Monday, October 28, 2019

The Supreme Court and the Future of Affirmative Action

On October 1, the U.S. District Court for the District of Massachusetts issued its much anticipated ruling in Students for Fair Admissions (SFFA) v. Harvard.  Almost one year after the trial first began, Judge Allison D. Burroughs ruled that Harvard’s race-conscious admissions policy did not violate Title VI of the Civil Rights Act of 1964.  In a 130 page opinion, Judge Burroughs delved thoughtfully into the details of Harvard’s admissions process: the university’s self-studies of this process; its compelling interest in diversity; statistical models put forth by both SFFA and Harvard; and the prospect of using race-neutral alternatives to attain a diverse student body.   She found that Harvard’s policy did not intentionally discriminate against Asian American applicants, and that it was consistent with equal protection guidelines laid out in Grutter v. Bollinger (2003) and Fisher v. University of Texas at Austin II (2016)—guidelines that also apply to Title VI race discrimination.  Judge Burroughs’ opinion provides a meticulous exemplar for future courts that evaluate race-conscious admissions policies. 

SFFA is sure to appeal the ruling to the U.S. Court of Appeals for the First Circuit.  Here, the district court’s ruling will likely be affirmed.  It is improbable that the First Circuit will want to reconsider the statistical models presented by SFFA and Harvard and the legal conclusions that Judge Burroughs drew from them.  One question that the First Circuit could revisit is whether Harvard fully considered race-neutral alternatives to attain a diverse student body.  This issue may also well be the focus of future lawsuits intended to eliminate race-conscious admissions policies.  Nevertheless, since Fisher dealt with the issue and Judge Burroughs addressed it thoroughly, a reversal on these grounds is also unlikely.  The precedent here is pretty clear: the “Harvard plan”, with its emphasis on educational benefits of diversity and on holistic admissions, was the basic model upheld in Regents of the University of California v. Bakke (1978) and later affirmed in Grutter and Fisher

The big question now is whether the U.S. Supreme Court will grant certiorari, since SFFA is also sure to appeal subsequently to the High Court.  The Court now has a solid conservative majority, with three of the Justices having previously voted to strike down race-conscious admissions policies: Chief Justice John Roberts, Justice Samuel Alito, and Justice Clarence Thomas.  Justices Neil Gorsuch and Brett Kavanaugh are also widely thought to oppose such policies.  Barring an unexpected vote from one of these Justices, a cert grant will likely mean the end of affirmative action in university admissions.  Even if the Court does not abrogate the compelling interest in diversity altogether, it could still require universities to fully exhaust race-neutral alternatives to attain this diversity.  This would make Grutter’s narrow tailoring standard virtually impossible to meet and effectively accomplish the same end.

However, there are a few reasons why the Justices might deny cert.  First, only three years have passed since the Court decided Fisher v. University of Texas II.  Even if the Supreme Court did not hear SFFA v. Harvard until 2023, that would still only be seven years after Fisher II.  In contrast, 25 years passed between the Court’s rulings in Bakke and Grutter, and another decade passed before the Fisher rulings.  Chief Justice Roberts cares about the legitimacy of the Court in the public’s eyes, and revisiting the contentious issue of race-conscious admissions now would likely fuel public perceptions that the Court is not impartial, but merely another political body.  Roberts may prefer that the Court wait a few years to take another case.  If he can convince at least one other conservative Justice that this is the best course, cert would be denied.

Additionally, if they are willing to wait, the conservative wing of the Court can eliminate race-conscious policies in a manner that is arguably consistent with Grutter.  In 2003, Justice Sandra Day O’Connor’s Grutter majority opinion posited that race-conscious admissions policies would no longer be necessary in 25 years—in 2028, which is only nine years away now.  After she retired, Justice O’Connor stated that the 25 year timeframe was merely an aspiration.  However, others, including the late Justice Antonin Scalia and Justice Stephen Breyer, have suggested that this timeframe may be part of Grutter’s holding.  Consequently, the conservative wing of the Court, led by Roberts, could choose to wait until 2028.  They could then vote to end race-conscious admissions and contend that they are not eschewing precedent, but actually following Grutter’s time limit. 

