Supreme Court Update: Fisher v. University of Texas (14-981) and United States v. Texas (15-674)

June 24, 2016 Supreme Court Update

Greetings, Court Fans!

While "Brexit" is dominating the international headlines, it was a Texas twin bill yesterday on First Street, as The Eight handed down a 4-4 affirmance in United States v. Texas (15-674), upholding a nationwide injunction against implementation of the Obama Administration's deferred-action immigration policy, while The Seven (with Justice Kagan recused) issued a narrow ruling in Fisher v. University of Texas at Austin (14-981) affirming the University of Texas's race-conscious admissions policy. We'll cover the Texas twins in this Update (a triplet is due Monday, in the form of Whole Women's Health v. Hellerstedt (15-274)), as well as Dollar General Corp. v. Mississippi Band of Choctaw Indians (13-1496), another 4-4 affirmance in a case concerning the jurisdiction of tribal courts over non-members in civil cases. And we'll be back in your inboxes with one or two more installments to bring you up to speed before the final announcement day of the term on Monday.

Two of yesterday's cases were decided by an equally divided vote, but the Court didn't have that option in Fisher v. University of Texas (14-981). With Justice Kagan recused (having worked on the case while Solicitor General), the possibility of a 4-4 split was removed when Justice Scalia died in February. While everyone was expecting a 4-3 decision in this case—a renewed challenge to UT's use of race as a factor in undergraduate admissions—not many were expecting a 4-3 vote upholding the University's policy. But, in a narrow decision authored by Justice Kennedy (joined by Ginsburg, Breyer, and Sotomayor), the Court held that UT's use of race in admissions satisfied strict scrutiny—at least in 2008, when the University denied petitioner Abigail Fisher's application. Justice Kennedy took pains to state that universities have a continuing obligation to scrutinize the fairness of, and need for, their use of race in admissions as demographics change, suggesting that while affirmative action has clearly survived another challenge, it won't be the last time this issue comes before the Seven (or Eight or Nine).

Some background: The University of Texas uses a unique undergraduate admissions program, with two parts. First, the University fills 75% of its incoming class using Texas's Top Ten Percent Plan, which automatically admits any Texas high school student who graduated in the top 10% of her class to any State university. The remaining 25% of the class is filled using a "holistic approach" that employs a number of factors. Up until 2004, this holistic approach did not include race as a factor, because the Fifth Circuit had held that any consideration of race in admissions violated the Equal Protection Clause. But after the Supreme Court's 2003 decision in Grutter v. Bollinger, which permitted the use of race as a "plus factor" in admissions, UT conducted a study and decided that its race-neutral policy was not reaching its diversity goals. It therefore decided to add race as a "plus factor" to consider when weighing the applicant's potential contributions to the student body, which was a sub-factor of the "Personal Achievement Index," which along with the "Academic Index" was a sub-factor of the holistic approach, making up the 25% of the class not filled through the Top Ten Percent Plan. As Justice Kennedy noted, race is "a factor of a factor of a factor" in the admissions calculus.

But, according to Ms. Fisher, a white applicant who was not in the top 10% of her class, it was enough to keep her out of school. When Fisher was denied admission to UT's 2008 freshman class, she sued, claiming that the university's holistic system, which included race as a sub-factor, disadvantaged her and other white applicants competing for the 25% of class seats not reserved for top-10%ers. The District Court and Fifth Circuit rejected her arguments, but the Supreme Court, in Fisher v. University of Texas (2013) (Fisher I), vacated, holding that the lower courts had applied an insufficiently rigorous standard of review. Though, under strict scrutiny, courts may defer to a university's judgment that diversity is essential to its educational mission (and therefore a compelling governmental interest), Fisher I held that no deference was due on the question of whether the consideration of race was the least restrictive means of achieving this goal. The Court therefore remanded for the lower courts to apply the proper standard. However, without passing the case down to the District Court for further fact finding, the Fifth Circuit simply reiterated its earlier conclusion that UT's program satisfies strict scrutiny.

