Supreme Court Previews

The previews are contributed by the Legal Information agreement to participate in the YOP on Dollar General’s behalf, Dollar General implicitly Institute, a nonprofit activity of Cornell Law School. consented to the jurisdiction of the tribe The previews include an in-depth look at two cases with respect to matters associated with this plus executive summaries of other cases before the relationship. Since Doe’s tort claims “arose directly from this consensual relationship,” Supreme Court. The executive summaries include a the court held that the required sufficient link to the full text of the preview. nexus between the consensual relationship and exertion of tribal authority was satisfied. Dollar General Corp., et Townsend in Choctaw Tribal Court. Doe Dollar General appealed and asserted that alleged that Dolgencorp is vicariously liable the district court erred in its legal determina- al. v. The Mississippi Band for Townsend’s actions, and that Dolgencorp tion that the company satisfied the consensu- of Choctaw Indians, et al. negligently hired, trained, or supervised al relationship exception. A divided panel of (13-1496) Townsend. Doe alleged that the assault the Fifth Circuit affirmed the district court’s Oral argument: Dec. 7, 2015 caused him severe mental trauma, and he judgment. The appeals court denied Dollar Court below: U.S. Court of Appeals for the Fifth Circuit sought $2.5 million in damages. Dollar Gen- General’s request for rehearing en banc. The eral and Townsend moved to dismiss Doe’s Supreme Court then granted certiorari. Issue claims for lack of subject-matter jurisdiction, Does an Indian tribal court have jurisdiction but the tribal court denied both motions. Discussion to adjudicate civil tort claims against non- They successfully petitioned the Choctaw The Supreme Court’s resolution of this case members of the tribe, including nonmembers Supreme Court for interlocutory review of may affect the scope of tribal sovereignty who enter into a consensual relationship the lower court’s denial of the motions to dis- and the economic relationships between with the tribe or its members? miss. That court held that the lower court’s tribes and nonmembers. Dollar General exercise of subject-matter jurisdiction was maintains that without the defendant’s un- Question as Framed for the Court proper, dismissed the appeal, and remanded ambiguous consent or congressional autho- by the Parties the case. rization, tribal courts lack jurisdiction over Whether Indian tribal courts have jurisdic- In 2008, Dollar General and Townsend nonmembers. The Choctaws counter that tion to adjudicate civil tort claims against filed suit in the District Court for the the ability to exercise adjudicative authority nonmembers, including as a means of regu- Southern District of Mississippi against the over nonmembers who have implicitly or ex- lating the conduct of nonmembers who enter Mississippi Band of Choctaw Indians, the plicitly consented to jurisdiction is essential into consensual relationships with a tribe or Tribal Court, Tribal Court Judge Christo- to the Indians’ right to govern themselves. its members. pher A. Collins, and John Doe (collectively, Choctaws). Dollar General and Townsend TRIBAL SOVEREIGNTY Facts alleged that the tribal court lacked jurisdic- Amici in support of Dollar General believe Petitioners Dollar General Corp. and Dol- tion to adjudicate Doe’s claims, and each that tribes can retain sovereignty sufficient to gencorp LLC (collectively, Dollar General) filed a motion for a temporary restraining govern their internal affairs without asserting operate a store on the Choctaw reservation order and preliminary injunction. The jurisdiction over nonmembers who have not in Mississippi, pursuant to a lease agreement district court granted Townsend’s motion, expressed clear and unequivocal consent. and a business license with the tribe. The holding that the tribal courts had no juris- The Association of American Railroads tribe operates the Youth Opportunity Pro- diction over him because he did not have a asserts that the great variation in tribal courts gram (YOP), a job-training program aimed at sufficient consensual relationship with Doe and their legal systems, and the absence of placing young tribe members in short-term or the tribe. The district court denied Dollar federal review of federal questions arising positions with local businesses for educa- General’s motion, however, holding that the from tribal court determinations, could tional purposes. In 2003, Dale Townsend, the company implicitly consented to the tribe’s deprive nonmember litigants of their federally store manager, agreed to participate in the jurisdiction when it agreed to provide a protected civil rights. Additionally, Oklahoma YOP. Respondent John Doe, a 13-year-old position for Doe at its store. and other states (Oklahoma) assert that tribal tribe member, was assigned to work at the Dollar General and the Choctaws then courts do not offer nonmember litigants the Dollar General store. Doe alleges that, during filed cross motions for summary judgment. same “jurisprudential certainty” that they his placement there, Townsend sexually The district court granted the Choctaws’ mo- would have in state or federal courts. molested him. tion but denied Dollar General’s motion. The Amici in support of the Choctaws con- In 2005, Doe sued Dollar General and court found that, as a result of Townsend’s tend that Dollar General’s narrow reading

