16311: Spotlighting The Hypocrisy Of Systemic Racism. Again. And Again.

The New York Times reported on the special backlash after the Supreme Court nixed race-conscious affirmative action in colleges and universities; specifically, activists complained that legacy admissions at schools like Harvard benefit rich and White students.

 

The hypocrisy is similar in Adland, where the ruling majority have historically bristled at affirmative action and quotas—yet see no problem with hiring based on cronyism, nepotism, and systemic racism. Other ignorant rants include the belief that diverse recruitment means lowering standards, a laughable stance when considering the mediocrity routinely accepted via the isms mentioned in the previous sentence.

 

It’s a phenomenon that has been spotlighted in the past—and will undoubtedly repeat in the present and future.

 

Harvard’s Admissions Is Challenged for Favoring Children of Alumni

 

After the Supreme Court banned race-conscious affirmative action, activists filed a complaint, saying legacy admissions helped students who are overwhelmingly rich and white.

 

By Stephanie Saul

 

It’s been called affirmative action for the rich: Harvard’s special admissions treatment for students whose parents are alumni, or whose relatives donated money. And in a complaint filed on Monday, a legal activist group demanded that the federal government put an end to it, arguing that fairness was even more imperative after the Supreme Court last week severely limited race-conscious admissions.

 

Three Boston-area groups requested that the Education Department review the practice, saying the college’s admissions policies discriminated against Black, Hispanic and Asian applicants, in favor of less qualified white candidates with alumni and donor connections.

 

“Why are we rewarding children for privileges and advantages accrued by prior generations?” asked Ivan Espinoza-Madrigal, executive director of Lawyers for Civil Rights, which is handling the case. “Your family’s last name and the size of your bank account are not a measure of merit, and should have no bearing on the college admissions process.”

 

The complaint from liberal groups comes days after a conservative group, Students for Fair Admissions, won its Supreme Court case. And it adds to accelerating pressure on Harvard and other selective colleges to eliminate special preferences for the children of alumni and donors.

 

The Office for Civil Rights of the Education Department, which would review the complaint, may already be gearing up to investigate. In a statement after the Supreme Court decision, President Biden said he would ask the department to examine “practices like legacy admissions and other systems that expand privilege instead of opportunity.”

 

A spokeswoman for Harvard, Nicole Rura, said the school would have no comment on the complaint, but reiterated a statement from last week: “As we said, in the weeks and months ahead, the university will determine how to preserve our essential values, consistent with the court’s new precedent.”

 

Colleges argue that the practice helps build community and encourages donations, which can be used for financial aid.

 

A poll released last year by the Pew Research Center found that an increasing share of the public — 75 percent — believed that legacy preferences should not be a factor in who was admitted to college.

 

And the call for eliminating legacy and donor preferences has grown recently across the political spectrum.

 

Representative Alexandria Ocasio-Cortez, Democrat of New York, tweeted that if the Supreme Court “was serious about their ludicrous ‘colorblindness’ claims, they would have abolished legacy admissions, aka affirmative action for the privileged.”

 

On “The Faulkner Focus,” a Fox News program, Senator Tim Scott, Republican of South Carolina and a presidential candidate, said, “One of the things that Harvard could do to make that even better is to eliminate any legacy programs where they have preferential treatment for legacy kids.”

 

Peter Arcidiacono, a Duke University economist who has analyzed Harvard data, found that a typical white legacy applicant’s chances of being admitted increase fivefold over a typical, white non-legacy applicant.

 

Even so, eliminating legacy preferences at Harvard, the study said, would not offset the loss in diversity if race-conscious admissions were also eliminated.

 

In its decision on race-conscious admissions, some Supreme Court justices criticized legacy admissions. Justice Neil M. Gorsuch, in an opinion concurring with the court’s majority, took aim at preferences for the children of donors and alumni, saying: “They are no help to applicants who cannot boast of their parents’ good fortune or trips to the alumni tent all their lives. While race-neutral on their face, too, these preferences undoubtedly benefit white and wealthy applicants the most.”

 

In her dissenting opinion, Justice Sonia Sotomayor referred to legacy admissions, arguing that continuing race-based preferences was only fair in light of the fact that most of the pieces in the admissions puzzle “disfavor underrepresented racial minorities.”

 

While Colorado adopted a law in 2021 banning legacy admissions in public universities, legislation in Congress and several other states has gained little traction.

 

A New York bill filed last year was opposed by the state’s private school association, the Commission on Independent Colleges and Universities, which includes highly selective colleges such as Columbia, Cornell and Colgate.

 

In Connecticut, where lawmakers held a hearing on the issue last year, Yale was among the private schools that came out in opposition. In written testimony, Jeremiah Quinlan, Yale’s dean of undergraduate admissions, called the proposed ban a government intrusion into university affairs.

 

Selective private universities, in particular, have been slow to eliminate legacies, with M.I.T., Johns Hopkins University and Amherst College among a few elite schools that do not use them.

 

In a news release last month describing its fall class, the first since the college eliminated legacy preferences, Amherst announced that the number of first-generation students in the school’s fall class would be higher than ever — 19 percent — while the number of students who were legacies had declined to 6 percent. Previously, legacies had made up 11 percent of the class.

 

The complaint to the Education Department was filed by three groups — Chica Project, African Community Economic Development of New England and Greater Boston Latino Network.

16310: How SCOTUS Affirmative Action Ruling Might Affect Adland.

Digiday Media’s WorkLife published a report listing four ways that the Supreme Court’s affirmative action ruling for colleges and universities might affect employers in the business world.

 

Not sure if the four business world predictions directly apply to Adland, but here are some thoughts:

 

1. Employers could lose pipeline of highly qualified future workers and business leaders. This one is probably irrelevant, as Adland’s pipeline—which is a pipe dream—essentially involves embryo recruitment and patronizing partnerships with HBCUs. However, White women will still benefit from being categorized as diversity hires and diversity suppliers.

