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affirmative action

The Scalia effect on current cases

The Trib highlights a few cases pending before the Supreme Court that could be affected by the death of Justice Antonin Scalia.

Antonin Scalia

Texas abortion law

On March 2, the court will hear oral arguments in Whole Woman’s Health v. Hellerstedt, which challenges Texas’ 2013 abortion law. Beyond deciding the constitutionality of a law that could shut down about half of the state’s 19 remaining abortion clinics, the Texas abortion case gives the Supreme Court an opportunity to clarify how far states can go in restricting abortion.

In 1992, the court ruled that states can impose abortion restrictions as long as they do not place an undue burden on a woman’s ability to obtain an abortion.

Lower courts across the country have disagreed, however, on what constitutes an “undue burden.” Activists on all sides are hoping the high court will provide a clearer definition in its decision in the Texas case. That case centers on the state’s requirement that abortion clinics meet hospital-like ambulatory surgical center standards — which include minimum sizes for rooms and doorways, pipelines for anesthesia and other modifications. In June, a three-judge panel of the U.S. 5th Circuit Court of Appeals largely upheld the new abortion restrictions, saying the new law does not impose an undue burden on a majority of Texas women seeking abortions.

Justice Anthony Kennedy could be the swing vote. If he sides with the conservatives on the court, the resulting 4-4 tie would affirm the lower court ruling.

The lower court also granted the relatively remote Whole Woman’s Health in McAllen an exemption to some narrow elements of the ambulatory surgical center requirements and from a separate provision of the law that requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of an abortion clinic.

Barring a tied vote, a decision in the Texas case could also determine the constitutionality of restrictions in place in other areas of the country. As of November, 10 states had adopted admitting privileges requirements, but courts blocked enforcement in six of those states, according to the Center for Reproductive Rights. Six states had enacted ambulatory surgical center standards on abortion facilities. Those restrictions were not in effect in two of those states.

Immigration

The high court also agreed to hear the state’s case against the Obama administration’s controversial executive action on immigration that was announced in November 2014.

Known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, the action would shield more than 4 million undocumented immigrants in the country from deportation proceedings and allow them to apply for three-year work permits. Lower courts have ruled to halt the policy three separate times.

The Supreme Court agreed to hear the case in January but has yet to schedule arguments.

[…]

UT-Austin’s affirmative action policy

The death of Scalia cast uncertainty on many important cases before the Supreme Court, but probably won’t have a major impact on the decision in Fisher v. the University of Texas at Austin, which is a case about the constitutionality of affirmative action.

Justice Anthony Kennedy is still the likely swing vote, just as he was before Scalia died.

Abigail Fisher, who is white, contends she was unconstitutionally denied admission into UT-Austin in 2008 because of her race. UT-Austin considers the race of a small portion of its applicants, and black and Hispanic students often get a slight advantage in that pool of admissions. If Fisher wins her case, UT-Austin might be unable to consider the race of its applicants in the future. A broad ruling against UT-Austin could even end affirmative action nationwide.

Scalia, a longtime opponent of affirmative action, was almost certain to vote against UT-Austin. He was in the dissent in Grutter v. Bollinger in 2003, when the Supreme Court upheld the practice of affirmative action in a limited way.

[…]

Redistricting

Finally, the justices heard arguments last year on a Texas case that questions a basic idea in American election law. In Evenwel v. Abbott, the plaintiffs argue that their voting power is diluted by the way Texas draws its state legislative districts, saying those lines should be based on the number of eligible voters in each district and not on population.

Congressional districts are based on population, as directed in the Constitution. The Evenwel case challenges Texas Senate district lines; a decision allowing states to use eligible voters as a base could shatter current lines here and in other states that want to make the change, remaking the distribution of power in state legislatures. That decision is pending.

The court has already accepted those four cases, among others, but doesn’t have to do anything this term if the justices decide to change course.

If the justices don’t want to rule on a case they’ve already accepted, they can announce it was “improvidently granted,” which means lower court ruling holds, [Sanford Levinson, a constitutional law expert at the University of Texas at Austin] said. They can hold over any unheard cases they want until they have a ninth colleague, and they can rehear oral arguments with a ninth colleague if they want to wait or they think a ruling with a four-person majority would be too controversial.

“It certainly wouldn’t surprise me if they hold over some stuff where time really isn’t of the essence,” Levinson said. “You can make this argument of the election case [Evenwel]. If they hold it over, the world won’t come to an end.”

