Wednesday, October 23, 2013
Tuesday, October 22, 2013
Maimon Schwarzschild's article, A Class Act? Social Class Affirmative Action and Higher Education, 50 San Diego L. Rev. 441 (May-June 2013), is up on westlaw now. She argues that, while class based affirmative action in higher education may have some alure due to the legal challenges that race based affirmative action draws, class based affirmative action is problematic from a policy and justice standpoint. She writes:
But there are good reasons to think twice about class-based affirmative action. Some of the problems with class preference are common to any educational preference based on group membership rather than educational qualifications. But some of the most important reasons for caution are specific to preferences based on social class.
Comparing class preferences with racial preferences helps to point up some of the reasons for the allure of class preferences but also points up some of the problems. A crucial consideration is the question of who is to receive class preference. For example, what about immigrants and their children? In general, social class is difficult to define, and this very difficulty would confer great discretion and power on faculties and academic administrators who undertake to bestow class preferences: discretion that would be open to abuse for political, ideological, and other ends. Finally, there is the question of whether preferential treatment is necessary to increase educational opportunities for the less privileged or whether the call for class preferences reflects a mindset inimical to impartial standards and prone to preferences as a first rather than a last resort.
I am afraid, however, that she misses one of the major premises behind both racial and socioeconomic affirmative action. These policies are not simply to "preference" the underrepresented group, nor to discount "educational qualifications." Rather, when used properly, considerations of race and poverty are an attempt to better identify educational qualifications. Because socioeconomic and racial bias are "cooked into" the typical measures of educational qualifications, such as the SAT, considering race and poverty and necessary to compare apples to apples. More bluntly, a 770 score by a high income student on the reading portion of the SAT is not equivalent to a 770 by a low income score. Social science would indicate that the low-income student with the same score most likely has more aptitude than the wealth student. It is hard to be precise with generalized comparisons, but low income student with a 710 might likewise have more capacity.
As Richard Kahlenberg, similarly, notes: "Anthony Carnevale and Jeff Strohl of Georgetown University found that the most socioeconomically disadvantaged student scores 399 points lower on average on the combined math and verbal SAT than the most socioeconomically advantaged student. A socioeconomically disadvantaged student who beats the odds and scores fairly well despite the obstacles she faces is likely to have more potential in the long run than a student who has been given all sorts of advantages in life. To be genuinely meritocratic, we need to consider socioeconomic status."
Monday, October 21, 2013
Thursday, October 17, 2013
The State of California has brought its second lawsuit in six years against Corinthian Colleges, Inc., saying that the company has failed to live up to the terms of a previous settlement with the state. Corinthian Colleges, Inc. (CCI), is one of the largest for-profit post-secondary “career education” companies in North America and reported having 96,631 students in a 2012 10-Q statement. Back in 2007 when Jerry Brown was the state attorney general, Corinthians agreed to settle a lawsuit with the state by paying a $6.5 million fine, including $5.8 million in consumer restitution to students who had been deceived by false advertising. Current California Attorney General Kamala Harris filed a complaint last week against the company for not following the terms of the 2007 settlement, alleging that the schools’ ads continue to mislead students, investors, and regulators about job placement and student default rates. California believes that CCI continues to lure students to take on massive student debt to train for jobs at CCI's schools, and when the students cannot find jobs, the students default on their loans.
California’s complaint alleges that CCI targets students who head single parent families and have annual incomes that are near the federal poverty line ($19,530 for a three-person household). The complaint alleges that “CCI targets this demographic, which it describes in internal company documents as composed of "isolated," "impatient," individuals with ''low self-esteem," who have "few people in their lives who care about them" and who are "stuck" and "unable to see and plan well for future." CCI attracts students through “aggressive and persistent internet and telemarketing campaigns and through television ads on daytime shows like Jerry Springer and Maury Povich,” the state alleges. One of CCI’s deceptive practices, the complaint says, is arranging for a temp agency to employ students for a few days right before reporting post-gradation employment data. The company simply did not report employment data for several of its schools that closed in 2011.
