The man behind two blockbuster Supreme Court cases this week

7 Dec 2015 | Author: | No comments yet »

AM Roundup: Justices Revisit Race-in-Admissions Case.

The Tuesday case seeks to test compliance with the constitutional principle of one person, one vote in voting districts in Texas. On December 9, the US Supreme Court will once again take up the case of Abigail Fisher, a former applicant rejected for admission to the University of Texas at Austin, whose allegations of unfair racial bias against white candidates stand to challenge affirmative action programs across the country at a time of heightened tension surrounding race and privilege at campuses from upstate New York to Southern California.WASHINGTON — Basketball coaches, leading military officers and many of the country’s biggest businesses agree that the Supreme Court should preserve the use of race as a factor in college admissions.You probably haven’t heard of Edward Blum, but if you are white, and you hate going to school with (or voting with, or serving in Congress with) black people or Latinos, then Blum is your personal hero.

In 2013, the Court avoided ruling in the case, which was assembled with the help of anti-affirmative action activist Edward Blum, by vacating a ruling by the Fifth US Circuit Court of Appeals and sending the case back to a federal appeals court. Carol Allan returning to the witness stand. [Sun] One giant leap for law: “Just before Thanksgiving the U.S. government made it legal for Americans to mine an asteroid—provided they can catch one,” writes K&L Gates LLP partner Paul Stimers. [WSJ] Kansas judges on the spot: Two cases that will be heard in Kansas courts this week could put a political spotlight on the judges and justices hearing them. [AP] Gandhi order: The High Court of Delhi in India ordered the torchbearers of the Nehru-Gandhi political dynasty to appear in court over alleged misuse of party funds. [Reuters] While it is unusual to have two such high-profile cases heard on consecutive days, what is even more unusual is that the two cases share the same origin. The Associated Press runs down what a court majority could do: “Texas is unique in marrying the top 10 plan to a separate admissions review in which race is one of many factors considered.

But even if it rules for Fisher on narrower grounds, it will embolden opponents of affirmative action and make universities think twice about aggressively pursuing diversity. Indeed, next week could be one of the most important weeks in the history of the Roberts Court’s racial jurisprudence, as the justices will hear back-to-back civil rights cases in just two days. Although some anticipate that the case will be decided on details, such as why Fisher was rejected or how campus diversity would be impacted by a new admissions policy, the justices’ willingness to reexamine the case may indicate their diverging views of how to understand equality and diversity in an era when understandings of “diversity” are in flux.

She also did not get in under the program that looks at race among many factors and through which Texas admits about a quarter of its incoming freshman classes. Americans decrying “reverse racism” claim that diversity policies are not truly “colorblind,” while affirmative action advocates claim the call to “colorblindness” misunderstands the purpose and history of policies meant to level the playing field.

Under the Fourteenth Amendment, states are allocated seats in the U.S.House of Representatives by “counting the whole number of persons in each state.” Thus, non-voters, including those who are legally ineligible to vote, still count in determining how many seats each state will fill in the House. Congress’ promise to revamp requirements put on the states by the federal No Child Left Behind Act, which Texas and dozens of other states have found unattainable, is more good news. ‘It is a significant reversal of where the current administration is, and it really is a return to power and authority to the states,’ Williams said.” http://goo.gl/WmqtGH — AP: Texas birth certificate rules often unenforced, analysis finds. “Texas has for seven years said it won’t accept Mexican identification cards when issuing birth certificates for children of people in the United States illegally. But to fill the remaining places in the freshman class, the university employs what it calls a “holistic” process that considers a broad range of factors including race, socioeconomic status, extracurricular activities and community service. Even the Republican-controlled State of Texas is pushing back against his approach in the voting case. “Discriminatory and nonsensical,” is how Katherine Culliton-Gonzalez, director of voter protection with the Advancement Project, describes the Texas voting case.