68 • THE FEDERAL LAWYER • April 2016 of the consensual relationship exception Analysis Dollar General and the Choctaws. Second, would severely constrain tribal sovereignty. Dollar General asserts that Indian tribal the company argues that it could not have The Puyallup Tribe of Indians, joined by courts should not have the authority to given implied consent, because in order for other tribes and tribal courts, contend that decide civil tort claims against nonmembers, a nonmember to do so she must have clear supporting tribal courts is an essential part even if there is a consensual relationship notice of what activities will subject her to of the modern federal policy of tribal self-de- between the tortfeasor and the tribe or its tribal authority, which Dollar General did termination. Mississippi and other states members. The Choctaws contend that tribal not have. Third, the company cites various (Mississippi) argue that a tribe’s ability to courts should have the authority to decide Supreme Court precedents to show that the regulate conduct of nonmembers who enter civil tort claims against nonmembers. The Court has not applied the first principle to into consensual relationships with a tribe parties disagree over the interpretation of tort law. Because of the lack of express or or its members is essential for that tribe to the principles that guide courts’ application implied consent, Dollar General argues that function as an interdependent sovereign. of the exceptions set forth in Montana the first principle favors the Court’s finding Additionally, the United States claims that v. United States. Their arguments focus against tribal-court jurisdiction. petitioners’ concerns about prejudice against on whether Dollar General consented to The Choctaws argue that express and im- nonmember litigants are without merit tribal-court authority, whether finding such plied consent existed in this case, and thus because many tribal courts are effective authority to hear tort claims will over- the first principle favors allowing civil tort institutions for administering justice. broaden the Montana category exception, liability within the firstMontana category. and whether the tribe’s inherent sovereign The tribe points to Dollar General’s rela- ECONOMIC RELATIONSHIPS authority authorizes tribal courts to hear tionship with the tribe and Doe and the fact Amici in support of Dollar General assert civil tort claims. that numerous oral and written agreements that expanding tribal court jurisdiction between the two parties existed. The Choc- will chill companies’ willingness to invest THE APPLICABILITY OF THE MONTANA taws posit that Doe’s participation in the in tribal communities. The South Dakota CATEGORIES YOP program is the exact type of consensual Bankers Association (SDBA) contends that Dollar General maintains that a tribe’s legis- agreement Montana contemplated. The broader interpretation of the consensual lative jurisdiction over nontribal members is tribe notes that implied consent would also relationship exception adds uncertainty to limited to the two categories the Supreme exist through Dollar General’s willing and litigation in tribal courts. This uncertainty Court articulated in Montana and that nei- voluntary participation in the YOP program. increases the risks of doing business with ther of these categories is applicable in this The tribe also points to the lease agreement tribes or tribal members, the SDBA asserts, case. The company contends that the Court’s entered into between the company and the which will lead to further economic hard- application of the firstMontana category tribe. The Choctaws posit that because the ships for those living on and near Indian is guided by three principles and that these lease agreement included choice-of-law and reservations. The Retail Litigation Center principles favor finding against tribal-court forum-selection provisions, Dollar General Inc. echoed these concerns, maintaining jurisdiction for a civil tort claim. In addition, consented to the tribal-court system. Thus, that a straightforward test of “clear and the company points out that the Choctaws the tribe argues that the first principle favors unequivocal express consent” will limit are not challenging this case under the sec- finding jurisdiction. needless litigation in both tribal and federal ond Montana category. courts over which system has jurisdiction. The Choctaws counter that Dollar Gener- PRINCIPLE TWO: THE FEAR OF OVER- Amici in support of the Choctaws al’s tort liability fits squarely within the first CONSTRUING THE CATEGORY counter that the express consent standard Montana category. Further, the tribe posits Dollar General posits that the Montana cat- proposed by Dollar General will adversely that the guiding principles of Montana will egories should be construed in a limiting way affect tribal communities and their ability result in the Court finding that tribal courts and not as shrinking or swallowing the rule to regulate their economies. The National have jurisdiction over civil torts. that “inherent sovereign powers of an Indian Congress of American Indians (NCAI) con- tribe do not extend to the activities of non- tends that a less stringent standard is need- PRINCIPLE ONE: THE REQUIREMENT OF members of the tribe.” The company points ed to protect against trespass and conduct EXPRESS CONSENT OR CONSENT BY ACTING out that the Supreme Court in Montana on tribal lands that harms tribal natural and Dollar