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

One of the Supreme Court’s first cases when it returns in the fall will be Fisher v. University of Texas, scheduled for argument on October 10. The Fisher case concerns the constitutionality of affirmative action policies in undergraduate admissions at UT.

Campus affirmative action has been on shaky legal ground since 2003, when the Supreme Court ruled in the 5-4 Grutter v. Bollinger decision that race-conscious policies could not be used to remedy the effects of past societal discrimination, but only “to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”

Four of the Court’s members were then willing to accept a broader role for affirmative action, while four wanted to end it entirely. It was Justice O’Connor, the swing vote, who endorsed the compromise that carried the day, but in the last nine years, four members of the Court — including O’Connor — have left by death or resignation, and their replacements have shifted the Court significantly to the right.

Chief Justice John Roberts, one of the conservative post-Grutter additions to the Court, wrote in a 2007 opinion that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race” — that the Constitution and sound public policy demand race-blind admissions, in other words. In contrast, Justice Anthony Kennedy, who is likely to be the swing vote this year, held in the same case that the government has a “legitimate interest … in ensuring all people have equal opportunity regardless of their race,” and that “narrowly tailored” affirmative action is permissible in service of that interest.

Just how narrow such a policy must be to meet Justice Kennedy’s standards will likely be the central question before the Court in Fisher. And although Kennedy has so far refused to join the Court’s conservative wing in endorsing a ban on race-conscious admissions, he has never yet voted to uphold an actually existing affirmative action program.

I’ll be following this case as it proceeds through the SCOTUS calendar during the coming year, commenting in more detail on the issues involved, the oral arguments, and the decision when it eventually appears. But for now, as I mentioned above, I wanted to draw your attention to a website and petition that the United States Student Association has put up.

USSA will be submitting an amicus brief in support of UT’s affirmative action policies to the Supreme Court early next month, and they’re currently collecting signatures from students to include in that brief. If you’d like to let SCOTUS know you support affirmative action in college admissions, you can do it by adding your name to the USSA brief here.

Last fall a student at the University of Pittsburgh’s Pitt-Johnstown campus was banned from the men’s locker room at the university gym. The student, Seamus Johnston, is listed as female in the university’s records, but has been living as a man for three years and carries a driver’s license identifying him as male. When Johnston refused to comply with the ban, he was brought up on campus disciplinary charges and arrested for disorderly conduct.

In February the Pitt Anti-Discriminatory Policies Committee (APDC) issued a unanimous ruling opposing Johnston’s ban and calling on Pitt to craft clear policies on the use of bathrooms and locker rooms. Those new policies, announced last month, require all Pitt students, faculty, and staff to use bathrooms and locker facilities consistent with the gender assigned on their birth certificates.

This policy puts many transgender members of the Pitt community in an extremely difficult — and potentially dangerous — position.

By state law, Pennsylvanians may receive a driver’s license bearing a gender other than that assigned at birth on presentation of a reference from a doctor or counselor specializing in transgender issues. The federal government has issued passports on the basis of similar documentation since 2010. And the NCAA allows transgender athletes to play on teams reflecting their gender identity after one year of hormone treatment. But Pennsylvania state law mandates gender reassignment surgery before amending a birth certificate.

Under Pitt’s new policy, then, a student enrolled in college as a woman, listed as a woman on her driver’s license and passport, playing women’s sports for Pitt or a visiting team, would be barred from changing into her uniform with her teammates if her birth certificate did not declare her to be female.

And some states — including Ohio, Pennsylvania’s neighbor to the west — do not permit amendment of birth certificates for any reason.

The whole situation is a huge mess. Students, who were not consulted on the ruling and have not yet been provided with it in written form, are up in arms. Transgender faculty have announced that they will defy the ban. And the chair of the city of Pittsburgh’s Commission on Human Relations believes that the ban is a violation of city law. Pitt’s student newspaper lambasted the “bizarre,” “despicably self-serving” way in which the decision was made and announced, saying the decision showed “the University’s blatant disregard for its transgender students” and for the student body as a whole.

University officials are refusing to comment.

Update | I want to say a little more about this.

Until now, Pitt’s policy on gender and bathroom/locker-room use has been to address the issue on a “case-by-case” basis. That can mean a lot of things, of course, and it has the big drawback of not providing trans folks with reliable, predictable institutional backup, but as an approach — at least in the abstract — it has the virtue of recognizing that the relevant questions here are questions of interpersonal dynamics, not taxonomic order.

If you think about it for even a moment, the reason why the Pennsylvania DMV and the State Department have issued progressive policies on gender and ID becomes obvious: The point of identification is to identify you cleanly and clearly. If you consistently present as a man, and your driver’s license or your passport identifies you as a woman, that’s going to cause all sorts of problems — not just for you, but for police, bureaucracies, businesses, everybody. The vast majority of the time a person is out in the world, nobody has any reason to know or care about their biological sex. It’s just not relevant.

And it’s no more relevant in the bathroom than it is at the airport or in a traffic stop.

The DMV and the State Department have both come to terms with the fact that prescriptive, mechanistic policing and enforcement aren’t viable responses to the lived realities of gender expression in 21st century America. Here’s hoping Pitt figures that out sooner rather than later.

The Breitbart machine’s attempt to smear President Obama for his 1990 embrace of civil rights activist and legal theorist Derrick Bell is an act of cynical, craven maliciousness. There was nothing covert about Obama’s support for Bell, nothing hidden about a video clip that appeared on television during the 2008 campaign and has remained online ever since. It’s a ginned up non-story grounded in a long list of lies and distortions.