 

2. More pressure on DE&I goals. Also irrelevant, given the typical White advertising agency doesn’t even have DE&I goals. Expect a steady—and likely declining—flow of heat shields and performative PR backed by crumby diversity budgets.

 

3. Future of ERGs put in question. In Adland, the present of ERGs is already questionable.

 

4. To speak out or not. Will Adland speak out on the issue? Definitely not.

 

In summation, it’s a safe bet that Adland will continue to promote affirmative inaction.

 

Supreme Court’s affirmative action ruling — what it means for employers

 

By Cloey Callahan

 

On Thursday the U.S. Supreme Court ruled that colleges and universities must stop considering race in admissions, putting an end to affirmative action in higher education.

 

The court’s conservative majority overturned precedents reaching back 45 years by ruling against admissions plans at Harvard and the University of North Carolina, the nation’s oldest private and public colleges.

 

The decision will have many ripple effects, especially for businesses. Making hiring decisions based on race is already illegal in the U.S., so the decision won’t change anything on that front, but it will have other implications. Employers have long been caught in the crosshairs of decisions like these, leaving them to navigate how government decisions will impact business, when to speak up about issues and, in this case especially, what effect it will have on diversity, equity and inclusion strategies.

 

At the same time, Kara Govro, Mineral’s chief HR legal expert, doesn’t want employers to panic, either. “I don’t think employers need to panic that there’s going to be a massive wave of litigation just because affirmative action has been shot down at colleges,” said Govro. “On the whole, attorneys aren’t going to take these cases.”

 

Here’s what you need to know about the impact the Supreme Court decision has on employers.

 

1. Employers could lose pipeline of highly qualified future workers and business leaders

 

Almost 70 employers, including General Electric, Google and JetBlue Airways, warned in a brief to the court that without affirmative action they’ll lose access to “a pipeline of highly qualified future workers and business leaders” and will struggle to meet diversity hiring goals.

 

Without affirmative action, colleges can no longer consider race in their admissions decisions. That might mean that we see fewer people of color in higher education and graduating with degrees, heading into the workplace.

 

Employers have already begun moving to degree-free hiring, but the Supreme Court’s decision will underline that as an important strategy for those wanting to maintain their workforce diversity. Giants like Delta, Google and IBM have already moved in this direction. Last week, Kellogg’s UK joined the fray, stating that employees no longer need a degree to apply for a job at the company, citing efforts to widen its talent pool and promote inclusion.

 

Melanie Naranjo, vp of people at compliance training company Ethena, said that skills-based hiring will become even more important now that affirmative action has been gutted.

 

2. More pressure on DE&I goals

 

“The idea behind affirmative action is to level the playing field so that everyone has opportunities and equal access to higher education and then that feeds into the employment sector,” said Naranjo. “When you start to remove this affirmative action, now the playing field is even less level than it was before. Employers now have to compensate for that lack in order to then continue to prioritize diversity, equity and inclusion.”

 

She said employers will have to learn, more than ever before, the systemic biases that are at play.

 

“Employers have been able to rely somewhat on other efforts,” said Naranjo. “Now they’re going to have to look at the whole picture and really understand what is holding people back so that they can try and help mitigate that.”

 

3. Future of ERGs put in question

 

Naranjo said she worries the ruling could spell the end of employee resource groups (ERGs). Companies have put their DE&I strategies in high gear since the summer of 2020 after the Black Lives Matter movement prompted by the murder of George Floyd. The social justice movement gave rise to ERGs that are centered around discriminatory areas like race or sexuality so that workers can share their experiences.

 

“We don’t know what could be on the chopping block next,” said Naranjo. “ERGs could be seen as discriminatory if people say ‘this is for one specific group and it shouldn’t be because it’s for everyone.’”

 

She said the Supreme Court decision will be a blow to a range of DE&I strategies, with ERGs as just one example. While it’s illegal in the U.S. to make hiring decisions based on race, some companies have diversity goals requiring that their workforces comprise a certain percentage of people of color. Naranjo said she worries that might also be compromised as a result of the ruling.

 

“If things like this start to get shut down, we are going to have to be prepared to rethink and restructure how we approach inclusivity,” said Naranjo. “Rather than having a race-based ERG, we would then call it an inclusivity group, and it would have the exact same goals.”

 

Govro said she is even more concerned around affirmative action for federal contractors. “They are encouraged to match the actual population to their talent pool,” said Govro. “They’re not supposed to use race in the end, but they’re supposed to make efforts to have their body of employees look like the population. That includes acknowledging population numbers. If you’re in a 10% Asian community, is your talent pool 10% Asian?”

 

“This is probably what’s next on the chopping block,” she continued. “I could see that coming down. It will be easier to go after than private employment.”

 

4. To speak out or not

 

Employers need to think about the messaging that they send to their employees following this decision.

 

“It’s important that every company is thoughtful in their communication to their employees, but I do think they should be proactive,” said Naranjo. “Silence is very loud and your employees really hear that. It’s better to say something rather than nothing.”

 

That could look like anything from dropping a note in a DE&I Slack channel saying, “We’re aware of this, please reach out if you need,” to asking managers to make room in their one-on-ones if they see fit and without any pressure. From there, companies can also monitor if people are suffering at work and are unable to focus after the decision. “Be thoughtful, proactive and have an open door policy,” said Naranjo.

 

Almost exactly a year ago, the Supreme Court made another landmark decision. Roe v. Wade was overturned, ending the federal constitutional right to abortion in the U.S. During that decision, employers had to consider quickly if they were going to make a statement, either internally or externally, or not.

