Monday, 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.

Affirmative_Action_supreme_court_demonstration_2003Today, 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.

RR
[image Affirmative Action demonstration in 2003, via]

March 25, 2013 in Affirmative Action, Elections and Voting, Equal Protection, Federalism, Fourteenth Amendment, Race, Recent Cases, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, March 11, 2013

Federal District Judge Upholds Most of Arizona's Anti-Ethnic Studies Law, HB 2281

Arizona's HB 2281, which we noted when it was passed in 2010,  has been primarily upheld by federal district judge Wallace Tashima in his opinion late last Friday in Acosta v. Huppenthal.   Recall that HB 2281, codified as Arizona Revised Statute §15-112 provides:

    A. A school district or charter school in this state shall not include in its program of instruction any courses or classes that include any of the following:

1. Promote the overthrow of the United States government.
2. Promote resentment toward a race or class of people
3. Are designed primarily for pupils of a particular ethnic group.
4. Advocate ethnic solidarity instead of the treatment of pupils as individuals.

532px-Arizona_1860_3Savings clauses in subsections E and F state that the statute should not be construed to restrict or prohibit instruction in various matters, including "the historical oppression of a particular group of people based on ethnicity, race, or class."

It was the savings clauses and Judge Tashima's narrow interpretation of the statute that supported his conclusion that most of the statute survived the First Amendment challenge.  Judge Tashima also ruled that the statute survived the Equal Protection and Due Process challenges.

As to the First Amendment, Judge Tashima explained:

Plaintiffs’ First Amendment claims are premised on two bases: the  right to speak freely in the classroom, and the right to receive information and ideas. The first basis cannot sustain their claims because the statute does not limit what students can say in the classroom. But the statute does implicate the second basis because Plaintiffs have an established right to receive information and ideas in the classroom. Limitations on this right, however, are subject only to limited scrutiny, i.e., whether the provisions are reasonably related to a legitimate pedagogical concern.

In construing the first and second provisions - - - banning courses that  "promote the overthrow" or "promote resentment" - - -  he stressed a narrow reading of the word "promote."  He also ruled that the exception for "historical oppression" (in the savings clause section F) keeps "the proscription from crossing the constitutional line."  

However, he held that the third subsection - - - "Are designed primarily for pupils of a particular ethnic group" - - - could not be similarly saved.  He noted that this provision does not promote any legitimate interest that is not already covered by the second provision, and could "chill the teaching of legitimate ethnic studies courses." 

He returned to his narrow reading to uphold the fourth provision - - - "advocate ethnic solidarity:"

Thus, if the statute simply proscribed courses that taught ethnic solidarity, without any reference to the treatment of students as individuals, it likely would not survive even the most deferential scrutiny. The provision, however, is more narrowly tailored than an outright ban on the teaching of ethnic solidarity. Instead, the statute prohibits the “advocacy” of ethnic solidarity “instead of the treatment of pupils as individuals.” By phrasing this provision in the alternative, and by restricting only the direct “advocacy” of ethnic solidarity, the provision is at least reasonably related to legitimate pedagogical concerns.

Judge Tashima disposed of the Equal Protection and Due Process challenges with much more expediency.  Regarding Equal Protection, he found that the statute did not make an express racial classification, and although there were "red flags"  and "some aspects of the record may be viewed to spark suspicion that the Latino population has been improperly targeted" that "on the whole, the evidence indicates" that it was the program and not "Latino students, teachers, or community members who supported or participated in the program" that was the issue.  Regarding Due Process, Judge Tashima concluded in a paragraph that there was no prima facie showing.

It seems likely that an appeal to the Ninth Circuit will be forthcoming.

RR
[image: 1860 map of Tucson area via]

March 11, 2013 in Due Process (Substantive), Equal Protection, First Amendment, Fourteenth Amendment, Opinion Analysis, Race, Speech | Permalink | Comments (0) | TrackBack (0)

Daily Read: Symposium Issue on Perry from NYU Review of Law & Social Change

Debuting on line today is volume 37:1 of the NYU Review of Law & Social Change, a symposium issue dedicated to Perry v. Brown, now Hollingsworth v. Perry that is scheduled to be heard by the United States Supreme Court in 15 days.