General argues that the first principle, required that the firstMontana category cultural resources. Moreover, NCAI argues requiring that tribal “laws and regulations not swallow or shrink the above-mentioned that an express consent requirement would may be fairly imposed on nonmembers only rule. Dollar General argues that finding civil undermine the ability of tribes to exercise if the nonmember has consented either tort liability in this case will result in the their regulatory powers over nonmem- expressly or by his actions,” should be con- above category swallowing the rule. The bers permitted on tribal land. Tribes often strued narrowly, and requires the nonmem- company contends that because tort law impose licensing or taxation requirements ber’s unequivocal consent. The company applies to a large range of conduct, allowing on such nonmembers, but NCAI maintains contends that merely doing business on tribes to impose tort-law liability would allow that an express consent requirement would Choctaw land does not give the required, for tribal regulation of nearly all activities. provide a perverse incentive for nonmem- heightened level of commensurate consent. Out of fear of over-construing the Montana bers to “withhold consent” by engaging First, Dollar General argues that there is no category, Dollar General posits that tribal in the regulated activity without a license express consent because there is no signed courts should not have jurisdiction over civil or permit. contract or similar express consent between tort claims.

April 2016 • THE FEDERAL LAWYER • 69 The Choctaws argue that the Montana respect to the application of the Montana socioeconomic status, and race. Ultimately, category would not be over-broadened by categories. This ruling will affect the scope of UT denied Fisher admission because her PAI allowing tribal courts to hear tort claims. tribal sovereignty and the economic relation- scores “were too low … [for] her preferred Instead, the tribe asserts that tort law is no ships between tribes and nonmembers. Full academic programs.” Fisher would not have different from other forms of tribal regula- text available at www.law.cornell.edu/supct/ received a seat in the 2008 class with a per- tion and that because tribal courts have ju- cert/13-1496.  fect PAI score, regardless of race. risdiction over tribal regulation, a tribal court Fisher filed suit for injunctive relief should have jurisdiction over a tort claim. Prepared by Nicole Greenstein and Gerard and damages in the District Court for the The Choctaws argue that whether tort law is Salvatore. Edited by Allison Hoppe. Western District of Texas, alleging that UT’s pervasive is irrelevant because nonmembers use of racial preferences in its admissions will not be subjected to all of tribal tort law process violated the Equal Protection Clause but only to the extent that the Montana Fisher v. University of of the Fourteenth Amendment and Title VI categories would allow—in instances with of the Civil Rights Act of 1964. UT defended the required nexus and an event that trig- Texas at Austin, et al. its use of race as a “narrowly tailored means gers the tribe’s inherent sovereign authority. (14-981) of pursuing” its compelling interest in “racial Thus, the tribe argues that tort law would Oral Argument: Dec. 9, 2015 diversity.” UT argued that it had not attained not over-construe the Montana category. Court Below: U.S. Court of Appeals for the Fifth Circuit a “critical mass” of underrepresented mi- norities. PRINCIPLE THREE: DOES THE TRIBE’S Issue The district court granted UT’s motion INHERENT AUTHORITY STEM FROM ITS Does the University of Texas at Austin’s for summary judgment. The Fifth Circuit “INHERENT SOVEREIGN AUTHORITY TO SET use of racial preferences in its admissions affirmed. The appeals court recognized that CONDITIONS ON ENTRY, PRESERVE TRIBAL process violate the Equal Protection Clause a university’s use of race as a differentiating SELF-GOVERNMENT, OR CONTROL INTERNAL of the Fourteenth Amendment? factor in its admission program is normally RELATIONS?” given strict scrutiny. However, the appeals Dollar General posits that imposing tort-law Question as Framed for the Court court applied a deferential standard, which liability on nearly everything a corpora- by the Parties limited its review to whether UT’s “decision tion does on tribal land extends the tribes’ Can the Fifth Circuit’s re-endorsement to reintroduce race as a factor in admissions inherent sovereign authority beyond what it of the University of Texas at Austin’s use was made in good faith.” The court deferred is needed to satisfy the third principle. The of racial preferences in undergraduate to UT’s good-faith determination that it company recognizes that tribes may want admissions decisions be sustained under lacked a critical mass of minorities. to govern nonmember conduct, but argues this Court’s decisions interpreting the The Supreme Court vacated and remand- that tribes have always been expected to Equal Protection Clause of the Fourteenth ed the Fifth Circuit’s decision, instructing turn to state and federal law when governing Amendment, including Fisher v. Universi- the appeals court to use strict scrutiny to de- nonmembers. Thus, Dollar General asserts ty of Texas at Austin? termine whether summary judgment for UT that the third principle favors the Court’s was appropriate. The Court advised the Fifth finding that the tribal court does not have Facts Circuit to determine