Dissecting Fisher v. University of Texas at Austin (Part Two)

By Lester Asamoah

U.S. Supreme Court


As you know, we collectively decided on a two-part analysis of Fisher v. University of Texas at Austin here at Thirty-Eight Minutes. David and Jacob argued dissenting opinions on Friday, and if you haven’t read them yet, I encourage you to check out the primer and their arguments before continuing in this post. David and Jacob are incredibly hard acts to follow, but I’ll give it the old college try. I’ll jump right into my argument trusting that you’ve read the primer.

It only makes sense to frame this in the way the court analyzes the question, as David did previously. Which leads us to ask the same two questions: (1) Does the state actor have a compelling interest supporting its action? (2) And is the action narrowly tailored to achieve that interest? Also, as you’ll recall, the burden of proof falls on the state actor. In this case, the burden of proof is on the University of Texas at Austin. And this burden of proof, as established in Regents of Univ. of California v. Bakke by Justice Powell, should be under strict judicial scrutiny. Given that race is a social construct and quite fluid, scrutinizing cases involving race makes sense.

In answering the first question of compelling state interest, I truly believe that there is a compelling state interest behind affirmative action programs. I have many wider beliefs behind that, but I will stick closely to the legal arguments here. In the aforementioned Regents of Univ. of California v. Bakke, the University of California Medical School at Davis [UC Davis Medical School] failed to prove that Mr. Allan Bakke would not have gotten into the UC Davis Medical School because he was more qualified than the candidates who were accepted by the quota system that UC Davis established during the two years he sought acceptance into the school. The Supreme Court ruled in favor of Mr. Bakke. Where things get interesting, however, is that the majority opinion was split. While there was an overwhelming 8-1 ruling for Bakke, the majority of that majority opinion did confirm a compelling state interest in increasing racial diversity in the medical field. This idea of racial diversity as a compelling state interest has survived legally, notably in Gratz v. Bollinger and Grutter v. Bollinger despite schools’ failures to narrowly tailor their policies.

The University of Texas at Austin argued they specified their compelling interest for racial diversity in their “Proposal to Consider Race and Ethnicity in Admissions” by “’the promot[ion of] cross racial understanding,’” the preparation of a student body “‘for an increasingly diverse workforce and society,’” and the “’cultivat[ion of] a set of leaders with legitimacy in the eyes of the citizenry.’” The proposal was a result of a year-long study where they concluded that a race-neutral applications process was not meeting this goal. In following the logic of why the University of California at Davis solidified a compelling state interest by diversifying the medical field, there is similar logic present in the university’s case. Skipping to the second part of the proposal, preparing the student body for an increasingly diverse workforce and society is in line with a compelling interest and quite demonstrable. Cross-racial understanding is a compelling interest for the university. Phi Gamma Delta Fraternity at the university hosted a “border patrol” themed party in 2015. And if that doesn’t demonstrate enough of a lack of cross-racial understanding: in 2013 an African-American student was pelted with a bleach-filled balloon. I have to concede that the addition of minority students by no means will prevent things like this from happening. But, the university can clearly demonstrate some flaws of cross-racial understanding. I hate to make multiple concessions, but I admit I find the having as set of leaders with legitimacy pretty dubious in their justification of diversity. How does one measure what leaders have legitimacy? And how would diversity support that in any way? One could argue that leaders who have faced a diverse array of ideas are likely better than leaders who haven’t been exposed to new ideas. I digress.

The University of California at Davis [UC Davis] as a whole admittedly was easier to justify because it’s addressing a single field. But, in Gratz v. Bollinger the compelling state interest of diversity survived when put to the test of the University of Michigan undergraduate program, despite the ruling that the policy was not narrowly tailored. My opinion is that diversity is critical for the success of our nation, and that a way to achieve this is by higher education. I know that the effects of having a diverse workforce is not as apparent as the compelling interest of public health and national security. But diversity does impact both of those fields: in public health, as hinted at with UC Davis, we need doctors that are from diverse backgrounds. Language skills, public health programming, and patient-doctor relationships are critical for public health; diversity plays an important role in advancing public health. On national security, we’ve made terrible policy mistakes by having a small cadre of like-minded people making regrettable decisions. The coups that the United States have played a hand in throughout Latin America and Iran are examples. Much less the ineptitude of the FBI in years past in their terrorizing minority communities from a complete lack of understanding with those communities. Yes, diversity is hard to quantify and measure. But it is highly valuable.

I wouldn’t do justice (pun intended) to David and Jacob if I didn’t dive deeper into the narrow tailoring issue. In Grutter v. Bollinger the hallmarks of a narrowly tailored program are defined as: (1) admissions that do not insulate each category of applicants with certain desired qualifications from competition with all other applicants, (2) places candidates on the same footing for consideration, (3) exhausts alternative options for increasing diversity, and (4) proving that the actions taken are contributing directly to the attainment of that compelling state interest. I agree with David and Jacob in that the University of Texas at Austin did not meet the burden of proving their admissions program to be narrowly tailored to meet their objectives.

To be clear, the admissions program in place at the University of Texas at Austin is in line with the first two hallmarks of a narrowly tailored program. The combination of their Academic Index and Personal Achievement Index is flexible, considers diversity factors other than race, and does not preclude anyone or establish reserved admissions of any kind. As for the third hallmark, the university is unique in that it has a law which gives admission to anyone in the top 10 percent of their high school in Texas. And this admission process is responsible for around 75 percent of their freshman class admits. Justice Alto, in his dissent, brings up two important points: (1) why did the university walk back the argument of not attracting the “right” kind of minority students through the top 10 percent program? And (2) what is a “critical mass” of Hispanic and African-American students? It’s alarming to think that any argument was ever made for attracting the “right” kind of student – the university and state should be working to improve these schools that may be struggling to prepare their top ten percent for the university. With the fourth hallmark, there were also some holes in the university’s argument behind their methods for measuring a critical mass of minority students. Unlike Grutter v. Bollinger, the university did not seem to make it incredibly clear as to how it is getting underrepresented students in spaces where they, well…are underrepresented. Overall, solutions for ameliorating the lack of diversity in universities will take exhaustive work before the admissions process happens. Also, how do we know when we have enough minority students? Quotas have clearly been ruled out of the process. The use of affirmative action is positive, but how can we measure it? Do we need to measure it?

The letter of the law should never be moved by personal beliefs. I believe in affirmative action, but in a legal analysis, the University of Texas at Austin should have lost this case. But, I also believe that there is an established compelling state interest for diversity. Training our future business and public leaders requires more cross-cultural competency than ever before. We’ve seen the impact of not having diversity and not sharing ideas. The University of Texas is a fine institution, but it always finds a way to crush my hopes (i.e. the OU/Texas football rivalry game). The burden of proof was not met, but they had the resources to meet that burden. I can’t in good judgement say they should have won. However, I can in good judgement say that I believe that they absolutely had the tools necessary to comply with the letter of the law.