According to the Introduction, the Symposium editors sought to present the issue as a "time capsule," filled with "leading and emerging voices in the LGBTQ movement" as well as other scholars, "reflecting on Perry before the Court has its final say, before anyone gets the benefit of 20/20 hindsight."  The comments were "first drafted before the Court had even granted certiorari" on the premise that Perry was already an important case.

The Symposium participants were asked to address three queries.  Here are the questions and the participants:

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The Symposium will also be available as a print issue, but meanwhile having its full contents available before the arguments makes it more valuable as a daily - - - or weekly - - - read.

RR

March 11, 2013 in Family, Fundamental Rights, Gender, Race, Scholarship, Sexual Orientation, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, March 8, 2013

Daily Read: Obama Signs VAWA

Apropos of International Women's Day today, President Obama's signing of the reauthorization of the Violence Against Women Act (VAWA) yesterday is the daily read, including the official remarks and the video below. 

 

 

As the President's remarks reflect, the version of VAWA that passed Congress is notable because it includes protections for Native Americans (expanding tribal jurisdiction), for undocumented persons, and for persons in same-sex relationships.

And they are also notable for his shout-out to one of my former students, Sharon Stapel, for her work.

RR
[video via]

March 8, 2013 in Congressional Authority, Family, Fourteenth Amendment, Gender, Race | Permalink | Comments (0) | TrackBack (0)

Thursday, March 7, 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.  

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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:

under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual.

And of course, Scalia is not alone in his views.  Not only was he concurring in Adarand, but the notion of affirmative action as racist is forcefully articulated by Chief Justice John Roberts in the last (substantive) line in the opinion for the Court in  Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007):

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

Perhaps the issue is not so much the provenance of Scalia's statements during oral arguments, but the surprise they are still capable of provoking.

RR
[image: caricature of Antonin Scalia by DonkeyHotey via]

March 7, 2013 in Affirmative Action, Conferences, Current Affairs, Equal Protection, Fifteenth Amendment, Fourteenth Amendment, Race, Scholarship | Permalink | Comments (2) | TrackBack (0)

Daily Read: Linda Greenhouse on Shelby and the Voting Rights Act

Linda Greenhouse's NYT "Opinionator" column is almost always worth a read.

But yesterday's column entitled "A Big New Power" is a must-read for anyone considering the Court's pending opinion in  Shelby County v. Holder and the controversy surrounding Scalia's remarks during the oral argument.

Greenhouse begins:

Years from now, when the Supreme Court has come to its senses, justices then sitting will look back on the spring of 2013 in bewilderment. On what basis, they will wonder, did five conservative justices, professed believers in judicial restraint, reach out to grab the authority that the framers of the post-Civil War 14th and 15th Amendments had vested in Congress nearly a century and a half earlier “to enforce, by appropriate legislation” the right to equal protection and the right to vote.

Greenhouse admits she is forecasting the outcome, but her column makes that outcome seem less palatable.

RR

March 7, 2013 in Elections and Voting, Fifteenth Amendment, History, Race, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 27, 2013

Daily Read: William Faulkner and the Voting Rights Act

424px-William_Faulkner_01_KMJAs the Court - - - and the country - - - consider the Voting Rights Act (VRA) and the constitutionality of the preclearance provision at issue in Shelby County v. Holder ConLawProfs might find useful the insights of  Andrew Cohen, Atiba Ellis, Adam Sewer (on CJ Roberts), Adam Winkler or numerous others.  But the observations of William Faulkner (pictured), Nobel Prize in Literature recipient who placed Yoknapatawpha County, Mississippi on our (fictional) maps are also pertinent according to Joel Heller's excellent article, Faulkner’s Voting Rights Act: The Sound and Fury of Section Five, 40 Hofstra Law Review 929 (2012), and available on ssrn.

