“The Fate Of Race-Conscious Admissions Policies … Delayed”

By:  Natasha Baker
Hirschfeld Kraemer LLP
San Francisco, CA

The following article appeared on Law360 on 6-26-13 and is reprinted with permission.

Those awaiting a definitive decision on the University of Texas at Austin’s admissions plan — in which race is one of many factors used to evaluate a certain pool of applicants for admission — will have to wait for the Fifth Circuit Court of Appeals to review the plan again, this time in accordance with the long-awaited Fisher v. University of Texas at Austin decision handed down by the U.S. Supreme Court during the last week of the 2012-2013 term.

In a 7-1 decision, the court vacated the decision of the Fifth Circuit Court of Appeals, which had upheld the university’s consideration of race as one of many factors when evaluating applicants for admission. (Justice Anthony Kennedy delivered the opinion of the court, Justice Ruth Bader Ginsburg dissented and Justice Elena Kagan recused herself.) A majority of the court found that the Fifth Circuit did not appropriately apply the required strict standard of scrutiny when reviewing the university’s plan.

Under the plan, students were admitted under a top 10 percent rule — those in the top 10 percent of their graduating class received automatic admission. The university reserved a small percentage of seats for those who did not qualify for admission under the top 10 percent rule.

Within this discretionary pool, the university evaluated candidates for admissions holistically — race being one factor taken into consideration. This use of race as a factor in admission led the petitioner, Abigail Fisher, to challenge the university’s admissions plan as unconstitutional under the Equal Protection Clause of the 14th Amendment to the Constitution, which prohibits a government actor from employing racial classifications unless certain conditions have been satisfied.

Reviewing the landmark admissions decisions in this area — Regents of the University of California v. Baake and “Michigan cases” Gratz v. Bollinger and Grutter v. Bollinger — the court reiterated its long-standing precedent, which requires that when racial classifications are used, they are constitutional only if they meet the test for strict scrutiny — which requires a showing of (1) a compelling state interest (in this case, diversity as an educational goal) and (2) that the use of such racial classifications is narrowly tailored to achieve the compelling state interest.

According to the majority opinion, the Fifth Circuit erred when it held that the petitioner, Fisher, could only challenge whether the university’s decision to use race as an admissions factor “was made in good faith.” According to the Supreme Court, the university had been given too much deference as to whether its plan was “narrowly tailored to achieve its stated goal” in achieving a more diverse student body. As such, the Fifth Circuit must review the case again under the strict scrutiny standard without according the university such deference.

With this narrowly drawn ruling (resulting in an outcome that will ultimately turn on the facts before the Fifth Circuit), the Supreme Court sidestepped the issue of whether diversity as an educational goal remains a sufficient justification for considering race as a factor in admissions, thereby leaving undisturbed its 2003 ruling in Grutter.

However, in concurring opinions, Justices Clarence Thomas and Antonin Scalia signaled that they do not consider the educational benefits of diversity to be a compelling state interest that justifies the use of race in evaluating candidates for admission. They would likely overturn Grutter — an opportunity that may present itself in the 2013-2014 term. Prior to issuing its decision in Fisher, the court granted review of the Sixth Circuit Court of Appeals’ decision in Schuette v. Coalition to Defend Affirmative Action. The court will be reviewing that case during its 2013-2014 term.

In Schuette, the Sixth Circuit struck down a Michigan ballot measure which, among other things, prohibited public universities in Michigan from considering race (or any other protected factors) when evaluating candidates for admission. The measure had been passed in response to the Supreme Court’s 2003 decision in Grutter.

Thus, those who had hoped for answers from the court in Fisher must wait another year. Reading the tea leaves, it appears that the court has positioned itself to be able to answer this question in Schuette.

The author and her firm participated in the preparation of an amicus brief that was filed with the court in this case on behalf of the Former Student Body Presidents of University of Texas at Austin.

Impact of Unions on Private Colleges in Egypt

By:  Mona O. Abdel Hafiz and Dr. Mohamed Ramadan 
Ibrachy & Dermarkar Law Firm
Giza, Egypt

The following explores the issue of unions for private universities in Egypt. Public universities are governed by Public Law, and therefore not addressed.

  1. Labor Strikes

The International Covenant on Economic, Social and Cultural Rights guarantees the right to strike and the International Labor Organization conventions also protects this right. The Egyptian Labor Law No. 12 of year 2003 recognizes the employees right to strike that allows employees to stop work voluntarily and collectively in order to pressure employers to accede their demands, however, there are vital issues that should be taken into consideration such as the fact that labor union’s representatives should have labor negotiation skills in addition to the need of counseling to employees.

On one side, labor strikes are a healthy sign of a free economy. To severally limit the right to strike would also mean introducing other restrictions to protect employees. The psychological effects of a strike should also not be ignored. It is often a way for employees to get rid of the resentment built up over a period of time. It helps to build working relationships and to achieve more realism and moderation in both demand and supply of labor.

