Constitutional Law Prof Blog

Supreme Court (Effectively) Ends Affirmative Action in Higher Education

The Supreme Court ruled on Thursday that race-based affirmative action programs at Harvard and the University of North Carolina violated Title VI of the Civil Rights Act and the Equal Protection Clause, respectively.

Still, the Court didn't categorically overturn all race-based affirmative action programs; instead, it seemed to leave a theoretical possibility that a school could design a program to meet its tightened test. But at the same time, under the ruling it's hard to see how a school could "narrowly tailor" a program to serve a sufficiently "compelling interest" to meet the strict-scrutiny test that the Court applied in the cases.

The ruling doesn't address whether programs at the military academies violate equal protection. And it suggests that schools could use race-neutral means to achieve racial diversity, including considering student admission essays that focus on a student's race (by overcoming racial adversity, for example). But the Court also cautioned that schools shouldn't use this kind of admission statement in ways that would undermine the Court's core holding--that government labeling by race (for any purpose) is highly suspect, and subject to the most rigorous judicial scrutiny.

All this means that schools that seek racial diversity will scramble now to figure out how to achieve it in race-neutral ways. And that, in turns, means that we'll see new rounds of litigation for years to come, challenging those efforts as merely alternative forms of racial discrimination in disguise.

In short, the Court in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College held that the schools' programs didn't satisfy strict scrutiny, because (1) their interest (achieving the educational benefits of diversity) was too loosely defined to be "compelling," and (2) their programs don't serve this interest, anyway, because the racial categories that the schools use are "imprecise." Moreover, the Court said that the schools' use of race stereotypes applicants of the same race (by assuming they all think alike), harms certain students of other races, and lack an endpoint.

The Court noted in footnote four that the ruling doesn't necessarily apply to the U.S. military academies--that they have "distinct interests" that might set them apart. The Court also  noted that "nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise." But the Court quickly warned that schools shouldn't use this opening to side-step its ruling--to use race, but try to put it under the radar.

Justice Thomas concurred, writing "to offer an originalist defense of the colorblind Constitution; to explain further the flaws of the Court's [affirmative action] jurisprudence; to clarify that all forms of discrimination based on race--including so-called affirmative action--are prohibited under the Constitution; and to emphasize the pernicious effects of all such discrimination." Justice Gorsuch concurred, joined by Justice Thomas, "to emphasize that Title VI of the Civil Rights Act of 1964" also (in addition to the Equal Protection Clause) prohibits the schools' race-based affirmative action programs. Justice Kavanaugh concurred, arguing that the ruling "is consistent with and follows from the Court's equal protection precedents . . . ."

Justice Sotomayor wrote a scathing dissent, joined by Justices Kagan and Jackson, arguing that the ruling "stands in the way [of the promise of Brown v. Board of Education] and rolls back decades of precedent and momentous progress."

Justice Jackson wrote an equally scathing dissent, joined by Justices Sotomayor and Kagan. She wrote "to expound upon the universal benefits of considering race in this context" and to point out how the plaintiffs' position and the Court's ruling "blinks both history and reality in ways too numerous to count."

Both dissents offered a fabulous history lesson on race . . . and a thorough rejoinder to Justice Thomas's "originalist" view.

Supreme Court to Take Up Affirmative Action Monday

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court will hear oral arguments in the affirmative action cases on Monday. The Court's expected to overturn its rulings allowing race-based affirmative action in higher education, or at least to limit them sharply.

Here's my oral argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

This case involves two different university admissions policies, but they are very similar. Both policies assess each applicant based on a variety of factors, including race, as part of a holistic and individualized review in order to achieve the educational benefits that come from student-body diversity. Neither policy uses racial quotas or points or otherwise assigns a rigid or categorical benefit based on an applicant’s race. Both institutions continue to use race as one of many factors in admissions only after they examined whether they could achieve their desired student-body diversity without race, and determined that they could not. And both institutions engage in ongoing efforts to assess their affirmative-action programs and to determine whether race-neutral alternatives might achieve the broad diversity they seek.

That said, let’s look at each policy more carefully.

Under Harvard’s policy, the school first compiles an application file for each candidate that includes a transcript, standardized test scores, and recommendation letters; an overview of the applicant’s high school; information about the applicant’s extracurricular activities, athletic participation, honors, and prizes; the applicant’s essays; the applicant’s intended field of study; the applicant’s family and demographic information; and reports from alumni or staff interviews.

A “first reader” then makes a tentative assessment of each applicant in four areas: academic, extracurricular, athletic, and personal. These numerical ratings provide a “preliminary” “starting point” for the Admissions Committee’s later assessment. The school does not admit or deny students based on these ratings. And first readers do not consider race in assigning an initial rating.

Next, first readers assign a “school support rating” and an “overall” rating. In assigning the overall rating, first readers may give “tips” to qualities such as unusual intellectual ability; strong personal qualities; outstanding creative or athletic abilities; or backgrounds that expand the socioeconomic, geographic, racial, or ethnic diversity of the class. First readers can also give tips to recruited athletes, legacy applicants, applications on the Dean’s or Admissions Director’s interest lists, and children of faculty and staff.

First readers send the applications of competitive candidates to subcommittee chairs, who also assign preliminary ratings. Regional subcommittees meet to decide which candidates to recommend to the full Admissions Committee.

The full 40-member Admissions Committee then meets over several weeks to discuss candidates and make admissions decisions based on all the information in the applicants’ files. (At the full Committee stage, the earlier preliminary ratings “fade into the background” and the Committee focuses on the whole files.) During this process, the Dean and Director of Admissions periodically review one-page summaries of the applicant pool and the tentatively admitted class. These “one-pagers” include academic interests, geographic region, citizenship status, socioeconomic circumstances, gender, race, and legacy and recruited-athlete status. This information is used to forecast yield rates (which can vary across characteristics), “to evaluate the effectiveness of efforts to recruit diverse students,” and to “identify anomalies in the representation of students with certain characteristics, including race.” Based on this information, the Admissions Committee may “give additional attention to applicants” from an underrepresented racial group in order “to ensure any significant decline is not ‘due to inadvertence or lack of care.’” If the expected yield exceeds the available class slots (around 1,600), the Committee can reduce the admitted class based on one or more characteristics of each applicant, including race.

Harvard also uses several race-neutral programs to achieve diversity. For example, it engages in targeted outreach to encourage racial minority students to apply, and it offers generous financial support to make the costs of attendance more affordable for all students. In 2017, Harvard established a committee to evaluate race-neutral alternatives. But after considering 13 separate alternatives, “the committee concluded that none would currently allow Harvard to achieve the educational benefits of diversity while maintaining its standards of excellence.” The school now started a process to reevaluate that conclusion.

Under UNC’s policy, the school compiles an application file for each candidate, usually from the Common Application, a standard application used by hundreds of institutions. Students may indicate a range of characteristics and background information, including military service, foreign-language proficiency, career interests, and race.

