The Final Chapter in Affirmative Action within College Admissions?

The final chapter in affirmative action within college admissions?

by Nicole Fries

(Nicole is an alumni of the University of North Carolina at Chapel Hill and a devoted Tarheel basketball fan. Currently she is in her second year at ASU’s Sandra Day O’Connor College of Law.)

Although the Supreme Court has not yet fully decided the merits of race as a factor in college admissions within last year’s case of Fisher v. University of Texas, affirmative action is likely to come before the Supreme Court against in it’s next term. A group named Students for Fair Admissions (SFA) has brought two separate suits in federal district court alleging unfair racial preferences in the admission policies of the University of North Carolina at Chapel Hill (UNC-CH) and Harvard University. These two universities were chosen by SFA because they each utilize a different theory when factoring race into admission policies.  The claim against UNC-CH is largely based on an amicus brief submitted by the school on behalf of the University of Texas in Fisher.[1] UNC-CH’s current plan is based on a racial “plus factor” which the complaint alleges is more like a dominant factor.[2] There UNC alleged, “that if it were required to use race-neutral admissions, such as a percentage plan where the top students at each high school are guaranteed admittance, nonwhite underrepresented students would increase from 15 percent to 16 percent. But the change would cause the average SAT scores of the entering class to drop by 56 points, from 1317 to 1262, and would cause slight drop in the average GPA.”[3]

The lawsuit charges that the school should be more concerned with the 200 point different between the average SAT score of an Asian American admitted student and an African American admitted student. However the percentage of athletes at UNC that are African American is disproportional to the percentage of the student body that identifies as the same race. The school itself acknowledges that that percentage of the student body has been decreasing to just 7.7% in 2013.[4]

The claim filed against Harvard charges that the fairly stead proportional racial makeup of undergraduate classes year after year gives rise to the assumption of racial quotas in admissions. The Harvard theory is considered a “holistic approach” where a range of criteria are considered when evaluating an individual. The complaint alleges that due to high numbers of Asian American applicants and restricted quotas of this same demographic, Asian American applicants are held to a higher standard than other applicants.[5]

In Fisher the Supreme Court set up a two-step test to determine whether a college admissions program that include race as a factor is being discriminatory. The first step provides considerable deference to the university’s “good faith” claim and judgment that it is using racial diversity to achieve educational benefits on campus.[6] However the second step moves the burden of proving the requirement of a racial factor onto the university. Proof is required that the university tried and was unable to achieve its racial diversity goal on campus with methods that didn’t use race at all, as well as a showing that the racial factor in admissions is being used in as limited a way as possible. However the Supreme Court did not decide what would constitute that requirement that greater racial factors would required to meet diversity goals on campus. The Fifth Circuit is currently trying to decide that since the case is remanded and their decision, if appealed, would bring Fisher back to the Supreme Court once again.

The Obama administration has written amicus briefs on behalf of the University of Texas and argues that because the university has still not met its diversity goals, any admissions plans going forward would have to use race as a factor in order to reach those goals.[7] Earlier this year affirmative action’s bite was reduced by the Supreme Court when Schuette v. Coalition to Defend Affirmative Action held that an amendment to Michigan’s constitution that prohibited using race as a factor in college admissions for state colleges and universities did not violate the Equal Protection Clause.[8] Proponents of affirmative action says that cases like Schuette will decrease the numbers of racial minorities that attend college, and since Michigan’s amendment took effect black enrollment at undergraduate and law schools has decreased 30%.[9] A quarter of the US population lives in states where racial bans in admissions are already in place.[10]

Yet some critics of affirmative action say that they are not trying to decrease diversity in colleges across the country, just that allowing race to be a dispositive factor in admissions can prevent other important elements such as socio-economic status from being relied upon. Others, like Chief Justice Roberts, hope the Court will steer toward a color-blind future and allow the best candidates to be admitted, regardless of any kind of “plus factors,” including race.[11]

