Three big cases remain outstanding on the SCOTUS docket: one on abortion, one on immigration, and one on affirmative action. The last one was just handed down moments ago.
FISHER v UNIVERSITY OF TEXAS
Facts of the case
In 1997, the Texas legislature enacted a law requiring the University of Texas to admit all high school seniors who ranked in the top ten percent of their high school classes. After finding differences between the racial and ethnic makeup of the university’s undergraduate population and the state’s population, the University of Texas decided to modify its race-neutral admissions policy. The new policy continued to admit all in-state students who graduated in the top ten percent of their high school classes. For the remainder of the in-state freshman class the university would consider race as a factor in admission.
Abigail N. Fisher, a Caucasian female, applied for undergraduate admission to the University of Texas in 2008. Fisher was not in the top ten percent of her class, so she competed for admission with other non-top ten percent in-state applicants. The University of Texas denied Fisher’s application.
Fisher filed suit against the university and other related defendants, claiming that the University of Texas’ use of race as a consideration in admission decisions was in violation of the equal protection clause of the Fourteenth Amendment. The university argued that its use of race was a narrowly tailored means of pursuing greater diversity. The district court decided in favor of the University of Texas, and the United States Court of Appeals for the Fifth Circuit affirmed the district court’s decision. Fisher appealed the appellate court’s decision.
Question
Does the Equal Protection Clause of the Fourteenth Amendment permit the consideration of race in undergraduate admissions decisions?
SCOTUS Decision
Affirmed. 4-3.
This is decidedly a compromise; Kennedy’s opinion says that UT must continue to reassess its need for any kind of race-conscious affirmative action, and that it is justified only by a robust record showing that other means of addressing diversity concerns have failed. But there is also a pretty meaningful shift away here from the trajectory of Fisher I. That case faulted the lower court for giving too much deference to the judgments of the university; this decision affirmatively states that “Considerable deference is owed to a
university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”
From end of majority opinion: “The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admission policies.”
This is, I think, the first time Kennedy was on the pro-affirmative action side.
Strong dissent from Alito.which begins :””Something strange has happened since our prior decision in this case…”. 50 page dissent is being read by Alito.
SCOTUS had the Fisher case in 2013. One suspects Roberts and Alito now wish they hadn’t punted it back to the 5th Circuit. When Fisher I came through, this happened:
The peanut gallery:
Fisher has spent about eight years trying to dismantle affirmative action at a school she wasn’t qualified to get into anyway
— Adam Serwer (@AdamSerwer) June 23, 2016
UNITED STATES v TEXAS
Facts of the case
In June 2012, the Department of Homeland Security (DHS) implemented the Deferred Action for Childhood Arrivals (DACA) program, along with criteria for determining when prosecutors can choose not to enforce immigration laws under DACA. People who qualify for DACA may apply for work authorization. In 2014, DHS established a similar process for parents of citizens and lawful permanent residents as well as expanding DACA by making more people eligible. The new program was known as the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.
Texas and other states sued to prevent the implementation of DAPA and argued that it violated the Administrative Procedure Act because it had not gone through the notice-and-comment process, and because it was arbitrary and capricious. The states also argued that DAPA violated the Take Care Clause of the Constitution, which clarifies the President’s power. The district court held that the states had standing to file the suit and temporarily enjoined the implementation of DAPA because the states had established a substantial likelihood of success on the notice-and-comment claim. The U.S. Court of Appeals for the Fifth Circuit affirmed and held that the states had standing as well as a substantial likelihood of success on their substantive and procedural claims.
Question
- Do states that provide subsidies to persons who are granted deferred action have standing to sue because the new guidelines will lead to more persons being eligible for deferred action?
- Is the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program arbitrary and capricious?
- Did DAPA violate the Administrative Procedure Act by failing to go through the notice-and-comment procedure?
- Does DAPA violate the Take Care Clause of the Constitution?
SCOTUS Decision
The per curium opinion in its entirety reads “The judgement is affirmed by an equally divided court”
This means that Texas has standing and the case can go forward. When decisions are tied, this means that it has precedent in that circuit only and not nationwide.
While some outlets are reporting that the court’s action essentially kills the programs, it’s more accurate to say that it blocks them presently while their future remains uncertain. (It also has no effect on Obama’s original deferred action program for DREAMers announced in 2012.)
Since the split left in place a nationwide injunction that was unilaterally issued by a federal judge in the Fifth Circuit on Obama’s immigration programs—Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and Deferred Action for Childhood Arrivals (DACA)—that injunction will almost certainly invite legal challenges in other circuits.
It is a loss, to be sure, but not a permanent one.
And although not one of the big three, the Dollar General case caught my eye.
DOLLAR GENERAL v MISSISSIPPI BAND OF CHOCTAW INDIANS
Samantha Bee can give the background:
Facts of the case
Dollar General Corporation (Dollar General) operates a store on land held in trust for the Mississippi Band of Choctaw Indians (Tribe). The store operates pursuant to a lease and business license agreement with the Tribe. In the spring of 2003, John Doe, a 13-year-old member of the Tribe alleged that he was sexually molested by the store manager, Dale Townsend, while he was working at the store as part of an internship program that the Tribe runs and in which the Townsend agreed to participate.
In 2005, Doe sued Townsend and Dollar General in tribal court. Both defendants moved to dismiss the case for lack of subject matter jurisdiction, and the tribal court denied the motions. The Choctaw Supreme Court upheld the denial of the motions by finding that the U.S. Supreme Court’s decision in Montana v. United States, which allowed a tribe to regulate the activities of nonmembers who enter into a consensual arrangement with the tribe, applied in this case. The defendants then sued the Tribe in federal district court and sought injunctions to stop the suit in tribal court. The district court granted the injunction for Townsend but not for Dollar General because the company had failed to carry its burden to show that the Montana decision did not apply in this case. The U.S. Court of Appeals for the Fifth Circuit affirmed.
Question
Does a tribal court have jurisdiction to adjudicate civil tort claims against nonmembers?
SCOTUS Decision
The per curium opinion in its entirety reads “The judgement is affirmed by an equally divided court”
Meaning the child molester cannot be tried in the Indian court, but Dollar General can.