Law & Courts

Race-Related Cases Drew High Court Focus

By Mark Walsh — July 10, 2013 9 min read
Abigail Fisher, who sued the University of Texas when she was not offered a spot at the university's flagship Austin campus in 2008, is followed by Edward Blum of the Project on Fair Representation, after a news conference at the American Enterprise Institute in Washington on Monday. The U.S. Supreme Court ruling on affirmative action in higher education will have "no impact" on the University of Texas' admissions policy, school president Bill Powers said Monday, noting UT will continue to use race as a factor in some cases.
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The U.S. Supreme Court’s recently concluded 2012-13 term included two major decisions affecting how race plays out in the nation’s school districts, among a number of other rulings with implications for K-12 and higher education.

The most closely watched education case was anticipated as a chance for conservatives on the court to launch a potentially sweeping rollback of the use of race in college admissions. But the result in Fisher v. University of Texas at Austin (Case No. 11-345), after eight months of internal deliberation by the justices, was much less.

In a 7-1 ruling, the court reaffirmed key precedents that racial diversity is a compelling educational interest, but it gave opponents of affirmative action fresh legal ammunition to continue attacking race-conscious programs.

Meanwhile, the court’s ruling in Shelby County, Ala. v. Holder (No. 12-96) invalidated the formulas in the Voting Rights Act of 1965 that define which jurisdictions, including school districts, must get federal approval before implementing any voting-related change, such as redrawing electoral districts or switching to an at-large school board.

Ryan P. Haygood, a political director with the NAACP legal Defense and Educational Fund, speaks outside the U.S. Supreme Court last month, criticizing the court's ruling in a voting-rights case. The court ruled that a key provision of the Voting Rights Act cannot be enforced until Congress crafts a new way of determining which states and jurisdictions will require federal approval to make voting-related changes.

In the Fisher case, the justices ruled that a lower court had failed to hold the university’s race-conscious admissions plan to the demanding burden of “strict scrutiny” as articulated in the high court’s landmark decisions on affirmative action in education.

The high court threw out a ruling by the U.S. Court of Appeals for the 5th Circuit, in New Orleans, that upheld the flagship University of Texas campus’s “holistic review” program, which takes race into account for roughly one-quarter of places in the entering freshman class. The other three-fourths are filled under a state law that guarantees admission to high school students who finish in the top 10 percent of their graduating classes.

Abigail Fisher, a white applicant from Sugar Land, Texas, who was denied admission to UT-Austin in 2008, challenged the holistic-review program as a violation of the 14th Amendment’s equal-protection clause. The Supreme Court’s June 24 decision allows Ms. Fisher and her lawyers to return to the 5th Circuit court to fight the university’s justifications for the program.

Bench Dissent

Writing for the majority, Justice Anthony M. Kennedy said the 5th Circuit court had not complied with Grutter v. Bollinger, the high court’s 2003 decision upholding a race-conscious admissions plan at the University of Michigan’s law school, by properly applying strict scrutiny. Under that standard, a government racial classification must meet a compelling interest and be narrowly tailored to achieve that interest.

Closely Watched Cases

The U.S. Supreme Court’s 2012-13 term included no cases directly involving school districts but several that presented issues of interest to educators.

Race-Conscious Admissions

In the term’s highest-profile education case, the justices held 7-1 in Fisher v. University of Texas at Austin (No. 11-345) that a lower court failed to apply the proper legal standard to the university’s race-conscious admissions program. They returned the case to a federal appeals court, prompting opponents of affirmative action in admissions to believe they have new ammunition to challenge the use of race. But defenders of race-conscious plans took heart that the justices did not disturb its key precedents in that area.

Voting Rights Act of 1965

The court ruled 5-4 in Shelby County, Ala. v. Holder (No. 12-96) to invalidate Section 4 of the landmark voting-rights law, which sets the formula for which states and other jurisdictions, including school boards, must get advance federal approval of any change in voting. Unless Congress responds, the ruling effectively frees up school boards in nine states, mostly in the South, plus some jurisdictions in five others, to reconfigure their boards or make other voting-related changes.

