Monthly Archives: February 2021

Julia Levitan, CLS ’22

On November 12, 2020, the First Circuit Court of Appeals ruled in favor of Harvard University in a high-profile affirmative action case.[1] The plaintiff, Students for Fair Admissions (SFFA), has already announced its intention to bring its suit against Harvard to the Supreme Court.[2]  If the Supreme Court does choose to hear the Harvard case, or any of the other SFFA lawsuits currently in the lower courts, the increasingly conservative Court could revisit and possibly upend the established affirmative action jurisprudence that dates back to the 1970s.[3] Under the current standard, a school’s admissions process can consider race as one factor in a multi-factor, holistic evaluation of applications in the interest of achieving the educational benefits of a diverse student body.[4] A school cannot engage in “racial balancing” or use quotas in admissions.[5]

The case began in 2014, when SFFA, a group founded by “anti-affirmative-action activist” Edward Blum, filed suit against Harvard College, alleging that the school’s undergraduate admissions process discriminates against Asian American applicants in violation of Title VI of the Civil Rights Act of 1964.[6]  The plaintiffs argued that the college engages in impermissible racial balancing and relies too heavily on race as the dominant factor in the school’s admissions program.[7]  Harvard defended against these claims by arguing that its admissions process involves a “holistic” review that does not overemphasize or too heavily weigh the race of the applicant.[8] The first victory for Harvard came in 2019, when a district court judge found that the college’s admission program survives strict scrutiny, that is, that the school’s use of race is “narrowly tailored to further a compelling interest.”[9] The First Circuit affirmed the district court’s decision, holding that Harvard’s admission process does not violate Title VI.

But the First Circuit decision is unlikely to be the end of the road for the Harvard case, or for SFFA’s litigation battles against affirmative action policies. The Harvard case is one of many lawsuits the group is pursuing challenging affirmative action policies at institutions of higher education.[10]

[1] Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 19-2005, 2020 WL 6604313 (1st Cir. Nov. 12, 2020).

[2]  Benjamin L. Fu & Dohyun Kim, What to Expect Next in the Harvard Admissions Suit, The Harvard Crimson (Oct. 13, 2020), https://www.thecrimson.com/article/2020/10/13/harvard-sffa-next-steps.

[3] See Fisher v. University of Texas at Austin, 578 U.S. __ (2016) (slip op), Gratz v. Bollinger, 539 U.S. 244 (2003), Grutter v. Bollinger, 539 U.S. 306 (2003), Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

[4] Fisher, 136 U.S. at 13.

[5] Id. at 7.

[6] Students for Fair Admissions, 2020 WL 6604313, at *1.

[7] Id. at *22-25.

[8] Id.

[9] Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 397 F. Supp. 3d 126, 191 (D. Mass. 2019), aff’d sub nom. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 19-2005, 2020 WL 6604313 (1st Cir. Nov. 12, 2020).

[10] See Anemona Hartocollis, Affirmative Action Cases May Reach Supreme Court Even Without Trump, N.Y. Times (Nov. 9, 2020), https://www.nytimes.com/2020/11/09/us/affirmative-action-north-carolina.html.

Madeline Holbrook, CLS ’22

The rapid spread of the coronavirus disease (COVID-19) induced governments all over the world to create emergency safety measures in an attempt to slow the transmission between people.[1] In the United States, the most stringent of these safety measures are shelter-in-place orders, otherwise known as stay-at-home orders or lockdowns.[2] These measures are created by state governments, which direct citizens to stay in their homes as much as possible—and force “non-essential” businesses to close for the duration of the order.[3]

The state of Pennsylvania lived under one such order beginning on March 21, 2020.[4] On May 7, 2020, citizens and business owners from several different counties in Pennsylvania filed a lawsuit, County of Butler v. Wolf, in the Western District of Pennsylvania alleging that the stay-at-home order violated two Constitutional rights: the First Amendment right to assemble; and the fourteenth amendment right to substantive and procedural due process.[5]

On September 14, 2020, the district court ruled that stay-at-home orders violate the First Amendment right to assemble and the Fourteenth Amendment right to due process of law.[6] The court applied intermediate scrutiny to the restrictions. To pass intermediate scrutiny, a law must further an important government interest and do so by means substantially related to that interest. The court found that the restrictions were undertaken in support of a significant government interest: containing and managing the effects of COVID-19.[7] However, the government may not regulate free speech or free assembly in such a manner that a substantial part of the burden does not reach the government’s goals.[8] In short, stay-at-home orders are not a narrowly tailored solution to the problem. “A statute is narrowly tailored if it targets and eliminates no more than the exact source of the “evil” it seeks to remedy.”[9] The court found that shelter-in-place orders impose too heavy a burden on citizens—taking away an express constitutional right—to solve too narrow a problem.

Turning to the Fourteenth Amendment analysis, the court also ruled that stay-at-home orders violate substantive due process.[10] Courts have long recognized the right of citizens to be out and about in public. [11] Lockdowns deny citizens of this right and create a default position of being kept inside. While governments are authorized to take emergency measures to preserve the public health, the court ruled that the timeline for such measures has been long exceeded.[12] The court ruled that the government is required to find a less burdensome means to mitigate the effects of COVID-19.[13] In short, while lockdowns may be acceptable in the short term, in the long term they are not a sufficiently narrowly tailored solution to the public health problem as to be found constitutional.

“Broad population-wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional unless the government can truly demonstrate that they burden no more liberty than is reasonably necessary to achieve an important government end.”[14] In a case where liberty and safety go head-to-head, the Western District of Pennsylvania came down on the side of liberty.

[1] Jacob Gershman, A Guide to State Coronavirus Reopenings and Lockdowns, Wall St. J. (May 20, 2020), https://www.wsj.com/articles/a-state-by-state-guide-to-coronavirus-lockdowns-11584749351.

[2] Id.

[3] Id.

[4] Cty. of Butler v. Wolf, Civil Action No. 2:20-cv-677, 2020 WL 5510690, at *8 (W.D. Pa. Sep. 14, 2020).

[5] Cty. of Butler v. Wolf, Civil Action No. 2:20-cv-677, 2020 WL 2769105, at *2 (W.D. Pa. May 28, 2020).

[6] Cty. of Butler v. Wolf, Civil Action No. 2:20-cv-677, 2020 WL 5510690, at *2 (W.D. Pa. Sep. 14, 2020).

[7] Id. at 14.

[8] Id. at 45.

[9] Frisby v. Schultz, 487 U.S. 474, 485 (1988).

[10] Cty. of Butler v. Wolf, Civil Action No. 2:20-cv-677, 2020 WL 5510690, at *16 (W.D. Pa. Sep. 14, 2020).

[11] City of Chicago v. Morales, 527 U.S. 41, 53-54 (1999); Papachristou v. Jacksonville, 405 U.S. 156, 164-165 (1972); Byofsky v. Middletown, 429 U.S. 964 (1976) (Marshall, J., dissenting).

[12] Cty. of Butler v. Wolf, Civil Action No. 2:20-cv-677, 2020 WL 5510690, at *62 (W.D. Pa. Sep. 14, 2020).

[13] Id. at 23.

[14] Id. at 72-73.

Paul Riley, CLS ’22

2020 marks 55 years since the passage of the Voting Rights Act of 1965 (the “VRA”) and the year that John Lewis, a civil rights icon, was laid to rest.[1] Many will never forget the footage of John Lewis and other non-violent protestors being brutalized by police as they marched for their right to vote on March 7, 1965. Often referred to as “Bloody Sunday,” the scenes from the Edmund Pettus Bridge in Selma, Alabama rocked the collective conscience of the nation and President Lyndon B. Johnson. Enacted into law on August 6, 1965, the VRA prohibits any measures that would prevent racial minorities from participating in the electoral process.[2] More specifically, Section 2 of the VRA (“§ 2”) prohibits, “any standards, practices, or procedures” that abridge racial or language minorities’ voting rights.[3] However, the Supreme Court’s continual narrowing down of the scope of § 2 claims has limited minority groups’ ability to seek adequate relief under the VRA.

The Supreme Court’s desire to narrow the scope of § 2 claims is perhaps most apparent in its City of Mobile, Alabama v. Bolden decision. In Mobile, the Court held that § 2 violations “required proof that the contested electoral practice or mechanism was adopted or maintained with the intent to discriminate against minority voters.”[4] Given that intent is extremely difficult to prove, Congress repudiated Mobile in its 1982 VRA Amendments ­– which rejected the Court’s “intent” test and now only required plaintiffs to show that an electoral practice had a discriminatory result.[5] With this new guidance, the Supreme Court, in Thornburg v. Gingles, established three preconditions for plaintiffs hoping to mount a § 2 claim. The minority group must be able to demonstrate that: (1) “it is sufficiently large and geographically compact to constitute a majority in a single-member district,” (2) “it is politically cohesive,” and (3) “the white majority votes sufficiently as a bloc to enable it…usually to defeat the minority’s preferred candidate.”[6]

Put simply, the Supreme Court notes that, “[u]nder § 2…the injury is vote dilution.”[7] Further, the Supreme Court has outlined two main types of vote dilution: (1) “the dispersal of blacks into districts in which they constitute an ineffective minority of voters,” and (2) “the concentration of blacks into districts where they constitute an excessive majority.”[8] Despite these two definitions of “vote dilution,” the Supreme Court has precluded plaintiffs from making “influence-dilution” or “vote-packing” claims under this latter definition. In League of United Latin American Citizens v. Perry, the Supreme Court held that § 2 does not require the creation of “influence districts” – districts “in which a minority group can influence the outcome of an election even if its preferred candidate cannot be elected.”[9] Similarly, the Supreme Court, in Bartlett v. Strickland, held that § 2 does not require the creation of “crossover districts” – districts where the minority group’s influence is potentially large enough to elect their desired candidate with the support of white voters who cross over to add their support.[10] Without these “influence” and “crossover” districts, there is essentially no remedy available for vote-packing claims under § 2.

The Supreme Court has demonstrated an unwillingness to create cognizable vote-packing claims because it fears that doing so will obliterate its Gingles preconditions ­– which have been the baseline and bedrock of its § 2 jurisprudence.[11] However, the evolution of the Supreme Court’s § 2 jurisprudence (with respect to vote-packing) has been anything but clear.[12] Congress should resolve this tension by specifically creating a vote-packing claim under § 2. In doing so, Congress could compel the courts to establish a judicial framework to protect this other form of vote dilution, put state legislatures on notice as they craft future redistricting plans, and, perhaps most importantly, provide minorities – excessively packed into these districts – with some form of relief under the VRA.

[1] N.J. Admin. Code § EX. ORD. No. 167 (2020) (“An Order Directing the U.S. and New Jersey Flags to Fly at Half-Staff in Honor of U.S. Representative John Lewis”).

[2] 52 U.S.C.A. § 10101.

[3] 52 U.S.C.A. § 10301 (“(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b). (b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”).

[4] Thornburg v. Gingles, 478 U.S. 30, 44 (1986) (referencing City of Mobile, Ala. v. Bolden, 446 U.S. 55 (1980)).

[5] S. REP. NO. 97-417, at 36 (1982), as reprinted in 1982 U.S.C.C.A.N. 177, 214.

[6] Gingles, 478 U.S. at 50–51.

[7] League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 402 (2006).

[8] Gingles, 478 U.S. at 46 n.11.; Voinovich v. Quilter, 507 U.S. 146, 153–54 (1993).

[9] Bartlett v. Strickland, 556 U.S. 1, 13 (2009) (referencing League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 445 (2006)).

[10] Id.

[11] Id. at 16.

[12] Voinovich, 507 U.S. at 154 (“We have not yet decided whether influence-dilution claims such as appellees’ are viable under § 2.”); Growe v. Emison, 507 U.S. 25, 41 n.5 (1993); Gingles, 478 U.S. at 46 n.11–12 (1986).

Michael Tinti, CLS ’22

In Woolslayer v. Driscoll, the District Court for the Western District of Pennsylvania ruled on the intersection between First Amendment speech rights and the COVID-19 pandemic.[1] The plaintiff worked as the Director of Facilities Operation for defendants Indiana University of Pennsylvania for four years, receiving positive reviews from his employers throughout his tenure.[2] This changed in March of 2020, when—as we are all painfully aware—the COVID-19 pandemic first fastened its grip on United States’ workplaces. Upon learning that the spouse of a fellow employee had contracted the virus, the plaintiff—against the express recommendation from his supervisors—informed his fellow coworkers of this over email, and suggested they seek medical consultation.[3] Plaintiff was fired on the grounds that his supervisors “had lost confidence in [plaintiff’s] ability to effectively perform his assigned duties…”[4] Plaintiff subsequently commenced his suit, alleging a First Amendment retaliation claim under 42 U.S.C. § 1983.[5] Defendant moved to dismiss.[6]

Under the Supreme Court jurisprudence, a government employee whose speech was the but-for cause of their termination can be protected under the First Amendment Free Speech Clause if the speech was made as a citizen, the subject matter of the speech was of public concern, and the government-employer’s interest in the efficient functioning of the workplace does not outweigh the employee’s free speech interest.[7] The district court dispatched with the second and third issues quickly; the context of the COVID-19 pandemic bolstered the court’s conclusion that plaintiff spoke on a matter of public concern.[8]

The brunt of the district court’s First Amendment analysis, therefore, was focused on this first prong. Specifically, if plaintiff made his statements “pursuant to his official duties,” he would not be speaking as a citizen for First Amendment purposes.[9] The defendant pointed to the mode of plaintiff’s speech—an email sent from his work account exclusively to other university employees—as evidence the speech was made in plaintiff’s official capacity.[10] Yet the court dismissed this argument, finding that the mode of speech or its audience is not dispositive on the issue.[11] Rather, the court analyzed whether or not the plaintiff’s speech was “part of the work [he] was paid to perform on an ordinary basis.”[12] In his complaint, plaintiff asserted that his position did not grant him the power to speak in the name of a university policy maker, or to work in matters concerning the scope and nature of university functions.[13] Accepting these allegations as true, the court found that the plaintiff adequately plead he spoke as a citizen.

After finding that the plaintiff’s official capacity claim against the university president was not barred by the Eleventh Amendment, the court concluded that the plaintiff had adequately plead a retaliation claim under the First Amendment. The defendant’s motion to dismiss was thus denied.

Though the court ruled in favor of the plaintiff, the court’s reasoning is yet another indictment on the Garcetti jurisprudence. Paradoxically, an employee who has no professional responsibility to alert fellow employees of potential COVID exposure is protected by the First Amendment, yet an employee who does would not be protected, despite the clear public importance of performing such speech. Even if other state or federal statutes potentially protect against this form of retaliation, this critical chink in the First Amendment shield is troubling, to say the very least.

[1] 2020 U.S. Dist. LEXIS 186610 (W.D. Pa. 2020).

[2] Id at *2

[3] Id at *3.

[4] Id. at *3-4.

[5] Id. at *1.

[6] Id.

[7] See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); Connick v. Myers, 461 U.S. 138, 146 1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

[8] Woolslayer, supra at *10-11.

[9] Garcetti, 547 U.S. at 421

[10] Woolslayer, supra at *8.

[11] Id. at *8-9.

[12] Id. (quoting De Ritis v. McGarrigle, 861 F.3d 444, 454 (3d Cir. 2017)).

[13] Woolslayer, supra at *9.