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Group of parents and taxpayers file suit against Texas district over renaming schools that were named for Confederate leaders

The Houston Chronicle reports that a group of parents and taxpayers have filed suit in Harris County District Court against Houston Independent School District (HISD), alleging the school district violated numerous laws and their own regulations when recently changing the names of eight schools. According to public relations consultant Wayne Dolcefino, a spokesman for the plaintiffs, “We’ve been arguing as parents and taxpayers for months that the vote was illegal, politically driven, and taking these historic buildings was against the law.”

The suit seeks a court order preventing HISD’s board from spending millions of taxpayer dollars on renaming the eight schools. In May, the school district’s board voted to change the schools’ names because each school was named for a Confederate leader.

Dolcefino contends that the school board violated the Texas Open Meetings Act and the Monument Act, among other regulations. The plaintiffs issued a 24-hour demand to HISD, asking the board to rescind its vote to rename the schools. However, HISD failed to respond.

Attorney Dan Goforth, who’s representing the plaintiffs, said the money HISD will have to spend is the sole problem with the name changes. “We’re not saying they can’t do it. We’re just saying they can’t do it the way they want to do it,” Goforth said. He estimated it will cost the school district at least $5 million, including at least $2 million to change student uniforms to match the new school names.

HISD expects the total cost of the name changes will be no more than $2 million.

Source: Houston Chronicle, 6/234/16, BY Brooke Lewis

[Editor’s Note: In December 2012, Legal Clips summarized an article from  impactnews.com reporting that the Hays Consolidated Independent School District (HCISD) had voted to insert language into the student code of conduct that would ban the display of the Confederate flag from student property on school grounds. The ban was implemented 12 years after the board voted to phase out the use of the Confederate battle flag from school-funded property and uniforms. After the 2000 vote, the Confederate flag issue remained dormant until a May 2012 incident involving the vandalism of school property with racist graffiti.]

The U.S. Supreme Court holds that University of Texas at Austin’s race-conscious admissions policy does not violate the Fourteenth Amendment’s Equal Protection Clause

Fisher v. University of Texas at Austin, No. 14-981 (U.S. Jun.23, 2016)

Abstract: The U.S. Supreme Court, in a 4-3 split, upheld the University of Texas at Austin’s (UTA) undergraduate admissions policy that considers race, along with a number of other factors, in determining which applicants to admit to the university. The four justice majority concluded that UTA’s race-conscious admissions program passed constitutional muster under the Fourteenth Amendment’s Equal Protection Clause.

Justice Kennedy, joined by Justices Ginsburg, Breyer, and Sotomayor, delivered the Court’s opinion. Justice Thomas filed a dissenting opinion. Justice Alito, joined by Chief Justice Roberts and Justice Thomas, filed a separate dissenting opinion.

Facts/Issues:  Abigail Fisher, a white applicant who did not graduate in the top ten percent of her class, was denied admission to UTA in 2008 under UTA’s “holistic review” program.  Although race is not assigned a numerical value under UTA’s holistic review program, UTA is committed to increasing minority enrollment – a goal which it terms “critical mass.”

UTA’s holistic review program was adopted after the Fifth Circuit invalidated a system based on a numerical score involving academic performance and race in Hopwood v. Texas, 78 F.3d 932 (1996).  After Hopwood, state lawmakers adopted the Top Ten Percent Law, which grants automatic admission to students in the top 10% of their high school class.  Together, these programs produced a more racially diverse student body at UTA than had existed pre-Hopwood.

But after the Supreme Court’s decision in Grutter v. Bollinger, 539 U.S. 306, upheld the use of race in holistic admissions plans, UTA restored a racial component to its program. Race was added as a factor to UTA’s “personal achievement index,” a mix of leadership qualities, extracurricular activities, work and service experience, and special circumstances.

That index, known as the PAI, and a separate academic index are used on a matrix to grant admission to applicants who do not get in through the Top Ten Percent law. Fisher sued UTA and school officials in federal district court, alleging that UTA’s consideration of race in admissions violated the Fourteenth Amendment’s Equal Protection Clause.  The district court granted summary judgment to UTA.

Affirming, the Fifth Circuit held that Grutter required courts to give substantial deference to UTA, both in the definition of the compelling interest in diversity’s benefits and in deciding whether its specific plan was narrowly tailored to achieve its stated goal. Applying that standard, the Fifth Circuit upheld UTA’s admissions plan.  Fisher appealed.

