Fisher v. Texas, the Remix

Guest Post by Vinay Harpalani, Associate Professor of Law, Savannah Law School

In its October 2015 term, the U.S. Supreme Court will once again consider the constitutionality of race-conscious admissions policies. On June 29, the Court surprised many observers when it granted Abigail Fisher’s petition for a writ of certiorari in Fisher v. Texas (II)—two years after its initial ruling in the case. In Fisher (I), the Court remanded the case to the Fifth Circuit Court of Appeals for proper application of strict scrutiny, holding that there must be “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.” On remand, the Fifth Circuit upheld the University of Texas at Austin (UT) race-conscious admissions policy, as both it and the U.S. District Court for the Western District of Texas had done in Fisher (I).

The basic issues in Fisher (II) remain the same as in the original case. Can UT use race as part of its supplemental holistic admissions policy, in addition to the Top Ten Percent plan it employs to admit the vast majority (approximately 80 percent) of its incoming class? Abigail Fisher contends that the Top Ten Percent Law itself admits a “critical mass” of underrepresented minority students, so UT does not need to use a race-conscious policy for students admitted through the supplemental holistic plan. UT, on the other hand, contends that it has not achieved sufficient diversity with the Top Ten Percent plan alone.

Although the issues are the same, Fisher (II) will differ from its predecessor. The Court will delve deeper into the merits than it did in Fisher (I). Also, in the initial Fisher litigation, UT’s primary argument focused on quantitative diversity: numbers of minority students in particular types of classes. UT contended that it had not attained a “critical mass” because a large percentage of its seminar courses—where more classroom discussion actually takes place—had few or no Black, Latina/o, or Asian American students. Conversely, Fisher (II) will focus more on “qualitative diversity”: how UT’s race-conscious policy contributes to diversity within racial groups and the educational benefits of such within-group diversity. This is an issue I have analyzed extensively.

UT did briefly raise its within-group diversity argument in Fisher (I) at the Supreme Court (not in the lower courts), but the Fisher (I) opinion did not consider the issue. On remand, however, diversity within racial groups became a much more central part of UT’s argument. UT focused on how Black and Latina/o students admitted under its supplemental holistic policy were qualitatively different from the Black and Latina/o students admitted under the Top Ten Percent plan. It argued that the non-Top Ten Percent students have had different experiences because they attended predominantly White schools. Moreover, in accordance with the diversity goals articulated in Grutter v. Bollinger, UT argued that these students can help break down racial stereotypes.

Abigail Fisher countered that UT has not established that its supplement holistic policy actually contributes to diversity within racial groups, or that such within-group diversity has educational benefits unattainable via the students admitted under the Top Ten Percent plan. Fisher further argued that UT’s assumptions about diversity within racial groups are themselves rooted in racial stereotypes and violate the spirit of the Equal Protection Clause. She also questioned whether UT could raise the within-group diversity argument, after not doing so in the lower courts in the first case, and she argued that regardless, within-group diversity is not part of Grutter’s compelling interest.

The Supreme Court has heard some of these arguments before, but this time it should actually rule on them. In accordance with its Grutter and Fisher (I) precedents, the Court should defer to UT on defining its diversity-related educational goals, such as the benefits of diversity within racial groups. However, to pass the ever-tightening narrow tailoring test, UT will probably need to show that its supplemental holistic policy does in fact contribute to diversity within racial groups, and that such within-group diversity is related to the educational goals and benefits that it has articulated. This will be a difficult challenge, as UT has not yet produced evidence to demonstrate these points in a specific and tangible manner.

The Court will also likely revisit the issue of “critical mass”—a dilemma which took center stage in the Fisher (I) oral argument, but which the Court did not address in its Fisher (I) opinion. Both parties continue to treat critical mass as part of the narrow tailoring test rather than as a component of the compelling interest. Previously, I have argued that this is a strategic mistake for UT. As it stands, the burden will be on UT to articulate a tangible definition of critical mass—a difficult undertaking because of the complex type of racial diversity it seeks, and because it must distinguish a critical mass from a numerical quota. UT will also likely have to show that its race-conscious policy contributes to attaining this critical mass, and it may have to define a tangible end point for its use of race. UT ran into trouble with all of these issues in the Fisher (I) oral argument, and it must fare better for any chance of prevailing in Fisher (II).