By 2028, the political implications of an anti-affirmative action ruling may also be different.  States have been taking various measures, from popular referenda to legislative and executive action, to eliminate race-conscious policies.  Trump’s Department of Justice has initiated investigations of race-conscious admissions policies, putting pressure on universities to curb back these policies.  SFFA has again sued the University of Texas, this time in state court, and it has also has a federal lawsuit pending against the University of North Carolina.  In another decade, there may be a Circuit split on affirmative action, as there was when the Court granted cert in Grutter.  A decade from now, all of these factors would make a ruling against affirmative action appear less politically-motivated and more consistent with precedent and popular will than a cert grant in SFFA v. Harvard

Whether it happens sooner or later, most experts think that the Supreme Court will strike down affirmative action in university admissions.  Nevertheless, we should remember that the “Harvard plan” has been a resilient doctrine.  Four decades ago in Bakke, it saved affirmative action.  Twenty years ago, many observers predicted that Grutter, along with its companion case Gratz v. Bollinger (2003), would end race-conscious admissions policies.  But Justice O’Connor, who had previously been hostile to such policies, surprised them by embracing the Harvard plan in her Grutter opinion.  Justice John Paul Stevens also gradually changed his views on affirmative action, voting against race-conscious admissions policies in Bakke and then voting in favor of them in Grutter.  And even though Justice Anthony Kennedy dissented in Grutter, he then voted to uphold the Harvard plan in Fisher.

Expert predictions have often been wrong about Supreme Court jurisprudence regarding affirmative action.  Perhaps no major issue before the Court has so repeatedly bucked expectations.  At a time when the Supreme Court has become more conservative than ever, the best hope for proponents of affirmative action is that history keeps repeating itself.

October 28, 2019 | Permalink | Comments (0)

Monday, October 21, 2019

A Most Vicious Cycle: Mass Shootings, Gun Rights, and Police Killings of Blacks (Guest Blog by Prof. SpearIt)


Mass killings continue unabated in the U.S. Since Columbine and Sandy Hook, there have been what seems like countless gun attacks that leave multiple innocent lives lost. Despite the fact that the children lost at Sandy Hook would by now be teenagers, the many killings since then make those tragic events seem like ancient history.

Starting with what seemed to be random killing sprees, efforts have become more ideologically intentional, with Muslim, Jewish, LGBTQ, Black Christian, and most recently, Latino and immigrant communities being the focus of attacks. Although these shootings clearly harm members of these discrete groups, not so visible is how these shootings harm black communities. Indeed, hardly matters which group is the target of a mass shooting, since Blacks, in the end, will also pay a price, particularly when it comes to policing and being on the receiving end of harsh treatment by police.

One point to consider, as history shows, is that mass shootings are invariably followed by legislation that liberalizes gun laws. One study showed that a “single mass shooting leads to an approximately 15% increase in the number of firearm bills introduced within a state the year after the mass shooting…(this) holds for both Republican-controlled and Democrat-controlled legislatures.” Some researchers found that more than “20,000 pieces of gun-related legislation were produced after mass shootings in the last quarter century.” While some states have moved to restrict gun rights, the general thrust of mass shootings has not been to inspire conservative attitudes toward gun rights, but rather, to arm more citizens, allow more carrying of guns, and allow for greater self-defense with guns.

Simultaneous to this gun-rights expansion is the refusal of politicians to regulate guns in a meaningful way. Because of this lack of political will, there is military-grade weaponry on the streets and in the hands of citizens, the mentally ill, and criminals alike. The situation lays an opportune foundation for mass casualties at the hands of a single individual. A simple look at recent killings show that a common denominator was the use of assault rifles.

Under such conditions, the country has become a very dangerous place. It is a new wild, wild, west, where such weaponry, in turn, helps to justify the militarization of police. Although the push to make police more militant began in the 1970s post-Vietnam era, in the following decades, it has been embraced by law enforcement officials. Today, police departments own choppers, tanks, and military trucks, armed with high caliber weapons, flash grenades, helmets, and military armor. Such armament is reasonable and necessary for police to do their jobs in the perilous world that their elected officials have created.