In a 7-1 decision (Fisher I), the U.S. Supreme Court vacated the Fifth Circuit’s decision upholding the constitutionality of UTA’s admission policy, because “the Court of Appeals did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and . . . Bakke . . . .” It remanded the case back to the Fifth Circuit for further proceedings consistent with the Court’s opinion. Justice Kennedy wrote the majority opinion.

The Majority noted that the line of cases upholding the use of race in university admissions, when it is narrowly tailored to promote the compelling governmental interest in the educational benefits that flow from a diverse student body, had not been challenged. This “strict scrutiny” analysis requires a court to conduct an exacting analysis, which the Supreme Court found the Fifth Circuit had not done. The Court directed the Fifth Circuit to “assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.”

After the case was remanded, in a 2-1 split, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled that the undergraduate admissions policy of the UTA does not violate the Fourteenth Amendment’s Equal Protection Clause.

The Fifth Circuit panel majority, following the U.S. Supreme Court’s Fisher I instructions, subjected UTA’s admissions policy to a rigorous “strict scrutiny” analysis. It concluded that to “deny UT Austin its limited use of race in its search for holistic diversity would hobble the richness of the educational experience in contradiction of the plain teachings of Bakke and Grutter.” It found that UT’s “holistic review,” in which race is considered as one of a number of factors, “is a necessary complement to the Top Ten Percent Plan, enabling it to operate without reducing itself to a cover for a quota system; that in doing so, its limited use of race is narrowly tailored to this role — as small a part as possible for the Plan to succeed.”

Fisher appealed and the United States Supreme Court granted certiorari for second time.

Ruling/Rationale: The Majority, in affirming the U.S. Court of Appeals for the Fifth Circuit’s three-judge panel decision, began by  indicating that the U.S. Supreme Court in Fisher I laid out three controlling principles to determining the constitutionality of a university’s “affirmative action program.”

First, “[r]ace may not be considered [by a University] unless the admissions process can withstand strict scrutiny.” This requires the University to demonstrate with clarity that its “purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary . . . to the accomplishment of its purpose.”

Second, once a university gives “a reasoned, principled explanation” for its decision, deference must be given “to the University’s conclusion, based on its experience and expertise, that a diverse student body would serve its educational goals.”

Third, Fisher I clarified that no deference is owed when determining whether the use of race is narrowly tailored to achieve the university’s permissible goals. Universities bear the ultimate burden of proving that the race-neutral alternatives that are both available and workable are insufficient to achieve diversity.

The Majority stressed that UTA’s program is unique, i.e., “sui generis”, because unlike other college admissions policies “it combines holistic review with a percentage plan.” As a result, it concluded that “[t]he component of the University’s admissions policy that had the largest impact on petitioner’s chances of admission was not the school’s consideration of race under its holistic-review process but rather the Top Ten Percent Plan.” It noted that the petitioner would have probably stood a better chance of being admitted if UTA had used a race-conscious review to select all applicants rather than reserving seats for those in the top 10% of their high school class.

The Majority found, however, that the petitioner had not challenged the “Top Ten Percent Plan” component and, thus, her acceptance of that plan complicated the Majority’s review. It pointed out that “[i]f the Court were to remand, therefore, further fact finding would be limited to a narrow 3­ year sample, review of which might yield little insight.” It also reiterated that because is a state law UTA “lacks any authority to alter the role of the Top Ten Percent Plan in its admissions process.”

The Majority emphasized that UTA has a continuing burden to satisfy strict scrutiny, which requires it to engage “in periodic reassessment of the constitutionality, and efficacy, of its admissions program.” It also cautioned that as UTA examines its admissions data “it should remain mindful that diversity takes many forms” and avoid formalistic racial classifications.

The Majority stated that the core issue in the case was: “whether, drawing all reasonable inferences in her favor, petitioner has shown by a preponderance of the evidence that she was denied equal treatment at the time her application was rejected.” It rejected the petitioner’s argument that UTA had not articulated a compelling interest.

In response to this argument, the Majority said the following:

As this Court’s cases have made clear, however, the compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students. Rather, a university may institute a race-conscious admissions program as a means of obtaining ‘the educational benefits that flow’ from student body diversity.

The Majority also indicated that because UTA is prohibited from seeking a quota of minority students, it cannot be faulted for failing to specify the particular level of minority enrollment at which it believes the educational benefits of diversity will be obtained.