Justice Elena Kagan will once again be recused from Fisher (II), as she participated in Fisher (I) in the lower courts when she was the U.S. Solicitor General. Justice Anthony Kennedy’s vote likely will be outcome determinative, as is often the case on this Supreme Court. Although he has not voted to uphold race-conscious admissions policies in the past, Justice Kennedy has stated that along with diversity, “avoiding racial isolation” is a compelling state interest. This creates a conundrum for him, because the Top Ten Percent plan only yields racial diversity for UT because of racial isolation and segregation in Texas public schools.

Nevertheless, I predict that the Supreme Court will strike down UT’s race-conscious admissions policy on narrow tailoring grounds. But the ruling itself will probably have limited precedential value. UT’s Top Ten Percent plan is unique among states that use race-conscious admissions policies, and a narrow ruling striking down the use of race would not be applicable in other states. The Court is not likely to overturn Grutter: it has now thrice upheld diversity as a compelling interest, and Justice Kennedy himself affirmed the diversity interest in both his Grutter dissent and his Fisher (I) majority opinion. The Court could alter Grutter’s narrow tailoring test in some substantive manner. However, it could also rule for Fisher on grounds that UT has not passed Grutter’s own narrow tailoring test—by failing to illustrate the link between its race-conscious policy and the educational benefits of within-group diversity (or any other educational benefits), and by failing to define critical mass and its end point for using race in admissions.

With five Justices who are hostile, at varying levels, to race-conscious admissions, the Supreme Court will continue to tighten its chokehold on Grutter—in Fisher (II) and beyond. Ironically, the Court may use its own creation—the confusing and convoluted doctrine on race-conscious university admissions—to force universities into a race-neutral corner without actually overruling Grutter. Universities should begin right now to assess how they can defend their race-conscious admissions policies in the future. Even if it has a limited immediate impact, Fisher (II) will very likely provide fuel to more lawsuits, some of which have already been filed. Universities will have to articulate their diversity-related goals more specifically and illustrate tangibly how those goals relate to race-conscious policies. Elsewhere, I have written about how they can begin this process—in an effort to keep race-conscious policies alive until the composition of the Court changes and it becomes more amenable to racial diversity and justice.


The Supreme Court and Its Audience


For whom do the justices write their opinions? In the run-of-the-mill Supreme Court ruling, the answer to this question seems self-evident. Who would plow through a lengthy, often technical, always citation-laden opinion other than judges, lawyers and law professors? Yet when it comes to big ones, the minority of decisions that capture the attention of the American people, the justices often seem to aspire to a broader audience in their written opinions.

The Chief Justice’s dissent in Friday’s same-sex marriage ruling illustrates this point in a particularly direct way. In closing his dissent, the Chief Justice makes a highly unusual move: he shifts to the second person in order to directly address what he views as his target audience:

If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.

The Chief Justice seeks to impart a civics lesson on the role of the courts and the limits of the Constitution to supporters of same-sex marriage. His point is that just because someone believes something to be right does not make it constitutionally mandated, that the courts should not be relied upon to deliver victories on questions of policy (as opposed to law).

The other dissenting justices seem less interested that the Chief Justice in reaching out to the other side. Their primary audience seems to be those who already agree with their position, either because they oppose same-sex marriage or because they oppose federal judicial intervention on the issue. Justice Scalia issues dire warnings of “this Court’s threat to American democracy” and lashes out at the “mummeries and straining-to-be-memorable passages” of Justice Kennedy’s opinion for the Court. Scalia is hardly reaching out to possible coverts with this over-the-top language. Justice Thomas’s dissent insisted up some narrower legal points—the importance of founding era history in interpreting constitutional language, the invalidity of a “substantive” reading of the Due Process Clause.

