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Archive for October 2012

Copyrights Forever?

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Today, the U.S. Supreme Court will decide the extent of copyrights.

The case involves a Thai graduate student who made money by selling books purchased abroad and shipped to the United States for sale.   Copyright owners believe that it is illegal to resale books in the United States that are purchased abroad.  At issue is the “first sale doctrine,” which will undoubtedly receive clarification from the courts.  Supporters of the student believe that an adverse decision from the U.S Supreme Court will impact businesses such as E-bay and local garage sales.

The case is Kirtsaeng v. John Wiley & Sons, 11-697.

Written by Admin

October 29, 2012 at 9:13 am

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Critical Mass Disaster

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The Achilles heel of the affirmative action case against The University of Texas at Austin is the term found in the Grutter decision of 2003 – critical mass.  It is undefined, it has no parameters, and is a prime target for revision, clarification, or elimination.

Chief Justice Roberts was very blunt in last week’s oral argument in Fisher v. UT-Austin, et al.

“What is the critical mass of African-Americans and Hispanics at the university that you are working toward?” asked Roberts.  The lawyers for UT-Austin did not answer the question.  “You won’t tell me what the critical mass is, continued Roberts.  “How am I supposed to do the job that our precedents say I should do?”

The frustration Chief Justice Roberts expressed will likely lead to the elimination of “critical mass” as a justification for affirmative action programs in higher education. In order words,  universities will not be able to consider race in admissions until a critical mass of minorities is reached at the student body or classroom level, as UT-Austin has argued.

Affirmative action in higher education may survive, but it will likely be severely restricted.

Written by Admin

October 14, 2012 at 10:02 pm

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The Eyes of the Supremes are Upon You

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Race matters in higher education.

How much?  That is the key question the U.S. Supreme Court will address tomorrow when it hears oral arguments in Fisher v. UT Austin, et al.   If the commentators and legal pundits are correct,  UT will not light its tower to symbolize victory.  Instead, it may experience a black eye because it improperly considered race in its undergraduate admissions process.

With Associate Justice Kagan recusing herself, it may be difficult to muster enough votes to uphold the historic affirmative action decision issued in Grutter v. Bollinger, 539 U.S. 306 (2003).  Former Associate Justice Sandra Day O’Connor was the key vote in that case and she has now been replaced by Associate Justice Samuel Alito, who is suspect of racial programs.  A 4-4 decision split would uphold the decision by the U.S. Court of Appeals for the Fifth Circuit finding the affirmative action program at UT-Austin constitutional.

There are several issues the U.S. Supreme Court will likely address.  First, is the case moot?  The plaintiffs are set to graduate or has graduated and the court must decide whether there is a constitutional controversy that merits a decision.

Second,  what is “critical mass”?  The Court in Bollinger did not define the term.  UT maintains that “critical mass” must be achieved at the classroom level as opposed to the student body in order to achieve diversity and stop the consideration of race.  Even though former Governor George W. Bush signed the “Top Ten Percent” law in 1997 as a race-neutral response to the elimination of affirmative action in Hopwood v. Texas,  UT-Austin has maintained that the Top Ten Percent law has not diversified the student body.  Thus, it implemented an affirmative action program after the decision in Bollinger using “good faith” to consider race, as one factor, in the undergraduate admissions process.  However, the plaintiffs argue racial considerations are unnecessary because the Top Ten Percent law is a race-neutral alternative to achieve diversity.

Third, if UT-Austin is making a good faith effort, is it narrowly tailored?  UT-Austin maintains that its program is constitutional and follows the Bollinger decision. An answer to this question would first require that race can be considered in higher education admissions.

The decision in Fisher v. UT-Austin will be historic.  If the U.S. Supreme Court rules that UT’s affirmative action is illegal, UT-Austin will no longer have the benefit of capping freshman enrollment under the Top Ten Percent law, which was authorized in 2009.  During the debate of SB 175, former Texas Representative Veronica Gonzales (D-McAllen) added the “Hook’em Amendment,” which would eliminate the cap if UT-Austin could no longer consider race as a factor in undergraduate admissions.

Stay tuned for more analysis.

Written by Admin

October 9, 2012 at 2:37 pm

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All Rise!

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The U.S. Supreme Court begins its 2012 session today.  Arguments are scheduled Monday, Tuesday, and Wednesday.   The Court will hold its first conference on Friday, October 5.

Affirmative action, Section 5 of the Voting Rights Act, voter identification, redistricting, and gay marriage are some of the controversial issues the justices will be addressing this term.  The tone of the session will likely be set next week when the court hears a challenge to the affirmative action program at The University of Texas at Austin.  Justice Kagan has recused herself from the case.  If all conservatives vote as a block, a 5-3 ruling striking down or modifying the program could affect higher education admissions in the future.

More to come…..

Written by Admin

October 1, 2012 at 12:30 am

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