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Affirmative action at Harvard, border searches and pedestrian safety

Petitions of the week
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This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether Harvard’s use of race in college admissions violates a federal civil rights law, the extent to which officers may search a cell phone without a warrant at the border and the type of evidence Oklahoma City needs to support its restrictions on pedestrian activities in street medians.

The 14th Amendment’s equal protection clause prohibits state-sponsored racial classifications unless a classification is narrowly tailored to serve a compelling government interest, a test known as “strict scrutiny.” In 2003’s Grutter v. Bollinger, the Supreme Court ruled that the University of Michigan Law School’s use of racial preferences in admissions satisfied strict scrutiny. The ruling affirmed that public institutions of higher education could consider race as one factor in a holistic process in order to achieve a diverse student body. In the opinion in Grutter – as in an earlier decision, University of California Regents v. Bakke, which prohibited quotas – the Supreme Court discussed Harvard’s admissions policy and suggested that it exemplified a narrowly tailored, permissible use of race.

Harvard is now the defendant in the latest affirmative-action case to reach the court. In a petition filed on Thursday, a nonprofit group that opposes affirmative action, Students for Fair Admissions, asks the justices to consider overruling Grutter and evaluating whether Harvard’s admissions process violates Title VI of the Civil Rights Act. (Private universities like Harvard are not subject to the 14th Amendment, but Title VI applies the same test to private universities that receive federal funds, as Harvard does.) SFFA argues that Harvard’s race-conscious admissions policy is not narrowly tailored but overtly favors some groups and penalizes Asian Americans. SFFA also faults Harvard for not considering race-neutral alternatives that, it argues, would yield a diverse student body without using race. After a three-week trial, the district court upheld Harvard’s process. The U.S. Court of Appeals for the 1st Circuit affirmed. The case is Students for Fair Admissions Inc. v. President & Fellows of Harvard College.

In United States v. Cano, a customs officer found cocaine in Miguel Cano’s car during an inspection after Cano crossed the border from Mexico into the United States. Department of Homeland Security agents then searched through the call log and other digital data on Cano’s cell phone. The search of the car did not violate the Constitution under the border-search exception to the Fourth Amendment’s warrant requirement. However, the U.S. Court of Appeals for the 9th Circuit ruled that the DHS agents exceeded the border-search exception when they wrote down phone numbers from the call log and took photographs of two text messages. To the 9th Circuit, the exception does not justify gathering evidence of past or future border-related criminal activity. A petition from the acting solicitor general asks the justices to review this decision.

Oklahoma City has an ordinance that limits pedestrian activities on street medians. Calvin McCraw and other residents challenged the ordinance as restricting their First and 14th Amendment rights. After a trial that included expert testimony for the city on the dangers of medians to pedestrians, the district court upheld the ordinance as narrowly tailored to serve the government interest in pedestrian safety. The U.S. Court of Appeals for the 10th Circuit overturned that decision, suggesting that, among other points, the city’s safety concern was hypothetical because the city did not have evidence of a pedestrian being hit in a median. Arguing that the lower courts are split on the type of evidence that can support a pedestrian ordinance, the city asks for the justices’ review in Oklahoma City, Oklahoma v. McCraw.

These and other petitions of the week are below:

United States v. Cano
20-1043
Issue: Whether the U.S. Court of Appeals for the 9th Circuit erred in concluding that the scope of a search of an electronic device under the border-search exception to the Fourth Amendment’s warrant requirement is limited solely to digital contraband on the device itself, and cannot include evidence of physical smuggling or other border-related crimes.

Oklahoma City, Oklahoma v. McCraw
20-1049
Issues: (1) Whether the risk of death or serious bodily injury to a pedestrian sitting, standing or staying on a median in a street with a speed limit of 40 miles per hour or more constitutes a significant government interest in protecting the health and safety of pedestrians even though a pedestrian death has yet to occur; and (2) whether McCullen v. Coakley dictates that the government must, in all cases, present evidence that it actually tried and failed to utilize less burdensome alternatives, even when, considering the nature of the articulated safety interest and the scope of the ordinance, less burdensome alternatives do not exist.

Wolfe v. Virginia
20-1056
Issue: Whether a state court can avoid the federal constitutional issues raised by a vindictive prosecution claim, which challenges the state’s constitutional authority to convict and impose sentence, by applying a forfeiture rule that itself does not comply with constitutional due process.

Oracle America Inc. v. United States
20-1057
Issues: (1) Whether a bid protest that establishes a violation of federal law may be denied for “harmless error” based on a rationale not present in the administrative record; and (2) whether, in resolving a bid protest that establishes a violation of the criminal conflict-of-interest statute, the U.S. Court of Appeals for the Federal Circuit can enforce the contract based on deference to an agency’s assessment that the criminal violation did not taint the procurement.

Thompson v. DeWine
20-1072
Issue: Whether and how the First Amendment applies to regulations that impede a person’s ability to place an initiative on the ballot.

Students for Fair Admissions Inc. v. President & Fellows of Harvard College
[Pending]
Issues: (1) Whether the Supreme Court should overrule Grutter v. Bollinger and hold that institutions of higher education cannot use race as a factor in admissions; and (2) whether Harvard College is violating Title VI of the Civil Rights Act by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives.

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