You are currently browsing the category archive for the ‘Litigation’ category.

For an hour this morning, starting at eleven o’clock Eastern Time, the US Supreme Court will interrogate lawyers representing the state of Texas, the federal government, and a young woman who recently graduated from Louisiana State University. That woman, Abigail Noel Fisher, is suing the University of Texas in an attempt to recoup a $50 application fee and a $50 housing deposit that she forfeited when she was denied admission to UT several years ago.

It’s a weird case, and it gets weirder. The Supremes last addressed affirmative action in college admissions — the issue at the heart of today’s case — just nine years ago, with Justice Sandra Day O’Connor fashioning a narrow compromise that allowed campuses to consider race (but not in any quantifiable way) in order to promote campus diversity (but not as redress for past discrimination). Many observers consider it unlikely that Justice Anthony Kennedy will be persuaded to completely abandon that standard, particularly so soon after it was implemented.

Complicating things even further, the newest member of the Court — Elena Kagan, herself a former university dean (Harvard Law, 2003-2009) — won’t be participating, having recused herself due to her involvement in the case during her brief tenure as President Obama’s first Solicitor General.

The Court is deeply divided on the issue of affirmative action right now. In a 2007 opinion Chief Justice Roberts — joined by the Court’s other three staunch conservatives — wrote flatly (and famously) that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” That doesn’t leave a lot of wiggle room.

On the other side, Kagan is as noted sitting this one out, and two of her liberal colleagues are on record in support of affirmative action in college admissions. The third, Obama appointee Sonia Sotomayor, hasn’t written on the subject yet as a justice, but she seems an unlikely defector on this issue.

Given all this, and barring any truly bizarre surprises, there are three ways this decision could come down:

First, Justice Kennedy could join with the Court’s four most conservative justices in a decision striking down affirmative action in college admissions entirely. Many observers consider this unlikely, but others note that Kennedy has never cast a vote on the Court in favor of an affirmative action policy.

Second, Kennedy could join with the Court’s conservatives in a decision that preserves campus affirmative action, but limits it even further. Considering the narrow scope in which admissions officials currently operate, and the fact that it was Kennedy himself who established the present framework, this is likely to result in a head-scratcher of a decision.

And third, Kennedy could join with the Court’s three liberals in affirming the status quo, or something similar. This would mean a four-four tie, which would, given the Court’s rules, leave the Texas admissions setup intact without creating new precedent. If that happens, the Court may well call a do-over with a new case — and Kagan’s participation — in the fairly near future.

If I had to bet, I’d bet on number three. But I wouldn’t bet much. (For a deeper analysis of all this from someone who knows much more than I do, check out this detailed analysis from SCOTUSblog. For my own take on the moral and practical issues at stake in the case, read this rant from yesterday.)

Oral arguments are at eleven o’clock this morning. Transcripts should be made available this afternoon, and audio at the end of the week. (The Supreme Court does not permit video recording or livestreaming of oral arguments.) Expect lots of wild guessing and speculation by the end of the day about what the arguments mean (including from me), and look for an actual decision to come down sometime next spring.

Tomorrow the US Supreme Court will hear oral arguments in the case of Fisher v. Texas, addressing the constitutionality of affirmative action in college admissions. I wrote a piece on the history of the case and how the Court might rule back in July, and I’d encourage you to go take a look at it if you’re not familiar with the background. But this morning I want to talk about something a little less technical.

Here’s how the case’s plaintiff, rejected University of Texas applicant Abigail Fisher, described what’s at stake in today’s New York Times:

“I’m hoping that they’ll completely take race out of the issue in terms of admissions and that everyone will be able to get into any school that they want no matter what race they are but solely based on their merit and if they work hard for it.”

For better or worse, that’s not remotely on the table.

Colleges accept and reject candidates for all sorts of reasons that have little or nothing to do with merit. They take legacies — relatives of other graduates — because those admissions are good for alumni donations. They accept football players because bowl games and shirt sales are good for the bottom line. Many private colleges consider a student’s wealth in admissions decisions, and many publics are pumping up out-of-state admissions to enhance tuition revenue. None of this has anything to do with merit.

And all of it is completely legal.

That’s worth underscoring. It’s not illegal to discriminate on the basis of non-academic factors in college admissions in the United States. There are no barriers to rejecting students because they’re not rich, or went to crappy high schools, or studied the piccolo instead of the oboe in a year when you’ve already got enough piccolo players. Unfair, arbitrary, and venal admissions standards are part of the fabric of every selective college’s decision-making process.

