Tuesday, July 9, 2013

Affirmative Action after Fisher

A stable society depends on the rule of law, which involves, among other things, legal certainty. This is a simple principle that means people should have a reasonable sense of what is lawful and what is not. It also depends on the general public having confidence that the law enjoys some relationship -- not necessarily close, but at least a passing one -- to common sense. 

But a recent decision about affirmative action in higher education has given the public cause to scratch their heads in puzzlement. 
Fisher: a puzzling decision
Discrimination law is complex, and nobody should expect judicial opinions on the subject to be as pat and trite as a politician's soundbite. But the rule of law requires that ordinary people of reasonable intelligence should at least be able to follow the rationale for a judicial decision even if they do not agree with it. The case of Fisher v. University of Texas at Austin falls short of this standard.

In Fisher, the Supreme Court held that the educational benefits of racial diversity can justify a state university in using race as a factor in its admissions process, but only if there are "no workable race-neutral alternatives." The holding in Fisher leaves informed, intelligent individuals wondering how, when, and why some (but not other) race-based classifications are acceptable, and grasping for a way to make sense of the plain-English version of the decision, namely that a state university must try to achieve racial diversity without considering race. 
As Justice Kennedy noted at the very beginning of the Court's opinion, the University of Texas at Austin "considers race as one of various factors in its undergraduate admissions process." Precedent entitles it to do so, even though racial classifications trigger strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment. But in reviewing the University's process, the Court of Appeals had failed to "apply the correct standard of strict scrutiny." What then is the "correct standard," which the the Court of Appeals should have applied? It is this, said the Supreme Court: 
"[S]trict scrutiny imposes on the University the ultimate burden of demonstrating, before turning to  racial classifications, that available, workable, race-neutral alternatives do not suffice."
Reducing the holding to its essence, universities are free to aim for racial diversity so long as they do not use race in the process. Only if there is no "available, workable race-neutral alternative" that will produce the educational benefits of racial diversity (and not merely diversity itself) may they use race as one of their admissions criteria. This standard is hard to understand in theory, almost impossible to apply in practice, and the most likely field for the next battle over affirmative action.

Some background is helpful at this point. Affirmative action involves making decisions on the basis of racial classifications.  When the government uses a racial classification, the courts will apply the "strict scrutiny" test to determine whether that use is consistent with the Equal Protection Clause of the Fourteenth Amendment.  Thirty-five years ago the Supreme Court of the United States held that in the context of higher education a state university that uses race as one of its admissions criteria must show that the use is "narrowly tailored to serve a compelling governmental interest." Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 299 (1978).  And what is that "compelling governmental interest"? The "educational benefits of student body diversity," said the Supreme Court in Gratz v. Bollinger, 539 U.S. 244 (2003) and Grutter v. Bollinger, 539 U.S. 306, 325 (2003).

It is important to note that the plaintiff in Fisher did not challenge this notion that the "educational benefits of student body diversity" rise to the level of a compelling governmental interest. A compelling governmental interest is part of the strict scrutiny test. It is, by definition, a higher standard than the "legitimate" and "important" governmental interests that form part of the rational-basis and intermediate scrutiny tests respectively. Grutter and Gratz remain authority for the proposition that the educational benefits of racial diversity constitute a compelling -- not merely legitimate or important -- governmental interest. In their separate concurrences, Justices Thomas and Scalia both indicated that they would have welcomed the opportunity to revisit this issue. 

In his concurrence, Justice Thomas observed that the only other situations to qualify as compelling governmental interests sufficient to justify racial classifications were national security and the duty to remedy past racial discrimination. He pointed out that in the 1950s and 60s when segregationist state governments claimed that desegregation would force schools to close, the Supreme Court "was unmoved by this sky-is-falling argument." If even the very survival of a university is not a governmental interest sufficiently compelling to justify racial discrimination, Justice Thomas wrote, it follows that the state "cannot have a compelling interest in the supposed benefits that might accrue to that university from racial discrimination." Justice Thomas enunciates a clear argument that even his critics would concede is internally consistent. Just as clear and consistent as Justice Thomas's concurrence is the dissent.

Unlike Justice Thomas, Justice Ginsburg supports affirmative action. She pointed out that requiring universities to employ race-neutral means to achieve an obviously race-conscious end encourages them to "resort to camouflage." Instead, the courts should be more candid. On the subject of strict scrutiny, Justice Ginsburg wrote that judges should not subject all racial classifications to the same standard of judicial review, letting them distinguish between those "designed to benefit... [and those designed to] burden a historically disadvantaged group." Even though it rests on the assumption that judges are able to recognize a burden when they see one, this approach does not consider the rejection of Asian and White students as a burden, even though it is the corollary of the benefit to admitted Black students. 