When the Court granted review again, it appeared that the writing was on the blackboard for UT's program, and possibly for affirmative action in admissions more generally. With Justice Kagan recused (and Justice O'Connor long gone), there were only three justices on the Court who consistently voted in favor of affirmative-action policies, and five justices who consistently voted against them. But, as Justice Alito observed in his dissent, "[s]omething strange . . . happened since our prior decision in this case." Justice Kennedy, who criticized the Fifth Circuit's use of not-so-strict scrutiny in Fisher I, effectively ratified it in Fisher II, joined by Justices Ginsburg, Breyer, and Sotomayor. With respect to the "compelling interest" prong of the test, Justice Kennedy agreed that the University's interest in classroom diversity was compelling for several reasons: (1) the destruction of stereotypes; (2) the promotion of cross-racial understanding; (3) the preparation of students for an increasingly diverse workforce and society; (4) the cultivation of leaders with legitimacy in the eyes of the citizenry; and (5) the creation of an academic environment that promotes a robust exchange of ideas, exposing students to differing cultures. With respect to the second prong of strict scrutiny, Justice Kennedy found UT's program was narrowly tailored because the University had already tried race-neutral alternatives from 1996 to 2003 and found them ineffective. Furthermore, relying entirely on the Top Ten Percent Plan to fill the class would exclude students, based solely on class rank, who excelled in other ways that would benefit the school. The Top Ten Percent Plan, therefore "may well compromise the University's own definition of the diversity it seeks" and create "perverse incentives" for "parents to keep their children in low performing segregated schools."

Though the majority upheld the University's policy, Justice Kennedy was careful to narrow the impact of the Court's decision. He emphasized that UT's policy was "sui generis" and that Fisher had only challenged the part of the policy that seats just 25% of the class, factors that "may limit [the case's] value for prospective guidance." He even warned the University that the Court's decision upholding its policy as of 2007 (when Fisher was rejected) does not mean that the University today "may rely on that same policy without refinement." Rather, the University has a "continuing obligation to satisfy the burden of strict scrutiny in light of changing circumstances." Consequently, "going forward, the assessment must be undertaken in light of the experience the school has accumulated and the data it has gathered since the adoption of its admission plan." In sum, Kennedy warned the University that it "must tailor its approach in light of changing circumstances, insuring that race plays no greater role than is necessary to meet its compelling interest." This appears to be a call for schools to conduct some sort of periodic—if not "constant"--reevaluation of their policies, though Kennedy provided little guidance how frequent or intense the review must be.

While Justice Kennedy managed to say all that in just 20 pages, Justice Alito, joined by the Chief and Justice Thomas, took over 50 pages to explain everything he thought was wrong with the majority's analysis. (Justice Thomas also penned a brief solo dissent, reiterating his previously stated position that affirmative action can never satisfy strict scrutiny.) Alito began by wondering aloud what had happened between Fisher I, when seven justices agreed that the Fifth Circuit had given too much deference to the University, and Fisher II, when a four-justice majority upheld the University's policy without any additional fact finding. Alito concluded that nothing had changed and that the University's position still came down to an appeal for blind deference to its assessment of the educational benefits of diversity and of the means to achieving them. Alito rejected each of the University's stated interests, concluding they were all vague and inconsistent. With respect to tailoring, he criticized the majority's decision to defer to the University without any further factual findings subsequent to Fisher I. This, Alito argued, turned strict scrutiny on its head. It is the school's burden, Alito reasoned, to provide evidence that the interest is both compelling and narrowly tailored. If the school does not bring forth that evidence, the Court cannot resolve ambiguities in its favor. "[S]omehow," Alito wrote, "the majority concludes that petitioner must lose as a result of UT's failure to provide evidence justifying its decision to employ racial discrimination." Alito took pains to clarify that affirmative action itself was not at stake in this case. What was at stake is whether a university "may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve the educational benefits of diversity, without explaining—much less proving—why the discrimination is needed or how the discriminatory plan is well crafted to serve its objectives." As he explained, the dissenters felt the University fell woefully short of justifying its policy.

So the University of Texas can continue using race as a factor of a factor of a factor in its admissions policy . . . at least until the next spurned applicant challenges it. But with Justice Kennedy having now voted in favor of an affirmative-action policy for the first time in his 28 years on the high court, it's fair to say that the future looks a bit brighter for race-conscious admissions policies today than it did Wednesday.

