Affirmative Action in Higher Ed Admissions Still Holds for Now, But Don't Get Too Excited . . . . (Fisher v. University of Texas at Austin)

I have to admit it -- I've been more interested in the U.S. Supreme Court's upcoming decisions on same-sex marriage and DOMA than I have been in the affirmative action in higher education case decided today, Fisher v. University of Texas at Austin.  When it comes to affirmative action in higher education, I guess I'm just battle weary.  I fully expect that, like the T-Rex testing the electric fence in "Jurassic Park," the opponents of affirmative action will, at some point, happen upon a persuasive theory and a receptive Supreme Court majority and do away with affirmative action.  I'm way past holding my breath each time an affirmative action in higher education case reaches the Supreme Court.

As you can imagine, I was pleasantly surprised that the Supreme Court didn't strike down affirmative action in higher education in its entirety.  This case came to the Supreme Court as a result of summary judgment solely on the issue whether the consideration of race in admissions violated the Equal Protection Clause.  The Court tacitly upheld the proposition of diversity as a compelling state interest in higher education as part of a university's education mission, which was posited by the late Justice Powell in Bakke v. University of California.  The inroad, if any, made by plaintiff Abigail Fisher was that the Supreme Court held that the courts below failed to subject the University of Texas' consideration of race to strict scrutiny to determine whether it was narrowly tailored enough to achieve the diversity objective, i.e., whether any other approaches that don't involve the consideration of race could also achieve the diversity the University of Texas was seeking.  The case was remanded to the lower court for that more searching inquiry into the University of Texas' admissions program.

Proponents of affirmative action believe they've dodged a bullet.

I say don't get too excited.

Writing for the majority, Justice (and Sacramento homie) Anthony Kennedy pointed out one very important thing:  The parties did not ask the Court to consider whether diversity in higher education is still a compelling state interest that would survive the strict scrutiny analysis used when the government bases a decision in whole or in part on race.  Justice Kennedy noted that the District Court and the Court of Appeals were correct in finding that Grutter v. Bollinger called for courts' "deference" to a university's judgment that diversity is essential to its educational mission.

Them Justice Kennedy pointed out the way for the next challenge: "But the parties here do not ask the Court to revisit that aspect of Grutter's holding."

And that is precisely why the proponents of affirmative action should not get too excited. 

The next challenge to affirmative action cannot succeed, IMHO, without taking down diversity as a compelling state interest in higher education.  Justice Kennedy has pointed out the theory - revisiting "that aspect of Grutter's holding" that a university's judgment that diversity is essential to its educational mission is due deference by the courts.  The only remaining hurdles are a receptive Supreme Court majority and some disgruntled applicant who thinks that some minority applicant "took" an admissions spot he thinks he should have had. 

Maybe I'm just too battle weary and cynical when it comes to affirmative action in higher education.  I can't help but think that the end of affirmative action in higher education will happen in my lifetime and we might as well get prepared for it.

I hope I'm wrong.

 

Call Their Bluff, Mr. President: Raise the Debt Ceiling

I'm about through with this goat rodeo in Congress about raising the debt ceiling. President Reagan got 18 debt ceiling increases without this level of last-minute debate and rancor and President Obama can't get one? No Congress has ever refused to raise the debt ceiling, but now that President Obama is in office, they are refusing his first-ever debt ceiling increase request?

I call B.S.

I think this is payback for health care reform. I think this is, as Sen. Harry Reid said, an effort to embarrass the president.

If I were President Obama, I wouldn't have even deigned to negotiate an increase in the debt ceiling limit. All this talk about cutting spending and eliminating tax loopholes should have occurred when Congress passed the budget. Now the time's come to pay for the budget they passed.

Call their bluff, Mr. President. Raise the debt ceiling by executive order.

By my count, you have a 3/4 chance of being able to do so successfully. Once you do it, your opponents will rush to a U.S. District Court in the Fourth Circuit, the conservative "rocket docket," to seek equitable relief to prevent you from doing what you've already done. At some point, this issue will reach the U.S. Supreme Court, probably sooner rather than later. As I see it, the U.S. Supreme Court will do one of four things:

1) Dismiss any effort to overturn your executive order as a political question over which they decline to exercise jurisdiction;

2) Uphold your authority to increase the debt limit;

3) Hold that an increase in the debt limit was implied in Congress' passage of the budget; or

4) Hold that you didn't have the authority to increase the debt limit.

Even on the off chance that the U.S. Supreme Court reaches the issue and decides that you didn't have the authority to increase the debt limit, that doesn't necessarily mean that they will have the cojones to void your increase of the debt limit given what it would entail -- an international financial meltdown of epic proportions. What Supreme Court would want that on its hands?

Mr. President, as they say in the military, sometimes it's easier to ask for forgiveness than to ask for permission. And, to be honest, you very well may not get a second term if you raise the debt ceiling unilaterally.

But for the good of the nation, Mr. President, do not let our country fall off a financial cliff. There is no political point worth making that would take down the economy of not only our nation, but other nations as well.

