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Supreme Court Hears Oral Arguments in Fisher v. University of Texas (Fisher II)

On December 9, 2015, the Supreme Court of the United States heard oral arguments in Fisher v. University of Texas at Austin, a case involving the University of Texas (UT) admissions process which seeks to improve student-body diversity.  The Association of Research Libraries joined with 37 other higher education organizations in an amicus brief supporting the University of Texas.  A number of notable individuals attended oral arguments in the case, including Cecelia Suyat, the wife of the late Thurgood Marshall.

This case was previously heard by the Supreme Court which resulted in a 2013 opinion which in a 7-1 vote (Justice Kagan recused herself), remanded the case to the Fifth Circuit.  In Fisher I, the Supreme Court directed the Fifth Circuit to reconsider the case under the higher threshold of strict scrutiny in determining whether UT’s admission policy comports with the Equal Protection Clause of the Fourteenth Amendment.  On remand, the Fifth Circuit once again upheld UT’s admission policy in which UT accepts the top 10% of graduates from Texas high schools and uses a holistic review for the remaining open spots.  The holistic approach includes many factors, with race being one of the factors.  The admissions process did not have quotas or specific goals in terms of the number of students meeting specific characteristics.

Highlights from Oral Arguments in Fisher II

Oral Arguments by Fisher

During oral arguments in Fisher II, Mr. Rein, representing plaintiff Fisher, argued that the University of Texas did not meet its burden of proving the necessity of the program and that its admission policy was distinguishable from the policy that the Supreme Court upheld in Grutter v. Bollinger (challenging University of Michigan’s law school’s admission policy) in 2003.

Justice Sotomayor challenged Mr. Rein, asking why the University of Texas’ admissions policy was impermissible if need for the program was proven or assumed.  Mr. Rein asserted that individual profiles must be compared against each other to satisfy prior Supreme Court cases.

JUSTICE SOTOMAYOR:  If they had to use race, how are they using it improperly?

MR. REIN:  If you have to use race and you want to use the model that was created in Bakke and Grutter, you would need to build profiles of individuals that would allow you to judge them one against another in the context of the class and the educational experience you are trying to create.

JUSTICE SOTOMAYOR: My God, that sounds like it’s using race more rather than less than this plan does.

MR. REIN:  I ­­- I’m sorry if it sounds that  way.  It is not.  It simply says, in a situation of the Bakke situation where you’re looking at every aspect of an individual and you’re trying to judge whether one or another of individuals for the ­ for places, the last places would most benefit the class, the class as a whole as a learning entity, then you can, as Bakke indicates, take account of the fact that they may have different backgrounds, which would contribute different ideas.

Justice Ginsburg asserted that the top 10% policy, which Fisher was not challenging, was designed to improve racial diversity as well:

JUSTICE GINSBURG: But in Grutter ­­ in both Grutter and what Justice Powell said would be proper in Bakke, race was a factor. Race, itself, was a factor. And that’s why I’m finding it very hard to distinguish what the university is doing, apart from the 10 percent plan. But let – ­­ let me ask you about the 10 percent plan itself, because it seems to me that that is so obviously driven by one thing only, and that thing is race. It’s totally dependent upon having racially segregated neighborhoods, racially segregated schools, and it operates as a disincentive for a minority student to step out of that segregated community and attempt to get an integrated education.

MR. REIN: Justice Ginsburg, let ­­- let me respond to this, with respect, this ­­ this way. The top 10 plan does not classify anybody by race. It addresses only standing within the Texas educational system.

JUSTICE GINSBURG: But it could work only in the background.

MR. REIN: When you say “work,” it works on a number of fronts. It creates geographic diversity. It looks all over Texas. It doesn’t distinguish between high schools. It creates socioeconomic diversity. It does have an effect, a demonstrated effect on race because a number of minorities, the type they care about, are admitted under the top 10 program. It’s not based on race. It’s based on the degree of effort you make relative to the other people with whom you’re being ­­-

JUSTICE GINSBURG: It is created because of race.

MR. REIN: I ­­ I’m not in a position to tell you why it was created. It ­­ it was created ­­

JUSTICE GINSBURG: Is there any doubt that it was created to increase the number of minority students? Was there any other reason for the 10 percent plan?

MR. REIN: Well, I’ve given you other reasons, which are it’s a ­­ it’s kind of a democratic recognition that you want to invite people from all over Texas, regardless of the school they went to. You’re looking for those who are trying the hardest, who are doing the best, who excel in their environment.

When questioned about what would constitute sufficiently concrete criteria to achieve diversity, Mr. Rein conceded that it is difficult but did not offer specific solutions:

JUSTICE KENNEDY: You argue that the University of Texas’ goals and­­ or announced goals are insufficiently concrete. Can you give an example of what, in your view, would be a sufficiently concrete criterion or set of criteria to achieve diversity?