On the other side, Labor Strikes have a negative impact on the profits of the entities. Employees tend to view strikes in entities as an investment- a giving up on current resources in the hope of gaining larger returns in the future. While strikes make front-page news, peaceful settlements are less frequently covered in the media.

Therefore, two precautionary measures that employers should adopt to prevent or have a lower chance of labor strikes.

a)       Labor Negotiation Skills:

Labor and collective bargaining lack basic negotiating skills. The basic tact and art of negotiation is getting eroded within organizations.

Deadlocks and failures to come to a negotiated agreement hurt all sides involved and the end result is that neither party wins – both sides lose. We must focus on the common interests in any labor situation that should take into account the particular needs of labor unions and corporate interests and puts them at the forefront of all discussions. Meeting the needs of labor negotiations should involve the following:

  • Understand the concerns of each side during labor negotiations.
  • Place greater emphasis on planning and strategy.
  • Plan for negotiations with employees before disagreements lead to strikes and walkouts.
  • Handle negotiations in person.
  • Minimize possible conflict via principled negotiation strategies.
  • Strengthen internal cooperation during negotiations.
  • Establish rapport and build chemistry.
  • Focus on interests and issues that lead to common agreement.
  • Apply questioning skills to determine situations, priorities and demands.
  • Adjust a negotiations approach based on verbal cues and behavior.
  • Identify areas of concern and recommend appropriate solutions
  • Recognize and disarm dishonest negotiation tactics.
  • Handle negotiations in an ethical manner that strengthens relationships.
  • Protect constituent interests during labor negotiations.

… by providing counsel, training and assistance prior to or within the framework of the strike.

b)       Group Psychology:

1)      Psychological factors leading up to strikes

Social, political and economic factors can help to explain the actions of the employees in an entity that would lead to a strike. The roots of group violence, like individual violence, can often be found in historical relationships which provide a reservoir for hostility. There are a number of violence-promoting factors that can be identified in strikes such as “Deprivation, Frustration and Aggression”.

Frustration is a basic prerequisite for anger. It is associated with, but not always linked to, the expression of aggression and violence. Under certain circumstances frustration may lead to aggression. Leonard Berkowitz, is an American social psychologist best known for his research on human aggression defines deprivation and frustration in the following manner:

“I would say a person is deprived if he lacks a goal object people generally regard as attractive and desirable, but is frustrated only when he had been anticipating the pleasure to be gotten from this object and then cannot fulfill this expectation”  

2)      Group Counseling/Psychological Services

There are socio-cultural challenges for psychologists in Egypt. There are also common myths and misconceptions about the public image of psychology, including, but not limited to the following:

  • A belief that mental illness is a sign of weakness in the faith;
  • A belief that people in need of psychiatric care should be locked away in special institutions, as mentally-ill people are often considered to be dangerous to society;
  • A belief that people with mental disorders must work low-level jobs, because they are not competent for important or responsible jobs; and,
  • A belief that mental disease is mainly due to demon whispers or demon possession, so they need a spiritual kind of treatment and not medical treatment, e.g., in the case of epilepsy.

In general, the mission of introducing the Counseling and Psychological Services in the Egyptian Law is to support and promote the emotional, intellectual, physical and spiritual health and wellness of the employees. The psychology of employee motivation at the workplace is extremely important, such as:

  • Physiological needs: Physiological needs are usually associated with money. People use money to satisfy basic motivations. If employees don’t earn enough money to comfortably meet basic financial needs such as rent, healthcare, etc., it is difficult to focus on creating value in the workplace.
  • Safety Needs: Not in the sense of an assurance of a lifetime employment, since in today’s economy, there are no guarantees. However, an employer can meet employees’ needs on this level by keeping them informed of the company’s financial position and keeping them in the loop on the company matters that affect them.
  • Social Needs: If the satisfaction of social needs is hindered, employees may become apathetic, uncooperative, and even aggressive towards their managers. Learning to provide opportunities for socialization through staff meetings, employee luncheons and even venting with one another between calls would help understand the social needs of the employees and how to satisfy such needs.
  • Esteem or Ego Needs: Esteem needs relate to individuals’ achieving the confidence and respect they desire in themselves and want to be recognized by others. These needs include the desire for recognition, promotion, achievement and accomplishment. Failure to meet these needs can result in apathetic behavior and substandard work.

Tips of what psychologists should do with the employees of an entity;

  • Supervisory training on site.
  • A weekly meeting with the employees.

ELA Higher Education Council Co-Chair and Hirschfeld Kraemer LLP Partner Natasha Baker Quoted on Law360

Natasha J. Baker, co-chair of the Higher Education Council of the Employment Law Alliance and partner at Hirschfeld Kraemer LLP, was quoted on Law360 regarding the U.S. Supreme Court’s decisions in Fisher v. University of Texas and Vance v. Ball State.

