Government Affairs and Advocacy

July 3 Federal Update: Supreme Court Rules Against Affirmative Action   

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July 3, 2023

In the case of Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Supreme Court ruled against affirmative action in college admissions. The historic 6-3 decision last Thursday overturned decades of precedence. The majority ruled that “Affirmative Action,” the practice of considering the race of prospective students when determining admission, violates the Equal Protection Clause of the 14th Amendment. Chief Justice Roberts wrote, “The Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably negatively employ race, involve racial stereotyping, and lack meaningful endpoints. We have never permitted admissions programs to work that way, and we will not do so today.”  

In her dissent, Justice Sonia Sotomayor, joined by Justices Elena Kagan and Kentanji Brown Jackson, wrote, “The result of today’s decision is that a person’s skin color may play a role in assessing individualized suspicion, but it cannot play a role in assessing that person’s individualized contributions to a diverse learning environment. That indefensible reading of the Constitution is not grounded in law and subverts the Fourteenth Amendment’s guarantee of equal protection.”  

President Joe Biden condemned the decision, along with many public figures, including Barack and Michelle Obama, saying that he “strongly, strongly” disagrees with the ruling and urging that the “decision must not be the final word” on the matter. Former President Trump applauded the ruling, calling it “a great day for America.” Former Vice President Mike Pence, Florida Gov. Ron Desantis, and other conservative politicians expressed similar sentiments.   

Some states have already banned race-based affirmative action, resulting in declining enrollment of students from underrepresented communities. Public opinion polls have shown mixed approval for the practice, with many voters conflicted. Knowing that the ruling would likely not rule in their favor, elite colleges and universities have been preparing for a change in their admission processes, with one dean stating, “We don’t want tools taken away from us or our hands tied behind our back. … I’m extremely worried.”

Supreme Court Releases Batch of New Decisions

The Supreme Court released a batch of new opinions last week in the final days of its term. On Wednesday, it released opinions ruling against the Independent State Legislature theory, clarifying when online harassment can be prosecuted, and upholding a Pennsylvania law allowing any company doing business in the state to be sued there. Later in the week, the court also ruled on cases dealing with trademark infringement, religious liberty, affirmative action, and President Biden’s student loan forgiveness program.

In the two cases involving the law and religion, the Supreme Court ruled in favor of religious liberty and freedom of expression in certain contexts. In Groff v. DeJoy, the court sided with Gerald Groff, an evangelical Christian suing the U.S. Postal Service for religious discrimination. Groff, who observes the Sabbath, faced punishment for refusing to work on Sundays. Lower courts ruled in favor of the Postal Service, agreeing that accommodating Groff’s beliefs would cause an “undue hardship” for the employer. However, in a unanimous decision, the Supreme Court ruled that under Title VII of the Civil Rights Act, “it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary.” The lower courts will now decide Groff’s case under the new clarified standard.

In 303 Creative LLC v. Elenis, the Court ruled 6-3 that an evangelical Christian website designer had the right to refuse service to LGBT customers under the first amendment. The Court ruled that a Colorado anti-discrimination law requiring the wedding website designer to create wedding websites for same sex couples was a violation of the designer’s right to freedom of speech. In the majority opinion, Justice Neil Gorsuch wrote “The First Amendment’s protections belong to all, not just to speakers whose motives the government finds worthy”, continuing “In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance”. In her dissent, Justice Sonia Sotomayor wrote “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class”.

Two other cases, Department of Education v. Brown and Biden v. Nebraska, overturned President Biden’s student loan forgiveness plan. While the decision on the first case concluded that the respondents lacked standing to bring a procedural claim against the program, Biden v. Nebraska ruled that the program was unconstitutional.

Once again in a 6-3 vote, the Court ruled that Biden’s plan to forgive up to $20,000 in student loan debt relief to borrowers under the HEROES Act, which gives the executive branch the ability to waive or modify student loan debt terms during a national emergency, exceeded his authority. The majority opinion, written by Justice Roberts, stated that the plan was in violation of the highly subjective “major questions doctrine”, that states that any executive action not approved by Congress which the Court declares to be too “major” of a policy is unconstitutional. In her dissent, Justice Elena Kagan accused the court of “once again ‘substituting’ itself for Congress and the Executive Branch – and the hundreds of millions of people they represent – in making this Nation’s most important, as well as most contested, policy decisions.”