MR. REIN: Well, and ­­ and certainly, the Solicitor General’s attempted to do so by breaking down the abstract goals into concrete objectives. One goal that certainly Grutter respects is, if you have studied your campus and you believe there’s an inadequate exchange of views, and the minorities feel so isolated they cannot properly bring to bear their perspective on the campus, you can look at measures of how successful are we in this kind of dialogue and try to investigate that, and try to say, okay, is there a level ­­you know, when do we reach a level of critical mass, which is the term in Grutter, where that exchange is vibrant and is taking place on our campus. That’s one measure.

CHIEF JUSTICE ROBERTS: Well, but I don’t understand. How do you do that?

MR. REIN: It’s not easy to do, and it’s not our job to do it. I mean, we’re not here to tell them how to do it, but your ­­ if one wanted to endeavor to try to find this kind of concrete level, we’re not saying quota, but we are saying you have to ­-­ you, the university, if you want to use this forbidden tool, this odious classification, you’ve got to find a way to do it. You’ve got to be able to explain what your concrete objective is.

Justices Sotomayor and Breyer discussed how administrators, faculty and students may raise issues highlighting the need for improved diversity on campus.

JUSTICE SOTOMAYOR: You’re saying we can’t they can’t use demographics. So they use a study that shows there’s less classes. There’s less people in classes. They talk to administrators, faculty, and students. They’re having racial incidents on campus where students of color are complaining that they feel isolated, that stereotyping is going on, on campus. What more do they need?

MR. REIN: Let me start with your first concern, which is this classroom study. First thing I would observe about that if I were in their position, and I’m not, is that the second study was done at a time when there were more minorities admitted than the first study, and they claimed it went backwards. So that might tell me right away that the problem ­­ the necessity for using race could not be demonstrated for that, because when you ­­

JUSTICE BREYER: Yeah. Because the ­-­ the necessity is not the necessity you’re talking about. It’s the – ­­ as I read it. I mean, you use words like “critical mass” and so forth. It sounds like a cloud of sort of you don’t know what they’re talking, but as I read further into it, it becomes quite specific, that is, 75 percent of the students are at this university because they were in the top 10 percent of their class. And it doesn’t take long before students and faculty in particular situations know who is who. 25 percent of the students in that class are admitted; they’re good students, not in the top 10 percent on the basis of leadership, activities, awards, work experience, community service, family’s economic statutes, school status, family responsibilities, single­parent home, languages other than English spoken at home, SAT score relative to school’s average and race occasionally, too.

Okay? We’re talking about that 25 percent. And it won’t take long before students in a class see that in that 25 percent, which means you aren’t just in the top 10 percent of your class, in that 25 percent there is hardly anybody who is African­ American or Hispanic. And the -­­ and seven years of experience with that kind of thing led the faculty at meetings, administrators, and others to say, we should do more to see that that 25 percent has occasionally somebody who is a minority.
[. . .]

That’s what their program is. It isn’t something like critical mass, et cetera. And ­­ and ­­ and if you have to say, it seems to me, why is that not a diversity-­related judgment of what is necessary?

MR. REIN: So, Justice Breyer, let me answer that. First of all, one thing your question establishes quite clearly is if one assumes premises from evidence that doesn’t exist, you can draw conclusions that are perhaps invalid. So let me go back to ­­ to where you started. You say these people are admitted on the basis of the various PAI [Personal Achievement Index] factors, which you read. That’s not how they’re admitted. That PAI is only part of the admissions criteria . . . And it’s not truly holistic because in the holistic systems, you look at the person as a whole. Here you could have the most wonderful PAI and never come close to admission, because they use the AI [Academic Index] independently. So they’re not admitted ­­

JUSTICE BREYER: Every school is like that. Every school in the country that’s a college that I’ve ever experienced is a combination of grades, class position, and a lot of other things.Welcome to EditPad.org – your online plain text editor. Enter or paste your text here. To download and save it, click on the button below.

Justice Kennedy seemed interested in the possibility of remanding the case to the District Court level and questioned Mr. Rein’s opposition to remand.  Justice Scalia, however, opposed remand to the District Court, arguing that the University of Texas is not entitled to a second chance to develop the record.

JUSTICE KENNEDY: May I begin with almost a procedural point: Did you object to the University’s request that this case be remanded to the district court?

MR. REIN: We did in ­­ in the Fifth Circuit.

JUSTICE KENNEDY: In the Fifth Circuit. It does seem to me, as Justice Alito’s question, and frankly some of the other questions have indicated, that the litigants, and frankly this Court, have been denied the advantage and the perspective that would be gained if there would be additional fact­finding under the instructions that Fisher sought to give. And that just ­­ we’re just arguing the same case . . . It’s as if nothing had happened . . .­­ it seems to me that Justice Alito’s question indicates that this is the kind of thing that we should know but we don’t know.