This vicious cycle of mass shootings and police armament directly bears on the killing of Blacks. This is true at least to the extent that mass shootings have stunned, numbed, and dumbed the public to killing in general. In the wake of these mass slaughters, including of children, the police killing of a single black “suspect” holds far less shock value.

The mass loss of life thus makes black lives matter even less. In turn, the case of Colin Kaepernick shows that simply protesting against police brutality can lead to all sorts enragements, the likes of which effectively ended his football career. Even though police stop, arrest, and kill Blacks at higher rates than any other ethnic group, the controversy surrounding his protest has consumed the American public more than the brutal police killing of Blacks.

Even if Blacks are not killed, their communities bear the brunt of heavy police armament. The high-caliber artillery of police translates into real physical pain for these communities. Their residents are the ones likely to be beaten, bruised, tased, stunned, have bones broken, and have sight and hearing lost due to injuries. Some of the damage occurs when simple arrest warrants are executed with Rambo-style tactics, replete with an arsenal of weapons and technology.

In turn, black communities are empirically the least able to arm themselves because of felony disenfranchisement laws. The disproportional representation of Blacks in the criminal justice system yields a disproportionate number of Blacks who cannot legally possess a gun. Hence black communities, more than any other ethnic group, are far outgunned by the police and others who can lawfully possess a gun.

These developments are consequences of an ongoing arms race between police and civilians. This race is stimulated is time another shooting occurs involving guns that are more suited for war than simple self-defense. Thus, as long as lawmakers remain inert when it comes to the killings, the damage will continue, and with it, collateral damage to black communities.

Mass shootings ensure that Blacks will ultimately be at the receiving end of the weapons and technology wielded by police who arm themselves with mass shooters in mind. It is the ultimate bait-and-switch whereby police arms are justified by the weapons used in mass killings, yet Blacks, who are the least-armed, are the ones who are menaced by this armament more than anyone else.

-- by SpearIt, Professor of Law, Texas Southern University Thurgood Marshall School of Law

October 21, 2019 | Permalink | Comments (0)

Monday, October 14, 2019

Court Recognizes Reputational Harm to Muslims on Terrorist Watchlist

For nearly 20 years, Muslims in the United States have borne the brunt of aggressive and over-reaching national security practices.  Among the most pervasive are security screenings at airports and ports of entry.  Muslims’ experiences of being frisked, interrogated about their religious beliefs and practices, and having their electronics confiscated has become so frequent that it is referred to as “Flying While Muslim.”   

Underpinning such religious profiling is a massive terrorist watchlist comprising more than 1.1 million names, the majority of whom are Muslim and over 4,600 are U.S. citizens and green cardholders. Multiple federal agencies can nominate persons to the Terrorist Screening Center (TSC), which is responsible for vetting the watchlists.  Ninety-nine percent of all nominations are accepted, triggering serious civil liberties concerns with the lack of meaningful review. 

After years of litigation, and futile administrative complaints through the DHS Traveler Redress Inquiry Program (TRIP), the Muslim plaintiffs in Elhady v. Kable finally obtained legal relief.  On September 4, 2019, the federal district court in Virginia ruled that  the watchlisting process is unconstitutional. The absence of a pre- or post-deprivation hearing coupled with a sham administrative grievance process persuaded Judge Trenga to grant summary judgment for plaintiffs on their procedural due process claim. 

Most notable was the court’s recognition of the high reputational costs suffered by the Muslim plaintiffs, not only during travel but in other forums.  This finding is a welcome humanization of Muslims, whose dignitary and civil rights have been systematically subordinated to abstract national security interests. Whether challenging the National Security Entry Exit Registration System (NSEERS), immigration roundups of Arabs and Muslims after major terrorist attacks, or punitive detention conditions for terrorism suspects, Muslims have consistently been rebuked by courts deferential to the executive branch. 

In contrast, the court in Elhady found the plaintiffs had a liberty interest, under the Fifth Amendment Due Process Clause, in being free from false governmental stigmatization as a terrorist.  Citing the 1976 Supreme Court case Paul v. Davis, the court stated “[a] person has certain rights with respect to governmental defamation that alters or extinguishes a right or status previously recognized by state law, known as a ‘stigma-plus.’” To show stigma-plus, plaintiffs must show both a stigmatic statement and a state action that alters or adversely affects plaintiffs’ interests.  