Joel Heller argues that pronouncements that 'The South has changed' fail to take into account the "ongoing burden of memory that Faulkner portrays so powerfully."  Heller contends that the VRA's section 5 preclearance provision "does not punish the sons for the sins of the father, but keeps in check the uncertain consequences of a current ongoing consciousness of those sins."  Heller uses Faulkner to effectively discuss various attitudes short of intentional discrimination that might nevertheless have racially discriminatory results.  These include lawmakers shame and denial of the past accompanied by a devotion to the "things have changed" mantra that would prevent perceptions of racially problematic actions.  Additionally, "local control" possesses a nostalgic power, even as the era being evoked was one of white supremacy.

While Faulkner did not live to see the VRA Act become law, Joel Heller's engaging article is definitely worth a read as the Court considers Congressional power to remedy discrimination in the Old/New South.

RR
[image of William Faulkner via]

February 27, 2013 in Books, Congressional Authority, Elections and Voting, Fifteenth Amendment, History, Race, Reconstruction Era Amendments, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, February 25, 2013

Sotomayor Focuses on Prosecutor's "Racially Charged" Remark

Writing in a "Statement" accompanying the denial of certiorari in Calhoun v. United States today, Justice Sotomayor (joined by Justice Breyer) sought to "dispel any doubt whether the Court’s denial of certiorari should be understood to signal our tolerance of a federal prosecutor’s racially charged remark." 

480px-Sonia_Sotomayor_in_SCOTUS_robeDefendant Calhoun's intent to participate in a drug conspiracy was a central issue and the defendant took the stand.  As Sotomayor explains:

The prosecutor pressed Calhoun repeatedly to explain why he did not want to be in the hotel room. Eventually, the District Judge told the prose- cutor to move on. That is when the prosecutor asked, “You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you—a light bulb doesn’t go off in your head and say, This is a drug deal?”

For Sotomayor, such prosecutorial argument threatens to violate the equal protection guarentee as well as the defendant's right to an impartial jury. She also castigated the government's original position on appeal that the prosecutor's argument was merely "impolitic," and agreed with a Fifth Circuit Judge who noted that the prosecutor's argument clearly "crossed the line."

But the unusual posture of the case - - - including issues preserved for appeal - - - meant that Sotomayor's Statement was a statement, and not a dissent from the denial of certiorari.  But a strong statement it certainly was:

I hope never to see a case like this again.

RR

February 25, 2013 in Criminal Procedure, Equal Protection, Fifth Amendment, Race, Recent Cases, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Saturday, February 23, 2013

Daily Read: Andrew Cohen in The Atlantic on Shelby and the Voting Rights Act

Entitled "After 50 Years, the Voting Rights Act's Biggest Threat: The Supreme Court," Andrew Cohen's extensive article just published in The Atlantic is a must-read for anyone following the Court's pending oral argument (on Wednesday, February 27) in Shelby County v. Holder.  

Recall that the Court's grant of certiorari last November 9 put the Voting Rights Act (VRA) "in the crosshairs" of the Court - - - as we said at the time - - - noting that the VRA's constitutionality had been seriously questioned but ultimately evaded by the Court's 2009 decision in Northwest Utilities District of Austin v. Holder .  The DC Circuit had upheld the constitutionality of the preclearance provisions of the VRA.

 

LyndonJohnson_signs_Voting_Rights_Act_of_1965
"President Lyndon B. Johnson signs the Voting Rights Act of 1965 while Martin Luther King and others look on"

Andrew Cohen's article provides a terrific contextualize of the politics, including the Court's politics, that surround the constitutional controversy.  Cohen writes that "racial polarization has intensified during the Obama Administration," with "'explicit anti-black attitudes'" around the country, "especially among Republicans," many of whom "sponsored and enacted some of the voter suppression laws of the 2012 cycle."  Cohen also argues that the Court essentially "invited many of the state voter suppression efforts of the past three years" by its decisions, including not only Northwest Utilities District of Austin v. Holder, but also the 2008 decision in Crawford v. Marion County, upholding a voter identification statute.  Cohen contends: "Having created the factual and legal conditions to undermine the federal law, the Court now is poised to say that it is weakened beyond repair."