Readers in UNC’s admissions office then read each file guided by a non-exhaustive list of more than forty criteria, including academic performance, athletic or artistic talents, and personal background. Readers then make a provisional decision. A second reader reviews a majority of the files. Senior admissions office personnel review a sample of files. And finally, a committee of veteran readers reviews provisional decisions from each high school.

UNC’s individualized, holistic review “considers all aspects of an applicant’s background and values many kinds of diversity.” For example, UNC considers veteran status, geographic diversity, community service, socioeconomic status, work history, creativity, capacity for leadership, and more. When the school considers race, it does so alongside these other factors. “[A]n applicant’s race may occasionally tip the balance toward admission in an individual case, but almost always does not.”

Since 2004, UNC has also implemented several race-neutral efforts to achieve diversity. For example, the school provides resources to make the cost of attending affordable to all students. It “engages in significant recruiting efforts to encourage diverse students to apply and enroll.” It partners with underserved high schools in the state to increase applications from low-income, first-generation, and underrepresented applicants. And it “recruit[s] high-achieving community-college students.” More recently, UNC formed a working group and, separately, a committee on race-neutral alternatives in admissions. While the committee continues to study and analyze race-neutral alternatives (including expert analysis and the district court’s findings in this case), UNC has “not yet identified a workable race-neutral alternative,” although it “remains steadfastly committed to doing so.”

Students for Fair Admissions, Inc. (SFFA), a membership organization that spearheads challenges to affirmative-action programs, sued Harvard, arguing that the school impermissibly used race in its admissions decisions, to the detriment of Asian Americans. The district court rejected SFFA’s claim and upheld Harvard’s admissions program; the United States Court of Appeals affirmed; and the Court granted certiorari.

SFFA also sued UNC. The district court similarly rejected SFFA’s claims. Given that the Court had agreed to hear the Harvard case, SFFA asked the Court to bypass an appeal to the circuit court and grant “certiorari before judgment.” The Court agreed and consolidated the UNC case with the Harvard case.  

CASE ANALYSIS

Under Court precedent, a college or university can use race in its admissions policy so long as the use of race is narrowly tailored and necessary to achieve a compelling government interest. (This test, “strict scrutiny,” is the same test that the Court applies whenever the government uses race in whole or in part to identify individuals for any purpose.) This means that a college or university can use race as one factor among many in a holistic, individualized review of each applicant in order to achieve the educational benefits that come from student-body diversity. Grutter v. Bollinger, 539 U.S. 306 (2003); Fisher v. University of Texas, 136 S. Ct. 2198 (2016). But an institution cannot use racial quotas, assign points for race in the admissions process, or assign any other rigid, categorical benefit according to an applicant’s race. (The Court adopted these standards for public college and universities, like UNC, under the Equal Protection Clause. But they apply exactly the same to private institutions that receive federal funds, like Harvard, under Title VI.)

In challenging the Harvard and UNC policies, SFFA argues first that the Court should overturn Grutter and categorically prohibit any use of race in university admissions. It argues that under Brown v. Board of Education and its progeny, schools cannot use race “as a factor in affording educational opportunities.” And “[b]ecause Brown is our law, Grutter cannot be.” Moreover, SFFA says that the use of race in university admissions is based only on “stereotyping” (that applicants can contribute to ideological diversity because of their race), not evidence, and that Grutter wrongly gives universities more deference than other institutions (like the military) in their use of race. It claims that Grutter has led to all kinds of problems, including “anti-Asian stereotyping, race-obsessed campuses, declines in ideological diversity, and more.” And finally, SFFA contends that “Grutter cannot generate serious reliance interests,” because the ruling itself predicts that universities will no longer need affirmative-action programs by 2028.

SFFA argues next that even if the Court retains Grutter, both Harvard and UNC violate its standards. It says that both schools “award mammoth racial preferences to African Americans and Hispanics.” SFFA claims that neither institution plans to stop using race in its admissions policy. It contends that neither school seriously considered race-neutral alternatives to achieving diversity, at least “[u]ntil they were sued.” And SFFA says that Harvard actively uses race against Asian Americans.

The schools counter (separately, but raising similar arguments) that the Court should not overturn Grutter. They claim that the original understanding of the Fourteenth Amendment (and by extension Title VI) allows the government to use race far more expansively than Grutter in order to address racial inequalities, and that generations of legislators have done just that. They say, contrary to SFFA, that Grutter is true to Brown, because, unlike Brown, affirmative action doesn’t categorically exclude anyone, because affirmative action draws on Brown’s acknowledgment of the importance of education, and because affirmative action is designed to achieve broad diversity that benefits all students. They contend that affirmative action does not stereotype, as SFFA claims. Instead, they say that race indisputably informs perspectives and contributes to ideological diversity. And they assert that Grutter itself prohibits exactly the kind of harms that SFFA describes, like discrimination against Asian Americans.

The schools argue next that their admissions policies easily satisfy Grutter’s standards. They claim that their policies use race as one of many factors in a holistic, individualized review of each candidate in order to achieve the educational benefits that come from broad diversity. They contend that they have considered and used race-neutral alternatives, but that these are insufficient, and that they engage in ongoing efforts to assess their use of race and explore alternatives. They say that the lower courts in both cases came to these same conclusions, and that SFFA badly distorts the record by claiming otherwise.

The government weighs in as amicus in support of the schools, making largely the same arguments. The government adds that it benefits from diversity in higher education in its many institutions and functions. (Notably, the government’s brief is signed by the general counsels for the Department of Defense, the Department of homeland Security, the Department of Education, the Department of Health and Human Services, the Department of Commerce, and the Department of Labor, in addition to the Department of Justice.)

 

SIGNIFICANCE

This case tests the continuing vitality of Grutter and the Court’s approach to race-based affirmative action in higher education. The lower courts in both cases ruled, after exhaustive reviews, that both schools’ affirmative-action policies satisfied Grutter’s demands. They also ruled that both schools adequately explored race-neutral alternatives to achieve the kind of broad diversity they sought, but that the schools ultimately determined that race-neutral alternatives alone would not work. Finally, they found that the schools engage in ongoing efforts to assess their use of race and explore race-neutral alterantives. Given these comprehensive rulings that these policies so comfortably satisfy Grutter’s standards, there’s really no reason the Court would agree to hear these cases except to overturn Grutter, or at least to sharply limit affirmative action in higher education.

The impact could be dramatic. In those states that ban the use of race in higher-education admissions, racial minority enrollment in competitive institutions has plummeted, even when schools engage in aggressive race-neutral efforts to diversify. The University of Michigan and the President and Chancellors of the University of California drive this point home in their separate amicus briefs in support of the schools. These experiences tell us that if schools can’t use race at all, enrollment by racial minorities could similarly plummet across the board. This would obviously harm racial minorities. According to many amici, it would also harm the workforce, government operations at all levels, and society generally, as we’d all lose the benefits of diversity in our higher-education institutions.