Regarding the court’s holding in Fisher, Baker offered:

In Fisher v. University of Texas, the U.S. Supreme Court vacated the Fifth Circuit Court of Appeal’s decision, which had upheld the university’s consideration of race as a factor in admissions. When racial classifications are used, they must meet the test for strict scrutiny, which requires a compelling state interest. Further, any classifications must be narrowly tailored to achieve a compelling state interest. Per the majority, the university had been given too much deference regarding whether its plan was ‘narrowly tailored to achieve its stated goal’ — a more diverse student body. The Fifth Circuit must review the case again.

With respect to the Vance decision, Baker noted:

The U.S. Supreme Court decision, Vance v. Ball State, provides clarity on employer liability for supervisory harassment under Title VII. Under Vance, supervisors have the authority to take tangible employment actions, which include ‘a significant change in employment status.’ This distinction is critical — employers are strictly liable for harassment by supervisors. Conversely, employers may avoid liability for actions of nonsupervisors by the exercise of ‘reasonable care to prevent and correct any harassing behavior.’ The decision underscores the necessity of clearly drafted job descriptions that delegate authority to take tangible employment actions and anti-harassment policies that are clearly communicated and enforced.

“Guns on Campus: Navigating the Legal Maze”

Daniel H. Handman of ELA member firm Hirschfeld Kraemer LLP authored “Guns on campus: navigating the legal maze” for the California legal publication the Daily Journal.

Here is the text of the piece:

For seven days in March 2012, a jury pored through a moment-by-moment timeline of the events that took place at Virginia Tech University on April 16, 2007. Before a mentally unstable student went on a rampage that eventually killed 30 people on campus that day, he shot two students in a dormitory. At trial, the university took the position that it was justified in choosing not to provide a campus-wide warning. In four short hours, the jury found Virginia Tech negligent and awarded $4 million to each of the families of the students who were killed.

This horrific event set off a national debate about guns, and in particular guns at schools – a debate that only intensified after last year’s massacre at Sandy Hook Elementary School. In 2007, no state had a law requiring colleges and universities to allow guns on campus.

Since Virginia Tech, six states including Virginia have passed laws requiring colleges and universities to allow licensed students to carry concealed weapons on campus and several state legislatures are now considering bills which would do the same. These laws fly in the face of near universal opposition from school administrators, campus police and public health officials. Among others, the International Association of Police Chiefs, the National Education Association, the American Council on Education and hundreds of college presidents and leaders have publicly endorsed a complete ban of guns on campus.

Yet, the laws remain decidedly mixed. Aside from the six states which outlaw campus gun bans, in 23 states a college can decide whether guns can be permitted on campus, and in 21 states colleges must ban all students from bringing guns on to campus.

Special Risks

Because of the unique nature of college life and a college’s enhanced responsibility for the safety of its students, the usual gun control arguments are set aside. On campus, gun control debates focus on three specific issues: (1) frequency of binge drinking by college students; (2) the high rate of suicide on campus; and (3) the rate of crime from college dormitories and on-campus parking.

Gun control advocates maintain that these unique features of college life heighten the risk of guns on campus. To be sure, any person – in a college setting or otherwise – can operate a gun under the influence of alcohol or obtain a gun when suicidal, but gun control advocates ask – understandably – why colleges would assume that risk when there is a heightened chance of adverse consequences.

Constitutional Right?

The NRA steadfastly maintains that any restriction on the rights of students to carry concealed weapons on campus runs afoul of the Second Amendment. But does the Constitution unconditionally protect the rights of students to carry guns on campus?

That precise question has not been resolved by the courts, but when the U.S. Supreme Court found that the Second Amendment protected the right of an individual to carry a gun in Heller v. District of Columbia, the entire court agreed that at the very least restrictions on possession of guns in “sensitive places” were “presumptively lawful.” Since Heller, the lower courts have upheld restrictions on gun possession in places of worship, parking lots of post offices, airplanes and national parks. Surely then a college campus is also a “sensitive place” free of Second Amendment entanglements.

In 2011, the Virginia Supreme Court seemingly answered that question when it rejected a Second Amendment challenge to George Mason University’s ban on weapons in campus buildings and at campus events because Heller foreclosed any challenge to that ban in such sensitive places. It found that a college campus was a particularly sensitive place because “parents who send their children to [the] university have a reasonable expectation that the university will maintain a campus free of foreseeable harm.”