The Majority likewise swept aside the petitioner’s argument that UTA “has no need to consider race because it had already ‘achieved critical mass’ by 2003 using the Top Ten Percent Plan and race-neutral holistic review.” It found that UTA “could not be faulted on this score.”

In addition, the Majority rejected the petitioner’s contention that “considering race was not necessary because such consideration has had only a ‘minimal impact’ in advancing the [University’s] compelling interest.” It asserted that the record did not support the petitioner’s argument.

The Majority disposed of the petitioner’s final argument that “there are numerous other available race-neutral means of achieving” the University’s compelling interest. The Majority indicated that “at the time of petitioner’s application, none of her proposed alternatives was a workable means for the University to attain the benefits of diversity it sought.”

Finally, the Majority warned UTA to remain vigilant regarding its admissions policy, saying:

The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.

In his dissent, Justice Alito remarked on the Majority’s failure to hold UTA to the strict scrutiny standard that the Court had mandated on remand in Fisher I. The strict scrutiny standard required that UTA show that its use of race and ethnicity in admissions decisions serves compelling interests and that its plan is narrowly tailored to achieve those ends. The burden on UTA under this strict scrutiny analysis  was thus to 1) identify the interests justifying its plan with enough specificity to permit a reviewing court to determine whether the requirements of strict scrutiny were met, and 2) to show that those requirements were in fact satisfied. Justice Alito reiterated that the Court had previously rejected UT’s argument that it should defer to UT’s judgment on those matters.

At the core of his argument, Justice Alito maintained that because UTA failed to identify with any degree of specificity, the interests that its use of race-based admissions decisions were supposed to serve, or that those interests were in fact being served, UTA cannot satisfy strict scrutiny and therefore judgment should be entered in favor of the petitioner. He positioned his argument from a string of precedent denoting racial neutrality as the goal of the Equal Protection Clause.

Utilizing a rigid level of scrutiny as a starting point, Justice Alito stated that UTA’s goal of reaching a “critical mass” of underrepresented minority students without a reasonable definition of the term did not suffice as a specific interest. He maintained that the University must offer some sort of concrete interest to be reviewed by the Court. Moreover, he maintained that UTA’s other articulated goals, “the destruction of stereotypes, the promotion of cross-racial understanding, the preparation of a student body for an increasingly diverse workforce and society, and the cultivation of a set of leaders with legitimacy in the eyes of the citizenry,” were not concrete or precise because they offered no limiting function and thus could not be considered “narrowly tailored”.

Justice Alito went on to address four separate and specific goals that UTA had advanced throughout the course of litigation: demographic parity, classroom diversity, intraracial diversity, and avoiding racial isolation. In his discussion of demographic parity, Alito highlighted the fact that UTA had represented two different positions on the matter, first stating that the differences between the racial makeup of the University’s undergraduate population and the state’s population prevented UTA from “fully achieving its mission,” and later stating that UTA’s “critical mass” was “not at all” determined by the demographics of Texas.

Addressing the first of UTA’s representations, Alito noted that any attempt in pursuing parity with state demographics was “outright racial balancing,” which the Court had consistently found to be unconstitutional. In addressing the second representation, Justice Alito reasoned that even if demographic disparity were just one of many factors that gave cause for concern, the goal of seeking to reduce the disparity could not survive the strict scrutiny test because there was no logical stopping point short of racial balancing.

With regard to classroom diversity, Justice Alito’s main point was that merely identifying a disparity in classroom diversity was not enough to satisfy strict scrutiny if UTA could not identify what level of classroom diversity it would deem sufficient.

Next, Justice Alito addressed UTA’s interest in intraracial diversity, coined “diversity within diversity” by the respondents. UTA’s argument was that students admitted under the Top Ten Percent Plan tended to come from less well-funded, racially identifiable (majority-minority) schools and, as a result, were not totally representative of the race. Using a race-based admissions process in addition to the Top Ten Percent Plan would, in the eyes of UTA, permit the school to admit not only minorities from poor families, but from affluent families as well. Justice Alito posited that this desire for intraracial diversity rested on the assumption that there was something wrong with minority students admitted through the Top Ten Percent Plan because they were from lesser schools.

Justice Alito focused on the Court Majority’s embrace of UTA’s interest in avoiding feelings of “loneliness and isolation” among minority students. Again, he reasoned that if state demographics were the driving force behind UTA seeking to create demographic parity to avoid isolation, it was engaging in impermissible racial balancing. Further, if UTA was not using demographics as a test, then it did not make sense for Asian-American students to not be classified as an underrepresented minority group.

