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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. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

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  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

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