whether UT used a nar- the authority to hear the civil tort case. Abigail Fisher applied for admission to the rowly tailored means of achieving diversity. The Choctaws contend that tribal fall 2008 class of the University of Texas at On remand, the Fifth Circuit affirmed jurisdiction over the tort claim arises from Austin (UT). UT’s admissions scheme in- the grant of summary judgment to UT, the tribe’s inherent sovereign authority to cluded three paths for accepting applicants. holding that UT’s consideration of race in its govern its territory, and that conduct on First, through its Top Ten Percent Plan, UT admissions process was narrowly tailored to tribe-owned land implicates a tribe’s inher- admitted any Texas students that graduated achieving its compelling interest of culti- ent sovereign interest. Therefore, because in the top 10 percent of their high school vating a diverse student body. The appeals the alleged sexual assault occurred on tribal classes. Second, UT admitted applicants court denied rehearing en banc, and the land, the tribe asserts that the incident im- with “exceptionally high Academic Index Supreme Court granted certiorari. plicates the tribe’s sovereign authority. Thus, (AI) score[s],” which were calculated using the tribe argues that the third principle also standardized test scores, class rank, and high Discussion favors allowing tribal jurisdiction. school work. Third, students not admitted The Court’s decision may affect the de- under either of those programs were consid- mographics of universities and how they Conclusion ered in UT’s holistic review process, which consider race in admissions. Fisher argues The Supreme Court will decide whether In- evaluated applicants’ AI scores and Personal that UT’s interest in increasing racial diver- dian tribal courts have jurisdiction over civil Achievement Index (PAI) scores. PAI scores sity is not a clearly articulated, compelling tort claims against nonmembers of the tribe, were calculated by combining the “weighted government interest, and that its admissions including those who enter into consensual average score” of the applicant’s admissions scheme is not narrowly tailored because a relationships with the tribe or its members. essays, with a score based on a review of the race-neutral approach can satisfy UT’s in- To resolve this issue, the Court will consid- student’s entire file, including extracurric- terest in diversity. UT argues that the Court er whether it finds Dollar General’s or the ular activities, leadership experience, com- has already held that a university’s interest Choctaws’ argument more persuasive with munity service, honors, work experience, in diversity is compelling, and UT’s admis-

70 • THE FEDERAL LAWYER • April 2016 sions scheme is narrowly tailored because admit minority students whose academic AERA concedes that “encouraging the race-neutral approaches are insufficient to credentials “put them toward the bottom admission of students from lower economic achieve its diversity interest. of the class.” USCCR contends that gaps classes may itself be a desirable end.” But emerge between these minority students AERA argues that race-neutral admissions DISCRIMINATORY EFFECT OF RACIAL- and their peers because students tend to schemes that focus on socio economic status PREFERENCE ADMISSIONS SCHEMES perform at the academic level “that their are not as effective as race-conscious admis- Some amici supporting Fisher argue that ra- entering credentials suggest.” USCCR sions schemes at increasing racial diversity. cial preferences, even if they are considered contends that these gaps disadvantage In fact, AERA argues that socio economic in a “holistic” manner, can still discriminate minority students. USCCR contends that admissions may reduce the number of against minorities. The Cato Institute (Cato) racial-preference beneficiaries are less likely minority students admitted. AERA cites a asserts that some schools, under the guise of to seek a graduate degree and become recent study finding the presence of mi- holistic review, “pool” applicants by personal college professors than underrepresented norities among low-income students would characteristics, such as race; applicants minorities who attend universities where be insufficient to create a level of minority “‘who are non-white U.S. citizens’ receive their entering academic credentials match representation close to its current level. special preference” but other applicants those of the median student at their school. must compete for a limited number of seats. However, the American Educational Analysis Cato contends that this process marginalizes Research Association (AERA), in support In Grutter v. Bollinger, 539 U. S. 306 other applicants, such as “low-income stu- of UT, contends that there is little research (2003), the Supreme Court held that uni- dents.” The Asian American Legal Founda- supporting the claim that entering academ- versity admissions policies that use racial tion and similar organizations (collectively, ic credential gaps harm minority students classifications must satisfy strict scrutiny AALF) argue that UT’s racial-preference ad- and that more recent and better-designed under the Fourteenth Amendment. To satis- missions scheme discriminates against Asian research contradicts the purported prob- fy strict scrutiny, universities must show that Americans. AALF notes that while the Fifth lems of mismatch. AERA cites “a national the classifications are a narrowly