Race And University Admissions: ‘Abigail Fisher v. University Of Texas II’

Abigail Fisher applied for admission to the University of Texas at Austin (UT) as part of the entering class of 2008. Little did she know that being rejected for admission under UT’s race-conscious program would bring her before the U.S. Supreme Court, not once, but twice. Fisher v. University of Texas II is scheduled to be heard in the court’s new term. The outcome will shape college and university admissions policies nationwide.

The issue of whether public colleges and universities can use race as an affirmative characteristic in admissions was first addressed by the Supreme Court in Regents of the University of California v. Bakke. There, an applicant to medical school was rejected in favor of students with less meritorious qualifications under a quota-type system that reserved seats for minority students. In a fractured and ambiguous decision, four justices, with Justice Lewis F. Powell making the fifth justice, first nixed that quota-like approach. However, four other justices, with Powell making the fifth once again, recognized that if an educational institution were trying to create a “diverse student body” to enhance students’ educational experiences, then race could be considered a positive “factor” in admission decisions.

In an effort to clarify the admissions muddle left by Bakke, and “after a series of conflicting lower court rulings were issued regarding the use of race to promote a diverse student body,” the court (in 2003) heard and decided two University of Michigan cases—one concerning the College of Literature, Sciences, and the Arts (LSA) and the other concerning the Law School. In the LSA case, the court rejected the use of race in a way that would virtually guarantee admissions, but in the Law School case it approved a complicated, largely inscrutable process of admissions which allowed Michigan to admit a “critical mass” of minority students so the individual minority students would not feel “isolated or as a spokesperson for their race.” What was allowable was still far from clear.

The lack of clarity caused the UT admissions policies to change several times over two decades. UT first used race and then abandoned race when it lost in court. At that point, the Texas legislature passed the so-called “Top 10 percent Law,” which granted in-state students, regardless of race, automatic admission to public universities if they finished in the top 10 percent of their Texas high school class. In its most recent admissions policy shift, UT continued to abide by that race-neutral law but supplemented it by using race in what it called a “holistic review” of applicants.

It was this approach, using race once again, which was challenged by Abigail Fisher. In what became Fisher v. University of Texas I, she lost in the lower federal courts, but upon appeal to the Supreme Court in 2013 the justices said that the Fifth Circuit had erred. It did not give the UT admissions process the proper level of “strict scrutiny” required whenever persons are treated differently because of race. Upon remand and after further review, the Fifth Circuit Court of Appeals once again found the current race-conscious admissions approach constitutionally acceptable. Fisher appealed a second time, and the Supreme Court agreed to hear her appeal once again; this became Fisher v. University of Texas II.

The technical legal question now is whether or not the Fifth Circuit’s “redo” strictly scrutinized UT’s latest race-conscious admissions program. What exactly is “strict scrutiny”? This is a court’s way of saying that since using racial categories may very well subject persons involved to unfair treatment, their use can only be countenanced if the reasons for using such a classification are “compelling.” In previous cases, the court has “deferred” to the university’s goal of admitting a “diverse student body” as a valid and compelling one. Therefore, unfortunately, the court is not likely to revisit that issue, although it should.

However, in addition, a second legal hurdle must be cleared by UT. The specific means used to create a diverse student body must be “narrowly tailored” to use the words of the court. “Narrow tailoring” means that the “reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”

Read: The Court Misses and Opportunity

Read: The Court Misses an Opportunity

On this issue, UT is in trouble. The Top 10 percent Law, which remains the law in Texas, has resulted in a substantial percentage of minorities (African American and Hispanic) being admitted to UT. That law is exactly the kind of race-neutral alternative that constitutes “narrow tailoring” because it produces diversity and its benefits but without the need to use racial preferences. In a bizarre twist, UT apparently convinced the Fifth Circuit that its “holistic” admissions process (which uses race as a component), is, nevertheless, still necessary to achieve diversity.

Why? Amazingly, UT says it is because the minority students admitted under the top 10 percent law do not create the “quality” of diversity that UT desires. In a string of largely unsubstantiated propositions, UT appears to be arguing that students who are admitted via the Top 10 Percent Law come largely from schools where racial minorities predominate and, therefore, contribute only one type of diversity. UT believes that minority students who have been successful in predominately white schools, but have not made the 10 percent cut, contribute another kind of diversity. The holistic policy, it argues, allows members of this latter group to be admitted.