The 23 Muslim plaintiffs filled the record with accounts of humiliating and abusive treatment by federal agents in the Customs and Border Patrol and Transportation Security Administration.  The lead plaintiff Anas Elhady was held for nearly six hours in “a small, freezing cold holding cell with bright lights,” causing him to be hospitalized. Another plaintiff, Ahmed Al Halabi, was “surrounded by armed CBP officers, handcuffed in front of his children and detained in a freezing cold holding cell for approximately two to three hours” when crossing the Canadian border by car. At least six of the plaintiffs were held at gunpoint, while their friends and families watched in horror.  And many were asked intrusive questions about what mosques they attended, what sect of Islam they belong to, and whether they study Islam full time. 

After repeated unsuccessful attempts to remove their names from the terrorist watchlist through the DHS TRIP, some plaintiffs stopped traveling outside the United States or on airplanes altogether. 

The harmful consequences of being on the watchlist extend beyond travel. The watchlist is widely disseminated to more than 18,000 state, local, county, city, university, tribal, and federal law enforcement agencies and 533 private entities through the National Crime Information System (NCIC).  As a result, people wrongly on the watchlist lose jobs. Government employers reference the watchlist for screening of employees and contractors.  So too do private employers with transportation and infrastructure functions.   

People wrongfully placed on the watch list also cannot own firearms in some states, are denied certain licenses, and have their bank accounts erroneously closed by entities that review the NCIC in their decision-making process. Citizenship and green card applications are indefinitely delayed due to an opaque FBI name check process that relies in part on the terrorist watch list.  Additionally, if someone on the watch list is subjected to a minor traffic stop, the police proceed as if they are dealing with a suspected terrorist.   

With countless Muslim names on the watchlist, pervasive false stereotypes of Muslims as violent and disloyal are corroborated to the millions of people reviewing the watchlist.  

Despite the broad adverse consequences, the standard for being added to the watchlist is vague and low.  The TSC accepts nominations to the watchlist for “an individual who is reasonably suspected to be engaging in, has engaged in, or intends to engage in conduct constituting, in preparation for, in aid of, or related to terrorism and/or terrorist activities.”  

There is no requirement that a person engaged in criminal activity, committed a crime, or even will commit a crime in the future in order to be placed on the watchlist.  Hence the decision is based largely on subjective judgments. 

Even more problematic is the TSC’s consideration of an individual’s race, beliefs, and activities protected by the First Amendment, travel history, and personal associations in evaluating a nomination.  This likely explains the over-representation of Muslims on the watchlist, including at least 4600 U.S. persons.  For these reasons, the court found DHS TRIP does not satisfy the Due Process Clause; and a post-deprivation hearing is warranted.    

A generation of Americans has come of age in a post-9/11 era where suspecting Muslims of terrorism is the norm.  Indeed, over 40 percent of Americans believe Islam is more likely to encourage violence than other religions.    Each time someone witnesses a government agent stop, detain, and search a Muslim at the border and airport, Islamophobic stereotypes are validated.   

Thus far, the courts have offered little relief for American Muslims’ pursuit of their legal and dignitary rights.  Only time will tell if the Elhady case signifies a reversal of this troubling trend or merely an anomaly. 

--- This article was originally published in the American Constitution Society Experts Forum here.

October 14, 2019 | Permalink | Comments (0)

Saturday, October 5, 2019

Excusing Racism: The Persecution of Donald Trump (Guest Blog Prof SpearIt)


For readers, this title might suggest yet another foray into the many controversies about Donald Trump’s racist tendencies. However, it is not. This article is not about Trump’s treatment of other people, but about how other people have treated Trump, racially speaking that is. Looking at the facts, it is clear that Trump has been, and continues to be, racially persecuted.

Although some might argue that he is simply getting his just deserts for fomenting racial angst, it leads one to wonder why such comments are excused or overlooked. It is indeed an odd spectacle to watch critics of Trump’s racism respond with racial epithets and color-coded jokes. This excused racism must be called out and abandoned for what it is, a counter-racial strategy that is itself tinged with discrimination.

