Tag Archives: affirmative action

The Hunter Becomes the Hunted: Will Schuette Hook Fisher?

On Tuesday, the Supreme Court heard oral argument in Schuette v. Coalition to Defend Affirmative Action, the latest case on affirmative action.  This came just a few months after the Court published its decision in Fisher v. University of Texas.  In Fisher, the question was whether race-conscious admissions policies at a public university were constitutional.  The Court in effect said yes, upholding limited affirmative action and allowing the University of Texas to continue its race-conscious admissions policies. 

The BBA’s amicus brief in Fisher highlighted the value of race-conscious admissions policies, and specifically focused on how they serve the legal profession by providing a diverse pipeline of undergraduate and law students. 

In Schuette, the Court is considering the constitutionality of Michigan’s 2006 state constitutional amendment, coming out of ballot initiative Proposal 2.  This prohibits preferential treatment based on race, color, sex, ethnicity, or national origin in state college admissions, jobs, and other publicly funded institutions.  In a sense, it is the reverse of Fisher – in Schuette, the question is whether the Constitution requires public universities to at least have the option of instituting race-conscious admissions policies like the University of Texas.

On Tuesday afternoon, each side had its 30 minutes before the Court .  The justices actively participated, asking many questions and framing the arguments.  John Bursch, Michigan’s state solicitor general argued that the Equal Protection Clause could not possibly require affirmative action plans for state institutions, because it barely permits them under only the strictest scrutiny.  He faced tough questions from Justices Sotomayor and Ginsburg, whose demeanors appeared to set them up as opponents to the constitutional amendment.  

Mark Rosenbaum and Shanta Driver argued on behalf of the plaintiffs that a constitutional ban on affirmative action was a violation of equal protection, but struggled to define the exact point of violation.  For example, Justices Roberts, Kennedy and Alito asked, if discretion to use race-conscious admissions policies was unconstitutional when enshrined in the state constitution, would it be constitutional if it was in the hands of the University Regents?  The University President?  The Legislature?  The Governor?

We look forward to hearing the Court’s answers.  Will the outcome impact the affirmative action victory we fought for in Fisher?  Only time will tell.  After all, as famed Supreme Court lawyer Ted Olson explained at the BBA’s Annual Meeting Luncheon, win or lose, we should be proud to have the Supreme Court.  It is a model for government institutions world-wide, because the arguments described here will result in written opinions this summer as the Court tackles yet another tough question. 

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Full Circle On Fisher

On Wednesday, September 11th, the College & University Law Section sponsored “Diversity in Higher Education: The Legal Landscape after Fisher v. University of Texas,” a discussion of compliance and strategic planning issues for academic institutions.  This program comes just over a year after the BBA filed an amicus brief in Fisher v. University of Texas in the wake of the U.S. Supreme Court’s ruling.

In Fisher v. University of Texas, the U.S. Supreme Court vacated and remanded the Fifth Circuit Court of Appeals decision for failing to apply strict scrutiny in reviewing the University of Texas’s race-conscious admissions policy.  The case featured Abigail Fisher, a white woman who was denied admission, alleging that the University of Texas discriminated against her on the basis of race in violation of the Fourteenth Amendment’s Equal Protection Clause in its admissions decision.  The Court’s ruling in effect upheld race-conscious admissions, but also muddied the waters.

The BBA’s amicus brief in Fisher highlighted the value of race-conscious admissions policies.  The brief specifically focused on the need for a diverse pipeline of students for law schools and for the entire legal community.  The BBA’s brief warned that:

until the composition of the legal profession more closely resembles that of the public whose interests are at stake, the perception will remain that the legal system is entrusted to and accessible to the white majority above all others.  Not only does that perception undermine the legitimacy of the judicial system, it further discourages participation by people of color, creating a self-perpetuating cycle of exclusion.

This week’s program provided attorneys with an opportunity to discuss the intricacies of Fisher and also its implications.  It changes how courts review affirmative action policies and creates compliance challenges for educational institutions.  Fisher put universities and race-conscious admission programs on alert.  Three major compliance challenges for colleges and universities are:

  • establishing a quantifiable interest in the educational benefits of a diverse student body;
  • proving that “workable, race-neutral alternatives” will not suffice; and
  • demonstrating that consideration of race is narrowly tailored. 