There’s a lot of good commentary out there about What This All Means, at least in the short term – see Think Progress, SCOTUSBlog, and Rick Hasen, for example. The main point to keep in mind is that in any case where SCOTUS winds up splitting 4-4, the ruling of the lower court would stand. From my perspective, that’s a good thing in some cases – Friedrichs being one example, Evenwel being another – and not so good in others, specifically Whole Woman’s Health and the DAPA case. In addition, in some cases that kind of result could also mean a split in the appeals courts. There are plenty of abortion restriction lawsuits out there, over laws similar to what Texas passed, and a number of other federal courts have struck them down. It’s not hard to imagine at least one appeals court upholding the lower court on those rulings, thus making laws like Texas’ legal in some states but not in others. Texas’ law is currently on hold thanks to SCOTUS, so one way to avoid this problem would be for the Court to delay hearing the appeal until they’re back at full strength. Or maybe the good Anthony Kennedy will show up and Texas’ law will get struck down on a 5-3 vote. Let’s just say that John Roberts has a lot to think about and leave it at that.

One other thing: Justice Scalia’s death has revived the idea of term limits for Supreme Court justices, an idea that has fairly broad support. Ted Cruz is a proponent of the idea, though as is always the case with Cruz, he has bad reasons for doing so. I’m perfectly fine with the idea of limiting Justices to 18 years on the bench. It’ll take a Constitutional amendment, so the odds of it happening are infinitesimal. but if it gains momentum that will be okay by me. For what it’s worth, prior to Scalia’s death, there were five Justices who had already served more than 18 years, and three of them were appointed by Republican Presidents: Scalia, Kennedy, and Clarence Thomas, along with Ruth Bader Ginsburg and Stephen Breyer. Make of that what you will.

Mimi Swartz’s Mayoral campaign rant

Here it is.

Mayor Annise Parker

Mayor Annise Parker

What if they held a mayoral race and nobody came? That’s the question plaguing many people currently involved in Houston politics—even if no one else in town is asking it. This phenomenon isn’t entirely new: in 2009,* a measly 19 percent of Houston voters turned out for the general election to make a winner out of Annise Parker. That number could wind up looking downright spectacular, however, after the results of the 2015 mayoral race are tabulated on November 3. At this point—about a month out—no one can even use the traditional, if lame, “just-wait–til-Labor-Day” excuse; that holiday has come and gone, and if you ask the average person on the street who he is supporting, the answer is likely to be one big shrug followed by a puzzled squint, accompanied by “Who’s running again?”

One could say that the issues—at least the ones being discussed—aren’t all that compelling. Few people understand, or even want to understand, the pension crisis that is bleeding the city dry while keeping the bank accounts of retired firefighters and policemen safe and secure. Houstonians do know that traffic back-ups and potholes as dangerous as starving raptors now make it impossible to get from point A to point B (or C or D), but residents—especially the long-timers—also comfort themselves knowing that congestion equals growth equals prosperity. A future of potentially uneducated masses in a high-tech world? Isn’t that the school district’s cross to bear? Increased segregation between the haves and the have-nots in this oh-so-hospitable town? Come on! Once oil prices go back up, anyone will be able to buy a mansion in River Oaks.

I’ve covered this before, but what did the 2009 Mayoral election not have that the three preceding high-turnout Mayoral elections (2003, 2001, and 1997*) did? A high profile referendum that helped drive that turnout. In 2003, it was the Metro referendum; in 2001, it was on a charter amendment to ban domestic partner benefits for city employees; and in 1997 it was a charter amendment to ban affirmative action. Past performance does not guarantee future results, but I’d bet the over on 2009 turnout this year. If that doesn’t happen, then we’ll need to have a heart-to-heart talk about how disengaged our local voters are.

As or the rest, like most rants it’s more descriptive than prescriptive, so there’s no argument for me to evaluate. I don’t disagree with the description, but that doesn’t get us very far. Swartz correctly notes that our city voters are old, but gives no suggestion as to what if anything could be done to change that. I figure sooner or later a candidate will invest in that kind of work, and if it pays off then others will follow. Until then, what you see is what you get.

By the way, here’s another story about that 1997 affirmative action referendum, from just before the election. See if any of this sounds familiar to you.

There has never been any dispute about what Proposition A would do if it is approved by voters here on Tuesday: It would abolish affirmative action in Houston’s contracting and hiring.

Nonetheless, there has been a tumultuous fight over just how Proposition A should be worded, one that may well head for the courts even after all the votes are in. And at the core of this battle is a question that is reverberating in other cities and states where anti-affirmative-action measures are gathering steam: should opponents of affirmative action be able to define these measures by using the language of the civil rights movement?

