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Page One
TheLitigatorMSLF Expands U.S. Supreme Court Knox Ruling
LAWYER UNION BARS SPEECH RIGHTS A Nebraska attorney filed a
lawsuit against the Nebraska State Bar Association in federal
district court in Lincoln charging that it violates his rights
under the Constitutions First and Fourteenth Amendments. With MSLF
as his attorney, Scott Lautenbaugh, Esq., an Omaha, Nebraska
attorney and a Nebraska State Senator, alleges that the
associations use of his annual membership dues for political and
ideological purposes constitutes government compelled-speech. The
Association is an integrated bar, which means membership is
mandatory for all attorneys practicing in Nebraska. Previously, Mr.
Lautenbaugh filed a petition with the Nebraska Supreme Court asking
that it de-integrate the bar, that is, make membership in the bar
voluntary; in July 2012, the court noticed the need for further
study and in September 2012 sought documents from the association.
Mr. Lautenbaughs lawsuit seeks to build on the U.S. Supreme Courts
June 2012 decision in Knox v. Service Employees International
Union, Local 1000. The Courts rulings on unions and First Amendment
rights apply equally to bar associations. Membership in the
Nebraska State Bar Association is mandatory for all attorneys who
practice law in the State. Members dues of $345 annually is used,
not only to regulate, discipline, and educate attorneys, but also
to support a Legislative Program, which includes the initiation,
support, opposition, or comment on legislative matters, at both
[state and local] levels. During
the last two years, for example, the Legislative Program has
lobbied on over 100 bills alone, including opposition to
legislation: expanding concealed carry permit rights, restricting
eminent domain, and eliminating statutes of
limitations for some felonies. Mr. Lautenbaugh believes,
because he is required to be a member of the
State Bar Association, the use of his dues for political and
ideological purposes constitutes government-
compelled speech and violates his First and Fourteenth Amendment
rights. Moreover, because the bar association requires him to opt
out of paying dues it uses for lobbying purposes, rather than
providing him the opportunity to opt in, it appears to violate
Knox. The Supreme Court held that the constitutional requirements
regarding unions also apply to bar associations, but the
applicability of other aspects of Knox to the Nebraska case remain
to be determined. Unlike other States, when a Nebraska member
opts-out of political expenditures, that portion of the dues is not
refunded but is used for other purposes. MSLF filed a friend of the
court brief in the Knox case in which it urged the Supreme Court to
consider whether only having the ability to opt-out of political
spending (rather than to opt-in) violates the First Amendment.
Because opting-out assumes that non-
Autumn 2012The Litigatoris published quarterly byMountain States
Legal Foundation, a nonprofit, public-interest legal
foundationdedicated to individual liberty, the right to own and use
property, limited and ethical government, and the free enterprise
system.
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members want to associate themselves with the unions advocacy,
it puts the burden of protecting free speech on the non-member.
Justice Alito, in an opinion that appears to be directed at
unions, held that opting-out can violate the First Amendment: Our
cases have tolerated a substantial impingement on First Amendment
rights by allowing unions
to impose an opt-out requirement at all. Justice Alito also
adopts MSLFs argument that balancing the rights of individuals with
those of unions is not the correct approach. Which side should bear
the risk [of a constitutional violation]? asks Justice Alito. The
answer is obvious: the side whose constitutional rights are not at
stake.
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Page Two
ASPEN UNCONSTITUTIONAL TAX NETS SUIT
DOUBLE YOUR MSLF GIFT! TELL THE BOSS
WEB PAGE POLL Visitors to MSLFs web site at
www.mountainstateslegal.org responded to the following question:
Colorado passed a law that calls a tax a fee, imposes it, and
incurs debt all without Taxpayer Bill of Rights required voter
approval. Is that constitutional? One hundred percent (100%) said,
No: The Taxpayer Bill of Rights (TABOR) is clear; there are no
taxes or new debt without voter approval. Zero percent (0%) said,
Yes: TABOR is too limiting; schemes such as the Bridge Enterprise
Act are necessary to increase spending. Vote on the new question at
MSLFs web site today! Remember, the best way to keep abreast of
MSLFs precedent-setting, nation-ally-significant litigation is to
check MSLFs highly acclaimed web site. MSLFs web site is updated at
least every week and often daily. In particular, check for updates
on MSLFs Legal Cases and Press Releases.