The recession prompts underemployed adults to return to school and with that comes an uptick in aggressive advertising by for-profit technical schools. The problem is that students at for-profit higher education institutions have loan default rates at much higher rates than the national average. California wants to curb CCI’s falsely reporting post-graduation employment data to lure students into taking out student loans that they cannot repay (or discharge in bankruptcy) after they cannot find a job in their chosen fields. Watching for-profit schools is difficult enough but monitoring Corinthians has been particularly hard because the company opens and closes its schools at a brisk pace. During the 2011-12 school year, for example, Corinthians announced closures of its affiliated schools in Washington, Chicago, Illinois, Ft. Lauderdale, Florida, Decatur, Georgia and Arlington, Texas. Of course, we in legal education have to clean up our own employment data reporting too, as shown in the well-publicized cases of Villanova Law School and University of Illinois College of Law’s publishing misleading data about students' debt burden and employment statistics after graduation.
Monday, October 7, 2013
Nearly a decade ago, a few graduates and current students from Maryland's historically black colleges and universities (HBCU), along with a local attorney or two, began questioning the funding and expansion practices of the state's entire university and college system. They filed suit, but soon found they were in for an enormous fight and needed more legal resources. With the help of John Brittain, the Howard University School of Law Civil Rights Clinic agreed to take on the case. Professor Aderson Francois and his law students largely carried the law suit in the early days. They were later joined by the Lawyers' Committee for Civil Rights and pro bono attorneys from Kirkland and Ellis.
Yesterday, the plaintiffs' long road resulted in a victory. The United States District Court for Maryland found in Coalition for Equity and Excellence in Maryland Higher Education v. Maryland Higher Education Commission that, in fact, the state had engaged in unconstitutional action in regard to Maryland's HBCUs. The court rejected plaintiffs' claims that the state's funding practices were unconstitutional, but, on the all important issue of the overall structure of the Maryland system, the court wrote:
I find the plaintiffs have prevailed in establishing current policies and practices of unnecessary program duplication that continue to have a segregative effect as to which the State has not established sound educational justification. Remedies will be required.
In other words, the State formerly operated a de jure segregated higher education system. The constitution imposes a duty on the state to dismantle that system. The state's current practice of creating and expanding new programs at historically white institutions, which duplicate already existing programs at HBCUs that are right down the road, has the effect of keeping Maryland's colleges and universities segregated. By doing so, it is violating its constitutional duty to disestablish segregation.
The court did not issue a specific remedy, but directed the parties to enter into mediation and come up with a plan to current the system's deficiencies.
Monday, September 30, 2013
Over the summer, scholars and advocates poured over the question of whether and how much the Court's opinion Fisher v. Texas changed the legality of affirmative action. According to the Departments of Education and Justice, not much has changed. In a "Dear Colleague" letter released Friday, they wrote:
On June 24, 2013, the U.S. Supreme Court announced its ruling in Fisher v. University of Texas at Austin. The Court preserved the well-established legal principle that colleges and universities have a compelling interest in achieving the educational benefits that flow from a racially and ethnically diverse student body and can lawfully pursue that interest in their admissions programs. The educational benefits of diversity, long recognized by the Court and affirmed in research and practice, include cross-racial understanding and dialogue, the reduction of racial isolation, and the breaking down of racial stereotypes.
The Departments of Education and Justice strongly support diversity in higher education. Racially diverse educational environments help to prepare students to succeed in our increasingly diverse nation. The future workforce of America must be able to transcend the boundaries of race, language, and culture as our economy becomes more globally interconnected.
This statement to be more than just rhetoric supporting theoretical diversity. The letter goes on to say that its pre-Fisher guidance on voluntary desegregation in K-12 and diversity in higher education remain in effect. Most important, many read Fisher to increase the burden on universities and colleges to justify their affirmative action programs under the narrowly tailored prong of strict scrutiny, but in a "Question and Answer" document that accompanied the letter, the Departments said Fisher did not even change the narrowly tailored prong. Rather, Fisher just emphasized what the law already was.
