Howard University

Howard University School of Law Statement After Supreme Court’s Decisions on Fisher, Shelby County, Windsor and Perry.

This week the Supreme Court of the United States announced four important decisions that will have a profound impact on the state of liberty and equality in America. These decisions demonstrate that, while some progress has been made, there is still much work to do in the fight for equality and justice. It is noteworthy that consistent with our historic mission of training social engineers, the Howard University School of Law, through its Civil Rights Clinic, submitted amicus curiae briefs in Fisher, Shelby, and Perry.

Fisher v. University of Texas-Austin

On Monday, June 24, 2013, the Court struck down the University of the Texas’ use of race in its admissions procedures in Fisher v. University of Texas-Austin. Fortunately, the Court did not revisit its decision that permits race conscious admissions in higher education. But uncertainty lingers as the Court increased the amount of scrutiny given when assessing admissions procedures. While a school is granted deference in deciding to achieve a diverse student body, it must prove its goal is narrowly tailored in accordance with strict scrutiny review. On this point, the Court claimed that a school “receives no deference.” Such a standard may prove difficult to satisfy. For a modern college and university, achieving the sort of student body diversity provides to develop thoughtful leaders for our technocratic, multicultural and democratic society requires incalculably complex judgments. The Court’s decision places these goals at serious risk.

The Civil Rights Clinic filed an amicus brief in the Fisher case on behalf of the School of Law. In Fisher, the Clinic defended race-conscious affirmative action programs by noting that:

Race in America is a difficult subject, loaded as it is with a record of “rope, fire, torture, castration, infanticide, rape, death and humiliation.” But the meaning we ascribe to race need not be so indelibly fixed in slavery and apartheid that the only corrective is to avoid any thought of race at any and all cost. Our past notwithstanding, we remain free to choose how to think about race. In that way and in the end, it seems particularly apt that at UT Austin, an institution dedicated to providing the best American higher education has to offer, race should be a factor in building a diverse student body. In considering race in that fashion, UT Austin is doing nothing less than teaching this generation of students the freedom to think and talk anew about race.

Shelby County v. Holder

The quest of equality was dealt a serious setback on Tuesday, June 25, 2013, in Shelby County v. Holder where by a bare 5 to 4 majority the Court invalidated Section 4(b) of the Voting Rights Act. Section 4(b) sets forth the formula used by Congress to determine which jurisdictions (states and locales) are required to seek preclearance by the Justice Department before implementing new voting laws. Despite the Court’s observation that “voting discrimination still exists; no one doubts that,” it nonetheless claimed that “things have changed dramatically” to justify its invalidation of one of the major components of the Voting Rights Act.

The Court ignored the lessons prior to the Voting Right Act, where as soon as one method of voter suppression was struck down, states would quickly respond with “schemes intended to emasculate constitutional provisions or circumvent the Court’s constitutional decisions” on voting. Already, states have pledged to immediately implement laws requiring voters to show photo identification before getting a ballot, plans that were previously blocked by the Voting Rights Act. Hopefully, Congress will act quickly to amend the law. As Justice Ginsburg noted in her dissent, the continuation of the Voting Rights Act is critical because it “would facilitate completion of the impressive gains thus far made; and second, continuance would guard against back­sliding.”

The Civil Rights Clinic at the law school also filed two amicus briefs in the Shelby County case. In Shelby, writing on behalf of Congressman John Lewis in one brief and on behalf of the Veterans of the Mississippi Civil Rights movement in another, the Clinic reminded the Court that:

The passage of the Act is the story of young men and women who, in the teeth of violence and terror and sometimes at the price of their own lives, made sure our Nation would honor the dignity and political voice of all Americans. They were determined “to make [freedom] happen,” believing that “insofar as they can make it real for themselves, they will make it real for all of us. The Voting Rights Act of 1965 was the result of, and remains a testament to, their sacrifice. No statutory enactment has been more important in combating minority disenfranchisement and advancing voting rights for all Americans than the VRA.

Windsor v. United States & Perry v. Hollingsworth

On the brighter side, the Court ended this term handing victories to same-sex couples and marriage equality in its decisions in Windsor v. United States and Perry v. Hollingsworth. In Perry, by ruling that the challengers did not have standing, a lower court’s ruling remains in effect that invalidated California’s ban on same-sex marriage. In Windsor, the Court ruled that the Defense of Marriage Act (DOMA) is unconstitutional as a deprivation of the equal liberty of protected by the Fifth Amendment. DOMA denied same-sex married couples federal benefits received by opposite-sex couples. What the same-sex marriage debate has revealed is the arguments against the same-sex marriage are the same ones used against interracial marriages, as being unnatural and destructive. The Court correctly observed that the “principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage.”

In Perry, the Civil Rights Clinic argued that:

The certainty and monotony with which some will always sound the death knell for society, morality, and faith, just because two adults choose to marry cannot obscure the reality that we heard virtually the same arguments for almost three hundred years to justify preventing two black people from marrying and then a black man from marrying a white woman. Nor, when all is said and done, can these jeremiads about how marriage equality for same-sex couples will lead to our final slouching toward Gomorrah obscure the reality that it is “an inexorable law that one cannot deny the humanity of another without diminishing one’s own.

Taken together this week’s decisions by the Supreme Court show, if nothing else, that the struggle for full human dignity is an ongoing one. Howard University School of Law is committed to the struggle and will remain in the fight to the last.

Professor Aderson Francois
Supervising Attorney, Civil Rights Clinic
More information on Professor Francois briefs

Mr. Douglas Jackson-Quzack, HUSL ‘13

Okianer Christian Dark
Howard University School of Law

updated: July 1, 2013