New York Law School

Federal Appeals Court Upholds University of Texas Race-Conscious Admissions Policy

On January 18, 2011, with Fisher v. Texas, the Fifth Circuit Court of Appeals restated the constitutionality of the University of Texas’s use of race in its undergraduate admissions process. The decision, written by Judge Patrick E. Higginbotham, marks a stop for the first federal court challenge to Grutter v. Bollinger—the landmark 2003 Supreme Court decision. 539 U.S. 306 (2003). In Fisher v. Texas, the Fifth Circuit adhered to the pronouncements of Grutter. The court found that serious, “good-faith consideration” supported UT’s decision to reintroduce a race-conscious admissions policy, even as it layers atop of Texas’s Top Ten Percent Law—a law, enacted in 1997, that guarantees Texas students graduating in the top ten percent of their high school class automatic admission to all state-funded universities. In ultimate, the Fifth Circuit stated that diversity was, and still is, a compelling interest. Read more

Federal Appeals Court Rules Washington Voting Law Violates Federal Voting Rights Act

On January 5, 2010, the 9th Circuit Court of Appeals granted summary judgment to a minority group of Washington citizens who had been convicted of felonies and alleged that the state’s felon disenfranchisement provision violates §2 of the Voting Rights Act due to racial discrimination within Washington’s criminal justice system. The case is entitled Farrakhan v. Gregoire, 590 F.3d 989 (9th Cir. 2010).

The law as set forth in Washington’s constitution reads as follows: Article VI, § 3 provides: “All persons convicted of infamous crime unless restored to their civil rights . . . are excluded from the elective franchise.” An “infamous crime” is defined as one that is “punishable by death in the state penitentiary or imprisonment in a state correctional facility.” Wash. Rev. Code § 29A.04.079. Read more

Endangering Title VII

On June 29, 2009, the last day of the United States Supreme Court’s 2008–09 term, the Court rendered the much anticipated decision in Ricci v. DeStefano, 129 S. Ct. 2658, 174 L. Ed. 2d 490 (2009). Ricci was quickly dubbed the “white firefighter’s case” by many, however, the case involved much more than the firefighters’ asserted right to a promotion.

Ricci involved a promotional examination administered by New Haven, Connecticut to members of the New Haven Fire Department to identify those applicants who merited promotions. Knowing that promotional examinations have historically had a disparate-impact on minorities, the City hired a professional testing firm, Industrial/Organizational Solutions Inc. (“IOS”) to develop a racially-neutral exam. When the results of the examination were released the City realized that its efforts to ensure impartiality were not realized, as the results demonstrated stark racial disparities. Specifically, no African-American candidate did well enough on the exam to qualify for a promotion and only two Hispanic candidates were eligible for a promotion based on their score. After careful consideration, including numerous hearings by the New Haven Civil Service Board, the City decided not to certify the results of the examination for fear that they would be sued by minority test takers because of the disparate impact of the examinations and the existence of less discriminatory alternatives to identify promotion candidates. The City immediately went back to the drawing board to develop a testing mechanism that would not produce such adverse results. Read more

RJP Releases Supreme Court Report for October 2008 Term

The Racial Justice Project is pleased to announce its Supreme Court Report for the October 2008 Term. The report previews the coming term, with a focus on those cases with implications for racial justice issues. The upcoming cases deal with redistricting, state and federal power over tribal lands, and mandatory collective bargaining agreements.

Click here to download the report.