Cohen concludes that the stakes in Shelby are very high:

If the Court strikes down Section 5 of the Voting Rights Act, this year especially, given the record of the past three years, the justices who do so will reveal a disconcerting level of disconnect from the realities of modern American politics as they were expressed in the near-unanimous renewal of the Act in 2006. And the partisan ruling they would issue in this circumstance would be even more brazenly ideological and untethered from precedent than the Citizens United ruling issued in January 2010.

Cohen's timely, provocative, and well-argued article is definitely worth a read and would be a great suggested reading for law students considering the issue.

RR
[image via]

February 23, 2013 in Courts and Judging, Current Affairs, Elections and Voting, Fifteenth Amendment, History, Interpretation, Race, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Monday, February 18, 2013

Daily Read: Reinstein on Executive Power and Haiti

Today we celebrate "Presidents' Day" and ConLawProfs contemplating executive power might do well to consider the Haitian Revolution (1791-1804) as a formative experience. 

In his new article, Slavery, Executive Power and International Law: The Haitian Revolution and American Constitutionalism, available in draft on ssrn, ConLawProf Robert Reinstein argues that the "six administrations from George Washington through John Quincy Adams responded to the slave revolt and establishment of Haitian independence in ways that greatly expanded executive power." 

420px-Toussaint_L'OuvertureIndeed, as Reinstein reminds us, the first sole executive agreements were made by Adams with regard to Haiti (predating the seizure of the schooner The Wilmington Packet by six months).  Reinstein contends that the Haitian history is important because

Many of the most controversial questions presidents face in the modern era—whether to support regime change, use military force to protect American interests abroad, intervene in civil wars, arm foreign rebellions, form secret agreements with governments or belligerents, comply with obligations of international law—were first faced in the American reactions to the Haitian slave revolt.

Yet as Reinstein observes, the history also reveals conflicting executive interests, at times favoring  domestic fear of a similar slave-revolt and at other times favoring geopolitical (and capitalist) interests. At the center - - - not surprisingly - - - is Thomas Jefferson, who vowed to reduce Haiti's charismatic leader Toussaint L'ouverture to "starvation." 

But Reinsten also centers the Supreme Court's hostility to the establishment of the second independent nation in the Western Hemisphere.  Reinstein writes that as   "Congress debated the first Haitian embargo bill, a Representative asked: “Have these Haytians no rights?”"  Reinstein concludes that the "answer ultimately given by the United States government was unequivocal: “No.”"

An important - - - and oft-neglected - - - history of executive power as well as judicial power worth a read on Presidents' Day.

RR
[image of Toussaint L'ouverture from a French engraving circa 1802 via]

February 18, 2013 in Executive Authority, History, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, January 21, 2013

Daily Read: Martin Luther King on Meet the Press 1965

In a 1965 "Meet the Press" interview, Martin Luther King speaks about civil disobedience, nonviolent protest, and racial equality, responding to the queries from the interviewers.

 

  

 

Worth a watch on this MLK Day, 2013.

RR
[video via]

January 21, 2013 in History, Race, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 9, 2013

Stop and Frisk in the Bronx Enjoined by Federal Judge

In her 200 plus page opinion in Ligon v. City of New York, federal district judge Shira A. Scheindlin enjoined "stop and frisk" practices of the NYPD in the Bronx.  The stop and frisk practices by law enforcement have been increasingly controversial, including arrests of persons attempting to document the practice.

Tp-task-force-at-silent-march-6-17-12The problem in Lignon is a relatively simple one.  The standard for stop and frisk is reasonable suspicion, established by Terry v. Ohio (1968).   In the Bronx, there was a practice of Terry stops on the basis of reasonable suspicion of trespass outside buildings in the Bronx that are enrolled in the Trespass Affidavit Program (“TAP”), which was formerly known in the Bronx as Operation Clean Halls.  Seemingly, the building, rather than any activity by people, gave rise to the "suspicion" and many people were subject to a Terry stop and frisk outside their own residences. 