Did you know that you might be able to double your gift for
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fight its court battles. Please ask if your employer has a
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department to see if your company will match your gift to MSLF.
Then, each time you mail your gift, please include a matching gift
form from your employer. MSLF will do the rest!
PENDLEYS VIEW The Equal Access to Justice Act (EAJA) has been
used to award millions of dollars to environmental groups contrary
to the EAJAs pur-pose of allowing Americans, forced to litigate
against the federal govern-ment, to be paid their attorneys fees
and expenses if they prevail and if the governments legal position
is not substantially justified. Use of the EAJA by environmental
groups is unique in two other ways. Envi-ronmental groups recover
fees for suing over non-injurious, technical violations of federal
law and they are paid quickly. MSLFs clients sue to vindicate
constitutional or statutory rights and are not paid or wait years
to be paid. John Shuler of Dupuyer, Mon-tana, who killed a grizzly
bear in self-defenseas allowed under the Endan-gered Species Actwas
prosecuted by the federal government for nearly a decade. Shuler
prevailed only after his attorneys expended $225,000; how-ever,
federal courts denied his EAJA application for attorneys fees.
Donald Eno is a disabled veteran on fixed income, seeking to eek
out a living as a miner on his gold and travertine claim in the
Plumas Na-tional Forest in northern California. In 1996, the U.S.
Forest Service took legal action to drive Mr. Eno off his extremely
valuable claim. In February 2007, Mr. Eno prevailed. Then federal
lawyers challenged Mr. Enos EAJA claim for nearly $200,000, a
battle that, after more than five years, remains in federal court!
Stanley K. Mann is a professor, lawyer, and alternative-energy
entre-preneur, whose extremely valuable geothermal wells were
seized illegally by federal officials. After litigating for nine
years, Mr. Mann was awarded nearly $1 million. Despite his clear
victory, the years invested in it, and the absence of any
justification for the governments illegal actions, federal lawyers
contested his nearly $300,000 EAJA claim. Nearly three years later,
Mr. Mann awaits a ruling..
The Colorado Union of Taxpayers Foundation sued the City of
Aspen and five members of the Aspen City Coun-cil in Pitkin County
District Court for violation of the Colorado Constitutions
Taxpayers Bill of Rights (TABOR). The group alleges that its
members should have been allowed to vote on a $0.20 tax Aspen
imposes on each disposable carryout bag grocers provide to their
customers. The tax, which went into effect in May 2012, applies to
paper bags distributed by grocers. Plastic bags are banned. Like a
sales tax, the tax is collected by grocers from customers and the
proceeds remit-ted to the City of Aspen. CUT seeks declaratory and
injunctive relief and an order requiring refund of all revenues
collected, along with the payment of interest, as required by
TABOR. In October 2011, Aspen passed a
Waste Reduction Fee, similar to taxes imposed by Telluride,
Carbondale, and Basalt, because, Aspen considers itself an
environmental leader and this topic presents an opportunity for
Aspen to continue to take a progressive stance
on environmental issues. In the taxs first year, grocers may
retain a portion to inform customers about the tax, train staff
about the tax, and alter infrastruc-ture to accommo-date the
collection of the tax. Revenue from the tax funds general expenses
of
Aspen government, including public educational campaigns,
infrastructure, pollution-reduction equipment, and community
cleanup events. Meanwhile, MSLFs lawsuit against Colorado for
imposing a tax on vehicles that circumvents TABOR continues. In
TABOR Foundation v. Colorado Bridge Enterprise, MSLF seeks to end
this tax.