In determining whether to overturn Grutter, look for the Court to wrestle with the meaning of Brown v. Board of Education. By one reckoning, Brown means that the government can’t use race to segregate schools, because, given systemic racism, racial segregation inevitably results in inequalities, even for otherwise “equal” schools. (“Separate is inherently unequal.”) In other words, the government can’t use race to harm children. This view supports affirmative action, because the purpose isn’t to harm applicants, but rather to benefit all students through broad diversity.

But by another reckoning, Brown means that the government can’t use race at all, for any purpose. In other words, Brown prohibits any racial labelling, irrespective of the purpose or effect, and irrespective of broader systemic racism that might result in racial inequalities even under race-neutral government actions. Chief Justice Roberts captured this reading of Brown when he wrote that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007). This view opposes affirmative action merely because affirmative action uses race at all, for any purpose.

This Court has already adopted the latter view of Brown in other contexts. It’s likely to adopt it here, too, to overrule Grutter or to sharply limit the use of race in university admissions.

Look, too, for the Court to wrestle with the original understanding of the Fourteenth Amendment. As Justice Ketanji Brown Jackson reminded us at oral argument earlier this month in Merrill v. Milligan, the Voting Rights Act case, the original understanding allowed the government to use race in order to redress racial inequalities. In other words, the Fourteenth Amendment wasn’t designed to ban racial labelling; instead, it was designed to remedy racial inequalities, and it allowed the government to use race to do so. This original understanding tends to support race-based affirmative action. (But remember: under Grutter, the purpose of affirmative action in higher education is to achieve the educational benefits that come from broad student-body diversity, not (necessarily) to remedy racial inequalities.)

Nevertheless, this is a Court that is not at all shy about overturning long-standing precedent, history notwithstanding. And all indications point to the Court overturning Grutter here.

District Judge Finds Harvard's Affirmative Action Admissions Policy Lawful

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a 130 page opinion in Students for Fair Admissions v. President and Fellows of Harvard College, Judge Allison Burroughs upheld Harvard's admissions policy that includes racial considerations. Although Harvard is a private institution and there is not sufficient state action to invoke the Equal Protection Clause of the Fourteenth Amendment, Judge Burroughs noted that it was "subject to the same standards that the Equal Protection Clause imposes upon state actors for the purposes of a Title VI claim," referencing Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq.  As Judge Burroughs stated, " the controlling principles articulated by the Supreme Court in Fisher II reflect the sum of its holdings in cases concerning higher education admissions over the last forty years and now guide the application of Title VI in this case," referencing Fisher v. University of Texas at Austin (2016). 

Applying strict scrutiny, Judge Burroughs first found that Harvard's interest in the educational benefits that flow from student diversity was compelling, concluding that "Harvard's goals are similar in specificity to the goals the Supreme Court found 'concrete and precise' in Fisher II."

On the more controversial issue of narrowly tailored means-chosen, the judge found there was no undue burden on any particular individual and that individuals were considered on a holistic basis. The judge specifically rejected the plaintiff's claim that the university engaged in "racial balancing." As to race-neutral means, the judge rejected the proffered race-neutral methods such as eliminating early action decisions, eliminating preferences for certain applicants (including legacy and children of Harvard employees), and preferences for economically disadvantaged students as not being "workable" methods for actually achieving racial diversity.

Judge Burrough's conclusion is especially noteworthy: she states that while the Harvard admissions policy satisfies strict scrutiny it is not perfect and administrators might benefit from "implicit bias training;" she discusses the language from Fisher II regarding data-collection and the language from Grutter v. Bollinger regarding the duration of affirmative action programs; and she quotes the esteemed author Toni Morrison of the relevance of race and the President of Harvard, Ruth Simmons on the the importance of diversity.

The plaintiff organization has proved itself determined to litigate this issue and an appeal is likely. But this thorough opinion — with more than 60 pages of factual discussion — will make its reversal a formidable task absent doctrinal changes.

[image from the opinion]

District Judge Denies Cross-Motions for Summary Judgment in Harvard Affirmative Action Case

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a Memorandum & Order in Students For Fair Admissions (SFFA) v. Harvard, United States District Judge Allison D. Burroughs has denied the cross-motions for summary judgment in this closely-watched case challenging affirmative action admissions at Harvard as discriminating against Asian-American applicants.

Although Harvard is a private university and the claim is under Title VI of the 1964 Civil Rights Act, 42 U.S.C. §2000d et. seq., the applicable precedent involves the constitutionality of affirmative action in higher education under the Equal Protection Clause. As Judge Burroughs explained in footnote 16 of the opinion:

[Defendant] Harvard notes that the Supreme Court has only addressed race-conscious admissions policies of public universities, and suggests that there are “good reasons to think that” the applicable Supreme Court precedent does not apply in the same manner to private universities like Harvard that are subject to Title VI. Because Harvard does not identify any specific reasons for distinguishing public universities from federally-funded private universities, or explain how the analytical framework would differ for private versus public litigants, the Court at this stage places Harvard on equal footing with a public university in applying Grutter [ v. Bollinger (2003)] and its progeny. See Grutter, 539 U.S. at 343 (“[T]he Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body. Consequently, petitioner’s statutory claims based on Title VI . . . also fail.”); id. (“Title VI . . . proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment” (citing Regents of Univ. of California v. Bakke, 438 U.S. 265, 287 (1978))).

Thus, relying on Fisher v. University Texas at Austin (2013) (Fisher I) and Fisher v. University of Texas at Austin (2016) (Fisher II), as well as Grutter, Judge Burroughs held that strict scrutiny should apply.

After detailing the Harvard admissions policy as implemented and concluding that the case is not moot, Judge Burroughs considered the four claims by SFFA: intentional discrimination, racial balancing, race as a plus factor, and race-neutral alternatives.

First, Judge Burroughs concluded that the dueling reports by experts regarding the presence or absence of a negative effect of being Asian-American on the likelihood of admission essentially precluded summary judgment. The experts' contradictory conclusions derived in part from their "divergent modeling choices" and the "credibility of the expert witnesses in making these critical modeling and analytical choices is best evaluated at the upcoming bench trial." Moreover, "stray" positive and negative remarks were also best evaluated at trial.

Second, Judge Burroughs states that while "racial balancing" has been deemed unconstitutional, the parties present "plausible but conflicting interpretations" of Harvard's use of its own admissions data from previous years. Again, the matter of credibility would be paramount.

Third, SFFA argued that Harvard was not specifically employing the notion of "critical mass" and Harvard was not considering race as a mere "plus factor." Judge Burroughs concludes that there is no requirement of "critical mass" to satisfy strict scrutiny — the use of "critical mass" was simply part of the admissions policies of the universities in Michigan (in Grutter) and Texas (in Fisher).  However, as to the use of race as a plus factor, Judge Burroughs noted that under Fisher II (and Fisher I), the university is entitled to no deference in whether its means chosen is narrowly tailored and thus again the issue of credibility and fact were best determined at trial.