Justice Alito expressed concern that the Court’s ruling might be “used to vilify Americans who are unwilling to assent to the new orthodoxy” in support of same-sex marriage. “[T]hose who cling to old beliefs … will risk being labeled as bigots and treated as such by governments, employers, and schools.” Unlike the Chief Justice’, Justice Alito chooses language that does not seem targeted at the advocates of the “new orthodoxy.” This is less a Lincolnian call for sympathy on the part of the victors than a mournful warning to the losers that they are in store for bad times.

In his opinion for the Court, Justice Kennedy seems to be attempting to reach out to multiple audiences. The rhetoric about the promises of liberty and the search for personal identity that so exercised Scalia seem intended to reinforce and inspire rather than persuade. But his extended discussion of the value of marriage seems aimed, at least in part, at encouraging opponents of same-sex marriage to reassess their assumptions:

Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other….

It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.

Whether the language of any given Supreme Court opinion, apart from the declaration of a winning side and a losing side, has much of an effect on society is hard to discern. Chief Justice Warren sought to write his opinion in Brown v. Board of Education in a way that might persuade defenders of segregation. He described his effort to his colleagues as designed to be “short, readable by the lay public, non‐theoretical, unemotional, and, above all, non‐accusatory.” But this effort hardly stemmed the tide of massive resistance to desegregation that gained strength in the ruling’s aftermath. Unlike Brown, the same-sex marriage opinion joins a clearer, stronger historical trend in support of same-sex marriage, however. Whether Kennedy’s rhetoric changes minds or not, minds are being changed all around us.




Some Thoughts on the “Liberal” Day at the Supreme Court

The headline from today’s major rulings involving the Affordable Care Act and the Fair Housing Act is that the supposedly “conservative” Roberts Court continues to produce a remarkably “liberal” series of decisions. The surprising success of the Court’s left-leaning justices this Term had been noted even before today, and most observers believe the liberals are still awaiting their most significant victory in the same-sex marriage case.

Although defenders of the ACA and of aggressive federal civil rights enforcement are surely walking with a skip in their step after today’s announcements, it is worth noting that the liberal victories at the Court today are rather less than they might appear. Both cases only got to the Court because conservative justices are interested in knocking down liberal legal achievements. It says something about the ideological climate of the day that so many liberal court victories are defensive victories: they preserve the status quo; in some cases, victory means minimizing losses. This is pretty much where we are today when it comes to abortion law, affirmative action, and many other areas of civil rights. There is something misleading about proclaiming a Court “liberal” because it agrees to hear conservative legal challenges—challenges liberals desperately wanted to go away—and then stays its hand in the end.

The great exception to the foregoing is, of course, the gay rights cases of recent years. These cases have transformed the legal status quo and have helped move the nation in a new direction. When the Court strikes down prohibitions on same-sex marriage, as they seem likely to do either tomorrow or Monday, the Roberts Court will declare victory in a battle liberals have sought to wage. On this day, the Roberts Court will truly defy its conservative label.

Horne v. Department of Agriculture—Personal Property and Per Se Takings

On Monday the U.S. Supreme Court issued its decision in Horne v. Department of Agriculture, reversing the Ninth Circuit and declaring an agricultural marketing program dating back to the 1930s an unconstitutional takings. Chief Justice Roberts wrote the decision for the court, joined, predictably, by Justices Alito, Scalia, Kennedy and Thomas. Justice Breyer, joined by Justices Kagan and Ginsburg wrote a decision concurring in part, dissenting in part. And Justice Sotomayor wrote the sole dissenting opinion.

Before I offer an analysis and critique of the Court’s discussion of per se takings, a quick word about the facts would be useful. The Raisin Administrative Committee (“RAC”), a group primarily comprising private raisin growers appointed by the Secretary of Agriculture, has the authority to set an annual “reserve tonnage” requirement to ensure a stable price for raisins. The remaining raisins, the “free tonnage,” are sold by producers on the open market. The RAC sells the reserved raisins in secondary, non-competitive markets, but must do so in a way that “maximizes producer returns.” RAC operating costs are paid for out of the sale of the reserves (it receives no federal funding) and any remaining income is disbursed to producers, in keeping with their share of contribution to the reserve pool.