tailored Circuit found that Hispanics were insuffi- study focusing on minority students who means of furthering a compelling interest. ciently represented at UT, more Hispanics entered selective public institutions in In Fisher v. University of Texas at Austin, attend UT than Asian-Americans. AALF 1999,” which found that black male stu- 133 S. Ct. 2411, 2421 (2013) (Fisher I), the suggests that UT’s true goal in considering dents graduated at higher rates “than black Court remanded to the Fifth Circuit to apply race is not creating a diverse student body; students in the same GPA interval who the strict scrutiny standard; the Fifth Circuit rather, its goal is to match the demographics went to less selective institutions.” AERA affirmed its grant of summary judgment to of UT to the demographics of Texas. also cites a Texas-specific study, which UT in Fisher I. In support of UT, the American Jewish found that minority students who were Fisher argues that UT has not clearly ar- committee and others (collectively, the com- purportedly mismatched based on their ticulated a compelling interest and that UT’s mittee), argue that there is no evidence that credentials had higher graduation rates proposal is not narrowly tailored to achieve UT used its admissions scheme to limit or than students at “better matched” schools. its purported goal of intra-racial diversity. prevent admission of any racial group. The AERA concludes that minority students UT counters that its compelling interest is committee acknowledges that “some amici benefit educationally and economically the educational benefit of a diverse student argue … UT’s race-conscious admission pol- when they attend selective universities. body and that its holistic approach is nar- icy” discriminates against Asian-Americans rowly tailored to achieving that goal. in a manner similar to discrimination against ECONOMIC INEQUALITY AND Jewish students in the 1920s. But the com- SOCIOECONOMIC DIVERSITY SPECIFIC AND COMPELLING INTEREST mittee argues that UT did not award points Richard Kahlenberg, a senior fellow at the Fisher argues that UT failed to demonstrate to students from any particular racial group Century Foundation, argues in support of that its use of race in the admissions process and did not seek any specific percentage of neither party that colleges are ignoring socio- addressed clearly defined interests. She minority enrollment. In fact, the committee economic diversity in their pursuit of racial di- claims that, to satisfy the Equal Protection notes that 80 percent of UT’s class “is admit- versity. Kahlenberg explains that, in a study of Clause, the Court requires universities ted on class rank alone.” The Asian-Ameri- elite universities, being an underrepresented to “demonstrate with clarity that [their] can Legal Defense and Education Fund and minority increased an applicant’s admission purpose or interest is both constitutionally others acknowledge “longstanding racial chances by 27.7 percent, while being in the permissible and substantial, and that [their] discrimination against Asian Americans,” but bottom income quartile had no beneficial im- use of the classification is necessary … to contend that Asian Americans have varied pact. By ignoring socioeconomic background, the accomplishment of [their] purpose.” socio-economic backgrounds that are given Kahlenberg argues that universities are miss- According to Fisher, UT’s proposed inter- due weight in UT’s holistic approach. ing out on “a richer, more nuanced emphasis ests—(1) alignment of the university’s racial on socioeconomic alongside racial diversity.” demographics with Texas’ and (2) achieving THE EFFECT OF GAPS IN ENTERING Kahlenberg contends that race-neutral ad- “classroom diversity”—do not clearly explain ACADEMIC CREDENTIALS missions schemes that account for socioeco- what UT’s goal is or how and when UT will Members of the U.S. Commission on nomic diversity still create racial diversity, meet its goal. Accordingly, Fisher argues that Civil Rights (USCCR) assert that race- “because economic disadvantage is often the Court cannot give UT’s admissions policy preferential admissions lead universities to shaped by racial discrimination.” “meaningful review,” and thus the policy must

April 2016 • THE FEDERAL LAWYER • 71 be struck down. Fisher asserts that UT sug- Plan was sufficient to achieve the desired ARTICLE III STANDING gests that its interest is “intra-racial diversity.” diversity. If the Top Ten Percent Plan was UT argues that Fisher lacks standing to sue But Fisher contends that UT did not identify determined to be insufficient, Fisher claims for relief under Article III of the U.S. Con- the characteristics it is targeting to achieve that UT could have relied on other race-neu- stitution. But Fisher argues that the Court this interest. Fisher suggests that UT’s shift- tral alternatives to meet its goals, such as rejected UT’s standing arguments in Fisher I ing justifications indicate that its use of race removing socioeconomic status from PAI and thus does not need to address the argu- was illegitimate and motivated by “notions of calculation. ments again. Moreover, Fisher contends that racial inferiority or simple racial politics.” UT asserts that Fisher’s attempt to her claim for $100 in restitution is permis- UT contends that it has clearly and con- exclude the consideration of race as a sible, because it is based on the denial of an sistently stated its compelling interest. Rath- factor in