That is exactly what happened in California last year with the passage of Proposition 209, the measure that dismantled state-sponsored affirmative action. Similarly, the conservative group promoting the measure in Houston drew up a proposition with words taken almost directly from the 1964 Civil Rights Act. It said voters should decide whether the city “shall not discriminate against or grant preferential treatment” to anyone “on the basis of race, sex, color, ethnicity or national origin.”

But by the time Mayor Bob Lanier, a staunch proponent of affirmative action, and the City Council were through, the wording on the proposition was totally revised.

So now, when voters in the nation’s fourth-largest city go to the polls on Tuesday, they will be asked whether the city charter should be amended “to end the use of affirmative action for women and minorities” in employment and contracting, “including ending the current program and any similar programs in the future.”

The measure’s proponents say the rewording by the Mayor and the Council is outrageous and heavy-handed, while those who favor the change say it is a more honest and straightforward way of describing what the proposition would do. Behind this fight over words are some striking polling statistics, which help to explain just why the fight has been so pitched and which offer a look at the voters’ complicated feelings about affirmative action.

Phrased as a nondiscrimination measure, Proposition A would likely pass with as much as 70 percent of the vote, according to joint polls conducted in recent weeks by the University of Houston and Rice University. But phrased as a measure to wipe out affirmative action, the results are starkly different: In separate polls conducted last month and earlier this week, 47.5 percent of voters described themselves as favoring that concept.

“Basically, what we found here is that the wording is incredibly important on this issue,” said Bob Stein, a political scientist and dean of the School of Social Sciences at Rice University. Like many pollsters here, he describes Tuesday’s vote as too close to call.

“The wording here defines the issue,” Professor Stein added, “and in defining the issue, you manipulate the symbols.”

In the poll this week of 831 registered voters, 47.5 percent said they would vote for Proposition A and 39.8 percent said they would vote against, with the rest undecided or of no stated opinion. The poll’s margin of error was plus or minus 3.6 percent.

Boy, the more things change, am I right? I wonder how many of the pro-Prop A people in 1997 are now anti-Prop 1 people this year. For the record, Prop A was defeated by a 55-45 margin, so consider that another example of how hard it is to get an accurate poll response in a city of Houston election. I’m trying to keep that in mind with polls about HERO, whatever they say.

(*) To be fair, the 1991 election, in which Bob Lanier defeated Sylvester Turner and ousted then-Mayor Kathy Whitmire, had turnout in excess of 300,000 as well, and there’s no report of a referendum on the results page. Maybe that year was different, or maybe there was something else going on that I don’t know about.

The UT admissions lawsuit

I haven’t paid much attention to the latest lawsuit over the University of Texas’ admissions standards and practices – as with school finance lawsuits, I’ve lost count of how many there have been in my lifetime – but there are some interesting issues in this one to be decided.

On its surface, the case of Abigail Noel Fisher v. University of Texas revolves around whether the school’s consideration of race in admissions led to the rejection of a white student.

But as the case nears the Supreme Court’s fall docket, it is also stirring a debate about the impact of affirmative action policies on Asian-American students and casting a spotlight on the stereotype of Asian-Americans as “the model minority.”

On one side, Fisher and her supporters, including the 80-20 National Asian American Educational Foundation, argue that the race-conscious admissions policies discriminate against qualified Asian-American students in favor of less-qualified African-American and Latino students.

On the other side, a coalition of more than 100 Asian-American groups has filed briefs backing the UT-Austin policy, saying it benefits Asian-American students who come from disadvantaged backgrounds.

“UT’s process of individualized review advances its compelling interest in achieving the educational benefits of student diversity, increases the likelihood of admission for those who do not have the same social mobility and capital as others, and has the potential to benefit all Asian-American and Pacific Islander applicants,” a brief filed by the Asian American Legal Defense and Education Fund (AALDEF) states.

[…]

Asian-American supporters of the UT policy point out that the bulk of students admitted under the holistic criteria are Asian-Americans and whites.

In 2011, 60 percent of incoming freshmen admitted based on the holistic criteria rather than the top 10 percent rule were white and 16 percent were Asian-American.

By comparison, 10 percent were Hispanic and 3 percent were African American, according to UT enrollment statistics.

“It seems to me that the system works,” said Madeline Y. Hsu, director of the Center for Asian American Studies at UT-Austin.

The lawsuit stems from the fact that Fisher was not admitted to UT in 2008 and was instead forced to attend LSU. I can’t honestly say that I see such a fate as being genuinely injurious to her, but we’ll have to leave that up to the Supremes. The “holistic” policy mentioned came about as a result of the last lawsuit, and it seems like a reasonable approach to me, one that I daresay is employed by numerous private universities. We’ll see what SCOTUS thinks.