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This week’s grants: In Plain English

Tuesday morning the Court officially returned from its mid-Term recess, and it did so in a big Texas-style way.  One of the two cases in which the Court granted certiorari was Fisher v. University of Texas at Austin, a case that could decide the future of government affirmative action policies.  Let’s talk about those grants in Plain English.

Fisher is the latest chapter in the debate over affirmative action.  It follows on the heels of the Court’s 2003 decision in Grutter v. Bollinger, in which the Court upheld the University of Michigan Law School’s limited use of race in its admissions policies to increase diversity.  The author of that decision was Justice Sandra Day O’Connor, who retired a few years later and was replaced by Justice Samuel A. Alito.

Since 1998, most of the spots in the University of Texas’s freshman class have been filled using a program that does not consider the applicant’s race:  the Top Ten Percent Plan, which automatically admits any Texas resident who graduates from high school in the top ten percent of her class.  For several years, university officials did not consider the applicant’s race to fill the remaining spots in the class; instead, they looked at factors such as academic performance, essays, leadership qualities, and work experience.  After the Court’s decision in Grutter, UT officials added race to the list of factors that they considered to fill the remaining slots; by doing so, they explained, they hoped to achieve greater diversity not only in the university as a whole, but also on a smaller scale – for example, in academic programs, majors, and even individual classrooms.

The petitioner in the case, Abigail Fisher, is a white Texas resident who filed this lawsuit after she was denied admission to the university.  She argued that the university’s consideration of race as a factor in its admissions policy discriminated against her because of her race:  under the policy, she contended, minority students with less impressive credentials had been admitted instead of her.

The lower federal courts ruled against Fisher, who then shifted her efforts to the Supreme Court.  In her petition seeking the Court’s review, Fisher suggests that she could win in two different ways.  First, she argues that the university’s policies go farther than the Court’s decision in Grutter permits:  although the Court in Grutter recognized that states have a strong interest in having admissions policies that promote diversity, so that students can receive the educational benefits created by diversity, in this case the university’s use of the Top Ten Percent Plan had already made it one of the country’s most diverse public universities.  The university’s efforts to further increase diversity – by considering race as a factor to fill the remaining slots – so that the student body more closely matched the state’s overall population are, Fisher contends, really just the kind of racial balancing that the Court in Grutter indicated would be unconstitutional.

Fisher’s second line of attack comes at the very end of her petition.  It is concise, but potentially far-reaching.  She suggests that even if the Court concludes that the university’s admission policy is consistent with Grutter, it should overrule that decision.

Fisher could find five Justices who are receptive to her argument.  Three of the Justices who dissented in Grutter – Justices Kennedy, Scalia, and Thomas – remain firmly opposed to affirmative action, as does Chief Justice John Roberts, who succeeded the fourth dissenter, the late Chief Justice William Rehnquist.  Most significantly, the author of the Court’s opinion in Grutter – Justice Sandra Day O’Connor – has been replaced by Justice Samuel Alito, who is much more likely to regard the university’s policy as unconstitutional than his predecessor.  Thus, the university’s policy could be in real danger; the only remaining question is whether the Grutter decision is as well.

One other thing is noteworthy about the Court’s decision to review the case.  The state had tried hard to convince the Court that it should deny review because Fisher (who is the only plaintiff in the case) is about to graduate from another university.  On the state’s view, the case was about to become “moot” – that is, it wouldn’t matter anymore because Fisher couldn’t apply again to the university for admission as a freshman or transfer.  But at least at this stage of the game, the Court does not appear to regard this as a problem.

With the Court having already filled its docket for this Term, the case won’t be argued until the fall, with a decision to follow sometime in 2013.  So although it won’t be a part of one of the most high-profile Terms in recent memory, much of the case will unfold during the end stages of the 2012 presidential election.

Yesterday’s second grant, in Lozman v. City of Riviera Beach, Florida, definitely will not play a role in the upcoming presidential election, but it is one that maritime law scholars will be following closely.  And like many of the Court’s cases, it also illustrates the important (but lower-profile) role that the Court plays in resolving disputes about the meaning of federal statutes.

Lozman stems from a dispute between the city and Fane Lozman, who lived on board a “floating residential structure” (FRS) – essentially, a rectangular shelter that was built on top of a barge, without (among other things) lifeboats, a steering wheel, or a motor – that he kept in a marina owned by the city.  The dispute escalated to the point that the city filed a lawsuit in federal court to seize Lozman’s FRS.  To do so, the city relied on a federal law allowing federal courts (and federal courts only) to hear maritime cases.  Whether that law applies, however, hinges on the question presented by this case:  whether the FRS is a “vessel,” which another federal law in turn defines as a “watercraft or other artificial contrivance used as a means of transportation on water.”

In the litigation that followed, Lozman countered that his FRS wasn’t a vessel at all, so the case could not be heard in federal court.  Instead, he argued, it should be treated like a residence located on land – which would be governed by state law instead of federal maritime law.  The trial court disagreed, holding that the FRS was indeed a vessel, and the U.S. Court of Appeals for the Eleventh Circuit affirmed.  It relied on an earlier case in which it had held that the key factor in determining whether something is a “vessel” is whether it can move over the water without sinking.  Because Lozman’s FRS had been towed from one marina to another, the court of appeals concluded, it was a “vessel.”