Regardless of how either side feels, the Court has been narrowing the scope of affirmative action and looks like it may do so once again. Schuette did not address traditional legal issues related to affirmative action, instead holding that bans on race factors in admissions did not violate the Equal Protection Clause.[12] Fisher narrowed the scope of legal analysis when a court looks at a university’s admission program and requires the university to prove that they are unable to achieve their diversity goals in any other way than the factors they use in admissions. The Fifth Circuit, and likely the Supreme Court, still must weigh in on what that necessary “limitation” on a racial factor in admissions would look like. These two complaints by SFA allege that the universities’ admission policies do not meet the compelling government interest requirement under a strict scrutiny analysis for racial classifications.[13] (Because Harvard receives federal funds a “government interest” test still applies.) Due to the Constitutional implications a classification such as race can have in admission policies, the Supreme Court may be pushing schools to find other non-constitutionally protected classifications to utilize in admissions and achieve the same diversity goals. However the major problem with that direction would be that diversity goals are usually written to specifically address racial percentages in educational institutions, not socioeconomic backgrounds, language abilities, or residential zip code.

My initial reaction when I read about this filing was one of shock and anger that the dynamically educational experience I received at UNC-CH could appear discriminatory to others. I regularly describe my time at UNC and use the word diverse to refer to both the opportunities made available and the student body. However, in writing this post I’ve realized just how unique a situation college admissions is, especially one in which to fight racial legal battles over. Most schools do not publicize their checklist, algorithm, or magic characteristics that will cause them to chose to admit one student over another. I doubt that many schools even have any of these, instead using thousands of thankless man hours to read the achievements and dreams of the country’s high school students and find those that rise to the top of their piles.

Especially when diversity is something a school prides itself on, such as UNC-CH, University of Texas, and many other state schools, removing that tool from an admission department’s kit can make achieving those goals incredibly difficult. An additional burden placed upon state universities is the mission to best serve the citizens of their state. Both the University of Texas and UNC-CH have allowable quotas in favor of in-state students to further their mission of serving the students of THEIR state first and foremost. If racial plus factors become impermissible, would these state citizen diversity quotas also be fair game? The complaints recommend preferences based on zip code or socioeconomic status, since those could both be similarly associated with the minority races that these schools are hoping to achieve a greater proportion of through admission policies.[14] With the number of international students growing every year, could national origin quotas be implicated? Many of these international students are much better prepared for college than American high school students, in fact America ranks thirtieth in the world for high school math performance.[15] With these two new complaints being prepared for trial, all I do know is that I wouldn’t want to be a college admissions officer, or a Supreme Court Justice, facing down the future of affirmative action.

[1] Mulhere, Kaitlin. “2 New Challenges to Affirmative Action.” 18 Nov. 2014.

[2] Dennison, Lyle. “US newly defends race as a college plus factor.” 2 Nov. 2013.


[4] Craven, Julia. “Only 98 of nearly 4,000 new first-years are black males.” 10 Oct. 2013.



[7] Id.


[9] Pearson, Sophia and Greg Stohr. “Michigan Affirmative Action Ban Upheld by U.S. High Court.” 22 Apr. 2014.



[12] Id.



  1. B. But wouldn’t that just be convenient for the plaintiffs in these two complaints without actually addressing any of the larger problems? Personally, I hope the Supreme Court hasn’t begun to take discretionary appeals because they benefit a tiny few at the expense of many.

[15] Chappell, Bill. “U.S. Students Slide in Global Ranking on Math, Reading, Science.” 3 Dec. 2013.

Prop 303

Prop 303 – Right to Try

Nathan Erickson – Sandra Day O’Connor College of Law

The recent November 4th election in Arizona changed many things in Arizona. One bright spot for social justice was the overwhelming passage of Proposition 303 – the Right to Try.

The legislation gives terminally ill patients the right to try investigational medicines that have passed the first phase of FDV approval but still are still years from outright approval for general use. The law means terminally ill people don’t have to wait for new drugs to make their way through the long approval process. They can work with their doctors to gain access to promising investigational and new medicines now.

While the FDA does have a process that allows people to seek permission to take the drugs that have not yet been approved but have passed the first round, this process is long and onerous. Many people do receive FDA permission under this “compassionate use” doctrine, but there are many documented cases of people dying while waiting on their approval. The process takes around 100 hours to complete and only around 1,000 terminally ill patients received the expanded access per year.

