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Does Fisher matter?


The recently-argued Supreme Court case of Fisher v. University of Texas has many people believing that the Court is likely to strike down the explicit use of racial preferences by governmental institutions in the name of "diversity." [MI podcast; earlier at POL; Cato event; Bader; SCOTUSblog]

But given the institutional support for racial preferences, it seems far from clear to me that even the broadest possible 5-4 Supreme Court decision in Fisher will be effective.

Take, for example, Ricci v. DeStefano. As Jim Copland predicted at the time, the Supreme Court's command against explicit racial preferences was all but nullified by non-Asian minority plaintiffs arguing that any testing regime more strenuous than a lottery where nearly everyone passed violated disparate impact: the Vulcan Society decisions came down shortly thereafter.

Title VI of the Civil Rights Act doesn't permit disparate impact theories in litigation over education discrimination under Alexander v. Sandoval, 532 U.S. 275 (2001). But that hasn't prevented the Department of Education from threatening school boards with such theories, and many liberal school boards are happy to comply at the expense of student discipline. Similarly, we see complaints being brought against magnet schools that seem indistinguishable from "disparate impact" complaints; Thomas Jefferson High School in Fairfax is 26% white, less than the rest of the school district, but the NAACP has brought a suit complaining that the magnet school admits too many Asians and not enough non-Asian minorities, and appears to be getting federal assistance. And Hans Bader reports that Democratic senators are proposing legislation to undo the small fig-leaf of protection Alexander v. Sandoval provides.

Bader notes that Title VI does not currently permit punitive damages under Barnes v. Gorman, 536 U.S. 181 (2002). But as I've noted elsewhere, the absence of punitive damages is largely irrelevant in a world with uncapped non-economic damages. We see this in yesterday's case of Zeno v. Pine Plains Central School Dist. where, because somewhat above-run-of-the-mill bullying of a special-education student had a racial component (the school was almost entirely white, the plaintiff half-Latino, and the n-word was used), the plaintiff was able to obtain a $1 million judgment consisting of noneconomic damages. Who needs punitive damages when that's possible?

Perhaps Asian-American students can strike back against the Department of Education's attempt to impose discipline quotas by Title VI racial harassment claims against all-too-typical racial bullying. (If I could clone myself and open a second law firm, there's an underserved niche of Asian-American students who aren't being represented against the widespread institutional discrimination against them; it's odd to me that most plaintiffs challenging illegal racial preferences are white, when Asian-Americans are the largest victims.)

Given the degree to which the Obama administration has been pushing destructive disparate impact policies, I am disappointed that it was not an issue in the 2012 election. The media certainly makes it difficult to criticize racial preferences (witness the MSNBC-stoked faux racism outrage over Republican senators that supported Condoleeza Rice but oppose Susan Rice or the Houston Chronicle smear of plaintiff Deborah Fisher), and I've certainly been attacked in briefing over my litigation challenge to racial preferences. But the issue seems to me a winner—are Republicans really worried about losing that last 2% of the African-American vote? Wouldn't it be nice to give more than 30% of Asians a reason to vote Republican? (One reason I'm inclined to think an attack on the unfairness of racial preferences would have electoral salience in addition to being good public policy: the untenably ludicrous Sixth Circuit 8-7 en banc decision striking down Michigan's ban on racial preferences was delayed until after the election, though the timing could have been a coincidence.) But it's hard to see how we can move past a world where any criticism of racial preferences is ironically called racist if politicians cower instead of standing up for what's right. And if disparate impact theory isn't more effectively challenged, it will do the country little good if or when Fisher v. University of Texas ends a shameful endorsement of racial preferences by the Supreme Court.


I'm not sure how you can read the facts of the Zeno case and call it "somewhat above run-of-the-mill" racial bullying. What in your mind would constitute actionable racial harassment?

The bullying was very abusive; the bullies should've been disciplined. Perhaps the bullies picked only on one special-education student because of his skin color, and left the white special-education students alone; perhaps the school effectively intervened when white students were called names and got into two fights in four years over the name-calling; perhaps the abusive freshman-year art student explains why Zeno had trouble completing his math requirements in four years and didn't get a Regents degree. I somehow doubt it; it seems more to me like the typical public-school incompetence, but the use of the "n-word" created liability where other similarly-situated victims would have recovered nothing.

In any event, I didn't argue that Zeno didn't have an actionable racial harassment claim; I specifically stated that what Zeno suffered wasn't run-of-the-mill bullying, and am not contesting the liability finding—other than that I don't believe that a jury that the district court held was carried away by passion in overawarding damages should be presumed to have acted dispassionately in determining liability. (I recognize the law currently says differently.)

My complaint is with the damages: I suffered run-of-the-mill bullying of daily name-calling in ninth grade with the occasional threat of violence; heck, if I kept contemporaneous diaries at the time, I'd probably have enough instances of the bullying relating to my religion or skin color to manufacture a case of "systematic" religious or racial harassment. I would have traded an upgrade in the bullying to Zeno's level for a million dollars.

The Second Circuit holds the amount acceptable by comparing it to a $400,000 verdict for sexual assault of a 7-year-old. This is how non-economic damages get ratcheted up. The next sexual assault case will be able to get $2M by comparing it to Zeno's case; the next n-word case after that will be able to get $3M by comparing it to that case, and so on.

The Second Circuit's ruling is wrong because the school system was at most negligent, not deliberately indifferent, and schools are only liable for "deliberate indifference" to racial harassment by students under Title VI, under the Supreme Court's Gebser and Davis decisions.

The Second Circuit relied on Education Department administrative guidance on harassment (partly abrogated by the Supreme Court's subsequent Gebser and Davis decisions in 1998 and 1999) which was rooted in workplace negligence liability for racial and sexual harassment, to argue that the school system must have been deliberately indifferent because it did not take all reasonable steps, as outlined in that guidance.

But that merely means the school district was negligent -- a basis for administrative proceedings against it by the Education Department perhaps -- and not that it was deliberately indifferent -- as required for a lawsuit for money damages by the victim to prevail under Supreme Court precedent.

Negligence, even after being put on notice of harassment, is not the same thing as deliberate indifference. Even to avoid dismissal at the pre-trial stage (where inferences are drawn in favor of the plaintiff), the plaintiff must show not just that school district was negligent, but that its actions in response to harassment were "clearly unreasonable," not just garden-variety unreasonable, and deliberately indifferent. See Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Ultimately, later on, a court may find that the defendant was not deliberately indifferent even when it made tragic, unreasonable mistakes. See Doe v. Dallas Independent School District, 220 F.3d 380 (5th Cir. 2000).

The fact that harassment persisted despite imperfect efforts by an institution does not always show negligence, much less deliberate indifference. See Adler v. Wal-Mart, 144 F.3d 664 (10th Cir. 1998) (granting summary judgment to defendant under workplace negligence standard, despite persistence of harassment and fact that one accused harasser was not disciplined, where employer generally responded reasonably).

Disclosure: I used to work as an attorney for the Education Department's Office for Civil Rights. I also used to bring lawsuits against educational institutions by students and faculty, and (less frequently) represented boards of education or universities.

Yes, Fisher does matter enormously. I tend to agree with what I read as your implication: that university admissions committees will ignore the Court if it strikes down racial preferences in Fisher by simply going undergrown with their implementation (even more underground and dishonest than they already are). But what if the Court upholds the UT admissions program as it stands? That would be a disaster. kj

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Rafael Mangual
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