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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

Yesterday’s meeting of a special committee of the University of North Carolina’s Board of Governors included passage of a much-awaited report about centers and institutes, with recommendations that a poverty-focused center run by an outspoken law professor be shut down.

You can read my full report about the recommendations here,

Though the closure of the poverty center has garnered much of the news coverage from Wednesday’s meeting, the  most contentious aspect, by far,  was discussion about another center, the Center for Civil Rights in UNC-Chapel Hill’s law school.

The board of governors’ committee recommended that the center stay open, but that UNC-Chapel Hill campus officials review the center within a year and tighten up policies regarding political participation and advocacy work.

Fierce objections to the center’s existence were also vocalized Wednesday by Steven Long, a UNC Board of Governor member. Long, a Raleigh attorney with the Parker Poe law firm, is a former board member of the Civitas Institute, a conservative think-tank and political action group.

Below is video of Long’s comments:

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Scroll down to read UNC law professor Gene Nichol’s response to the expected closure of the UNC Center on Poverty, Work and Opportunity. For a fuller account of Wednesday’s meeting, click here.

A committee for the University of North Carolina’s Board of Governors issued a much-anticipated draft report on centers and institutes Wednesday, recommending that three centers on university campuses be shut down in the near future.

The report also recommends tightening existing university system policies banning political participation and limiting advocacy work.

UNC law professor Gene Nichol

UNC law professor Gene Nichol

Among the three recommended for closure was the Center on Poverty, Work and Opportunity, on UNC-Chapel Hill’s campus. The others included the N.C. Center for Biodiversity at East Carolina University, which may be merged into a department, and the Institute for Civic Engagement and Social Change at N.C. Central University. Winston-Salem State University’s Center for Community Safety could also face closure if it doesn’t find new funding within the next six months.

The poverty center, which was started by former Democratic U.S. Sen. John Edwards, receives no direct state funding.

Its director, tenured law professor Gene Nichol, has rankled some Republican state leaders and conservative groups in recent years by penning editorials decrying how state policies are failing impoverished North Carolina. (Note: Nichol is a past board member of the N.C. Justice Center, an anti-poverty non-profit that N.C. Policy Watch is part of. He had no role in the reporting or writing of this piece.)

“The Board of Governors’ tedious, expensive and supremely dishonest review process yields the result it sought all along – closing the Poverty Center,” Nichol wrote in an editorial published on the News & Observer’s website after Wednesday’s committee meeting. “This charade, and the censorship it triggers, demeans the board, the university, academic freedom and the Constitution.

“It’s also mildly ironic that the university now abolishes the center for the same work that led it to give me the Thomas Jefferson Award a year ago,” he wrote.

As a tenured law professor, Nichol will continue to be employed by the university. He was not at Wednesday’s meeting.

Wednesday’s draft report can be read here.

The review of centers and institutes across the UNC system was triggered by the Republican-led state legislature, which included an item in last summer’s budget requiring the UNC system to examine the centers, and make up to $15 million in cuts. The months-long review began with 237 centers, and the draft report made public Wednesday recommends action at 16 groups, while campuses moved to shut down eight others. A group of nine centers related to the marine sciences are expected to be examined at a later date.

The total dollars expected to be saved with the recommended closure was not available, but are likely to be a fraction of the up to $15 million in cuts authorized by the legislature.

The full UNC Board of Governors will vote at their meeting next week on the UNC-Charlotte campuses whether to adopt today’s recommendations. The current board of governors have all been appointed by a Republican-led state legislature, and attracted attention for its sudden decision last month to fire UNC President Tom Ross and look for a new leader of the 17-campus higher education system.

Much of the discussion at Wednesday’s nearly two hour meeting focused on the UNC Center for Civil Rights, a group within the law school on Chapel Hill’s campus that works with students and engages in litigation around the state. The draft report recommended that UNC-Chapel Hill review the civil rights center in the next year, and “define center policies around advocacy and conform with applicable university regulations.”

UNC Board of Governor member Jim Holmes speaks Weds. with UNC Center for Civil Rights' director Ted Shaw and other staff

UNC Board of Governor member Jim Holmes speaks Weds. with UNC Center for Civil Rights’ director Ted Shaw and other staff

Steven Long, a conservative member of the board of governors, spoke out Wednesday against the civil rights center, saying he thought it engaged in partisan politics, advocated for a narrow point of view and routinely sued the state.

“It’s really not an academic center at all; it’s an advocacy organization,” Long said, during lengthy remarks he gave Wednesday.

Long, a Raleigh attorney who was a board member for the conservative Civitas Institute until 2013, made reference to a federal desegregation lawsuit the center’s lawyers, who represented a group of African-American parents, filed against Pitt County.

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UNC Not FairAffirmative action is headed back to the U.S. Supreme Court in a case with implications for admissions policies at UNC-Chapel Hill.

In a reprise of a case that the high court first addressed in 2013, attorneys for Abigail Fisher — a white student denied admission to the University of Texas at Austin allegedly because of her race — filed a petition for review on Tuesday from a decision by the 5th U.S. Circuit Court of Appeals affirming the dismissal of her case.

In a 7-1 decision in the first go-around by Fisher, the Supreme Court sent the case back to the Fifth Circuit for a reconsideration of the university’s affirmative action policy under a strict scrutiny standard.

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

In the petition filed this week, Fisher’s attorneys argue that the appeals court failed to adequately give the university’s admissions policies strict scrutiny and asked the court to take the case, “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 proceeds next 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 newly-commissioned U.S. District Loretta Copeland Biggs, who took her seat this past December.

 

Commentary

DeanSmithI didn’t attend UNC and had only lived in North Carolina for a year when Coach Dean Smith won his final NCAA championship in 1993. I do have two daughters who are both Chapel Hill grads, but save for that and my admiration/appreciation for the school, any connections to Coach Smith that I have ever enjoyed have been, to say the least, extremely attenuated. Indeed, for my college basketball coaching hero — the late, great John Robert Wooden — Smith was an up and coming rival back in the day.

It is therefore, above all, a sense of gratitude that I feel today to the troubled, if unwitting, souls at the Pope-Civitas Institute for producing a list in recent weeks — the so-called “Map of the Left” — that would include us both. What a gift that they actually got the darned thing out before Coach Smith passed.

Indeed, the more I think about it, the more I am struck by what a great gift the Pope-Civitas people have given to the hundreds of caring and thinking folks who were named. From now on, all of us will always be able to proudly wear the badge of honor of having been associated with such a great man.

And as David Zirin of The Nation (among many others), explained this morning, there were loads of great reasons that Smith was included on the “map” — especially his passionate opposition to racism in all of its ugly manifestations (most notably the death penalty). Even if the silly Civitasers want to think of it as a “vast and shadowy network,” the so-called “map” is, for the most part, a list of people and organizations dedicated to truth, love, sunlight and modernity — i.e. the same things Smith fought for throughout his admirable life.

RIP Coach Smith. All members of the progressive cause in our state are honored to have had such a marvelous teammate.