Furthermore, Justice Alito attacked the Majority’s argument that UTA could not have adopted any race-neutral alternatives that would have been similarly workable for the University to attain the benefits of diversity that it sought. He argued that UTA had not proved (or had in fact disproved) that its race-conscious holistic review had helped UTA achieve its diversity objectives any better than a race-blind review would have. Alito highlighted that, on assumption of similar statistics to 2004 when race was not a factor in UTA admissions, race would have been a determinative factor for only 15 African American students and 18 Hispanic students in 2008. He further stated that because UTA collected no data on the students admitted under the Top Ten Percent Plan and those admitted under the race-based admissions process, it was impossible for UTA to demonstrate that its procedure was narrowly tailored to meet its desired objectives.

Finally, Justice Alito discussed the majority’s three reasons for breaking the strict scrutiny standard. In discussing the Majority’s stance that the further fact-finding that would occur on remand would yield little insight, Justice Alito reasoned that UTA was required to identify evidence that race-based admissions were necessary to achieve the desired educational outcome before it put them in place, not after. In discussing the majority viewpoint that the University had no reason to keep extensive data on students admitted under the Top Ten Percent Plan because it had no control over the plan, Alito emphasized that UTA had been long aware that it bore the burden of justifying racial discrimination under strict scrutiny and had every reason to keep the data. Lastly, in discussing the majority’s stance that the litigation had persisted for many years and the case offered little prospective guidance, Justice Alito insisted that the Court cannot side with UTA “simply because it is tired of this case.”

Fisher v. University of Texas at Austin, No. 14-981 (U.S. Jun.23, 2016)

[Editor’s Note: Shortly after the U.S. Supreme Court’s decision in Fisher, Legal Clips published a summary of the National School Boards Association’s statement reacting to the ruling. In that statement, NSBA Executive Director Thomas J. Gentzel said, “Diversity positively affects learning outcomes for all students and benefits schools, communities, and our country as a whole.” He added, “It takes dedicated efforts to achieve racial, ethnic, and socioeconomic diversity and NSBA is pleased that the Court affirmed its longstanding principles in support of policies and practices that foster diversity and integration.”

Also commenting on the Fisher decision, NSBA General Counsel Francisco Negrón said, “Inclusion goals and diversity efforts benefit the educational outcomes and future success of all students, especially underrepresented minorities.” Negrón continued, “The Court’s decision rightfully recognized the achievement of educational benefits of diversity for all students as a constitutionally permitted academic goal.”]

 

 

 

 

 

 

 

North Carolina district adopts policy in defiance of state law, allows transgender students access to facilities based on gender identity

The Charlotte Observer reports that Charlotte-Mecklenburg Schools (CMS) has informed all principals that effective August 2016, transgender students will be called by the name and pronoun they choose. In addition, CMS’s new regulation will recognize transgender students based on their chosen gender identity. The policy provides for access to  restrooms, locker rooms, and other facilities based on that gender identity.

CMS Superintendent Ann Clark said CMS has been working on the regulation for a year, but the political furor over North Carolina’s House Bill 2 (HB 2) left principals and teachers confused and wary. Clark said the goal of the CMS regulation is to allow all students to be safe and comfortable as they pursue an education.

Although official transcripts must carry the name and gender on the student’s birth certificate, schools will be expected to create class rosters that use the student’s preferred identity. All students will have access to increased privacy, such as a screened area in the locker room or a single-stall restroom, on request. Clark and CMS attorney George Battle III said the regulation follows the guidance of a federal appeals court ruling and was not designed as an act of defiance against HB2, which, among other things, requires students to use public school restrooms and locker rooms based on the gender on their birth certificates. “That’s the law of the land for five states that are in the 4th Circuit, North Carolina being one of those states,” Battle said.

Regulations do not require a board vote, but board Chair Mary McCray said members stand unanimously behind the new plan. She plans to send a letter to elected officials representing Mecklenburg County to fill them in. Clark said a student’s transgender status is confidential and the district has no way of tallying how many students fit that description.

CMS has been dealing with transgender students on a case-by-case basis, starting in elementary schools and running through high school graduations, where there have been cases of the graduate wanting one name and gender used on the diploma and the parents wanting another. If students are 18, as most graduates are, the student’s choice will be honored next year, Clark said.