MR. REIN: Well, let -­­ let me point out that the ­­ the purpose of strict scrutiny is not just to adjudicate. It is to instruct the University that before you use the odious classification, before you employ race, you ought to know these things. If you’re going to depend on them, you ought to study them and know them. So the failure to do that so there is no evidence is not just because they didn’t put it in ­­

JUSTICE KENNEDY: But they weren’t given the chance to add additional evidence in order to meet that standard.

MR. REIN: Well, they can’t go back and recreate the past. They can’t ­­ they have put in all the evidence available to them about ­­

JUSTICE KENNEDY: But they could answer some of the questions as ­­ like the ones Justice Alito added. And I think it’s a very important point.

MR. REIN: They could -­­ I mean, but they’d have to go back and study the conditions at the time they made the decision. And I think that the failure to do that kind of thing indicates that the retreat to race was reflexive; was done on the day Grutter came down.

JUSTICE SCALIA: Not only that. Also the failure to put it in. It was their burden to put it in, wasn’t it? . . . So we’re going to say, oh, they failed to put it in. Let’s give them another chance. Let’s do a do-­over. Send it back down so they can now put in what they should have put in in order to prevail the first time around.

MR. REIN: And that I -­­ I entirely agree with that. And in ­­ in fairness, they knew that the standard was strict scrutiny. Grutter had said strict scrutiny. Bakke said strict scrutiny. It was no surprise. And Justice Alito, more directly, the evidence we did find in the record indicated that where the most selective schools were concerned, which would then lead you to the smaller classes, more of the top ten minorities enrolled in that than the added minorities that they derived ­­

JUSTICE ALITO: Well, the issue in this case is not whether the University can have holistic review . . . The issue is whether they can have as a component of holistic review after they have taken into account other characteristics that are not dependent on race; they can add race as an additional characteristic. And so if it were ­­is there ­ would there be any way of determining, if there were a remand, which of the non­-top 10 admittees were admitted solely because of race? In other words, these students would not have been admitted taking into account leadership and family, education and socioeconomic background and hardship and everything else.

Mr. Rein asserted that the holistic review using race as a factor produced only a marginal increase in diversity.  When Justice Sotomayor disputed this point pointing out to a larger rate of admissions offers granted to minority students, Mr. Rein argued that the University of Texas has not fully measured the effect of using race as a factor.

Justice Sotomayor raised the concern that “If you’re reading proof a compelling need . . . will any holistic review ever survive? Because as I’m reading your answer, to narrowly tailor, schools have to use nonracial means of doing it.  And if the 10 percent plan is the only thing that achieves a greater number of minorities, won’t every school have to use a 10 percent plan?”

Justices Breyer and Ginsburg then questioned Mr. Rein on his views on how race could be used as a factor in the holistic approach.

JUSTICE BREYER: No, but that’s exactly the question, I think. I would ­­= I can put the same question ­­ or suppose we do send it back to the district court and, put in more evidence, we tell them. Suppose we did that. And suppose they start with the basic plan where we want to use race is in the 25 percent of the holistic area. We want to do that. Now, they’re using the chart ­­ and I’ve seen the chart ­­ of the factors that are one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve. You know, using that chart. I’ve seen the chart. And at the bottom of the chart in my list is the word “race.” It says “race,” r-a-­c-­e. Okay? What kind of evidence, in your opinion, could they or anyone else with any roughly similar plan put in that would show, in your view, that this is constitutional?

MR. REIN: Well, I mean, you have the example of Justice Powell’s opinion in Bakke. And that says that if you’re looking at the whole person and you’re comparing individuals one to another to say who will best suit the educational need of the class, then you take account of a person’s race. It’s part of the -­­ the exercise . . .

[. . .]

JUSTICE BREYER: What you’re saying is you should look at the two folders, and as a kind of tiebreaker, use race. That, to you, is okay. Now, is there ­­ you said there is several others? It would be helpful if you ­­ if you can summarize them in a sentence, so I get an idea of what the others are.

MR. REIN: You could ­­ you could give more emphasis to the socioeconomic factors in the school.

JUSTICE BREYER: That’s not to use race. I’m saying r-­a-­c-­e, race. I want to know which are the things they could do that, in your view, would be okay. Because I’m really trying to find out. Not fatal in fact, we’ve said. Okay? Not fatal in fact. Fine. What are the things, in your view, that they could do so it is not fatal in fact?

MR. REIN: And what I’ve said first is they could shape their system more toward the Bakke system, and move toward individualized consideration. That’s one thing. That’s not fatal in fact, because this Court endorsed the ­ the view that Justice Powell took of the Harvard system in Bakke. So that’s one. They could expand the top 10. That’s another alternative. That’s ­­ that’s available. They could,­­ as I said, they could re-score some of this ­­

JUSTICE GINSBURG: But the top 10, you said it doesn’t use race. Justice Breyer is asking, you say yes, race can be a factor. It was a factor in Bakke. It was a factor in Grutter. And so far, you’re saying that now it can be a factor only if what? I mean, we’re not talking about so­-called neutral factors. We’re talking about ­­-

MR. REIN: Well, I mean, the first question is, you know, why are you using it? The why. Therefore, it can be a factor. You have to clarify the objective, you have to show the necessity, and you have to show that, if you, as ­­ as they do, live with and accept, over time, a very small increment in a very small segment of the class, that you can’t get it done any other way . . . Because race is not the baseline. It’s an odious classification. That’s where we differ.