The judge concluded

while it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters, such a line exists, and the NYPD has systematically crossed it when making trespass stops outside TAP buildings in the Bronx. For those of us who do not fear being stopped as we approach or leave our own homes or those of our friends and families, it is difficult to believe that residents of one of our boroughs live under such a threat. In light of the evidence presented at the hearing, however, I am compelled to conclude that this is the case.

The judge made it clear that she was

not ordering the abolition or even a reduction of TAP, which appears to be a valuable way of using the NYPD’s resources to enhance the security in voluntarily enrolled private buildings. My ruling today is directed squarely at a category of stops lacking reasonable suspicion.

Precisely because these stops lack rational justification, they are presumably of less value to public safety than would be the stops of individuals who displayed objectively suspicious behavior.

But she did rule that the "NYPD is ordered immediately to cease performing trespass stops outside TAP buildings in the Bronx without reasonable suspicion of trespass."   Judge Scheindlin also ordered consolidation of the hearing on some other remedies with the remedies hearing in Floyd v. City of New York, a stop and frisk challenge involving the entire city and not only the borough of the Bronx.

RR
[image from protest against stop and frisk via]

 

January 9, 2013 in Criminal Procedure, Fourth Amendment, Opinion Analysis, Race | Permalink | Comments (0) | TrackBack (0)

Monday, January 7, 2013

Daily Read: Pam Karlan on the 2011 United States Supreme Court Term

Pamela Karlan's "Democracy and Disdain" is the Forward to Harvard Law Review's annual Supreme Court issue for the 2011 Term and is a compelling - - - indeed, necessary and delightful - - - read.  Karlan's central thesis, as the title aptly communicates, is that the Roberts' Court has little but disdain for the democratic process.  By "Roberts' Court," of course, she means the five Justices who usually form the majority, including Roberts, Scalia, Thomas, Alito, and Kennedy.  

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Professor Karlan (pictured) concludes that this disdain will ultimately bring the Court into disrepute, comparing the present state of affairs unfavorably with the Warren Court:

The Roberts Court’s narrow substantive reading of enumerated powers maps fairly closely onto the contemporary conservative political agenda. To the extent that the conservative agenda gains popular acceptance, the Court may garner acclaim as a guardian of constitutional values. But if the public rejects that agenda, or remains sharply divided, the Court risks being perceived as simply another partisan institution. The Court’s current status rests in substantial measure on its having been on the right side of history in Brown v. Board of Education. Only time will tell whether the Court will retain that status given the choices the Roberts Court is making.

Karlan is adept at comparing the present Court to previous ones, not only including the Warren Court.  Spoiler alert: When she quotes Justice Roberts, she might not be quoting the 2012 John Roberts but the 1936 Owen Roberts, a device she uses to especially good effect.  Also to good effect is her usage of other justices, colloquies in oral argument, the occasional poet, and theorist.  The writing is broad and engaging without being precious.  It makes her analysis of the cases even more trenchant, situated in larger themes and trends.

Of course, not all ConLawProfs will agree with Karlan's views of the Court, including one subsection entitled "Protecting Spenders and Suspecting Voters," and another "Suspecting Congress."    And Karlan's argument is hardly unique, as anyone who recalls Rehnquist Court scholarship, including the excellent 2001 article "Dissing Congress," by Ruth Colker and James J. Brudney can attest.  And it is especially noteworthy that  the Court did uphold the constitutionality of the Affordable Care Act in National Federation of Independent Business v. Sebelius, a case that Karlan extensively discusses and more interestingly, situates within the Term's other less notable decisions. 

But this is a must read article before beginning the new semester. 

And after that, read George Wills' Washington Post op-ed, Karlan's response, and responses in the Harvard Law Review Online Forum by Randy Barnett and Stephen Calabresi.