Fourth and finally, SFFA's argument that Harvard has failed to consider race-neutral alternatives, there was a factual dispute regarding the timing of Harvard's reconsideration of such alternatives which coincided with the imminence of the lawsuit in 2014. SFFA's expert argued that  Harvard "can easily achieve diversity by increasing socioeconomic preferences; increasing financial aid; reducing or eliminating preferences for legacies, donors, and relatives of faculty and staff; adopting policies using geographic diversity; increasing recruitment efforts; increasing community college transfers; and/or eliminating early action." The Harvard Committee reached the opposite conclusion.

In short, the litigation seems set to proceed to trial perhaps with a path to the United States Supreme Court.

Daily Read: On the 50th Anniversary of Loving, A Look at its Portrayal in Film

Professor Ruthann Robson, City University of New York (CUNY) School of Law

 In Loving v. Virginia, decided June 12, 1967, the United States Supreme Court unanimously held that the Virginia statute criminalizing marriage between White and (most)non-White persons violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment.  The case has become an iconic one, not only because it explicitly states that the Virginia law was "obviously an endorsement of the doctrine of White Supremacy," but also because it identifies the "freedom to marry" as "one of the vital personal rights essential to the orderly pursuit of happiness by free men." 

Creighton Law Review hosted a symposium for the 50th anniversary of the case and the issue is just published.

Among the terrific articles is one that considers the Hollywood film, released last year, as well as the previous documentary.  In the important contribution Filmic Contributions to the Long Arc of the Law: Loving and the Narrative Individualization of Systemic Injustice, Alanna Doherty argues that the film, and to a lesser extent the documentary "repackages the Lovings’ historic civil rights struggle against wider systemic oppression as a personal victory won by triumphant individuals through the power of love."  This individualization through narrative, she argues, obscures the collective and civil rights struggle that is the ground of the action the film portrays. Likewise, the "White Supremacy" of the state is attributed to a few rogue individuals. Doherty argues that such individualization is not only limited, but also accounts for the post-Loving developments in equality doctrine regarding affirmative action:

Both Loving (the film) and Fisher [v. University of Texas at Austin] (the case) present their stories of individualized racial harm at the cost of avoiding meaningful recognition of systemic injustice. While in Loving this may seem positive due to the nature of the decision, and although in Fisher the court ultimately upheld the admissions policy, harmful ideological work is still being done to our socio-legal consciousness. In Fisher, the Court set injurious legal precedent in how it evaluates affirmative action programs—under intense scrutiny and with such little deference that fewer, if any, will pass constitutional muster. And because law is an embodiment of social practices interacting with cultural conceptions in noetic space, a trend in cinematic and legal narratives to shirk responsibility for holding oppressive institutions accountable only furthers a reciprocity with cultural ideology that moves the law away from helping those most vulnerable under it.

[footnotes omitted].

And yet, even as Loving (the film) is subject to critique as being limited, sentimental, and nostalgic, Doherty ultimately contends that the film has legal relevance given our fraught political landscape:

perhaps the cultural and legal imagining that needs to be done in the noetic space of 2017 is one grounded in the inspiring recognition of triumphant small-scale love. Maybe what Loving truly contributes to such a tumultuous cultural moment is the notion that not only must we continue to commit to fights we should not have to fight, but that if we want to take care of each other even when the law fails us, we must decide to keep loving.

 

 

United States Supreme Court in Fisher II: UT Affirmative Action Plan Constitutional

Professor Ruthann Robson, City University of New York (CUNY) School of Law

On Fisher's second trip to the Court, the United States Supreme Court has found that the affirmative action plan of the University of Texas did not violate the Equal Protection Clause.  In a relatively brief opinion for the majority, Justice Kennedy, joined by Ginsburg, Breyer, and Sotomayor - - - recall Kagan was recused - - - affirmed the Fifth Circuit's conclusion rebuffing Fisher's equal protection claim (and some believed rebuffing the Supreme Court's remand).

Recall that Fisher I was a 7-1 opinion. (Only Justice Ginsburg dissented in Fisher I; Justice Kagan was recused, and Justice Sotomayor's joining of the majority has been subject to much speculation after her impassioned dissent in Schuette v. BAMN) remanding the case to the Fifth Circuit.  On remand in 2014, the Fifth Circuit somewhat surprisingly essentially reiterated its earlier position, holding that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.

During oral argument, the possibility that there could ever be a constitutional mention of race in an admissions program was at issue, with Breyer actually "spelling it out" (After Breyer asked for an example of using race and Fisher's attorney replied "you could give more emphasis to socio-economic factors," Breyer stated: "That's not to use race. I'm saying r­-a­-c­-e, race. I want to know which are the things they could do that, in your view, would be okay. Because I'm really trying to find out. Not fatal in fact, we've said. Okay? Not fatal in fact. Fine.")

Essentially, the Court today found that there were no workable race-neutral means to accomplish UT's compelling interest in diversity:

In short, none of petitioner’s suggested alternatives— nor other proposals considered or discussed in the course of this litigation—have been shown to be “available” and “workable” means through which the University could have met its educational goals, as it understood and defined them in 2008. Fisher I, supra, at ___ (slip op., at 11). The University has thus met its burden of showing that the admissions policy it used at the time it rejected peti­tioner’s application was narrowly tailored.

Kennedy's opinion ends with a paean to diversity and a warning, including to UT:

A university is in large part defined by those intangible “qualities which are incapable of objective measurement but which make for greatness.” Sweatt v. Painter, 339 U. S. 629, 634 (1950). Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.

In striking this sensitive balance, public universities, like the States themselves, can serve as “laboratories for experimentation.” United States v. Lopez, 514 U. S. 549, 581 (1995) (KENNEDY, J., concurring); see also New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting). The University of Texas at Austin has a special opportunity to learn and to teach. The University now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The University must continue to use this data to scrutinize the fairness of its admis­sions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.

The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.

Justice Alito disagreed strongly and read portions of his dissent from the bench.  His dissent was joined by Chief Justice Roberts and Justice Thomas (who also wrote briefly separately).  Alito's 50 page dissent argues that the means chosen is not satisfied, but also questions diversity as a compelling governmental interest:

The University has still not identified with any degree of specificity the interests that its use of race and ethnicity is supposed to serve. Its primary argument is that merely invoking “the educational benefits of diversity” is sufficient and that it need not identify any metric that would allow a court to determine whether its plan is needed to serve, or is actually serving, those interests.

Interestingly, Alito ends by suggesting that perhaps Amanda Fisher has no standing after all, and implying that his colleagues' (or one particular colleague?) integrity has eroded:  "The majority cannot side with UT simply because it is tired of this case."

 

 

 

Second Circuit: Is "Hispanic" a "Race"?