admissions is inconsistent with the opportunity to have her application equally er than seek demographic parity or class- Court’s decisions. UT disagrees with Fisher’s considered. room diversity, UT argues that its policies contention that it is attempting to increase But UT argues that Fisher is unable to es- sought to achieve the educational benefits enrollment for affluent minorities. Instead, tablish “injury in fact,” an Article III require- of diversity, which the Court recognized as UT contends that it uses a holistic review to ment, because Fisher would not have been a legitimate compelling interest in Grutter. attract minorities from a variety of back- admitted to the class of 2008, regardless UT disagrees with Fisher’s assessment that it grounds, and that it encourages admission of race, considering her AI and PAI scores. has altered its proposal to combat litiga- of students who have overcome economic Even if Fisher could demonstrate that she tion. UT contends that its policies provide adversity. UT argues that, under Grutter and suffered injury as a result of UT’s policy, UT a holistic view of students and attempt to Regents of Univ. of Cal. v. Bakke, 438 U.S. contends that her requested relief—declar- counterbalance segregation by admitting 265, 299 (1978), it is permitted to consider atory and injunctive relief and repayment minority students who come from a variety race as part of a holistic review process, of her application fees—will not redress her of backgrounds and experiences. because the university made a good-faith injury. UT explains that Fisher already com- effort to use race-neutral alternatives. When pleted her degree at another university. NARROWLY TAILORED those alternatives proved insufficient, UT de- Fisher argues that UT’s admission policy is veloped a proposal to allow for “modest and Conclusion not narrowly tailored to achieve a compelling individualized” consideration of race. The Supreme Court will decide whether UT’s government interest. She asserts that UT’s UT argues that it considered many use of racial preferences is constitutional proposal relies on overbroad generalizations race-neutral alternatives, including using under the Court’s decisions interpreting and racial stereotypes that are not supported socioeconomic status as a proxy for race, the Equal Protection Clause of the Four- by evidence. For example, Fisher argues, the before adopting its current practice in 2004. teenth Amendment. Fisher argues that UT Fifth Circuit blindly accepted UT’s assump- Despite UT’s efforts to enroll minority stu- has failed to clearly articulate a compelling tion that minority students admitted through dents using these race-neutral alternatives, interest and that UT’s proposal is not nar- the Top Ten Percent Plan fail to satisfy UT’s UT saw a reduction in underrepresented rowly tailored to achieve its purported goal diversity interest, because those students minorities under its policy of race-blind of intra-racial diversity. UT counters that typically come from economically disadvan- holistic reviews. In particular, African-Amer- its interest in the benefits of racial diversity taged school districts in which a majority of ican enrollments were significantly under- is the same interest that the Court found students are racial minorities. She contends represented during the period leading up to compelling in Grutter and that its reliance that UT believes minority students from 2004, and UT determined that race-neutral on holistic review of individual students is predominately white, affluent schools offer alternatives were insufficient to achieve a narrowly tailored. The Court’s ruling may “distinct ways” to enrich diversity. Fisher diverse student body. Contrary to Fisher’s affect the admissions procedures and racial argues that UT’s attempts to admit more suggestion, UT asserts that it did not reach a demographics of universities. Full text affluent minorities runs contrary to the tra- “critical mass” of minority students by 2003, available at www.law.cornell.edu/supct/ ditional goal of race-conscious admissions, considering that in 2004, African-Ameri- cert/14-981.  which Fisher sees as providing opportunities can students were only 4.5 percent of UT’s “to minority students with limited access to freshman class. Fisher suggests that the Top Written by Samantha Ostrom and Kelsey education resources.” Fisher concludes that Ten Percent Plan was sufficient to achieve Ferguson. Edited by Cesar Sanchez. UT’s use of racial classifications does not UT’s goals, but UT claims the Court found create diversity but rather creates a student in Grutter that percentage plans do not body “with wealthy minority students [who] provide a workable alternative to holistic have the same experiences and viewpoints review of individual students. UT asserts as the majority of UT’s freshman class.” that Fisher cannot and does not suggest that Fisher contends that UT has failed to the Top Ten Percent Plan completely solves demonstrate that race-neutral alternatives UT’s diversity problems. UT argues that “no will not succeed in achieving its goals of selective university in America” chooses its increasing the number of minorities from entire student body “based solely on class affluent communities enrolled in the univer- rank … because such a one-dimensional sity. Specifically, Fisher argues that UT failed method… sacrifices … diversity in the broad to examine whether the Top Ten Percent sense recognized by this Court.”