And with that, it all came full circle.  From amicus brief, to Supreme Court decision, to informational program, the BBA stayed on top of this important issue. 

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
Comments are disabled for this blog. To submit your comments please e-mail  issuespot@bostonbar.org

 

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2012 Public Policy by the Numbers

2012 was a productive year for the BBA, and Issue Spot would like to look back on the numbers.

2 Amicus Briefs – The BBA filed amicus briefs in Rachel A. Bird Anderson v. BNY Mellon, N.A. trustee and others and Fisher v. University of Texas at Austin.  The SJC referenced the BBA’s Bird brief in its decision this summer.  The BBA recruited 38 law firms, companies and organizations to join our Fisher brief and was one of 71 amici to file briefs in the high profile case.

2 Court Standing Orders – The Boston Municipal Court made permanent a Criminal Offender Record Information (CORI) sealing order and the Supreme Judicial Court instituted a pro hac vice admission fee which yielded $49,000 in the first quarter it was collected. Both standing orders were endorsed by the BBA.

7 Laws Took Effect – Seven pieces of legislation the BBA supported took effect in 2012.

 700 Attorneys Attended Walk to the Hill – Lawyers from across Massachusetts filled the State House for the 13th annual Walk to the Hill for Civil Legal Aid.  More than 50 law firms and organizations were represented.

100+ Lawyers Attended Court Advocacy Day – More than 100 attorneys trekked to the State House to show support for adequate court funding.

2012 was a successful year and we are committed to topping these numbers for 2013.  We still have unfinished business in the Massachusetts Legislature. There are also emerging federal issues we are preparing to tackle.  But as 2012 wraps up, we have much to celebrate.

-Kathleen Joyce
Government Relations Director
Boston Bar Association
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Fisher Decision Will Affect Diversity at Every Level

In August, the Supreme Court of the United States will hear arguments in Fisher v. University of Texas, an affirmative action case challenging the admission policies and practices of the University of Texas at Austin.  The Supreme Court granted certiorari on the question of whether the Supreme Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, permit the university’s use of race as a factor in undergraduate admission decisions.

In Fisher, the U.S. District Court for the Western District of Texas held that, under the Supreme Court’s decision in Grutter, the university had a compelling interest in attaining a diverse student body.  The District Court concluded that the university’s admissions program was narrowly tailored to serve that interest.  On appeal to the Fifth Circuit, the three judges on the panel all voted to affirm the district court ruling, relying on the Grutter decision.

The BBA’s Diversity & Inclusion Section has asked the BBA to weigh in on the issues raised in Fisher.

This isn’t the first time the BBA has been asked to take a position on race-conscious admissions policies.  The BBA was an amici in Grutterarguing that not having race-conscious admissions policies would harm efforts to diversify the legal profession.  Grutter involved the use of race-conscious admissions policies at the University of Michigan Law School. The BBA’s amicus brief in Grutter urged the Supreme Court to uphold race-conscious admissions policies as vital to integrating the legal profession.

The issues raised in Fisher and in Grutter are important to the BBA.  A diverse and inclusive legal community is central to the BBA’s mission — to advance the highest standards of excellence for the legal profession, facilitate access to justice, and serve the community at large. The BBA has consistently taken the position that race-conscious admissions policies are necessary to ensure that the legal community reflects the growing diversity of our population.  A legal community that accurately reflects the composition of the people it serves instills confidence and helps ensure that every person has equal access to justice.

Diversity as a concept is broader than just race and gender.  In the context of the BBA, valuing diversity means recognizing the unique professional contributions that different individuals can make, and creating an environment that maximizes the potential of all members.  The BBA has made diversity a part of its institutional culture in recent years, but we can do more.  Diversity is now an ongoing discussion and not a just an agenda item.

The Fisher decision promises to have serious implications for affirmative action policies, and ultimately our ability to integrate the legal profession.

-Kathleen Joyce
Government Relations Director
Boston Bar Association
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