This is a good wake up call for the apostates of affirmative action – rightly or wrongly, there is a greater demand for quantifiable results and we have to find creative solutions to meet scrutiny or to somehow improve diversity in universities outside of the admissions process.

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Dissecting Fisher v. University of Texas at Austin (Part One)

By David Postic and Jacob Daniel

U.S. Supreme Court


Yesterday was a day of excitement for law nerds and other people of the Supreme Court-watching persuasion: we were glued to our SCOTUSblog-filled screens as the Court issued several controversial decisions having to do with everything from immigration to affirmative action to the Fourth Amendment. There has already been a fair amount of analysis and commentary on these decisions (which have subsequently been overshadowed by #Brexit), and you will likely see more of it in the days and weeks to come. For now, though, we would like to focus on one case in particular: Fisher v. University of Texas.

This article is meant to provide a brief history of affirmative action jurisprudence and a breakdown of arguments against the majority opinion; you can find the response article here.

Brief Primer on Affirmative Action

Executive Action

Before we get to yesterday’s opinion, some background on affirmative action. The concept has its official American origins in John F. Kennedy’s Executive Order 10925, which required that government employers “not discriminate against any employee or applicant for employment because of race, creed, color, or national origin” and “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” LBJ expanded affirmative action to cover government contractors, and to guard against gender discrimination. Soon, however, affirmative action expanded to address racial disparities in other areas, including education. Universities began including race in their admissions criteria, leading to constitutional concerns that resulted in substantial litigation.

Regents of the University of California v. Bakke (1978)

The first Supreme Court case to address affirmative action in the university admissions process was Regents of the University of California v. Bakke. (Fun fact: the case was originally filed in the Superior Court of California for Yolo County. Yolo. County.) The opinion—a plurality, meaning the analysis was unable to garner a majority of the court, i.e., it does not have precedential value—held that using racial quotas in college admission decisions violated the Equal Protection Clause of the Fourteenth Amendment to the Constitution, which affirms that “[n]o state…shall deny to any person within its jurisdiction the equal protection of the laws.” While Bakke eliminated racial quotas, it nevertheless allowed race to be considered as one of many factors in the admissions process. Such admissions systems, however, would be subject to strict scrutiny, meaning that the challenged program must be narrowly tailored to achieve a compelling state interest.

Over the next 25 years, federal appellate courts ruled on various affirmative action programs, but none of these cases reached the Supreme Court. But in 2003, the Court decided the landmark cases of Gratz v. Bollinger and Grutter v. Bollinger, both of which addressed affirmative action policies implemented by the University of Michigan.

Gratz v. Bollinger (2003)

Gratz concerned an applicant to the University of Michigan’s undergraduate program. Gratz claimed that she was denied admission based on her race (Caucasian)—namely, that the University unconstitutionally favored minorities in the admissions process. At the time, Michigan used a points-based admissions system—applicants were awarded points based on items such as race (20 points), athletic ability (20 points), depth of essay (up to 3 points), leadership and service (up to 5 points), and personal achievement (up to 5 points). Chief Justice Rehnquist, writing for the Courtstruck down this system as a violation of the Fourteenth Amendment. He reasoned that the points system, assigning points based on outward characteristics, treated applicants in a manner that prized their race over their individual accomplishments.

Grutter v. Bollinger (2003)

Grutter was a slightly different case, this time involving the University of Michigan law school. Similar to Gratz, Grutter argued that the law school unconstitutionally discriminated against her by using race as a factor in the admissions process. Unlike the undergraduate admissions system, however, the law school did not assign a set number of “points” for race. Rather, it was one factor among many used to judge applicants. Justice O’Connor’s majority opinion upheld the law school’s affirmative action program, holding that the Constitution “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.” The program was narrowly tailored, said O’Connor, because it was not designed to be permanent; it was merely being used to obtain a “critical mass” of minority students. O’Connor noted that she expected such programs would be unnecessary within 25 years.

Fisher v. University of Texas at Austin (2013), i.e., Fisher I

This brings us to Fisher. This is actually the second time the Court has addressed this case. In the wake of Gratz and Grutter, the Texas state legislature passed a law requiring that the University of Texas at Austin accept all students in the top 10% of each Texas high school’s graduating class, regardless of race. Applicants who, like Fisher, fail to graduate in the top 10% of their class can still gain admission by scoring highly under a “holistic review” that takes into account many factors, including race.

Fisher sued the University; both the district court and the Fifth Circuit Court of Appeals upheld the admissions system. On Supreme Court review in 2013, however, the Court reversed the Fifth Circuit on a largely procedural issue: the Fifth Circuit did not apply strict scrutiny to assess UT’s admissions program, essentially placing the burden on Fisher to prove the system was not constitutional, rather than on the University to prove that it was constitutional. On remand, the Fifth Circuit applied strict scrutiny and reached the same conclusion, upholding the admissions program. Fisher then appealed again to the Supreme Court, and that is how we got to the case that was decided yesterday. Isn’t law fun?

Fisher v. University of Texas at Austin (2015), i.e., Fisher II

Justice Kennedy, writing for the majority (which was actually only four members, since there is one vacancy on the Court and Justice Kagan recused herself from deliberations), upheld the Fifth Circuit’s decision and found UT’s admissions system constitutional. Specifically, he held that the University had a compelling interest in advancing diversity in the classroom. “Considerable deference,” he wrote, “is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.” Fisher submitted several arguments claiming that there were ways to more narrowly tailor the program, but the Court rejected those proposals. Kennedy did, however, order the University to “to engage in constant deliberation and continued reflection regarding its admissions policies,” and he suggested that a similar system could fail strict scrutiny under different circumstances.

Justice Alito (joined by Justice Thomas and Chief Justice Roberts) wrote a 51-page dissent, arguing that the University’s justifications were neither compelling nor narrowly tailored. In particular, he believed that the University was defining diversity only in terms of numbers, ultimately equating to “racial balancing,” which the Bakke Court held is unconstitutional. “What is at stake is whether university administrators may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve ‘the educational benefits of diversity,’” Alito wrote, “without explaining—much less proving—why the discrimination is needed or how the discriminatory plan is well crafted to serve its objectives.”

Those are the two sides of Fisher. Below we will address arguments against the majority opinion; tomorrow, we will offer a separate article in support of the majority opinion. Hopefully you will consider both sides before making your own decision. We invite you to read these articles (and to read the actual opinion) and to add your own views in the comments below.

David: The best way to understand any Court decision is to understand the framework through which the Court analyzes the question. Here, as explained above, the test is strict scrutiny, which involves two questions: (1) Does the state actor have a compelling interest supporting its action? (2) And is the action narrowly tailored to achieve that interest? This is the most rigorous test the Supreme Court applies, and for good reason: strict scrutiny is often used to review laws that impinge upon fundamental rights and that deny citizens equal protection of the laws. So it should come as no surprise that states often have a difficult time prevailing under this framework.

Also important to understand is the burden of proof. “Burden of proof” is a legal term that means what it says: Who has the burden to prove the issue before the court? When it comes to strict scrutiny, the burden of proof is on the state actor. In other words, the state actor—not the person challenging the law—must prove both a compelling interest and narrow tailoring. This is a burden of producing arguments and evidence to support those arguments.