New Bill Introduced to Ensure Continuity of Exemptions to SNAP Work Requirements

On June 13, Ranking Member on the House Agriculture Subcommittee on Nutrition Jahana Hayes (D-Conn.) and Representatives Yadira Caraveo (D-Colo.) and Emilia Sykes (D-Ohio) introduced the Food Access and Stability Act. The proposed legislation would make permanent specific changes to the Supplemental Nutrition Assistance Program (SNAP) implemented in the recent bipartisan budget deal. Though the agreement required more adults without children to work to receive SNAP benefits, it exempted veterans, unhoused people, and former foster youth from work requirements until 2030. The Food Access and Stability Act would ensure that these exemptions become permanent. In introducing the legislation, the representatives reminded the public that over 41 million people, or 1 in 8, relied on SNAP benefits last year to avoid hunger.

Appropriations Process Already Hitting Hurdles

Just a month after reaching a bipartisan deal on the outlines of next year’s federal budget, members of Congress are already nervous about the prospects of passing a full budget by the end of the year. According to the debt limit deal, Congress must pass the 12 bills that are part of the federal budget by New Year’s Eve or else trigger an automatic 1% reduction across all areas of the federal government, also called sequestration. There is even disagreement over the deadline, with some lawmakers arguing that the bills can be passed as late as April of next year. Another issue is the spending caps included in last month’s debt deal. Republican House members are marking up bills that spend $119 billion less than the targets—a symbolic protest against the debt deal, which didn’t cut spending enough in their view. The Senate, on the other hand, is preparing bills that go above the agreed-upon spending targets. How these approaches will be reconciled into a final budget package is unclear. Rumors are already swirling that each chamber will spend the summer marking up its bills, and then a handpicked team of negotiators will come together in the fall to hammer out the final deal.

Federal Judge Shoots Down Arkansas Gender-Affirming Care Ban

On June 20, a federal district court judge struck down an Arkansas gender-affirming care ban after finding the law violates the constitutional rights of transgender youth, their parents, and health care providers. A coalition made up of parents of transgender youth, as well as doctors and major medical organizations, opposed Arkansas House Bill 1570 (also known as Act 626) and sued the state (Brandt et al. v. Rutledge et al.). Act 626 was enacted by the Arkansas state legislature, overriding the previous veto by the Gov. Asa Hutchinson in 2021. The bill barred state funds and insurance coverage for gender-affirming care and allowed private insurance to refuse coverage. Act 626 also prohibited health care professionals from providing “gender transition procedures” to individuals under 18. The federal district court judge found Act 626 to be unconstitutional.

Administration Rolls Out New Broadband Funding

Last week, the Biden administration announced the launch of Broadband Equity Access and Deployment (BEAD), a $42.45 billion grant program to fund high-speed internet infrastructure for each state, territory, and the District of Columbia. Each state will receive a minimum of $107 million. The funding for the program was authorized under the $1 trillion infrastructure law that President Biden passed through Congress in 2021. To receive the first 20% of the funding, states have until the end of the year to submit proposals to the National Telecommunications and Information Administration (NTIA) on how the money will be allotted. By the end of 2025, all the funds will be dispersed. The Biden administration argues that the internet is as vital of a utility as water and gas, and all families should have access to reliable and affordable internet.

Broadband companies have hesitated to provide internet access for rural areas, as it is not a lucrative venture, even though over 8 million homes need access. During the COVID-19 shutdown, the lack of stable internet access in rural areas emphasized the crucial need for these areas of the country to have broadband access. Earlier this month, NTIA announced $930 million for 35 “middle-mile” broadband construction projects connecting large fiber and local networks. NTIA administration Alan Davidson said earlier this month, “Middle Mile infrastructure brings the capacity to our local networks and lowers the cost for deploying future local networks.”

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