With the new law, Arizonians can circumvent the FDA and go directly to the people working on the treatments. This allows the patients to connect directly with the most knowledgeable people to help them the most, and advances the medical science behind treatment for the terminal disease.

Critics of the law say that it gives false hope to terminally ill patients because it does not create a way for people to successfully obtain the therapies. Some insurance companies will not pay for the non-approved treatments or other roadblocks to treatment could exist. But proponents of the law simply respond that Americans should not have to ask the government for permission to attempt to save their own lives how they think is best.

Social Justice is advanced by the passage of the right to try law because this old impediment on healthcare freedom for those who need it most is now abolished. Terminally ill individuals are a group of people who society must be aware of and compassionate towards. Giving these people the ability to utilize scientific advancements, raise the level of their hope, and sometimes, unfortunately, simply go down swinging, is the best thing we as a community can do to help them.

The honorary chairman of the Prop 303 campaign was 13 year old Diego Morris. Diego had a rare form of bone cancer and left the country to get an experimental treatment in the UK which cured him. Diego says that hope was the most important thing to him and giving hope to others is what he thinks the right to try law will do.

Kathy Thompson, the mother of ALS patient Josh Thompson, says that when asking doctors about unapproved drugs she would get answers that the drugs might cause harm, but that was a risk that the terminally ill are often willing to take. Ted Harada, a survivor of ALS because of an experimental treatment, appreciates that the FDA is the gold standard for drug approval and safety, but asks if when you or a loved one were facing mortality, would you be willing to settle for the silver standard?

Overall social justice is about freedom, equality, and community. These are the principals that drive the right to try law. But even more so, social justice is about hope and when you have a terminal illness that is hard to come by. Passing this law gives Arizona a brighter future, a more just future and a more hopeful future.

A Summary of the Impact of Genetic Research into Behavioral Characteristics for the Criminal Justice System

A Summary of the Impact of Genetic Research into Behavioral Characteristics for the Criminal Justice System

By Lauren Marshall, 3L – Sandra Day O’Connor College of Law

Over the past several decades, advancements in genetic research have had far-reaching implications in many fields, such as healthcare, insurance, and the law.  While there is still much to be discovered, the knowledge of the scientific community has grown exponentially in many areas of genetic research.  One of the greatest achievements in recent decades has been the Human Genome Project.  The Human Genome Project began in 1990 and was completed in 2003.[1]  During this time frame, scientists mapped and sequenced roughly 20,000 human genes.[2]  Not only did The Human Genome Project make impressive discoveries during its operative period, but it also continues to fuel new and innovative genetic research and biotechnology.[3]   For instance, in the years since The Human Genome Project, 1,800 disease genes have been discovered, 2000 genetics tests are available to consumers and physicians to learn more about genetic risks, and nearly 350 biotechnology products are presently being tested in clinical trials. [4]  The data from this project has the potential to diagnose and fight disease, change human psychology and physiology, and ultimately allow each person to better understand his or her genetic makeup and its potential hazards.[5]

The results of the Human Genome Project have already caused a ripple effect into the current criminal justice system.  For instance, it is common to allow the utilization of Deoxyribonucleic acid (“DNA”) fingerprinting as evidence at the trial level, because DNA fingerprinting is a valuable tool used by law enforcement and prosecutors, allowing them to connect defendants to the scene of the crime with reasonable certainty.[6]  Furthermore, genetic research has led many to believe that individuals have criminal tendencies and are unable to be rehabilitated.[7]  As a result, many jurisdictions created a “three strikes, you’re out” system for sentencing and enhanced detention for known sexual predators.[8]  In addition, research has shown strong genetic correlations between conditions like anti-social behaviors, alcoholism and the propensity to conduct criminal activities, which in turn have been offered by defendants to attempt to exonerate their behavior in whole or in part.[9]

As the criminal justice system seemingly moves forward into a more “geneticized legal system,” the value of genetic evidence has the potential to allow for a better understanding of the facts of the crime and the criminal behavior of the defendant.[10]  Additionally, it is possible that genetics will be a large factor in determining the culpability of a defendant; the individual’s genes could be used to understand behavioral propensities and the appropriate scope of legal responsibility.[11]

Many studies have shown a strong correlation between the genetic makeup of an individual and his or her criminal predisposition.  Specifically, research on twins and adoptees has revealed that one’s genes play a major role in determining whether an individual will engage in criminal activity.  In addition, genetic disorders such as MAOA deficiencies have been shown to increase the likelihood of aggression and criminal conduct.  However, all of these studies have demonstrated that environmental factors also substantially influence an individual’s susceptibility to partake in crime.  Since current research emphasizes the importance of the environment, I do not believe a complete link will be found between genes and criminal predisposition.

Nevertheless, as research continues to advance the understanding of the role between genes and behavior, the criminal justice system will be faced with examining the implications this information will have in the courtroom, both procedurally and legally.  In light of the character evidence restriction under the Federal Rules of Evidence and right to privacy under the Fourth Amendment, it is unlikely that the prosecution will be able to request or use genetic testing for criminal predisposition during the guilt phase, unless the defense first opens the door to such evidence.  Furthermore, the admissibility of criminal predisposition evidence will be evaluated under the Daubert standard.  Since the current understanding of such evidence is highly debated, it is possible that a court may deny its admission during the guilt phase due to its lack of reliability.

Moreover, advancements in genetic criminal predisposition research could have a profound impact on the foundations of our current criminal justice system.  One major impact will be on the theory of culpability, which states that an individual can be held accountable because he acted under his own free will.  Since genetic predisposition evidence has the capability to partially or completely negate the notion of free will, courts will likely deem it inadmissible in determining guilt until a complete link can be shown between a gene and specific conduct.  On the other hand, such evidence has been allowed as a mitigating factor during the penalty phase of a trial, as it relates to the defendant’s character and ability to control their actions.  Another major impact would be on the current theories of punishment.  It is likely that evidence of genetic criminality would preclude the use of retribution, rehabilitation and deterrence, as these theories rely on culpability and a criminal’s ability to modify their behavior.  Until science advances genetic treatment, incapacitation will be the only available form of punishment to protect society from genetically predisposed criminals.

[1] Mark A. Rothstein, The Impact of Behavioral Genetics and the Law and the Courts, 83 Judicature 116, 117 (1999).

[2] Overview of the Human Genome Project,

[3] Human Genome Project, Nat’l Inst. of Health, (Mar. 29, 2013),

[4] Id.

[5] Steven I. Friedland, The Criminal Law Implications of the Human Genome Project: Reimagining A Genetically Oriented Criminal Justice System, 86 Ky. L.J. 303, 306 (1998).

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 307.

[11] Id.

Extending the Batson Challenge to Classifications Based on Sexual Orientation

Extending the Batson Challenge to Classifications Based on Sexual Orientation


By Haley Wester Schmidt, 3L – Sandra Day O’Connor College of Law



Traditionally in the process of jury selection a so-called “Batson challenge” is an objection to a peremptory strike made by opposing counsel based on a potential jurors race, gender, or ethnicity. In January the 9th Circuit Court of Appeals extended this protection to potential jurors based on sexual orientation as well.

SmithKline Beecham brought suit against Abbott Laboratories (Abbott) regarding a licensing agreement and the pricing of certain HIV medications. During jury selection a member of the venire made reference to his partner as a “he”. Both the potential juror and the presiding judge used the pronoun “he” several times. Counsel for Abbott questioned the juror about the prescription drugs at issue. Abbott’s counsel later exercised one of its strikes against this juror. SmithKline’s counsel raised a Batson challenge alleging the juror had been struck because he “appears to be […] homosexual.”[i] SmithKline’s counsel expressed concern that because the case involves AIDS medication, “the incidents [sic] of AIDS in the homosexual community is well-known, particularly gay men.”[ii] The judge is unsure if Batson applies to civil matters and if it does will it apply to sexual orientation. Furthermore, Batson is concerned with an entire group being excluded not a single member and there is no way to know who in the venire is or is not homosexual. Finally, the judge urges Abbott’s counsel to state a reason for the strike aside from the one alleged by SmithKline. Abbott’s counsel declines to comment on reasons for the strike except to deny knowing whether or not the juror is gay.