 

Just how much an employer should get involved is a question that comes up time and again in politics. While some firmly believe a company’s corporate social responsibility dictates it mustn’t stand silent, others argue it’s better that the employer stays well out of political matters, particularly polarizing ones.

 

For Naranjo, employers must look to the needs of their employees. “Many employees are going to be impacted by this, whether it’s from a mental health perspective or their children applying to colleges or just the general state of the United States and how they feel about these decisions,” said Naranjo.

16303: Overreaction Of The Week.

 

When Roe v. Wade was overturned in 2022, White holding companies and White advertising agencies immediately issued responses, offering special healthcare benefits, posting angry divertorials, and more—mostly to show support for White women in Adland.

 

When the Supreme Court ruled against race-conscious admissions programs at elite schools—effectively dealing a serious blow to affirmative action—how did Adland react? Crickets. The exclusive majority of mythical Madison Avenue continued performative Pride promotions, enjoyed post-Cannes highs, and settled in for an extended holiday weekend.

 

For those who missed it, here’s a report from The New York Times…

 

Supreme Court Strikes Down Race-Based Admissions at Harvard and U.N.C.

 

In disavowing race as a factor in achieving educational diversity, the court all but ensured that the student population at the campuses of elite institutions will become whiter and more Asian and less Black and Latino.

 

By Adam Liptak

 

The decision is likely to reshape college admissions at elite schools. Here’s what to know.

 

Race-conscious admissions programs at Harvard and the University of North Carolina are unconstitutional, the Supreme Court ruled on Thursday, the latest decision by its conservative majority on a contentious issue of American life.

 

Chief Justice John G. Roberts Jr., writing for the 6-3 majority, said the two programs “unavoidably employ race in a negative manner” and “involve racial stereotyping,” in a manner that violates the Constitution.

 

However, he added, universities can consider how race has affected an applicant’s life. Students, he wrote, “must be treated based on his or her experiences as an individual — not on the basis of race.”

 

Justice Sonia Sotomayor summarized her dissent from the bench — a rare move that signals profound disagreement. The court, she said, was “further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society.”

 

The decision could have far-reaching effects, and not just at the colleges and universities across the country that are expected to revisit their admissions practices. The decision could prompt employers to rethink how they consider race in hiring and it could potentially narrow the pipeline of highly credentialed minority candidates entering the work force.

 

Here’s what to know:

 

• The opinions in the case — including concurring opinions from Justices Clarence Thomas, Neil Gorsuch and Brett M. Kavanaugh and another dissenting opinion from Justice Ketanji Brown Jackson — total 237 pages. (Justice Jackson recused herself from the Harvard case because she had been on the university’s board of overseers.)

 

• The two cases were brought by Students for Fair Admissions, a group founded by Edward Blum, a legal activist who has organized many lawsuits challenging race-conscious admissions policies and voting rights laws, several of which have reached the Supreme Court.

 

• In the North Carolina case, the plaintiffs said that the university discriminated against white and Asian applicants by giving preference to Black, Hispanic and Native American ones. The case against Harvard has an additional element, accusing the university of discriminating against Asian American students by using a subjective standard to gauge traits like likability, courage and kindness, and by effectively creating a ceiling for them in admissions. The universities both won in federal trial courts, and the decision in Harvard’s favor was affirmed by a federal appeals court.

 

• The 6-3 decision on Thursday reflects the country’s division over affirmative action, which breaks along racial and political lines.

 

• In 2016, the Supreme Court upheld an admissions program at the University of Texas at Austin, holding that officials there could continue to consider race as a factor in ensuring a diverse student body.

15785: An Historic Day Of Judgment(s).

 

Such a missed opportunity that no one thought to ask new U.S. Supreme Court Justice Ketanji Brown Jackson to draft an opinion on the Will Smith sentencing.

 

11868: The True Civil Rights Threat.

From USA TODAY…

Wickham: Holder cites true threat to civil rights

By DeWayne Wickham

Attorney general’s commencement speech focuses not on Los Angeles Clippers owner Donald Sterling but court conservatives.

BALTIMORE — The thing to remember about the commencement address Attorney General Eric Holder gave Saturday is not that he wrote off the racist musing of people such as Donald Sterling and Robert Copeland. As deplorable as they were, he correctly said, they “are not the true markers of the struggle that still must be waged” against far greater threats to the civil rights of this nation’s minorities.

Sterling is the owner of the Los Angeles Clippers basketball team who was caught on an audio recording speaking disparagingly of blacks. Copeland was the Wolfeboro, N.H., police commissioner who resigned Monday after he was overheard in a restaurant referring to President Obama as “that f------ n-----.” As bigots go, both men were forged from the same mold that produces the rank and file Klansman.

But Holder didn’t come to this city, the birthplace of Supreme Court Justice Thurgood Marshall, in commemoration of the 60th anniversary of Brown v. Board of Education to call out the foot soldiers of this nation’s still deeply entrenched resistance to civil rights. He didn’t have to travel up the Baltimore-Washington Parkway and take the stage of Morgan State University’s commencement ceremony to do that, no matter how many news organizations put that tag on his speech.

Instead, Holder — the first black to hold the job as the nation’s top law enforcement officer — courageously named Supreme Court Chief Justice John Roberts as a greater threat to the cause of civil rights than “misguided words that we can reject out of hand.”

Coming from a sitting attorney general, Holder’s sharp rebuke of Roberts — and the conservative majority that he leads — is unprecedented. But it is not unwarranted.

He “has argued that the path to ending racial discrimination is to give less consideration to the issue of race altogether,” Holder said of the chief justice. “This presupposes that racial discrimination is at a sufficiently low ebb that it doesn’t need to be actively confronted.”

Then Holder craftily — and maybe too subtlely for some reviewers — invoked the words and judicial logic of one of the Supreme Court’s liberal justices to counter Roberts’ myopia.

