In Fisher v. University of Texas at Austin, No. 11-345, decided June 24, 2013, the issue was whether the Court’s precedents—including Grutter v. Bollinger, 539 U.S. 306 (2003)—permitted the University of Texas at Austin to use race as one of many factors in undergraduate admissions decisions. The University used a “top ten” diversity initiative, passed by the state legislature, that automatically guaranteed admission to Texas students in the top 10% of their high school class. This increased the number of minority students that enrolled but, in addition, the University adopted a second program, under the rulings in Grutter and Gratz v. Bollinger, 539 U. S. 244 (2003), that explicitly took a student’s race or ethnicity into account, with minorities given a “plus factor” (considered along with designated “personal achievement” factors). Race was not, however, assigned an explicit numerical value. The University maintained that a “critical mass” of underrepresented minorities was necessary to further its compelling interest in the educational benefits of a racially diverse student body.
Ms. Fisher, who is white, was denied admission. She challenged the school’s policy, claiming her academic credentials were better than those of many admitted minority candidates, and that the race-neutral “top ten” law had already led to increased diversity (in 2004, the last class before the new policy, the entering freshman class was over 21% African-American and Hispanic), and that the University failed to show that its race-conscious admission policy had actually resulted in increased “classroom diversity.”
In a 7–1 decision written by Justice Kennedy and handed down just after the 10th anniversary of Grutter, the Court affirmed, as a compelling interest, the educational benefits that flowed from a diverse student body as one that could justify the consideration of race in admissions, citing Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 305 (1978) (opinion of Powell, J.). This came at a cost, however—a “clear precondition”: “Race may not be considered unless the admissions process can withstand strict scrutiny.”1
Some deference was appropriate to the University’s conclusion that diversity was critical to serving its educational goals, but a university was not permitted to improperly interpret “diversity” as racial balancing—a quota or a “specified percentage of a particular group merely because of its race or ethnic origin.”2 Moreover, both the school’s goal, as defined, and its implementation were subject to strict scrutiny, and no deference was forthcoming on the implementation. The process had to be narrowly tailored, which meant the University had the burden of establishing, to a reviewing court’s satisfaction, “that no workable race-neutral alternatives would produce the educational benefits of diversity.”3 This is the point at which the court below failed. The Fifth Circuit had ruled Fisher could only challenge whether the University had acted in good faith in using race and had indicated the presumption lay in the University’s favor. This was entirely at odds with the dictates of strict scrutiny. Accordingly, fairness required that the case be remanded so that the admissions process could be analyzed using the correct standard.
In his concurring opinion, Justice Thomas wrote that he would “overrule Grutter v. Bollinger, . . . and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.” Justice Scalia expressed a somewhat similar sentiment but added that, because the petitioner in this case did not ask the Court to overrule Grutter’s holding, he would not do so. Ultimately, given the existence of the race-neutral “top ten” program, it is questionable whether on remand, the University’s race-sensitive program will meet the requisite standard of no workable race-neutral alternatives being available to produce the educational benefits of diversity.
The voting rights case, Shelby County v. Holder, No. 12-96, decided on June 25, 2013, is the sequel to the Court’s 2009 decision in Northwest Austin Municipal Util. Dist. No. One v. Holder (NAMUDNO). In the 2009 case, the plaintiff utility district was required by Section 5 of the Voting Rights Act of 1965 (VRA) to seek preclearance from federal authorities before it could change anything about its elections because, under the formula in Section 4(b), the Act applied to states that had used a forbidden test or device in November 1964 and had less than 50% voter registration or turnout in the 1964 Presidential election. The District sued, seeking relief under a “bail-out” provision, and challenged the constitutionality of Section 5. The Court explained that as enacted, Sections 4 and 5 of the VRA were envisioned as temporary provisions, to be in place for five years. They had been continually reauthorized, however, most recently in 2006 for an additional 25-year period, with the coverage formula being based on the voting-eligibility tests and the rate of registration and turnout among all voters in 1972, the most recent “baseline” year.4 “The historic accomplishments of the Voting Rights Act are undeniable,”5 but the Court felt it incumbent to express “serious misgivings about the constitutionality of § 5.”6 The Court noted the fact that the “statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.”7 While it avoided ruling on the issue, the Court stated plainly that the VRA’s “preclearance requirements and its coverage formula raise serious constitutional questions.”8
That hint, such as it was, fell on deaf ears. In the present case, Shelby County, in the covered jurisdiction of Alabama, sued, seeking a declaratory judgment that Sections 4(b) and 5 were facially unconstitutional because, in the absence of evidence in the legislative record of an actual, systematic campaign of voting discrimination by the covered jurisdictions, the remedy was no longer rational, congruent, and proportional to the problem it was enacted to cure.
In a 5-4 decision by the Chief Justice (joined by Justices Scalia, Kennedy, Thomas, and Alito), the majority held that “the conditions that originally justified these measures no longer characterize voting in the covered jurisdictions,”9 and accordingly, Section 4 was unconstitutional as violative of the Tenth Amendment and Article IV of the U.S. Constitution. The majority was quick to point out that voting discrimination and problems still existed: the only issue was whether “the Act’s extraordinary measures, including its disparate treatment of the States, continue to satisfy constitutional requirements.”10 They did not. As of 2004, African-American voter turnout exceeded white voter turnout in five of the six states originally covered by Section 5 (with a gap of less than half a percent in the sixth), but there had been no corresponding adjustment in the scope of the coverage formula. The Fifteenth Amendment was “not designed to punish for the past; its purpose [was] to ensure a better future”11; and the government failed to “shape a coverage formula grounded in current conditions. It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day.”12 The Court rejected the possibility of further deference to Congress, stating Congress could have updated the coverage formula in 2009, following the ruling in NAMUDNO “but did not do so. Its failure to act leaves us . . . with no choice but to declare § 4(b) unconstitutional.”13
The Municipal Blockbuster
The decision likely to have the most impact for local government attorneys is Koontz v. St. Johns River Water Management District, No. 11-1447, decided June 25, 2013. Koontz looked at two issues. First, whether a local government’s demand for property from a land-use permit applicant had to satisfy the exaction requirements in Nollan v. California Coastal Commission, 483 U. S. 825 (1987), and Dolan v. City of Tigard, 512 U. S. 374 (1994), even when a permit was not approved; and second, whether a government had to comply with Nollan/Dolan when its demand from a permit applicant was for money or something other than an interest in real property.
The Koontz family owned approximately 15 acres of vacant land close to two highways in Florida, located mostly within a designated wetland area. When Koontz sought a permit from the St. Johns River Water Management District to allow him to develop, for commercial uses, a 3.7 acre portion, 3.4 acres were deemed to be wetlands. To mitigate the effects of his development, Koontz agreed to deed the remaining eleven acres to the District for use as a conservation easement. The District countered, however, with an additional requirement: that he also make, or pay to make, improvements to 50 acres of District-owned land several miles away. (The District stated it would also consider a proposal equivalent to this work.) Koontz refused, arguing this offsite mitigation lacked both an essential nexus and any rough proportionality to the impact of his proposed development, as required by Nollan and Dolan. His permit was denied, and he sued in state court, alleging a taking. The District argued, as a preliminary matter, that no final condition had been agreed on: the negotiations had broken down and the permit was denied because of the legal deficiencies of his application.
The court hearing the matter at first instance agreed that the offsite mitigation condition had been imposed and was invalid as excessive under Nollan/Dolan. On appeal, a majority of the Florida Supreme Court reversed, distinguishing Nollan/Dolan on the basis that there was no compelled dedication of property to public use (as no permit had actually been issued) and because the proposed exaction was a nondedicatory or monetary condition.
Justice Alito delivered the opinion of the Court for the 5–4 majority (joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas). The Court was unanimous on the first issue—that the Nollan/Dolan standard applies both when the government approves a development permit conditioned on the owner’s transfer of a property interest (a condition subsequent), and when the government denies a permit until the owner meets the condition (a condition precedent). Under the unconstitutional conditions doctrine, it was irrelevant whether the government approved a permit on the condition that the applicant surrendered property, or denied a permit because the applicant had refused to comply.14 (The difference between a denial and an approval scenario involved remedies: a person who relinquished property as a result of an unconstitutionally extortionate exaction might be entitled to just compensation.)
The Justices were divided, however, on whether a monetary exaction was subject to heightened scrutiny. According to the majority, the “fulcrum this case turns on is the direct link between the government’s demand and a specific parcel of real property.”15 This was sufficient to trigger the concerns underlying Nollan/Dolan: the risk that the government would “use its substantial power and discretion in land-use permitting to pursue governmental ends that lack[ed] an essential nexus and rough proportionality to the effects of the proposed new use of the specific property at issue, thereby diminishing without justification the value of the property.”16 Justice Kagan, writing the dissent, felt subjecting monetary exactions to Nollan/Dolan would “cast a cloud on every decision by every local government to require a person seeking a permit to pay or spend money.”17
John D. Echeverria, describing the impact of Koontz for the New York Times shortly after the ruling, noted that the “real world” consequences included
cast[ing] the burden on the government to justify [its] mandates according to the heightened Nollan-Dolan standard. This is contrary to the traditional court approach of according deference to elected officials and technical experts on issues of regulatory policy. Moreover, this heightened standard will result in a huge number of costly legal challenges to local regulations.18
Title VII of the Civil Rights Act of 1964 makes it illegal for an employer to (1) “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin” (Section 703, the anti-discrimination provision), or (2) take an adverse employment action against an employee “because he has opposed any practice made an unlawful employment practice” by Title VII, or “because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title VII (Section 704, the anti-retaliation provision). Two different standards for establishing causation, and an employer’s liability, have evolved for these two provisions, however. “But-for” causation (that discrimination or retaliation was the only motive for the termination or adverse employment action, which means an employer might not be liable if it would have taken the same action for other, nondiscriminatory reasons), or the lesser standard, “mixed motive,” whereby the improper motive is shown to have simply played a part in the challenged employment action.
The U.S. Supreme Court has previously ruled, in Price Waterhouse v. Hopkins, 490 U. S. 228, 258, 268–69 (1989), that Title VII’s anti-discrimination provision requires a plaintiff to prove only that discrimination was “a motivating factor” (but not the only factor) for an adverse employment action. In a later case, Gross v. FBL Financial Services, Inc., 557 U.S. 167, 179–80 (2009), interpreting a different employment discrimination statute, the Court held that a plaintiff suing under the Age Discrimination in Employment Act of 1967 (ADEA) had to show that age discrimination was the “but-for” cause of an adverse employment action. When Congress enacted the Civil Rights Act of 1991, it amended the anti-discrimination provision to add mixed-motive liability, but did not extend the test to Title VII’s anti-retaliation provision. The courts had been divided in their approach on whether Price Waterhouse or Gross establishes the correct rule for Title VII’s anti-retaliation provision.
In University of Texas Southwestern Medical Center v. Nassar, No. 12-484, decided June 24, 2013, the Court addressed this issue and held that Title VII’s anti-retaliation provision requires proof of but-for causation, and does not permit retaliation claims to be proven under the lesser mixed motive standard. Dr. Naiel Nassar, the plaintiff, had been a member of the faculty at the University of Texas Southwestern Medical Center (UTSW). He claimed a supervisor, Levine, was unfairly critical of his work because of Nassar’s religion and culture. He complained to Fitz, Levine’s supervisor, and sought a position at a related facility to get away from Levine, but was told a hiring policy prohibited this. Nassar resigned after getting a position at the related facility, and wrote a letter stating that his primary reason for leaving was the harassment and discrimination, based on his ethnicity and religion, that was directed at him by Levine. His new employer withdrew the offer. Nassar alleged this was because of pressure from Fitz and grounded in his letter and comments regarding Levine. He sued, alleging retaliation in violation of Title VII. Fitz argued that he had consistently relied on the hiring policy to oppose Nassar’s move (although there was some evidence he had taken the letter into account).
In a 5–4 decision, the Supreme Court rejected the “motivating factor” test for retaliation claims, based on the plain language of the provision (the text of the motivating-factor provision, while referring to “unlawful employment practices,” addressed only five of the seven prohibited discriminatory actions—all actions based on the employee’s status, and said nothing about retaliation claims), and the design and structure of the statute as a whole. There was a fundamental difference in the statutory structure between status-based discrimination and claims based in retaliation, and Congress must be taken to have acted deliberately when it omitted retaliation claims from the scope of the 1991 legislation. Thus, a plaintiff making a retaliation claim was required to establish that his or her protected activity was a “but-for” cause of the alleged adverse action by the employer. The case was remanded for a determination of this issue by the courts closer to the facts of the case.
The second Title VII case, Vance v. Ball State University, No. 11-556, decided June 24, 2013, addressed the “supervisor liability” rule under Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and whether a “supervisor” included a harassing supervisor-coworker without the power to hire, fire, demote, promote, transfer, or discipline the victim. Under Ellerth and Faragher, an employer could be vicariously liable, even in the absence of negligence, in situations that involved a hostile work environment created by a “supervisor.” The plaintiff Vance, an African-American, claimed that a fellow employee, Davis, created a racially hostile work environment in violation of Title VII. Vance alleged that Davis, who was white, glared at her, gave her “weird” looks, and blocked her on an elevator. The employer raised as a defense the fact that Davis could not take tangible employment actions against Vance and therefore, was not a “supervisor” for which the employer was strictly liable. (It was not in dispute that Davis lacked this authority.)
In another 5–4 decision, with Justice Alito delivering the opinion for the majority, the Court ruled that, consistent with Ellerth and Faragher, an employee was a “supervisor” for the purposes of vicarious liability under Title VII only if he or she was empowered by the employer to take tangible employment actions against the victim. Unlike the approach that had been advocated by an EEOC’s Enforcement Guidance,19 co-worker-supervisors who had significant direction over the victim’s daily work but who lacked the authority to hire, fire, discipline, or take similar steps did not count for the purposes of Title VII vicarious liability, although employees subjected to harassment by such co-workers had recourse to a remedy in negligence against the employer.
Does the Fourth Amendment allow the states to collect and analyze DNA from people arrested and charged with serious crimes? In Maryland v. King, No. 12-207, decided June 3, 2013, a 5–4 majority of the Court said yes.
The Maryland DNA Collection Act authorized the state to collect DNA samples (cheek swabs) from those arrested for a crime or an attempted crime of violence or burglary. (If the person was not convicted, was pardoned, or the charges were dropped, the samples were to be destroyed. The samples were analyzed so as to not reveal the genetic traits of the arrestee.) In 2009, after King was arrested on assault charges, his DNA was collected, analyzed, and entered into Maryland’s DNA database, where it was matched to a sample taken from a victim of an unsolved 2003 rape. King was indicted for the rape, with the DNA database “hit” as the only evidence of probable cause. A search warrant was issued for a second DNA swab from King, which also matched the rape sample. King sought to suppress the evidence, arguing it was obtained through an illegal search and seizure, and that the law was unconstitutional. Twenty-eight states and the federal government had laws similar to the Maryland Act.
The majority agreed that using a swab to obtain a DNA sample was a search; however, a lawful arrest, standing alone, authorized a search, and obtaining a sample was a legitimate police booking procedure (akin to fingerprints, photographs, or another metric of identification) that was reasonable under the Fourth Amendment. Balancing the government interest against the individual’s legitimate expectation of privacy, the majority pointed out that once an individual had been arrested on probable cause for a dangerous offense that might require detention before trial, the arrestee’s expectations of privacy and freedom from police scrutiny were reduced. A cheek swab was minimally intrusive and brief and did nothing to increase the indignity usually attendant on being arrested. Further, the DNA samples taken did not invade individual privacy to reveal genetic information (samples were tested to generate a unique identifying number against which future samples could be matched). On the other hand, the testing supported “significant state interests” of identifying arrestees correctly, and allowing the criminal justice system to make informed decisions concerning their pretrial custody.
I reviewed several of the Court’s earlier decisions in my previous column, and there are a few others that bear review, notably City of Arlington v. FCC, No. 11-1545, decided on May 20, 2013 (on deference and the extent to which an agency may interpret a statutory ambiguity concerning the scope of its own jurisdiction), a case worthy of a column on its own. Another case, on preemption, municipal ordinances, and the Federal Aviation Administration Authorization Act of 1994, is American Trucking Associations v. City of Los Angeles, No. 11-798, decided June 13, 2013.
Although the foregoing cases are hardly suggestive of it, one source indicates that the Court was unanimous in almost half the cases argued this Term, the “highest percentage in the last five years.”20 This will make for an interesting Term to come, as we await rulings on government employees, the ADEA, and § 1983 (Madigan v. Levin, No. 12-872); free speech and abortion clinic buffer-zones (McCullen v. Coakley, No. 12-1168); invocational prayers (Town of Greece v. Galloway, No. 12-696); and a new variation on school admissions and race (Schuette v. Coalition to Defend Affirmative Action, No. 12-682, on whether Michigan violated the Equal Protection Clause by amending its constitution, under a ballot initiative, to prohibit race and sex-based discrimination or preferential treatment in public-university admissions decisions).
1. Fisher v. Univ. of Tex. at Austin, No. 11-345, 2013 BL 167358, at 6.
2. Id. at 8.
4. 129 S. Ct. 2504, 2510 (2009).
5. Id. at 2511.
7. Id. at 2512.
9. Shelby Cnty. v. Holder, No. 12-96, 2013 BL 167707 (U.S. June 25, 2013), at 4.
11. Id. at 15.
13. Id. at 17.
14. Koontz v. St. Johns River Water Mgmt. Dist., No. 11-1447, 2013 BL 167705, at 8, 16.
15. Id. at 12.
16. Id. at 12-13.
17. Id. at 21.
18. John D. Echeverria, A Legal Blow to Sustainable Development, N.Y. Times, June 26, 2013, at http://www.nytimes.com/2013/06/27/opinion/a-legal-blow-to-sustainable-development.html?_r=0 (last visited July 23, 2013).
19. See EEOC, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (1999), 1999 WL 33305874, *3.
20. Robert Barnes, In Dissent, Judicial Restraint Flies out the Window, Wash. Post, July 23, 2013, at A15, citing the Scotusblog statistics.