Supreme Court Rules on Fisher vs. U-Texas: Back to Lower Court

Monday, June 24, 2013

The words "Equal Justice Under Law" are inscribed on the front of the U.S. Supreme Court. (Niel R/flickr)

This morning, the Supreme Court announced opinions on a few key cases, including:

  • In the affirmative action case Fisher vs. University of Texas, the court will send the case back to a lower court. SCOTUSBlog reports that this indicates "the majority seems to reaffirm that diversity is a compelling interest if only because that rule was not challenged by the plaintiffs in the case."
  • The court announced that it will hear a case this Fall about the constitutionality of President Obama's recess appointments.
  • Several pro-business rulings on the scope of the Civil Rights Act when it comes to workplace harassment.

We discuss the rulings and the impact with University of Chicago's Geoffrey Stone.

Get Up To Speed on the Key Decisions: Our SCOTUS Reading List


Geoffrey Stone

Comments [12]

fuva from harlemworld

Nonsense. This requirement that institutions demonstrate the employment of any and every race-neutral means of diversity is evidence of this country's shameful racism denial. Of course, race terror and its intergenerational ripple effects are absolutely behind the ongoing lack of diversity...Maybe Affirmative Action needs to be struck down, so that the resultant fallout can, hopefully, fuel the frank discourse here required.

Jun. 24 2013 12:01 PM
Amy from Manhattan

Even though a co-worker can't directly fire someone, they can undermine them or lie about them to the supervisor & bring about their firing, or at least make things very difficult for them.

Jun. 24 2013 11:58 AM
rct from NYC

Look at p.9 and Scalia's concurrence -- an invitation to reconsider Grutter's holding that diversity is a compelling interest permitting some consideration of race. If this comes back as a challenge to Grutter, diversity can be kicked out. And indeed the burden IS ON THE UNIVERSITY.

Please respond to P9

Jun. 24 2013 11:51 AM
RCT from NYC

WATCH OUT - p.9 and last line-- they aren't reaching the issue of whether equal protection permits diversity to be a factor -- a compelling issue -- in admissions. Kennedy says he would have overruled Grutter. More to come.

Jun. 24 2013 11:45 AM
RCT from NYC

To clarify, the mixed motive action is gone, it seems (haven't read the whole opinion --relying on SCOTUSblog), for retaliation claims, just as it was done in for ADEA claims in Gross. There is a bill in Senate Committee -- bi-partisan -- to overrule Gross. It's called the POWADA -- Protecting Older Workers Against Discrimination Act. Call Sen. Leahy, one of the sponsors, to find out the status. We need to overrule these bad decisions by good legislation. The anti-discrimination laws are being gutted by the Surpeme Court.

Jun. 24 2013 11:32 AM
rct from NYC

Nassar weakens Title VII just as Gross, decided in 2011, weakened the ADEA. Essentially, it imposes a "but for" requirement on discrimination claims and keeps burdens on plaintiffs. The "mixed motive" standard means that all that a plaintiff has to show is that age (or now, retaliation) is one motive for an adverse action, and the EMPLOYER had to rebut by proving that this was not why the adverse action was taken.

Another very bad decision today related to workplace harassment. The court held that, if your co-worker harasses or discriminates against you based on race or gender, and you report the same to your employer but the employer does not take action against your co-worker (like ask him or her to stop, for example), you cannot sue the employer.

Indeed, the just okay Fisher was the best decision of the day.

Jun. 24 2013 11:29 AM
RCT from NYC

The Court held that the school, not the petitioner, had the burden of proving that the means used to achieve diversity were narrowly tailored to meet that goal. The so-called "strict scrutiny" test requires (1) that each applicant is evaluated as an individual; his or her race can't be the only factor considered in an admissions decision; (2) that diversity, a permissible goal (the court upheld that goal as permissible) cannot be achieved unless race is considered as an admission's factor; i.e., that no race-neutral alternative would produce diversity.

The Fifth Circuit deferred to the University, according to the Supremes, rather than apply the text.

Affirmative action survives, but the burden is on the University to show that its policies meet the test. The second prong of the test will be difficult to meet; e.g., would not a test that used economic factors achieve the same end, given current demographics? ("Poor people" is not a protected class and hence, unlike race, does not require "strict scrutiny")

Jun. 24 2013 11:23 AM
rj from prospect hts

Nassar case: "UT Southwestern v. Nassar. The final opinion of the day. The Court holds that Title VII retaliation claims must be proved according to traditional principles of 'but for' causation, not the lesser causation standards stated in the law. . . . The question in Nassar was whether a provision of Title VII that permits a plaintiff to win by showing that discrimination was a "motivating factor" in an employment decision, also applies to claims of retaliation. The Court holds that it does not, so the plaintiff has to meet the higher burden of proving that the employer would not have taken the challenged action (say, termination) if the employee had not filed an EEOC complaint. . . . Justice Ginsburg's bench statement says of Vance and Nassar that 'Both decisions dilute the strength of Title VII in ways Congress could not have intended. . . . Today, the ball again lies in Congress' court to correct this Court's wayward interpretations of Title VII.'"

Jun. 24 2013 10:58 AM
rj from prospect hts

Re Fisher, per scotus blog: "The Fifth Circuit is vacated and remanded. The holding is because the Fifth Circuit did not hold the university to the demanding burden of strict scrutiny articulated in Grutter and Bakke, its decision afffiming the district court's grant of summary judgment was incorrect. ... The majority seems to reaffirm that diversity is a compelling interest if only because that rule was not challenged by the plaintiffs in the case. . . . Here's the money quote: 'The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.'"

Re the Vance case: "One more note about Vance -- echos of Ledbetter v. Goodyear: a majority opinion by Justice Alito, with a dissent from Justice Ginsburg accusing the majority of not understanding workplace realities and ending with the admonition that '[t]he ball is once again in Congress's court....'"

Jun. 24 2013 10:53 AM

Why were fishers grades so average to poor?
I assume she was not pulling anything near 3.5plus

Jun. 24 2013 10:52 AM
rj from prospect hts

Re: Vance, from scotus blog: "Regarding Vance, the Supreme Court had previously made a distinction between discrimination by “supervisors” and discrimination by mere co-workers. Specifically, a company is automatically liable for any discrimination by a supervisor; it is liable for co-worker discrimination only if the victim complains about it to management and the management does nothing to stop it. So by restricting who counts as a supervisor, the Court has handed employers a victory."

This is a critically important labor decision

Jun. 24 2013 10:45 AM
RJ from prospect hts

Please don't ignore the following cases: Lozano, on child abduction; Unite-Here, on union organizing rights, American Lung v. EME, is the validity of the EPA's cross-state pollution rule, NLRB v. Noel Canning is the validity of the President's recess appointment powers--even if only on the website and not re: guests, etc.

Jun. 24 2013 10:41 AM

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