In the majority opinion, Justice Kennedy gave substantial deference to the University in proving its compelling interest. Although Kennedy admitted that, under strict scrutiny, the state actor must demonstrate its interest “with clarity,” throughout briefing and oral arguments the University never really offered a clear and consistent interest that it sought to advance. At times, it was achieving a “critical mass” of minority students (without explaining what a “critical mass” was), the amorphous concept of “promotion of cross-racial understanding,” or the more specific (but still vague and certainly not compelling) “robust exchange of ideas.” Remember that the burden is on the University to prove not only its interest (let’s say “racial diversity”) but also that the interest is compelling. The Supreme Court has never offered a bright-line rule for what constitutes a “compelling” state interest, so perhaps the best way to understand what “compelling interest” means is by comparison. Interests the Court has judged “compelling” include national security, health and safety, and not violating explicit constitutional protections. It seems, then, that an interest is “compelling” if it is necessary or crucial to a functioning society, as opposed to merely being preferred.

Furthermore, a “compelling” interest sits atop a hierarchy of interests that the Court has defined. So far, we have spoken about only one framework used by the Court in analyzing constitutional issues: strict scrutiny. However, there are less-intensive levels of scrutiny, so-called intermediate scrutiny and rational-basis scrutiny. (There are arguably other levels, but that would require an entirely different article.) It is not important now to know when these levels of scrutiny apply; only to know what they mean. Under intermediate scrutiny, the state actor must prove that the measure being challenged is (1) substantially related to (2) an important government interest. Under rational-basis scrutiny, the burden is only the challenger to prove that the challenged measure is not (1) legitimately related to (2) a legitimate government interest. Again, it’s not important to know how these tests apply. I simply want to illustrate that the Court actually spoke quite specifically when it required, under strict scrutiny, state actors to show a compelling government interest.

Is racial diversity in the university setting a compelling interest? I think it’s close. I would certainly agree that it is important; I just don’t know if it is compelling to the same level as national security or public health. However, the Bakke Court (affirmed in Grutter) held that it was a compelling interest. So while I believe the University did not carry its burden well, I think that it scraped by enough to satisfy the first component of strict-scrutiny analysis. My problem with the majority opinion comes from the second part of the analysis: Is the admissions program narrowly tailored to achieve the interest of diversity? Once again, the burden is on the University to prove narrow tailoring—it is not on the challenger. And I believe the University failed to carry that burden.

Narrow tailoring is a quaint legal phrase, but you may see the Court use other phrases in cases dealing with strict scrutiny. Sometimes the Court says the measure being challenged must be “necessary” to achieve a compelling state interest; sometimes it says the measure must use the “least restrictive means” to achieve that interest. Again, it helps to compare to other levels of scrutiny. Under intermediate scrutiny, the measure must be substantially related to the interest; under rational basis, the measure must be rationally related to the interest. “Narrowly tailored,” then, speaks to a very precise “fit” between the means and the end: The measure must actually achieve the compelling interest; and the means chosen to achieve that interest must not be overly broad. “Narrow tailoring” is still a vague and subjective standard, but hopefully these principles can at least give you an idea of what the Court is looking for.

One of the reasons Fisher I was remanded back to the Fifth Circuit was so that the University could show how the admissions program was narrowly tailored to achieve its asserted interest; in other words, the University failed to carry that burden the first time. As the Court (by a majority of 7 to 1) stated in its opinion remanding the case, narrow tailoring requires “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.”

Comparing the Fisher II opinion to the arguments asserted in the briefs, it’s clear that Justice Kennedy failed to make such a “careful” inquiry and instead tried to make arguments for the University that the University itself could not make with sufficient clarity to carry its burden the second go-around. He assessed the efficacy of the program by citing strange statistics such as the percentage of classes with at least five students that have at least one African American enrolled in the class. He then compared those numbers to somewhat-tangential demographics such as the total number of African Americans enrolled in the student body. These are statistical apples and oranges. While he later made an apt comparison of minority students admitted under the “holistic” review in 2003 and in 2007, the fact that the University has achieved some gains in diversity says nothing about whether the program is narrowly tailored. Moreover, as Justice Alito points out in footnote 14, the marginal effect of those gains is miniscule. And as both the University and Justice Kennedy acknowledge, there may be other reasons for those gains: the University has greatly expanded its outreach to minorities and has added numerous scholarship opportunities directed at minorities.

Important in all of this is to remember that the burden is on the University to prove that the program is narrowly tailored—not on the Petitioner to prove that it is not narrowly tailored. Justice Kennedy flipped the burden on its head (as is especially clear on pages 11–19 of his opinion). Even so, he also dismissed the fact that the Petitioner did offer a less-restrictive alternative: race-blind holistic review. While stating that the University had tried that method and had failed, neither he nor the University offered any support for that claim. I will say it one last time: the burden is on the University, and the University failed to carry its burden.

All of this is not to say that affirmative action is always unconstitutional. I believe there are compelling benefits to having a diverse student body. And perhaps there are other, more compelling interests that the University could have asserted. (Keep in mind, though, that the Court has held multiple times that affirmative action is not justified based on remedying past racial injustices.) But the law is not about what “could have” been; it is about what is. And in this case, the fact is that the majority opinion failed to properly apply strict scrutiny.

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JacobAs preface, I want to clarify that what follows is not an argument over merits of affirmative action as a policy; it is a legal analysis of this particular case. Good ideas do not necessarily translate into constitutionally justifiable policy. And in this instance, the policy at issue was not constitutionally justifiable. I agree with David that the majority misapplied the narrowly tailored requirement of strict scrutiny; better stated, the University did not carry its burden to prove that its admissions policy was narrowly tailored. But I believe the University did not even satisfy the first step in strict-scrutiny analysis—asserting a compelling interest—which means there is no need to each reach a narrow-tailoring analysis.

In the Equal Protection context, any law that utilizes race-based classifications receives strict-scrutiny review from courts. As David mentioned, this means that the burden is on the state actor to prove that (1) a compelling interest exists to justify the race-based policy, and that (2) the law is narrowly tailored to effectuate that interest. In this case, the University argued several interests, with the main one being the “educational benefits of diversity.” Setting aside for a moment the question of whether that interest is compelling, the University never gave concrete reasons to clarify that interest with enough specificity to move on to narrow tailoring. Furthermore, to judge whether this interest is being achieved, the University said that it would know the policy is working “when it ‘see[s] the educational benefits happening.’” Such a vague definition of the ends renders any court incapable of determining whether the narrow tailoring factor is met. This essentially hands all the power to university administrators: if the interest and goals of the policy are subject to change or are difficult to ascertain, it is nearly impossible for a court to identify when they have been met and whether the program passes constitutional muster. Critically, if the interest is broad and amorphous, it is impossible for the policy to be narrowly tailored as required by strict scrutiny; there is no limiting principle. What the University’s argument boils down to is saying “trust us, we know what we’re doing.” That has never been sufficient to survive strict scrutiny.

