The University of Texas at Austin has filed its brief on the merits in Fisher v. University of Texas at Austin. UT's brief defends its use of racial preferences in university admissions. Interestingly, two former George W. Bush Administration appointees, Greg Garre (former Solicitor General) and James Ho (Office of Legal Counsel at DOJ), represent UT in the case. Amicus briefs aligned with UT are due next week. The Supreme Court oral argument is set for Wednesday, October 10, 2012.
The Supreme Court has scheduled oral argument in Fisher v. University of Texas at Austin for Wednesday, October 10, 2012. As you will recall, the issue in the case is whether the Supreme Court's prior decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306 (2003), permit the University of Texas at Austin's use of race in undergraduate admissions. Ms. Fischer has sued UT, contending that its undergraduate admissions process impermissibly used race when considering her application for admission in 2008. The trial court dismissed her claim, and the United States Court of Appeals for the Fifth Circuit affirmed the district court's judgment and denied en banc review 9-7. The Supreme Court granted Fisher's petition for a writ of certiorari on February 12, 2012. Fisher filed her brief on the merits on May 21, 2012. UT must file its merits brief by August 6, 2012.
Charter School advocates should take a close look at today's U. S. Department of Education Federal Register Notice announcing the FY2012 grant competition for the Replication and Expansion of High Quality Charter Schools. Applications are due May 7, 2012. Under the FY2012 appropriations law, Pub. L. No. 112-74, Division F, Title III, the Secretary is authorized to reserve up to $55 million for the replication and expansion of successful charter models.
A quick perusal of the Notice raises at least two questions: (1) If pre-existing successful models are to be replicated, why has the Department included six competitive preference priorities that may necessitate applicants changing their models to be in the running for a grant? (2) Given the grants are to replicate successful models, why give novice applicants extra points? Why not put everyone on equal footing in the competition?
Potential applicants should also note that charter Replication and Expansion grants allow extra points for policies that promote diversity. As many who follow this issue know, the U.S. Supreme Court has decided to review this area of the law later this year in the context of higher education admissions in Fisher v. University of Texas.
Today, the U.S. Supreme Court announced (see p.6) it will hear the Fisher v. University of Texas affirmative action college admissions case during its October 2012 term. Justice Elena Kagan--the Solicitor General at the time the United States filed a brief in the Fifth Circuit Court of Appeals (March 2010)--has recused herself.
As noted in my earlier post of September 21, 2011, the Fisher case raises the issue of racial preferences in admissions at the University of Texas, and the extent to which a university may offer race-based preferences in the aftermath of Grutter v. Bollinger, a 5-4 decision handed down in 2003. Grutter had permitted some race conscious admissions at the University of Michigan Law School under the theory its admissions policy fostered educational diversity.
Briefing of the case will occur over the summer.
Those interested in college admissions, diversity, and affirmative action issues should watch closely the recently filed petition for certiorari review filed by Abigail Fisher with the Supreme Court of the United States. Fisher seeks review of the recent decision of the United States Court of Appeals for the Fifth Circuit permitting (an arguably expansive) use of racial preferences in admissions at the University of Texas. The petition argues that the Fifth Circuit’s ruling went well beyond what is permissible under Grutter v. Bollinger, 539 U.S. 306 (2003), which authorized some race conscious admissions to the University of Michigan Law School in order to foster educational diversity.
By way of background, several years ago the state of Texas enacted the Top Ten Percent Law which required the University to admit all Texas high school seniors ranking in the Top Ten Percent of their classes. Ms. Fisher, a Caucasian, applied but did not qualify for admission under the Top Ten Percent rule. As a result, she competed for admission with other non-Top Ten applicants under the University’s admissions policy that gave a racial preference to “underrepresented minorities.” Though her academic record exceeded that of other admitted minority candidates, the University denied her admission.
Fisher sued, and the trial court ruled for the University. The Fifth Circuit affirmed the decision and voted not to rehear the case en banc, with Judge Edith Jones offering a blistering dissenting opinion.
The University has thirty days to respond to the petition, which was filed on September 15, 2011.
You will recall that I wrote last March about the controversy that was brewing over the application of Title IX's "three-part test" to high school athletics. (You can locate my post here.) Now, the American Sports Council, formerly known as the College Sports Council, has filed a suit against the U.S. Department of Education over the issue.
In its complaint filed in the United States District Court for the District of Columbia and brought under the Administrative Procedures Act, the ASC, which is represented by the Pacific Legal Foundation, seeks declaratory and injunctive relief disallowing the Department from applying Title IX's "three-part test" to high school sports. ASC maintains that ED acted arbitrarily and capriciously when ED's Office for Civil Rights denied the ASC's (then CSC's) "petition to repeal, amend, and clarify rules applying Title IX to high school athletics" in March of 2008.