-Mexico border told the Texas Department of State Health Services during the past three years that they were allowing parents to get copies of birth certificates using a Mexican identification known as the matricula consular.” http://goo.gl/vfvazx — Obama offers reassurance, little policy in Sunday speech, by the AP’s Kathleen Kennessey. “There were no new policy prescriptions, no fresh military strategies and no timelines. This process has allowed the university to enroll black and Latino (and white) students from high-achieving schools in prosperous areas who failed to finish at the top of their classes. Among the many groups urging the justices to leave the Texas program in place are the coaches, including Duke’s Mike Krzyzewski and University of Connecticut’s Geno Auriemma, who said they have firsthand knowledge of the value of diversity on campus. “We are not writing as dilettantes or tourists. Blum’s Project on Fair Representation was originally set up 10 years ago as an advocacy organization set up to educate the American public and lawmakers about what he terms the “pitfalls and mischievous evolution of the Voting Rights Act.” It was one of Blum’s suits that resulted in the June 2013 landmark decision that essentially gutted a major section of the Voting Rights Act.

When President Barack Obama seized the spotlight for a rare prime time address Sunday night, he came with one major message: It’s going to be OK. “Standing in the Oval Office, Obama sought to calm nerves and quiet a chorus of critics who charge the president has been too slow to acknowledge the threat posed by Islamic radicalism and too tepid in his response. ‘The threat from terrorism is real, but we will overcome it. The university says that this “diversity within diversity” strategy produces the sort of “broad array of qualifications and characteristics” that contributes to a truly diverse learning environment. If Blum’s position prevails, Texas will still receive extra representatives for the large number of non-voters — most significantly, the state’s non-citizen Latino population — who reside in the state, but it will be required to carve up its districts according to the number of eligible voters who live in the state. The 5 to 4 decision freed certain states from the requirement, dating from the 1960s, that they obtain pre-approval in Washington before making any voting changes.

We will destroy ISIL and any other organization that tries to harm us,’ he said, using an alternative acronym for the Islamic State group.”http://goo.gl/BaEB69 — Heidi Cruz is on a mission to make Ted more well-liked, by the Houston Chronicle’s Kevin Diaz. “Under a feeble sun trying to clear a morning rain, Cruz hopped out of her rental car – coincidentally a Chevrolet Cruze – and headed for the Virginia elections office. The point of the lawsuit was that Congress had not adequately updated the 40-year-old criteria used to determine which states must comply with the preclearance requirement. Her immediate task last Tuesday was to hand-deliver a carton of 10,907 signatures – more than double the number needed to put her husband’s name on the GOP presidential primary ballot in Virginia, one of a dozen mostly Southern “Super Tuesday” states, including Texas, that will go to the polls on March 1. “But as the primary season draws near, Cruz’s underlying mission was more subtle: to round out the sharp edges of her husband’s image as a hard-nosed, no-compromise, scowling tea party conservative that many mainstream Republicans – notably former boss George W.

But, according to Forbes, UT’s “opaqueness,” not giving specific information on how applicants’ race is factored into their decisions, may prove the policy’s undoing. “They’ve designed this program quite deliberately to be unaccountable and non-transparent,” Cato Institute fellow Andrew Grossman told Forbes. “The hallmark of strict scrutiny is the court has to satisfy itself the program is narrowly tailored and achieves the government’s objectives.” The case could have a far-reaching impact. But that decision not only would be wrong in itself; it would send the message that the court is willing to second-guess the specifics of other affirmative-action programs. Fisher must overcome a jurisdictional issue that would scuttle the case if the justices apply many longstanding precedents, but a majority of the Court showed little interest in this issue when they heard the same case three years ago. As a state school, UT is bound to the Constitution’s equal-protection clause, which Fisher’s team argues that race-conscious admissions policies violate. With new polls reaffirming his dominance and Ben Carson’s decline, Trump is showing less interest in recent days in his Republican rivals and more in general election strategy and Hillary Clinton’s personal life.” http://goo.gl/e7NqlQ — Dynasties thrive on campaign staffs, Politico’s Isaac Arnsdorf.

It stuck together in cases that stripped the Justice Department of its power to approve in advance changes related to elections in all or parts of 16 states with a history of discrimination in voting, and threw out local plans to integrate public schools in Louisville, Kentucky, and Seattle. Instead, he says, he is seeking to enforce a colorblind approach, a high standard of equality, that he believes the Constitution mandates. “The mission of the organization is to eliminate distinctions by race and ethnicity by government actors in voting, employment, contracting, and education,” he said in an interview.

Other public universities are watching the case closely, as are private schools who receive federal funding, many of which insist on the necessity of their race-conscious policies and hope that Fisher v. The only break from this pattern was in June, when Justice Anthony Kennedy joined the four liberal justices to preserve a key legal tool in fighting discrimination in housing. “Every time they take one of these cases, I worry,” said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund. Blum’s approach to identifying potential Supreme Court landmarks is to closely examine fundamental principles in the Constitution that he feels are not being fully enforced.

