News

In a case with implications for admissions policies at UNC-Chapel Hill, the U.S. Supreme Court agreed today to review for a second time admissions policies at the University of Texas at Austin.

The high court first reviewed the case filed by Abigail Fisher, a white student denied admission to the University of Texas at Austin allegedly because of her race, in 2012. In a 7-1 decision the following spring, the justices sent Fisher v. University of Texas at Austin back to the 5th U.S. Circuit Court of Appeals for further review.

Justice Anthony Kennedy writing for the Court said that “because the Fifth Circuit did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, its decision affirming the District Court’s grant of summary judgment to the University was incorrect.”

“[S]trict scrutiny does require a court to examine with care, and not defer to, a university’s ‘serious, good faith consideration of workable race-neutral alternatives,’” Kennedy added.

The appeals court did that and upheld the university’s admissions policies again in July 2014, finding that they withstood the strict scrutiny test.

In the second petition filed at the court and granted today, Fisher’s attorneys ask the court to “strike down UT’s unjustified use of race, and once again make clear that the Equal Protection Clause does not permit the use of racial preferences in admissions decisions where, as here, they are neither narrowly tailored nor necessary to meet a compelling, otherwise unsatisfied, educational interest.”

How the high court rules next term in Fisher will have some bearing on the case filed in federal court here against UNC-Chapel Hill in November, alleging similar flaws in the university’s admission policies. (A similar lawsuit was filed in Massachusetts federal court against Harvard by the same group on the same day.)

As SCOTUSblog’s Lyle Denniston described the Harvard and UNC lawsuits:

The basic thrust of the new lawsuits is that Harvard and the flagship university in North Carolina are using admissions programs that cannot satisfy the tough constitutional test for judging race-based policy — “strict scrutiny.”  But their broader theme is that the Supreme Court’s affirmative action efforts beginning with the Bakke ruling have failed to end racial bias in admissions programs, so it is now time to overrule Bakke and at least one other decision.

In the lawsuits, filed under the name “Students for Fair Admissions Inc.,” attorneys for plaintiffs — selected after a nationwide search by backers of Project for Fair Representation — argue that diversity at the schools can be achieved by race-neutral alternatives and that public colleges and others receiving federal funds should be ordered to end the use of race in admissions altogether.

The same attorneys representing Fisher at the Supreme Court are representing the students in the UNC case here, which is pending in Winston-Salem and is now assigned to U.S. District Loretta Copeland Biggs, who took her seat on that court this past December.

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News

With a nod to the role the Fair Housing Act has played in reducing segregation, the U.S. Supreme Court ruled today that housing discrimination cases can proceed in court upon a showing that a challenged practice disproportionately affects minorities, rejecting the argument that such cases turn upon proof of discriminatory intent and handing an important win to fair housing advocates and civil rights groups.

“The court acknowledges the Fair Housing Act’s continuing role in moving the nation toward a more integrated society,” Justice Anthony Kennedy wrote for the 5-4 majority in Texas Dep’t of Housing v. Inclusive Communities Project. He was joined in that decision by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Justice Samuel Alito wrote a dissenting opinion, joined by Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas.

A Texas non-profit filed the case before the court in 2008, alleging that the state housing agency distributed affordable housing tax credits in a way that thwarted integration efforts — disproportionately granting them to minority areas while denying them in white areas of Dallas.

But Texas argued that the group had to show that the government intended to discriminate — a hurdle that’s difficult to get over given that most companies and agencies don’t openly announce their intentions.

Over time all 11 federal appeals courts recognized such “disparate impact” claims under the Act and, as Justice Kennedy noted, developers and governmental bodies had begun considering them when developing plans and practices so as to avoid unnecessary harm to minority communities.

“Recognition of disparate impact liability under the FHA also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment,” Kennedy said.

Despite the consensus in the appeals courts, though, the Supreme Court has in recent years twice agreed to take cases challenging that view, only to see them settle before a ruling issued — both sides appreciating the risk associated with a ruling against their interests.

That willingness to take the cases had many in the fair housing world concerned that the justices were primed to reverse what had become an accepted and critical tool.

Today’s ruling brought both relief and hope for those advocates.

“We are pleased that the Supreme Court recognized decades of long-standing precedent in today’s ruling, ensuring the survival of an important tool to combat discrimination in America’s housing market,” Michele Jawando from the Center for American Progress said in a statement. “Equal opportunity and diverse, thriving communities are crucial to our national prosperity. Even unintentional housing discrimination denies families access to the social, economic, and health benefits of appropriate housing opportunities. We are at our strongest when our communities are more diverse and inclusive.

The court’s full opinion is here.

News

In a 6-3 decision released today, the U.S. Supreme Court upheld the availability of subsidies to health insurance purchasers on both state exchanges and the federal exchange, affirming the Fourth Circuit’s decision in King v. Burwell.

“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Chief Justice John Roberts  wrote for the majority. “If at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.”

Joining the Chief Justice were Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justice Antonin Scalia wrote a dissenting opinion, joined by Justices Samuel Alito and Clarence Thomas.