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MSLF urged the Supreme Court of the United States to review a
rul-ing by a three-judge panel of the U.S. Court of Appeals for the
District of Columbia that upheld the constitution-ality of a
federal law that places a southern county under the direct
supervision of the Attorney Gen-eral of the United States 46 years
after its enactment. Section 5 of the Voting Rights Act (VRA)
requires Shelby County, Alabama as a covered jurisdiction, to get
federal approval before any change in voting standard, practice, or
procedure. In a 2-1 ruling, the panel upheld the constitutionality
of Section 5 over MSLFs objections, which included that, while
application of Sec-tion 5 of the VRA to Shelby County was proper in
1965, it no longer is lawful and Congresss 2006 reauthorization of
the VRA is unconstitutional. Section 5, Congresss most
intrusive
involvement in State sovereignty, bars a covered jurisdiction
from enact[ing] or seek[ing] to administer any voting qualification
or prerequisite to voting, or standard, practice, or procedure
with
respect to voting, different from that in force or effect on
November 1, 1964 unless it submits that request for preclearance to
the Attorney General or the District Court for the District of
Columbia, and
it is determined that such proposed enactment does not have the
purpose . . . [or] effect of diminishing the ability of any
citizens of the United States, on account of race or color, or
[language minority status], to elect their preferred candidates of
choice[.] Section 5 still applies to the entire State of Alabama,
including Shelby County, and was left unchanged when, in 2006,
Congress reauthorized the VRA for another 25 years. In the last
ten years, Shelby County has filed for preclearance numerous
times, expend-ed significant taxpayer dollars, time, and energy to
meet its obligations, and has had at least one election delayed in
order to ensure compliance with the preclearance obligation of
Section 5. In April 2010, Shelby County sued in the District of
Columbia federal district court to challenge Section 5s
constitutionality. The district court held that Section 5 is
constitutional and does not exceed the power of Congress under the
Enforcement Clauses of the Fourteenth and Fifteenth
Amendments.Meanwhile, Texas is raising the consti-tutionality of
Section 5 in its defense of its requirement for
photo-identifications to vote in Texas.
Marvin Brandt of Fox Park, Wyo-ming owns 83 acres of land, a
portion of which was burdened by a right-of-way for the Laramie,
Hahns Peak, and Pacific Railroad Company from Laramie to the
Colorado line. In 1996, the Wyo-ming and Colorado Railroad Company,
as the railroad was then known, sought to abandon the line; by
2004, it had removed all the tracks and ties. By operation of
federal and state law, the right-of-way was extinguished and Mr.
Brandts property became unencum-bered. In April 2005, the U.S.
Forest Service announced plans to convert its non-existent
right-of-way into a pub-lic, recreational trail. In July 2006, the
United States sued Mr. Brant in Wyo-ming federal district court to
quiet title to the trail in its name. MSLF, on Mr. Brandts behalf,
filed a counterclaim to quiet title in favor of Mr. Brandt.
In April 2009, the Wyoming federal district court quieted title
to the old rail-road right-of-way in favor of the United States.
The district court also ruled that the United States could expand
the scope of the railroad right-of-way to in-clude a public,
recreational trail. MSLF appealed the district courts ruling to the
U.S. Court of Appeals for the Tenth Circuit in Denver, Colorado.
Recently, the Tenth Circuit issued a short, per curiam decision
that affirmed the district court, a decision the panel could have
issued after oral arguments in May of 2010! Mr. Brandt and MSLF are
contemplating whether to seek re-view by the Tenth Circuit (en
banc) or by the U.S. Supreme Court. Meanwhile, Mr. Brandt awaits a
ruling of his appeal of the dismissal of his lawsuit in the U.S.
Court of Federal Claims in Washington, D.C. in which he seeks just
compensation.
Page Three
WYOMING MAN BATTLES FOR HIS LAND
VOTING RIGHTS ACT UNCONSTITUTIONAL!
MINERS FIGHT BACK
KEEP READING! The Litigator, MSLFs quarterly newsletter, is the
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With MSLF as its attorney, the Northwest Mining Association
urged the U.S. Supreme Court to hear a controversial ruling from
the U.S. Court of Appeals for the Ninth Circuit. In a lawsuit by an
American Indian tribe, a badly fractured en banc panel, over a
scathing dissent by four judges, reversed earlier rulings by a
three-judge Ninth Cir-cuit panel and by a federal district court.
The Ninth Circuit held that, when the Forest Service reviews
Notices of Intent (NOIs) by miners to use suction drilling to mine
their own claims, it constitutes agency action under Section 7 of
the Endangered Species Act and triggers the agencys duty to engage
in interagency consultation. The opinion fails to recognize the
statutory right of miners to mine and conflicts with the Courts
precedents.