As “Justice Sonia Sotomayor wrote recently in an insightful dissent in the Michigan college admission case, we must not ‘wish away, rather than confront, the racial inequality that exists in our society. … The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.’”

Indeed. Holder, of course, knows that. But by using the platform of a university commencement speech to focus attention on “policies that too easily escape” the strict scrutiny courts give to openly discriminatory laws “because they have the appearance of being race-neutral,” Holder is calling out the conservatives on the court.

Can I get an “amen” here?

Such biting criticism will not endear the attorney general to the conservative legion that is the Praetorian Guard of Roberts’ “see no evil, hear no evil, speak no evil” school of racial justice. But there are times when a battle for that which is right must be fought in the court of public opinion.

Holder understands that the victory he seeks in the fight for racial justice needs the support of a broad cross section of Americans — not just the minorities who will be its most obvious beneficiaries. I suspect that is why he made this point to appeal for wide support among fair-minded people: “In our criminal justice system, systemic and unwarranted racial disparities remain disturbingly common.” Black men, he said, “have received sentences that are nearly 20% longer than those imposed on white males convicted of similar crimes,” Holder told the members of Morgan’s graduating class.

Then, smartly, he left this emerging generation of leaders to make the connection between that harsh fact and Roberts’ head-in-the-sand strategy for ending racial discrimination.

I don’t think they’ll have any problems doing that.

DeWayne Wickham, dean of Morgan State University’s School of Global Journalism and Communication, writes on Tuesdays for USA TODAY.

11243: Voting On Voting Rights Act.

From The New York Daily News…

Supreme Court strikes down part of Voting Rights Act

The justices said in 5-4 vote that the law Congress most recently renewed in 2006 relies on 40-year-old data that does not reflect racial progress and changes in U.S. society.

By James Warren / NEW YORK DAILY NEWS

WASHINGTON—The Supreme Court threw out key elements of the Voting Rights Act Tuesday, telling Congress to revise the critical formula by which one determines if local voting laws are illegal.

The 5-4 decision leaves in distinct limbo the historic 1965 law that opened the voting booth to millions of mostly African-Americans voters who had been shafted, even as it maintains its ruling “in no way affects the permanent, nationwide ban on racial discrimination in voting.”

The ruling means that even as the court keeps in place the theoretically critical section of the law, Section 5, the section would seem to have little practical impact now unless Congress will pass a new provision making clear which states and localities it would actually cover.

Writing for the majority, Chief Justice John Roberts said, “Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problems speaks to currents conditions.”

Somewhat predictably, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito joined Roberts. The minority consisted by Justice Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.

President Obama, in a statement Tuesday, said he was “deeply disappointed” with the decision and called on Congress to pass new legislation to guarantee voting rights.

“As a nation, we’ve made a great deal of progress towards guaranteeing every American the right to vote. But, as the Supreme Court recognized, voting discrimination still exists,” Obama said. “And while today’s decision is a setback, it doesn’t represent the end of our efforts to end voting discrimination.”

The 1965 Voting Rights act was a major achievement by President Lyndon B. Johnson and came amid clear evidence of rampant attempts to keep blacks away from the polls, especially in the south, by setting up unfair demands, like literacy tests, before they could get a ballot.

There are portions of 15 states that now must get approval from the Justice Department before they alter either the shape of their election districts or regulations involving voting, including the locations where citizens vote.

The department has frequently raised objections to procedures in those areas and the key provision in the law has been extended several times. It was last extended in 2006, to go through the year 2031, after an extension was overwhelmingly passed by Congress and signed by then-President George W. Bush.

But many states and local governments have long been upset with what they consider the needless expense and time spent trying to comply with the critical preclearance process.

They have also maintained that the original formula used to make decisions is outdated in how it uses voter registration and turnout data, among other metrics. They also point to increasing voter registration among minorities, notably blacks, as well as the election of President Obama as evidence that the act is outlived its usefulness.

They clearly found a sympathetic ear in Roberts, who wrote:

“In 1965, the states could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were.”

While the decision was not necessarily a surprise, it remains “fairly shocking that the court would in effect strike down one of the two most important pillars of the Voting Rights Act, one of the most successful civil rights statutes ever passed by Congress,” said Nicholas Stephanopoulos of the University of Chicago Law School.

“I think they made a real mistake,” he said. “Now, what happens in the parts of the country formally protected by this provision, mostly the Deep South?”

He would not predict that the decision means that jurisdictions will now engage in racial discrimination. But, he said, other legal ways of halting such discrimination are simply not as effective as what the court struck down.

11126: Supreme Lack Of Diversity.

From The Huffington Post…

Supreme Court Saw Only One African-American Lawyer In Last 75 Hours Of Arguments

By Mark Sherman

WASHINGTON—In roughly 75 hours of arguments at the Supreme Court since October, only one African-American lawyer appeared before the justices, and for just over 11 minutes.

The numbers were marginally better for Hispanic lawyers. Four of them argued for a total of 1 hour, 45 minutes.

Women were better represented, accounting for just over 17 percent of the arguments before the justices.

In an era when three women, a Hispanic and an African-American sit on the court and white men constitute a bare majority of the nine justices, the court is more diverse than the lawyers who argue before it.

The arguments that took place from October to April were presented overwhelmingly by white men. Women and minority lawyers whose clients’ cases were heard by the court were far more likely to represent governments or be part of public-interest law firms than in private practice, where paychecks are much larger.

The numbers generally reflect the largely white and male upper reaches of the biggest and richest private law firms, where there have been small gains by women and minorities in the past 20 years. A recent survey by the Association for Legal Career Professionals found that more than 93 percent of partners in law firms are white and nearly 80 percent are men.

The statistics from the court term, though, also reveal a lack of African-American and Hispanic lawyers in the elite Justice Department unit that represents the federal government at the Supreme Court.

