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SCOTUS sends affirmative-action case back to 5th Circuit

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A lawsuit claiming that a Texas university's consideration of race in its admissions practices violates the Equal Protection Clause has been sent back by the Supreme Court of the United States to the 5th Circuit Court of Appeals. In its ruling on the suit filed by a Caucasian woman denied admission in 2008, the justices, however, did not strike down the use of affirmative action by the university.

In a 7-1 holding in Abigail Noel Fisher v. University of Texas at Austin, et al., the U.S. justices reversed the 5th Circuit’s affirmation of the university’s admissions plan because the Circuit court did not hold the school to the “demanding burden of strict scrutiny” outlined in Grutter v. Bollinger, 539 U.S. 306 (2003), and Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 305 (1978)(opinion of Powell, J).

The admissions plan at issue was adopted in 2004 following decisions in Grutter and Gratz v. Bollinger, 539 U.S. 244 (2003), in which the school reverted to an explicit consideration of race.

The 5th Circuit held that Grutter required courts to give substantial deference to the university, both in the definition of the compelling interest in diversity’s benefits and in deciding whether its specific plan was narrowly tailored to achieve its stated goal.

“A plaintiff, of course, bears the burden of placing the validity of a university’s adoption of an affirmative action plan in issue. But strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice,” Associate Justice Anthony Kennedy wrote.

The majority ordered the 5th Circuit to assess whether the University of Texas at Austin has offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.

Associate Justices Antonin Scalia and Clarence Thomas wrote concurring opinions. Associate Justice Ruth Bader Ginsburg dissented, and Associate Justice Elena Kagan did not participate in the case.

Other cases handed down were:
•    United States v. Kebodeaux, 12-418, which held that the Sex Offender Registration and Notification Act’s registration requirements as applied to Kebodeaux fall within the scope of Congress’s authority under the Necessary and Proper Clause;
•    Mutual Pharmaceutical Co. v. Bartlett, 12-142, which held that state law design-defect claims that turn on the adequacy of a drug’s warnings are pre-empted by federal law under PLIVA Inc. v. Mensing;
•    University of Texas Southwestern Medical Center v. Nassar, 12-484, which held that Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in 42 U.S.C. Section 2000e-2(m); and  
•    Vance v. Ball State University, et al., 11-556, which held an employee is a “supervisor” for purposes of vicarious liability under Title VII only if the supervisor is empowered by the employer to take tangible employment actions against the victim.  
 
Also Monday, the justices granted cert in National Labor Relations Board v. Noel Canning, 12-1281, on the president of the United States’ recess appointment power. The high court is asked to answer whether the president’s recess appointment power can be exercised during a recess that occurs within a session of the U.S. Senate or if it is limited to recesses that happen between enumerated sessions of the Senate. The justices are also asked to decide whether the recess appointment power may be exercised to fill existing vacancies during a recess or if it is limited to vacancies that first arose during that recess.

The parties will also brief and argue whether the recess appointment power may be exercised when the Senate is convening every three days in pro forma sessions.

The justices denied rehearing in Laura Jennings v. Indianapolis, et al., 12-9069, a case that came out of the federal court in Indianapolis and the 7th Circuit Court of Appeals. Laura Jennings, a former employee of the Department of Defense, filed a Title VII lawsuit after she was fired during her probationary period in late 2010. She was a contract representative in the DOD’s Defense Finance and Accounting Service. She alleged retaliation in connection to her firing. The Office of Equal Opportunity Programs found her claim was untimely because she didn’t contact the EEO counselor within 45 days of her discharge and she failed to state a claim regarding unemployment benefits.

She also filed her federal lawsuit before the 180-day waiting period required to initiate a civil action after an appeal of the EEO’s decision.

The federal court in Indianapolis granted summary judgment against her on the grounds she failed to exhaust administrative remedies. The 7th Circuit affirmed in November 2012. The U.S. Supreme Court originally denied taking the case May 13.

 

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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