Eugene Volokh's Blog, page 2611
February 21, 2012
Fisher v. Texas and the Future of Affirmative Action
The Supreme Court's decision to hear the case of Fisher v. Texas is likely to have important implications for the future of affirmative action in higher education.
In my view, it is highly likely that the five conservative justices will vote to strike down the University of Texas affirmative action program. On the other hand, I doubt there will be five justices willing to overrule Grutter v. Bollinger entirely, and conclude that "diversity" is not a "compelling state interest" that can potentially justify the use of racial classifications. Therefore, the Court is most likely to strike down the Texas program because it is not "narrowly tailored" to its supposed objective of promoting diversity. Justice Sandra Day O'Connor's opinion in Grutter contains a serious internal contradiction between its insistence that affirmative action programs, like all racial classifications, are subject to strict judicial scrutiny and its willingness to defer to the judgment of university administrators. Justice Anthony Kennedy, the key swing voter on today's court, dissented in Grutter, and I'm betting that he will now resolve that contradiction in favor of nondeferential strict scrutiny. He and the other majority justices are likely to take a close look at what it really means to have a "critical mass" of students for diversity purposes, and why the program covers only a few historically disadvantaged groups, while ignoring many others that could contribute just as much to diversity and are at least equally lacking in "critical mass" representation today.
The net result will be that diversity-based affirmative action will still be permissible in theory, but extremely hard for public universities to implement in practice. Schools will find it much more difficult to craft a program that is narrowly tailored enough to pass judicial scrutiny.
All of this highlights the internal contradictions of the diversity rationale for affirmative action, which was retrofitted onto a set of programs that were originally intended to provide compensatory justice for groups that suffered severe historic discrimination in American society.
The current design of affirmative action programs makes little sense under a diversity rationale. Why give preferences to American-born blacks and Hispanics, but not to Swedish and Russian immigrants, Utah Mormons, or Malaysians? All of the latter add at least as much to viewpoint diversity as the former set of groups, and don't have a "critical mass" on most American college campuses. If applied consistently, the diversity rationale can even justify preferences for white males at historically black schools that have only a few white students.
The Texas program and others like it are much more understandable as attempts at compensatory justice. Viewed in this way, it makes perfect sense to include African-Americans (who suffered massive state-sponsored discrimination in the US), but exclude Russians and Swedes (who didn't). But university administrators don't want to say that that is the real purpose, because various earlier Supreme Court decisions have held that attempts to alleviate societal discrimination cannot justify the use of racial preferences. As I have noted in the past, I think the compensatory justice rationale for affirmative action is much stronger than "diversity." In Fisher, the shortcomings and contradictions of the diversity rationale are likely to get a thorough airing.
Challenge to Montana Ban on Ministers' and Other Group Leaders' Election-Related Advocacy in Private
As I mentioned last month, Montana law provides that,
A person who is a minister, preacher, priest, or other church officer or who is an officer of any corporation or organization, religious or otherwise, may not, other than by public speech or print, urge, persuade, or command any voter to vote or refrain from voting for or against any candidate, political party ticket, or ballot issue submitted to the people because of the person's religious duty or the interest of any corporation, church, or other organization.
The law is now being challenged, in Zastrow v. Bullock (D. Mont. filed Feb. 21, 2012). One possible obstacle to the lawsuit is that it's not clear whether the law is at all being enforced, and, in the absence of a credible threat of enforcement, the lawsuit might be dismissed on standing grounds. But note, for whatever it's worth, that this statute (among others) is included on a one-page poster that, "[b]y law … must be posted in conspicuous places in [every] polling place."
The lawsuit also challenges the arrest of plaintiff based on his signature gathering. The arrest might or might have not had anything to do with Zastrow's status as a minister, but may have violated the First Amendment in any event, depending on whether the place where he was gathering signatures was private or public property.
Federal District Court Strikes Down Ban on Much Internet Activity by Registered Sex Offenders
A Louisiana statute bans much Internet activity by registered sex offenders who had been convicted of child pornography or other sex crimes involving children (or of video voyeurism); the law, like most other laws dealing with sex offenders, includes within its coverage sex offenders who are no longer in prison or on probation. The law bans "using or accessing of social networking websites, chat rooms, and peer-to-peer networks" by such offenders, unless "the offender has permission to use or access social networking websites, chat rooms, or peer-to-peer networks from his probation or parole officer or the court of original jurisdiction." And the law defines the prohibited sites very broadly:
(1) "Chat room" means any Internet website through which users have the ability to communicate via text and which allows messages to be visible to all other users or to a designated segment of all other users….
(4) "Social networking website" means an Internet website that has any of the following capabilities:
(a) Allows users to create web pages or profiles about themselves that are available to the general public or to any other users.