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a case involving both 42 USC §1981 and Title VII, a panel of the Second Circuit in its opinion in Village of Freeport v. Barrella addressed the question of whether "Hispanic" was included in definitions of race.  In a word, the answer was yes.  In a few words, Judge Jose Cabranes' opinion for the panel answered:

Based on longstanding Supreme Court and Second Circuit precedent, we reiterate that “race” includes ethnicity for purposes of § 1981, so that discrimination based on Hispanic ancestry or lack thereof constitutes racial discrimination under that statute. We also hold that “race” should be defined the same way for purposes of Title VII.

Don Quixote by Pablo Picasso, 1955, via

The plaintiff, Barrella, argued that the Village official had not appointed him chief of police because Barrella was a white Italian‐American, and that the Village had instead appointed a less‐qualified Hispanic. A jury found in favor of Barrella.  At trial and on appeal, the Village contended that there was no "race" discrimination or classification, because "Hispanic" is not a race.  Judge Cabranes' opinion discussed the "societal confusion" regarding "Hispanic," and included an interesting Appendix on the various labels the United States Census has used, starting in 1930.  The court, however, clearly stated:

The existence of a Hispanic “race” has long been settled with respect to §1981. Although that statute never uses the word “race,” the Supreme Court has construed it as forbidding “racial” discrimination in public or private employment.  The Court has further defined “racial discrimination,” for purposes of §1981, as including discrimination based on “ancestry or ethnic characteristics.”

But the clarity with regard to §1981 does not exist with regard to Title VII, which is further complicated by an "analytic" problem.  The Second Circuit recognized that although its precedent had "avoided the question so far,"

 the proper categorization of Hispanicity has important analytical implications. Section 1981 prohibits discrimination on the basis of race but not on the basis of national origin.  Accordingly, if we were to treat Hispanicity as a national origin, but not as a race, for purposes of Title VII, plaintiffs in cases involving pro‐ or anti‐Hispanic discrimination might in some circumstances need to present two different factual arguments in order to invoke the distinct remedies of that statute along with those of § 1981.

 In deciding the issue of "Hispanicity," the Second Circuit disapproved of the district judge's decision to treat the question as one of fact: "The meaning of the word “race” in Title VII is, like any other question of statutory interpretation, a question of law for the court."  The error was harmless, however.  On the question of law, the Second Circuit clearly held that "race" encompasses "ethnicity" for purposes of Title VII, just as in §1981.

On the ultimate disposition, an evidentiary issue caused the Second Circuit to vacate the judgment and remand the case for a new trial.  Yet the case makes an important contribution in the continuing dialogue on the meanings of race - - - both statutory and otherwise. 

Court Hears Oral Arguments In Fisher II

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Today the Court heard oral arguments in Fisher v. University of Texas - - -  Fisher II - - - (again) raising the constitutionality of the admissions plan at the University of Texas that includes a consideration of race.  How much a consideration of race is included in the plan as well as the effect of any considerations surfaced in today's argument which demonstrated the deep divide amongst the Justices on issues of race.

This deep divide was apparent, despite the fact that Fisher I was a 7-1 opinion as Justice Breyer noted today.  (Only Justice Ginsburg dissented in Fisher I; Justice Kagan was recused).  Breyer stated that the Court "promised in Fisher I" that strict scrutiny would not be "fatal in fact" as applied in university affirmative action.  Justice Breyer had previously stressed in a colloquy with Bert Rein, representing Fisher, that it must be possible to use race, actually "spelling it out" to counsel.  After Breyer asked for an example of using race and Rein replied "you could give more emphasis to socio-economic factors," Breyer stated:

That's not to use race. I'm saying r­-a­-c­-e, race. I want to know which are the things they could do that, in your view, would be okay. Because I'm really trying to find out. Not fatal in fact, we've said. Okay? Not fatal in fact. Fine.

Yet the problem of the requirement of narrowly tailored proved difficult.  Perhaps Solicitor General Verrilli, supporting the University of Texas, expressed the problem best by calling it a "Catch-22."  Indeed, it seemed that the university's plan was problematic both because it was and was not effective. Nevertheless, one recurring argument was whether the University of Texas plan was as good as - - - if not better - - - than the plans upheld in Grutter and Bakke.

The arguments were not limited to the means chosen, however, for the continued validity of diversity as a compelling interest in higher education surfaced repeatedly.  While General Verrilli did not mention George Washington, he did aver to the continued importance of diversity in higher education and for the nation.  Moreover, there were references to the hope expressed by the Court in Grutter v. University of Michigan that affirmative action would not be necessary in 25 years.  Chief Justice Roberts asked counsel for University of Texas, Gregory Garre, whether we were going to "hit the deadline" in 12 more years.  Justice Scalia asked Solicitor General Verrilli if he thought we could "stop disadvantaging some applicants because of their race" in another 13 years.

Scalia made it clear that he thought the time for any type of racial affirmative action was long past, if there ever was such a time.  Indeed, in what was probably the most controversial commentary in the argument, Scalia advanced what might be called a separate-but-unequal argument:

There are ­­ there are those who contend that it does not benefit African­-Americans to ­­ to get them into the University of Texas where they do not do well, as opposed to having them go to a less­ advanced school, a less ­­ a slower ­track school where they do well. One of ­­ one of the briefs pointed out that ­­ that most of the ­­ most of the black scientists in this country don't come from schools like the University of Texas.

. . . . They come from lesser schools where they do not feel that they're ­­ that they're being pushed ahead in ­­ in classes that are too ­­ too fast for them.

Will it all devolve to Justice Kennedy?

If Justice Kennedy, the author of Fisher I,  is the "swing vote" in Fisher II, it may be that the Court would remand Fisher to the district court for a trial. 

Recall that the Fifth Circuit in Fisher on remand from the United States Supreme Court did not remand to the district court, but decided the case.  But just what that evidence might possibly be adduced at a trial was also a controversial subject at the oral argument. 

 

Still, this might be the only compromise available for such a divided Court.

 

Daily Quote: George Washington and Diversity in Higher Education

The Amicus Brief of the United States in Fisher v. University of Texas - - - Fisher II - - - to be argued December 9, begins its argument with an interesting evocation of the governmental interest in diversity:

Over two hundred years ago, George Washington recognized the importance to the Nation of a university education that would “qualify our citizens for the exigencies of public, as well as private life *** by assembling the youth from the different parts of this rising republic, contributing from their intercourse, and interchange of information, to the removal of prejudices which might perhaps, sometimes arise, from local circumstances.” Letter from President George Washington to the Commissioners of the District of Columbia (Jan. 28, 1795), in 34 The Writings of George Washington 106-107 (John C. Fitzpatrick ed., 1940).

[Ellipses in original].

 

 

Daily Read: SALT Amicus Brief in Fisher v. UT (II)

As the oral argument scheduled for December 9  for Fisher II approaches, organizations and individuals are filing amicus briefs for the Court's consideration.  SALT - - - the Society of American Law Teachers - - - a progressive organization of law faculty that has long fought for diversity in legal education, has predictably filed an amicus brief supporting University of Texas's admissions program. 