Source: The Charlotte Observer, 6/20/16, By Ann Doss Helms

[Editor’s Note: The U.S. Court of Appeals for the Fourth Circuit case referenced in the Observer is G.G. v. Gloucester County School Board. The Fourth Circuit denied the school board’s motion for a stay while it files a petition for certiorari asking the U.S. Supreme Court to review the Fourth Circuit’s decision. As a result, the case was  remanded to the federal district court with instructions for that court to reconsider its denial of G.G.’s motion for a preliminary injunction allowing him to use the boys restroom. (see Legal Clips  June 24, 2016 Sua Sponte summary for more details). 

On June 21, 2016, WBTV reported that North Carolina Gov. Pat McCrory criticized CMS’s decision to implement a regulation contrary HB 2. McCrory said: 

Instead of providing reasonable accommodations for some students facing unique circumstances, the Charlotte-Mecklenburg School System made a radical change to their shower, locker room and restroom policy for all students, said Graham Wilson, Press Secretary for Governor Pat McCrory. This curiously-timed announcement that changes the basic expectations of privacy for students comes just after school let out and defies transparency, especially for parents. The Charlotte-Mecklenburg School System should have waited for the courts to make a decision instead of purposely breaking state law. ]

Federal district court in Virginia grants transgender student preliminary injunction allowing him to use the boys’ bathroom at school

The Washington Post reports that a federal district court in Virginia has issued an order granting transgender student Gavin Grimm’s motion for a preliminary injunction, which will require Gloucester County school officials to allow the student use the boys’ bathroom. The injunction bars the Gloucester County School Board from enforcing its policy requiring students to use either the restroom that corresponds with their biological gender or a private single-stall.

The order was issued after the U.S. Court of Appeals for the Fourth Circuit remanded the case to the lower court with instructions that it should reconsider Grimm’s motion for the preliminary injunction. The Fourth Circuit in a three-judge panel decision concluded the district court failed to give the federal government’s interpretation of Title IX, as applying to gender identity, deference and had used the wrong standard in considering the motion.

After weighing the ruling from the appeals court, U.S. District Court Judge Robert Doumar, who denied Grimm’s petition last year, granted his request to use the boys’ bathroom while his case proceeds. In the 1½ page order, Doumar specified that the injunction allows Grimm to use the boys’ bathroom but not the locker room.

Source: The Washington Post, 6/23/16, By Moriah Balingit

[Editor’s Note: The district court order granting the preliminary injunction said “that for the reasons set forth in [Judge Davis’s Fourth Circuit concurrence] and based on the declarations submitted by the parties, the Court finds that the plaintiff is entitled to a preliminary injunction.”

In April 2016, Legal Clips summarized the Fourth Circuit panel’s decision in G.G. v. Gloucester County School Board, including Judge Davis’s concurrence. In his concurrence, Judge Davis stated his belief that the Fourth Circuit would have been on solid ground in granting G.G.’s motion for a preliminary injunction based on “the undisputed facts in the record.” He argued that given the weight of Fourth Circuit authority concluding that “discrimination against transgender individuals constitutes discrimination ‘on the basis of sex’ in the context of analogous statutes and our holding here that the Department’s interpretation of 34 C.F.R. § 106.33 is to be given controlling weight, G.G. has surely demonstrated a likelihood of success on the merits of his Title IX claim.” Judge Davis likewise found that G.G. had presented sufficient factual allegations to support the other factors required for issuance of a preliminary injunction.]

Sua Sponte: NSBA issues statement applauding U.S. Supreme Court’s decision in Fisher upholding constitutionality of the University of Texas at Austin’s policy that considers race as one of many factors in the admissions process

The National School Boards Association (NSBA) has issued a statement applauding the U.S. Supreme Court’s decision in Fisher v. University of Texas at Austin, No. 14-981, which upheld the principle that there is an educational benefit in diversity for all students. The Court, in a 4-3 ruling, held that the university’s race-conscious admissions program does not violate the Fourteenth Amendment’s Equal Protection Clause. Justice Kennedy, speaking for the Court, reiterated that “the decision to pursue the educational benefits that flow from student body diversity is, in substantial measure, an academic judgment,” which is entitled to some judicial deference.

NSBA Executive Director Thomas J. Gentzel said, “Diversity positively affects learning outcomes for all students and benefits schools, communities, and our country as a whole.” He added, “It takes dedicated efforts to achieve racial, ethnic, and socioeconomic diversity and NSBA is pleased that the Court affirmed its longstanding principles in support of policies and practices that foster diversity and integration.”

Also commenting on the Fisher decision, NSBA General Counsel Francisco Negrón said, “Inclusion goals and diversity efforts benefit the educational outcomes and future success of all students, especially underrepresented minorities.” Negrón continued, “The Court’s decision rightfully recognized the achievement of educational benefits of diversity for all students as a constitutionally permitted academic goal.”

NSBA filed an amicus brief in Fisher in support of the university’s position. Legal Clips has published a brief summary of Justice Kennedy’s opinion in Fisher.

U.S. Supreme Court upholds the constitutionality of the University of Texas at Austin’s race-conscious admissions policy

Fisher v. University of Texas at Austin, No. 14-981 (U.S. Jun.23, 2016)

Abstract: The U.S. Supreme Court, in a 4-3 split, upheld the University of Texas at Austin’s (UTA) undergraduate admissions policy that considers race, along with a number of other factors, in determining which applicants to admit to the university. The four justice majority concluded that UTA’s race-conscious admissions program passed constitutional muster under the Fourteenth Amendment’s Equal Protection Clause.

Justice Kennedy, joined by Justices Ginsburg, Breyer, and Sotomayor, delivered the Court’s opinion. Justice Thomas filed a dissenting opinion. Justice Alito, joined by Chief Justice Roberts and Justice Thomas, filed a separate dissenting opinion.

The majority, in affirming the U.S. Court of Appeals for the Fifth Circuit’s three-judge panel decision, began by indicating that the U.S. Supreme Court in Fisher I laid out three controlling principles to determining the constitutionality of a university’s “affirmative action program.”

First, “[r]ace may not be considered [by a university] unless the admissions process can withstand strict scrutiny,” which requires the university to demonstrate with clarity that its “purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary. . to the accomplishment of its purpose.”

Second, once a university gives “a reasoned, principled explanation” for its decision, deference must be given “to the University’s conclusion, based on its experience and expertise, that a diverse student body would serve its educational goals.”

Third, Fisher I clarified that no deference is owed when determining whether the use of race is narrowly tailored to achieve the university’s permissible goals.

The majority stressed that UTA’s program is unique, i.e., “sui generis,” because unlike other college admissions policies “it combines holistic review with a percentage plan.” As a result, it concluded that “[t]he component of the University’s admissions policy that had the largest impact on petitioner’s chances of admission was not the school’s consideration of race under its holistic-review process but rather the Top Ten Percent Plan.” The Court indicated that because petitioner did not challenge the percentage part of the plan, “the record is devoid of evidence of its impact on diversity.”

The majority emphasized that UTA has a continuing burden to satisfy strict scrutiny, which requires it to engage “in periodic reassessment of the constitutionality, and efficacy, of its admissions program.” It also cautioned that as UTA examines its admissions data “it should remain mindful that diversity takes many forms” and avoid formalistic racial classifications.

The majority stated that the core issue in the case was: “whether, drawing all reasonable inferences in her favor, petitioner has shown by a preponderance of the evidence that she was denied equal treatment at the time her application was rejected.” It rejected the petitioner’s argument that UTA had not articulated a compelling interest.

The majority stated in response:

As this Court’s cases have made clear, however, the compelling interest that justifies consideration of race in college admissions is not an interest in enrolling a certain number of minority students. Rather, a university may institute a race-conscious admissions program as a means of obtaining the educational benefits that flow from student body diversity.

The majority also pointed out that because UTA is prohibited from seeking a quota of minority students, it cannot be faulted for failing to specify the particular level of minority enrollment at which it believes the educational benefits of diversity will be obtained.

The majority likewise swept aside the petitioner’s argument that UTA “has no need to consider race because it had already ‘achieved critical mass’ by 2003 using the Top Ten Percent Plan and race-neutral holistic review.” It found that UTA “could not be faulted on this score.”

In addition, the majority rejected the petitioner’s contention that “considering race was not necessary because such consideration has had only a ‘minimal impact’ in advancing the [University’s] compelling interest.” It pointed out that the record did not support the petitioner’s argument.

The majority disposed of the petitioner’s final argument that “there are numerous other available race-neutral means of achieving the University’s compelling interest,” by pointing out that “at the time of petitioner’s application, none of her proposed alternatives was a workable means for the University to attain the benefits of diversity it sought.”

In a final word of caution to UTA, the majority said:

The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies.

Fisher v. University of Texas at Austin, No. 14-981 (U.S. Jun.23, 2016)

[Editor’s Note: This brief summary will be followed later by a more detailed summary, which will include Justices Thomas and Alito’s dissenting opinions.]

 

Philadelphia School District adopts policy protecting the rights of transgender students

The School Reform Commission of Philadelphia (SRC) has approved a policy designed to protect the rights of transgender and nonconforming students in the Philadelphia School District (PSD), reports Education News. Under the new policy, students may be addressed by names and pronouns corresponding to their gender identity in interactions with other students and staff, on written records including class rosters and report cards, and they may participate in gender-segregated groups and facilities that correspond to their gender identity.

The policy formalizes PSD’s informal policy of accommodating transgender students based on gender identity. However, district officials do not know to how many students the new policy would apply. In the last seven years, about 30 families have asked district officials questions related to transgender rights. Officials expect the policy to apply to a relatively small number of students.

PSD’s transgender policy is the latest in a flurry of progressive school guidelines concerning transgender rights in the region and country. In April, other school boards in Pennsylvania, like Springfield Township, Montgomery County, and Great Valley School District in Chester County adopted similar policies. In February, the school board in Cherry Hill, New Jersey did the same.

One widely held view is that these policy changes have been spurred by the Obama administration’s directive last month that public schools must give transgender students the right to use facilities of their choice. The directive was delivered in the form of a letter from the U.S. Department of Education. National and some statewide Republican lawmakers denounced the action, but it was hailed by liberal activists and civil rights groups. “It’s good federal policy to force school districts across the country to put in place policies that respect people’s dignity,” said Bill Green, a member of the Philadelphia School Reform Commission.

Source: Education News, 6/21/16, By Raymond Scott

[Editor’s Note: The press release announcing SRC’s approval of the policy states:

Effective immediately, the new policy includes the following guidance for educators, school and District staff, students, parents and volunteers:  

  • Students may be addressed by names and pronouns corresponding to their gender identity in interactions with other students and staff, and written records, including class rosters, report cards, letters from the school or District, and photo ID.    
  • Transgender identity, legal name and sex assigned at birth is considered to be confidential information.   
  • Students may participate in gender-segregated groups that correspond to their gender identity.   
  • Schools should use gender-neutral language in communication with all students and families, regardless of a student’s gender-identity.  
  • Students may access locker rooms and restrooms that correspond to their gender identity. Students who desire more privacy may be provided with access to a single-stall restroom or alternative changing area. No student will be required to use a single-stall restroom.   
  • Students may also dress in accordance with their gender identity. Schools may not adopt dress codes that restrict clothing or appearance on the basis of gender.]  

 

Maryland court upholds suspension of elementary school student who fashioned a pop tart gun

The Washington Post reports that Anne Arundel County Circuit Court Judge Ronald A. Silkworth has upheld the suspension of an elementary school student who chewed his breakfast pastry into the shape of a gun and pretended to shoot classmates. The judge concluded that the student’s action disrupted class and that the student and his parents were not denied their due process rights.

Judge Silkworth ruled that the school system could reasonably consider that the boy’s actions in March 2013 were disruptive and that “a suspension was appropriately used as a corrective tool to address this disruption, based on the student’s past history of escalating behavioral issues,” according to his 11-page ruling. He upheld an earlier ruling that supported the two-day suspension from the Maryland State Board of Education (MSBE).

The student was suspended when he was a second-grader at Anne Arundel’s Park Elementary School. According to school officials, the child nibbled his breakfast bar into the shape of a gun and exclaimed: “Look, I made a gun!” He then aimed the pastry at other students at their desks and in a nearby hallway.

However, school  district officials have long maintained that the suspension was not about guns or pastries. They say the boy was disciplined for repeated disruptions and that his two-day punishment was a last resort after a series of behavioral problems.

In February 2015, MSBE, agreeing with the school district, upheld the supsension. MSBE  concluded: “The student in this case had a long history of behavioral problems that were the subject of progressive intervention by the school. He created a classroom disruption on March 1, 2013, which resulted in a suspension that was justified based on the incident in question and the student’s history.”

Anne Arundel County school officials applauded the judge’s decision. Bob Mosier, a school system spokesman, said, “We have believed from the outset that the actions of the school staff were not only appropriate and consistent with Board of Education policies and school system regulations, but in the best interests of all students.” He added, “It is unfortunate that the character of those staff members has been called into question throughout this long process, but we are grateful that Judge Silkworth reaffirmed the validity of their actions.”

