Does Fisher Matter?

Does Fisher Matter?

December 05, 2012
Originally published in Point of Law

The recently-argued Supreme Court case of Fisher v. University of Texas has many people believing that the Court is likely to strike down the explicit use of racial preferences by governmental institutions in the name of "diversity." [MI podcast; earlier at POL; Cato event; Bader; SCOTUSblog]

But given the institutional support for racial preferences, it seems far from clear to me that even the broadest possible 5-4 Supreme Court decision in Fisher will be effective. . . .

Title VI of the Civil Rights Act doesn't permit disparate impact theories in litigation over education discrimination under Alexander v. Sandoval, 532 U.S. 275 (2001). But that hasn't prevented the Department of Education from threatening school boards with such theories, and many liberal school boards are happy to comply at the expense of student discipline. Similarly, we see complaints being brought against magnet schools that seem indistinguishable from "disparate impact" complaints; Thomas Jefferson High School in Fairfax is 26% white, less than the rest of the school district, but the NAACP has brought a suit complaining that the magnet school admits too many Asians and not enough non-Asian minorities, and appears to be getting federal assistance. And Hans Bader reports that Democratic senators are proposing legislation to undo the small fig-leaf of protection Alexander v. Sandoval provides.

Bader notes that Title VI does not currently permit punitive damages under Barnes v. Gorman, 536 U.S. 181 (2002). But as I've noted elsewhere, the absence of punitive damages is largely irrelevant in a world with uncapped non-economic damages. We see this in yesterday's case of Zeno v. Pine Plains Central School Dist. where, because somewhat above-run-of-the-mill bullying of a special-education student had a racial component (the school was almost entirely white, the plaintiff half-Latino, and the n-word was used), the plaintiff was able to obtain a $1 million judgment consisting of noneconomic damages. Who needs punitive damages when that's possible?