Call their bluff, Mr. President. Raise the debt ceiling by executive order.

Is a Bloody Pig's Foot Political Speech?

New York Representative Peter King was the intended recipient of a bloody pig's foot and a note that allegedly said, "Kiss my black Muslim ass." King has been leading congressional hearings about the radicalization of Islam in the United States. King is also Jewish.

Given the Supreme Court's most recent rulings on free speech, I'm wondering, is a bloody pig's foot political speech? I mean, if you can protest against gays within a thousand yards of a military funeral because you don't think gays should serve in the military, can a pig's foot sent to protest what is perceived as the persecution of Muslims be excluded from free speech, especially free political speech?

I don't think so. Now, mind you, I think those anti-gay protesters at military funerals better be careful because one person's free speech is another's fightin' words. I double-dog dare those protesters to try that mess at a black Baptist military funeral in the south. I know my Baptist southern in-laws are as comfortable with Jesus as they are with ammo and keep one in their hearts and the other close by -- I'll let you guess which. Those protesters might end up on the coroner's slab themselves if they try that at a black Baptist military funeral, and there isn't a southerner, black, white or green, who would convict their murderer. Protesting at a military funeral? In the south? Yeah, you had it coming.

And maybe so did Representative King. The pig's foot, that is. But it didn't come from a Muslim and it probably didn't come from someone black. A Muslim wouldn't have touched it and a black person, especially my older relatives, would have pickled it and served it with some collard greens and cornbread.

I Hope Elena Kagan Is Gay

It’s really none of my business. Really. But I hope Elena Kagan is gay.

The U.S. District Court in San Francisco struck down California’s Proposition 8 on the grounds that, among other arguments, it violated the Equal Protection Clause because there was no rational basis for discriminating against gays and lesbians. For those of you non-lawyers out there, rational basis analysis is the weakest test applied to discriminatory laws. If you were comparing rational basis analysis to limbo, let’s just say it would be ankle-high: not a hard hurdle to overcome. And yet the proponents of Proposition 8 failed to overcome it.

So imagine how lame Judge Vaughn Walker thought the justifications for Proposition 8 were that he ruled that they didn’t pass rational basis analysis, to wit:

1) Preserving the institution of marriage as between a man and a woman;
2) Proceeding with caution when implementing social changes;
3) Promoting opposite-sex parenting over same-sex parenting;
4) Protecting the freedom of those who oppose same-sex marriage;
5) Treating same-sex couples differently from opposite-sex couples; and
6) Any other conceivable interest.

Perry v. Schwarzenegger, (2010) No, C-09-0299 VRW (N.D. Cal.) at p. 123. So let me get this straight – you’re going up against Ted Olsen and David Boies, two veritable legal giants who have appeared numerous times before the U.S. Supreme Court, most notably against each other in Bush v. Gore, and this is the best you can come up with? I hope those Prop. 8 supporters didn’t spend a lot of money on their legal talent.

Depending on the patchwork of state and federal court decisions determining whether prohibiting gay marriage violates equal protection and due process under our federal Constitution, the U.S. Supreme Court might be enticed to take this case to settle the law once and for all. Maybe.

And if it does, I hope Elena Kagan is gay. I wonder how many gay people the Justices know. I wonder if they know that gay people aren’t trying lessen the meaning of marriage for others; they’re just seeking equal rights under the laws. If states hadn’t gotten into the business of regulating marriage in the first place, we wouldn’t be in this position. Everyone would just go to their church, synagogue, supreme leader, open pasture or whatever, declare themselves married, and prepare to get screwed by the IRS. But nooooooo . . . . the states had to get all up in our business and license and regulate marriage. Well, guess what? The state doesn’t get to play favorites, even if a majority of people want it to. That’s what the Constitution is for – to protect the rights of people who happen to be in them minority, no matter what you think of them. Once the government got involved in marriage, it ceased to be just a religious rite. Now it’s an individual right. And that, in a nutshell, is why you shouldn’t be able to discriminate as to who gets to enjoy that right.

If Elena Kagan is gay, I want those Justices who think it’s okay to discriminate based on sexual orientation to look her in the eye and make that argument.

And then prepare for the legal smackdown of a lifetime.

We’ve heard similar arguments before, folks, and so has the U.S. Supreme Court -- in Loving v. Virginia, 388 U.S. 1 (1967), where the State of Virginia had the audacity to argue the constitutionality of its anti-miscegenation laws. In holding Virginia’s anti-miscegenation law up the Court had this to say:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.

Loving v. Virginia, 388 U.S. 1 at 12. If gay and lesbian people love their mates half as much as I love Black Man Not Blogging (BMNB), well, then, their right to marry is worth fighting for. I wish them well.

And I’m hoping against all hope that Elena Kagan is gay.

To Every Thing There Is A Season

To every thing there is a season, and a time to every purpose under Heaven . . . .

Ecclesiastes 3:1

I’m no Bible scholar. I only know of this verse because of the Byrd’s song, “Turn, Turn, Turn.” It’s a reminder that the things we wish for don’t necessarily happen when we want, but in their season.