As Mr. Rein’s time expired, Justice Ginsburg questioned what relief the plaintiff, Ms. Fisher, was seeking.  She pointed out that injunctive relief was not possible due to the fact that Ms. Fisher graduated from another institution already and that there was no class action.  Mr. Rein indicated that they would seek damages, including a refund of Ms. Fisher’s admission fees.

Oral Arguments by the University of Texas

Mr. Garre represented UT and opened his argument by summarizing that the record supports a need for the holistic plan, that the holistic policy has had a meaningful impact on diversity, and that the policy did not adopt a quota.

Justice Alito questioned how many students were admitted with race as a factor who would not have otherwise been admitted.  He also raised concerns that requiring a holistic review raised stereotyping issues regarding minority students admitted under the top 10% policy.

JUSTICE ALITO: Well, on that point, can you determine which of the holistic admittees would not have been admitted if race was not added to the ­­ to the determination?

MR. GARRE: Okay. This goes to the meaningful impact point, and I think there are several ways to address it, Justice Alito. First, what you can do is you can look in the increase in African-­American and Hispanic holistic admissions after the consideration of race was added. And what you find is, is that in each year, 2005, 2006, 2007, the percentage of African­-American and Hispanics admitted and enrolled under the holistic plan grew. In fact, there was a 70 percent ­­-

JUSTICE ALITO: That’s not really my question. My question was if you look at an individual person, can you tell whether that person was admitted because ­­ solely because of race? Whether that person would not have been admitted were it not for the fact that the person was an African­-American or Hispanic?

MR. GARRE: Your Honor, I think, given the contextualized and individualized nature of that inquiry, that’s going to be difficult. But I think the record nevertheless answers your question because you can show a marked increase in diversity under the plan at issue. I just ­­ I’ve just explained to you how the record confirms that holistic admissions of African-­Americans and Hispanics increased markedly in each year. If you look at student body diversity overall, African­-American enrollment increased by two, doubled from 2002 to 2008 from about 3 percent to about 6 percent.

JUSTICE ALITO: What ­­ one of the things I find troubling about your argument is the suggestion that there is something deficient about the African­-American students and the Hispanic students who are admitted under the top 10 percent plan. They’re not dynamic. They’re not leaders. They’re not change agents. And I don’t know what the basis for that is . . . It’s ­­ really it’s based on a terrible stereotyping that ­­. . . What is the basis for that? ­­

MR. GARRE: It’s exactly the opposite. This Court has said time and again that you can’t assume that minorities think alike just because they have the same skin color. What the University of Texas does is it considers ­ it takes into account the fact that people who come from different experiences, different backgrounds are going to have different contributions to the class. If you had the situation where all the out-of-­State admits or most of the out-­of­State admits were coming predominantly from western States, then the University of Texas and any university would try to get out-­of-­State admits from other parts of the country because it would want the ­­ both perspectives. . . What stereotyping, Your Honor, is saying, that just because you get a sufficient number of blacks or Hispanics under the 10 percent plan means that you can’t look at the class holistically and say, we’re not getting a variety of perspectives among African-­Americans or Hispanics.

JUSTICE ALITO: Yeah. But what is the basis for saying that? That’s what I don’t understand. It’s kind of the assumption that if the ­­- if a student -­ if a black student or a Hispanic student is admitted as part of the top 10 percent plan, it has to be because that student didn’t have to compete against very many whites and -­ and Asians. In -­­ in the high school class, it’s a really pernicious stereotype.

MR. GARRE: It’s ­­ it’s not a stereotype at all, Your Honor. It’s based on the undeniable fact about the manner in which the top 10 percent plan operates. The Top 10 Percent Law was enacted in response to Hopwood, and there’s nothing ­­ there’s no challenge to the law in this case that admits many well-­deserving students. But the fact is, is that -­­ that the way that the Top 10 Percent Law admits minority students is by admitting those students from the lower­performing, racially identifiable schools. And the way ­­ the reason we know that is because if you look at the bill analysis decided by Justice Ginsburg in her descent the last time we were here, that analysis specifically says on page 4, “Because of the persistence of segregation in this State, minority students will be admitted under the top 10 percent plan.”

JUSTICE ALITO: I don’t doubt that that is one of the things that it does, and I would have thought that that would be something that you would regard as beneficial . . . Wasn’t that the ­­- the reason for adopting affirmative action in the first place because there are people who have been severely disadvantaged through discrimination and ­­ and lack of wealth, and they should be given a benefit in admission . . .­ but that’s one -­­ one of the things that it does, but it’s not the only thing that it does.

