Recommended Reading: the future of affirmative action

Affirmative action, for better or for worse, may come to an end in the United States during the Supreme Court's next term. On February 21, the Court agreed to hear arguments in the case of Fisher v. University of Texas, in which Abigail Noel Fisher, a former applicant to the University of Texas, contends that her denial of admission was based on race (she is white) and that minority students with less-impressive academic credentials were admitted instead of her due to the influence of race-based affirmative action on the university's admissions process. The issue at hand is whether the Fourteenth Amendment's assurance of "equal protection under the law" supports or invalidates the system in place at the University of Texas in particular and race-based affirmative action in general, and whether standing jurisprudence on the issue should be re-affirmed or discarded as a consequence.

Obviously, this case has the potential to have a profound impact on higher education, since affirmative action could be definitively ruled unconstitutional, radically impacting admissions procedures at colleges and universities throughout the United States. Since the Supreme Court is much more right-leaning than it was the last time this issue was brought before the justices (in the 2003 case of Grutter v. Bollinger which upheld, affirmative action at the University of Michigan, with minor alterations), that potential is now much closer to a reality. Fisher v. University of Texas may be the most important upcoming Supreme Court case after the challenge to the Affordable Care Act and President Obama's health care reform agenda.

Therefore, as you can imagine, everyone from established journalists to opinionated pundits have weighed in on affirmative action both in the aggregate and with respect to the specific case of Ms. Fisher. Here's a selection of some of the better pieces, all of which are worth reading if you're interested in understanding this important issue from all sides:

"Affirmative action review due next term"
Lyle Denniston, SCOTUSblog
SCOTUSblog, as always, is the best source for a summary of the case, a history of the issue at hand, and a discussion of the different sides, their arguments, and how the Court will likely react.

"Room for Debate: Beyond Race in Affirmative Action"
Various contributors, New York Times
The New York Times provides a great collection of contributions from law professors, authors, and even a theoretical physicist in a special "Room for Debate" section devoted purely to the controversy surrounding Fisher v. University of Texas and affirmative action in general. Six individuals comment on the politics, history, and merits of each side of the issue and provide a variety of unique perspectives.

"College diversity at risk"
Lee C. Bollinger, Washington Post
Bollinger is the president of Columbia University and served as a defendant in the 2003 affirmative action cases Grutter v. Bollinger and Gratz v. Bollinger. He argues in this op-ed, which came out before the Supreme Court decided to hear arguments in Fisher v. University of Texas, that affirmative action is essential to preserving diversity in college campuses, and that the court should not only refuse to hear the case, but that it should re-affirm its prior rulings in favor of race-based affirmative action.

"Bad Marriage: Why the Supreme Court Should Stay Out of Affirmative Action"
Richard Thompson Ford, Slate Magazine
It's obvious that Ford supports affirmative action, but his argument that the Supreme Court should stay out of such a politically-charged and controversial issue is compelling nonetheless. He suggests that the Court's previous decisions on affirmative action "have been a disaster: They haven’t made university admissions any fairer, and they’ve sown confusion, resentment, and frustration," and, in comparing the debate to "a couples therapy session in a dysfunctional marriage," characterizes the Court as "an incompetent therapist, [which] has encouraged anger and distrust while making it harder to confront the root causes of disagreement."

"Will the Supreme Court End Affirmative Action?"
Dan Slater, The Daily Beast
Slater writes in reaction to the outcries from supporters of affirmative action over the Supreme Court's decision to hear the Fisher case and argues that precedent and Court protocol suggest that the justices won't be so bold as to strike down something as influential and mainstream as affirmative action. He says that the combination of a lack of both disagreement among the lower courts and demonstrable harm to Ms. Fisher (she already attended and graduated from Louisiana State University upon being denied admission to the University of Texas and is, essentially, only seeking a refund of her $100 application fee) all but guarantee that the Supreme Court won't overturn decades of precedent to make a statement on affirmative action.

Jeffrey Toobin brings Ninth Circuit decision on Proposition 8 down to earth

Jeffrey Toobin, staff writer for The New Yorker on legal affairs, wrote a recent piece celebrating the civil rights progress made by the Ninth Circuit in its ruling striking down California's Proposition (the controversial ballot measure banning same-sex marriage), but he simultaneously clarified the decision by arguing that the specific nature of Judge Richard Steinhardt's decision made it far less sweeping (and therefore less monumental in its impact on the gay rights movement) than many had been led to believe.

Toobin suggests that the Ninth Circuit's decision was carefully "tethered" to the "unique facts" of Proposition 8 and this particular challenge to its constitutionality. He writes that Judge Reinhardt "did not rule, as he was surely tempted to do, that there is a constitutional right to same-sex marriage, enforceable in every state in the union." Rather, he tailored his ruling to an issue specific to Proposition 8, which is that the people of California voted to strip a group of citizens of their rights, as guaranteed by the state constitution. It was primarily that fact, and not the fact that same-sex couples be allowed or not allowed to marry that drove the Ninth Circuit's decision.