Kudos to the Departments for taking a stand on these key issues. This is something they had been reluctant and slow to do during Obama's first term. They waited for over three years before retracting the Bush administration's misleading and inaccurate guidance on Parents Involved in Community Schools v. Seattle's holding regarding voluntary integration. Now, they have positively acted in a matter of just months on Fisher. This should go a long way toward avoiding the uncertainty and fear among districts and universities that persisted following Parents Involved.
Thursday, September 26, 2013
Protecting and preventing sexual violence has been one of the ED’s priorities this year, notably with the agency’s “Dear Colleagues” letter sent in the spring. However, activists continue to have serious concerns about colleges’ treatment of rape victims. Last week, the LA Times reported that Occidental College quietly settled with at least 10 of 37 sexual assault victims who signed a federal complaint about rape on campus. The disturbing part of the settlement is that in addition to payments, Occidental allegedly barred the complainants from any further participation in the Occidental Sexual Assault Coalition, the campus group that organized the campaign that resulted in the federal investigation. The attorney representing the ten complainants, Gloria Allred, said that she could not speak about the settlement, but the Occidental professor who organized the federal complaint is speaking out against its terms. Danielle Dirks, a criminology professor, told the Times that requiring “the women to remain silent and not to participate in campus activism could have a chilling effect at Occidental.” The settlement, Dirks said, “effectively erases all of the sexual assaults and the college’s wrongdoing.” Investigators from the federal Office for Civil Rights are expected to visit Occidental soon to investigate the complaint. The Tennessean is also running a series about the rape case involving members of Vanderbilt University's football team and steps that the school is taking to stop sexual violence on campus.
Monday, September 23, 2013
Michael Argenyi, a deaf medical student, won a federal trial this month when the jury found that Creighton University failed to provide special equipment and interpreters for his education. Although the jury found that Creighton discriminated against him and violated federal disability laws by failing to make accommodations for his hearing impairment, it awarded no damages. Argenyi sued Creighton under § 504 of the Rehabilitation Act and under the Americans with Disabilities Act (ADA) after the medical school failed to provide equipment and accommodations such as “cued speech” interpreters to help him lip-read when speakers use sounds that look the same. While Argenyi attended Seattle University as an undergraduate student, the university provided Communication Access Real-time Transcription (CART), a system which transcribes spoken words into text on a computer screen and and a cued speech interpreter. Argenyi graduated from Seattle University with a 3.87 GPA. Upon entering Creighton’s School of Medicine in August 2009, he asked for similar accommodations. Creighton provided some assistance, but not the specific accommodations that Argenyi requested.
Friday, September 20, 2013
Please join the U.S. Departments of Education and Justice for a panel discussion, “Creating and Supporting Diversity in Higher Education,” on September 27, 2013 from 9:30-11:00am ET at the U.S. Department of Justice. Higher education leaders will join Catherine E. Lhamon, Assistant Secretary for Civil Rights for the U.S. Department of Education, and Jocelyn Samuels, Acting Assistant Attorney General for Civil Rights for the U.S. Department of Justice, to discuss the importance of creating and supporting diversity on college campuses and the parameters for using in race in admissions as stated by the U.S. Supreme Court in Fisher v. University of Texas at Austin. Martha Kanter, Under Secretary of Education, will deliver opening remarks, and Ada Meloy, General Counsel for the American Council on Education, will moderate the discussion. The event will coincide with the release of a document, “Questions and Answers About Fisher v. University of Texas at Austin,” developed jointly by the Departments.