My friend Sheila in Denver is a living example of this verse. Whenever something doesn’t go her way or she doesn’t get something she longs for, she simply says, “It isn’t my season” and moves on. That’s it. No whining, no complaining, nothing. She surrenders to God’s plan for her and gets on with life. I wish I were more like her.

I’ve done something I never do on this blog: Included a photo. This is a photo from my garden of one of the rose bushes I brought with me to my new home from my previous rental. I had my doubts they would bloom, even after one of the groundspeople where I work told last winter to cut them back severely. “Are you sure?”, I said, with trepidation. “Yes.” He reminded me that they will come back like gangbusters, in their season.

And they did.

I was reminded that “to every thing there is a season” yesterday when I happened to be home and saw a commentary by Roland Martin on TV 1 regarding Judge Sonia Sotomayor’s nomination to the U.S. Supreme Court. He bemoaned the fact that African American women judges weren’t considered for the nomination and suggested that we hold President Obama accountable for his future choices for the Court.

I just shook my head and thought, “It’s not our season.”

Mind you, I’d love to see a sistah judge on the highest court in our land. But what would it have said about President Obama and African Americans in general if, at our first turn at governing the nation, we looked out only for our own interests and not the interests of all the other groups who helped bring President Obama to the White House? African Americans are no longer the largest minority in the U.S., and we need to get with that new reality. We need to forge alliances across racial, ethnic, and other lines to be able to secure our interests down the line with the support of others. We already have an African American justice on the Court (for what he’s worth – and don’t forget, there were black folks who actually supported Justice Thomas’ nomination), and he’s the second African American to have occupied a place on the court. What we need are women of all races sitting on the Court, not just women of two races – black and white. I have faith that, when the proper opportunity arises, President Obama will appoint an African American woman to the Court. However, I want to see all marginalized groups represented on the highest bench in the land, not just my own people.

Plus, the “black for black’s sake” argument doesn’t resonate with me given how conservatives have been teeing up Judge Janice Rogers Brown to be the first African American female justice on the Supreme Court. A former justice on the California Supreme Court who opposed racial set-asides and race-conscious relief in general, Brown was appointed by President George W. Bush to the U.S. Court of Appeals for the D.C. Circuit, which is well known as a feeder circuit for the U.S. Supreme Court. This was the same court Justice Thomas was appointed to for a little more than a year before ascending to the Supreme Court. In the words of my former judge, “He wasn’t there [the D.C. Circuit] long enough to write his name on a paycheck, much less author any significant opinions.” If Roland Martin were to go shopping just for black female judges qualified for the U.S. Supreme Court, Brown is more qualified than Thomas was when he was nominated. But I wouldn’t want her on the Supreme Court.

Just as the roses bloomed in my garden in their season, I believe we African American women will have our season, too, when it comes to nominations to the U.S. Supreme Court. It just isn’t now.

Justice Sotomayor: An Idea Whose Time Has Come

Justice David Souter is said to be retiring. We should all thank him for his service to our country. But it's time to look forward.

U.S. Court of Appeals Judge Sonia Sotomayor's nomination to the U.S. Supreme Court is an idea whose time has come.

If you look at the federal judiciary, it is overwhelmingly white and male. When a judge on the U.S. Court of Appeals for the Fifth Circuit was asked by one of my law students the career path to becoming a judge, he gave the pithy reply, "It helps if you know your U.S. Senator."

Mind you, as a professor, I had hoped for an insightful answer -- that perhaps he had toiled as a prosecutor or public defender or rose through the ranks at a law firm to make partner. That he had argued x number of cases before the U.S. Supreme Court. That he had been attorney general for his state.

"It helps if you know your U.S. Senator."

How many women or people of color can say that? When you add to that the dearth of women and people of color in the federal judiciary -- although it's getting better, the numbers aren't what they should be given the advances made during the Carter and Clinton administrations -- of course it comes down to not much more than social ties, assuming all the qualifications are in place.

It shouldn't be that way.

I don't know Judge Sotomayor other than knowing that she was on the U.S. Court of Appeals for the Second Circuit. When I Googled her this morning, I found out that clearly I wasn't the only one who had the same idea: It's time to put a woman of color on the U.S. Supreme Court. Because race and gender do matter.

When I think of how Justice Ginsburg has stood up for the rights of women and people of color precisely because she has been discriminated against because of her gender and religion, I know that when issues of race and gender come before the court -- issues of marginalized people in general -- that she is going to give these issues a fair hearing AND a different perspective based on her own life experience, a life experience not shared by Justices Kennedy, Scalia, Roberts, Stevens, Alito, Souter, Breyer, and even Justice Thomas, to a certain extent.

Judge Sotomayor's got all the goods: A summa cum laude graduate of Princeton, Yale Law School graduate, editor of the Yale Law Journal, U.S. District Court judge, U.S. Court of Appeals for the Second Circuit judge. She's enjoyed bipartisan support in the past, and I can't imagine that she wouldn't this time around.

A Latina on the U.S. Supreme Court: An idea whose time has come.