Over the years the annual reserve requirements have shifted based on fluctuating growing and market conditions. Chief Justice Roberts reminds us frequently throughout the decision that in 2002-2003 and 2003-2004, the years at the center of the case, the reserve requirements were relatively high—47% and 30%. And the net proceeds from the sale of the reserved raisins were low one year, nothing the next.

It was during these years that raisin farmers Marvin and Laura Horne decided they no longer wanted to give up a portion of their crops. They were assessed a fine equal to the value of the raisins and a civil penalty for disobeying the order to turn them over. The Hornes challenged the reserve requirement (and thus the fine) as an unconstitutional taking of their property.

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Weekly Roundup, June 19, 2015

Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

This week, ISCOTUS director Chris Schmidt previewed the major cases left to be decided at the Supreme Court this Term.

Oyez live tweeted the Court’s opinion announcements on Thursday, joining forces with Kimberly Robinson of Bloomberg BNA and Chicago-Kent law professors. Among the decisions handed down was  Walker v. Sons of Confederate Veterans, in which the Court held that Texas’s refusal to issue a specialty license plate to the Sons of Confederate Veterans did not violate the First Amendment.

Straying from the legal issues in Davis v. Ayala, Justices Kennedy and Thomas sparred over the use of solitary confinement in prisons in their opinions on the case.

For the New York Times, Adam Liptak searches justices’ words for hints as to how they might rule in the remaining cases.

At SCOTUSblog, Ronald Collins unpacks the surprising twists and turns in First Amendment rulings this Term.

Justice Kennedy was once the voice of opposition to Obamacare. As the Court’s decision in King v. Burwell looms, could he now tip the balance toward a favorable ruling?

Justice Ginsburg spoke to the American Constitution Society in Washington, D.C., this week and expressed surprise at her celebrity status: “It’s amazing to think of me—an icon at 82?”


This Term at the Supreme Court—What Remains?

June marks the home stretch for the Supreme Court, the closing month of the annual term that began the previous October. No more cases are to be argued. From now until the Court finishes its work for the year, the justices convene the Court at least once a week (more as the end gets closer) to reveal cases they will be hearing next term and to announce the decisions from cases heard this term. We know the cases the Court still has left to decide; from here until the Court wraps up its business for the term we’re playing a process of elimination game.

Here are some of the major cases from this term still left to be decided:

Same-Sex Marriage (Obergefell v. Hodges). This is the big one. Will the Court use this case to declare state prohibitions on same-sex marriage a violation of the Constitution? Most observers believe the time is right for the Court to issue what will immediately become a landmark decision. Yet even assuming this is the likely outcome, questions remain: On which side will Chief Justice Roberts be? Will Justice Kennedy have the opportunity to continue his streak of writing the Court’s major gay rights opinions? What will be the legal reasoning the Court uses in justifying the ruling? How will the dissenters present a position that they surely know will not go down well in the history books?

Health Care (King v. Burwell). Although the same-sex marriage case has attracted more of the public’s attention, the challenge to the Affordable Care Act might be even more consequential. If a majority of the justices agree with the challenger’s reading of the law, the health care coverage for millions of people would be affected. Anyone living in a state that has not created its own health care “exchange,” and has instead allowed the federal government to run the exchange, would no longer be eligible for federal subsidies. The legal issue in the case is narrow and technical—it comes down to the proper way to interpret a handful of words in a law that is thousands of pages long—but its consequences are monumental.

Housing & Racial Discrimination (Texas Dept. of Housing & Community Affairs v. Inclusive Communities Project). The Court has long held that the Constitution’s Equal Protection Clause does not prohibit racially neutral policies that have racially disparate effects. But certain federal civil rights laws can be used to challenge these kinds of policies as racially discriminatory. Among these is the Fair Housing Act of 1968, which prohibits racial discrimination in the renting and selling of property. Now the Court is reconsidering whether the FHA should be read to prohibit race neutral policies that have racially disparate effects. This would, in effect, align the federal law with the narrower constitutional standard, a change that some of the conservatives on the Court have been openly advocating. Such a ruling would substantially limit the kinds of policies that could be challenged as violating the FHA.