MR. GARRE: Your Honor, the University of Texas applauds those students. It wants those students. Those students are admitted through holistic review as well. Nevertheless, the University can look at an incoming class and determine that not all the perspectives among a particular class of students is being represented. This is straight out of the Harvard plan in Bakke.

In defending the need for the policy, Mr. Garre pointed out that UT was pursuing educational benefits of diversity that have been recognized by the Supreme Court.  UT also noted that the top-10 percent plan was compromising its educational objectives.  Additionally, UT found that there was a decrease in student body diversity under race-neutral policies and that it therefore needed to change its policies to improve diversity.  Mr. Garre noted that in reviewing the policy, UT looks to “classroom diversity.  We look at feedback from students; from faculty . . .the racial climate, including incidents.”

Chief Justice Roberts pointed out that the Court in Grutter opined that the type of policies at issue would only be needed for the next 25 years, but that 12 years had already passed since the Court’s decision.  He asked Mr. Garre when UT would no longer need such policies:

CHIEF JUSTICE ROBERTS: Well, you’re talking about the time ­­ Grutter said that we did not expect these sort of programs to be around in 25 years, and that was 12 -­­ 12 years ago. Are ­­ are we going to hit the deadline? Is this going to be done on in your view in 12 years?

MR. GARRE: Your Honor, I’m not here to give you a date, but what I would say is this: There are systematic problems that these problems ­­ that these policies are attempting to address, including the test score gap between ­­ between African­Americans and Hispanics. And ­­ and the record in this case overwhelmingly shows that without the addition of race, student body diversity suffered, particularly among
African-­Americans.

CHIEF JUSTICE ROBERTS: I understand. I don’t know whether that’s a yes or no. But it was important in the Grutter court that these were a temporary ­­ as necessary, temporary expedience because we’re talking about giving you the extraordinary power to consider race in making important decisions. And we don’t do that as a matter of ­­. . .­ course. And so it was important in Grutter to say, look, this can’t go on forever, 25 years. And when do you think your program will be done?

MR. GARRE: Your Honor, as soon as we ­­- we can achieve the same ­­ sufficient numbers for the educational benefits of diversity without taking race into account, we will no longer take race into account.

In further advancing his argument for the need to use race as a factor, Mr. Garre pointed out to the small number of African-American students enrolled under a race-neutral approach.  He also noted evidence then that “90 percent of our classrooms of the most common size was zero or one African-American.”  Chief Justice Roberts, however, interjected, questioning the value of racial diversity in a physics class. Justice Scalia asserted that the Court has not accepted the need for diversity in a class-by-class basis.

Justice Kennedy returned to the possibility of remand to the district court and asked what evidence UT would have submitted to supplement the record.  Mr. Garre suggested they would have put in additional evidence regarding standing and could also supplement the record as to how those admitted through the holistic approach contributed meaningfully to the student body.  Ultimately, Justice Kennedy suggested that “if you had a remand, you would not have put in much different or much more evidence than we have in the record right now.”  Mr. Garre disputed this characterization and pointed out that the record was only based on the motion for summary judgment and did not include a full trial.

Justice Scalia asserted that diversity may not serve minority students well:

JUSTICE SCALIA: There are – there are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less slower-track school where they do well.  One of the briefs pointed out that – that most of the black scientists in this country don’t come from schools like the University of Texas . . . They come from lesser schools where they do not feel that they’re that – they’re being pushed ahead in – in classes that are too fast for them.  I’m just not impressed by the fact that the University of Texas may have fewer.  Maybe it ought to have fewer.  And maybe some – you now, when you take more, the number of blacks, really competent blacks admitted to lesser schools, turns out to be less.  And – and I- I don’t think it – it stands to reason that it’s a a good thing for the University of Texas to admit as many blacks as possible.  I just don’t think –

MR. GARRE:  This Court heard and rejected that argument, with respect, Justice Scalia, in the Grutter case . . . If you look at the academic performance of holistic minority admits versus the top 10 percent admits, over time, they fare better.  And, frankly, I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools.  I think what experience shows, at Texas, California and Michigan, is that now is not the time and this is not the case to roll back student body diversity in America.

Oral Arguments by Amicus Curiae the United States of America

Solicitor General Verrilli argued on behalf of the United States and pointed to a compelling interest in improving diversity. He noted that “the University has got to articulate a reasoned, principled explanation for its decision to consider the educational benefits of diversity in a matter that this Court has found to be constitutional and substantial.  The University of Texas has met that standard, has articulated exactly the same educational benefits of diversity at exactly the same level of specificity that this Court held constituted a compelling interest in the Grutter case at page 330.  It’s exactly the same.”