Thursday, September 12, 2013
Alabama State University was awarded $1.54 million grant from the National Institutes of Health on Monday, which makes ASU’s other recent newsworthy event—in the form of a scalding opinion from the 11th Circuit Court of Appeals—all the more embarrassing. In Weatherly, et al. v. Alabama State University, released last week, the circuit court upheld a hostile work environment and retaliation verdict for over $1 million against the university. You know that a case will be bad when it opens with a statement that it “should greatly concern every taxpaying citizen of the State of Alabama, especially because it involves a public institution largely funded with tax dollars.” Three ASU female employees alleged that they were racially abused and sexually harassed while working for two ASU administrators: Dr. John Knight, Jr., Executive Vice President and Chief Operating Officer, and LaVonette Bartley, an associate executive director. The plaintiffs—two of whom are black and one is biracial—were repeatedly called racial slurs by Bartley. Bartley once called one of the women’s sons, a 7-year-old, a racial epithet in his presence. Bartley also routinely commented on the women’s bodies, touching them and pressing against them at their desks. When one of the women complained to Knight about Bartley’s conduct, Knight said that he “was not going to walk on eggshells around [his] office" and that no one was going to tell him “ how to run his office.” (Knight also allegedly made sexual and inappropriate comments to one of the plaintiffs.) Knight warned employees that if they contacted the EEOC, they would be terminated. He made good on that promise by terminating two of the plaintiffs shortly after they filed EEOC complaints. ASU appealed the trial verdict, raising three issues: that the district court abused its discretion by denying ASU’s motion to sever, that the district court erred in finding that the women were entitled to front pay; and that the district court should have granted ASU’s (untimely) motion for judgment as a matter of law timely, or in the alternative, its 60(b) motion. The Eleventh Circuit disposed of these appellate claims on procedural grounds. (Quite frankly, given that ASU did not timely raise its claims below, it probably should not have bothered to appeal at all. Experts estimate that after attorneys’ fees, court costs and interest are added to the plaintiffs’ recovery, ASU’s bill could be more than $3 million.) The circuit court closed its opinion with a blistering indictment:
We are left to speculate who is in charge at ASU. Regardless, however, we are unnerved by the apparent acquiescence to, if not outright condoning of, the abusive work environment created by its high-level employees. Such conduct simply has no place in a work environment, especially at a publicly funded university.Read the opinion in Weatherly, et al. v. Alabama State University here.
Wednesday, September 11, 2013
In a piece published in the Chronicle of Higher Education yesterday, NAACP President Ben Jealous believes that the closure of Saint Paul’s College, a historically black college in Lawrenceville, Virginia, may foreshadow financial difficulties for HBCUs in the future. Saint Paul, which was founded in 1888 by Jealous’s grandfather’s uncle, closed this summer after 125 years. Jealous notes that wealthier HBCUs like Morehouse, Hampton, and Howard are facing serious budget shortfalls. He says that federal education loan policy is contributing to HBCUs’ recent financial concerns, particularly the ED’s 2011 decision to tighten the standards for its Parent PLUS federal loan program. He says the stricter standards have had "a devastating effect”:
In the 2012-13 school year alone, the volume of Parent PLUS loans to HBCU families dropped by 36 percent, according to an analysis by The Washington Post. Parents of 28,000 HBCU students were initially denied loans under the stricter standards, causing HBCU’s as a whole to lose $150-million in expected revenue. This slow bleed will continue as long as the tighter standards are in place. ... Meanwhile, it is encouraging to see that the department is allowing families with small-scale debt—black, white, or otherwise—to become eligible for PLUS loans through an appeals process.
Saint Paul had been struggling for several years before its closure. The college was placed on a two-year probation by the Southern Association of Colleges and Schools (SACS) in 2010 because the school had too many faculty without terminal degrees and was deemed financially unstable. Despite the probationary period, the college could not right itself, and lost its SACS accreditation in June 2012. Student enrollment dropped below 100 students on the 85-acre campus. Saint Paul, founded in 1888 by Jealous’s grandfather’s uncle, largely served first-generation, low and middle income students. In the last seven years, two of the four institutions that have lost SACS accreditation have been historically black colleges. (The other is Paul Quinn College in Dallas.) Read Lessons From an HBCU’s Demise at the Chronicle of Higher Education here.