Lozman then filed a petition for certiorari in which he emphasized that (as the court of appeals acknowledged) two other courts of appeals would have used a different test to determine whether his home was a “vessel.”  Those courts, he explained, would focus on whether he intended to make the FRS a permanent and stationary home.  The Court granted review to resolve the conflict; the case is expected to be argued in the fall.

The Justices will meet on Friday for a private Conference, at which they will consider new petitions for review; we will hear on Monday whether they have added any additional cases to next Term’s docket.  But before then, we also thought that it might be useful to catch up on some of the cases that they granted before their recess.

If Congress makes a general promise to pay you for something, but then puts a specific cap on the amount of money that can be spent to pay you and others in your position, can you still be reimbursed for all of your costs?  That is the question presented by Salazar v. Ramah Navajo Nation.

The case arises because Congress enacted the Indian Self-Determination and Education Assistance Act, which allows Native American tribes to take over federal programs – such as education and social services – that the federal government would otherwise provide for them.  The Act also provides that the tribes will receive money for these programs. First, to pay for the programs themselves, they receive the money that the federal government would have spent to provide the same services.  Second, they receive what are known as “contract support costs” – costs, such as overhead, that the federal government would not have to pay for.

Beginning in 1993, the laws appropriating funds for the Department of the Interior (which in turn provides funds to the tribes for the programs) have contained a provision that specifically caps the amount of money that can be used to pay contract support costs.  As a result, since then the tribes have received anywhere from seventy-seven to ninety-three percent of their contract support costs.  The respondent in this case – a tribe located in New Mexico – challenged that underpayment.  The U.S. Court of Appeals for the Tenth Circuit, the court of appeals that heard the case, ordered the government to pay up:  it held that even if Congress had capped the total amount of money available to pay contract support costs, it had guaranteed that funding would be available, and the government could still pay this particular tribe all of its costs.

The government asked the Supreme Court to hear the case.  It noted that two other courts of appeals had reached the opposite conclusion from the Tenth Circuit:  those courts hold that, in light of the cap, the government should divide the available funds for contract support costs among all of the tribes, even if that meant that no one was fully reimbursed.  The Supreme Court granted review in January, and the case has been scheduled for oral argument on April 18.  The potential financial implications of the Court’s decision could be huge:  the government has told the Court that the shortfall between the tribes’ demands and the money available to pay them is already likely more than a billion dollars, “and the problem grows worse with each federal budget cycle.”

The Fourth Amendment has played a starring role in this Term so far, with the Court’s decision in the GPS tracking case, United States v. Jones.  By granting review in Florida v. Jardines, the Court guaranteed that it would have another significant search and seizure case on its docket next fall.  Unlike Jones, however, Jardines features a decidedly lower-tech police tool:  a chocolate Labrador retriever named Franky.

In 2006, Miami police received a tip that the home of the respondent, Joelis Jardines, was being used to grow marijuana.  Based on that tip, a dog handler took Franky – who had been specifically trained to detect drugs – to the door of the house.  After Franky indicated that he had smelled drugs in the house, a detective went to the door, where he smelled marijuana.  The police then obtained a warrant to search the house, where they found several live marijuana plants.  Jardines was arrested and charged with drug trafficking, as well as stealing several thousand dollars’ worth of electricity to power his operations.

Jardines then tried to have the marijuana suppressed, on the ground that Franky’s sniff at his door violated the Fourth Amendment, which prohibits unreasonable searches and seizures.  The Florida Supreme Court agreed with him, concluding that the dog sniff was a “search” that itself required a warrant.  In that court’s view, even sniffing the front door of a house invades the sanctity of the home in a way that triggers the protections of the Fourth Amendment.

The state filed a petition for certiorari, asking the U.S. Supreme Court to step in to review its state supreme court’s decision.  The state relied on several decisions by the U.S. Supreme Court holding that dog sniffs in other contexts – for example, of cars or luggage in an airport – are not searches because all that the sniff does is use the generally circulating air to indicate whether drugs are present.  Because in this case Franky merely signaled to his handler that he smelled drugs in Jardines’ house, the state explained, this case is more like the other dog sniff cases than Kyllo v. United States, on which the Florida Supreme Court had relied.  In Kyllo, the Court held that the warrantless use of an infrared device to detect a marijuana-growing operation in a house was unconstitutional because the device could reveal otherwise private information about legal activities within the home.  The state argued that review was also appropriate because the state supreme court’s decision conflicts with those of two federal appellate courts, which have both held that a dog sniff of a residence is not a search.

With the Court having decided not to add any more cases to its April calendar, the case won’t be argued until the fall.  So we could have to wait until next year to find out if the Court agrees with the state that a sniff, no matter where it happens, is just a sniff – and not a search.

Recommended Citation: Amy Howe, This week’s grants: In Plain English, SCOTUSblog (Feb. 23, 2012, 11:39 AM),