What should the Supreme Court do with this appeal? First, it is time for the justices to insist that public colleges and universities produce convincing evidence that a diverse student body produces enough clear, compelling benefits to justify race-conscious admissions. The court should retreat from its policy of “deferring” to universities on this issue. Secondly, if there are workable, narrowly-tailored, race-neutral admissions policies that produce a diverse student body, the court should demand that these policies be used without exception. The court should remind public colleges and universities of what Justice Clarence Thomas warns: “The Constitution abhors classifications based on race … [because] every time the government places citizens on a racial register and makes race relevant to the provision of burdens and benefits, it demeans us all.”

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

Keep Your Hands Off My Raisins: Court Invalidates Antiquated Raisin Grab

Laura and Marvin Horne are raisin farmers. Early one morning in 2002, a truck appeared at their business–and the drivers demanded a whopping 47 percent of their raisin crop. The truck was sent by the federal government, and those demanding Horne’s raisin crop claimed to be operating under a “marketing order” first put in place in 1937 as part of President Franklin Roosevelt’s effort to shore up agricultural prices. Amazingly, this antiquated scheme lasted for over 65 years—well past the agricultural crisis of the Great Depression.

By 2002, the Hornes had endured enough of these raisin grabs. They refused to turn over what amounted to nearly half of their crop. The federal government assessed a fine of $480,000 for the missing raisins and another $200,000 in civil penalties against the Hornes. The Hornes fought the government through the courts and finally landed in the U.S. Supreme Court.

The Agricultural Marketing Agreement Act of 1937 allowed the secretary of agriculture to issue marketing orders to stabilize market prices for certain agricultural products, including raisins. Under this order, raisin producers could be forced to relinquish a portion of what they produced to the government without any compensation. The percentage of the crops that had to be relinquished in a given year was determined by the Raisin Administrative Committee. The plan was that the government would keep these reserve raisins off the domestic market—a reduction in supply—to help to shore up prices. This system was originally part of the New Deal aimed at aiding farmers whose agricultural products had fallen steeply in price. Unfortunately, as with most government programs, it remained in effect despite the passing of the immediate economic emergency which spawned it.

In a recent decision, Chief Justice John Roberts and the majority agreed with the Hornes. Roberts stated that the Fifth Amendment requires that property cannot be taken by the government for public use without the original owner being properly compensated. Part of the Fifth Amendment, often dubbed the “takings clause,” has been interpreted to mean that when the government takes a private citizen’s property for a public purpose—such as, for example, for the building of a road—the owner must be paid a reasonable amount for the seized property. Here, even though the property (raisins) could be regarded as having been taken for a public use—the stabilizing of agricultural prices during an economic crisis—there was virtually no compensation being paid to raisin growers like the Hornes.

In a fitting tribute to the 800th anniversary of the great document of English liberties—Magna Carta—Roberts traced the origins of the Fifth Amendment’s takings clause to that charter and concluded that “the reserve requirement imposed by the Raisin Committee is a clear physical taking. Actual raisins are transferred from the growers to the Government. Title to the raisins passes to the Raisin Committee. The Committee disposes of what become its raisins as it wishes, to promote the purposes of the raisin marketing order.”

The government unsuccessfully argued that the takings clause did not apply to personal property, but the court roundly rejected that contention. Furthermore, the Department of Agriculture claimed that if the government successfully sold the seized raisins as exports, for example, growers like the Hornes might receive a residual payment which would amount to compensation. Again, the court said that the mere possibility of a residual payment was not equivalent to compensation. It was simply too contingent and indeterminate.

Other U.S. citizens are still subjected to a bevy of similar antiquated, unnecessary regulations. They should make ample use of the court’s holding here to challenge these governmental restraints and reintroduce the fresh air of freedom into markets for goods and services.

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Equipping You With The Truth

Here’s How The Supreme Court Should Decide The Same-Sex Union Cases


The U.S. Supreme Court has agreed to hear four cases involving the issue of same-sex unions. These cases come from the Sixth Circuit, where the U.S. Appeals Court had earlier upheld Michigan’s definition of marriage as limited to one man and one woman. That decision (DeBoer v. Snyder) created what is called a “conflict among the Circuits” and forced the Supreme Court to address the issue.