Lethal Injections (Glossip v. Gross). The Court is considering a challenge to the three-drug lethal injection protocol Oklahoma uses for its executions. Challengers argue that the procedure violates the ban on “cruel and unusual punishments” found in the Eighth Amendment of the U.S. Constitution. Oklahoma was forced to abandon it previous lethal injection protocol, which the Court upheld in 2008, because the manufacturer of one of the drugs used in that protocol, under pressure from death penalty opponents, refused to allow its product to be used in executions. (At oral argument, Justice Alito described this as the product of a “guerrilla war against the death penalty.”) As a result, Oklahoma adopted a new procedure, which critics say causes unnecessary suffering.

Raisin Farmers & Property Rights (Horne v. U.S. Department of Agriculture). The court will decide whether it is a “taking” of private property for a government-created committee of raisin farmers to seize as much as one-third of a raisin farmer’s annual crop, thereby removing the product from the market in order to prop up prices. The challengers seek to undo one of the last New Deal-era farm programs designed to allow farmers to pool their resources in order to combat market fluctuations. If the required seizure of raisins is held to be a taking, then the government is responsible for ensuring that the farmer receives just compensation. The government argues that the program is a regulatory measure, not a taking, and thus does not require compensation.

Politics & Redistricting (Arizona State Legislature v. Arizona Independent Redistricting Commission). In an effort to limit partisan wrangling over the drawing of congressional district lines, the voters of Arizona approved a referendum giving an independent commission control over redistricting. Members of the state legislature have challenged the independent commission, arguing that the Constitution gives the state legislature authority over congressional redistricting. The challengers point to the “Elections Clause” (Article I, Section 4), which reads: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” The legal question the justices face is whether the “legislature” referenced in this constitutional provision can be understood to include the people of a state when they act to delegate control of this issue to an independent commission, or whether it gives exclusive control of the issue to the state assembly. 

License plates and Confederate flags (Walker v. Texas Division, Sons of Confederate Veterans). The question before the Court is whether state-issued specialty license plates should be treated as the speech of the state or its motorists. The Texas Department of Motor Vehicles refused to issue a specialty license plate to the Sons of Confederate Veterans, citing its authority to “refuse to create a new specialty license plate if the design might be offensive to any member of the public.” (The proposed design included a confederate flag.) If the license plate is considered a form of state speech, then the government has considerable latitude under the 1st Amendment in choosing the content of its own speech. If the license plate is considered a form of individual speech, then the First Amendment places strict limits on government regulation of the content of that speech.

Weekly Roundup – June 5, 2015

Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

On Monday, Oyez provided live tweet coverage of the Court’s opinion announcements, featuring reporting from Kimberly Robinson of Bloomberg BNA and background information by several law professors. Among the cases the Court decided were EEOC v. Abercrombie & Fitch (a religious freedom claim by a Muslim job applicant who was rejected after wearing a headscarf to her job interview) and Elonis v. US (involving threats and free speech on social media).

ISCOTUS director Chris Schmidt unpacks the decision in EEOC v. Abercrombie & Fitch.

First Amendment scholar Steven Heyman looks at Monday’s other major decision in Elonis—while the Court held in Elonis’s favor on the question of the appropriate standard for identifying a “true threat,” it declined to make a sweeping  First Amendment pronouncement on the issue.

At CNN, Jeffrey Toobin argues that the Court showed a libertarian bent in the EEOC and Elonis decisions.

Also on Monday, the Court blocked an Arizona law denying bail to undocumented immigrants charged with felonies.

In a new study tracking the “celebrity justices” trend, law professor Richard L. Hasen ranks Justice Sonia Sotomayor as currently first on the Supreme Court “celebrity index.”

The ABA Journal looks at the recent trend of Court Terms ending with major decisions.

Elonis v. United States: Treading Carefully with Regard to Threats and Free Speech

This Monday, June 1, 2015, the Supreme Court handed down its long-awaited decision in Elonis v. United States. In a 7-2 ruling by Chief Justice John G. Roberts, Jr., the Court narrowed the circumstances under which individuals can be convicted of making criminal threats under federal law when they post statements on social media like Facebook. At the same time, the Court showed a prudent inclination to tread cautiously in a difficult area.