Monday, September 2, 2013
Information via The Florida Center for Investigative Reporting:
President Obama recently proposed tying federal aid for higher education to graduates’ employment outcomes, but tracking results may be more difficult than the administration anticipates. The Florida Center for Investigative Reporting posted its report Friday that the Department of Veterans Affairs (VA) has not tracked graduation or retention rates for the nearly one million veterans who used GI Bill education benefits since 2009. The VA has provided $30 billion in veteran student aid under the Post-9/11 Veterans Educational Assistance Act for undergraduate and graduate education and vocational training. Because Department of Veterans Affairs does not track student outcomes for veterans who receive student aid, there is little evidence about how the money helped them, making that aid more vulnerable to budget cuts or elimination. Failing to track student aid can also lead to educational institutions profiting from GI Bill money while being largely unaccountable for student veterans’ completion rates or marketable skills. In the first year of Post-9/11 Act payments, a few for-profit schools collected nearly as much funding as all public institutions—more than $639 million for 76,746 veterans, or an average of $8,337 for each student. (Public schools took in more than $696 million to educate 203,790 veterans, with spending averaging about $3,418 a student.) The University of Phoenix, ITT Technical Institute, and the Art Institutes are known for aggressively courting veterans as students, an issue that Senator Tom Harkin (D-Iowa) has been investigating for two years.
Part of the problem is that the VA’s records contain duplicate entries for students who transfer schools, so the agency has not released a recent breakdown of payments to individual schools. In response to questions about student outcomes during a May 2013 audit, VA officials told the Government Accountability Office that the VA’s job is to provide benefits, “not to be responsible for veterans’ individual academic performance or goals.” The GAO report countered that the VA should collect outcome data to help students and “inform policymakers about the value veterans are receiving for the government’s substantial investment.” Spending on the Post-9/11 GI Bill is estimated to hit $42 billion next year, according to VA and White House projections. Read more here.
Thursday, August 29, 2013
President Obama unveiled a proposal last week to create a national college performance rating system tied to federal student aid. Speaking at the University of Buffalo, the President said that the rating system is part of a package of higher education reforms to make college more affordable. The rating system, proposed for the 2015 school year, would be based on “metrics like how much debt does the average student leave with, how easy is it to pay off, how many students graduate on time, how well do those graduates do in the workforce,” the President said. Under the plan, students who attend better-rated colleges would be eligible for larger Pell Grants and lower student-loan interest rates. Until more details about the metrics and rating system are revealed it is difficult to evaluate the plan, although Florida Governor Rick Scott has invited the President to look at his state’s college reforms. Read the White House’s fact sheet on the proposal here.
Wednesday, August 28, 2013
Students and activists delivered a petition to the U.S. Department of Education’s offices last week to demand stiffer sanctions for colleges and universities that suppress information about sexual violence on campus. ED Act Now, a group formed to stop campus gender-based and sexual violence, has collected more than 170,000 signatures on the petition that they presented to Education Secretary Arne Duncan. Citing the “Dear Colleague” letters that ED officials sent to college administrators this spring suggesting that they adopt new sexual harassment standards, the petition asks ED to enforce those standards through levying sanctions and publicly declare offending schools as “noncompliant.” In the petition, the group states that in the past year, “an unprecedented number of survivors of sexual violence have filed Title IX complaints against colleges and universities across the United States, including the University of North Carolina - Chapel Hill, Dartmouth College, Swarthmore College, Occidental College, the University of California - Berkeley, and the University of Southern California.” Members of ED Act Now feel that college and university administrators are breaking federal law by suppressing rape reports and failing to protect victims of sexual violence. The group says that the ED “has only ever publicly found one school to be in noncompliance with the law, even though a recent study suggests nearly two thirds of colleges in America don't comply.” Read the petition here.
