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Litigation Update: UT-Austin Faces Lawsuit Over Race-Based Admissions - Podcast

Civil Rights Practice Group Podcast
Edward Blum August 10, 2017

In July 2017, Students for Fair Admissions, a non-profit membership organization comprised of over 21,000 students, parents, and others, filed a lawsuit in Texas state court against the University of Texas at Austin. The organization alleges that UT’s racial preferences in admissions violate the Texas Constitution and a Texas statute. In particular, the Texas Constitution provides that: “Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.” This Equal Rights Amendment was purportedly enacted by the people of Texas to provide more expansive protection against discrimination than the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

Edward Blum, the president of Students for Fair Admissions, joined us to discuss the use of race-based preferences in the admissions process and the organization’s new lawsuit against the University of Texas at Austin.

Featuring:

  • Edward Blum, Visiting Fellow, American Enterprise Institute, President, Students for Fair Admissions, President, Project on Fair Representation

 

Maslenjak v. United States - Post-Decision SCOTUScast

SCOTUScast 7-26-17 featuring Vikrant P. Reddy
Vikrant P. Reddy July 26, 2017

On June 22, 2017, the Supreme Court decided Maslenjak v. United States. At the close of the Bosnian civil war, Divna Maslenjak sought refugee status for herself and her family in the U.S. due to fear of persecution regarding their Serbian identity in modern-day Bosnia and the threat of reprisal against her husband, who she claimed had evaded military conscription in the Bosnian Serb militia. After the family was granted refugee status and Maslenjak became a U.S. citizen, a U.S. court convicted Maslenjak’s husband, Ratko, on two counts of falsifying claims regarding Serbian military service on U.S. government documents, since Ratko had in fact served in the Serbian military. When Ratko applied for asylum to avoid deportation, Divna Maslenjak admitted to lying about her husband’s military service and was charged with two counts of naturalization fraud. At her trial, jurors were told that a naturalization fraud conviction could be carried out for false claims in Maslenjak’s application process, even if the claims did not affect whether she was approved. Convicted on both counts, Divna Maslenjack was stripped of her citizenship. The Sixth Circuit affirmed her conviction.

By a vote of 9-0, the Supreme Court vacated the judgment of the Sixth Circuit and remanded the case. In an opinion by Justice Kagan, the Court held that (1) the text of 18 U.S.C. § 1425(a) -- which prohibits "procur[ing], contrary to law, the naturalization of any person" -- makes clear that, to secure a conviction, the federal government must establish that the defendant's illegal act played a role in her acquisition of citizenship; (2) when the underlying illegality alleged in a Section 1425(a) prosecution is a false statement to government officials, a jury must decide whether the false statement so altered the naturalization process as to have influenced an award of citizenship; and (3) measured against this analysis, the jury instructions in this case were in error, and the government's assertion that any instructional error was harmless if left for resolution on remand. Justice Kagan’s majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Sotomayor. Justice Gorsuch filed an opinion concurring in part and concurring in the judgment, in which Justice Thomas joined. Justice Alito filed an opinion concurring in the judgment.

And now, to discuss the case, we have Vikrant P. Reddy, who is Senior Research Fellow at the Charles Koch Institute.