The court will be likely to issue a decision in June 2015, with arguments in April. There are two questions that the court has agreed to take up. Does the 14th Amendment require a state to license a marriage between two people of the same sex? Secondly, does that same Amendment “require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”

How should the Supreme Court decide these cases? Specifically, the justices should reject the recent rash of federal court decisions that have, for the time being, forced same-sex marriage on the citizens of 31 states who had democratically chosen to define marriage as between one man and one woman. The court should follow the lead of Justice Clarence Thomas, who recently warned his brethren in a different but related context that they should “show the appropriate respect we owe the states as sovereigns and to the people of those states.” This is a call for the court to unapologetically take a stand for federalism—governmental power shared between the national government and the state governments. Federalism is a principle that has been at the very heart of our American government from the beginning. James Madison described it this way in Federalist # 45: “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the state governments, are numerous and indefinite. … The powers reserved to the several states will extend to … the lives, liberties, properties of the people; and the internal order, improvement, and prosperity of the state.” This is the federalism endorsed by the Founders, and the court should restore it to its proper place in American polity by allowing states and their citizens to make up their own minds about same-sex unions.

Such a stance does not require the court to do anything more than depend upon its own history in this regard. The federal judiciary has largely left the definition of what constitutes marriage—its contours, moral limits, and rationale—to individual state governments. This “hands-off” approach has not resulted in a stagnant status quo. It has not prevented some states from gradually altering their marriage laws over time. States throughout the nation have dealt with a variety of difficult and highly charged questions having to do with marriage. Legislatures have had to address questions concerning marriage such as what shall be the age of consent to marry (marital consent laws), whether a medical exam or waiting period is required, whether “common law” marriage is recognized, whether blood relatives may marry (consanguinity laws), whether one may be married to more than one person at one time (bigamy laws), how a marriage may be dissolved (divorce laws), as well as the current hot-topic—whether or not marriage partners can be of the same sex. State legislators are experienced at considering the benefits and costs of changes to this important institution. They are used to weighing the sentiments, convictions, and apprehensions of their constituents and responding accordingly. Our Founders wisely left such matters to the individual states acting through their chosen representatives because those state legislators were closest to the cultural pulse of the people affected. The Supreme Court should do the same.

In addition to a respect for state governments and their citizens, the court should practice self-restraint here if for no other reason than the centrality of traditional marriage to the well-being and stability of American society. The court should not lend its authority to those who are intent upon jettisoning traditional marriage like so much unwanted cargo. The justices should resist those who want to make marriage into an “anything goes” institution guided by unfettered personal preference. In short, they should be apprehensive about sanctioning a fundamental change in one of the longest-standing institutions of Christian Western civilization simply because of a current shrill campaign that falsely claims its origin is in the American tradition of equality.

The justices ought to heed the admonition of Edmund Burke in “Reflections on the Revolution in France.” He writes: “When ancient opinions and rules of life are taken away, the loss cannot possibly be estimated. From that moment we have no compass to govern us; nor can we know distinctly to what port we steer.”

The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom

Conflict Between The Circuits: Gay Marriage Back On The Supreme Court’s Table

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A month ago, the U.S. Supreme Court refused to hear a collection of cases that raised the question of traditional marriage vs. same-sex unions. Now, a Sixth Circuit Court of Appeals decision may have changed all of that. By voting 2-1 to uphold same-sex marriage bans in four states under the appellate jurisdiction of the Sixth Circuit—Kentucky, Michigan, Ohio, and Tennessee—the panel has now created a conflict between the circuits. This conflict exists because four other federal circuit courts had found bans on same-sex unions to be unconstitutional. We know now, at least according to statements from Justice Ruth Bader Ginsburg, that a lack of a conflict between the circuits was the reason the Supreme Court balked at hearing the earlier cases from five other states.

The Sixth Circuit majority opinion in DeBoer v. Snyder, written by Judge Jeffrey Sutton, is worth reading because it carefully discusses the major points of disagreement. The key question is whether “the 14th Amendment prohibits a State from defining marriage as a relationship between one man and one woman.” Judge Sutton zeroes in on the essential issue:  “Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic process?” The majority answer is quite clear. Today’s marriage laws should be allowed “to stand until the democratic processes say they should stand no more.”

Sutton’s opinion uses a “rational basis” review in assessing the marriage laws of Michigan, Ohio, Kentucky, and Tennessee. This is a common approach followed by courts to evaluate if state laws pass constitutional muster. Basically, the court must determine if there are good reasons for a state to protect traditional marriage. Does the law “rationally advance a legitimate government policy?” Yes, clearly, says the opinion. The states in question established “ground rules” needed to create “stable family units for the planned and unplanned creation of children.”  The court continues, saying that “one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them.”