Friday, August 2, 2013
On Wednesday, the Georgetown University Center on Education and the Workforce released a study titled "Separate and Unequal: How Higher Education Reinforces the Intergenerational Reproduction of White Racial Privilege." The study begins with the bold finding that: "The postsecondary system mimics the racial inequality it inherits from the K-12 education system, then magnifies and projects that inequality into the labor market and society at large. In theory, the education system is colorblind; but, in fact, it is racially polarized and exacerbates the intergenerational reproduction of white racial privilege." It goes on to emphasize that there is good news, which is that access to higher education over the past 15 years has increased, particulary for minority students. The problem is that, "despite increasing access, there are two separate postsecondary pathways: one for whites and another for Hispanics and African Americans. Whites have captured most of the enrollment growth at the 468 most selective and well-funded four-year colleges, while African Americans and Hispanics have captured most of the enrollment growth at the increasingly overcrowded and under-resourced open-access two- and four-year colleges." Moreover, these different enrollment patterns are not fully explained by different college readiness. Rather, even highly qualified minorities disproportionately enroll in less selective or open access colleges, whereas whites, across the spectrum, disproportionately attend selective colleges. This differential enrollment is also troubling because graduation rates are much lower at less selective and open access colleges. In fact, highly qualified students graduate at a lower rate from these collleges than do less qualified students who attend highly selective colleges. In other words, this so-called "mismatch," whereby minorities attend colleges and universities that do not match their academic potential, decreases their chance of educational success and life opportunities.
Monday, July 1, 2013
In addition to the article Professor Davis posted last week on the blog (For-Profits and the Market Paradox), Omari Simmons, Wake Forest University School of Law, justed posted his new article on higher education access barriers for low-income students to ssrn. The article is fortchoming in the Arizona State Law Journal. In his abstract, he writes:
Keeping higher education affordable and accessible for many Americans is an integral part of furthering the public good. Although legal scholars have given considerable attention to K-12 educational disparities as well as the constitutionality and fairness of admissions practices at selective higher education institutions, they have ignored significant barriers that limit higher education attainment for many low socio-economic status (SES) students. Similarly, the existing regulatory architecture, including federal, state, and institutional policies, inadequately addresses the higher education needs of low-SES students. This article responds to this significant gap in legal scholarship. Advancing higher education attainment for low-SES students presents a rare opportunity for the Obama administration to leave an enduring reform legacy much in the same way Roosevelt achieved with the GI Bill and Lincoln with the Morrill Act. The heightened focus on higher education attainment for low-SES students is also quite timely given the nation’s slow economic growth and the Supreme Court’s imminent decision in Fisher v. Texas. The prospect of the Supreme Court overturning its decision in Grutter v. Bollinger has prompted observers to consider the use of class as an alternative to the use of race in college admissions and beyond. In this legal, economic, and political environment, reforms targeting higher education attainment for low-SES students take on added significance. In response to these challenges, this Article proposes a more comprehensive K-16 framework to guide future reforms targeting higher education attainment for low-SES students. These reforms include: a rigorous K-12 education for a greater number of students; a transitional bridge between secondary school and higher education; and college-level reforms from federal, state, and institutional actors; and a presidential commission exclusively targeting higher education equity.
Dowload the full article here.--db
Sunday, June 30, 2013
Vinay Harpalani has posted his early take on Fisher v. Univ. of Texas at Austin at his institution's website, IIT Chicago-Kent Faculty Blog. Below is an excerpt of Professor Harpalani's assessment of the decision:
Make no mistake about it: given the current composition of the Supreme Court, this is the best realistic outcome for proponents of affirmative action (I consider myself to be a strong one). Otherwise, Justices Breyer and Sotomayor, both of whom support race-conscious admissions policies, would not have voted with the majority. The Supreme Court’s opinion in Fisher pretty much leaves the framework of Grutter v. Bollinger in place. The only change is that the language of “good faith” in Grutter is more restricted, and the meaning of this language was already ambiguous.... Moreover, because most other states do not have such plans such as the Top Ten Percent Law, they are not in the same boat as the University of Texas, and today’s ruling does not compel universities in those states to do anything differently.