Barrier to the Ballot

The right to vote is a fundamental right that goes to the core of an individual’s liberty. A right so sacred that it is protected by both the 15th Amendment and the Voting Rights Act of 1954. Earlier this year, the Supreme Court had occasion to rule on a new voting restriction in Crawford v. Marion County Election Board, 128 S. Ct. 1610, 170 L. Ed. 2d 574 (2008). In 2005, the Indiana legislature passed Indiana’s Senate Enrolled Act No. 483, (“the Act”) which requires voters to present identification prior to casting a ballot. Persons living and voting in a state-licensed facility, such as a nursing home, are exempt from the statute’s identification requirement. The Act also provides an exemption for those who have a religious objection to being photographed and those who are indigent. These persons are allowed to submit provisional ballots, which are counted if the voter executes an appropriate affidavit before the circuit court clerk within ten days following the election. Those who possess valid identification but are unable to present it when voting may also file a provisional ballot. The provisional ballot is only counted if the voter presents identification to the circuit court clerk within ten days of the election. Read more

Supreme Court Addresses Unfairness in Crack Cocaine Sentencing Disparity

In early December the Supreme Court delivered its opinion in Kimbrough v. United States, effectively restoring drug sentencing discretion to district court judges. The decision permits judges to deviate from federal Sentencing Guidelines, giving lighter sentences in drug cases, including in situations where the judge feels the Guidelines create an unjust result.

Derrick Kimbrough, a Persian Gulf war veteran, pled guilty to two counts of possessing and distributing more than 50 grams of crack cocaine in Norfolk, Virginia. Combined with his criminal record (misdemeanors only) and a weapons charge that carried its own mandatory five-years, the recommended sentence for Mr. Kimbrough was 19-22 years in prison. This sentence is based on Federal Sentencing Guidelines which recommend the punishment for crack cocaine be 100 times that for powdered cocaine. The federal district court judge sitting in the case, Judge Raymond A. Jackson, called the recommended sentence “ridiculous” and refused to impose it. He sentenced Mr. Kimbrough to 15 years. On appeal, the U.S. Court of Appeals for the Fourth Circuit overturned Judge Jackson’s discretionary sentence, ruling that trial judges act unreasonably if they decline to follow sentencing guidelines based solely on a desire to “avoid the sentencing disparity caused by the 100 to 1 ratio.” Read more

RJP Releases Supreme Court Report for October 2007 Term

The Racial Justice Project is pleased to announce its Supreme Court Report for the October 2007 Term. The Court had 19 new cases on its docket, including three that dealt with issues of racial justice. Two of the cases, Kimbrough v. United States and Crawford v. Marion County Election Board, et al. dealt with issues that were not per se issues of race, but that historically fall disproportionately hard on minorities—mandatory drug sentencing and voting restrictions. The third, CBOCS West Inc. v. Humphries, dealt with employment discrimination based on race.

Click here to download the report.

A Return to Segregated Education

The controversy surrounding social equalization and economic reparative measures such as affirmative action and other methods of achieving racial integration have been persistent areas of debate for countless decades. On June 28, 2007, in a ruling of much anticipation, the United States Supreme Court added more fuel to the already incendiary discourse. The cases Parents Involved in Community Schools v. Seattle School District No.1 and Meredith v. Jefferson County Bd. of Education (consolidated as Parents Involved in Community Schools v. Seattle School District No.1) involved separate challenges by parents who argued that the positive and voluntary integration schemes of school districts, in Jefferson County, Kentucky and Seattle, Washington, violated their children’s rights. Prior to the ruling of the Supreme Court, the lower federal courts upheld the plans and many school districts across the country had similar plans in place to promote racial diversity. However, on the last day of Court’s term, the Supreme Court, in a fragmented opinion held that racial integration was not a compelling enough state interest to allow for the classifications of ones race ultimately to determine his/her entrance or conversely his/her denial of entry into specific public schools. Chief Justice Roberts, finishing out his first term on the bench, authored the ultimate opinion of the Court to which Justices Alito, Thomas, Scalia, and Kennedy joined. Roberts’s complete notion that race should never be used to attain diversity in public schools was not endorsed by all members of the majority, resulting in a non-binding plurality opinion written by Roberts. Justice Kennedy, the holdout of the majority bloc, wrote a lone concurring opinion that would allow for race to be considered in certain circumstance where the use of race is narrowly tailored to the state government’s interests. Read more