72 • THE FEDERAL LAWYER • April 2016 Merrill Lynch, et al. v. Gobeille v. Liberty Franchise Tax Board of the Greg Manning, et al. Mutual Insurance State of California v. Hyatt (14-1132) Company (14-181) (14-1175) Oral argument: Dec. 1, 2015 Oral argument: Dec. 2, 2015 Oral argument: Dec. 7, 2015 Court below: U.S. Court of Appeals for the Third Circuit Court below: U.S. Court of Appeals for the Court below: Nevada Supreme Court Second Circuit In this case, the Supreme Court will decide The Supreme Court must determine the whether Section 27 of the Securities Ex- Vermont enacted legislation that created boundaries of Eleventh Amendment sover- change Act of 1934 (Exchange Act) provides a “unified health care database” designed eign immunity and comity as applied to a federal courts with exclusive jurisdiction to improve the affordability and quality of state that has been unwillingly brought into over state law claims based on violations of health care in Vermont by collecting and another state’s courts. The Franchise Tax the Exchange Act or whether state courts analyzing statewide data on insurance Board of the state of California (FTB) looks are permitted to hear such state law claims. claims. Liberty Mutual offers a health to reverse Nevada v. Hall by expanding Merrill Lynch argues that because Manning insurance benefit plan to Vermont residents; sovereign immunity to suits brought by pri- relies on Regulation SHO, a federal regula- the Employee Retirement Income Security vate citizens in other states or, alternatively, tion, and therefore federal courts have ex- Act of 1974 (ERISA) governs benefit plans. to find that Nevada violated principles of clusive jurisdiction under the Exchange Act. ERISA requires benefits plans to make claim full faith and credit, comity, and equality, On the other hand, Manning argues that, data reports to the Department of Labor, by treating the FTB differently than it because his claims are based on state law, and generally preempts any state laws that would a similar Nevada agency. Conversely, state courts have jurisdiction over this case, relate to an employee benefit plan. In August Hyatt argues that Nevada v. Hall must be even if some elements of his claim rely on 2011, the Vermont Department of Bank- upheld as a matter of stare decisis and that federal law. Ultimately, the Court’s decision ing, Insurance, Securities, and Health Care the privilege of comity does not require has the potential to affect whether uniformi- Administration (the department) subpoe- the forum state, in all circumstances, to ty in decision-making is necessary to enforce naed claims data from Blue Cross and Blue treat another state’s agency the same as Regulation SHO and whether state courts Shield of Massachusetts, the company that the forum state’s equivalent agency. The can govern duties arising under federal administers Liberty Mutual’s Plan. In district Supreme Court’s decision will determine regulations. Full text available at www.law. court, Liberty Mutual sought to enjoin the where states may be haled into court by a cornell.edu/supct/cert/14-1132  subpoena, arguing ERISA preempted Ver- private citizen and to what degree states mont’s reporting requirements. On appeal, can be civilly liable for violating the law. the Court of Appeals for the Second Circuit Full text available at www.law.cornell.edu/ Menominee Indian Tribe of held that ERISA did preempt the reporting supct/cert/14-1175  Wisconsin v. United States requirements. But Alfred Gobeille, chair of of America, et al. (14-510) the Vermont Green Mountain Care Board, Harris, et al. v. Arizona Oral argument: Dec. 1, 2015 maintains that ERISA does not preempt Ver- Court below: U.S. Court of Appeals for the D.C. Circuit mont’s law, because (1) Vermont’s law falls Independent Redistricting under the traditional state power to regulate Commission (14-232) The U.S. Supreme Court will decide whether health care, (2) the law does not infringe any Oral argument: Dec. 8, 2015 the D.C. Circuit misapplied the Court’s core function of ERISA, and (3) Congress Court below: U.S. District Court, District of Arizona decision in Holland v. Florida when the D.C. intended for states to retain the ability to Circuit ruled that the statute of limitations collect health care data. Liberty Mutual The Supreme Court will decide whether Ar- was not subject to equitable tolling for the counters, arguing