Same-Sex Marriage

Educators were watching how the court would deal with an issue with implications on curriculum, in school policies dealing with same-sex parents or employees, and for the impact on gay youths. In United States v. Windsor (No. 12-307), the justices ruled 5-4 to strike down a key part of the federal Defense of Marriage Act defining marriage as between a man and a woman. Justice Anthony M. Kennedy wrote for the majority that DOMA’s different treatment of marriages legally recognized by some of the states “humiliates tens of thousands of children now being raised by same-sex couples.” In Hollingsworth v. Perry (No. 12-144), a different 5-4 lineup held that proponents of the California constitutional amendment barring same-sex marriage lacked standing to appeal a federal district court ruling that struck down the state measure. That effectively allowed same-sex weddings to resume in California.

Employment Discrimination

The court issued two 5-4 decisions in favor of employers on job-bias issues relatively common to public education. In Vance v. Ball State University (No. 11-556), the justices narrowed the definition of a workplace supervisor for purposes of holding the employer liable under Title VII of the Civil Rights Act of 1964. The court said only employees who have the power to hire, fire, demote, promote, or discipline others were supervisors under the law. In a second ruling, University of Texas Southwestern Medical Center v. Nassar (No. 12-484), the court rejected a “mixed motive” standard for Title VII retaliation cases. It said a plaintiff making a retaliation claim under the statute “must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.”


The court ruled 6-3 in Kirtsaeng v. John Wiley & Sons Inc. (No. 11-697) that the “first sale” doctrine, which allows the purchaser of a copyrighted item to redistribute it, applies to copyrighted works that are lawfully published outside the United States. The case involved a Thai national and U.S. graduate student who obtained cheaper versions of college textbooks published overseas and sold them in the United States. The ruling was a defeat for educational publishers, but eased fears of educators and librarians over the use of such overseas works.

Police Dogs

The court ruled in two cases about the police use of drug-sniffing dogs, a practice that has grown in use in the schools. In Florida v. Harris (No. 11-817), the court unanimously rejected the state supreme court’s decision that called for broad certification requirements of such dogs to support warrantless searches. In Florida v. Jardines (No. 11-564), the court ruled 5-4 that the police use of a dog to sniff for drugs outside a home was a search under the Fourth Amendment. But that ruling left unclear whether the same police use of dogs in the corridors of buildings where they are invited, such as schools, would be subject to the same constraint.

“Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice,” Justice Kennedy wrote.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, Stephen G. Breyer, Samuel A. Alito Jr., and Sonia Sotomayor joined the opinion. Justice Elena Kagan did not participate in the case, presumably because she had worked on it while she was U.S. solicitor general.

Justice Ruth Bader Ginsburg read part of her lone dissent from the bench.

“In my view, the courts below adhered to this court’s path-marking decisions, and there is no need for a second look,” she said. And she took issue with the majority’s acceptance of the proposition that the “top 10" plan was race-neutral; she said that the plan relies on “de facto racial segregation in Texas’ neighborhoods and schools.”

Justices Scalia and Thomas filed concurring opinions making clear they would overrule Grutter and outlaw all racial preferences in admissions, but they noted that Ms. Fisher and her lawyers did not seek to go that far.

‘Some Good Law Here’

In an outcome few would have predicted when the justices accepted the case, the decision largely appeased both sides of the affirmative action debate—for now.

“We were hoping for more,” said Roger Clegg, the president and general counsel of the Center for Equal Opportunity, a Falls Church, Va., group that joined the opposition to the race-conscious admissions program at UT-Austin.

But the decision “certainly opens the door to more aggressive legal challenges,” he added. “It says schools are not entitled to deference.”

Some observers said the ruling portended little significant change for colleges or K-12 schools.

“It was a 13-page [majority] opinion,” said Michael E. Rosman, the general counsel of the Center for Individual Rights, a Washington group that also filed a friend-of-the-court brief on Ms. Fisher’s side. “It didn’t decide a lot of issues.”

Still, advocates for colleges and school districts, who had generally sided with the university, were relieved not to be contending with a landmark decision limiting race, but also to have a ruling that reaffirmed racial diversity as a legitimate educational purpose.

“I think there is some good law here,” said Francisco M. Negrón Jr., the general counsel of the National School Boards Association. He said he was pleased that Justice Kennedy’s opinion “is coming right out and saying Grutter is still good law and that courts have to be deferential about schools using diversity.”

Practical Effect

John W. Borkowski, a Washington lawyer who represents districts on race issues, said the practical impact of the decision for schools may be limited “because there are very few school districts with student-assignment policies that engage in the kind of holistic review of applicants like a university admissions program does.”