And there’s something truly twisted about the argument that all of that is okay but affirmative action — precisely because it’s intended as a remedy for the country’s long history of racial discrimination, a history that didn’t end in 1865 or 1954 or 1963, but continues to this very day — is not.

When we as a country say that it’s right and just to accept one student because her high school had a great gymnastics program or her parents are big donors or her grandfather was a dean while while we simultaneously recoil at the “racism” of giving a boost to another student who, as a result of the nation’s persisting inequities, had no chance to acquire any of those advantages, we aren’t saying we want to move beyond our history of racial discrimination.

We’re saying we want to lock it in.

George Galloway, a controversial member of the British parliament, is suing the country’s National Union of Students for calling him a “rape denier.”

Galloway, a supporter of Wikileaks founder Julian Assange, said in August that though Assange was accused of “sordid” behavior and “bad sexual etiquette,” the allegations did not “constitute rape … as anyone with any sense can possibly recognize it.”

One of Assange’s accusers has said that after she repeatedly refused to have unprotected sex with him, she awoke to find that he was penetrating her vaginally without a condom. The other says that he attempted to pry her legs open so that he could penetrate her while he held her arms down to keep her from reaching for a condom. The courts that considered Assange’s extradition appeals consistently held that these allegations amounted to rape under British law.

A few days ago the National Union of Students voted to ban Galloway from speaking at NUS-sponsored events, saying in a statement that the organization would not “offer a platform to speakers who are rape deniers or apologists, or support events where such individuals speak.”

A BBC article on the lawsuit does not specify what damages or other redress Galloway is seeking.

The University of California has agreed to make payments of tens of thousands of dollars each to the two dozen students hit with pepper spray at UC Davis last November, and to provide the students with individual written apologies from Davis chancellor Linda Katehi.

The settlement, filed in federal court this morning, provides for $30,000 payments to each of 21 named defendants, and a pool of $100,000 to be divided among other students who may come forward. Attorneys for the students will receive $250,000, and the ACLU will be given $20,000 to conduct a review of university policies on demonstrations.

The University of California had already spent more than $1 million to conduct its own investigations of the incident.

Although Lt. Commander John Pike, the primary sprayer, has been fired by UC Davis, and the campus police chief at the time of the incident later resigned, no officers or university administrators were charged with crimes as a result of the incident.

Chancellor Katehi survived a no-confidence vote by faculty early this year, and remains in office.

The summer lull in this year’s Quebec student protests is coming to a close, and the next few weeks are likely to be crucial ones for the future of the movement.

To recap: Quebec’s ruling Liberal Party announced plans for multi-year tuition hikes last February, prompting students to walk out of classes throughout the provinces. Those walkouts quickly developed into ongoing student strikes, with many campuses closing entirely after student strike votes at general assemblies. College administrators generally respected the strikes, even — in some cases — refusing to comply with court orders that their campuses be reopened. Suddenly the red square, symbol of the movement, was everywhere.

In mid-May the government brought forward a proposal to end the strike, but it offered only minimal concessions and its plan was overwhelmingly rejected in a series of campus votes. After that debacle the Liberal Party put forward Bill 78, a law that criminalized much protest in the region and imposed stiff penalties on student organizations that supported campus closures. Bowing to the reality of widespread campus closures, Bill 78 suspended the spring semester at colleges shuttered by the strike, mandating that they resume meeting in mid-August. (The law passed on a party-line vote after a hectic marathon session.)

Defiance of Bill 78 was widespread, and its provisions have generally not yet been implemented. Hundreds of thousands of Quebecois took to the streets in the aftermath of its passage, and protests have continued throughout the summer on a somewhat smaller scale.

That’s what’s happened. Here’s what’s coming:

Rumors have been swirling for months that Quebec’s ruling Liberal Party will announce on August 1 that they will be holding provincial elections on September 4, and news reporting is increasingly treating a Wednesday announcement as a done deal. Polling has been sparse so far, but the most recent data show the LP and the Parti Quebecois virtually deadlocked, with one poll aggregator showing the LP likely to win some 60 seats in the new legislature — a six-seat loss from their current standing, and a decline large enough to rob them of their current majority in the 125-seat body.

But the situation could change dramatically between now and the election, particularly since Bill 78 mandates that the province’s striking colleges re-open their doors on August 17. A student lawsuit to block implementation of the Bill was rejected earlier this month, but another challenge is still pending — this one from professors who say the government does not have the right to unilaterally impose a new teaching schedule on them.

Mark your calendars: This year, campus activism for the new academic year starts in Quebec, and it’s starting early.

About This Blog

n7772graysmall is the work of Angus Johnston, a historian and advocate of American student organizing.

To contact Angus, click here. For more about him, check out
%d bloggers like this: