Archives: 10/2013

More on Racial Preferences at UT-Austin

At the end of its last term in June, the Supreme Court announced its decision in Fisher v. University of Texas at Austin. In that case, Abigail Fisher challenged the University of Texas’s use of racial preferences in its admissions policy as a violation of the Fourteenth Amendment’s equal protection clause. When Fisher applied to UT-Austin, the school accepted the top 10 percent of students from all in-state high schools (since lowered to 8 percent), then fills its remaining spots by considering a mix of factors, including a preference for individuals of some (but not all) racial minorities.

When the case originally came to the U.S. Court of Appeals for the Fifth Circuit, the court granted wide deference to UT-Austin and its claim that the racial preferences were justified by what the Supreme Court held — in a 2003 case out of the University of Michigan called Grutter v. Bollinger — to be a compelling government interest: educational diversity. The Supreme Court took Fisher’s appeal, and Cato filed an amicus brief supporting her, arguing that the policy didn’t pass strict scrutiny because the university failed to establish (and the lower court failed to require) the “strong basis in evidence” necessary to justify race-conscious measures and to enable a reviewing court to apply any meaningful level of review.

In a 7-1 opinion, the Court agreed, holding that the Fifth Circuit had not correctly applied strict scrutiny when it deferred to the university as to whether its race-conscious measures were necessary and narrowly tailored. While the Court didn’t reconsider Grutter or the continuing validity of “educational diversity” as a compelling state interest, it did remand the case to the Fifth Circuit with instructions to apply actual strict scrutiny to the university’s use of racial classifications.

Back before the Fifth Circuit, Cato has once again filed a brief supporting Fisher. We argue that the strong-basis-in-evidence requirement is necessary for several reasons: to enable courts to independently review the use of race, to smoke out illegitimate and arbitrary uses of race, to enable the proper tailoring of valid uses of race, to limit racial stigma, and to provide greater transparency and accountability. These reasons are all especially important in the context of diversity in education.

We then point out how UT-Austin has failed to meet its factual burden. It hasn’t established a factual basis to explain its conception of diversity (What will the use of race provide?); the necessity of its racial classifications (Why are there no race-neutral means available?); nor the reasoning behind the extent of its preferences (Why do only some racial classes receive preferences?). Because UT-Austin has failed so miserably to meet its factual burden, it’s clear that its admissions program is precisely what the strong-basis-in-evidence requirement is meant to eliminate: an arbitrary and amorphous use of racial classifications and a violation of the constitutional guarantee that every one of us, student or not, be treated as an individual with full legal equality.

The Fifth Circuit will hear argument in Fisher later this fall.

Justice Scalia’s Devilish Heart

Supreme Court Justice Antonin Scalia’s recent interview with New York magazine has gotten a lot of attention, but for the wrong reasons. Many reactions center on his “shocking” revelation that he believes in the existence of the Devil. (Does it take a secular Jew to point out that this standard Catholic doctrine should be no more shocking than the belief that there’s a hell in addition to a heaven?) Better-informed observers will note with surprise the acerbic jurist’s repudiation of his “fainthearted originalism.” Nowadays, he said, he tries to be a “stouthearted” originalist, one who is willing to “take the bitter with the sweet.”

That approach to interpreting the Constitution would be a refreshing break with Scalia’s past, for his is not the track record of a consistent originalist. Yes, the good justice has been faithful and true to the original understanding of the Constitution’s terms in many cases – standing firm against Obamacare’s audacious expansion of federal power in NFIB v. Sebelius, for instance. Yet his heart was much less stout in the 2010 case of McDonald v. Chicago, which extended the right to keep and bear arms to the states. In that case, Scalia fell back on the Fourteenth Amendment’s Due Process Clause – and the very doctrine of “substantive due process” on which he has himself heaped such scorn – to “incorporate” the Second Amendment against the states.

A real originalist would have taken Justice Clarence Thomas’s tack, resurrecting the long-neglected Privileges or Immunities Clause. That Clause was widely understood at the time of the Fourteenth Amendment’s ratification in 1868 to empower the federal government to stop states from violating the rights of recently freed slaves, and by extension of all Americans. Yet in the Slaughterhouse Cases of 1873, the Supreme Court ruled that the Clause didn’t restrict states’ police powers, but instead implicated only the rights attendant to U.S. (as opposed to state) citizenship.

That ruling, which unfortunately was never overturned, prompted later courts to resort clumsily to the questionable substantive due process doctrine to secure individual rights against the states. (To be sure, there has to be some substance to the Due Process – kangaroo courts don’t satisfy constitutional requirements – but that wasn’t the provision intended to secure natural rights.) By reviving the Privileges and Immunities Clause, the Court could have put those rights on a much sounder textual footing and return federal constitutional law in this area to its original meaning. Instead, Scalia took the easy way out and “acquiesced” in a 140-year-old precedent “as much as I think it’s wrong” (quotes from the McDonald oral argument). The mind boggles.

Justice Scalia has written, “It is no easy task to wean the public, the professoriate, and (especially) the judiciary away from [living constitutionalism,] a seductive and judge-empowering philosophy.” If his jurisprudence is any indication, however, getting originalism’s loudest champions to adhere to it consistently seems to be no easier. 

H/t Josh Blackman, with whom I’ve previously written about Scalia’s weak heart and the proper way to extend the right to keep and bear arms to the states.

Thatcher Provides Insight on GOP Battles

Former British prime minister Margaret Thatcher’s autobiography indicates that the internal struggles within the Conservative Party in the 1980s were as intense as today’s struggles within the Republican Party. Many Tories in Thatcher’s time—just like many Republicans now—were allegedly for smaller government, but they showed little interest in the tough fight needed to actually make it happen. Nearly every Republican in Congress today claims that he or she is for cutting spending and repealing Obamacare, but many of them seem to shy away when they meet strong resistance from the other side.

Here’s what the Iron Lady said about that type of politician:

[There was] a political type that had dominated and, in my view, damaged the post-war Tory Party. I call such figures “the false squire.” They have all the outward show of a John Bull—ruddy face, white hair, bluff manner—but inwardly they are political calculators who see the task of Conservatives as one of retreating gracefully before the Left’s inevitable advance. Retreat as a tactic is sometimes necessary; retreat as a settled policy eats at the soul. In order to justify the series of defeats that this philosophy entails, the false squire has to persuade rank and file Conservatives that advance is impossible. His whole political life would, after all, be a gigantic mistake if a policy of positive Tory reform turned out to be both practical and popular. Hence the passionate and obstinate resistance mounted by the “wets” to the fiscal, economic, and trade union reforms of the early 1980s. These reforms had either to fail or be stopped. For if they succeeded, a whole generation of Tory leaders had despaired unnecessarily.

Court: Anxiety About Getting Fired Can Be ADA Disability

In 2008 Congress passed something called the ADA Amendments Act, which reversed various Supreme Court decisions and expanded other rules and definitions so as to enable many more persons to claim status as disabled for purposes of filing discrimination lawsuits under the Americans with Disabilities Act.

I predicted the ADAAA would lead to bad consequences, but even I didn’t foresee what happened in this South Dakota federal case, as told by employment blogger Eric B. Meyer. The plaintiff is a teacher who had been given a poor evaluation and been put on a “performance improvement” plan.

It was right around this time that the teacher met with a physician’s assistant, who diagnosed the teacher with “anxiety and depression, likely stemming from her concerns about possibly getting fired.” 

So, at the teacher’s request, the physician’s assistant wrote a letter to the school seeking a laundry list of accommodations, including:

  • restructuring her job to include only essential functions if stressful situations continue to negatively impact her
  • encouraging her to walk away from stressful confrontations with supervisors; and
  • providing coverage if she becomes overwhelmed with stress from the work environment and needs to leave

The school responded to the full list of accommodation requests, agreeing to provide some, rejecting some, and requesting clarification as to others.

“We’re from the Government and We’re Here to Help,” Schoolyard Edition

In an epic case of unintended consequences, government-mandated anti-bullying programs are actually increasing bullying by teaching kids how to bully, according to a new study published in the Journal of Criminology:

The study concluded that students at schools with anti-bullying programs might actually be more likely to become a victim of bullying. It also found that students at schools with no bullying programs were less likely to become victims.

The results were stunning for Jeong [the author]. “Usually people expect an anti-bullying program to have some impact—some positive impact.”

The student videos used in many campaigns show examples of bullying and how to intervene. But Jeong says they may actually teach students different bullying techniques—and even educate about new ways to bully through social media and texting.

Jeong said students with ill intentions “…are able to learn, there are new techniques [and gain] new skills.” He says students might see examples in videos and then want to try it.

According to Jeong, some programs even teach students how to bully without leaving evidence behind. “This study raises an alarm,” he said. “There is a possibility of negative impact from anti-bullying programs.”

So under the pretense of helping, the government essentially created a “How To Bully and Get Away With It” program that has made the lives of tens of thousands of schoolchildren more miserable. 

Cato’s New Legal Academic Writing Workshop

Cato believes that young lawyers’ writing about ideas, theory, and policy doesn’t need to end with law-school graduation—and shouldn’t be the sole province of law professors. We also know how hard it is to produce high-quality scholarship outside of an academic setting, especially for first-time authors. Accordingly, starting next month Cato will be hosting a Legal Academic Writing Workshop to encourage the efforts of up-and-coming legal scholars (whether you intend to become a professor or not).

The LAW Workshop is a colloquium that brings together young legal professionals interested in scholarly writing. Every other week at Cato’s offices, the group will meet to discuss and offer feedback on one participant’s pre-circulated draft article or working paper. This isn’t a “legal research and writing” course or a lecture series featuring Cato’s fellows and scholars—I myself will be able to attend sporadically at best—but a way for recent graduates to stay connected to the scholarly community and their peers, while getting valuable feedback and input on their scholarly projects.

Because of limited space, attendance is by application and invitation only. If you’re interested in joining, please email Cato legal associate Gabriel Latner at glatner [at]

, attaching your resume and a short description of an article you’re writing (or would like to write).

We’re excited about this opportunity to help develop the next generation of legal scholars!

Public TV to Air Documentary on Economic Freedom

It’s been more than a quarter century since the Fraser Institute set out to define and measure the concept of economic freedom, a project that culminated in the annual publication of the Economic Freedom of the World index (co-published in the United States by Cato). Since then, we’ve learned a tremendous amount about the contribution of economic freedom to human progress, there’s been an explosion of scholarly literature on the subject, and the term is now commonly used by politicians and international institutions alike.

A new documentary—Economic Freedom in Action: Changing Lives— will air this fall on public television stations and look at how the rise in economic freedom has transformed the lives of hundreds of millions of people around the world. See a trailer of the film below. Join us to see a screening of part of the documentary at a Cato forum on October 16 featuring the Fraser Institute’s founder and former executive director, Michael Walker, and Cato senior fellow Johan Norberg.