After Anthony Elonis’s wife left him, he began to write graphically violent rap lyrics and post them to his Facebook account. In several posts, he fantasized about murdering his estranged wife. Others contained violent thoughts about the workplace from which he had been fired, his former co-workers, and an FBI agent who had investigated the matter. In one post, he even talked about massacring a local kindergarten class.

Elonis was tried and convicted in federal court of four counts of violating 18 U.S.C. § 875(c), a 1939 law that makes it a federal crime to transmit in interstate commerce “any communication containing any threat . . . to injure the person of another.” The trial judge instructed the jury that, under this statute, it is not necessary for the prosecution to prove that the defendant intended his statements to be threatening. Rather, it is enough to prove that the defendant reasonably should have known that other people would take his statements to be threats—a standard that is often referred to as negligence.

On appeal, the United States Court of Appeals for the Third Circuit agreed with this interpretation of § 875(c). The court also rejected Elonis’s argument that the posts were protected by the First Amendment freedom of speech. Instead, the court held that when a person makes a statement that he reasonably should know will be taken as a threat, this is enough to characterize the statement as a “true threat”—a category of speech that the Supreme Court has held to be outside the protection of the First Amendment.

In their appeal to the Supreme Court, Elonis’s lawyers urged the Justices to clarify their “true threats” jurisprudence by holding that, under the First Amendment, an individual can never be held criminally responsible for making a threat unless he subjectively intended his statement to be threatening. In response, the federal government defended the negligence standard which had been accepted by the Third Circuit as well as by most other federal courts.

On Monday, the Supreme Court handed Elonis a victory by overturning his conviction. At the same time, however, the Court declined his invitation to issue a broad ruling on First Amendment grounds. Instead, the majority took a minimalist approach, deciding no more than was absolutely necessary to dispose of the case before it. In particular, the majority focused solely on the statute under which Elonis had been convicted. Although the text of § 875(c) does not contain a state-of-mind requirement, that was not the end of the story. As Chief Justice Roberts explained, our legal tradition has long followed the general principle that an individual can be convicted of a crime only when he has engaged in conscious wrongdoing. It follows that, to convict a defendant under § 875(c), the government should be required to prove more than mere negligence. The statute’s state-of-mind requirement clearly would be satisfied if the defendant acted with the purpose of threatening another or if he knew that his statement would be viewed as a threat. At oral argument, some members of the Court had suggested that it should be enough if the defendant was reckless in the sense that he acted with an awareness of a substantial risk that his statement would be taken as a threat. However, because the recklessness issue had not been adequately discussed in the lower courts or in the parties’ briefs and arguments, the Chief Justice declined to address whether recklessness was sufficient. And because he overturned Elonis’s conviction on statutory grounds, he also found it unnecessary to address the First Amendment issues in the case.

The Court’s determination to avoid sweeping constitutional pronouncements in Elonis was a wise one, for the problems that arise in this area are far more complex than they may seem at first glance. In cases like Elonis, in which an individual is being prosecuted for a criminal offense, our legal system has traditionally insisted on high standards of culpability and proof to ensure that innocent persons are not subjected to unjustified stigma and punishment. In contrast, other cases involve civil suits that are brought by private individuals or groups for the harms that they have suffered from threatening statements. In still other cases, an individual may petition a court to issue an order of protection based on threatening speech or conduct by an abusive partner. It is highly doubtful that the legal and constitutional standards for threats should be the same in each of these contexts. Thus, it may well be reasonable to award civil damages or to grant an order of protection on less demanding grounds than should be required for a criminal conviction—a position that might have been precluded by a broad ruling that speech is protected by the First Amendment unless it amounts to an intentional or knowing (or even a reckless) threat.

The nature of the speech at issue may also play a crucial role. As the Court has indicated in other cases, speech generally is entitled to substantially greater First Amendment protection when it is directed to a matter of public concern than when it relates to a purely private matter. This distinction suggests that a statement may more readily be treated as an unlawful threat in the latter situation (such as when the statement is directed against an ex-spouse) than in the former (such as when it occurs in the course of a political protest).