Toobin says that Judge Reinhardt "crafted a narrow ruling, one that is unlikely to draw the attention of the Supreme Court of the United States." The conservatives on the high court may agree with him, but they don't necessarily form a majority of the justices. How this issue is resolved remains to be seen.

Appeals Court upholds (correctly) the unconstitutionality of Proposition 8

In a landmark decision today, the United States Court of Appeals for the Ninth Circuit upheld a 2010 decision made by the Federal District Court of the Northern District of California which determined that Proposition 8 (a 2008 ballot measure approved by California voters which amended the state constitution to ban same-sex marriage - something which was previously allowed) was unconstitutional. The 2-1 ruling was made by a panel of judges from the circuit court, and it remains to be seen whether the proponents of Proposition 8 will request to be heard by the full court or appeal directly to the Supreme Court. If they decide the latter, there is little doubt that the highest court in the land will take the case and finally rule on an issue that has divided our politics and our society for decades.

The nullification of Proposition 8 by both the district and, now, circuit courts is based on the determination that the decision by California voters to deny same-sex couples the same classification with respect to "marriage" as heterosexual partners violated the Fourteenth Amendment to the U.S. Constitution. The ruling reads:

"All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of 'marriage,' which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution [particularly the Fourteenth Amendment] simply does not allow for 'laws of this sort'...the People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry."

Interestingly, the court's ruling in this case only applies to the specific circumstances surrounding Proposition 8 and California. The court was careful to point out that its ruling has no bearing on other states and on the broader question of the ultimate constitutionality of same-sex marriage in general (or any limitations thereof). This adds to the virtual certainty that the Supreme Court will hear the case so as to settle the question once and for all.

I am of the opinion  that Proposition 8 and, indeed, any attempt to outlaw same-sex marriage is a blatant violation of the Fourteenth Amendment and its mandate that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...nor deny to any person within its jurisdiction the equal protection of the laws." This "Equal Protection Clause" has been called an embodiment of the Declaration of Independence's proclamation that "all men are created equal," and has served as one of the Constitution's most essential provisions since its addition to the document in 1868. As with most written law, however, its meaning and purview have been subject to continuous interpretation. Immediately following its passage, the Equal Protection Clause aided in the removal of various segregationist laws which banned African Americans from participating in basic civic functions. Many forms of segregation, however, remained intact, under the doctrine of "separate but equal" until it was thrown out by the Supreme Court in the mid 20th century.

The legal battle over same-sex marriage, in my view, is a modern day version of the civil rights struggles which ensued following the passage of the Fourteenth Amendment after the Civil War and beyond. In essence, we have created a "separate but equal" doctrine for marriage with the institution of civil unions, domestic partnerships, and other so-called "marriage equivalents" for same-sex couples.

In the 1954 Supreme Court decision in Brown v. Board of Education which ended school segregation and determined that "separate but equal" was illogical and unconstitutional, the court stated that "separate educational facilities are inherently unequal," which highlighted the essence of why that doctrine was so flawed. Separation implies inequality when it comes to elements as essential to our society as education, facilities usage - and marriage. Why separate when there is no practical reason for doing so unless one group is viewed as lesser than the other? The Supreme Court in Brown wrote that "the policy of separating the races is usually interpreted as denoting the inferiority of the negro group." I would argue that giving marriage licenses to heterosexual couples while granting civil unions to homosexual couples (or denying any legal recognition of their partnership at all) denotes a similar inferiority of the "homosexual group," (to use the same terms). Furthermore, the Ninth Circuit seems to agree when it writes that "Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples."

Today's decision marks a milestone in the ongoing legal battle for equal rights in this country, not only for same-sex couples wishing to marry, but for all people denied "equal protection of the laws" in one form or another. The constitutional questions involved in this case are as large as the controversy surrounding the issue it seeks to address. Let's hope that when the issue of same-sex marriage eventually reaches the Supreme Court that the justices, like in Brown, once again position themselves on the correct side of history.

To read the full opinion on Proposition 8 by the United States Court of Appeals for the Ninth Circuit click here.

When public health and the First Amendment clash on college campuses

A controversy that has plagued the campuses of Catholic colleges and universities for decades has reached a new level recently as the Obama administration is putting pressure on these institutions to cover the costs of birth control in their student health plans in accord with federal regulations. For years, Catholic institutions of higher education have stood against state and federal laws regarding the provision of contraceptives and related services to students due to deeply-held religious beliefs which consider it "morally wrong to prevent conception by any artificial means, including condoms, IUDs, birth control pills and sterilization." Administrators at the likes of Fordham and Georgetown claim that their universities have the right to First Amendment religious freedom protections and that they should not have to violate spiritually-motivated moral guidelines because of government-mandated health care regulations. The Obama administration, on the other hand, is relying "on the recommendations of the Institute of Medicine, an independent group of doctors and researchers that [has] concluded that birth control is not just a convenience but is medically necessary "'to ensure women’s health and well-being.'" The result is a high-profile clash between public health concerns and the First Amendment with no clear outcome.