The top supervisory positions in the Office of the Solicitor General all are held by men, though there are six women in the office who argued high court cases this term.

The office serves as a pipeline to the big firms that dominate the argument calendar at the court. Lawyers in the office make several arguments a term and acquire the experience and ease of standing before the justices that make them attractive to private firms.

The first woman on the court, Sandra Day O’Connor, touched on the importance of diversity at the court in a tribute to the first African-American justice, Thurgood Marshall. O’Connor said Marshall “imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.”

The justices also benefit from seeing lawyers who don’t all look and sound the same, said Alan Jenkins, an African-American former Justice Department lawyer who argued four cases at the Supreme Court. “It’s especially true of people who appear before the Supreme Court because the court, as an institution, is intentionally set apart from the day-to-day life of the nation,” said Jenkins, executive director of the not-for-profit The Opportunity Agenda in New York.

The only minority group that could be said to be overrepresented was lawyers of Asian heritage. Seven men — three in private practice, Deputy Solicitor General Sri Srinivasan and two others at the Justice Department and a lawyer for the American Civil Liberties Union — made 17 arguments to the court. There has never been an Asian-American justice.

In cases before the Supreme Court, there are at least two and sometimes more parties who are granted time to argue their positions. In the current term, the justices heard 193 separate presentations.

When Debo Adegbile stepped to the lectern in defense of a landmark voting rights law in February, he was the first — and as it turned out, the only — African-American to make a high court argument this term.

Adegbile until recently worked for the NAACP Legal Defense and Educational Fund, the famed public-interest law firm that mounted generations of civil rights challenges, including the landmark Brown v. Board of Education case that outlawed official segregation in public schools.

Before he became a justice, Marshall was the organization’s top lawyer and argued several high court cases.

Adegbile represented six African-American residents of Shelby county, Ala., which is challenging a key provision of federal voting rights law. Following Solicitor General Donald B. Verrilli Jr.’s more legalistic presentation, Adegbile pointed to recent examples of intentional voting discrimination in the South to highlight the ongoing need for the measure.

“This statute is in part about our march through history to keep promises that our Constitution says for too long were unmet,” he said.

Voting rights was the second of two high-profile cases about race at the court this term.

In the first, three white men made the arguments when the justices considered the fate of the University of Texas program that takes account of race in admissions.

Civil rights cases have historically given minority lawyers the greatest chance to argue before the court, but those cases have been in decline for some time at the Supreme Court.

“The more problematic question is, why is civil rights litigation one of the few pathways available to African-American litigators when clearly they have distinguished themselves?” Jenkins said.

Women in the legal profession have faced a similar problem, but lately have had more opportunities.

Lisa Blatt of the Arnold and Porter law firm in Washington has written that over the years most women arguing at the court have been public-interest lawyers, public defenders or government attorneys. “Translation: women are doing the same work but for less pay,” she wrote in the Green Bag, a legal journal.

This term, Blatt made three arguments, the only woman in private practice to make more than one. There were 10 men in private practice with multiple arguments.

“This is a problem of today but not tomorrow,” Blatt said, referring to the many women who are gaining experience representing the government at the court. She said some of them will enter private practice, as she did after many years in the Justice Department.

10858: Tots & Tribal Rights.

From The New York Times…

Case Pits Adoptive Parents Against Tribal Rights

By Adam Liptak

WASHINGTON — “What has been the toughest decision for you?” Charlie Rose asked Justice Antonin Scalia in a television interview a few weeks ago. He meant the most personally wrenching.

Justice Scalia has served on the Supreme Court for more than a quarter of a century, and he has seen his share of difficult cases. But one stuck out.

“It was pretty early on in my time on this court,” he said. “We had a case in which a very wealthy rancher and his wife had adopted a child of a young man and woman on an Indian reservation who had had the child out of wedlock. And they gave the child to the rancher to raise.”

A state court in Mississippi had approved the arrangement. But a federal law, the Indian Child Welfare Act of 1978, required tribal courts rather than state ones to decide.

“The kid was, I think, 5 years old or so” by the time the case reached the Supreme Court, Justice Scalia recalled. “And we had to turn that child over to the tribal council. I found that very hard. But that’s what the law said, without a doubt.”

Justice Scalia’s recollection of the case, from 1989, was understandably a little hazy. It involved 3-year-old twins, and their adoptive father had died by the time the case was decided.

But he had the main point right. In various ways, the 1978 law he cited makes it hard to remove American Indian children from their parents, their tribes and their heritage.

The case that troubled Justice Scalia now has a sequel, and at their private conference next week, the justices will consider whether to hear it.

The new case involves a South Carolina couple who were ordered to turn over a 27-month-old girl they had cared for since birth to her biological father, an Indian, whom the little girl had never met.

The South Carolina Supreme Court, saying it did so “with a heavy heart,” ruled for the father even as it acknowledged that the adoptive couple, Matt and Melanie Capobianco, were “ideal parents who have exhibited the ability to provide a loving family environment.” He works as a technician at Boeing; she has a doctorate in developmental psychology.

Under South Carolina law, the child, Veronica, would have stayed with the Capobiancos. Under the federal law, she was sent to live with her biological father, Dusten Brown, a member of the Cherokee Nation.

The federal law was a reaction to a dark history of abusive child welfare practices involving Indian children and was sensitive to distinctive aspects of Native American culture. But the Capobiancos and their supporters say the law may have gone too far, by intruding on domestic decisions traditionally governed by state law and by putting a thumb on the legal scale based on the race of one of the parties.

The central question for the justices, the Capobiancos say, is whether an absent father should have the right to thwart a mother’s wishes about the fate of her child simply because he happens to be an Indian. The vote in the State Supreme Court was 3 to 2, and the dissenters were not impressed with Mr. Brown. According to one dissenting judge, Mr. Brown had “turned his back on the joys and responsibilities of fatherhood at every turn.” Another said Mr. Brown’s “vanishing act triggered the adoption in the first instance.”