We will keep you informed as to DOJ's first move (no doubt a motion to dismiss for lack of standing). ED has sixty days from the date of service of process to file a responsive pleading.
Title IX's seemingly endless controversies continue with no end in sight. Last November, the National Women's Law Center (NWLC) filed administrative complaints with the U.S. Department of Education's Office for Civil Rights against twelve school districts across the country. The gist of NWLC's complaints is that the school districts are not providing opportunities for female high school students to play sports under Title IX's "three-part participation" test (actually, a test that derives not from Title IX statutory or regulatory language but from 1979 HEW policy guidance). NWLC is pushing OCR to apply the three-part test to high schools in each school district.
Now, other players have jumped into the fray. The Pacific Legal Foundation has countered the NWLC complaints with letters to each OCR Regional Office, arguing that the three-part test does not apply to high school athletics under Title IX and raising Equal Protection and public policy concerns. The Independent Women's Forum recently urged House Education and the Workforce Committee Chairman John Kline (R-MN) to investigate the impact of Title IX's various policy interpretations on high school athletics. And the College Sports Council, a national coalition of coaches, parents, athletes, and alumni that advocates reform of Title IX enforcement, has written each school district urging them to resist NWLC's pressure.
A major concern expressed by PLF, IWF, and CSC is that applying the three-part test to high school athletics will result in school districts using proportional gender quotas that will cut athletics for male students. On the collegiate level, that indeed is what has happened: the numer of women's teams has exceeded the number of men's teams since 1995; male athletes and men's teams per school have declined from 1981 to 2005 (bad); and female athletes and women's teams per school have increased during the same period (good).
The districts facing this crossfire are the Chicago Public Schools (IL), Clark County School District (NV), Columbus City Schools (OH), Deer Valley United School District (AZ), Henry County Schools (GA), Houston Independent School District (TX), Irvine Unified School District (CA), New York City Department of Education (NY), Oldham County Schools (KY), Sioux Falls School District (SD), Wake County Public School System (NC), and Worcester Public Schools (MA). Each school district sits in a different OCR region, so this is an issue that will receive close attention and coordination from the senior folks in OCR.
These school districts are likely facing severe revenue shortfalls and can ill afford new budget items. It will be interesting to see how aggressively OCR moves on these complaints and the extent to which Congress will pressure ED to give some sway to the school districts in resolving these issues.
The Office for Civil Rights (OCR) of the U.S. Department of Education recently issued new guidance on bullying. OCR notes that the purpose of its Dear Colleague is “to remind [school officials] . . . that some student misconduct that falls under a school’s anti-bullying policy also may trigger responsibilities under one or more of the federal antidiscrimination laws enforced by the Department’s Office for Civil Rights (OCR).”
Given OCR’s enforcement authority and the fact specific nature of sexual harassment and bullying claims that may implicate Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973.pdf, and Title II of the Americans With Disabilities Act.pdf, all educational institutions should read the guidance closely.
But OCR’s letter also bears attention for what it does not include—any discussion of case law since OCR last discussed it way back in 2001. This is odd, as student-on-student sexual harassment cases are particularly fact specific, with court decisions turning on a handful of facts. School district officials would benefit from a substantive review of the cases over the last ten years, noting not only findings of liability, but also instances where school districts deflected liability. Indeed, in the aftermath of the leading Supreme Court case on student-on-student sexual harassment, Davis v Monroe County Board of Education.pdf, 526 U.S. 629 (1999), where the Supreme Court held that a school district could be liable for monetary damages under Title IX for student-on-student sexual harassment, several courts of appeal and district courts have decided student-on-student sexual harassment cases. See Vance v. Spencer County Public School District, 231 F.3d 253 (6th Cir. 2000).pdf, Doe v. Bellafonte School District, 2003 U.S. Dist. LEXIS 25841 (3rd Cir. 2003).pdf, Patterson v. Hudson Area Schools, 551 F.3d 438 (6th Cir. 2009).pdf, Schroeder v. Maumee Board of Education, 296 F. Supp. 2d 869 (N.D. Ohio 2003).pdf, Patenaude v. Salmon River Central School District, 2005 U.S. Dist. LEXIS 29066 (N.D. N.Y. Feb. 16, 2005).pdf, Theno v. Tonganoxie Unified School District, 377 F. Supp. 2d 952 (D. Kan. 2005).pdf, Doe v. Southeastern Greene School District, 2006 U.S. Dist. LEXIS 12790 (W.D. Pa. March 24, 2006).pdf. Educational institutions should be familiar with these cases before responding to student-on-student sexual harassment claims and OCR enforcement actions.