“It will depend a little bit on how the lower courts respond to it,” added Mr. Borkowski, of the firm Hogan Lovells. “Ultimately, this is a reminder that if you are going to do something that is race-conscious, it is going to be subject to strict scrutiny.”

Scott R. Palmer, a managing partner of EducationCounsel, a Washington-based law and consulting firm that advises districts, colleges, and states on education policy, agreed that the court’s decision was fairly narrow.

“Importantly, the court continued to apply the same basic standard set forth in Grutter: that institutions of higher learning can promote the educational benefits of diversity as a compelling governmental interest,” said Mr. Palmer, whose firm helped write a brief on the University of Texas’ side for the College Board and the NSBA.

“At the same time, the court also made clear that under the narrow-tailoring inquiry, it is the courts’ role to decide whether the educational institution has provided sufficient evidence,” he said. “That certainly puts a thumb on the scale of the institutions’ being responsible for having a basis in evidence” for their race-conscious programs.

In the Voting Rights Act case, the justices ruled 5-4 that the formulas Congress relied on when it overwhelmingly reauthorized the act in 2006 were based on “decades-old data and eradicated practices,” as Chief Justice Roberts put it for the majority.

The court declined to strike down the voting-rights law’s Section 5, which requires jurisdictions with a history of discrimination in voting practices to get approval for any change in voting from the U.S. Department of Justice or the federal district court in Washington.

But the June 25 decision’s invalidation of the coverage formulas in Section 4 of the law effectively blocks federal oversight of election changes, pending any action by Congress to draw up new formulas, which seems unlikely in the current political climate.

Section 5 covers nine states—Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia—as well as certain jurisdictions in several other states.

Shelby County, Ala., challenged the 2006 renewal, arguing that it impinges on state sovereignty.

Chief Justice Roberts said the massive record compiled by lawmakers in support of the 2006 renewal of the law did not show “anything approaching the pervasive, flagrant, widespread, and rampant discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the nation at that time.”

“Congress did not use the record it compiled to shape a coverage formula grounded in current conditions,” the chief justice added. “It instead re-enacted a formula based on 40-year-old facts having no logical relation to the present day.”

“Things have changed dramatically” nearly 50 years after the law’s adoption, the chief justice said. “Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.”

His opinion was joined by Justices Scalia, Kennedy, Thomas, and Alito.

Sharp Dissent

Justice Ginsburg wrote a sharp dissent joined by Justices Breyer, Sotomayor, and Kagan. She said that even though registration and voting by minority-group members increased significantly under the Voting Rights Act, “other barriers sprang up to replace the tests and devices that once impeded access to the ballot.”

Those included racial gerrymandering, switches from single-member electoral districts to at-large membership of city councils and school boards, and discriminatory annexations, Justice Ginsburg said.

She cited, among other examples, a 2003 case in which African-Americans won a majority of the seats for the first time on the Charleston County, S.C., school board. In response, the outgoing board proposed to switch to an at-large voting system. The Justice Department invoked Section 5 of the law to block the change.

That example, “and scores more like them, fill the pages of the legislative record” that was before Congress in 2006, Justice Ginsburg said.

Ilya Shapiro, a senior fellow at the Cato Institute, a Washington think tank that has a limited-government, free-market orientation, filed a brief on Shelby County’s side that cited statistics showing that African-Americans have been elected to state legislatures, city councils, and school boards in Section 5-covered states at higher rates than elsewhere.

“The Supreme Court was correct in 1966 when it upheld” the Voting Rights Act’s coverage formula and special procedures for covered jurisdictions “because of the extraordinary facts on the ground,” Mr. Shapiro said. “And it is correct now because there are no longer those extraordinary facts on the ground that justify these special measures.”

President Barack Obama’s administration, which discussed in its briefs numerous actions under the Voting Rights Act involving school districts, joined civil rights groups in expressing deep disappointment over the ruling.

“This decision represents a serious setback for voting rights,” Attorney General Eric Holder said at a news conference. He stressed that while covered jurisdictions no longer require preclearance for voting changes, the Justice Department will vigorously monitor such changes for potential violations of Section 2 of the act, which allows any party to sue over race discrimination in voting.

“Our country has changed for the better since 1965 but the destination we seek has not yet been reached,” the attorney general said.

A version of this article appeared in the July 11, 2013 edition of Education Week as Race-Related Cases Drew High Court Focus


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