(b) Offers a mechanism for communication among users, such as a forum, chat room, electronic mail, or instant messaging.
This blog would therefore qualify as a "chat room," as would any newspaper site that allows reader comments. Any service that lets people set up their own Web pages would qualify as a "social networking website."
Last Thursday, a federal district court struck down the law, holding that it was unconstitutionally overbroad. The court therefore did not have to decide whether a law that was more focused on registered sex offenders' communications to minors, or that were especially likely to be seen by minors rather than by adults, would be constitutional.
The court also rejected, for two reasons, the argument that the exception for any offender who got "permission … from his probation or parole officer or the court of original jurisdiction" narrowed the law sufficiently: First, the law didn't impose any standards that the permission-granting authority would use. (Such standardless discretion has often been held to be unconstitutional where First Amendment rights are involved.) Second, it isn't clear how a defendant who isn't on probation or parole could get permission from the court of original jurisdiction, since some such courts might not (under the law of the jurisdiction to which the court belongs) have the authority to do or say anything more with regard to defendants whose sentences have been completed.
The court's analysis seems quite right to me. I would think that even narrower restrictions would be unconstitutional as to people who have finished serving their sentences (though the matter isn't an open and shut, and raises interesting — though imperfect — analogies to the restrictions on the Second Amendment rights of felons and some misdemeanants who have finished serving their sentences). But certainly restrictions that are this broad are unconstitutional.
UPDATE: A lay reader asked what "overbroad" means in this context. Here's the short answer: In constitutional cases that don't involve free speech claims, the enforcement of a law can be held unconstitutional only if the challenger's own conduct (which the law prohibits) is constitutionally protected. A challenger whose conduct is constitutionally unprotected can't challenge the law on the grounds that the law also bars someone else's constitutionally protected conduct.
For example, say a statute lets the police search houses with probable cause but without a warrant. Such searches generally violate the Fourth Amendment, but there is an exception for "exigent circumstances," such as when the police are chasing a fleeing felon. The government searches your house without a warrant, but in a situation where exigent circumstances are present; you sue, claiming the whole statute is unconstitutional. You'll lose: Even though the law is unconstitutional as applied to someone whose house is searched without exigent circumstances, it's constitutional as ap-plied to you, since exigent circumstances were present.
In free speech cases, though, you can challenge an entire law on its face, on the grounds that it's substantially overbroad: If the law unconstitutionally restricts a substantial amount of other people's speech, the law (and your conviction under it) will be invalidated even if my speech was constitutionally unprotected.
For an example of this, see the animal cruelty video case from a few years ago, United States v. Stevens. The Court did not hold that a ban on dogfighting videos (such as the ones distributed by the defendant in Stevens) would be unconstitutional — the Court reserved judgment on this question. Rather, the Court held that the statute was itself unconstitutional because it reached a substantial amount of protected material, such as depictions of hunting.
Likewise, in this case the law applies to such a wide range of Internet access on defendants' part that the law on its face is too broad and therefore a violation of the First Amendment. This doesn't tell us whether a materially narrower law might be constitutional. It only says that this broad law, and others of comparable breadth, are unconstitutional.
HUD on Fair Housing and Discriminatory Roommate Advertising
When I blogged about the Roommates.com case recently, I pointed out the Ninth Circuit seemed to assume that if discriminating in one's choice of roommates is legal, it would also be legal to advertise a discriminatory preference. I suggested that this wasn't so clear. Some commentors thought it was absurd to suggest that HUD would try to penalize expressing discriminatory roommate preferences when advertising for a roommate, given that the underlying discrimination is both legal and protected by the constitutional right to intimate association. But here is what HUD's website has to say:
It is illegal for anyone to
Advertise or make any statement that indicates a limitation or preference based on race, color, national origin, religion, sex, familial status, or handicap. This prohibition against discriminatory advertising applies to single-family and owner-occupied housing that is otherwise exempt from the Fair Housing Act.
Prop. 8 Backers Seeking Ninth Circuit En Banc Review
The backers of California's anti-same-sex-marriage Prop. 8 are apparently about to ask for en banc review by the Ninth Circuit. I had thought that they'd go straight to the Supreme Court, since (1) the chances of their getting en banc review in the Ninth Circuit, and then winning such review before a 11-judge panel that the Circuit selects for such purposes, would be pretty low, and (2) I would think that they would like to make same-sex marriage an issue at the federal election level this Fall, something that would be likelier if the Supreme Court decides before the election to hear the case. And I think that, if they just directly petitioned the Court, the Court would have indeed agreed to hear the case. But the Prop. 8 lawyers, who are very knowledgeable on such matters, have decided differently — it will be interesting to see how and how quickly the case progresses from here.