Here is a piece of evidence that may color your view of Mr. Brown: before his daughter was born, he renounced his parental rights by text message. In fairness, the child’s mother also used text messages to break off their engagement and to ask for child support.

Mr. Brown changed his mind when he heard that his former fiancée, who is not an Indian, had put their daughter up for adoption. He invoked the 1978 law, and he has so far succeeded in blocking the adoption, despite opposition not only from the Capobiancos but also from the girl’s biological mother and the girl’s court-appointed guardian.

Family courts ordinarily base their decisions on the best interests of the child before them. But the 1978 law says other factors must be considered. “The tribe has an interest in the child which is distinct from but on a parity with the interest of the parents,” Justice William J. Brennan Jr., writing for himself, Justice Scalia and four other justices, explained in the 1989 decision, Mississippi Band of Choctaw Indians v. Holyfield. This was, Justice Brennan added, “a relationship that many non-Indians find difficult to understand.”

Justice Brennan recognized that the law sometimes produced heartbreak. “Three years’ development of family ties cannot be undone,” he wrote, “and a separation at this point would doubtless cause considerable pain.” But the 1978 law, he said, required that the tribal court make the decision.

The questions in the new case, Adoptive Couple v. Baby Girl, No. 12-399, concern other parts of the law. But the larger issue is similar, and how it is answered could affect thousands of adoptions every year.

In the 1989 case that Justice Scalia discussed with Mr. Rose, there was, though the justice did not seem to know it, something of a happy ending. The tribal court allowed the children to remain with their adoptive family, saying that “it would have been cruel to take them from the only mother they knew.” At the same time, the court ordered that the children stay in contact with their extended family and tribe.

There does not seem to be such a middle ground in the new case, and it is not clear whether the justices will want to take on the burden of a decision with the potential to weigh on them for decades.

10626: Affirmative Action Arguments.

From The New York Times…

Rethinking Affirmative Action

By David Leonhardt

THE founding principle of affirmative action was fairness. After years of oppression, it seemed folly to judge blacks by the same measures as whites.

“You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race,” President Lyndon B. Johnson said in a 1965 speech that laid the groundwork for affirmative action, “and then say, ‘You are free to compete with all the others,’ and still justly believe that you have been completely fair.”

Given this history, it was striking to watch the 80 minutes of Supreme Court oral arguments about affirmative action on Wednesday. With the courtroom overflowing, filled with people who have spent their careers fighting for or against affirmative action, only one side talked about fairness. And it was not the side defending affirmative action.

The lawyer for Abigail Fisher, a young white woman rejected by the University of Texas, argued that she had been denied equal treatment. The conservative justices, sympathetic to Ms. Fisher’s case, expressed particular concern that affluent black students were receiving preferential treatment.

Nobody on the other side — not the university’s lawyer, not the Obama administration’s, not the liberal justices — responded by talking about the obstacles that black and Latino students must overcome. The defenders of affirmative action spoke instead about the value of diversity. Without diverse college classes, they argued, students will learn less and society will lack for future leaders.

The decision to emphasize diversity over fairness is one that affirmative-action proponents made long before Wednesday, and it is a big reason they find themselves in such a vulnerable position today.

Americans value diversity. But they value fairness more. Most people oppose a college’s or employer’s rejecting an applicant who appears qualified for the sake of creating a group that demographically resembles the country.

With affirmative action boiled down to a diversity program, it finds itself in retreat. Five of the six states that have held referendums on racial preferences have banned them, including California and Florida. The Supreme Court limited the legal forms of preferences in 2003 and suggested that they had only 25 years left. Based on last week’s oral arguments, and the fact that Justice Anthony Kennedy has never voted to uphold preferences, the court may restrict them further or forbid them.

Yet supporters of affirmative action do not necessarily need to despair. They still have a path open to them, one that remains legal and popular. It involves resurrecting Johnson’s vision of an affirmative action program based on fairness, which the Rev. Dr. Martin Luther King Jr. also favored.

The crucial choice that affirmative-action proponents made long ago was to focus the program on race rather than more broadly on disadvantage.

There were some obvious reasons to do so. Americans have never been comfortable talking about class. It reeks of the social order the country rejected at its founding (Britain’s) and of the economic system the country spent decades fighting (communism). But race was an undeniably American problem, from slavery to civil rights to the discrimination that, according to voluminous social-science research, lingers.

Read the full story here.

8913: Starting Fires.

Monday Morning MultiCultClassics Monologue…

• Sen. John McCain started, well, a firestorm by blaming the recent Arizona wildfires on undocumented immigrants. “There is substantial evidence that some of these fires have been caused by people who have crossed our border illegally,” said McCain. However, the politician failed to produce the substantial evidence. Maybe it was also set ablaze by undocumented immigrants.

• The Supreme Court issued a ruling that will limit the sex discrimination suit mounted against Walmart. Specifically, the legal effort cannot proceed as a class-action suit, which would have involved up to 1.6 million women. So Walmart’s lawyers and accountants will deliver on the company slogan—Save money. Live better.

7854: Kagan Hits The Court.

From The Chicago Tribune…

Elena Kagan sworn in as Supreme Court justice
Chief Justice John G. Roberts Jr. administers the oath two days after her confirmation by the Senate. She is not expected to dramatically alter the ideological makeup of the court.

By Janet Hook, Los Angeles Times

Elena Kagan was sworn in as the 112th justice of the Supreme Court on Saturday, opening the first era in U.S. history with three women serving on the nation’s premier judicial bench.