Justice Breyer asked whether sending the case back for more evidence for the record might be beneficial.  General Verrilli responded that the record seemed complete for the purpose of affirming the case, but that “if there is doubt, I do think the additional kind of information that might be developed in this case would be to look at the kinds of questions that the Chief Justice was actually asking about, how did the  – how has the program worked in practice over the period of time in which it’s been implemented.  And I think that would be additional relevant information that might help make the judgment.”

General Verrilli also asserted the importance of diversity because

our military leaders believe that it is imperative that we have officer corps that are not only diverse but capable of leading a diverse military, not only for effectiveness but for the very legitimacy of sending our troops in harm’s way.

[ . . . ]

The interest in having law enforcement officers who are not just diverse but who can operate effectively within every racial and ethnic community in highly charged situations is critically important.

Corporate America has told you that having a workforce that is able to function effectively in diverse situations is critical.

And what I would just say in conclusion is that these are the considered judgments of people who actually have the responsibility to ensure that the vital functions of the government protecting the country with the military and with law enforcement and the vital functions of commerce — these are the people who actually have to make sure that these functions are carried out. And this is their considered judgment, and I submit it’s – it’s worth considerable weight in your analysis.

What’s Next?

With Justice Kagan recusing herself, only eight justices will decide the case.  Based on prior opinions, concurrences and dissents, it appears clear that Justices Scalia and Thomas would not uphold the University of Texas’ admission policy with Justices Ginsburg, Breyer and Sotomayor would.  While it can be difficult to predict the actual outcomes of the case, it does not appear that Justice Alito was particularly sympathetic to the University of Texas, leaving Justices Roberts and Kennedy.

Aside from a majority ruling either way, If the Court splits 4-4, the Fifth Circuit’s ruling will stand.  Additionally, the Court could remand the case once again, this time back to the District Court level in order to develop a more complete record.  It seems that there could be some support for this approach from Justices Breyer and Kennedy.

The Court is expected to rule before it concludes its 2015-2016 term in June, though an opinion could be released sooner.

 

ARL and Higher Education Support Lingua Editors

On November 12, 2015, ARL, together with The American Association of State Colleges and Universities (AASCU), the American Council on Education (ACE), the Canadian Association of Research Libraries (CARL), the Confederation of Open Access Repositories (COAR), EDUCAUSE, and the Scholarly Publishing and Academic Resources Coalition (SPARC) wrote in support of the editors of the Elsevier journal Lingua who resigned en masse on October 27, 2015.  Lingua’s editors cited the journal’s price increases that outpaced costs of production and Elsevier’s refusal to transition the journal to an open access model as reasons for their resignation.  The editors announced a plan to launch an open access journal and, as the letter notes, “The actions of the Lingua editors reflect the underlying values of scholarship that knowledge should be shared as widely as possible for the benefit of research and society.”

 

The letter continues:

As organizations committed to the principle that access to information advances discovery, accelerates innovation, and improves education, we share the significant concerns raised by the Lingua editors and we support sustainable open access models. Furthermore, research is becoming increasingly international and we must develop a system that fosters global participation, regardless of geographical location or size of institution. To that end, we strongly support the Lingua editors’ decision to pursue an alternative solution, which will better serve the needs and values of higher education and the public that sustains it.

[. . .]

We firmly believe that the higher education and research communities need to collectively advance alternative models of scholarly publishing that are fair, sustainable, and transparent.

 

For more information, see “ARL, Higher Education Groups Support Lingua Editors, Open Access” on the ARL website.

New FCC Open Internet Order Incorporates Proposals Made in Filings by Libraries and Higher Education

On Thursday, February 26, 2015 the FCC adopted its Open Internet Order, ensuring that Internet providers cannot create “fast lanes” and “slow lanes” by reclassifying broadband under Title II of the Communications Act while also relying on the FCC’s authority under Section 706 of the Telecommunications Act. Relying on both sources of legal authority strengthens the ability of the FCC to protect net neutrality. As noted, in ARL’s February 26th press release, the fact sheet released by the FCC when it voted in favor of the new Order, indicated that the Commission had incorporated many of the joint principles filed by libraries and higher education organizations.

The FCC has now released the text of its Report and Order which explicitly recognizes the role of libraries and institutions of higher education, including several citations and references to comments ARL filed with other library and higher education associations in July and September of 2014. The FCC’s final order represents improvements over the initial proposed rules. ARL applauds the FCC’s decision to strongly protect the open Internet and its responsiveness to the concerns of libraries and higher education.

In its report, the FCC notes the importance of net neutrality, including for specific communities:

Open Internet rules benefit investors, innovators, and end users by providing more certainty to each regarding broadband providers’ behavior, and helping to ensure the market is conducive to optimal use of the Internet. Open Internet rules are also critical for ensuring that people living and working in rural areas can take advantage of the substantial benefits that the open Internet has to offer. In minority communities where many individuals’ only Internet connection may be through a mobile device, robust open Internet rules help make sure these communities are not negatively impacted by harmful broadband provider conduct. Such rules additionally provide essential safeguards to ensure that the Internet flourishes as a platform for education and research.

