• June 27, 2016
    Guest Post

    by Joseph Fishkin, Professor, University of Texas at Austin School of Law and Co-Faculty Advisor to the ACS Student Chapter and Member of the ACS Board of Academic Advisors

    *This post is part of the ACSblog symposium: Members of the ACS Board of Academic Advisors reflect on the 2015-2016 Supreme Court Term.  

    **This post originally appeared at Balkinization

    Fisher v. Texas II, decided last week in a startling opinion by Justice Kennedy for a 4-3 majority of a short-handed Court, will not end the controversy—or the litigation—over affirmative action in American higher education, which has been an enduring battleground in American constitutional politics for four decades.  Throughout that time a succession of conservative near-majorities on the Supreme Court have attempted to end race-based affirmative action once and for all, and to make that rejection the centerpiece of a broader constitutional repudiation of a broad category of liberal race-based interventions.  They have perennially come up one vote short.  A succession of conservative swing Justices—Lewis Powell, Sandra Day O’Connor, and now as of this week, Anthony Kennedy—have made it their mission to make peace, on their own particular terms, between pro- and anti-affirmative-action constitutional arguments.  Each time, that peace has involved tightening the constraints under which universities implement affirmative action programs.  In past rounds, these conservative swing Justices have barred uses of race that were more mechanical and blunt, instead favoring a more holistic, individualized approach.  (This approach was a sort of handmade gift from the Justices to college admissions officers across America, many of whom owe their very jobs to its labor-intensiveness.)

    There were good reasons to expect this pattern to continue with Fisher v. Texas—to expect that Justice Kennedy, while once again stopping short of ending affirmative action, was poised to further tighten the constraints on universities.  This time the constraint would not be about holistic review.  Instead the plaintiffs in Fisher urged the Court to hold that no affirmative action program that considers the race of individual students is constitutional if there is a “workable” race-neutral alternative.  Doctrinally, the plaintiffs more or less got this holding from Justice Kennedy’s opinion in 2013, when Fisher v. Texas reached the Court the first time (Fisher I).  But this week Justice Kennedy wrote a different ending to the story.  Instead of yet again tightening the constraints on universities—and thereby making their affirmative action programs ever more precisely defined by the contours of legal doctrine, and therefore ever more uniform—he did something unexpected.  He loosened the constraints on universities instead, opening up new room for experimentation and for the use of a variety of admissions criteria.  He opened up a space for pluralism.

    Two different kinds of pluralism.  The first is about the approaches different institutions use in admitting their students.  The tighter the constitutional constraints imposed by a hostile Court, the more constitutional law tends to press every institution to proceed according to the same model.  Justice Kennedy recognized in Fisher II that this is a problem for a democracy that is continuing to contest and revise its approaches to a complex issue that implicates competing, deeply held constitutional values.  “In striking this sensitive balance,” he wrote, “public universities, like the States themselves, can serve as ‘laboratories for experimentation.’”  In other words, we need a diversity of approaches to diversity.

  • June 27, 2016
    Guest Post

    by Paul M. Smith, Partner at Jenner & Block and Member of the ACS Board of Directors

    As we celebrate the June 26 anniversary of the huge victory for marriage equality a year ago in Obergefell, it is good to recall that this date in June also saw two other key victories for LGBT equality – Lawrence v. Texas in 2003 and United States v. Windsor in 2013.  The June 26 I will always remember most vividly was the decision day of the Lawrence case in the Supreme Court.  I had had the great good fortune to have argued the case three months earlier and was present when Justice Kennedy announced the decision 13 years ago.

    To understand why Lawrence was so important, you need to understand two things – the problems it solved and the foundation it provided for future progress.  As to the former, what Lawrence did was overrule Bowers v. Hardwick, the 1986 Supreme Court case holding, by a vote of 5-4, that there was nothing unconstitutional about making same-sex sodomy a criminal offense. The sodomy laws were a very effective mechanism for keeping lesbians, gays and bisexuals in the closet and in a kind of second-class citizenship status. They meant that to be out and open about a same-sex relationship was to be admitting a crime. And while they were only rarely enforced directly against persons who engaged in private, adult, consensual sexual conduct, they were very often used to do things like deny people public employment or take away custody of their children.

    At the time of Bowers, about half the states still had such laws on the books, and Bowers of course left those laws in place. But it did more: it erected a barrier to progress toward LGBT equality because it made it nearly impossible to argue for any sort of federal constitutional protection from discrimination based on sexual orientation. 

    The story of how a small group of committed activists planned for and ultimately achieved the overruling of Bowers is a template for how to run a civil rights movement. The litigation side of the movement (Lambda Legal, ACLU, NCLR and GLAD) met regularly, forming what was known as the Ad Hoc Sodomy Law Task Force. They adopted a strategy of going state to state and seeking the repeal of sodomy laws or their invalidation under state constitutions by state courts (a strategy that was repeated when it came time to demand marriage equality). The theory was that when the right time came, the Supreme Court would be much more likely to change course on sodomy laws if they were perceived as relics that had been rejected by most of the states. This effort was remarkably effective. By 2003, there were only 13 states left with sodomy laws in effect.