Since donors pay the bills, campaigns can hire anyone they want and don’t have to play by the nepotism rules that govern taxpayer-funded jobs.”http://goo.gl/DZBXDd — Cruz, gaining on Trump in Iowa, intensifies war rhetoric, by Bloomberg’s John McCormick. “Texas Senator Ted Cruz intensified his rhetoric this weekend in Iowa as he sought to compete with Republican frontrunner Donald Trump on tough talk about killing Islamic State terrorists. ‘We will carpet bomb them into oblivion,’ Cruz said at a multi-candidate event in Cedar Rapids sponsored by the Tea Party-aligned FreedomWorks group. ‘I don’t know if sand can glow in the dark, but we’re going to find out.’” http://goo.gl/hlR5l6 Part puppet master, part matchmaker, Blum has built a “nationwide network of top legal talent who are often willing to offer their services at greatly reduced rates” to advance his pet cause. With a modest SAT score of 1180 out of 1600, Fisher’s credentials were most likely not up to snuff for Texas’ flagship school, regardless of her race, as ProPublica reported in 2013.

For the foreseeable future, especially at highly competitive universities, meaningful racial diversity will require some consideration of race in the admissions process. Provisional admission was offered to roughly 50 students with grades and scores lower than hers, but the vast majority were white, and 168 minority students with equal or better grades were also rejected.

Fisher was offered admission as a sophomore, if she could maintain a 3.2 grade point average at another Texas university her freshman year, but turned it down in favor of Louisiana State University. The outcome, in June 2013, concealed tense divisions among the justices, according to author Joan Biskupic’s account in her book “Breaking In” about Justice Sonia Sotomayor.

But today, the concept that laws must be “colorblind” is often used to argue against programs meant to help minorities, with anti-affirmative action voices arguing that considering race at all amounts to racism. William Leiter, professor emeritus at California State University, Long Beach, also says that equal opportunity may have given way to unequal preference. “The diversity theory emphasizes that groups are different and they bring different capacities to the academic arena,” he told the Wall Street Journal. “That’s a major departure from traditional civil rights law; the 1964 Civil Rights Act said there were not supposed to be any differences between the treatment of blacks, whites, and anybody else.” Critics say that ignores the historical context of the amendment, and the original need for “colorblindness” itself, which was intended to help groups who experienced present or past discrimination overcome those disadvantages. Last year, Sotomayor did issue a strong dissent to Kennedy’s majority opinion in a case from Michigan that essentially looked at the flip side of the Texas issue and concluded that Michigan voters could ban racial preferences in university admissions. The Evenwel case questions whether a statewide redistricting plan that dilutes some votes while enhancing others is consistent with the principle of voter equality – the idea that each voter is entitled to cast a full and fair ballot, he says. The amendment recognizes “an enormous difference between a white majority disadvantaging minorities and a white majority acting to remedy past discrimination,” former University of California, Irvine, School of Law dean Erwin Chemerinsky told ProPublica.

North Carolina celebrated its new freedom to enact laws limiting racial minorities’ access to the franchise with what may be the most comprehensive voter suppression law in the nation. Blum believes it is unfair to use race or ethnicity as a criterion for government decisions, that it is just as wrong to use race to discriminate in a negative way as it is to use race to grant a preference or preferred status. According to researchers from Tufts University and the Harvard Business School, white Americans now feel that they face more discrimination they believe black Americans do. “Whites See Racism as a Zero-sum Game that They Are Now Losing,” the authors titled their paper.

Alabama recently coupled its voter ID law with a plan to shut down driver’s licenses offices in many majority-black communities, thus limiting these black voters ability to obtain the ID they are legally required to have in order to vote. A liberal critic of race-based affirmative action says schools in most of those states have been able to increase diversity using other means, principally by focusing on poorer households.

Conservative judges often claim original intent as a value, in opposition to allegedly “activist” judges who interpret the Constitution through a modern-day lens. Writing for himself and three other justices, Chief Justice John Roberts even claimed that these plans to enable black students to study alongside white students violated the Court’s landmark Brown v. In Fisher and Evanwel, the rest of the nation is likely to get a fairly clear picture of how eager the justices are to make Blum’s dream a reality.

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