If this were any other, non-race-based policy, the interest asserted might be acceptable. But this not another policy; this is a race-based classification. As Justice Alito mentioned in his dissent, “[R]acial classifications are permitted only as a ‘last resort’ when all else has failed.” In a prior case, Justice Kennedy wrote that “racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judicial examination.” The University in this case is trying to justify discrimination on the basis of race with ambiguous notions of racial diversity. But even if it could have proved a concrete goal behind the diversity interest, it would not be sufficient to pass strict scrutiny. As noted above, there are three tiers of review in Equal Protection analysis: rational basis, intermediate scrutiny, and strict scrutiny. The details of the tests are not important, but which test applies in any given situation often determines the outcome of the case. For instance, if the Court applies rational basis, the government wins 99% of the time. If intermediate scrutiny applies, the government often loses. And if strict scrutiny applies, the government loses 99% of the time. This should give you some indication of how difficult it is for a state action to survive strict scrutiny.

So is racial diversity in education is a compelling interest? I am not saying it is not important as a social goal, nor commenting on the merits of reverse discrimination as a social construct. I am talking about “compelling” within the framework of the most demanding constitutional review that exists. I believe that there has not yet been an interest presented to the Court that is compelling enough to justify a race-based law, allowing the government to treat citizens differently under the law based on race. I agree with Justice Thomas (yes, you heard me: I agree with Justice Thomas) when he wrote, “The Constitution abhors classifications based on race because every time the government places citizens on racial registers and makes race relevant to the provision of burdens and benefits, it demeans us all.” Justice Kennedy has even gone so far as to state that “judicial review must begin from the position that ‘any official action that treats a person differently on account of his race or ethnic origin is inherently suspect.’”

As a final note, compare racial diversity in education to some compelling interests that have been accepted by the Court: national security, public health, public safety and security, etc. Still convinced that diversity in education is an interest compelling enough to overcome a history of striking down racially based laws? I’m not convinced. The University’s policy confers benefits and burdens disproportionally based on a person’s race, even if it does so to promote diversity in education. That interest not compelling enough to justify intentional racial discrimination by the government and conflicts with the Court’s history of rendering race-based laws unconstitutional. For that reason alone, the majority reached the wrong conclusion.

Click here for Part Two of our series covering Fisher v. University of Texas.

How You Should Remember Antonin Scalia

By David Postic, Jacob Daniel, and Lester Asamoah

Justice Antonin Scalia death

 


The Supreme Court holds an interesting place in American pop culture: At once, it is one of the most highly visible and highly misunderstood parts of our government. And it is not only the Court that is misunderstood, but its members as well. By now, the entire world likely knows of the passing of Justice Antonin Scalia—the longest-serving member of the current Supreme Court and, perhaps, its most controversial member. In his thirty years on the bench, Justice Scalia emerged as the intellectual power behind conservative jurisprudence and became (in)famous for the stinging and colorful language of his opinions, particularly his dissents. His death has an immediate impact on the Court. For instance, any cases currently before the Court with votes that have not yet been made public are now void, and the justices must re-vote. And with only eight justices on the Court—four conservative and four liberal—ties are now a strong possibility, meaning that some of the more politically charged cases—including affirmative action, the President’s executive action on immigration, and voting rights—may not be completely resolved by the Court, for any tied opinion is not binding Supreme Court precedent, and the Circuit Court opinion stands as precedent for that Circuit.

As such a controversial (and political) figure, the news surrounding Justice Scalia’s death has focused almost exclusively on these quasi-political issues, as well as who will take his place on the Court. So that you will be an informed citizen in the following (what will surely be politically crazy) months, here is how the nomination process works:

  1. The United States Senate is charged with confirming the President’s nomination for filling Scalia’s seat, but the Senate conducts that process in several steps. First, the Senate Judiciary committee holds a hearing for the nominee.
  2. After the hearing, the committee votes to give a positive/negative recommendation or no recommendation for the nominee.
  3. After the Judiciary committee votes, the full Senate then conducts a hearing chaired again by the Senate Judiciary chairman.
  4. Once debate ends, the full Senate conducts a vote. If the nominee commands a simple majority, he/she is confirmed.

There are, however, ways that the Senate can hold up these proceedings before the final vote. Individual senators (or a group of senators) can filibuster endlessly the cloture rule, which requires 60 Senators to invoke, limits the debate to 30 hours. Typically the opposing party is reluctant to confirm a lifetime appointment during the last year of a lame-duck presidency. In fact, there is a name for this type of stonewalling: the Thurmond Rule, named for the late Senator Strom Thurmond (R-S.C.), who decreed that no judicial appointments would move in the last six months of a lame-duck presidency. While Majority Leader Mitch McConnell (R-K.Y.) has made headlines for saying he will not allow a confirmation for Scalia’s replacement, Senator Harry Reid (D-N.V.) made similar statements in 2008. So despite Republican senators making headlines for their “no confirmation” decrees, holding up a judicial nominee in this situation is not solely a Republican tactic.

Nevertheless, these issues will be covered heavily in the coming months (it could even stretch into next year), and hopefully you take time to understand all the political issues at play. It really is fascinating. But while these issues are interesting and, indeed, of great importance to our country, it seems that there has been far too little focus on the man that provoked these issues—Justice Scalia himself. As a result, and in honor of one of the most powerful men in the country, we would like to take a step back and examine the legacy that Scalia left behind.

Justice Scalia was appointed to the Supreme Court by Ronald Reagan in 1986 after spending most of his legal career working in the public sector. Amazingly, Scalia was confirmed by the Senate by a vote of 98-0—a result perhaps unthinkable in the current political climate. But such was the charm and intellectual prowess of Antonin Scalia.

Almost immediately he established himself as a unique voice on the Court, not afraid to go against the rest of the justices on any opinion that provoked his ire. In 1988, for example, he drafted a thirty-page dissent in Morrison v. Olson, writing so emotionally that Justice Harry Blackmun felt obliged to note, “[I]t could be cut down to ten pages if Scalia omitted the screaming.” But that passion was Scalia’s calling card, and his reputation for emotional dissents calls to mind the similarly stubborn Oliver Wendell Holmes: a man held by many to be one of the greatest justices to ever sit on the Court. And for all of their legal and philosophical differences, Oliver Wendell Holmes serves as perhaps the best modern comparison for what Justice Scalia meant to the Supreme Court.

Scalia was never afraid to make his opinions known—both in and out of the courtroom. He famously concurred in Bush v. Gore, the case that essentially decided the 2000 presidential election between George W. Bush and Al Gore. Years later, when Scalia was asked about the effect of that case on the American democracy, his reply was brief: “Get over it.” As Conor Clarke of Slate commented, “His writing style is best described as equal parts anger, confidence, and pageantry. Scalia has a taste for garish analogies and offbeat allusions—often very funny ones—and he speaks in no uncertain terms. He is highly accessible and tries not to get bogged down in abstruse legal jargon. But most of all, Scalia’s opinions read like they’re about to catch fire for pure outrage. He does not, in short, write like a happy man.”