RR
[image of Pamela Karlan via]

January 7, 2013 in Courts and Judging, Due Process (Substantive), Elections and Voting, Fifteenth Amendment, First Amendment, Fourteenth Amendment, History, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Separation of Powers, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, January 4, 2013

ConLaw at AALS: Looking Towards Fisher

Top_logoIf you're at AALS, don't miss today's double panel on affirmative action in education, starting at 2pm:

This joint program will explore issues of equal educational opportunity. The first panel will consider these issues in the context of elementary and secondary education, with emphasis on school financing. The second will deal primarily with the constitutionality of racial affirmative action in higher education admissions. Both panels will consider the implications of the Court’s grant of review in Fisher v. University of Texas, involving an undergraduate affirmative action admissions program.

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?

Speakers

Speaker: 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.

RR


January 4, 2013 in Affirmative Action, Conferences, Equal Protection, Profiles in Con Law Teaching, Race, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 1, 2013

150th Anniversary of the Emancipation Proclamation

Detail_fullToday marks the 150th anniversary of the Emancipation Proclamation, signed by President Abraham Lincoln on January 1, 1863. 

Here's the transcription from the National Archives:

The Emancipation Proclamation

Whereas, on the twenty-second day of September, in the year of our Lord one thousand eight hundred and sixty-two, a proclamation was issued by the President of the United States, containing, among other things, the following, to wit:

"That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.

"That the Executive will, on the first day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State, or the people thereof, shall on that day be, in good faith, represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such State shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State, and the people thereof, are not then in rebellion against the United States."

Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and in accordance with my purpose so to do publicly proclaimed for the full period of one hundred days, from the day first above mentioned, order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, the following, to wit:

Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans) Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth[)], and which excepted parts, are for the present, left precisely as if this proclamation were not issued.

Emancipation_05And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.

And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defence; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages.

And I further declare and make known, that such persons of suitable condition, will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.

And upon this act, sincerely believed to be an act of justice, warranted by the Constitution, upon military necessity, I invoke the considerate judgment of mankind, and the gracious favor of Almighty God.

In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.

Done at the City of Washington, this first day of January, in the year of our Lord one thousand eight hundred and sixty three, and of the Independence of the United States of America the eighty-seventh.

By the President: ABRAHAM LINCOLN

WILLIAM H. SEWARD, Secretary of State.

 RR
[pages of proclamation via]

January 1, 2013 in Equal Protection, Executive Authority, Fundamental Rights, History, Race | Permalink | Comments (0) | TrackBack (0)

Thursday, November 29, 2012

Daily Read: Thirteenth Amendment Scholars Supporting Matthew Shepard & James Byrd, Jr. Hate Crimes Act

Did Congress have power pursuant to the Thirteenth Amendment to pass the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009

 

Matthew_Shepard_and_James_Byrd,_Jr._Hate_Crimes_Prevention_Ac
President Barack Obama greets Louvon Harris, left, Betty Byrd Boatner, right, both sisters of James Byrd, Jr., and Judy Shepard, center, mother of Matthew Shepard, following his remarks at a reception commemorating the enactment of the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act in the East Room of the White House, Oct. 28, 2009. (Official White House Photo by Pete Souza)

The question of the Act's constitutionality is before the Tenth Circuit in an appeal arising from the first prosecution under the Act.  In Hatch v. United States, the defendant challenges 18 U.S.C. § 249(a)(1), which provides:

 

Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—

There seems to be little dispute that the three defendants admitted actions against the Native American victim, including branding the victim with a swatstika, fit within the terms of the statute.   But did the statute exceed Congress' power pursuant to the Thirteenth Amendment, or does the statute violate equal protection as guarenteed through the Fifth Amendment?

On the Thirteenth Amendment issue, ConLawProfs William M. Carter, Jr., Dawinder S. Sidhu, Alexander Tsesis, and Rebecca E. Zietlow, have filed an amicus brief, available on ssrn, argue that the Thirteenth Amendment's enforcement clause gives Congress broad powers.  They contend that the hate crime section should be analyzed under a defential rational basis standard, both because of its provenance in the Thirteenth Amendment and, perhaps most interestingly,  because the statute does not make a racial classification.