One of the more interesting aspects of the brief is its argument that race neutrality is essentially impossible: "race-blind holistic review is not only a contradiction in terms, it is infeasible."  As the brief argues, "Put simply, because peoples’ lives are not “color blind,” neither can a holistic admissions policy be."

Consider a college application from an individual who lists youth leadership in his or her African Methodist Episcopal Church as an activity. Or consider an application from a first-generation Latina high-school senior whose personal essay discusses her immigrant parents’ experiences and how she learned to thrive in an English-dominated culture even though Spanish is the language spoken at home. If the reader is to conduct holistic review but cannot consider race, the reader is confronted with uncomfortable choices about how to handle these applications.

Moreover, if the reader cannot consider race, the reader would be confronted with an impossible task, because race affects assessments of individuals consciously or unconsciously, regardless of intentions and any mandate from this Court. . . .

Just as Dostoevsky’s polar bear will occupy the mind of anyone challenged not to think about it, so too will the admonition not to think about race generate an unspoken preoccupation with that subject.

 Although the SALT amicus brief does not argue that race will then be only used negatively, that is perhaps a consequence of an elimination of racialized diversity as a positive value.

 

Court Grants Certiorari in Fisher v. UT Austin (Redux)

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Court has granted certiorari in Fisher v. University of Texas at Austin, which means the affirmative action in university admissions will be making its second trip to the United States Supreme Court.  Justice Kagan is recused.

Recall that in June 2013, the United States Supreme Court reversed the Fifth Circuit's finding in favor of the University (affirming the district judge).  The Court remanded the case for a  "further judicial determination that the admissions process meets strict scrutiny in its implementation."  The  opinion,  authored by Justice Kennedy - - - with only Justice Ginsburg dissenting and Justice Kagan recused - - -specified that the "University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal"  of diversity and the University should receive no judicial deference on that point.

On remand, recall that by a divided opinion, a panel of the Fifth Circuit held that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.

The Court's grant of certiorari might mean that the Court - - - or at least 4 of its members - - - disagrees with the Fifth Circuit's application of narrowly tailored.  Justice Kagan's recusal could be an important factor in any decision.

Fisher graduated from another university in 2012, but the courts have rejected arguments regarding mootness.

 

Fifth Circuit Denies En Banc Review in Fisher Remand

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Fifth Circuit has denied en banc review by a vote of 10-5 in its  Order in  Fisher v. University of Texas at Austin.  

Recall that in a divided opinion in July, a Fifth Circuit panel held that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.

Recall also that the United States Supreme Court had reversed the Fifth Circuit's  original finding in favor of the University (affirming the district judge) and  remanded the case for a  "further judicial determination that the admissions process meets strict scrutiny in its implementation."  The  opinion,  authored by Justice Kennedy - - - with only Justice Ginsburg dissenting and Justice Kagan recused - - -specified that the "University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal"  of diversity and the University should receive no judicial deference on that point.

Judge Emilio Garza, the  Senior Judge who dissented from the panel opinion also wrote a very brief dissenting opinion from en banc review, which was joined by Judges Jones, Smith, Clement, and Owen.  Judge Garza contends that while the "panel majority dutifully bows" to the United States Supreme Court's requirements in Fisher, it "then fails to conduct the strict scrutiny analysis" the opinion requires "thus returning to the deferential models" of Regents of University of California v. Bakke and Grutter v. Bollinger.

A petition for writ of certiorari is certain; the grant of that petition is less certain.

On Remand, Fifth Circuit Panel Reconsiders UT's Affirmative Action Plan from Fisher v. University of Texas

Professor Ruthann Robson, City University of New York (CUNY) School of Law

By a divided opinion in Fisher v. University of Texas at Austin, a panel of the Fifth Circuit has held that the university met its burden of demonstrating the narrowing tailoring necessary to satisfy strict scrutiny under the Equal Protection Clause.

Recall that more than a year ago, the United States Supreme Court reversed the Fifth Circuit's finding in favor of the University (affirming the district judge).  The Court remanded the case for a  "further judicial determination that the admissions process meets strict scrutiny in its implementation."  The  opinion,  authored by Justice Kennedy - - - with only Justice Ginsburg dissenting and Justice Kagan recused - - -specified that the "University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal"  of diversity and the University should receive no judicial deference on that point.

 Today's Fifth Circuit panel decision, authored by Judge Patrick Higginbotham, and joined by Judge Carolyn Dinen King, first decided that it would consider the case.   The panel rejected the standing arguments, including the fact that Abigail Fisher graduated from another university in 2012, because the "actions of the Supreme Court do not allow our reconsideration" of the standing issue.  In other words, the Court knew about the standing issues when it remanded the case in June 2013.  The panel also carefully considered the Court's remand language: "The judgment of the Court of Appeals is vacated, and the case remanded for further proceedings consistent with this opinion.”  Fisher argued that the Court required the Fifth Circuit to perform the reconsideration, while the University of Texas argued that the matter should be remanded to the district judge.  On this issue, the Fifth Circuit sided with Fisher, holding that because "there are no new issues of fact that need be resolved, nor is there any identified need for additional discovery; that the record is sufficiently developed; and that the found error is common to both this Court and the district court," a remand to the district judge  "would likely result in duplication of effort."

The panel majority's opinion then discussed in detail the University of Texas at Austin's admissions policies and efforts.  It noted:

“Narrow tailoring does not require exhaustion of every race neutral alternative,” but rather “serious, good faith consideration of workable race- neutral alternatives that will achieve the diversity the university seeks.”  Put simply, this record shows that UT Austin implemented every race-neutral effort that its detractors now insist must be exhausted prior to adopting a race- conscious admissions program—in addition to an automatic admissions plan not required under Grutter that admits over 80% of the student body with no facial use of race at all.

Nevertheless, the panel recognized that this "automatic admissions plan" - - - the Top Ten Percent plan - - - achieves diversity because of the segregation of Texas' high schools.  Under the "holistic view" of Grutter for the remaining 20%, absent a consideration of race, the selection would not be racially diverse.

appendix 2 in the opinion

Concluding its 40 page opinion, the panel wrote:

In sum, it is suggested that while holistic review may be a necessary and ameliorating complement to the Top Ten Percent Plan, UT Austin has not shown that its holistic review need include any reference to race, this because the Plan produces sufficient numbers of minorities for critical mass. This contention views minorities as a group, abjuring the focus upon individuals— each person’s unique potential. Race is relevant to minority and non-minority, notably when candidates have flourished as a minority in their school— whether they are white or black. Grutter reaffirmed that “[j]ust as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race still matters.” We are persuaded that to deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter. The need for such skill sets to complement the draws from majority-white and majority-minority schools flows directly from an understanding of what the Court has made plain diversity is not. To conclude otherwise is to narrow its focus to a tally of skin colors produced in defiance of Justice Kennedy’s opinion for the Court which eschewed the narrow metric of numbers and turned the focus upon individuals. This powerful charge does not deny the relevance of race. We find force in the argument that race here is a necessary part, albeit one of many parts, of the decisional matrix where being white in a minority-majority school can set one apart just as being a minority in a majority-white school—not a proffer of societal discrimination in justification for use of race, but a search for students with a range of skills, experiences, and performances—one that will be impaired by turning a blind eye to the differing opportunities offered by the schools from whence they came.