Which is a shame not least because Bell is a figure around whom real, important arguments could easily be built. A civil rights lawyer who grew skeptical of the Brown vs. Board of Ed decision, a Harvard Law professor who wrote an agitprop sci-fi story that was adapted into a schlocky HBO production, Bell was a strange and complicated man. His views on race and justice were contrarian, pessimistic, and deeply unsettling to those — of any race — who regard the project of achieving American racial equality as having entered its mopping-up phase.

I’ve been going back and reading (often re-reading) some of Bell’s writings since this story broke yesterday, and I’ve been struck again and again by his ability to provoke and to unsettle. Take for instance his characterization, from a 1998 book review, of black people as living “at the mercy of a criminal justice system that unapologetically prefers and protects whites.”

It’s the “unapologetically” that inflicts the real pain there — a defiant, hostile characterization that seems designed to provoke defensiveness and dismissal. But the word is crucial to his larger argument, because it characterizes our society as one in which racism is not vestigial but essential. Racism, to Bell, wasn’t peripheral to American identity, but ingrained deeply within it, and if one did not acknowledge that reality, one’s efforts to combat it were bound to fail, and fail in shoddy, pathetic ways.

Bell’s critics often accused him of proceeding by assertion rather than argumentation, and there’s merit to that complaint. The “unapologetically” in that sentence is offered as a fact, not a hypothesis, and the casualness with which it is deployed renders it difficult to respond to. How would one prove that Bell was wrong? By offering examples of white American racial apology? By pointing to instances of liberal hand-wringing over racial abuses? Any attempt to engage seems to lead to entanglement, and Bell has no interest in finding a congenial middle ground.

But what he’s up to is something far more interesting than mere assertion, even in the parables that have drawn so much mockery. (Evidence of their confounding power can be found in the fact that they reduced a scholar as cogent as Richard Posner to the ugly and spluttering claim that they “reinforce stereotypes about the intellectual capacities of nonwhites.”) No, the project Bell is engaged in is the construction of an alternate reality, a brick-by-brick dismantling of received notions of how things are, to be replaced with a new way of seeing. Facts are important to this project, but Bell is mostly uninterested in arguing over facts — he proceeds from the premise that the facts are undisputed, and that it’s the interpretation of those facts that’s at issue.

Take this, from the piece I quoted above. Addressing the question of whether it is “proper to use a person’s race as a proxy for an increased likelihood of criminal misconduct,” Bell notes that from the dawn of slavery to the days of Korematsu, “the law’s answer was clearly, yes.”

He goes on:

“Affirmative action is under tremendous pressure politically and legally because whites claim they are innocent victims of policies that penalize them for the misconduct of others who also happen to be white. As a result, the Supreme Court has severely limited those programs by requiring that they meet the exacting standards of strict scrutiny. But the Court has approved race-based police stops with barely a mention of the harm suffered by innocent blacks or Mexican-Americans who look like suspects who also happen to be black or Latino. This inconsistency is not an aberration but part of a long-standing pattern to shape legal standards to protect whites when such protection can be achieved at the expense of blacks.”

“This inconsistency is not an aberration.” That phrase, that idea, constitutes the heart of Derrick Bell’s analysis of race and law in the United States.

As I noted last month, only one of the dozens of police officers involved in the notorious November 18 UC Davis pepper-spray incident has yet been publicly identified. Now a police demand for continued anonymity has delayed today’s intended release of the university’s report on the incident.

Attorneys for the officers claim that because the report includes “confidential peace officer matters such as the name of the peace officers and some sort of description of wrongdoing,” its release would violate state law.

The report, originally slated for a December release, has already been delayed multiple times. The most recent stumbling block came in response to a police union request for redaction of information about individual officers. A judge has scheduled a March 16 hearing on the issue.

The authors of the report have compromised with police before, but it seems like their patience may be wearing thin.

Retired California supreme court justice Cruz Reynoso, the chair of the commission, said in a statement that he was “very frustrated” by the delay, and remains committed to releasing “the complete and unredacted work of the task force.”

UC president Mark Yudof, who has presided over multiple incidents of police violence against non-violent student protesters over the last three years, took a similarly aggressive posture. He has, he said, “asked the UC General Counsel’s office to do everything in its power in court to turn back this attempt to stifle these reports” to ensure “a fully transparent and unexpurgated accounting of the incidents in question.”

In a separate statement, UC Davis chancellor Linda Katehi said “the campus’s own internal affairs investigation into complaints of officer misconduct, which would be the basis for any personnel actions concerning the accused officers,” was “near completion.”

This is kind of astonishing.

A mere 12 hours before it was due to be released online, the official UC Davis report on last November’s pepper-spray incident has been pulled indefinitely as a result of threatened legal action by the UCD police department.

The report, commissioned by UC Davis chancellor Linda Katehi in November and originally slated for a December release, had already been delayed multiple times. Police had previously refused to allow investigators access to Davis police chief Annette Spicuzza or either of the two officers who sprayed the activists.

According to the Associated Press, “the officers involved in the Nov. 18 incident where 10 protesters were pepper-sprayed don’t want their names and confidential information they told investigators” released, and planed a morning filing for a Temporary Restraining Order.

Former California Supreme Court Associate Justice Cruz Reynoso, head of the investigating committee, said that the report’s release was being delayed on the advice of university lawyers. He added, however, that he remained “undeterred in my commitment to release the complete and unredacted work of the Task Force, a view shared by President Yudof.” Yudof himself said that “the entire UC Davis community deserves a fully transparent and unexpurgated accounting of the incidents in question,” and that he had “asked the UC General Counsel’s office to do everything in its power in court to turn back this attempt to stifle these reports.”

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

Twitter Updates

%d bloggers like this: