U.S. Supreme Court decisions … victory for some, defeat for others

Back row (left to right): Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Front row (left to right): Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Anthony Kennedy, and Ruth Bader Ginsburg

Back row (left to right): Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Front row (left to right): Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Anthony Kennedy, and Ruth Bader Ginsburg

The Supreme Court, the official intrepreters of the law of the land, the Constitutiion of the United States of America, has been quite busy this week, especially on Tuesday and Wednesday.

First, on Tuesday, June 24, a number of comments were made by heads of organizations, those against the decisions or for them.

According to statement by Sherrilyn Ifill, President & Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc., who said,  “Today the Supreme Court set back enforcement of our nation’s key federal safeguard against racial harassment, discrimination, and retaliation in the workplace.

“The Court’s decisions in University of Texas Southwestern Medical Center v. Nassar and Vance v. Ball State University were both closely decided 5-4 rulings.  The rulings are a step backwards in our efforts to ensure equal economic opportunity and to fulfill the promise of Title VII of the Civil Rights Act of 1964.

“We call on Congress to once again take action to correct the Court’s flawed and narrow interpretations of Title VII, just as Congress has done repeatedly in the past.  To that end, Justice Ginsburg, wrote that the majority’s judgments in Nassar and Vance “should prompt yet another Civil Rights Restoration Act.”

The Lawyers’ Committee issued the following statement about Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar, the two Supreme Court employment discrimination decisions announced today:

The Supreme Court has continued down the path of insulating employers from liability for discrimination in the workplace. In its efforts to protect employers it has run roughshod over employees’ rights to work in a discrimination-free environment and has rejected long standing EEOC guidance.

“In Vance v Ball State University, the Supreme Court has made it significantly more difficult for victims of harassment to seek justice,” said Lawyers’ Committee Employment Discrimination Project Director Ray P. McClain. “The Court ruled that the employer will not be assumed liable for a hostile work environment created by somebody who runs day-to-day operations but does not have the power to fire, demote, reassign, or create some concrete job consequence for the victim of harassment.”

In University of Texas Southwestern Medical Center v. Nassar, the five-member Supreme Court majority ignored the purpose and intent of Title VII and overturned long-standing EEOC guidance in holding that the causation standard in claims of retaliation is stricter than the standard applicable to claims of direct discrimination,” said Jane Dolkart, senior counsel for the Employment Discrimination Project. “The majority showed little interest in the realities of the workplace where employees are afraid to file discrimination claims without strong protection from retaliation.”

It is time to lobby Congress to act to remedy the Court’s misreading of Title VII and its primary purpose – to eradicate discrimination from the workplace, not to protect employers from liability for their discriminatory acts.

“Today’s decision preserves the status quo of recognizing the legitimacy and compelling interest this nation has in using the tool of affirmative action to promote diversity and remediate the onerous and ongoing impact of racial and ethnic discrimination in our society,” stated Lawyers’ Committee for Civil Rights Under Law President and Executive Director Barbara R. Arnwine.  The Lawyers’ Committee filed an amicus brief on behalf of 18 civil rights organizations in support of the University of Texas.  In that brief, the Lawyers’ Committee emphasized that because of the enduring role of race in our society, racial diversity remains an important aspect of diversity in higher education.

“Today’s decision in Fisher leaves intact the Supreme Court’s precedent in Grutter that universities can adopt affirmative action plans when necessary, and proponents of diversity in higher education can take comfort in that,” said Lawyers’ Committee Chief Counsel and Senior Deputy Director Jon Greenbaum.

The Education Trust reflects the Supreme Court’s decision today in Fisher v. University of Texas reaffirmed the bedrock constitutional principle that universities have a compelling interest in considering racial and ethnic diversity as one factor in developing a carefully crafted admissions policy. Although the Court found that the Fifth Circuit applied the wrong standard, it did not question the compelling nature of diversity as a factor in admissions. Even when you control for income and other advantages, students of color are still admitted to college at lower rates than their white peers. Colleges and universities need tools to address this inequity, and today’s decision ensures those tools remain available.

Even today, when a college degree is nearly indispensible for a family supporting wage, students of color are less likely to go to college and, when they do, less likely to attend the high quality institutions from which they are most likely to graduate and master the skills they need to take on leadership roles.

The Supreme Court’s recognition of the importance of equal opportunity in higher education leaves the door open for universities to adopt policies that further educational and social equity. The Court made clear that universities may consider racial and ethnic diversity as one factor in enrolling a class of well-qualified students. We look to the Fifth Circuit, as it reconsiders this case, to uphold these principles.

Alan Jenkins, Executive Director of The Opportunity Agenda, Supreme Court Litigator, and former Supreme Court Law Clerk  responds, “Today, the U.S. Supreme Court issued a decision in Fisher v. University of Texas concerning the constitutionality of the University’s admissions policy and the consideration of racial and ethnic diversity as one factor in university admissions.  The Court reaffirmed that universities may consider racial and ethnic diversity as one factor among many in a carefully crafted admissions policy.  But because it found that the court below — the U.S. Court of Appeals for the 5th Circuit –made an error in deciding whether the University of Texas’s policy met that standard, it sent the case back to the Court of Appeals for reconsideration under the proper standard.  The decision was 7-to-1.  Justice Kagan was recused from the case.

“This is a victory for equal opportunity and the future of our nation. We are thrilled that a majority of the Court found in favor of equal opportunity in higher education. The Court reaffirmed once again that providing a diverse learning environment benefits students, our workforce, and the country as a whole. And it made clear that Universities may consider racial and ethnic diversity as one factor in shaping a class of well-qualified students.  In light of the Court’s decision, America’s educational, business, and other institutions should recommit to fair and thoughtful ways of fostering diverse participation.”