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.
Wednesday, June 26, 2013
As most know by know, the Supreme Court struck down section 4 of the Voting Rights Act yesterday in Shelby County v. Holder. That section's formula defines which states and jurisdictions must submit voting changes to the Department of Justice for preclearance. The preclearance process ensures that potentially discriminatory changes in voting laws are reviewed and revised before they go into effect. As a result of the Court's decision, there are no longer any jurisdictions subject to preclearance.
This is a big deal for many school districts. School board elections and racial equity go hand in hand. In fact, the effectiveness of school desegregation orders was often as much a product of school board elections as it was court orders. Likewise, current efforts at voluntary desegregation and diversity easily shift from one school board election cycle to the next, as seen so obviously during the last 6 years of elections in Raliegh, NC. The saving grace in so many of these instances was that changes in school board election procedures (poling places, single member districts v. at large districts, district boundaries) in covered jurisdictions (mostly the South) had to be cleared through DOJ. This outside check was instrumental in allowing African Americans and other minorities to get a fair shot at electing the school board, which meant fair representation on the board. That check is now gone. To be clear, citizens still have the right to sue under section 2 of the Voting Rights Act, but the burden of demonstrating a violation now falls on individual, whereas the burden of proving fairness once fell on the state and local jurisdictions. Only time will tell what this means for desegregation, diversity and voluntary integration in the South, but I know it makes a lot of people nervous.
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).
This morning the Supreme Court decided Fisher v. University of Texas, a case dealing with the consideration of race in higher education admissions. The Court neither struck down nor upheld the Texas admissions policy. Instead, it held that the lower court afforded the University too much deference in reviewing this policy. Thus, the Court remanded the case for further, more stringent review. As a result, the Court did not get into the facts of whether Texas' plan is constitutional and did not offer any new specific guidelines for other universities. The Court, at best, expressed one reocurring them: that the consideration of race must be "necessary," meaning that the University's goals could not be achieved with other reasonably available race-neutral alternatives. This, however, is not new.
So what does all of this mean? First, the ability to consider race in university admissions survives. Most notably, the Court refrained from overturning Grutter v. Bollinger and said it took Grutter, along with Gratz v. Bollinger and Bakke v. Regents, "as given." Second, the Fisher case is not over and may well make it back to the Supreme Court at a future date.
The Court's opinion is here.
Tuesday, May 21, 2013
Supreme Court grants cert in government prayer case; mum on challenge to high school graduations in churches
The U.S. Supreme Court granted cert yesterday in a government prayer case that could implicate religious expression during school board meetings. In Town of Greece v. Galloway, a New York town's practice of opening its legislative meetings with prayer--typically conducted by Christian clerics--is being challenged. The Supreme Court will review the Second Circuit Court of Appeals' holding that praying before town meetings is a government sanction of religion that violates the Establishment Clause. Lyle Dennison at SCOTUS Blog notes that the Court has said nothing about Elmbrook School District v. Doe, despite the case being on the conference calendar seven times this spring.
The school case challenged the Elmbrook, Wisconsin Board of Education's renting a church for high school graduations. Although the district's graduation exercises were moved to a non-religious facility in 2010, the issue presented of whether school districts may use religious facilities for school events remains unresolved. Last summer, the 7th Circuit Court of Appeals held en banc that "an unacceptable amount of religious endorsement and coercion occurred when the District held important civil ceremonies in the proselytizing environment of Elmbrook Church. The 7th Circuit noted that its decision was narrowly focused to the facts before the court and that its ruling "should not be construed as a broad statement about the propriety of governmental use of church-owned facilities."