Plaintiffs who brought the case contended that the language of the statute only authorized subsidies for purchasers on state-run exchanges, relying on language in the Act which appeared to limit subsidies to people buying insurance on “an exchange established by the state.”

North Carolina, like three dozen other states, did not set up its own health care exchange.  More than 560,000 state residents purchased health insurance on the federal exchange instead, with more than 90 percent doing so with the help of subsidies designed to make coverage affordable for middle- and low-income purchasers.

The majority had plenty to say about the sloppiness of the drafting of the Act, but in the end found that the language at issue was ambiguous and could be interpreted in several ways. As such, the words should “be read in their context and with a view to their place in the overall statutory scheme.”

Scalia’s dissent was far less staid, calling the majority’s logic “jiggery-pokery” and “pure applesauce” and labeling the Act “SCOTUScare.”

“Under all the usual rules of interpretation, in short, the Government should lose this case,” Scalia wrote. “But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”

Read the full court opinion here.

News

North Carolina doesn’t have a Confederate battle flag flying over its state capitol, but it does have a specialty license plate featuring that  flag, issued by the state on behalf of the Sons of Confederate Veterans.

It’s just one of many vanity plates offered by the Department of Motor Vehicles “allowing citizens with common interests to promote themselves and/or their causes.”

Virginia has a similar plate, and today — with a nod to the horrific shootings of nine black churchgoers at the Emanuel AME Church in Charleston, S.C. and the ensuing actions of South Carolina’s Gov. Nikki Haley in ordering the removal of the Confederate flag from the state’s Capitol grounds — the governor of Virginia ordered that flag removed from state license plates.

“Although the battle flag is not flown here on Capitol Square, it has been the subject of considerable controversy, and it divides many of our people,” Governor Terry McAuliffe said. “Even its display on state-issued license tags is, in my view, unnecessarily divisive and hurtful to too many of our people.”

McAuliffe now joins a growing group of state officials recognizing the divisiveness of the Confederate flag, even if offered as an historical symbol to state residents choosing to display it.

He can’t stop private citizens from waving that  flag, but he sure can stop the state from letting it appear on a state license plate.

That’s all the more important now, given the U.S. Supreme Court’s 5-4 decision last week in Walker v. Texas Sons of Confederate Veterans, holding that specialty license plates are government speech.

(Notably, in that case, Texas refused to allow the Confederate Veterans plate, finding it too offensive.)

“As a general matter,” Justice Stephen Breyer wrote, “when the government speaks it is entitled to promote a program, to espouse a policy or to take a position.”

What that means here, of course, is that the Confederate flag on a North Carolina license plate is no longer the message of a private group.

It’s now the message of the state of North Carolina.

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Update:  Several media outlets are now reporting that the governor will act to stop the issuance of state license plates bearing the Confederate battle flag emblem.  “The time is right to change this policy due to the recent Supreme Court ruling and the tragedy in Charleston,”  Josh Ellis, spokesman for Gov. Pat McCrory, said in an email to WRAL.

SCV

 

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News

Good news for the courts came last month when the House announced a badly-needed $18 million infusion to bring the state’s judicial system into the digital age, as part of its proposed 2015-17 budget.

But bad news followed yesterday, when the Senate released a proposed budget that provides virtually no funding for court technology, with just $567,000 set aside for an “electronic compliance dismissal project.”

That might come as a bit of a shock to Chief Justice Mark Martin, who in a March speech asked the General Assembly to step up its court funding, in part to implement a statewide electronic filing system.

“Even before the start of the Great Recession, in 2007, North Carolina ranked 49th out of 50 states in terms of per capita spending on the judicial branch,” Martin said at the time. “Five years later, in 2012, we ranked 45th out of the 50 states using the same source data as corroborated by the highly-respected National Center for State Courts.”

Among the other highlights from the Senate budget affecting justice and judicial issues:

  • A proposed 19 percent cut to the Capital Defender’s Office, which provides legal services for indigent defendants charged with capital crimes and possibly facing the death penalty. The budget calls for the elimination of seven positions, including four attorneys.  “We are concerned that we will lose experienced attorneys who are currently representing defendants facing the most serious cases, and that this loss will not generate any real savings in money,” Thomas Maher, Executive Director of the Office of Indigent Defense Services, said in an email.
  • Funds for interpreters, expert witness and juries in the same amount as the House ($1.5 million per year), but significantly less for operating costs and legal services. The House broke out funds for legal services and funds for the operating budget into two categories — with a combined $12.4 million set aside for the next two years. The Senate merged those two categories and set aside a total of only $6.6 million for the same period.
  • Elimination of three special superior court judgeships. Presumably these are the positions already phased out in the prior budget — and not additional cuts — and appear in the budget solely to show the funds recaptured.
  • Step pay raises for state troopers, correctional officers, assistant and deputy clerks and magistrates and an $18 million adjustment to the workers’ compensation reserve.

Read more about the General Assembly’s  continued underfunding of the state’s judicial system in our “Courts in Crisis” section, here.