The court acknowledges that in this day and age, that is not the only way some view marriage. Yet, the fact that there are other more expansive or inclusive views of marriage does not dictate that states “suddenly must look at this policy issue in just one way on pain of violating the Constitution.” Sutton later writes that “[o]ne of the key insights of federalism is that it permits laboratories of experimentation—accent on the plural—allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time.” Sutton writes that the States are wise to exercise a “Burkean sense of caution” when it comes to redefining such a fundamental and long-standing institution as marriage–and that, ultimately, such decisions are better left to “elected legislators, not life-tenured judges.”

In DeBoer v. Snyder the court addresses the claim, sometimes raised by supporters of same-sex unions, that the resulting state laws or constitutional initiatives succeed because of “animus” against homosexuals; and those motivations make the resulting bans on gay unions constitutionally suspect. Judge Sutton reminds readers that assessing the motivations of millions of citizens who voted for gay marriage bans in Michigan (2.7 million), Kentucky (1.2 million), Ohio (3.3 million), and Tennessee (1.4 million) “strains judicial competence.” Some favored the ban for some reasons, others for other reasons; but the courts are ill-suited to delve into the complicated “aggregation of factors” that motivates voters.

It is likely that the Supreme Court will abide by its own rules and accept one or more of the traditional marriage/same-sex union cases for review. Then the question becomes whether there will be five justices who: 1) graciously defer to democratically determined outcomes on this issue; 2.) respect American federalism, which recognizes that states retain the power to act in this highly-charged area; and 3) will be reluctant to judicially remake two of the central institutions of organized society: marriage and family.

Editor’s Note:  The Chief Judge of the Sixth Circuit, the Honorable Alice Batchelder, is a trustee of Grove City College.

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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom

Supreme Court Slows Obamacare’s Abortion Agenda

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The Supreme Court waited until the last day of its term to issue its highly anticipated opinion in Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties.

The narrow 5-4 decision negates the “contraceptive mandate” of the Health and Human Services (HHS) regulations issued to implement the Affordable Care Act (i.e., Obamacare). Heretofore, these regulations required the owners of so-called “closely held” business enterprises to include insurance coverage for abortion-inducing drugs and devices, even when that kind of coverage violated their religious convictions. The holding is an important victory for religious liberty and a blow to pro-choice advocates who painted opposition to the mandate as a women’s rights issue.

Justice Samuel Alito delivered the opinion of the high court with his usual clarity. The court’s majority relied upon the Religious Freedom Restoration Act (RFRA) which Congress passed in 1993 and which President Clinton signed into law. The RFRA requires the Supreme Court to use a particular three-point approach to religious liberty cases involving the federal government. If federal governmental action: 1) substantially burdens the free exercise of religions; 2) and its purpose is not compelling, or; 3) if it fails to use the least restrictive means to its end, then the RFRA brands it illegal. Justice Alito’s opinion worked its way through the requirements of the RFRA.

The court first found that the federal contraceptive mandate imposed a “substantial burden” on the religious exercise of the two families, the Hahns and the Greens, owners of the companies in question. If they refused to comply with the HHS contraceptive fiat, they faced fines for “as much as $1.3 million per day, or about $475 million per year.” It was either pay up or forfeit one’s religious beliefs. Alito said: “If these consequences do not amount to a substantial burden, it is hard to see what would.”

Next, the court assumed without deciding that the government may have had a “compelling interest” in issuing the regulations. It stresses that it was “unnecessary to adjudicate this issue.”

Thirdly, since the federal government had “already devised and implemented a system that seeks to respect the religious liberty of religious non-profit corporations while insuring employee access to contraceptives,” President Obama and his HHS had a “less restrictive means” of achieving their end; but they failed to make it available to for-profit enterprises owned and operated by persons with religious convictions. Therefore, said the majority, “The contraceptive mandate, as applied to closely held corporations, violates the RFRA.”

Justice Alito cogently refutes one of the central claims of the government’s opposition to Hobby Lobby and Conestoga. That assertion was that corporations do not have free exercise of religion rights. First, Alito explained that the language of the RFRA refers to the religious liberty of “persons” being protected from federal proscription. Federal law unambiguously includes “corporations” in the definition of “persons.” Secondly, “protecting the free exercise rights of corporations like Hobby Lobby, [and] Conestoga … protects the religious liberty of the humans who own and control these companies.”

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The views expressed in this opinion article are solely those of their author and are not necessarily either shared or endorsed by WesternJournalism.com.

This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom