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Texas affirmative action case may hinge on Justice Kennedy  

2012-03-04 13:38:27|  分类: Overseas学校 |  标签: |举报 |字号 订阅

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      From washingtonpose  PM ET, 02/23/2012   By Daniel de Vise

    The U.S. Supreme Court this week agreed to hear a case out of the University of Texas that challenges affirmative action(平权措施)in college admissions. The decision could bring an end to race-based admissions in higher education.

    Affirmative action in college admissions is on the Supreme Court docket(待判决的诉讼案件) again this year after a white student named Abigail Fisher challenged a University of Texas program meant to promote diversity(多样化) on UT campuses.

    Affirmative-action proponents, including many university leaders, are concerned that if the University of Texas loses, efforts to increase diversity in U.S. colleges will be severely undercut. Critics of affirmative action are thrilled that the issue is back in play after a 2003 Supreme Court decision in a lawsuit against the University of Michigan seemed to settle the issue, allowing colleges and universities leeway to consider a student’s race as one of many factors in admissions decisions.

    Minority enrollment in higher education has been on the rise, according to a 2010 Pew Research Center study, with Hispanic enrollment increasing the fastest. Whites made up 62 percent of the freshman class at four-year institutions in 2008, the report found, down from 83 percent in 1976. (That’s about the same as the percentage of whites in the larger population, although the percentage of minorities among young people is higher.) Nevertheless, the percentages of black and Hispanic young people enrolled in higher education are still lower than those of whites and Asians.

    Which way the Supreme Court goes on this case will most likely rest with Justice Anthony Kennedy, the swing vote on the court, who has been a vociferous critic of racial quotas, but who has also published some fairly nuanced opinions on race in college admissions. Because Justice Elena Kagan has recused herself from the case, there will only be eight justices voting.

    If Kennedy votes with the conservative wing of the court, the Texas program could be overturned, meaning many colleges and universities — both public and private — may have to overhaul how they make admissions decisions. If he joins the three remaining liberals, resulting in a tie, the lower-court decision — which upheld the Texas program — would stand. Or he could come down somewhere in the middle, joining the conservatives or liberals, but writing a separate opinion that will hold more weight due to his swing-vote status.

    That’s what happened in the last case involving race and schools in 2007, and lawyers for both sides will no doubt be poring over Kennedy’s past opinions as they plan oral arguments meant to sway him. Here’s a quick summary of what they will find:

    In a 1992 decision in a desegregation case out of Georgia, Freeman v. Pitts , Kennedy had the following to say about whether K-12 schools should strive for racial balance in student populations:

    “In one sense of the term,” he wrote, “vestiges of past segregation by state decree do remain in our society and in our schools. Past wrongs to the black race, wrongs committed by the State and in its name, are a stubborn fact of history. And stubborn facts of history linger and persist.” But, “racial balance is not to be achieved for its own sake,” he concluded.

    In the 2003 University of Michigan case, Grutter v. Bollinger , although he sided with the conservatives who wanted to strike down the school’s use of race in admissions, Kennedy wrote a separate opinion, distancing himself from their more hard-line views. A racial quota, he wrote, “can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality.” Yet race might play a role as a “modest factor among many others.”

    Finally, in his opinion in desegregation(废除种族隔离) cases out of Louisville and Seattle in 2007, he came down in the middle on the question of whether the districts’ use of race to assign K-12 students was permissible under the U.S. Constitution.

    “That the school districts consider these plans to be necessary should remind us that our highest aspirations are yet unfulfilled,” he wrote. “But the solutions mandated by these school districts must themselves be lawful. To make race matter now so that it might not matter later may entrench the very prejudices we seek to overcome.”

    He added, however, that “diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue,” and criticized the opinion of Chief Justice John Roberts, saying it implied “an all-too-unyielding insistence that race cannot be a factor in instances when, in my view, it may be taken into account.”

    At the University of Texas, officials insist — and the lower courts have agreed — that race was just one factor among many that were used to admit a small pool of students (under 10 percent). We’ll see if their program is one of the instances of schools using race in admissions that Kennedy deems permissible.


Supreme Court agrees to reconsider use of race in college admission decisions 

By Robert Barnes, Published: February 22


The Supreme Court said Tuesday that it will consider whether the time has come to eliminate affirmative action in college admissions, resurrecting in an election year questions about the role race should play in American life.

The court will hear a white student’s claims  that the University of Texas’s race-conscious admissions policy cost her a spot in the freshman class. A divided court only nine years ago said that universities were allowed to take race into account as one of many factors in considering applicants, when attempting to assemble a diverse student body.

Opponents of affirmative action hope that the current court, more conservative than the one that made the 2003 decision, will further constrain the use of race or eliminate it completely.

The affirmative action case adds to a remarkable convergence of controversial social issues on the court’s docket, even as the justices themselves take on a higher, election-year profile.

The court’s 2010 decision in Citizens United v. Federal Election Commission , allowing unlimited corporate and union election spending, has roiled the world of political fundraising. Next month, the justices will hear six hours of oral arguments about President Obama’s health-care overhaul. After that, they will consider Arizona’s controversial attempts to crack down on illegal immigrants.

And it seems inevitable that the court will be drawn into partisan fighting over political redistricting as well as the question of same-sex marriage. The affirmative action case will be heard when the court’s new term begins in October, just as the nation turns to the presidential election.

Edward Blum, director of the Project on Fair Representation, which is representing Abigail Noel Fisher, the student rejected by UT, said the case “presents the court with an opportunity to clarify the boundaries of race preferences in higher education or even reconsider whether race should be permitted at all under the Constitution’s guarantee of equal protection.”

The Obama administration supported Texas in the lower courts and has advised colleges and universities that under the court’s 2003 decision, they may still make some race-based decisions to expand campus diversity.

UT President Bill Powers said that is the goal of the admissions policy. “We must have the flexibility to consider each applicant’s unique experiences and background so we can provide the best environment in which to educate and train the students who will be our nation’s future leaders,” he said in a statement.

Since 1978, the court has been closely divided on the use of racial preferences, but it reaffirmed its support for limited use in the 2003 case, Grutter v. Bollinger . Justice Sandra Day O’Connor wrote for the five-member majority upholding a University of Michigan Law School policy, saying it was legitimate to use race as a factor in a holistic evaluation of an applicant to create a “critical mass” of minority students.

“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” she wrote.

But O’Connor has been replaced by Justice Samuel A. Alito Jr., who in past decisions has disapproved of racial classifications by government. Justice Anthony M. Kennedy, the justice who most often sides with the court’s liberals on social issues, was a dissenter in the Grutter decision.

And one of the court’s liberals, Justice Elena Kagan, has recused herself from the Texas case, presumably because of her previous job as Obama’s solicitor general.

Although the 2003 decision allowed the limited use of race, many states — California, for instance — do not allow admissions officials to consider race in their decisions.

Texas has a unique system. It provides admission for Texas students in the top 10 percent of their high school classes. Fisher, of Sugar Land, did not make that cut and was put into a pool of applicants in which race is considered along with other factors, such as community service, leadership qualities, test scores and work experience.

Fisher enrolled at Louisiana State University and is on track to graduate this spring.

Her attorney, Bert Rein, has argued that considering race is not necessary because UT’s race-neutral policy for the top 10 percent already brings in percentages of minority students “far beyond” the numbers at issue in Grutter.

But UT officials do not feel that is enough for a state in which — in the near future — there will be no majority race.

A panel of the U.S. Court of Appeals for the 5th Circuit upheld the Texas plan, but a number of high-profile conservative judges from the circuit loudly objected and urged the high court to consider the case.

The case is Fisher v. University of Texas.

In other action, the court ruled 6 to 3 Tuesday that inmates(囚犯) do not have to be read their Miranda rights before they are questioned about crimes unrelated to their incarceration(监禁).

The decision came in the case of a Michigan inmate who was in jail on a disorderly conduct conviction(判决). Law enforcement officials took Randall Lee Fields from his cell to a conference room and questioned him for about seven hours on another suspicion: that he had sexually assaulted a minor. He eventually confessed and then tried to keep that statement out of his subsequent trial, saying he had not been read his rights to remain silent or have an attorney present.

He was convicted and sentenced to 10 to 15 years in prison.

The court majority said the circumstances of Fields’s questioning on the sexual abuse charges did not amount to the definition of law enforcement “custody” that requires Miranda’s warnings(即米兰达警告。补充:美国联邦最高法院首席法官兰奎斯特2000年说过,米兰达权利已经深深植根于警察的日常工作中,以致于它已成为我们民族文化的一部份。米兰达权利体现了宪法的一条原则,国会不能越权).

“Taking into account(考虑) all of the circumstances of the questioning — including the undisputed fact that [Fields] was told that he was free to end the questioning and to return to his cell — we hold that [Fields] was not in custody within the meaning of Miranda,” Alito wrote.

“Custody” in the Miranda setting is generally defined as when a reasonable person would think he could not end police questioning and leave. The court in recent years has been limiting the reach of the Miranda rule.

Justice Ruth Bader Ginsburg, who wrote for Justices Stephen G. Breyer and Sonia Sotomayor, said the court’s decision “dishonored” the Fifth Amendment protections that Miranda rules are supposed to protect.

“Today, for people already in prison, the court finds it adequate for the police to say: ‘You are free to terminate this interrogation(审讯、讯问) and return to your cell.’ ” Ginsburg wrote. “Such a statement is no substitute for(用…代替) one ensuring that an individual is aware of his rights.”



             法治周末13版    日期:2012-03-1 原作者:Robert Barnes   施王照 翻译











































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