Cheeto, Agent Orange, Orange Julius, and Orange Man are some of the epithets that are used to poke fun at Trump. These characterizations and the many others hardly illicit any protest. Even late-night comedy shows have featured segments that have taken liberties with Trump that would be unimaginable if said about an African-American or Latino politician, or anyone else for that matter. The Late Show host, Stephen Colbert, is known for making jokes about Trump, and in one episode proclaimed, “We have no idea what the color of his skin is.” Jimmy Kimmel has dubbed a book about Trump as “Fifty Shades of Orange.” These and an abundance of other such attacks proclaim open season on Trump, specifically on his color and appearance.

These characterizations are blunt showings of racism by practically any definition. Of course, there are competing definitions of “racism,” but most would seemingly include invidious discrimination based on skin color or physical attributes. Yet these are the exact sort of attacks being launched against Trump. So why the double standard? How can Trump be taken to task about his racist postures when his critics are lobbing back insults that have similar flavor?

Although peoples’ anger and hatred of Trump may excuse this type of joking, there are discrete dangers involved. This sort of counter-racism is just as harmful as the racism that instigates it, and it goes without saying that such talk would never be accepted if the comments were directed at Kamala Harris, Elijah Cummings, or any other non-white member of congress. Yet such conduct continues unabated when it comes to Trump.

Perhaps one of the overarching insights of this phenomenon is that hatred is indeed blinding. For many Americans, Trump represents the epitome of race-hatred, and because of that he is an obvious target of criticism. Yet when that crosses the line into textbook discrimination, it is still a bad thing—even when it happens to an overprivileged, spoon-fed swindler from the dominant racial class.

Although some might counter that some of the joking has to do with the fact that the “color” being discussed is not really his at all. Instead, the jokes are rooted in the premise that he does things to achieve the color he has. While this might seemingly justify the epithets, it does nothing for people who really are that color. Whether through hair color, freckles, or other skin colorations and attributes, there are people who have an “orange” countenance. So, even if Trump’s color may be the bud of a joke, it might not be so funny for people of similar hue.

Attacks on Trump that are couched in racism should not be more acceptable than any other brand of racism. The fact that hatred helps to excuse these attacks should be alarming. It suggests, as a baseline proposition, that society must be vigilant to protect those who are hated or despised the most. Failure on this point can lead to moral breakdown, for as we are witnessing, hatred of Trump has birthed some of the very attitudes for which he is hated. Trump’s brutal immigration policies alone have ignited all sorts of visceral reactions from the American public.

Some might view this as giving Trump a dose of his own racial bigotry, but society must take care not to fall into the trap of condoning racism simply because we despise a person or group, such as immigrants or even a corrupt president.

We must be careful not to allow the hatred to propel us into becoming what we despise.

-- by SpearIt, Professor of Law, Texas Southern University Thurgood Marshall School of Law

October 5, 2019 | Permalink | Comments (2)

Call for Proposals: Detroit Mercy Law Review Symposium: Race, Class, and Environmental Justice

The University of Detroit Mercy Law Review seeks proposals for its 104th annual Symposium, which will focus on Race, Class, and Environmental Justice and will be held Friday, March 6, 2019, in Detroit, Michigan.  Proposals, which should be approximately 250–500 words, are due no later than 5 p.m. EST on Friday, October 18, 2019.  Possible topics include, but are not limited to: the impact of water and air quality issues on marginalized people; the history of ecological inequities and the law; legal approaches to climate change and global warming; challenges arising from efforts to increase the use of renewable energy; legal and equitable issues connected with deep decarbonization projects; and any other topic related to race, class, and environmental justice.  Please include a current CV with your proposal and indicate whether the proposal is for a presentation only, or whether you also plan to submit an article for possible publication.  Preference will be given to proposals that include plans for an article, which will be due to the Law Review on Friday, March 13, 2019.  Proposals and questions should be directed to Bridget Underhill, Symposium Director, at

Deadline: Friday, October 18, 2019

October 5, 2019 | Permalink | Comments (0)