Bridging the Empathy Gap

By Lester Asamoah

black-and-white-american-flag2


2016, in some ways, has been a rough year in America. Racial tensions seem to be at least as high they were in 1992 after the Los Angeles riots. Some older civil rights activists even claim that tensions are close to as bad as they were during the civil rights movement. Race relations haven’t been the only divisive issue by any means – LGBTQ+ and Muslim issues also have had major dividing points. Needless to say, 2016 is a year in particular where it’s worth discussing these issues. Even if it means repeating certain issues or points. I’ve largely abstained from writing about these issues, but I want to return to them.

On Twitter, I’ve said that when I see certain politicians talk, I feel like I live in a different America than them. To be clear, there’s nothing inherently wrong about having a different experience than someone else in the same country. I’m sure that someone living in San Francisco, CA has a fundamentally different experience than someone that lives in Savannah, GA. However, there seems to be major gaps in how some of the fundamental problems America faces is approached. We have different problems and perspectives. Again, not inherently bad. But some of the problems faced by certain Americans goes largely ignored. This election cycle along with other major events in the [US] country have revealed our capacities to misunderstand each other.

This isn’t the part where I say we should all get along and end the post. I wish it were that easy. This is actually the part where I try to tease out of some of what I think can help develop basic understanding between our different experiences.

Listen and Share the Load

If you’re at all interested in what people are marginalized in America are going through, you should start by listening. I say this time and time again. But, ironically enough, people don’t seem to listen. Or they need to be reminded multiple times. I also suggest listening to things from people of the particular affected group. It makes no sense to hear a congressman pontificate about how bad the shooting was in Orlando – especially if they don’t mention LGBT people (many people did not) and if they’re not LGBT themselves. This isn’t to say that people of the out-group can’t have opinions, but it seems asinine to build your opinions and advocacy from the words of those not in the marginalized group. A certain presidential candidate addressed the black community in a city and crowd that is overwhelmingly white. What good does that do?

If you’re a good listener, then you won’t have to ask the same questions over and over again. As Toni Morrison and many others point out – a part of oppression is having the marginalized consistently have to prove themselves and help others understand what they’re going through. Unless you’re asking a real simple question or are willing to start an honest conversation about a social issue, don’t keep asking basic questions. Google is a hell of an invention. Don’t waste people’s time forcing them tell you about racism, sexism, ableism, Islamophobia, homophobia, etc. when you have the resources to learn about these issues. And if you don’t have the resources, then make that clear. And make no mistake, if you’re intentional people will be receptive. But just know that when you see injustice and you keep saying “I didn’t know, I didn’t know,” it really does no good for anyone. It also does no good to call someone/group of people stupid for what they believe in. Even if you think they are, constantly sharing articles about how inferior a group of people are to you and your cadre of friends isn’t ingratiating. Oh, and let’s stop with the damn “devil’s advocate” please, unless you like patronizing people. We don’t need anymore devil’s advocates.

Changing from Within

Do you believe that people can change? Well, to some extent, people have to change for there to be less tension in the US. As alluded to previously, people have to change the way they take in information about others. But internalizing it is just as important – how many times have you sat in front of a TV or a lecture and not remembered anything that was said in the last 5 minutes?

It’s incumbent of us, as Americans, to get to know the other side. Of course, this shouldn’t be done if the other side is hateful or harmful to our health. I strongly take the stance that I shouldn’t need to empathize with the arguments behind racism, homophobia, and Islamophobia. Thinking people are inferior based on race, gender, religion, etc. isn’t okay, and we shouldn’t be interested in entertaining those beliefs. But where can we as individuals help others move on how they view the world? Can we help people move on these issues? I’ll be honest – I don’t have a great answer because I believe in spending energy on keeping oneself healthy and prosperous; battling with someone who sees you or others as less than a fully valuable human goes against that. Alternatively, what are we doing within our in-groups on these issues? The black community has pressing issues of misogyny and homophobia to deal with. As do many other communities of color. Intersectionality is something that has to be practiced by everyone.

To put this bluntly: for there to be change, the people that are in the dominant group have to change. For systemic racism to end, white people have to change. For misogyny to end, men have to change. For Islamophobia to end, people who are non-Muslim have to change. For homophobia to change, straight people have to change. You likely get the point now. This is where intersectionality is critical because a lot of us in some way belong to a dominant group. It’s not enough to say only white people or black people should change. And it’s definitely not enough, if not pretty offensive, to say that someone in the marginalized group should change – i.e. lesbians should “act straight,” blacks should “commit less crime.” Just for the record: lesbians should act however they please and we shouldn’t assume blacks are prone to committing crime. Rinse and repeat these principles.

Free Expression

So if a problem is that we’re bad at listening and internalizing important things about those different than us, we should expect people to get mad sometimes. Of course, it does no good to endlessly scream at someone about an issue. But anger is a legitimate response to being called rapist by a certain political candidate based on arriving from a certain country, or seeing people that look like you getting shot down in a Florida nightclub or in the streets of Milwaukee. For some reason we just have a hard time in America with understanding the emotional responses of others. We need to get over that. We need to understand the varying expressions of those around us. White working class people in Indiana who feel betrayed by the economy have a right to feel mad. Black students who are tokenised for 3 years of school at a predominately white institution [PWI] have a right to be reserved. LGBTQ+ people have a right to be annoyed at straight people constantly disregarding their rights (we do it way too often, fellow straight people).

Expression is an important point because when you press people in some way, they will eventually express how they feel. The inability to listen and learn means we have routinely misunderstood these expressions. And make no mistake, we as a nation will continue to misunderstand these issues if we don’t listen and learn.

…Is that all?

I promise I’m not trying to insult your intelligence and be elementary by suggesting we should simply “listen and learn.” However, that is that solution and we are bad at it. Quite frankly, it’s much easier to put off the problem for a number of reasons: we have our own things going on, we have a friend of a marginalized group that doing well so things are fine, or we just worry that we’ll never know enough to do anything. Those are things that I’ve faced, and things that I imagine most readers face. We have to be honest with ourselves. It’s easy to write Facebook statues and call it a day. It’s easy to let that guy we know say the n-word. It’s easy to let a sexist joke slide. But it’s difficult to confront ourselves and these small battles. And sometimes these battles are more harmful than good. Sometimes we lose friends. Sometimes we need breaks. But if we’re concerned about bridging the gaps that have made America feel so divided, we have to do the work and that’s where the work is. Don’t say I never warned you.

Lester Asamoah is a graduate student at American University.

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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.

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.

—–

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.

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.

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

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