A recent Supreme Court decision, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, (written about here in The New York Times) granted an exception to religious institutions with respect to fair hiring and employment discrimination laws, arguing that "churches and other religious groups must be free to choose and dismiss their leaders without government interference." If the First Amendment extends into the realm of who can be hired and who can be fired by a religious organization, one has to ask why it can't also, therefore, give Catholic colleges and universities (private institutions) the right to decide what kinds of medical care to provide their students.

For the record, I see a difference between the waiver of select anti-discrimination regulations to allow churches to choose who their ministers are and allowing religious dogma to trump documented and proven public health concerns, but neither the Supreme Court (nor, in an objective reading, the Constitution, for that matter) may agree. This is a classic case of how far we are willing to extend the broad protections of the First Amendment - protections, with respect to speech, which have already been granted (for better or for worse) to epithet-spewing protesters at the funerals of veterans and to corporations wishing to play a role in the political process. The question, in this case, is: how many rules that we expect the rest of society to follow do we want to bend - or break - in the name of religious freedom? I don't know the answer, and it's hard to tell how this issue will be resolved. For now, however, the battle continues to rage - on college campuses and elsewhere.

POLITICO: "Citizen's United v. FEC decision proves justice is blind--POLITICALLY"

As an avid follower of politico.com, I get unusually excited about opinion contributers. This article should be intriguing to all who are interested in Constitutional Law and the future of the Supreme Court in this country. Only week after Nina Totenberg's enlightening Common Hour on the Supreme Court, this article by Jeffrey Rosen provides another facet to Totenberg's discussion; how political knowledge can benefit a politically naive court.

Rosen argues that today's Supreme Court is out of the touch with the nature of today's politics as well as how our country functions politically. He writes that the Supreme Court is essentially naive about how their decisions affects our country politically, and most importantly how America's feel about their politial system. Rosen addresses the two year anniversary of the Supreme Court's Citizen's United v. FEC decision, and writes that the case was "remarkable for its combination of judicial overconfidence and political cluelessness".

Start your day with a little judicial controversy. And some orange juice.

Supreme Court to hear oral arguments today regarding an important environmental law case

The Supreme Court heard oral arguments this morning in Sackett v. EPA, an environmental law case in which Mike and Chantell Sackett of Idaho are suing the Environmental Protection Agency (EPA) over an alleged violation of their Fifth Amendment right to due process. When the Sacketts attempted to build a house on property that they purchased in 2005, the EPA determined that what they owned was a wetland, protected under the Clean Water Act, and issued them with an Administrative Compliance Order (ACO) as a means of halting their construction without harsh penalties and fines. Since ACOs may not be challenged in court, the Sacketts sued, claiming that the EPA was denying them due process.

One the surface, this seems like an obvious complaint on the part of the Sacketts, but I examined this issue further in a paper that I wrote for Prof. Rich Pepino's "Environmental Law" course this past semester, and saw that not only does the EPA have a strong case supported by both the law and the facts (and favored by every lower court that has ruled on this issue), but that the implications of a Supreme Court decision in support of the Sacketts would be devastating to the EPA's regulatory capabilities and, indeed, the ability of the federal government as a whole to enforce all sorts of laws.

ACOs are perfectly constitutional because they do not contain penalties in and of themselves. Instead, should the Sacketts violate the EPA's order to stop building their house, the EPA will proceed with a suit against them in federal court - an action which does contain the possibility of penalties, but which the Sacketts may also challenge in the courtroom, thereby preserving their right to due process. Naturally, the EPA uses ACOs as a frequent tool to avoid costly and complicated legal battles. If someone is accused of violating environmental laws, the agency essentially asks them to stop their violation, allowing the violator to come into compliance with the law instead of facing civil or criminal charges in court. A Supreme Court decision in favor of the Sacketts (aside from being incorrect, in my opinion) would seriously disrupt the abilities of the EPA and other government agencies to enforce the law through means other than the costly, time-consuming, and complex federal court system.

SCOTUSblog, an online publication of Bloomburg Law which tracks and analyzes the Supreme Court and its decisions, provides a preview of Sackett v. EPA which, unfortunately, suggests that the Court may side with the Sacketts and strike a severe blow to the EPA. "It is quite rare for the Court to step in under those circumstances, and the temptation is strong to conclude that the Court has granted review in order to reverse." writes the blogger. "The Court has grown somewhat suspicious of the grasp of federal agencies — including the EPA," and this case may give it the opportunity to act where it has been unable to do so in the past. An observer of the argument has also posted that the lawyer for the EPA has been buckling under pressure from the justices - namely Samuel Alito - with respect to EPA's treatment of the Sacketts. The title of his post, "A weak defense of EPA," says it all. 

This case involves a complex and, I think, fascinating legal question with far-reaching implications. Regardless of how the Supreme Court rules, the impact on federal law enforcement with respect to, and apart from, environmental regulations, will be significant.