But by all accounts, Justice Scalia was a happy man. His close friend (and near-ideological opposite) on the bench, Justice Ruth Bader Ginsburg, once said that Scalia was “an absolutely charming man, and he can make even the most sober judge laugh.” Indeed, a 2005 study showed that he brought the Court to laughter more than any of his colleagues. He brought a witty dynamism to the Court’s oral arguments, which he often used to spice up otherwise bland legal issues in his written opinions. For all you might disagree with how he voted on cases, I dare you to read one of Justice Scalia’s arguments and not feel a tug of doubt on your own convictions. That is the keen legal mind that was Antonin Scalia.

Justice Scalia was an originalist, a judicial philosophy that believes the Constitution should be interpreted accordingly to what the text meant at the time the document was ratified over two centuries ago. This view runs counter to the popular legal view of the Constitution as a “living document” that evolves as society evolves. But in Scalia’s originalism, the Constitution was not supposed to facilitate change: it was designed to prevent changes in the fundamental rights that the Founders fought so hard to secure. Scalia hated so-called “judicial activism” and believed that the legislature—as the representatives of the People—should be the true engine of legal change. It was these views that often prompted critics to accuse Scalia of letting his conservative political leanings compromise his legal judgment. But Justice Scalia was far from a rigid conservative, at least politically: He voted to uphold free speech in the Texas flag-burning case, and also struck down a prohibition on hate speech—liberal legal decisions by any measure. Disagree with him all you want, Scalia was his own man to the very end.

He was, as most great and controversial figures are, an extremely dynamic and likable individual. This is the Scalia that people should remember. Sure, remember his controversial philosophies, remember all his opinions that you disagreed with, remember his passion and his emotion and his anger. But also remember Justice Scalia for what he was: an intellectual powerhouse, a deeply thoughtful and philosophical legal mind, a man who adhered to his values and principles, and a legal titan of the twenty-first century.

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David Postic is a law student at the University of Oklahoma.

Jacob Daniel is a law student at the University of Oklahoma.

Lester Asamoah is a graduate student at American University.

Why Love Won

#LoveWins

Not every day do the worlds of law and pop culture collide so tremendously as they did today. Then again, not every day do you have Supreme Court decisions like Obergefell v. Hodges. Undoubtedly you have read close to 525,600 Facebook statuses, tweets, and news clippings about this landmark victory for gay rights. You may be rejoicing. You may be livid. Let’s put those emotions aside for a moment to assess the Obergefell opinion and figure out why love won.

First, a brief history…

Obergefell is certainly a revolutionary decision. But for those following the Court (and political trends) over the past fifteen years, it is hardly a surprise. Prior to the 2000s, a number of states had passed laws criminalizing certain homosexual acts. In Lawrence v. Texas (2003), Justice Anthony Kennedy, writing for the Court, held that such laws discriminated on the basis of sexual orientation and thus violated the Fourteenth Amendment to the U.S. Constitution.

This was a huge step forward for gay rights, but there still remained the matter of gay marriage. In 1996, Congress had passed the Defense of Marriage Act (DOMA), which defined marriage for all federal law purposes as “only a legal union between one man and one woman as husband and wife.” However, in the ten years after Lawrence v. Texas, several states granted marriage rights to same-sex couples, either through judicial or legislative processes. Still, DOMA remained alive-and-well.

Then, in 2013, the Court held in United States v. Windsor (2013) that DOMA was invalid to the extent that it barred the federal government from treating same-sex marriages as valid even when they were lawful in the state where they were licensed. Again, a massive victory for gay rights. (And again, Justice Kennedy authored the opinion.) But what did this mean? It meant that, for example (and as was the case in Windsor), the surviving spouse of a same-sex couple could claim a spousal deduction from the federal estate tax. While this was another huge leap forward, it still did not legalize gay marriage. But by overturning DOMA, it did clear the way for other courts to do so.

Now to today’s opinion…

In the two years since Windsor, many same-sex marriage cases have reached federal courts of appeals, and gay marriage has been legalized in many jurisdictions. But there was still a major problem: A same-sex couple married in one state (where gay marriage was legal) could travel to another state (where gay marriage was not legal) and be denied the benefits of marriage. This meant gay couples could not take advantage of certain spousal tax benefits; evidentiary privileges; adoption rights; medical decision making authority; and so on.

Finally, however, some of these cases reached the Supreme Court in the form of Obergefell v. Hodges (2015), which is actually a combination of several similarly situated cases. In this case, the Court was confronted with the question of whether or not gay marriage is a constitutionally protected right. The issue could be avoided no longer.

As you now know, the Court’s opinion (once again authored by, you guessed it: Justice Kennedy) held that a “fundamental right to marry” can no longer be denied because the partners are of the same sex. Gay marriage–nationwide–is now not only legal, but constitutionally protected. The Court interpreted the two central provisions of the Fourteenth Amendment (the Due Process Clause and the Equal Protection Clause) to mean that same-sex and opposite-sex marriages are equal under the law.

The opinion itself is beautiful in its simplicity. Much of it is devoted to the judicial history summarized above (although to get a full view of that history, you should definitely read the opinion) as well as cultural and political developments spanning the entirety of human civilization. But the meat of the opinion, the real holding (a legal term meaning the binding law of the case), was this: The right to marriage is a right enjoyed equally by all people, gay or straight. This, the Court explained, is firmly rooted in our nation’s history: From past Supreme Court decisions affirming the equality of interracial marriage, to decisions affirming the autonomy of individuals to make of their lives what they will. The issue is not, as some people have framed it, whether there is a constitutional right to gay marriage, but instead whether there is a constitutional right to marriage period. The Highest Court of the Land has now firmly stated that there is such a right.

The majority encountered staunch opposition from the other justices. In fact, each of the justices in the minority (Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito) wrote a separate dissenting opinion. These dissents are of varying degrees of ire and outrage. Yet the one argument that you will most likely hear disparaging Obergefell is that the Court today engaged in “judicial activism.” Chief Justice Roberts encapsulated this argument when he criticized the majority, reciting the ages-old aphorism that, under the Constitution, judges have power to say what the law is–not what it should be.

As with all age-old sayings, I encourage you to take this one with a grain of salt. (But certainly I am not saying you are wrong if you agree with Chief Justice Roberts). Because the line between what the law is and what it should be is a very thin one and is entirely a matter of perspective. The Court’s opinion today affirms a strong heritage of individual autonomy when it comes to the most private and intimate decisions in life. In a separate string of cases (see Loving v. Virginia and Turner v. Safley), the Supreme Court has consistently held that the right to marriage is a right enjoyed by all. The Court’s decision today simply affirmed that sentiment, regardless of sexual orientation. That is what the majority believed the law is. This is what they believed Court precedent compelled them to do. You may agree or disagree (you would be in good company with 4 of the 9 justices on the Supreme Court), but the law is what it is.

So what does this mean for me?

