Tag Archives: University of Texas

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
Comments are disabled for this blog. To submit your comments please e-mail  issuespot@bostonbar.org

Advertisements

Leave a comment

Filed under Uncategorized

SCOTUS Fall 2012 Starting Lineup

Amid much anticipation, the United States Supreme Court opened its 2012-2013 term on October 1st.  At the Boston Bar Association (BBA), we are watching three specific cases with great interest in their impact on civil rights and equality.

Fisher vs. the University of Texas is scheduled for oral arguments on Wednesday, October 10th.  The issue at hand in the Fisher case is the diversification of student bodies in higher education.  However, the impact of the decision in this case will be far reaching – with the potential to derail whatever progress is being made in advancing diversity in the legal profession.

Fisher challenges the Court’s 2003 ruling in Grutter v. Bollinger a case challenging the affirmative action policies at the University of Michigan Law School.   Our amicus brief in Grutter supported the position that race-based criteria in admissions decisions pass constitutional muster.

We fervently believe that race-conscious policies promote more diverse student bodies, which lead to more racially representative legal communities.   This determined our position when we filed an amicus brief this summer in Fisher. If the Court chooses to overturn the constitutionality of race-based admissions policies, the impact on the higher education landscape will be devastating, not just in Texas but throughout the country.

This particular brief was drafted for the Boston Bar Association by Bingham McCutchen on a pro bono basis. Thank you again to the Bingham team –Jon Albano, Deena El-Mallawany and Caleb Schillinger.

Meanwhile we can only hope that the Court will take up another civil rights issue presented in MA v. U.S. DHHS and Gill v. OPM.  These two cases –one filed by Gay & Lesbian Advocates & Defenders (GLAD) and the other by the Massachusetts Attorney General’s office – challenge the constitutionality of the federal Defense of Marriage Act (DOMA).  DOMA bars the federal government from recognizing same-sex spouses for any federal purpose.

Last winter, the BBA joined an amicus brief drafted by GLAD and the Massachusetts Attorney General’s Office challenging the constitutionality of DOMA.  DOMA presents a challenge to our civil rights, posing a significant threat to fundamental concepts of fairness and equality.

Civil marriage – which allows a couple to seek a license to marry – should not be confused with religious wedding ceremonies that may take place in churches, mosques or synagogues.  As a matter of equality under the law, the BBA supports civil marriage for same sex couples. The BBA filed an amicus brief in the landmark case Goodridge v. Department of Public Health, which led to the legalization of same-sex marriage in Massachusetts.

We celebrated when theU.S. Court of Appeals for the First Circuit in Boston struck down the section of DOMA that denies federal benefits to same-sex couples married in states that have legalized such unions.   We will celebrate again at the 3rd Annual Beacon Award for Diversity and Inclusion ceremony on November 13th when we honor GLAD and the Attorney General’s Office for their work in this area.

Leave a comment

Filed under Uncategorized

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
Comments are disabled for this blog.  To share your comments e-mail issuespot@bostonbar.org

Leave a comment

Filed under Uncategorized