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Race preferences, for now

Law | Appeals court upholds university's admissions policy but not "in perpetuity"

Issue: "Between Hell and Hope," Feb. 12, 2011

In 2005, the University of Texas in Austin began using race and ethnicity as one factor-"a special circumstance"-in considering undergraduate applicants. Two white female applicants, Abigail Fisher and Rachel Michalewicz, who were denied enrollment in 2008 filed suit claiming UT's consideration of race in its admissions criteria is unconstitutional.

Last month, the 5th U.S. Circuit Court of Appeals upheld the admissions policy. The Court relied on a 2003 decision from the U.S. Supreme Court permitting consideration of race and ethnicity in admissions to the University of Michigan School of Law so long as it is not the sole criterion. However, the Supreme Court ruling had projected that "25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." The Circuit Court adopted similar time limits, finding the admissions policy cannot be blessed "in perpetuity." Rather, the court compared the policy to "judicial approval of a state's redistricting of voter districts"-"it's good only until the next census count." Although in agreement, Justice Emilio Garza wrote separately to voice concerns regarding such policies: "Yesterday's racial discrimination was based on racial preference; today's racial preference results in racial discrimination."

Sticker shock

In 2005 the Town of Narragansett, a quiet seaside town and home to the University of Rhode Island, passed an ordinance permitting police to place a 10-inch by 14-inch neon orange sticker on the front door of any house believed to be a "party house." The ordinance stemmed from years of struggle between partying students and the surrounding community. Removal of the stickers before the end of the school year brings monetary penalties. The university's Student Senate, represented by the ACLU, argued the ordinance invaded individual liberty and property rights, and demanded that homeowners or students have the opportunity to contest the public sticker at hearings.

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Last month, a three-judge panel of the 1st U.S. Circuit Court of Appeals unanimously upheld the "unorthodox" ordinance. The Court found the sticker did not impose a great enough stigma to rise to constitutional protection. Despite the court's voiced concern over the lack of a hearing, potential misuse of the ordinance alone is not enough to strike it down. The court left open the potential unconstitutionality of the ordinance should evidence of such misuse arise.

'Humiliating event'

Charles Byrd was an inmate at the minimum-security prison in Maricopa County, Ariz., when officials ordered a non-emergency search of all inmates after a series of fights: The order was to strip down to state-issued pink boxer shorts. A female cadet from the officer training academy then searched Byrd, despite the presence of male officers available to conduct the search. Byrd filed suit, arguing the search was unreasonable and invaded his right to privacy.

In 2009, a three-judge panel of the 9th U.S. Circuit Court of Appeals dismissed Byrd's suit. Last month, though, the full 9th Circuit by a 6-5 vote overturned the ruling and found a cross-gender probe of intimate areas in non-emergency situations to be an unreasonable "humiliating event" and thus unconstitutional.
-Lauren Sneed is a lawyer living in Austin, Texas


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