The trial concluded with a mixed verdict. Both Abbott and SmithKline appealed. SmithKline contends that a new trial should be granted, in part, because of Abbott’s alleged unconstitutional strike to exclude a juror because of his sexual orientation.

The 9th Circuit explains that the Batson analysis is three-part: 1) the challenger must establish a prima facie case of intentional discrimination; 2) the striking counsel states a nondiscriminatory reason for the strike; and 3) the court determines if purposeful discrimination was present.[iii] The district court judge did not apply the appropriate legal standard, therefore the 9th Circuit steps through the Batson analysis.

The 9th Circuit draws the conclusion that SmithKline proved their prima facie case because the struck juror was the only one who identified himself as gay and the drug in question has been widely discussed in the gay community, a point raised by SmithKline’s counsel. Furthermore, Abbott’s counsel failed to provide a nondiscriminatory justification for the strike during the voir dire process. The Court determined that Abbott still did not offer “any colorable neutral explanation for the strike[.]”[iv] Finally, the Court turns its attention to whether Batson prohibits strikes based on sexual orientation.

The privilege of peremptory strikes is subject to the guarantees of the Equal Protection Clause.[v] The Supreme Court reasoned in Batson that strikes based on race undermine confidence in the fairness of the judicial system. In J.E.B. v. Alabama, the Supreme Court allowed peremptory strikes to any individuals or groups subject to rational basis review.[vi] The 9th Circuit has historically applied rational basis review to sexual orientation classifications, but after re-evaluating the holdings in Witt v. Department of the Air Force[vii] and the Supreme Court holding in Lawrence v. Texas[viii]and States v. Windsor[ix]the 9th Circuit determined that “heightened scrutiny be applied to equal protection claims involving sexual orientation.”[x]

Finally, regarding the applicability of Batson the 9th Circuit says:

As illustrated by this case, permitting a strike based on sexual orientation would send the false message that gays and lesbians could not be trusted to reason fairly on issues of great import to the community or the nation. Strikes based on preconceived notions of the identities, preferences, and biases of gays and lesbians reinforce and perpetuate these stereotypes.6 The Constitution cannot countenance “state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.” J.E.B., 511 U.S. at 128, 114 S.Ct. 1419.

The history of exclusion of gays and lesbians from democratic institutions and the pervasiveness of stereotypes about the group leads us to conclude that Batson applies to peremptory strikes based on sexual orientation.”[xi]


Because a Batson violation was found to have occurred the case was remanded for a new trial.

[i] SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d at 475 (9th Cir. 2014)

[ii] 475

[iii] Kesser v. Cambra, 465 F.3d 351, 359 (9th Cir.2006)

[iv] SmithKline, 740 F.3d  at 479

[v] Batson v. Kentucky, 476 U.S. at 89, 106 S.Ct. 1712 (1986)

[vi] J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994)

[vii] Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir.2008).

[viii] Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).

[ix] States v. Windsor, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013).

[x] SmithKline, 740 F.3d  at 481

[xi] SmithKline, 740 F.3d  at 486

Energy Poverty is a Global Problem

Energy Poverty is a Global Problem

by Nicole Fries, 2L, Arizona State University

In his recently released book, The Moral Challenge of Dangerous Climate Change; Values, Poverty, and Policy, Professor Darrel Moellendorf addresses how energy poverty will prevent any discernable change toward a cleaner environment.[1] According to Prof. Moellendorf, 1.4 billion people around the world still lack electricity. Including those individuals, 2.7 billion people still burn biomass as their main source of energy. That includes everything from plant matter and wood to animal matter, which is the largest source of bio-energy in Africa. These sources of energy are not as detrimental to the atmosphere as coal-burning might be, yet they are tremendously hazardous to the health of the individuals living in these locations because of their extremely high rate of indoor air pollution. This above average reliance on bio-mass as an energy source is defined as energy poverty.