Source: The Washington Post, 6/16/16, By Donna St. George

[Editor’s Note: In March 2013, Legal Clips summarized an article in The Washington Post reporting that following a 7-year-old elementary school student’s suspension by Anne Arundel County school officials for nibbling his Pop Tart into the shape of a gun and pointing it at other students, his father hired  an attorney to appeal the suspension.]

South Carolina district settles OCR complaint by agreeing to allow transgender student access to facilities on the basis of gender identity

Dorchester County School District Two (DCSD2) has entered into a settlement agreement with the U.S. Department of Education’s Office for Civil rights (OCR), reports The Washington Post, to allow a transgender student to use the bathroom of her choice and will revise its policies to bar discrimination based on gender identity. The settlement came after OCR issued a “letter of findings” to DCSD2 Superintendent Joseph R. Pye.

School officials have agreed to allow the student to use the girls’ bathroom and, if the girl’s family requests it, establish a support team to ensure she has access to all programs and activities at school. The Dorchester County school system had been under investigation since August 2015, when OCR  received a complaint. According to OCR’s summary of findings, although teachers agreed to refer to her by her new name in the classroom, the student’s male name continued to show up on standardized tests and other district documents.

DCSD2 officials eventually agreed to change the student’s name in district records, during the federal investigation and after the student’s parents petitioned a court to officially change her name. However, school officials would not allow the student to use the girls’ bathroom and forced her to instead use one of several private bathrooms located in the nurse’s station, the assistant principal’s office, and a work room.

Source: The Washington Post, 6/21/16, By Moriah Balingit and Emma Brown

[Editor’s Note: OCR’s “Letter of Findings” concluded DCSD2 had violated the student’s rights under Title IX “ by providing her different benefits or benefits in a different manner; and by subjecting her to separate or different rules of behavior, or otherwise limiting her in the enjoyment of rights, privileges or opportunities, in violation of the Title IX regulation, at 34 C.F.R. § 106.31. OCR further determined that there was insufficient evidence to conclude that the District violated the Title IX regulations at 34 C.F.R. §§ 106.8(a) and (b), and 106.9(a).”

The Resolution Agreement between DCSD2 and OCR provides for both individual measures and district-wide measures to ensure transgender students’ Title IX rights.]

DOJ opposes advocacy group’s attempt to consolidate its suit with North Carolina governor’s suit against federal government over expansion of ant-discrimination laws to cover gender identity

Politico reports that following a federal court order allowing North Carolina to consolidate its suit against the U.S. Department of Justice (DOJ) with North Carolina Gov. Pat McCrory’s suit against DOJ, in defense of the state’s so-called “bathroom law,” the Alliance Defending Freedom (ADF) is also seeking to consolidate its suit with the governor’s. ADF filed the lawsuit, North Carolinians v. U.S. Department of Justice, on behalf of parents and students in federal district court earlier this year, challenging the Obama administration’s interpretation of Title IX.

McCrory’s suit and the suit filed by state lawmakers, however, challenge the administration’s interpretation of Title VII as it relates to the use of sex-segregated facilities by state employees. DOJ officials contend that ADF shouldn’t be able to consolidate its case with McCrory’s case because the group is raising different issues, which could slow things down.

According to DOJ, students in ADF’s lawsuit allege that the Obama administration’s Title IX interpretation “violates their constitutional right to privacy, while the parents argue that it violates their right to direct the upbringing of their children. Both parents and students contend that the policy infringes upon their right to the free exercise of religion, and unduly burdens that right in violation of the Religious Freedom Restoration Act.” DOJ argues that none of those claims appear in McCrory’s case or the case brought by state lawmakers.

Source: Politico, 6/17/16, By Caitlin Emma

[Editor’s Note: In May 2016, Legal Clips summarized an article in The New York Times reporting that a dispute between the U.S. Department of Justice (DOJ) and North Carolina Gov. Pat McCrory over the state’s new law restricting access to restrooms, locker rooms and changing rooms escalated dramatically when both parties filed suit against the other. After DOJ issued a written warning to the governor not to enforce the law, McCrory responded with a lawsuit, filed in federal district court, accusing DOJ of “a baseless and blatant overreach” stemming from a “radical reinterpretation” of the Civil Rights Act of 1964. The state General Assembly’s Republican leaders also filed a similar suit against DOJ.]

 

 

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