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SUMMARY JUDGMENT: REAGAN - WE WIN AND THEY LOSEby William Perry
Pendley, Esq. President and Chief Operating Officer
Forty-eight years ago last month, private citizen Ronald Reagan
delivered his famous A Time for Choosing speech. Today it is worth
considering Reagans legacy on natural resources and the
environment. [W]e win and they lose, said Reagan in 1977 to Richard
V. Allen in describing his strategy for dealing with the Soviet
Union. Allen was flabbergasted. Id worked for Nixon and Goldwater
and many others, and Id heard a lot about Kissingers policy of
dtente and about the need to manage the Cold War, but never did I
hear a leading politician put the goal so starkly. History proved
Reagan right and the intellectual elite, the media, and Democrat
and Republican political leaders, wrong. Reagan, with his unbridled
faith in American ingenuity, creativity, and know-how and his
confidence in the free-enterprise system, believed the United
States would transcend the Soviet Union. First, however, Reagan had
to revive and then revitalize an American economy reeling from a
double-digit trifecta (unemployment, inflation, and interest
rates). Reagan did believe in better days, but he knew the economy
could not grow without reliable sources of energy that America had
in abundance. It all made sense to Reagan and to the American
people who elected him by a large margin, but much had changed over
the two decades leading up to his inauguration. The environmental
movement was in its ascendancy and had persuaded Congress to enact
a series of well-intentioned laws that posed a threat of great
mischief in the hands of covetous bureaucrats, radical groups, and
activist judges. Reagan adhered to what one social scientist called
the human exemptionalism paradigm, whereby human technological
ingenuity can continue infinitely to improve the human situation,
whereas the Earth Day organizers embraced a neo-Malthusian
ecological paradigm that believed in environmental limits on
economic growth. Carter adhered to the latter view and while his
administration was extreme in that regard, the 1980s bi-partisan
consensus in Washington was the American public had embraced a new
environmental ethic. It was not surprising, therefore, that
following Reagans election in November 1980, he was presented with
reports from two transition task forces on energy and environmental
issues. One urged that the president maintain the momentum of
environmental protection while allowing for some easing of
regulation. Reagan quickly brushed it aside; only three copies
were ever made. Instead, in another bold break with the
bi-partisan past akin to his approach to foreign policy, Reagan
opted for The Heritage Foundations report, Mandate for Leadership:
Policy Management in a Conservative Administration. Mandate called
for massive changes in the U.S. Department of the Interiors
programs, including dramatic increases in oil and gas leasing, both
on the Outer Continental Shelf and on federal lands across the
country, and resumed leasing of federal coal lands in the American
West.
Reagans aggressive energy policies have never been equaled. Of
greater importance today than the specific energy policies upon
which Reagan embarked, however, is Reagans belief in American
exceptionalism and the ability of the Amer-ican peopleif unfettered
by their government with unnecess-arily burdensome regulationsto
improve their and the Nations lot. The amazing work of the energy
industry in discovering, developing, and delivering heretofore
unanticipated oil and gas resources, for example, through use of
fracturing technology, would not have surprised Reagan. In
addition, Reagan, given his foresight in so many areas, may well
have anticipated thepossible coming demise of the radical
environmental move-ment. Much as the Soviet Union collapsed of its
own weight, the environmental movement may share that fate,
especially given the total discrediting of its climate change
scare-mongering, the failureafter spending a near infinite amount
of moneyof alternative energy sources to compete with hydrocarbons,
and the apparent indifference and even hostility of environmental
groups to the economic needs of mankind. Or as Reagan so succinctly
put it in 1983, I do not think they will be happy until the White
House looks like a birds nest.
Page Four
HOLDER HELD IN CONTEMPT In June, the U.S. House of
Rep-resentatives voted to hold Attorney General Eric Holder in
contempt of Congress for refusing to hand over documents about the
Fast and Furi-ous scandal. It is the first ever such vote against a
sitting cabinet officer. J. Christian Adams is not sur-prised and
explains why in his expos, Injustice, which is free with a $50
contribution to MSLF.
