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.
The United States Supreme Court issued its 7-1 decision in Fisher vs. University of Texas at Austin today. Justice Kennedy delivered the opinion of the Court, Justice Ginsburg dissented, Justice Kagan recused herself.
The Court vacated the decision of the Fifth Circuit Court of Appeal which had upheld the University’s consideration of race as one of many factors when evaluating applicants for admission. The Court found that the Fifth Circuit did not appropriately apply the required strict standard of scrutiny. 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 accorded the University too much deference when it held that the Petitioner, Abigail Fisher, could only challenge whether the University’s decision to use race as an admissions factor “was made in good faith.” According to the 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.
We cannot predict what the Fifth Circuit will do. The Supreme Court has accepted another admissions case and we believe that this issue is far from over. In concurring opinions today, Justices Thomas and 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. Given all of this uncertainty, we will continue to monitor this situation and will keep you posted…
Hirschfeld Kraemer LLP
San Francisco, CA
After all this NLRB amicus brief writing, members of the Council were honored to prepare an amicus brief on behalf of 14 past student body presidents of the University of Texas at Austin (UT) in the U.S. Supreme Court case Fisher v. University of Texas at Austin. On the brief from Hirschfeld Kraemer were Felicia Reid, Natasha Baker & Molly Richman. On the brief from Gray Plant Mooty were Abigail Crouse & Megan Anderson.
In Fisher, the court is reviewing the constitutionality of UT’s holistic admissions policy, in which race is one of many factors considered in certain admissions decisions. The amicus brief supports the constitutionality of UT’s admissions policy and explains the value of diversity to the undergraduate experience and in preparing future leaders.