Thanks to Professor Harpalani for sending along this post to join Education Law Prof's ongoing conversation about Fisher, starting with Derek Black (South Carolina) and John C. Britton (UDC).Professor Harpalani's comments were originally posted on the American Constitution Society (ACS) blog. He is also quoted here on Fisher in the New York Times.
We welcome contributions from advocates and scholars as we continue to examine what Fisher means for diversity in public higher education.
Tuesday, June 25, 2013
The Court's long awaited opinion in Fisher v. Texas overshadowed most everything else in legal news yesterday, but lest we forget the Court also decided Vance v. Ball State University. For the most part, Vance is an employment case that just happens to arise in the context of higher education. But since a lot of employment cases just happen to happen in schools, it is worth noting. The issue before the Court was what type of employees fall in the category of "supervisor." The meaning of supervisor is important under Title VII cases, as it dictates the employer's liability in harassment cases. The Court explained:
Under Title VII, an employer’s liability for workplace harassment maydepend on the status of the harasser. If the harassing employee is the victim’s co-worker, the employer is liable only if it was negligent in controlling working conditions. In cases in which the harasser is a “supervisor,” however, different rules apply. If the supervisor’s harassment culminates in a tangible employment action (i.e., “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits,” Burlington Industries, Inc. v. Ellerth, 524 U.
S. 742, 761), the employer is strictly liable. But if no tangible employment action is taken, the employer may escape liability by establishing, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that theemployer provided. Faragher v. Boca Raton, 524 U. S. 775, 807; Ellerth, supra, at 765.
In short, "An employee is a 'supervisor' for purposes of vicarious liability under Title VII only if he or she is empowered by the employer totake tangible employment actions against the victim." The Court's holding was at odds with the EEOC's interpretation, as well as that of the some courts of appeals.
Monday, June 24, 2013
As indicated in my first post, the Court neither upheld nor struck down the Texas plan, but rather said the lower court was too deferential in reviewing Texas' admission policy. Thus, the lower cout must take another more rigorous review of the plan. Because the Court did not affirm the lower court and uphold the plan, the result in Fisher suggests hostility to affirmative action. But many, if not most, affirmative action advocates would have expected much worse, particularly if they knew Kennedy would write the majority opinion. With Kagan on the sidelines, there was no way to 5 votes to uphold the plan in its entirety, even if the three liberals could convince Kennedy.
The final opinion, moreover, was not even close. It was 7-1 in overturning the court of appeals and sending it back. That Sotomayor and Breyer signed onto the majority opinion, and only Ginsberg dissented, sends a different message than one would have expected with Kennedy in the majority: Fisher is not the end of affirmative action in higher education. Justices Breyer and Sotomayor would have never signed onto to the end of affirmative action, but they signed onto this opinion. This suggests a lot of jockeying behind close doors to save affirmative action in higher education, but in an indirect way.
My best guess in reading the opinion is that initial vote as to whether to overrule Grutter (even though the Court says that was not before it) and/or strike down the Texas plan on its facts was 4-4, with Kennedy in the dissent, which was my best case scenario heading into the case. This 4-4 initial vote is a relatively solid thesis now. In the case of a 4-4 tie, the lower court would have been upheld and nothing at all would have changed. This clearly would have incensed the 4 most conservative members of the Court. And even though Justice Kennedy may not have been prepared to completely end affirmative action, maintaining the status quo was not his desire either. My hope and intuition was that he would hate the end of affirmative action more than the continuation of the status quo. But, of course, he is smarter than me and the final opinion and vote in Fisher suggests a compromised third position: join the majority and bring 2 dissenting liberals with him, so that he could write the majority. This had the effect of putting Scalia and Thomas in the disgruntled concurring camp, rather than squarely in control of the majority.
And that is how sausage and Supreme Court opinions are made (I assume, since I know nothing of either).