 2013 (despite the famous filibuster by Wendy Davis). Justice Breyer, writing for the five Justice majority found that the regulations place a substantial obstacle and constitute an undue burden on the abortion right.
In the first case to address abortion since 2008, the Court clearly reaffirmed the substantial obstacle/undue burden test and found that the Texas' statutory scheme was too restrictive. The divisions amongst the Justices was clear in oral arguments and previous proceedings (a divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part).
The bulk of the 107 page opinions is Justice Alito's dissent, joined by Chief Justice Roberts and Justice Thomas. (Note that even if Justice Scalia was still on the bench, the result would have been the same). Justice Thomas also wrote separately.
Justice Breyer's opinion for the Court rebuked the Fifth Circuit for incorrect doctrine.
The Court of Appeals’ articulation of the relevant standard is incorrect. The first part of the Court of Appeals’ test may be read to imply that a district court should not consider the existence or nonexistence of medical benefits when considering whether a regulation of abortion constitutes an undue burden. The rule announced in Casey, however, requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer. And the second part of the test is wrong to equate the judicial review applicable to the regulation of a constitutionally protected personal liberty with the less strict review applicable where, for example, economic legislation is at issue. The Court of Appeals’ approach simply does not match the standard that this Court laid out in Casey, which asks courts to consider whether any burden imposed on abortion access is “undue.”
The statement that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law.
With the correct standard (re)articulated, the Court then carefully considered the "record evidence" in this extensive litigation and agreed with the district judge that the Texas regulations placed substantial obstacles in the path of women seeking abortions, thus meeting the undue burden test. The Court also found that the Texas restrictions did little to serve the state's articulated interests in protecting women's health and may actually have undermined the state's interests.
On the admitting privileges requirement, the Court rehearsed the expert evidence at trial and also pointed to amicus briefs, both to explain the context of admitting privileges and the effect of the requirement (including clinic closures). As to the relation to the state's articulated interest in women's health, the Court added:
when directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.
The Court also specifically refuted the dissenting opinion's reliance on a well-known Pennsylvania scandal involving Gosnell:
Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years. Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually.
Justice Breyer's opinion for the Court engaged in a similar analysis as to the surgical center requirement. Again, the Court stated that the mandate does not serve the stated interests in women's health" "many surgical-center requirements are inappropriate as applied to surgical abortions." And again, the Court found that the record evidence as well as "common sense" meant that the (unnecessary) requirements would result in clinic closures which would result in a substantial obstacle to women's reproductive access.
While the Court's opinion is often very specific, Ginsburg's separate but very brief concurrence briefly strikes a broader note:
When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.
But whether one takes the specific or broader view, Whole Women's Health is a clear message to lower courts that their judicial function is to apply the current rule in a rigorous manner to preserve abortion access.
Thursday, June 23, 2016
The Supreme Court today deadlocked 4-4 in the case challenging President Obama's deferred action plan for certain unauthorized immigrants, or DAPA. The Court's ruling in United States v. Texas affirms the Fifth Circuit's ruling in the case. (Our preview of the case is here.)
While the Court's non-decision today has no precedential value, as a practical matter it upholds a nationwide preliminary injunction against enforcement of DAPA issued by district Judge Hanen. The ruling thus effectively halts enforcement of DAPA and sends the case back to Judge Hanen for proceedings on the merits. Here's the Fifth Circuit's summary of its ruling (which, again, is upheld under today's 4-4 split):
Reviewing the district court's order for abuse of discretion, we affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for an injunction.
Note that the Fifth Circuit ruling doesn't touch the Take Care Clause issue--an issue that the Supreme Court asked the parties to brief and argue, even though the government didn't seek review on this issue. Note, too, that the Fifth Circuit upholds a district judge's preliminary injunction that applies nationwide (and not, as would ordinarily be the case, in the judge's district only).
We don't know the justices' positions on particular issues in the case--standing, APA--because the per curiam order (as is customary for a 4-4 split) simply says that "[t]he judgment is affirmed by an equally divided Court." Still, this appears to be one of those cases where Justice Scalia's absence matters: he would have likely voted with the four (likely the conservatives, although we don't know for sure) to uphold the Fifth Circuit, creating a five Justice majority opinion that would have created precedential law.
The government may petition the Court (now) for rehearing (after a ninth justice is confirmed).
On Fisher's second trip to the Court, the United States Supreme Court has found that the affirmative action plan of the University of Texas did not violate the Equal Protection Clause. In a relatively brief opinion for the majority, Justice Kennedy, joined by Ginsburg, Breyer, and Sotomayor - - - recall Kagan was recused - - - affirmed the Fifth Circuit's conclusion rebuffing Fisher's equal protection claim (and some believed rebuffing the Supreme Court's remand).
Recall that Fisher I was a 7-1 opinion. (Only Justice Ginsburg dissented in Fisher I; Justice Kagan was recused, and Justice Sotomayor's joining of the majority has been subject to much speculation after her impassioned dissent in Schuette v. BAMN) remanding the case to the Fifth Circuit. On remand in 2014, the Fifth Circuit somewhat surprisingly essentially reiterated its earlier position, holding that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.
During oral argument, the possibility that there could ever be a constitutional mention of race in an admissions program was at issue, with Breyer actually "spelling it out" (After Breyer asked for an example of using race and Fisher's attorney replied "you could give more emphasis to socio-economic factors," Breyer stated: "That's not to use race. I'm saying r-a-c-e, race. I want to know which are the things they could do that, in your view, would be okay. Because I'm really trying to find out. Not fatal in fact, we've said. Okay? Not fatal in fact. Fine.")
Essentially, the Court today found that there were no workable race-neutral means to accomplish UT's compelling interest in diversity:
In short, none of petitioner’s suggested alternatives— nor other proposals considered or discussed in the course of this litigation—have been shown to be “available” and “workable” means through which the University could have met its educational goals, as it understood and defined them in 2008. Fisher I, supra, at ___ (slip op., at 11). The University has thus met its burden of showing that the admissions policy it used at the time it rejected petitioner’s application was narrowly tailored.
Kennedy's opinion ends with a paean to diversity and a warning, including to UT:
A university is in large part defined by those intangible “qualities which are incapable of objective measurement but which make for greatness.” Sweatt v. Painter, 339 U. S. 629, 634 (1950). Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.
In striking this sensitive balance, public universities, like the States themselves, can serve as “laboratories for experimentation.” United States v. Lopez, 514 U. S. 549, 581 (1995) (KENNEDY, J., concurring); see also New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting). The University of Texas at Austin has a special opportunity to learn and to teach. The University now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The University must continue to use this data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.
The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.
Justice Alito disagreed strongly and read portions of his dissent from the bench. His dissent was joined by Chief Justice Roberts and Justice Thomas (who also wrote briefly separately). Alito's 50 page dissent argues that the means chosen is not satisfied, but also questions diversity as a compelling governmental interest:
The University has still not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve. Its primary argument is that merely invoking “the educational benefits of diversity” is sufficient and that it need not identify any metric that would allow a court to determine whether its plan is needed to serve, or is actually serving, those interests.
Interestingly, Alito ends by suggesting that perhaps Amanda Fisher has no standing after all, and implying that his colleagues' (or one particular colleague?) integrity has eroded: "The majority cannot side with UT simply because it is tired of this case."