....  the backdrop of our efforts here includes the reality that accepting as permissible policies whose purpose is to achieve a desired racial effect taxes the line between quotas and holistic use of race towards a critical mass. We have hewed this line here, persuaded by UT Austin from this record of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race, faithful to the content given to it by the Supreme Court. To reject the UT Austin plan is to confound developing principles of neutral affirmative action, looking away from Bakke and Grutter, leaving them in uniform but without command—due only a courtesy salute in passing.

Dissenting, Judge Emilio Garza essentially contended that the majority was giving deference to the University.  He noted that it is not impossible  "for a public university to define its diversity ends adequately for a court to verify narrow tailoring with the requisite exacting scrutiny," even with the use of "critical mass."  But he somewhat confusing stressed that

What matters now, after Fisher, is that a state actor’s diversity goals must be sufficiently clear and definite such that a reviewing court can assess, without deference, whether its particular use of racial classifications is necessary and narrowly tailored to those goals.

Yet what will matter now is whether this panel will have the last say.  The Fifth Circuit could grant en banc review or the United States Supreme Court will grant certiorari and take yet another look at affirmative action.  

 

Daily Read: Sheryll Cashin's "Place Not Race"

ConLawProf Sheryll Cashin's new book, Place Not Race: A New Vision of Opportunity in America is just out. In it, Cashin looks at the demise of affirmative action presaged by Supreme Court cases such as this Term's Schuette and last Term's Fisher v. UT, and argues that substituting "place" for "race" in diversity admissions "will better amend the structural disadvantages endured by many children of color, while enhancing the possibility that we might one day move past the racial resentment that affirmative action engenders."

Here's a bit from a longer excerpt on abc:

Race-based affirmative action buys some diversity for a relative few, but not serious inclusion. It doesn’t help to build a movement to attack underlying systems of inequality that are eating away at the soul of our nation. Among other transformations, we need corporations that share more profits with workers and pay them equitably. We need a financial system that doesn’t exploit average people. We need governments that invest wisely in pre-K-12 education and the nonselective higher education that at least half of high school graduates attend. We also need government that does not over-incarcerate high school dropouts of all colors.

Cashin contends that "race" is both over-inclusive and under-inclusive, an analysis that will be familiar to anyone in the affirmative action cases employing strict scrutiny.  But Cashin's slant is different.  For Cashin, it isn't necessarily that we are post-racial.  Instead, "given our nation’s failure to live up to Brown, we have an obligation to acknowledge and ameliorate the injustices of segregation—a moral imperative more important than diversity itself."

An interesting read for anyone considering affirmative action, race, and equality.

Court in Schuette: Michigan Can Ban Affirmative Action

Professor Ruthann Robson, City University of New York (CUNY) School of Law

The Court's opinion in Schuette v. BAMN (Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary),  clearly upheld Michigan's Proposal 2, enacted as Article I §26 of the Michigan Constitution barring affirmative action in state universities and subdivisions. The plurality opinion for the Court was authored by Justice Kennedy, and joined by Chief Justice Roberts and Justice Alito.  Chief Justice Roberts also authored a brief concurring opinion. Justice Scalia's concurring opinion was joined by Justice Thomas.  Justice Breyer also wrote a concurring opinion.  Justice Sotomayor's impassioned dissent was joined by Justice Ginsburg.  Justice Kagan was recused.

The state constitutional amendment was a reaction to the Court's opinion in Grutter v. Bollinger (2003), upholding the University of Michigan Law School's use of diversity in admissions.  But since Grutter, the Court has been decidely less friendly to affirmative action, as in  Fisher v. University of Texas.

Recall that the en banc Sixth Circuit majority had relied upon 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, relying on Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969).  At oral arguments, the Justices had seemed hostile to that theory.

Justice Kennedy's plurality opinion for the Court carefully rehearses the cases, but it is probably his rhetoric that is most noteworthy:

This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.

As for Justice Scalia's opinion, it admits that the "relentless logic of Hunter and Seattle would point to a similar conclusion in this case" as the Sixth Circuit understood.  However,  both Hunter and Seattle should be overruled.  Justice Breyer, concurring, would distinguish Hunter and Seattle because Schuette  "does not involve a reordering of the political process; it does not in fact involve the movement of decisionmaking from one political level to another."

It is Justice Sotomayor's dissent, joined by Justice Ginsburg, that displays the most heft.  At more than 50 pages and almost as lengthy as all the other opinions combined, Sotomayor's opinion is an extended discussion of equal protection doctrine and theory, as well as the function of judicial review.  In her last section, she also addresses the "substantive policy" of affirmative action and the difference it makes.

The stark division among the Justices is clear.  Sotomayor writes that "race matters."  Scalia reiterates that the constitution is "color-blind."  Roberts implies that racial "preferences do more harm than good."  And Kennedy invokes a First Amendment right to debate race:

Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. . . . The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. . . . It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.

Given this passage, perhaps it is not surprisingly that Justice Kennedy does not cite Romer v. Evans - - - which he authored in 1996 - - - in today's plurality opinion in Schuette.  In Romer v. Evans, Kennedy had this to say about Colorado's Amendment 2, which prohibited the enactment of anti-discrimination laws on the basis of sexual orientation:

It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. . . . A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.

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Oral Arguments in Schuette v. Coalition to Defend Affirmative Action on Michigan's Prop 2

Today's oral arguments before the United States Supreme Court in Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN) raised a raft of interesting hypotheticals, including this question: Is the Michigan's state constitution's equal protection clause, which mirrors the federal one, itself unconstitutional under the Fourteenth Amendment's Equal Protection Clause.

Of course, the issue before the Court involves a different provision of Michigan's Constitution: Prop 2, adopted by voter referendum in 2006, and now Art I §26 of the state constitution. 

The referendum occurred subsequent to the Court's upholding of Michigan University School of Law's affirmative action policy in Grutter v. Bollinger, even as the Court held unconstitutional the plan of the large undergraduate university as not sufficiently narrowly tailored.

Recall that the en banc Sixth Circuit majority in Coalition to Defend Affirmative Action v. Regents of the University of Michigan relied upon 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, relying on Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969).