Chief Justice John G. Roberts Jr. administered the oath at the Supreme Court just two days after the Senate’s 63-37 vote Thursday to confirm her nomination and one day after President Obama hosted a White House reception in Kagan’s honor.

She is not expected to dramatically change the ideological balance of the court because she replaces retired Justice John Paul Stevens, a fellow liberal jurist.

But her installation marks a historic demographic milestone. Women now make up one-third of the nine-member court, with Kagan joining Sonia Sotomayor and Ruth Bader Ginsberg as an associate justice. The first and only other woman on the court was Sandra Day O’Connor, who served from 1981 to 2006.

At Friday’s reception, Obama said that the addition of another woman ensures that the court will be “a little more inclusive, a little more representative — more reflective of us as a people than ever before.”

However, with Kagan — a Jewish law professor who studied at Harvard Law School — the court becomes less diverse in other ways. It no longer has a single Protestant, and all nine justices have been trained in the Ivy League.

Having served for the last year as Obama’s solicitor general, Kagan has been the government’s chief lawyer before the court. At the White House reception, Kagan told her Justice Department associates not to expect her to be a rubber stamp for the administration.

“Once I put on that robe, I’m only going to vote with them when they have the better of the argument, which — let’s be frank — is not in every case,” Kagan said to laughter.

Kagan is expected to recuse herself from deciding several upcoming cases before the court because she participated in preparing the government’s position.

In Saturday’s low-key ceremony, Kagan first took a constitutional oath, which is administered to all federal officers. In a second judicial oath, she swore to “administer justice without respect to persons, and do equal right to the poor and to the rich.”

7253: Supreme Court Laterals Redskins Case.

From The Washington Post…

Court won’t hear Redskins case
Justices decline to review ruling on team nickname

By Robert Barnes
Washington Post Staff Writer

A nearly two-decade legal challenge by Native American activists to the nickname of the Washington Redskins came to a close Monday when the Supreme Court declined to review the group’s last loss in federal courts.

The justices declined without comment to reconsider a lower court’s ruling that the activists waited too long to bring their assertion that the nickname is so racially offensive that it does not deserve trademark protection.

“Obviously, we’re quite pleased; it’s been a long road,” said Robert Raskopf, a lawyer for the team since the suit was first filed in 1992. “We’re not surprised the court didn’t see any issue worthy of review.”

Philip Mause, who represented the challengers, said the activists were “disappointed” by the court’s decision but not yet resigned to accept defeat. A new group of challengers has filed the same trademark cancellation suit in hopes that their slightly different circumstances can avoid the procedural bar that halted this case.

Raskopf said the team is not worried about the new complaint. “I think we’re very confident with our likelihood of success,” he said.

Through the years, the team has steadfastly defended the use of the Redskins nickname as honoring Native Americans, not disparaging them. When based in Boston, the team was known as the Boston Braves and was renamed in 1933 as the Redskins. The team said in its brief to the court that the new name was “in honor of the team’s head coach, William ‘Lone Star’ Dietz, who was a Native American.”

The team became the Washington Redskins in 1937, when it moved south.

Native American groups have persuaded scores of high school and college teams to rename their mascots. The National Congress of American Indians told the justices in a friend-of-the-court brief that the Redskins name is “patently offensive, disparaging, and demeaning and perpetrates a centuries-old stereotype.”

But despite vociferous protests, the team has not budged. Under both former owner Jack Kent Cooke and current owner Daniel Snyder, Raskopf said, there has never been “even a whisper” about changing the nickname.

For the most part, though, the battle has been fought on the more mundane grounds of legal procedure, and even a victory by the activists would have cost the team only trademark protection and would not have forced it to abandon the name.

The battle began in 1992 when seven activists, led by Suzan S. Harjo, challenged Redskins trademarks issued in 1967. They won a decision seven years later from the Trademark Trial and Appeal Board, which said the name could be interpreted as offensive to Native Americans.

Trademark law prohibits registration of a name that “may disparage … persons, living or dead, … or bring them into contempt, or disrepute.”

Pro-Football Inc., the team’s corporate owner, appealed to federal court.

In 2003, U.S. District Judge Colleen Kollar-Kotelly sided with the team, ruling that the activists had not produced enough evidence to show the name was so insulting that it could not be protected by a trademark. She also said the trademark-cancellation claim was barred by the doctrine of laches, which serves as a defense against claims that should have been made long ago.

She revisited the issue after the U.S. Court of Appeals for the District of Columbia returned it to her, saying the youngest of the plaintiffs might have standing to pursue the case. But Kollar-Kotelly ruled that the challenger, Mateo Romero, waited eight years after he reached the age of majority to file the complaint. She said the delay unfairly penalized the Redskins, who invested millions of dollars marketing the team during that eight-year span.

A three-judge panel of the appeals court agreed that eight years was too long to bring the claim.

The Supreme Court was being asked only to review whether the claim was brought too late, not whether the nickname was offensive.

Mause had argued that the justices should take the case to decide whether disparaging trademarks can be challenged at any time. He cited a decision from the U.S. Court of Appeals for the 3rd Circuit, which was written by then-judge, now-Justice Samuel A. Alito Jr., that he said supported that view.

The case the court declined to hear is Harjo v. Pro-Football, Inc.

6996: Wise Latina Confirmed For Supreme Court.

From USA TODAY…

Sotomayor confirmed by Senate

By Kathy Kiely, USA TODAY

WASHINGTON — Judge Sonia Sotomayor, who grew up speaking Spanish in a public housing project, is headed for a seat on the Supreme Court after an overwhelming Senate vote Thursday to make her the first Hispanic member of the court.

Her elevation prompted jubilation among leaders of the nation’s fast-growing Hispanic community.

“This is America!” exulted Sen. Robert Menendez, D-N.J., who is one of two Hispanics in the Senate, just before casting his vote.