Supreme Court Agrees to Review University of Texas Affirmative Action Case
SCOTUSBlog has the scoop:
Returning for the first time in nine years to the ongoing controversy over the use of race in public college admissions, the Supreme Court on Tuesday agreed to review the constitutionality of a broad affirmative action program used to admit the freshman class at the University of Texas at Austin. Because the Court's order did not put the case on an expedited schedule, it will go over for argument in the next Term, starting October 1. Filing of written briefs, however, will occur over the summer, while the Justices are in recess. The case is Fisher v. University of Texas (docket 11-345).
The Court's decision will be made by an eight-Justice Court, since the newest member, Justice Elena Kagan, has disqualified herself. She was the U.S. Solicitor General in March 2010, when the Justice Department filed a brief in this case in the Fifth Circuit Court.
Paul Horwitz weighs in with some (mostly humorous) predictions here.
Forbes.com Op-Ed on Robo-Signing Settlement
My two cents on the recently0announced robo-signing settlement: "The 'Robo-Signing' Settlement: Seeds of Recovery, or Chaos?"
February 20, 2012
In the Mail…
I recently received a pre-publicaton copy of David Dorsen's biography of Henry Friendly. It looks excellent, at least based on a quick skim. Dorsen moves through Friendly's pre-judicial life pretty quickly. Although it's a 359-page book — plus appendices and end notes — Friendly starts serving on the Second Circuit by page 85. Pages 85 to 138 cover issues such as how Friendly wrote opinions and his relationship with his clerks and other judges. Then, starting on page 139 and running through page 339, we get a series of chapters closely studying Friendly's major decisions and views in particular areas he influenced. The last twenty pages offer a brief chapter on Friendly's suicide and another brief concluding chapter on his lasting influence. That strikes me as about the right balance: Friendly is admired for the way he decided cases, so the book spends more than half of its space with examples of how he did that. Anyway, I've only skimmed it so far, but I hope to blog more thoughts when I've had a chance to read it.
Bellia and Clark on Kiobel v. Royal Dutch Petroleum and the Alien Tort Statute
A.J. Bellia and my colleague Brad Clark recently published a fascinating article on the Alien Tort Statute, The Alien Tort Statute and the Law of Nations, published in the University of Chicago Law Review. Next week, in Kiobel v. Royal Dutch Petroleum, the Supreme Court will hear oral argument on one aspect of this statute — whether it applies to suits against corporations. Bellia and Clark have posted a short essay arguing that the Supreme Court should not reach the merits in Kiobel because federal courts lack subject matter jurisdiction over the case. The essay is Kiobel, Subject Matter Jurisdiction, and the Alien Tort Statute, forthcoming in the Georgetown Journal of International Law. Here's the abstract:
The Supreme Court is currently reviewing the Second Circuit's decision in Kiobel v. Royal Dutch Petroleum, a case holding that federal courts lack jurisdiction under the Alien Tort Statute ("ATS") over claims against corporations. Although the parties have focused on issues of corporate liability under the ATS, there is a logically antecedent question of subject matter jurisdiction that the Court should decide before considering corporate liability. All of the parties in Kiobel—whether corporate or individual—are aliens. Understood in its full legal and historical context, the ATS was a jurisdictional statute that did not apply to suits between aliens. The First Congress enacted the ATS as a species of foreign diversity jurisdiction to satisfy the United States' obligation under international law to redress violence by U.S. citizens against foreign citizens. Accordingly, the ATS was originally understood to give federal courts jurisdiction only over claims by aliens against U.S. citizens for intentional torts to person or personal property. In Sosa v. Alvarez-Machain, the Supreme Court sought to interpret the ATS in accordance with the expectations of the First Congress. If the Court adheres to this goal in Kiobel, then it should conclude that it lacks statutory subject matter jurisdiction over the case. If the Court decides that the ATS does not apply to suits between aliens, then the Court likely will never have occasion to decide the thorny question of corporate liability under the ATS. Under the express terms of 28 U.S.C. §1332, federal courts already have jurisdiction over suits by aliens against U.S. corporations provided that the amount in controversy is greater than $75,000.00—a condition easily met in cases against large corporations.
A Legal Theory for Autonomous Artificial Agents
For the philosophically-inclined, the Concurring Opinions blog has an excellent roundtable discussion of a new book, A Legal Theory for Autonomous Artificial Agents, by Samir Chopra and Laurence F. White. Great lineup of academic commentators, and responses from the authors. If you are interested in robots, artificial intelligence, autonomy, and related topics from a legal and philosophical perspective, you should really take a look at the book and the roundtable.
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