As these considerations indicate, the Court in Elonis was quite right to refrain from announcing a one-size-fits-all definition of constitutionally unprotected “true threats.” For the same reasons, one can understand why the Justices chose to resolve the statutory issues as they did. The Court was confronted with a statute that did not specify any state-of-mind requirement, let alone address any of the complex issues that I have sketched. In this situation, it arguably was reasonable for the Court to hold that purpose or knowledge would suffice for a conviction under the statute but that mere negligence would not, while leaving it open to Congress or the lower courts to address the question of whether and in what situations recklessness should be enough.

This is not to say that the majority’s minimalist resolution of Elonis comes without cost. By holding that proof of purpose or knowledge would satisfy § 875(c) while declining to address recklessness, the majority nudged the statute toward a higher standard of culpability than may be justified in some situations. In my view, recklessness should suffice to convict a defendant like Elonis who makes graphically violent statements concerning a former spouse or partner. Moreover, as the two dissenters pointed out, the Court’s decision will leave private individuals, prosecutors, defense lawyers, and lower courts in serious doubt about the standards that apply under § 875(c). As Justice Samuel A. Alito, Jr. observed, the Court proclaimed in Marbury v. Madison (1803) that “[i]t is emphatically the province and duty of the judicial department to say what the law is,” while in Elonis the Court succeeded only in saying “what the law is not.” Likewise, Justice Clarence Thomas objected that the majority had “cast[] aside the approach used in nine Circuits and [left] nothing in its place.” In my view, it might indeed have been preferable in this case for the Court to have held that § 875(c) was satisfied by proof of recklessness, and that the First Amendment demanded no more in a criminal case like this, while leaving other issues to be resolved in the future. It may well be, however, that the Justices found themselves unable to forge a consensus in favor of recklessness or any other standard. If so, then while the decision in Elonis is hardly ideal, it may have been the best one attainable.

Note: Professor Heyman was an advisor for an amicus brief in Elonis that was filed by the Domestic Violence Legal Empowerment and Appeals Project et al. in support of the respondent. The views expressed in this blog post are solely his own.

Religious Rights in the Workplace

Abercrombie & Fitch wants its employees to look a certain way. Company employees decided not to hire Samantha Elauf, a well qualified 17-year-old Muslim girl, because they felt the black head scarf she wore to her job interview did not fit their “look” policy.

Yesterday, in Equal Employment Opportunity Commission v. Abercrombie & Fitch, the Supreme Court held that Elauf could go forward with a lawsuit against Abercrombie for religious discrimination in violation of federal civil rights law (Title VII of the 1964 Civil Rights Act).

The specific issue before the Court was the appropriate standard for an intentional religious discrimination claim in this kind of situation, i.e., when an employer refuses to hire a job applicant because that applicant may require a religious accommodation. To have a claim of religious discrimination, did the rejected job applicant have to ask for a religious accommodation, or did the employer have a duty to ask the applicant whether the employer’s workplace rules conflict with the applicant’s religion?

The central question, Justice Scalia in his opinion for the Court, was whether Elauf was denied the job “because of” her religious practice. Abercrombie argued that since Elauf never specifically asked for a religious accommodation, the store did not have “actual knowledge” of her need and thus could not have rejected her “because of” her need for a religious accommodation with regard to the store’s “look” policy. Justice Scalia rejected this argument, explaining that the federal antidiscrimination law did not require such a high standard. “[A]n applicant need only show that his need for an accommodation was a motivating factor”—not the sole factor— “in the employer’s decision.” Furthermore, “the intentional discrimination provision” of Title VII “prohibits certain motives, regardless of the state of the actor’s knowledge.” “Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices,” Justice Scalia noted. “Rather, it gives them favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual . . . because of such individual’s’ ‘religious observance and practice.’”

This decision marks the second major religious freedom victory of the term. In January the Court decided in favor of an Arkansas prison inmate who challenged the prison’s no-beard policy as a violation of his religious liberty. (Both cases were decided based on federal law rather than the First Amendment.)