This is a terrific read of engaged scholarship as well as a providing a great grounding for a class exercise or student project.

RR

November 29, 2012 in Equal Protection, Fifth Amendment, Interpretation, Profiles in Con Law Teaching, Race, Recent Cases, Scholarship, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, 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. 

388px-William_Wood,_Vanity_Fair,_1869-03-20Liptak 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.

RR
[image via]

November 27, 2012 in Affirmative Action, Books, Courts and Judging, Current Affairs, Race, Recent Cases, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 20, 2012

Professor Sherrilyn Ifill Named to Lead NAACP-LDF

The University of Maryland School of Law has announced that Prof Sherrilyn Ifill has been named as President and Director-Counsel of the NAACP Legal Defense & Educational Fund, Inc. (LDF).

 

Screen Shot 2012-11-20 at 11.56.51 AM

Professor Ifill, a well known ConLawProf scholar, will take a leave from academia to head LDF, the organization founded by Thurgood Marshall.

RR

 

November 20, 2012 in News, Profiles in Con Law Teaching, Race | Permalink | Comments (0) | TrackBack (0)

Friday, October 26, 2012

Sixth Circuit Rejects First Amendment Claim of Anti-Muslim Advertisers

In its opinion in American Freedom Defense Initiative v. Suburban Mobility for Regional Transportation (SMART), the Sixth Circuit upheld SMART's rejection of advertisements for city buses.

SMART BUSThe potentional advertising group, American Freedom Defense Initiative, is indeed the same one whose advertisements on NYC subways caused controversy last month.  The Sixth Circuit, unlike the district judge in New York, rejected the Intiative's First Amendment claim when it challenged the refusal to run its advertisements.  In large part, the distinction between the two situations rests upon the policies of the transportation agencies.

SMART, a state transportation agency in Southern Michigan, does allow advertising on its vehicles, but its policy prohibits several categories of advertising including "political or political campaign advertising" and "advertising that is clearly defamatory or likely to hold up to scorn or ridicule any person or group of persons."  SMART - - - wisely - - - rested its rejection on the political rationale.  The advertisement that SMART had refused read: "Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com."   Interestingly, to determine the meaning of "political," the court not only consulted the website in the advertisement but found confirmation in the language of American Freedom Defense Initiative's own complaint: 

According to the complaint, AFDI “acts against the treason being committed by national, state, and local government officials . . . in their capitulation to the global jihad and Islamic supremacism.” Compl. ¶ 7. The complaint explains that AFDI “promotes its political objectives by, inter alia, sponsoring anti-jihad bus and billboard campaigns, which includes seeking advertising space on SMART vehicles.” Id. ¶ 8. By its own admission, therefore, AFDI sought to place advertisements on the SMART vehicle to “promote[] its political objectives.” Moreover, by denying the placement of the fatwa advertisement, AFDI alleges that SMART “denied Plaintiffs’ advertisement, and thus denied Plaintiffs access to a public forum to express their political and religious message.” Id. ¶ 21. AFDI understood its own advertisement to contain a political message; therefore, it would be reasonable for SMART to read the same advertisement and reach the same conclusion.

 Doctrinally, SMART's ability to enforce a political exclusion rests upon the court's acceptance of the city buses as nonpublic forums.  Yet there is some circularity here:  SMART's "tight control" over the advertising space, as well as the fact that it "has banned political advertisements, speech that is the hallmark of a public forum" support the court's conclusion. 

The panel recognized that there are close calls, and even suggested an advertisement that would not be political, but ultimately validated SMART's call as correct and consistent with its practices.

RR

October 26, 2012 in First Amendment, Opinion Analysis, Race, Religion, Speech | Permalink | Comments (1) | TrackBack (0)

Thursday, 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 Sweatt_photobehalf 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. 

RR
[image: Prints & Photographs Collection, Heman Sweatt file, The Center for American History, University of Texas at Austin, via]

 

October 18, 2012 in Affirmative Action, Equal Protection, Fourteenth Amendment, History, Race | Permalink | Comments (0) | TrackBack (0)