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Today in the Community: October 17, 2011

Today in the Community we are discussing the Establishment Clause.  The Court today relisted for the third time two petitions (here and here) involving a Utah program that posts crosses at the locations where highway patrol officers are killed.  Recent decisions involving the Establishment Clause include cases addressing the Mojave Cross and the Summum religion.

It is unclear why the cases have been reconsidered multiple times.  The Court could be formulating a question to be decided, or one or more members of the Court could be writing a dissent from the denial of certiorari.  But in all events, the issues certainly merit discussion.

As a reminder, instructions on how to participate are available here.

Here are five of our favorite comments from Friday:

Curt Levey

I agree with Aaron’s analysis if not his definition of “race-conscious.” Fisher gives the five Justices who are suspicious of racial preferences an excellent opportunity to push universities closer to a middle ground in which they consciously seek racial diversity through plans like the Top Ten Percent with little or no explicit use of race. Grutter already requires universities to give “serious, good faith consideration” to the former – “race-neutral alternatives” – and the five Justices can’t be happy that the Fifth Circuit and trial court effectively gutted that requirement.

The middle ground approach should be particularly appealing to Justice Kennedy. Although his vote is not need to grant cert, the four conservative Justices won’t vote to take the case unless they’re convinced Kennedy’s likely controlling opinion will be a step in the right direction. There’s at least three reasons to believe that it will.

One, as Roger notes, the evidence indicates that most of the nation’s leading universities are treating Grutter’s limits on racial preferences as cosmetic rather than substantive, so any post-Fisher change on the ground can only be for the better. Two, the Court is likely to strike down UT’s current race-based system, an outcome which will push universities away from explicit reliance on race even if the language in Kennedy’s opinion is no better than O’Connor’s language in Grutter. And three, the post-O’Connor Court has already moved towards a less deferential approach to the use of race in admissions in Parents Involved v. Seattle (striking down race-based admissions in two public school systems) and, at very least, a Fisher decision will serve to clarify that the shift applies to higher education as well.

In sum, the four most conservatives Justices are likely to take Fisher because, both in the law and on the ground, the decision will provide at least an incremental shift away from the explicit use of race in admissions.

Stuart Taylor

The Court should put teeth into “narrow tailoring” of affirmative action in admissions, and Fisher provides an excellent opportunity to do so. Our reasons are largely empirical. We are submitting an amicus brief pointing to important research about racial preferences since Grutter and Gratz.
–Before-and-after comparisons show that contrary to Grutter’s stated intent, universities have used it as a green light to make racial preferences larger and more mechanical.
–Very strong evidence has emerged in legal education, science education, and academic training that large racial preferences harm their intended beneficiaries and undermine learning and performance by causing them to earn very low grades, with other bad consequences.
–California’s Proposition 209 created a gigantic natural experiment in the effect of banning racial preferences in the nine-campus University of California system. The results included big jumps in black and Hispanic grades, tenacity in science majors, and higher graduation rates. By the 2nd year of implementation, the UC system graduated more black students than ever before. The Hispanic numbers were even higher. The UC system became more integrated. And minorities became more likely to accept offers of admission from Berkeley, UCLA, and most other UC campuses.
The University of Texas racial preferences are enormous – even larger than t other schools. The 5th Circuit decision in Fisher made a mockery of narrow tailoring by endorsing preferences in pursuit of racial diversity in every classroom and racial proportionality indistinguishable from the “racial balancing” that Grutter condemned. The Court should reverse.

Brian Davis

I can agree in principle with Edith Jones that the University’s rating process for selecting non-top-10% admits leaves too much to admission officals’ subjective discretion. But I can also flip the top-10%-auto-admit argument on its head. Texas is a strong legislative State. It’s perfectly reasonable to believe that the Legislature, upon enacting and more recently modifying the top 10% statute without addressing the rest of the admissions process, fully cognizant of Grutter in the meantime, reached the optimum available compromise in allocating scarce resources. If that’s correct, then what ethnically “fairer” result would the Court expect to achieve by collapsing public undergrad higher ed (Grutter) into public contracting (Adarand) as a matter of federal Equal Protection Clause doctrine? Fisher has a beef. But it’s not a quota.

David LeRoy

It seems likely the Court will take this case in light of the animosity towards basing programs on race in light to their Seattle ruling. In this particular case, Texas adopted the TTP program which is, by all accounts, race-neutral and achieves the State interest of diversity in state college admissions in 81% of the freshman student body. This indicates that a race-neutral policy can achieve a State’s interests. Therefore, it begs the question why the State should introduce race as even a tangential factor for the remaining 19% of the freshman student body. Understanding, in light of Gutter, that college admissions offices CAN consider race, among other factors, I also do not fathom why they SHOULD consider race (among other factors) when they already have a race-neutral program that is effective.
As some have mentioned, when this type of program has been instituted, the results have not necessarily resulted in student success. They may increase diversity, but at what cost? Regardless, to me at least, the introduction of race as a factor smacks of some unstated need to reach a quota. I believe the Court will take this case given the views of both Alito and Roberts in this area. A final decision will most likely come down to Kennedy and his decision. Personally, I do not think Kennedy is the rubber-stamp fifth vote for conservatives in this case. To me, the equal protection of the law under the 14th Amendment protects individuals allegedly wronged by State programs not because they happen to fall into some statistical category, but based on their individual case. In Fisher, someone was “wronged” because of their inclusion in a statistical category. The fact they were in a non-protected class in the traditional sense should make little difference. But, that is my personal view.

Jeff Barnum

HR 1775 attempts to fix the Stolen Valor Act by articulating an economic injury. However, in doing so, HR1775 attempts to fix what is perfectly fine about the Stolen Valor Act, while not addressing its infirmities.

Let’s start with what a fraud action should include. Illinois ex rel. Madigan v. Telemarketing Associates, Inc. stated a ‘properly tailored’ anti-fraud measure should require an intentional and material false statement, designed to mislead the listener, which succeeds in doing so.

Neither HR1775 nor the Stolen Valor Act require any reliance on the part of the listener. Both the Alvarez and Strandlof courts found this omission fatal

However, Madigan does not require any for of economic or pecuniary injury, either. It only requires the listener be misled. This is especially true in the area of false personation – like when somebody pretends to be a law enforcement officer or a decorated military veteran. In the context of false personation, the Supreme Court noted that “a person may be defrauded although he parts with something of no measurable value at all.” United States v. Lepowitch, 318 U.S. 702, 704 (1943).

HR 1775 fixed what wasn’t broken – requirement of a pecuniary injury – while ignoring what was – reliance upon the false statement.

I make the case for a narrow amendment to the Stolen Valor Act in my forthcoming Comment, which may be accessed here:

Recommended Citation: Tom Goldstein, Today in the Community: October 17, 2011, SCOTUSblog (Oct. 17, 2011, 10:38 AM),