The same cannot be said for President Obama's immigration policy. It took just nine words to decide United States v. Texas (15-674)—"The judgment is affirmed by an equally divided Court"—but that lone sentence belies the decision's impact. The result of the Court's (in)decision is to uphold a nationwide injunction issued by a judge in Brownsville, TX, against the implementation of one of the Obama Administration's signature policies, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The President announced DAPA (and an expansion of a similar program, Deferred Action for Childhood Arrivals (DACA)) in 2014, after a broad immigration reform bill that had passed in the Senate died in the House. Frustrated by Congress's failure to act, Obama decided to go it alone, announcing a policy that would allow undocumented immigrants who have been in the U.S. since 2010 and who have children who are U.S. citizens or permanent residents to apply for a program that would allow them to remain in the country for three years and work here legally. But before DAPA went into effect, a coalition of twenty-six states, led by Texas, challenged the ban in the Southern District of Texas, where Judge Andrew Hanen issued a nationwide preliminary injunction against its implementation. The Fifth Circuit affirmed.

The Court granted the Government's petition for certiorari and set the case for expedited briefing and argument so that it could be decided this term. There were four issues in play: First, whether Texas and the other states had standing to challenge the policy as a threshold matter; second, whether the President acted within his constitutional authority to issue the new policy without Congressional approval; third, whether the Government had violated the Administrative Procedure Act by putting the policy in place without a formal notice-and-comment period; and fourth (an issue added by the Court, sua sponte), whether the policy violates the "Take Care Clause" of the Constitution, which requires that the President "take care that the laws be faithfully executed."

The Court didn't answer any of these questions, of course, and strictly speaking it set no new precedent. But the immediate practical impact of its decision is significant. The Administration will be precluded from implementing one of its signature policies for the remainder of the President's term and as many as five million undocumented immigrants will be thrust again into uncertainty. On the other hand, at its core, DAPA is a policy of inaction based on principles of prosecutorial discretion. Unless Congress provides sufficient funding to expeditiously deport every illegal immigrant in the country, it is hard to see how it, or a Brownsville district judge, can force DHS to deport the parents of U.S. citizens and permanent residents.

In any event, there's a fair chance these issues (or even this case) could return to a nine-member Court. The Government could petition for rehearing, as the challengers did in Friedrichs v. California Teachers Ass'n, the first of the 4-4 splits this term. Alternatively, it could return to the District Court for a trial on the merits before Judge Hanen and then appeal from a final judgment. (Presumably, if that appeal reached the Supreme Court, it would be because a President Clinton had opted to pursue it, and a President Clinton would likely bring with her to Washington a fifth vote in its favor.) But for the Obama Administration, this is a stinging loss. Of course, the President shouldn't really be complaining about the Court's overall treatment of his signature policies.

Immigration wasn't the only issue to divide the Court down the middle yesterday. It also issued a 4-4 affirmance in Dollar General Corp. v. Mississippi Band of Choctaw Indians (13-1496), a case concerning the jurisdiction of tribal courts over non-Tribe members in civil cases. The case arose after a 13-year-old member of the Mississippi Band of Choctaws alleged that he had been sexually assaulted by a store manager in a Dollar General store located on the Choctaw reservation. The boy and his family sued in tribal court, but Dollar General contested the tribal court's jurisdiction over it. In Montana v. United States (1981), the Supreme Court held that, with two exceptions, Indian tribes generally lack authority over non-Indians within the boundaries of their reservations. The Fifth Circuit held that the first exception applied here: Dollar General had consented to the Tribe's authority by entering into a lease agreement with it and maintaining various other commercial contacts. But the Supreme Court granted cert on a broad question of whether Indian tribes lack jurisdiction over non-members unless Congress has expressly conferred jurisdiction or the non-member has unambiguously consented to it. After oral argument in December (before nine justices), it looked like it would be a divided decision limiting tribal jurisdiction, though to what extent remained unclear. Following Justice Scalia's death, however, the Court split 4-4 and the Fifth Circuit's decision expanding tribal jurisdiction stands. It remains to be seen whether other circuits follow suit, or if an intractable circuit split necessitates future Supreme Court review.

That'll do it for now. The Court also decided two important criminal cases yesterday: Mathis v. United States (15-6092), holding that, because the elements of Iowa's burglary offense are broader than the elements of generic burglary, a prior burglary conviction under Iowa law cannot serve as a predicate offense for purposes of the Armed Career Criminal Act's sentencing enhancement, and Birchfield v. North Dakota (14-1468), holding that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving, but not warrantless blood tests. We'll have summaries of those decisions—and the remaining decisions from Monday—in our next installments.