Race Discrimination

Affirmative Action Again: Fisher v. University of Texas

Civil Rights Practice Group Teleforum Tuesday, December 01, 01:00 PMFederalist Society Teleforum Conference Call

On December 9, the Supreme Court will hear oral argument in Abigail Fisher v. University of Texas at Austin. In this case, Ms. Fisher challenges the use of racial and ethnic preferences in undergraduate admissions at the University. This is the case’s second trip to the Supreme Court: In 2013, the Court reversed a Fifth Circuit decision that had upheld the University’s policy, and said the lower court had been too deferential to the school, particularly with respect to applying the “narrow tailoring” prong of strict scrutiny. On remand, the Fifth Circuit again ruled for the University, and last summer the Court granted Ms. Fisher’s petition.

Mr. Clegg and Mr. Shaw will discuss what the Court is likely to do with the case, as well as what the Court should do with the case. The Court’s review comes at an interesting time, with numerous campus protests on race-related issues. Also of interest is the fact that Ms. Fisher’s lawyers have now filed lawsuits against Harvard and the University of North Carolina – Chapel Hill, and have emphasized allegations of discrimination against Asian Americans.


  • Roger B. Clegg, President and General Counsel, Center for Equal Opportunity
  • Prof. Theodore M. Shaw, Julius L. Chambers Distinguished Professor of Law, and Director of the Center for Civil Rights, University of North Carolina School of Law

Vanita Gupta, Department of Justice’s Top Civil Rights Prosecutor, on Criminal Justice Reform and Policing - Podcast

Civil Rights Practice Group Podcast
Vanita Gupta November 02, 2015

Vanita Gupta, Principal Deputy Assistant Attorney General of the Department of Justice’s Civil Rights Division, delivered an address on criminal justice reform and policing. In announcing her arrival at the Department of Justice, Eric Holder praised Ms. Gupta, saying that “even as she has done trailblazing work as a civil rights lawyer, Vanita is also known as a unifier and consensus builder. She has a knack for bridging differences and building coalitions to drive progress.” This praise has been echoed by sources as diverse as National Rifle Association head David Keene, who told the Washington Post that Ms. Gupta “listens to and works with people from all perspectives to accomplish real good.”


  • Vanita Gupta, Principal Deputy Assistant Attorney General, Civil Rights Division, United States Department of Justice

Redskins Trademark in Court, and More - Podcast

Litigation Practice Group Podcast
Dwayne D. Sam, Ilya Shapiro October 26, 2015

Can the government police speech it thinks is offensive? The Lanham Act allows the government to deny trademark registration to "disparaging" speech. What does the First Amendment have to say about the government's ability to pick and choose among speech it doesn't like? Two pending appeals court cases will directly address this important question.

The U.S. Court of Appeals for the Fourth Circuit is scheduled to hear oral argument in Pro-Football, Inc. v. Blackhorse, a case challenging the REDSKINS trademark and, by extension, the constitutionality of § 2(a).

Meanwhile, in In re Tam, an Asian-American rock band called “The Slants” was denied trademark registration after the Patent and Trademark Office found the trademark disparaging to Asians. A panel of the U.S. Court of Appeals for the Federal Circuit affirmed the decision. But the en banc Federal Circuit—without being asked—decided to vacate that decision and consider whether § 2(a) violates the First Amendment.

Are we headed for a constitutional showdown over § 2(a) of the Lanham Act? Will the two appellate courts reach opposite decisions and invite Supreme Court review?


  • Dwayne D. Sam, Associate, Wiley Rein LLP
  • Ilya Shapiro, Senior Fellow in Constitutional Studies and Editor-In-Chief for Cato Supreme Court Review, Cato Institute

Davis v. Ayala - Post-Decision SCOTUScast

SCOTUScast 7-8-15 featuring Ronald Eisenberg
Ronald Eisenberg July 08, 2015

On June 18, 2015, the Supreme Court issued its decision in Davis v. Ayala. The issue in this case was whether Ayala was entitled to federal habeas relief because the judge in his capital murder trial, when responding to Ayala’s objection that the prosecution used its peremptory challenges to strike potential jurors based on race, excluded Ayala from the hearing during which the judge considered the prosecution’s explanation for the peremptory challenges.  The Ninth Circuit granted Ayala’s petition for habeas relief.

In an opinion delivered by Justice Alito, the Court reversed the Ninth Circuit by a vote of 5-4 and remanded the case.  Any federal constitutional error that may have occurred as a result of the exclusion of Ayala from the hearing, the Supreme Court held, was harmless with respect to all seven prospective jurors who had been stricken.

Justice Alito’s opinion was joined by the Chief Justice and Justices Thomas, Scalia, and Kennedy.  Justices Kennedy and Thomas filed concurring opinions. Justice Sotomayor filed a dissenting opinion, which was joined by Justices Breyer, Kagan, and Ginsburg. 

To discuss the case, we have Ronald Eisenberg, who heads the Law Division of the Philadelphia District Attorney’s Office. 

Supreme Court Upholds Disparate Impact: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. - Podcast

Civil Rights Practice Group Podcast
William Consovoy, Ralph W. Kasarda July 02, 2015

On June 25, the Supreme Court issued a 5-4 decision that the Wall Street Journal has characterized as a "Disastrous Misreading of the Fair Housing Act," ruling that disparate-impact claims are cognizable under the Fair Housing Act. The consensus of court-watchers predicted an opposite holding. Is the Court’s decision a broad endorsement of the government’s use of disparate impact theory? Our experts discussed the implications of the decision.

  • William Consovoy, Partner, Consovoy McCarthy PLLC
  • Ralph W. Kasarda, Staff Attorney, Pacific Legal Foundation