The oral argument reflected a deep suspicion of the political process rationale, with the most serious questioning being directed at what the limits to such a doctrine might be.  Justice Alito returned to the issue several times, posing various hypotheticals about faculty admissions plans that might be overruled by a dean or president of the university.  Or maybe, he continued,

it's overruled by the regents. Maybe, if State laws allowed, it's -- it's overruled by an executive department of the State. Maybe it's overruled by the legislature through ordinary legislation. Maybe it's overruled through a constitutional amendment.  At what point does the political restructuring doctrine kick in?

Later in the rebuttal argument of the Petitioner, Justice Alito suggested an answer to his own question:

Seattle and this case both involve constitutional amendments. So why can't the law -- the law be drawn -- the line be drawn there? If you change the allocation of power in one of these less substantial ways, that's one thing; but when you require a constitutional amendment that's really a big deal.

Indeed, this was exactly the rationale of the en banc Sixth Circuit's majority opinion, as the opening passages to that opinion illustrated.

And Justice Kennedy, seemingly in his role as a "swing vote" - - - although Justice Kagan is recused - - - seemed to share the specific concerns of how to draw a line in the cases.

Justice Scalia certainly did not seem inclined to worry about drawing lines or allocations of power.  Indeed, he rejected the notion that Prop 2, now Article I §26 of the Michigan Constitution - - - despite its textual "on its face" use of a race - - - made a racial classification.  He chastised Mark Rosenblum, arguing on behalf of some of the respondents, for referring to Prop 2 as including a "facial racial classification":

JUSTICE SCALIA: It's not a racial classification. You should not refer to it that way.

MR. ROSENBAUM: It is a racial -­

JUSTICE SCALIA: It's the prohibition of racial classifications.

MR. ROSENBAUM: No, Your Honor.

JUSTICE SCALIA: Every prohibition of racial classification is itself a racial classification?

After further discussion, Justice Scalia asked,

In that sense, the 14th Amendment itself is a racial classification, right?

To which Rosenbaum replied that he was using the Fourteenth Amendment itself as measurement.  Yet this theme recurred, and had been part of the Petitioner's opening argument, including references to Michigan's equal protection clause.

Scalia also outright dismissed an appeal to originalism.  When Shanta Driver (pictured right) on behalf of Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary (and who is its National Chair), began her argument asking the Court to affirm the Sixth Circuit and "to bring the 14th Amendment back to its original purpose and meaning, which is to protect minority rights against a white majority, which did not occur in this case," Scalia interjected:

JUSTICE SCALIA: My goodness, I thought we've -- we've held that the 14th Amendment protects all 
races. I mean, that was the argument in the early years, that it protected only -- only the blacks. But I thought we rejected that. You -- you say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?

And Justice Roberts surfaced the position that affirmative action was actually a detriment to those it sought to benefit, echoing some of the arguments in Thomas's dissent in Fisher, such as the so-called "mismatch theory."

Thus, while the arguments sometimes sought to distance themselves from the affirmative action battles that the Court re-engaged last term in Fisher v. UT, certainly Schuette v. Coalition to Defend Affirmative Action is another such battle, albeit on slightly different doctrinal terrain.  It seems unlikely that it will have a different ultimate outcome.

 

Randall Kennedy at NY Historical Society on The Supreme Court and Affirmative Action

October 3, 2013, 6:30 pm, in NYC

Free for Law Students and Faculty

Required registration and more information here.

Daily Read: The New Yorker on Justice Ginsburg, Fisher, and Footnote 4

Over at the New Yorker blog, Lincoln Caplan's piece, "Justice Ginsburg and Footnote Four" analyzes Ginsburg's discussion last week at the National Constitution Center, arguing that one of her statements "deserves more attention than it has gotten."

Ginsburg stated that her dissent last term in Fisher v.  University of Texas Austin, regarding judicial review of  affirmative-action plans of colleges and universities, "was inspired by a 1938 ruling not mentioned in the dissent—actually, by one of its footnotes."  That most famous footnote - - - footnote four - - -of United States v. Carolene Products, is for many (including Caplan) the foundation of "a coherent justification for unelected justices to overturn legal decisions of elected officials when the fairness of the Constitution, and of democracy, is at stake."  

Recall that the 1938 case of  Carolene Products involved a federal statute regulating the shipment of "filled milk" (skimmed milk to which nonmilk fat is added so that it may seem to be like whole milk or even cream).   It may be that this case was also on Ginsburg's mind during the oral arguments of another one of last term's cases:  In her questioning of Paul Clement, who represented BLAG, in United States v. Windsor about the constitutionality of DOMA, she condensed his argument as saying that in granting same-sex marriages, states were nevertheless saying there were really "two kinds of marriage; the full marriage, and then this sort of skim milk marriage."   As we noted at the time, Ginsburg's allusion would have special resonance for those who recalled Carolene Products.

 

Daily Read: The importance of amicus briefs

An  ABA Journal article by Mark Walsh tells us that last Term, 2012-2013, was "another big one" for amicus curiae briefs at the United States Supreme Court: "Seventy of the 73 cases, or nearly 96 percent, that received full plenary review attracted at least one amicus brief at the merits stage."

The top amicus-attractors? 

The same-sex marriage cases of Windsor and Perry, with 96 and 80 respectively and the affirmative action case of Fisher, with 92.  

Shelby County v. Holder, the Voting Rights Act case, attracted 49 amicus briefs, including one from ConLawProf Patricia Broussard (second from right) and her students at FAMU College of Law, as pictured below.

Yet perhaps the most interesting aspect of the ABA Journal article is its chart displaying the citation rate of amicus briefs by Justice, with Sotomayor ranking at the highest end and Scalia and Alito at the lowest end.

Worth a look, especially for ConLawProfs writing, signing, or assigning amicus briefs.

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Daily Read: Ellis and Jones on the 50th Anniversary of the March on Washington for Jobs and Freedom

Several media and legal outlets are running impressive commentaries on this fiftieth anniversary of the March on Washington for Jobs and Freedom led by Martin Luther King, Jr.

Here are two that should not be missed.

Over at ACS blog, Law Prof Atiba Ellis writes on "The Moral Hazard of American Gradualism: A Lesson from the March on Washington."  Ellis states, "the question we must confront in 2013 is whether we have been tranquilized into the lethargy of gradualism concerning the work that needs to be done."   Ellis highlights the Court's decisions last term in Shelby and in Fisher as examples of "the new American gradualism – retrogressive action under the cover of apathy, spurred by the myth of post-racialism and the supposed fear of constitutional overreach."

And on NPR's Morning Edition, journalist Michele Norris profiles Clarence B. Jones as an attorney and "guiding hand" behind the "I Have a Dream" speech, including the famous "promissory note" metaphor.  However, Norris also highlights Jones' memoir Behind The Dream, which had "some unlikely source material."  Indeed, Jones' memoir may be more accurate than most, since his memory was augmented by transcripts of every single phone conversation he had with King, courtesy of the FBI, in a wiretap authorized by Robert Kennedy as Attorney General.  The NPR story has a link to the FBI archive on King. 

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