You now have permission to unpack those emotions we put aside at the beginning of this article. This is an opinion that invites a lot of passion from both sides, and rightly so. Even the Supreme Court itself was sharply divided in this close 5-4 decision. You will hear people rejoicing in the spirit of equality. You will hear people decrying the opinion as an affront to Christianity or other religious and moral beliefs. The vehemence of these opinions will not fade quickly. But I am sure that, eventually, it will fade.

From a legal perspective, I loved the decision of Obergefell v. Hodges. In my opinion it got the law exactly right. People may disagree because gay marriage does not fit into their religion; yet the First Amendment prohibits the government from establishing or favoring a religion, so it cannot prohibit gay marriage on those grounds. People may say that gay marriage is not supported by the history and tradition of our country (echoing, in some ways, that same religious argument); yet there is a dearth of case law proving otherwise; and moreover, just because we have always done something does not mean we should continue to do it (e.g., slavery, subjugation of women). People may say that they hate this opinion because, honestly, they just hate gay people. I wish those people did not exist in our society, but they do. And unfortunately, there is no logical or constitutional argument that can persuade people out of their hatred.

Apart from the legality of it all, though, I think it is quite definitely the most beautifully written opinion I have ever read (and as a law student I have, regrettably, read thousands of opinions). It is simple, artful, and bold in ways that causes one to pause and realize that you are indeed witnessing history unfolding before you. There are not many 28-page opinions I enjoy reading, but Justice Kennedy wrote so wonderfully that it sang. It was in many ways a masterpiece. You should really take time to read it (and form your own opinions).

Personally, I am so incredibly happy today for all my gay friends, that you have had your love recognized as a constitutional right that is now the law of the land. Today must feel like a dream come true, and I am truly, truly glad for you. And to all those who are disappointed with today’s ruling, I want to remind you of this: You can disapprove of the Court’s decision but still be happy for the millions of people who are today reveling in love. You can oppose the law without opposing the people affected by the law. You can fight for change without fighting one another. That is the difference between opposition and prejudice. And that is how we can make sure that love really does win.

*****

An Assortment of Favorite Passages From the Opinion

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a character protecting the right of all persons to enjoy liberty as we learn its meaning.

*****

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.

*****

The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.

*****

From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.

*****

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

—–

David Postic is a third-year law student at the University of Oklahoma.

Education Links We Love (July 25th, 2014)

Education Reads

Each Friday, we here at Thirty-Eight Minutes post our five favorite education-themed articles from around the web this week. But due to our absence last week, we are going DOUBLE with TEN links this week (queue applause). Alas, we are but five guys with limited time to surf the furthest reaches of the Internet. So, as always, we would love any additional articles worth reading. If you find any, please post them below and share your discoveries with us.

Four Technology Trends Changing Higher Education (Edudemic)

Five U.S. Innovations That American Reformers Ignore (Washington Post)

Meet the 22-Year-Old Who is Closing the Summer Achievement Gap (Atlantic)

Moving Toward a New Model for Education (Edutopia)

Janet Barresi Loses Her Cool* (NewsOK)

University of Oklahoma Offers Debt Forgiveness (Tulsa World)

Classroom Leaves the Syllabus to the Students (NY Times)

5 ‘Dirty Words’ Admissions Offices Should Embrace (Chronicle)

Why is it So Hard to Change How We Teach Math? (Mind Shift)

STEM vs. STEAM: A Look At Half-Brain Teaching (Edudemic)

*Always fun to watch

—–

David Postic is a second-year law student at the University of Oklahoma.

Education Links We Love (July 11th, 2014)

Education Reads

Each Friday, we here at Thirty-Eight Minutes post our five favorite education-themed articles from around the web this week. Alas, we are but five guys with limited time to surf the furthest reaches of the Internet. So, as always, we would love any additional articles worth reading. If you find any, please post them below and share your discoveries with us.

The Hard Part (Huffington Post)

How to Read Education Data Without Jumping to Conclusions (The Atlantic)

Tennessee Moves Away from Test Scores on Teacher Evaluations (Education News)

How a Text Message Could Revolutionize Student Aid (NPR)

Jobs After College: It’s What You Know, Not Where You Go (Education Views)

10 Most Important SCOTUS Decisions of 2014

By Lester Asamoah and David Postic

U.S. Supreme Court


 

Last week’s Supreme Court ruling in Burwell v. Hobby Lobby Stores set the social media world (and the regular world, for that matter) on fire. Suddenly, people who usually couldn’t care less what those nine crazy old people say got all excited and started tweeting about it. In other words, Hobby Lobby was essentially the World Cup of Supreme Court rulings.

However, Hobby Lobby was not the only case the Supreme Court (or SCOTUS, for those who like acronyms) covered this term. In our opinion it wasn’t even the most important. Considering that the Court hears between 80 and 90 cases each year–on a wide range of issues–it is important to know what they decide outside of this one little case. Below we have ranked and summarized the ten most important cases from this term.

1. McCutcheon v. Federal Election Commission

Background: If you don’t know anything about the Citizens United v. Federal Election Commission decision from 2010, stop now and go learn about it. Essentially, this case (like Citizens United) is about how much an individual can contribute to a political candidate, political party, or political action committee (PAC). McCutcheon was not arguing for the right to donate more money to a single candidate; rather, he wanted to be able to donate money to more candidates/parties/PACs. However, limitations on aggregate contributions constrained his giving, supposedly violating his First Amendment right to free speech.

Holding: The Court ruled in favor of McCutcheon 5-4. The practical effect of McCutcheon is that individuals will still be subject to a limit (currently $2600) on contributions to any one candidate and higher limits on contributions to any PAC or party committee.  Now, however, donors will no longer be limited in the number of candidates or committees they may support in any given election cycle. Viewed together, Citizens United and McCutcheon strike a major blow to proponents of campaign finance reform.

2. Burwell v. Hobby Lobby

Background: The Affordable Care Act (Obamacare) requires employers to provide their female employees with health insurance that includes no-cost access to twenty different kinds of contraceptives. Hobby Lobby, a craft store owned by a Christian family, objected to the requirement, specifically claiming that four types of contraceptives (two kinds of “morning after” pills and two kinds of IUDs–interuterine devices) are abortifacients and therefore burdensome to the free practice of their Christian religion.

Holding: The Court ruled 5-4 in favor of Hobby Lobby. The first important thing to note here is that this ruling was not one centered strictly on the Constitution. Rather it was mainly a statutory issue concerning the Religious Freedom Restoration Act of 1993. The decision here did not destroy Obamacare’s individual mandate; it also did not grant all businesses religious exceptions to Obamacare. The majority claims that this ruling is a narrow one that applies only to closely-held corporations and only on an issue such as contraceptives and only when it places a significant burden on religious freedom. Nevertheless, the dissenters (led by Justice Ginsburgh in what may be one of her most fiery dissents in recent years) claimed the majority established dangerous precedent that could have ramifications in racial discrimination, same-sex discrimination, and other issues.