The vote was 68-31, with only the ailing Sen. Edward Kennedy, D-Mass., missing the roll call. Nine Republicans joined 57 Democrats and two independents in confirming President Obama’s first Supreme Court nominee.

Obama praised the Senate’s vote as “breaking another barrier and moving us yet another step closer to a more perfect union.”

The Supreme Court issued a news release saying Sotomayor will be sworn in Saturday by Chief Justice John Roberts.

Two Democrats, Robert Byrd and Barbara Mikulski, were rolled into the Senate chamber in wheelchairs to make the vote. Byrd, 91, has been recuperating from a serious infection. He signaled his “aye” vote by twirling his finger in the air.

Mikulski had a pink ribbon on the ankle she recently broke. The packed gallery started giggling when they heard the voice of Al Franken, who was given the duty of presiding over the chamber for the vote, calling the senators to order.

Senators voted from their seats, rather than milling about casually, procedure the Senate adheres to only for the most formal of occasions.

A 17-year veteran of the federal bench, Sotomayor grew up in the Bronx and won scholarships to Princeton University and Yale Law School. At 55, she will be the court’s second-youngest member, six months older than Roberts.

She will be the 111th justice to serve on the Supreme Court and the third woman. She will replace retired justice David Souter.

The ethnic background she shares with 47 million Hispanics in the USA has garnered the most attention.

“I can’t think of a bigger milestone for Hispanics in this country,” said Janet Murguia, president of the National Council of La Raza, the nation’s largest Hispanic civil rights organization.

In Chicago, law student Anna Lozoya said Thursday Sotomayor is a role model for her and other Latinas. Lozoya, 28, who also is a diabetic like Stotomayor, said she believes they share an ethos that?s particularly acute in immigrants’ children: “You follow the dream and you live it.”

Sotomayor’s rise from public housing to the nation’s highest court symbolizes “the promise of our most amazing nation,” Menendez said.

In Puerto Rico, where both of Sotomayor’s parents lived before moving to New York City, support for Sotomayor’s nomination was sky-high and bipartisan. Republican Gov. Luis Fortuno endorsed her nomination.

“Everybody is waiting this week to celebrate,” Emmaline Garcia, a commonwealth judge who has known Sotomayor for 15 years, told USA TODAY.

Opinions were more divided in Washington.

“As much as I like Judge Sotomayor and I am impressed with the obstacles she has overcome, there are aspects of Judge Sotomayor’s record that make me uncomfortable,” Sen. Lisa Murkowski, R-Alaska, one of the last members of her party to announce her vote, said in a speech late Wednesday.

Sen. Judd Gregg, R-N.H., another late-decider, came down in Sotomayor’s favor. Even though he and the judge “may not see eye to eye on all issues or share the same political ideologies,” Gregg said, “she is obviously well-qualified.”

A number of Hispanic Republican leaders expressed dismay that the nation’s first Hispanic nominee to the high court hadn’t drawn more support from their party.

“It sets a bad tone, and it’s a bad message,” said Augustine Martinez, head of the U.S. Hispanic Chamber of Commerce.

Opponents of Sotomayor’s nomination went out of their way to praise her as a trailblazer and a role model.

“Every American should be proud that a Hispanic woman has been nominated to the Supreme Court,” said the Senate’s Deputy Republican leader, Jon Kyl of Arizona.

“This is a wonderful woman,” said Sen. Tom Coburn, R-Okla.

In arguing against her nomination, they focused on a speech in which Sotomayor suggested that a “wise Latina” could reach fairer decisions than her white male colleagues on the bench and decisions she made regarding gun control, property rights and affirmative action.

The National Rifle Association announced its opposition to Sotomayor because she joined a ruling upholding a New York state ban on martial arts sticks. The NRA raised concerns that it could open the door to curtailing the rights of gun owners.

Sen. Blanche Lincoln, D-Ark., said that as a “duck hunter and a gun owner,” she trusts Sotomayor’s ability to come to cases “with an open mind.”

Other Republicans, led by Sen. Jeff Sessions, an Alabaman who is his party’s top-ranking member on the Senate Judiciary Committee, objected to Sotomayor’s decisions favoring municipal governments’ rights to seize public property for redevelopment and opposing New Haven firefighters who sued after the results of a test were thrown out when few minorities qualified.

Sotomayor told the Judiciary Committee she was following established Supreme Court precedent in the New Haven firefighters case — precedent the Supreme Court changed in reversing the decision.

Sen. Mel Martinez of Florida, the only Hispanic Republican in the Senate, said his colleagues were looking for “excuses” to oppose Obama’s nominee.

“It’s unwarranted by her record and her judicial views, which I think are fairly moderate,” he said.

Democrats such as Sen. Dick Durbin, D-Ill, argued that Sotomayor’s lengthy service as a judge — she has served longer on the bench than any other Supreme Court nominee in 100 years — proves her impartiality.

Sen. Arlen Specter, D-Pa., mocked the criticism of Sotomayor’s “wise Latina remark.”

“To talk about being a Latino, well, what is wrong with a little ethnic pride?” Specter said. “And isn’t it about time that we had some greater diversity on the Supreme Court?”

A number of Republicans, such as Sen. Mike Crapo, R-Idaho, contrasted GOP senators’ treatment of Sotomayor’s nomination with Democrats’ refusal to allow a vote on Miguel Estrada. Estrada, a prominent Hispanic lawyer, was nominated by President George W. Bush to the D.C. Circuit Court of Appeals. Estrada withdrew his name from consideration in September 2003 after a 28-month filibuster.

Martinez said he believes Democrats treated Estrada unfairly, but he argued that Sotomayor should not pay the price. “Some of my colleagues conclude that what is good for the goose is good for the gander,” Martinez said. “I could not disagree more heartily.”

Contributing: Judy Keen in Chicago