The FCC’s new rules provide for bright-line rules that prohibit blocking, throttling and paid prioritization. The Order and Report explains:

105. No-Blocking. First, we adopt a bright-line rule prohibiting broadband providers from blocking lawful content, applications, services, or non-harmful devices. This “no-blocking” principle has long been a cornerstone of the Commission’s policies. While first applied in the Internet context as part of the Commission’s Internet Policy Statement, the no-blocking concept dates back to the Commission’s protection of end users’ rights to attach lawful, non-harmful devices to communications networks.

106. No-Throttling. Second, we adopt a separate bright-line rule prohibiting broadband providers from impairing or degrading lawful Internet traffic on the basis of content, application, service, or use of non-harmful device. This conduct was prohibited under the commentary to the no-blocking rule adopted in the 2010 Open Internet Order. 241 However, to emphasize the importance of this concept we delineate under a separate rule a ban on impairment or degradation, to prevent broadband providers from engaging in behavior other than blocking that negatively impacts consumers’ use of content, applications, services, and devices.

107. No Paid Prioritization. Third, we respond to the deluge of public comment expressing deep concern about paid prioritization. Under the rule we adopt today, the Commission will ban all paid prioritization subject to a narrow waiver process.

The waiver process involves a “rare circumstance” where the “broadband provider can convincingly show that its practice would affirmatively benefit the open Internet.”

The FCC report and order notes the problem of paid prioritization, including that it will “introduce artificial barriers to entry, distort the market, harm competition, harm consumers.” In its discussion of paid prioritization, the FCC cites the comments filed by libraries and higher education in July 2014 which pointed out that “it is likely that those who are able to pay for preferential treatment will pass along their costs to their consumers and/or subscribers. In some cases, libraries and other public institutions may be among these subscribers who would then be forced to pay more for services they may broker on behalf of their patrons.”

Although Chairman Wheeler initially proposed using a “commercially reasonable” standard in assessing the conduct of broadband providers, library and higher education groups expressed concerns that this standard might not adequately protect the open character of the Internet. The final report and order reveals that the FCC has clearly listened to these concerns and instead adopts a standard that prohibits unreasonable interference with an end user’s ability to access lawful content or an edge provider’s ability to make such content available. The FCC states, “Based on the record before us, we are persuaded that adopting a legal standard prohibiting commercially unreasonable practices is not the most effective or appropriate approach for protecting and promoting an open Internet.” Rather than adopting a “commercially reasonable standard,” the FCC

adopt[s] this standard to prohibit practices in the broadband Internet access provider’s network that harm Internet openness, similar to the approach proposed by the Higher Education coalition and the Center for Democracy and Technology. Specifically, we require that:

Any person engaged in the provision of broadband Internet access service, insofar as such person is so engaged, shall not unreasonably interfere with or unreasonably disadvantage (i) end users’ ability to select, access, and use broadband Internet access service or the lawful Internet content, applications, services, or devices of their choice, or (ii) edge providers’ ability to make lawful content, applications, services, or devices available to end users. Reasonable network management shall not be considered a violation of this rule.

The FCC’s order also ensures that libraries and higher education institutions are protected under the net neutrality rules. While the definition of “mass market” remains the same as defined under the 2010 Open Internet Order (“a service marketed and sold on a standardized basis to residential customers, small businesses and other end-user customers such as schools and libraries”), the FCC recognizes the potential ambiguity in the definition. The order continues:

To be clear, ‘mass market’ includes broadband Internet access services purchased with support of the E-rate and Rural Healthcare programs, as well as any broadband Internet access service offered using networks supported by the Connect America Fund (CAF). To the extent that institutions of higher learning purchase mass market services, those institutions would be included within the scope of the schools and libraries portion of our definition.

Additionally, the Chairman’s initial proposal included “the creation of an ombudsperson to act as a watchdog to represent the interests of consumers, start-ups and small businesses.” The comments filed by libraries and higher education asked for these groups to be included in this list of interests. The FCC’s final order does this by allowing complaints by “individuals and organizations,” rather than seeming to limit access to start-ups and small businesses.

As with the FCC’s 2010 Open Internet Order, it is likely that challenges will be brought against the 2015 Order. ARL will continue to monitor these issues and work to ensure that the open character of the Internet is preserved.

 

Library and Higher Education Organizations File Net Neutrality Comments with the FCC

On July 18, 2014, ARL, together with ten other library and higher education groups filed comments with the FCC on net neutrality. These comments largely expand on the points made in the Net Neutrality Principles jointly filed by library and higher education groups on July 10, 2014, going into greater detail and making specific suggestions to strengthen the proposals made in the FCC’s Notice of Proposed Rulemaking.