3. Schuette v. Coalition to Defend Affirmative Action

Background: If you are unfamiliar with affirmative action, take 5 minutes to orient yourself. In 2006, Michigan voters approved Proposal 2, which prevented the state’s public colleges and universities from granting preferential treatment in the admissions process on the basis of race.

Holding: In a 6-2 decision (Justice Kagan recused herself), the Court ruled that voters can end state affirmative action programs. The opinion will not prevent universities from using race as a plus-factor in admissions processes; it merely stated that voters have the power to ban the use of racial preferences. Nevertheless, the dissent and proponents of affirmative action believe that this is a major setback for racial equality. While the decision focused on race-based admissions factors in universities, it would presumably also permit voters to end race-based policies in the hiring of state and local employees and in awarding public contracts.

4. American Broadcasting Companies v. Aereo

Background: Aereo invented a technology that allows subscribers to view and record television broadcasts over the Internet by swiping the broadcasts from the airwaves with thousands of tiny antennas. Because the startup did not receive permission to stream these broadcasts, broadcasting companies sued Aereo, claiming copyright infringement. However, Aereo claimed that they were not infringing on any copyrights–they were simply renting antennas to consumers and they were doing the rest.

Opposing Aereo were the broadcasting companies, as well as corporations such as the National Football League and Major League Baseball, which earn hundreds of millions of dollars selling their broadcasting rights. On Aereo’s side was the cable industry. If Aereo won, cable companies would be able to sell their own Aereo-esque technology and provide broadcast content without paying broadcasters a penny. Interesting to note here: When Aereo won its case on the 2nd Circuit Court of Appeals last year, CBS and Fox threatened to go off the air.

Holding: The Supreme Court ruled against Aereo in a 6-3 decision. The justices seemed anxious to avoid a ruling that would imperil the legal foundation of cloud computing services such as Dropbox and Amazon Cloud Music. Instead, the majority said the decision pertained only to Aereo’s system so far as it enabled its viewers to view copyrighted TV programs “live,” or after only a brief delay. In the increasingly dramatic fight between cable companies and broadcasters, Aereo affirmed in part the power of the broadcasting industry.

5. Riley v. California

Background: A California police officer stopped the petitioner, Riley, for a traffic violation that eventually led to his arrest on weapons charges. When Riley was arrested, his cellphone was taken and searched. The police officer found photo and video content suggesting that he was involved a particular gang shooting. Riley moved to suppress the evidence from his phone connecting him to the gang, but the trial court denied the motion and he was convicted.

Holding: In a 9-0 decision, the Court held that the police may not search the cellphone of an individual who is arrested. All nine justices maintained that such digital content may only be searched with a warrant. Riley does not have a direct impact on allegations of government monitoring personal information, but it is a big win for personal privacy and the Fourth Amendment by reaffirming constitutional protections in an increasingly digital world.

6. Town of Greece v. Galloway

Background: Town board meetings in Greece, NY open with roll call, recitation of the Pledge of Allegiance, and a prayer and have done so since 1999. The town’s prayer program is open to all creeds, but all of the local congregations are Christian. Thus, nearly all of the prayers are Christian prayers. Respondents Galloway and Stephens argued that the prayers go against their personal religious and philosophical beliefs – they arguethe town should have “inclusive and ecumenical” prayers that would not associate the government with one belief system.

Holding: In a tight 5-4 decision, the Court held that the town of Greece was not violating the Establishment Clause of the First Amendment. The prayers have Christian elements, but they also invoke a sense of spiritual and civil principles. Additionally, the majority believed that reasonable attempts were made to include clergy of different faiths. Regardless, this case is big for religious freedom. The “traditional” protections that Congress and state legislatures have for prayer are now extended to local civil entities. City of Greece 1 – Laicism 0.

7. Hall v. Florida

Background: A man (Hall) kidnapped, beat, raped, and murdered Karol Hurst, a 21 year old newlywed. After killing her, Hall and his accomplice planned to rob a convenience store but were stopped by in the parking lot by a sheriff’s deputy. The two men then killed the deputy. The State of Florida recommended the death penalty for both counts of murder. Hall argued he cannot be executed on account of his intellectual disability. Hall’s IQ score is 71, but Florida laws state that an IQ score of 70 or below is required to present additional evidence of an intellectual disability to vacate the sentence.

(Note: Highly recommend reading the opinion brief, Hall was tortured by his mother and faced other troubling circumstances. The Florida jury and appellate court opinions are also worth the read.)

Holding: The Court ruled 5-4 that the state IQ threshold was unconstitutional because it put intellectually disabled individuals at unreasonable risk for being executed. Prior case law has established that any execution of intellectually disabled individuals clearly violates the Eighth Amendment. Florida’s hard and fast IQ threshold was a problem because the law did not account for standard error.

8. NLRB v. Noel Canning

Background: Several members of the National Labor Relations Board (NLRB) were appointed by President Obama via the Recess Appointment Clause, which states that the President has the power to temporarily appoint officers without the consent of the Senate if the Senate is in recess. The NLRB members in question were appointed during a three day recess.

Holding: In a unanimous 9-0 decision, the Court ruled Obama’s appointments invalid. Basically, the Justices felt that a three day recess is far too short to make appointments without Senate approval. There is no concrete definition on what is “too short” of a recess. However, it is generally regarded as a “significant interruption of legislative business” (e.g. Summer Recess). The ruling blocks the president from sneaking appointees past the Senate. Yet in a highly partisan Senate, it also slows down the appointment process of key political officials.

9. EPA v. EME Homer City Generation

Background: The Environmental Protection Agency (EPA), through the Clean Air Act, established national ambient air quality standards (NAAQS) for pollutants at levels that will protect public health. Once the EPA determines NAAQS, they determine the “non-attainment areas” where a regulated pollutant exceeds the NAAQS. A state with a non-attainment area must submit a solution to the EPA within three years. If the EPA thinks an the solution is inadequate, the EPA develops a Federal Implementation Plan where the EPA takes control. A solution can be ruled inadequate if it is in violation of the Good Neighbor Provision, meaning that the plan must include provisions to prevent regulated pollutants from one state from adversely affecting another [downwind] state.

In 2005, the EPA Clean Air Interstate Rule (CAIR) sought to regulate nitrogen oxide and sulfur dioxide in 27 upwind states. However, the D.C. Circuit Court found fault with CAIR, so the EPA came up with a complex cost-based formula for determining how states should compensate one another. If this case sounds complicated, that’s because it is.

Holding: In a 6-2 decision, the Court reversed the D.C. Circuit’s decision. The decision is significant because President Obama announced an EPA plan last month to combat climate change. The aforementioned Clean Air Act is the source of the EPA’s authority–instead of creating a new law, the EPA regulations are interpretations of the Clean Air Act. Environmental politics are dicey, but the Court gave the EPA a victory.