However, Prof. Moellendorf also introduces what he called the anti-poverty principle for climate change; that policies and institutions should not impose avoidable costs of climate change on the global poor if it will make poverty eradication more difficult.[2] The premise of his book is that climate change has traditionally been a first world problem because the struggle for survival has prevented any poorer countries from taking part. As the levels of the world’s carbon emissions only rise, there is pressure from the G8[3] for poorer countries to meet these energy goals too.[4] But is that just? These countries that are world leaders have made little headway on their UN Millennium Development Goal to halve extreme poverty around the world by 2015.[5]

The African Union has attempted to assist the poorer countries among them by creating a plan to diversify energy on the continent.[6] Michelle Barnard suggests that a successful shift to nuclear energy in the region will only work if a regional management organization is set up to regulate. It also seems likely that nuclear energy development in Africa, or other similar regions around the world with high levels of energy poverty, will only succeed if funding is pooled on a regional basis to make development happen.

Moellendorf suggests instead that climate change policy is dangerous insofar as it imposes costs that make poverty eradication slower, putting undue burdens on poorer countries that don’t have available alternatives. He argues that organizations such as UNFCCC should, by necessity, align their goals with those of reducing poverty because otherwise they will unduly burden countries with high rates of energy poverty.

Yet how can the United States attempt to lead these restructured energy goals when nearly 15% of US utility customers live in fuel poverty.[7] Due to the federal nature of many poverty assistance programs, states and municipalities control much, if any, legislation and programming related to combating fuel poverty. Additionally, Prof. Power points out that the majority of members of Congress are from the Sun Belt, areas that have no requirement for assistance in affording fuel in the winter months. Specifically, the actual definition of fuel poverty does not align with the definition of poverty used in most US legislation. In 2005, 36% of fuel-poor households had incomes higher than the Federal Poverty Guideline and 5% were ineligible for the federal Low-Income Home Energy Assistance Program (LIHEAP).[8] Currently, fifty-one regulatory bodies set residential rates and the standards for consumer protection. In rural areas where energy poverty is especially acute, electricity is distributed through non-regulated cooperatives. This means that those regulatory bodies rarely even touch the US citizens who need their energy policies most.

Many utilities and regulators still believe that energy poverty is a temporary state that can be remedied by short-term economic assistance plans. Yet the highest rate of energy poverty year after year, is in rural areas because it is expensive to transport fuel sources far distances, fuel sources are irregular, and income is significantly lower than in urban areas.[9]

Dr. Power suggests that the US should look to current United Kingdom policies to combat energy poverty, however their rates of energy poverty are actually much higher than ours. As of 2011, 24% of households in the UK were in fuel poverty.[10] Yet the UK defines households within fuel poverty differently than the US, or at least more consistently nation-wide. To qualify as fuel-poor a household must have higher than the national average energy costs and after paying them, have a household income below the national average.[11] This definition seems to imply a broader inclusion of households to have such a high rate of fuel poverty. Or perhaps it implies that the UK has a higher baseline to qualify as poverty-stricken.

Whichever it may be, it seems both unfair to expect other countries to modify their energy sources when they are in a position to use only those sources which they can afford, and unfair to expect citizens in the US to support national or international policy goals that push their energy needs even further from the national agenda then they already are.

[1] Moellendorf, Darrel. The Moral Challenge of Dangerous Climate Change. Cambridge Publishing. Apr 2014.

[2] Id.

[3] A forum of governments of the leading industrialized nations in the world, including Canada, France, Germany, Italy, Japan, Russia, United Kingdom, United States, and some would argue the European Union.

[4] 1992 United Nations Framework Convention on Climate Change (UNFCCC).

[5] United Nations Millennium Development Goals. 2000.

[6] Barnard, Michelle. Nuclear Energy in Africa – Regional Initiatives for Expansion. International Bar Association, Journal of Energy and Natural Resources Law. Vol. 32, No. 1. Feb. 2014.

[7] Power, Dr. Meg. Fuel Poverty in the USA; the Overview & the Outlook. Energy Action Issue No. 98. Mar 2006.

[8] Id.

[9] Id.