  • June 24, 2016
    Guest Post

    by Marissa Liebling (Legislative Director, Project Vote) & Rosemarie Clouston (National Coordinator, Lawyers’ Committee for Civil Rights Under Law)

    While 38 states and the District of Columbia have created, or are creating, opportunities for their residents to register to vote online, only a handful have online systems that are fully accessible to all their residents. Most states’ online voter registration (OVR) systems require individuals to input their driver’s license or state-issued ID card numbers in order to use the system, as they pull a voter’s signature from those state records. These requirements reduce the benefits of OVR and disproportionately exclude traditionally underrepresented communities—including minorities, low-income individuals, the elderly and young people—from registering online. The convenience and efficiency of OVR should be available to all of a state’s residents, regardless of whether they have a state-issued ID card.

    As our busy modern lives increasingly rely on the Internet for everything from paying taxes to registering children for school, online voter registration is a quick and convenient way to help voters take the first step to engage in the electoral process. Further, in some states the online deadline is later than the deadline for voters mailing their applications, which expands an individual’s opportunity to register to vote. Communities of color, seniors, young people, and individuals with low incomes are all less likely to possess driver’s licenses, as demonstrated by states’ own estimates (600,000 registered voters in Texas, as one example). Fair elections call for equal access to registration procedures, including online voter registration.

    Two states—Pennsylvania and Kentucky—have recently taken steps to make their OVR systems more convenient and inclusive, and serve as examples for other states.

    In March 2016, less than a year after Pennsylvania launched OVR, the state upgraded its system to allow individuals to submit their voter registration applications online by uploading an image of their signature. When the OVR system launched in August 2015, only individuals with a Pennsylvania-issued driver’s license or state ID card (collectively, PennDOT ID) could submit their registration application entirely online. Individuals without a PennDOT ID were mailed a signature form to complete the registration process. As of June 15, 2016, 9,040 Pennsylvanians have already successfully used this new signature upload option.

  • June 24, 2016

    by Jim Thompson

    The Surpeme Court on Thursday upheld the constitutionality of the University of Texas’s race-conscious admissions process. Robert Barnes provides commentary on the 4-3 decision in The Washington Post. Read ACS President Caroline Fredrickson’s statement on the ruling here.

    Also on Thursday, the Supreme Court handed President Obama a significant legal defeat, refusing to revive his stalled plan to shield millions of undocumented immigrants from deportation and give them the right to work legally in the United States, reports  Haeyoun Park and Alicia Parlapiano in The New York Times. Read ACS President Caroline Fredrickson’s statement on the ruling here.

    Judge Barry Williams found Baltimore Police Officer Caesar Goodson Jr. not guilty of second-degree murder in the death of Freddie Gray, says Breanna Edwards at The Root.

  • June 24, 2016
    Guest Post

    by Vinay Harpalani, J.D., Ph.D, Associate Professor of Law, Savannah Law School

    Thursday’s decision in Fisher v. Texas II came down exactly 13 years to the day after the U.S. Supreme Court’s 2003 ruling in Grutter v. Bollinger—which created the basic legal framework for affirmative action in university admissions.  And more than eight years after Abigail Fisher filed her lawsuit against the University of Texas at Austin (UT), alleging that its race-conscious admissions policy was unconstitutional, the case is finally over—she lost.  Fisher was truly a fishing expedition: a weak case that went to the Supreme Court once before, only to be remanded to the Fifth Circuit and then reargued before the Court.  The one issue that Justice Anthony Kennedy’s majority opinion and Justice Samuel Alito’s dissent agreed upon was that there was no need for another remand.  While both Justices brought up that possibility during oral arguments in December, everyone now thought that it was time to end this fishing expedition.

    Justice Kennedy’s majority opinion affirming UT’s use of race was surprising.  He had never before voted to allow a race-conscious policy, and he dissented in Grutter, which upheld the University of Michigan Law School’s holistic admissions plan.  I expected him to strike down UT’s plan on narrow grounds, and even in the event of an affirmance, I would have expected a ruling that further narrowed the scope of race-conscious university admissions.  But Justice Kennedy’s majority opinion did not do that.  It pretty much affirmed the current Grutter-Fisher I framework for race-conscious university admissions. 

    In fact, the ruling today really helps universities—it gives them a more detailed blueprint on how to justify their race-conscious admissions policies.  The Court’s Fisher I decision in 2013 made it clear that in order to meet strict scrutiny, a university must demonstrate that its use of race is necessary: that no “workable race-neutral alternatives” would achieve the same educational benefits of diversity.  However, Fisher I did not give further guidance on how universities should do this: it merely remanded the case for proper application of this standard.