But one year later, a group of student gun rights activists at the University of Colorado scored a victory at the Colorado Supreme Court. Regents of the University of Colorado v. Students for Concealed Carry on Campus, 2012 CO 17 (March 5, 2012). The students made two clever – and ultimately successful – strategic decisions: (1) They brought the case under the state constitution, as Heller only applies to cases under the U.S. Constitution; and (2) they limited their challenge solely to their ability to keep guns in locked vehicles on campus, rather than focusing on the “sensitive places” at issue in the George Mason case. The Colorado Supreme Court rewarded that creativity and ordered the university not to enforce a gun ban on student vehicles.

There have been no decisions on the constitutionality of campus gun bans from other states since the University of Colorado case (although the Oregon Court of Appeals invalidated a campus-wide gun ban on other grounds), leaving the constitutionality of gun bans on campus somewhat uncertain. Still, if one trend can be taken from these cases, it is that except in the six states which now prohibit gun bans, campus administrators are well within their rights, at the very least, to ban guns in sensitive places like dormitories, libraries, student unions and buildings housing classrooms.

Legal Risks

The jury’s verdict in the Virginia Tech case serves as a reminder of the risks of allowing guns on campus. It was premised entirely on the law of negligence, namely that people owe one another a duty not to engage in conduct that could lead to “foreseeable harm.” Indeed, some courts have found that colleges have a special relationship with their students – a relationship that triggers a heightened duty of care, particularly at college-sponsored events or in college buildings.

As a result, it is not hard to imagine how the law of negligence could come into play with gun violence on campus. What if guns were used at a fraternity party that involved drugs or alcohol? Or if a student with a known mental disability used a gun on campus? Or if a gun was stolen from a campus dormitory or parking lot where there had been incidents of theft? A judge would be hard-pressed to find such risks unforeseeable and to dismiss a case before a jury trial. One need only look to the Virginia Tech verdict to get a sense of the amount of the verdict that could be expected in such a case.

Navigating This Legal Maze

 From a legal perspective, despite the conflicting decisions and the patchwork quilt of various state laws about guns on campus, no court has yet to invalidate a ban on guns in sensitive places on campus. And, while the Virginia Supreme Court has just decided to hear an appeal brought by Virginia Tech, the costs of defending that litigation – both tangible and intangible – add extra incentive to impose a broad gun ban to the greatest degree possible.

Putting aside the competing arguments and studies about gun control, the law certainly cautions against allowing guns on campus. Colleges and universities act not only as educators, but also as landlords, health care providers, and indeed, as the George Mason court suggested, as substitute parents. Whatever one’s view on gun control may be, those pronounced risks up the legal ante on schools who allow guns on campus. Just ask the administrators at Virginia Tech.

Originally published in the Los Angeles/San Francisco Daily Journal, June 18, 2013. Copyright 2013 Daily Journal Corporation, reprinted with permission.

Higher Education Council Co-Chair Natasha Baker Quoted in Law360 Article “3 Lessons Employers Can Learn From Schools”

Higher Education Council of the Employment Law Alliance Co-Chair and Hirschfeld Kraemer LLP Partner Natasha J. Baker was quoted in the Law360 article “3 Lessons Employers Can Learn From Schools.” The central points are that employers should consider mirroring policies adopted by schools that: 1) step up violence prevention; 2) have zero tolerance for bullying; and 3) include rules for social media.

The piece notes that in recent years schools have increasingly taken steps to prepare for a potential disaster, such as: setting up a crisis response team; holding mock active shooter drills; and having a plan to ensure that emergency first responders will be at the ready should an incident occur. Baker noted that this sort of strategic thinking is less prevalent in the private sector, but unquestionably vital, “It can help employers in the event of workplace violence to be prepared, to know how to respond and to potentially save lives.”

In addressing this issue of bullying, the article noted that partially due to the recent tragic consequences of this behavior, schools are helping lead the way when it comes to raising awareness and spearheading anti-bullying efforts. Baker, who works hand-in-hand with college administrators on labor and employment issues, dissected the impact that bullying has on campuses and detailed steps that higher education institutions are taking:

Bullying intimidates people, and it’s generally the worst practice from a human resources perspective. It can cause employees to leave, and it can deter other employees from coming over to work for a particular department or employer if it has a hostile work environment….Many universities have been the first to say that this is not behavior that is welcome, and that while it may be lawful, it won’t be tolerated. A lot of institutions have put in a code of conduct that employees have to be civil in the workplace and collegial, and that employees can disagree with each other, but in a professional, civilized manner.

Baker also noted that bullying at schools is a behavior equally pernicious in the workplace – potentially a cause of low morale and productivity, a deterrent to new hires and a motivating factor in attrition.

The article concludes with a discussion of the potential for social media – both in the workplace and after hours – to serve as a vehicle for harassment or discrimination. Policies adopted by schools, such as physically taking one’s cell phone for the duration of the school day, are likely not palatable in the workplace. An additional concern for employers is the need to tread carefully as employee speech may be governed by the National Labor Relations Board. The key, however, is to take the time to – carefully – craft a social media plan.

To read the full article (subscription required), please click here.