Importance of Net Neutrality for Libraries and Higher Education

The comments point out that library and higher education organizations depend on the open Internet, or net neutrality, to carry out their missions and ensure the protection of freedom of speech, education achievement and economic growth. It notes that the essential character of the Internet is an open platform, promoting “the open exchange of information, intellectual discourse, research, free speech, technological creativity, innovation and learning.” The comments recommend that the FCC’s final order recognize the value of net neutrality for education, research and freedom of speech.

Specifically, the comments note that public libraries provide Internet access to their patrons, a particularly necessary service for the approximately one-third of the population that do not have broadband access at home but rely on such access for homework assignments, to locate e-government services, find health information, apply for jobs, share digital content and other activities. Higher education institutions make Internet access available to their students, faculty, researchers and administration. Many students today are also involved in distance learning—including MOOCs—or hybrid courses and therefore depend on the availability of high-bandwidth Internet access. Degradation of Internet transmission speeds would detrimentally impact these populations and activities.

The comments also provide seven specific examples of projects and services by libraries and higher education institutions that provide important access to information and culture but depend on net neutrality to disseminate. Three of these examples include:

  • The National Library of Medicine (NLM), the world’s largest medical library, provides a vast amount of information-based services, ranging from video tutorials to downloads of large genomic datasets. NLM provides valuable information and data to the public amounting to trillions of bytes each day disseminated to millions of users. Without rules to protect the open Internet, NLM’s ability to provide access to this important information would be jeopardized.
  • Columbia University created the 9/11 Oral History Project, focusing on the aftermath of the destruction of the World Trade Center. The Project includes over 900 recorded hours on digital media. More than half of the collection is open and available to the public, and the entire archive will eventually be available for study and research. This content is currently used in New York City K-12 public schools.
  • After receiving over 2,500 boxes of records and documents and 12,000 promotional photographs from the New York World’s Fair of 1939 and 1940, the New York Public Library (NYPL) digitized the content and makes it available online. It provided the material in a free app that was later named one of Apple’s “Top Education Apps” of 2011 and is used in New York City K-12 public schools.

Specific Proposals to Strengthen the Proposed Rules

The joint comments lay out several specific proposals to strengthen those proposed rules published in the FCC’s NPRM. The FCC could strengthen the rules and address the concerns of libraries and higher education by:

  • Clarifying the definition of end-user customers to ensure that libraries, institutions of higher education and other public interest organizations are covered.
  • Prohibiting paid prioritization, which would divide the Internet into “fast lanes” and “slow lanes.” The comments note that libraries and institutions of higher education may not be able to afford the additional fees to use the “fast lanes.”
  • Clearly stating that the FCC’s net neutrality rules apply to public broadband providers and not to private networks, such as those provided by many colleges and universities (which provide private end user networks that are not available to the general public), or end users.
  • Applying the rules in a technology-neutral manner applicable equally to fixed and mobile services. Internet users are increasingly dependent on mobile devices, and often switch between fixed and mobile services.
  • Clarifying disclosure rules to ensure that information regarding data caps and bandwidth speeds are displayed prominently and clearly to consumers and edge providers.
  • Establishing a firm “no blocking” rule to bar providers from interfering with the consumer’s choice of content, application or services. The comments express concerns with the FCC’s proposal to include a definition of a “minimum level of access” or “minimum level of service,” and instead recommends that a no-blocking rule prohibit a provider from blocking access to any lawful website, application or service chosen by the end user, subject to reasonable network management. This rule is governed by the choice made by the end user and therefore would not implicate concerns regarding broadband providers being regulated as common carriers.
  • Authorizing the proposed enforcement ombudsperson “watchdog” to advocate for the interests of libraries, colleges and universities, in addition to consumers, start-ups and small businesses.

Legal Basis for the FCC’s Actions

The comments clearly note that if the FCC reclassifies broadband Internet service as a Title II “common carrier” service, it would provide valuable certainty in the market place and ensure that the goal of prohibiting discrimination. However, if the FCC chooses not to reclassify and use its Title II authority, it may act under its Section 706 authority.

The comments recommend, however, that should the FCC exercise its Section 706 authority rather than choosing to reclassify broadband Internet services, the agency should use an “Internet reasonable” standard rather than a “commercially reasonable” standard because “a ‘commercially reasonable’ approach could be interpreted to allow any broadband and edge provider to reach a contract to provide “paid prioritization”. If the two companies reach an agreement that they mutually believe to be in their commercial interests, it might be found “commercially reasonable” even if it has the effect of degrading the Internet service used by other parties (such as higher education institutions and libraries) sharing the same network.”

The comments note that an “Internet reasonable” standard would recognize the Internet’s unique character and propose four rebuttable presumptions that the FCC could use to evaluate the reasonableness of an Internet provider’s actions. The following four activities should be considered presumptively unreasonable: 1) requiring approval to carry lawful content, applications or services; 2) allowing paid prioritization; 3) undermining the open architecture of the Internet; and 4) degrading the level of service provided and discouraging investment in greater bandwidth to a non-prioritized party.

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