10. McCullen v. Coakley

Background: The Massachusetts Reproductive Health Care Facilities Act made it a crime to knowingly stand within 35 feet of a public way or sidewalk of an entrance or driveway to a reproductive health care facility. Petitioner McCullen argued that he and others engaged in “sidewalk counseling” by giving women walking toward abortion clinics information about alternatives to abortion. McCullen claimed that the Reproductive Health Care Facilities Act significantly hampered his efforts of “sidewalk counseling”, and thus was a violation of the First and Fourteenth Amendments.

Holding: In a 9-0 decision, the Court ruled the Act unconstitutional. Quite simply, the Justices believed that the State of Massachusetts did not do enough to address clashes between abortion opponents and advocates before passing the Act. In so deciding, the Court continued a strong trend of protecting free speech, even when it is perceived as hateful.

—–

Lester Asamoah is an International Security Studies senior at the University of  Oklahoma.

&

David Postic is a second-year law student at the University of Oklahoma.

7 Things You Need to Know About Charter Schools

By David Postic

7 things you should know about charter schools


If you find yourself talking about education policy, you’re probably going to end up talking about charter schools. At its core, the charter school movement is a relatively simple concept, but it has become complicated in practice and politics. Luckily for you, we have put together a short primer to unravel these complications so you can fully understand the context of the charter school debate.

1. Charter schools haven’t been around all that long.

The first charter school was founded in Minnesota in 1991. Since that time, the number of charter schools has increased dramatically, with 5% of public school students in the United States now attending a charter school.

2. Charters are, in some ways, similar to traditional public schools.

Both traditional public schools (TPS) and charter schools are technically “public” schools: They are funded with taxpayer money, don’t charge tuition, and are required to accept any student who wants to enroll. But while public schools are governed by local school boards and school districts, charter schools are operated by independent groups.

There are other important differences as well. Some charter schools can hire teachers who are not certified by the state. Many charter school teachers are also paid based on performance. In general, charter schools have greater flexibility than TPS in setting curriculum, school hours, teaching method, and hiring/firing teachers.

3. Charter schools do not have admissions policies.

Rather, charter schools are not supposed to have admissions policies. A Reuters investigation in 2013 found that some schools get around this requirement through a variety of different screening methods. As a result, those schools can pick the students they want and avoid those they don’t. However, charter schools backed by state law (such as KIPP, Success Academy, etc.) generally ask for little more than name, grade, and contact information in their applications. It is the stand-alone charters, which account for more than half of all charter schools in the U.S., that make up their own admissions policies. These schools are the ones who skirt the “open” and “inclusive” rules of charter schools. Many charter schools are located in high poverty areas and actively target disadvantaged students.

4. Many charter schools spend less on the classroom.

Unlike TPS, some charter schools are run for a profit. Nationally just under 13% of charters are run by for-profit entities. However, that number varies from state to state. For example, an estimated 85 percent of Michigan’s charter school students attend schools run by for-profit companies. These for-profit charters typically spend about 50 percent of their budget on instruction compared to close to 60 percent for traditional public schools. These for-profit charter schools typically obtain their profits by spending less in four areas: Teacher compensation, special education, transportation, and concentrating on K-8 schools rather than high schools. Opponents of charter schools focus in on this fact: From a taxpayer standpoint, would we rather see dollars go to teachers or corporate profit?

5. You don’t actually pay more for charter schools.

Taxpayers are not obligated to pay any more simply because a new charter school opens in their area. Charter schools are public schools, and tax money that is allocated to education goes to charter schools as well as TPS. Professor Paul Hill of the University of Washington simplified the issue: “Basically, there is money that used to be in the hands of the public school system that now goes to charter schools. But it’s not more money, it’s the same, and in some cases actually less… So it isn’t that the public is paying more for charter schools. In fact, sometimes they’re paying less.”

6. However, charter schools do take money away from TPS.

Charters and TPS get money for every student that enrolls. So technically, each student that enrolls in a charter school results in less money for TPS. On one hand, public schools no longer have to spend money on those lost students, but on the other hand they may have trouble reducing their costs to the same degree. Nevertheless, charter school enrollment does mean less total funding for TPS. The important question to ask: Is it worth it?

7. The results of charter schools are mixed.

One of the leading studies on charter school performance, organized by Stanford’s Center for Research on Education Outcomes (CREDO), has been used to suggest that charter schools are outperforming TPS. Like similar studies, the CREDO research has been repeatedly distorted and mischaracterized by parties on both sides of the charter school debate.

The central result of the study is that approximately one hundredth of one percent (0.01 percent) in the variation in test performance can be attributed to charter school enrollment. Charter advocates took that statistic and ran headlines around the nation that “charter schools improve test performance.” Obviously that implication is misguided.

Part of the reason for all this mischaracterization is the promotional effort of education reformers. This statistical research burst onto the scene in 2009 when it was referenced in the documentary “Waiting for Superman.” The ‘Superman’ narrator tells the audience that “one in five” charter schools is excellent. The actual finding from the CREDO study (which was a precursor to the updated 2013 study referenced above) is that of the charters researched, 17% (which is really one in six) had better results than the comparison student results attributed to conventional public schools, while 37% did worse.

Bottom line: Performance results of charter schools are mixed. The underlying issues are far too complex and understudied to determine that charters are all-around better than TPS.

So those are the charter schools basics.

At their core, studies show that charter schools perform about as well as TPS on average. However, the same factors that contribute to success in traditional schools–good teachers, good administrators, high levels of family support–also make good charter schools. The movement is still relatively young, so the results are only beginning to be evaluated. Nevertheless, as charters grow to become a larger part of the national education debate, it is important to understand what they are and how they may affect your community.

—–

David Postic is a law student at the University of Oklahoma.

Education Links We Love (July 4th, 2014)

Education Reads

Each Friday, we here at Thirty-Eight Minutes post our five favorite education-themed articles from around the web this week. Alas, we are but five guys with limited time to surf the furthest reaches of the Internet. So, as always, we would love any additional articles worth reading. If you find any, please post them below and share your discoveries with us.

Why We Still Need Affirmative Action (Washington Post)

What’s Missing From the Merit-Aid Debate (Chronicle)

College Debt and Home Buying (NY Times)

5 Powerful Videos on Global Education (Edudemic)

To Close the Achievement Gap We Need to Close the Teaching Gap (HuffPost)

… And for the most obvious headline of the week…

Bonus: Education is Key to Making Oklahoma Competitive (NewsOK)

Education Links We Love (June 27th, 2014)

Best Education links of the week

Each Friday, we here at Thirty-Eight Minutes post our five favorite education-themed articles from around the web this week. Alas, we are but five guys with limited time to surf the furthest reaches of the Internet. So, as always, we would love any additional articles worth reading. If you find any, please post them below and share your discoveries with us.

Why (and How) Teachers Are Using Twitter (Edudemic)

Congress Combats Sexual Assault at Colleges (Washington Post)

5 Key Areas of the Senate Democrats’ Education Bill (Chronicle)

Using Entrepreneurship to Transform Student Work (Edutopia)

Q. and A. About Student Debt (The Upshot)

Note: that last source–The Upshot–is a relatively new section of the New York Times that I highly, highly recommend reading for a variety of subjects.