that Vermont’s reporting izona’s redistricting plan violates the Equal Menominee Indian Tribe of Wisconsin’s (the requirements conflict with Congress’s intent Protection Clause of the Fourteenth Amend- tribe) 1996–98 claims for contract support to create a uniform federal reporting regime ment of the U.S. Constitution by diluting the costs. The tribe argues that despite the D.C. and thus constitute precisely the kind of voting power of its residents. The Court will Circuit’s interpretation of the Holland stan- state law that Congress intended ERISA to also consider whether Arizona must justify dard for equitable tolling as rigid and mechan- preempt. The Supreme Court’s resolution of deviations in population between districts, ical, the Holland standard should instead this case will impact the cost to consumers and what kind of justification Arizona may conform to the Federal Circuit standard, of purchasing health care, the quality of that properly raise. In 2000, Arizona voters ap- which is a comprehensive and unified analysis care, and the resources that the insurance proved a ballot initiative creating the Arizona that also follows the proper interpretation companies must spend on claims data Independent Redistricting Commission (the of Holland. In contrast, the United States reporting procedures. Full text available at commission), entrusted with redrawing argues that the elements within a comprehen- www.law.cornell.edu/supct/cert/14-181  the state’s legislative and congressional sive analysis do not provide an independent districts for future elections. In 2011–12, the basis for equitable tolling and that equitable commission created a new legislative map, tolling should not excuse the tribe’s miscal- which caused population deviation between culations and legal misunderstandings. Full districts. On April 27, 2012, appellant Wesley text available at www.law.cornell.edu/supct/ W. Harris and others brought suit against cert/14-510  the commission in the District of Arizona,

April 2016 • THE FEDERAL LAWYER • 73 challenging the new legislative map. Harris which states consider race or ethnicity in the tered Texas voter. Evenwel argues that the argues that the commission violates the redistricting process. Full text available at one-person, one-vote principle requires one-person, one-vote principle of the Equal www.law.cornell.edu/supct/cert/14-232  states to divide their districts so that they Protection Clause by drawing unequal dis- each comprise a substantially equal number tricts that dilute the voting power of citizens of eligible voters. Texas Gov. Greg Abbott depending on where they live. According to Evenwel, et al. v. Abbott, contends that the constitution does not Harris, neither advancing partisan goals nor et al. (14-940) require states to utilize any specific measure, obtaining preclearance under Section 5 of Oral argument: Dec. 8, 2015 and thus they are free to equalize districts the Voting Rights Act are legitimate reasons Court below: U.S. District Court, on the basis of total population. The Court’s Western District of Texas to draw voting districts of unequal popula- decision could affect the voting power of el- tion. The commission contends that where In this case, the Supreme Court will decide igible voters and the method and amount of the difference between the most densely whether the Fourteenth Amendment’s data collection states must engage in to con- and least densely populated districts is less “one-person, one-vote” principle requires stitutionally apportion voting districts. Full than ten percent, the commission does not states to apportion eligible voters equally text available at www.law.cornell.edu/supct/ need to justify why those districts were not across districts. The Texas Constitution cert/14-940  drawn to be precisely equal. Moreover, the requires that the state legislature reappor- commission argues that the deviations in tion its legislative districts after each federal population were the result of a good-faith decennial census. In 2013, Texas adopted effort to satisfy Section 5 preclearance. The a new redistricting plan (Plan S172). Texas Court’s decision will affect redistricting plans drew its senatorial districts based only on nationwide and could impact the way in total population. Sue Evenwel is a regis-

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74 • THE FEDERAL LAWYER • April 2016