Like Justice Ginsburg, the legal scholar Randall Kennedy believes that "reparatory justice" not educational diversity is the moral and intellectual justification for affirmative action. He describes Abigail Fisher, the plaintiff in the Fisher case, as "to a small extent disadvantaged... [b]ut for the purpose of aiding a commendable mission of racial healing not for the purpose of putting her down on account of her race." He shares Justice Ginsburg's belief that one can distinguish between invidious discrimination and benign racial distinctions, and he would not put the discrimination Abigail Fisher experienced in the invidious category. This is an approach Justice Thomas disagrees with fundamentally: "I think the lesson of history is clear: Racial discrimination is never benign."

Justice Thomas's reasoning may have a closer connection to common sense than the opinion of the Court, as may Justice Ginsburg's. But the concurrence and the dissent are not the law. The majority (including Justices Thomas and Scalia) signed on to an opinion that (a) justifies affirmative action in higher education on the basis that the educational benefits of diversity constitute a compelling governmental interest; (b) requires a university that wishes to achieve the educational benefits of diversity to attempt to do so by race-neutral means; and (c) allows the university to use race only if no workable, race-neutral alternative would produce the educational benefit of diversity. 

People who differ fundamentally on the issue of affirmative action can at least agree that the decision does nothing to promote legal certainty. The rule of law requires a more well-reasoned, internally consistent, readily comprehensible decision than the Court provided in Fisher

Wednesday, March 13, 2013

Desegregation: a new rule

Advocates of desegregation should take heart, and planners should take notice, because at last it's official: Land-use policies that perpetuate residential segregation are illegal.  A new rule from the Department of Housing and Urban Development (HUD) clearly spells out that the Fair Housing Act prohibits practices that have a discriminatory effect (disparate impact), even if there was no intent to discriminate.

Confirming the way most federal courts had long interpreted the statute, HUD's new rule states that "[a] practice has a discriminatory effect where it actually or predictably results in a disparate impact on a group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns because of race, color, religion, sex, handicap, familial status, or national origin" 24 CFR 100.500(a), Subpart G. This applies to public and private entities alike, so it covers not only city councils and local housing authorities but also housing developers.

Federal courts generally apply a three-part burden-shifting formula to decide whether a land-use policy violates the statute's discriminatory-effects prohibition, and this is the course that HUD decided to follow. First the plaintiff has to show that the practice "caused or predictably will cause a discriminatory effect." The burden then shifts to the respondent to prove that the practice "is necessary to achieve one or more [of the respondent's] substantial, legitimate, nondiscriminatory interests." If the respondent succeeds, the burden shifts back to the plaintiff to prove that the respondent could serve those interests "by another practice that has a less discriminatory effect."

On the one hand, this does not represent a new departure or a substantive change to the federal law. But, on the other hand, it certainly helps plaintiffs who are trying to show that a zoning decision would violate the Fair Housing Act even if the city officials had no intention of acting in a racially discriminatory way. In practice, this may encourage challenges to the planning policies that undergird the de facto segregation of the public schools in and around Springfield, Massachusetts.
Springfield: Some of the most segregated schools in the nation

As before, any ordinance, bylaw, policy, or practice is open to a courtroom attack if it "creates, increases, reinforces, or perpetuates segregated housing patterns." Now, however, desegregation advocates will have an easier time defeating the customary motion to dismiss.

Friday, January 18, 2013

This should be easy

Some aspects of intellectual property law are inherently complex. But other areas could be -- and should be -- much simpler. For example, you would think the law would have a crystal clear answer to this question: When a retailer is selling something produced by a famous manufacturer and wants to advertise the fact, is the retailer allowed to use the manufacturer’s name in its advertisements?

Reasonable readers may well ask themselves why this isn't settled law, something the trademark statute or an early decision interpreting the statute must have established long ago. But it was this very question that the Court of Appeals for the 1st Circuit considered this month (January 2013) in Swarovski Aktiengesellschaft v. Building #19, Inc. Here are the facts:

The plaintiff, Swarovski, makes crystal products.  The defendant, Building #19, bought some Swarovski products in order to sell them at its stores. To that end, Building #19 designed some advertisements, which informed the public that (a) it was offering Swarovski products for sale; and (b) Building #19 had no connection to Swarovski and was not an authorized Swarovski dealer. The advertisements prominently featured the mark Swarovski (replete with the circled-R registered trademark symbol). The disclaimer was much less prominent. Swarovski sued Building #19 and managed to obtain a preliminary injunction.
Crystal figurine by... oh, wait.

Yes, indeed: Swarovski persuaded a United States district court judge to prohibit Building #19 from using the word Swarovski in an ad that stated, truthfully, that the company was selling Swarovski crystal collectibles.  How, reasonable readers may wonder, was Building #19 supposed to promote its perfectly lawful sale of Swarovski products without using the name Swarovski? That is a question the district court can mull over at its leisure now that the Appeals Court has quashed the preliminary injunction.

In trademark law, the term we use to describe this situation is “nominative fair use.”  This is the judge-made principle that allows you to use another person's trademark so long as you're not trying to mislead anyone. The Appeals Court noted that although the First Circuit recognized nominative fair use it had “never endorsed any particular version of the doctrine.” I respectfully submit that now would be a good time. Business owners, creators, and the general public would appreciate some certainty.