Ziglar v. Abbasi - Post-Decision SCOTUScast

SCOTUScast 7-25-17 featuring David B. Rivkin
David B. Rivkin Jr. July 25, 2017

On June 19, 2017, the Supreme Court decided Ziglar v. Abbasi, which was consolidated with the cases Ashcroft v. Abbasi , and Hasty v. Abbasi. Ziglar v. Abbasi was part of a series of lawsuits brought by Muslim, South Asian, and Arab noncitizens who were detained after the terrorist attacks on September 11, 2001, and treated as “of interest” in the ensuing government investigation. These plaintiffs contended, among other things, that the conditions of their confinement violated their constitutional rights to due process and equal protection. The defendants included high-level officials in the Department of Justice (DOJ) such as Attorney General John Ashcroft, FBI director Robert Mueller, and Immigration and Naturalization Service Commissioner James Ziglar, as well as various detention officials. Some of the parties reached settlements, and the district court eventually dismissed some of the allegations against the DOJ officials for failure to state a claim. The U.S. Court of Appeals for the Second Circuit affirmed the lower court’s dismissal of plaintiffs’ Free Exercise claims, but otherwise reversed most of the district court’s judgment. Plaintiffs, the Second Circuit held, had adequately pleaded claims for violations of substantive due process, equal protection, the Fourth Amendment, and civil conspiracy, and Defendants were not entitled to qualified immunity. Defendants then sought, and the Supreme Court granted, a petition for writ of certiorari.

By a vote of 4-2, the Supreme Court reversed in part, and vacated and remanded in part, the judgment of the Second Circuit. In an opinion by Justice Kennedy, the Court held that (1) the limited reach of actions brought under Bivens v. Six Unknown Federal Narcotics Agents informs the decision whether an implied damages remedy should be recognized in this case; (2) considering the relevant special factors in this case, a Bivens-type remedy should not be extended to the "detention policy claims" -- the allegations that the executive officials and wardens violated the detainees' due process and equal protection rights by holding them in restrictive conditions of confinement, and the allegation that the wardens violated the Fourth and Fifth Amendments by subjecting the detainees to frequent strip searches -- challenging the confinement conditions imposed on the detainees pursuant to the formal policy adopted by the executive officials in the wake of the September 11 attacks; (3) the U.S. Court of Appeals for the 2nd Circuit erred in allowing the prisoner-abuse claim against Warden Dennis Hasty to go forward without conducting the required special-factors analysis; and (4) the executive officials and wardens are entitled to qualified immunity with respect to respondents' civil conspiracy claims. 

Justice Kennedy delivered the opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which the Chief Justice and Justices Thomas and Alito joined. Justice Kennedy also delivered an opinion with respect to Part IV–B, in which the Chief Justice and Justice Alito joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Breyer filed a dissenting opinion, in which Justice Ginsburg joined. Justices Sotomayor, Kagan, and Gorsuch took no part in the consideration or decision of these cases. 

To discuss the case, we have David B. Rivkin, who is a Partner at Baker & Hostetler LLP.

Are Existing Civil Rights Policies Based on a Statistical Understanding That Is the Opposite of Reality? - Podcast

Civil Rights Practice Group Podcast
James P. Scanlan, Roger B. Clegg July 25, 2017

For decades, the DOJ’s civil rights enforcement policies regarding lending, school discipline, and criminal justice have been premised on the belief that relaxing standards and otherwise reducing the frequency of adverse outcomes will reduce percentage racial differences in rates of experiencing those outcomes.  Exactly the opposite is the case. Generally reducing any adverse outcome tends to increase, not decrease, percentage racial differences in rates of experiencing those outcomes. This Teleforum discussed whether the Sessions DOJ will be able to understand the statistical issues and, if so, how such understanding should affect civil rights enforcement policies. Click here to access materials referenced in this Podcast. Click here for Jim's website.

Featuring:

  • James P. Scanlan, Attorney at Law
  • Moderator: Roger B. Clegg, President and General Counsel, Center for Equal Opportunity

Immigration Moratorium Back in the Court - Podcast

International & National Security Law Practice Group Podcast
Josh Blackman, Ilya Somin July 25, 2017

Eighteen days after the Supreme Court granted certiorari in Trump v. International Refugee Assistance Project and stay applications were granted in part, on July 14, 2017, Judge Watson of the District Court of Hawaii ruled that grandparents, grandchildren, aunts, uncles, and other relatives of people could not be prevented from entering the country as they qualified as persons with a “bona fide relationship” under the Supreme Court ruling.

On July 19, 2017, the Supreme Court upheld parts of the District Court order. Ilya Somin and Josh Blackman joined us again to discuss developments in the litigation of Executive Order 13780.

Featuring: 

  • Prof. Josh Blackman, Associate Professor of Law, South Texas College of Law, Houston
  • Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University