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Page Five
Mountain States Legal Foundation (MSLF) Is A Nonprofit,
Public-Interest Legal Foundation, That Is A 501(c)(3)
Organization,Since Its 1977 Founding.
Therefore, Your GenerousContributions To MSLF Are Tax
Deductible!
MSLF CANNOT REST; ITS ROLE ESSENTIAL TO REMAINING FREE In 2012,
MSLF will have been going to court for 35 years, fighting to compel
compliance with the commands of the Constitution and federal law to
ensure that America remains a nation of laws. At no time during
these three plus decades has the need for MSLF to go to court on
behalf of those who could not afford legal representation been
less-ened. In fact, as the federal bureaucracy has grown and as
federal laws have become more far-reaching and intrusive, MSLFs
caseload has increased dramati-cally. That is obvious from a review
of the scores of MSLF cases.
Your Support Is Vital If there is one lesson MSLF has learned
over the past 35 years, it is that, regardless of which party
occupies the White House or controls Congress, the threat to
liberty remains and MSLF must be ready, willing, and able to go to
court to defend freedom. As Thomas Jefferson once said, Eternal
vigilance is the price of liberty. One of the prices that must be
paid for MSLF to remain vigilant isthe price that tens of thousands
of Amer-icans pay annually by making their tax-deductible
contributions to MSLF and its litigation. The support of MSLF by
tens of thousands of Americans committed to freedom could not be
more important. Your support will ensure that MSLF remains IN THE
COURTS FOR GOOD!
MSLF receives no government funds (except when it wins in court
and the judge orders the federal government to pay attorneys fees
and expenses).
MSLFs sole source of support is the tax-deductible contributions
of those who support its aggressive litigation program.
MSLF is a nonprofit, public-interest I.R.C. 501(c)(3)
corporation, which makes the contributions it receives tax
deductible.
MSLF is committed to the vision of the Founding Fathers:
individual liberty, the right to own and use property, limited and
ethical government, and the free enterprise system.
MSLFs commitment to the Constitution ensures that America
remains a nation of laws and not of men and that the rich liberty
legacy of this nation continues.
MSLF does only one thing: it goes to court in defense of the
Constitution, strict adherence to the laws of the land, and those
who cannot afford to hire legal counsel to protect their
rights.
Only YOU can ensure that MSLF may continue its vital work.
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Gun-free zones never gun freeBy William Perry Pendley
By Ted S. Warren, APPolice and other vehicles remain in front of
the Century 16 movie the-ater Saturday, in Aurora, Colo., where 12
people were killed and dozens injured in a shooting attack.
In the very early morning hours on July 20, I was in Aurora
preparing to fly out of Denver International Airport when, standing
at the gate, I pulled up the terrible news on my mobile telephone.
As a Colorado resident since 1989, I was reminded of the day in
1999 when I rushed to pick up my sons from their Jefferson County
public schools after gunmen invaded Columbine High School.
I thought as well of a snowy December day in 2007 when a gunman
murdered missionaries and church-goers in Arvada and Colorado
Springs. As in the hours following those tragic days, much remains
unknown about the murders and the man who commited them; soon we
will know more than we ever would have wanted.
Likewise, as occurred following those tragedies, yesterday, even
before my flight landed on the East Coast, there were declarations
by some, including New York Citys Mayor Michael Bloomberg, that
guns, gun-ownership and Second Amendment rights are the reasons for
these tragedies.
I write this in the darkness of Saturdays early morning hours
knowing that, because the organization I lead defends the rights of
law-abiding citizens to exercise their federal and state
constitutional rights to keep and bear arms and, if they qualify,
to carry concealed weapons, we will be described as part of this
alleged national problem. Such accusations ignore, not only that
gun rights are supported overwhelmingly by the
American people, but also that the Supreme Court of the United
States affirmed those rights in two landmark rulings in 2008 and
2010. (In the latter case, Justice Alito cited to our brief.)
Furthermore, earlier this year, in a case we brought on behalf
of Students for Concealed Carry on Campus and three Colorado
students, a unanimous Colorado Supreme Court upheld the Colorado
Concealed Carry Act, which allows those who qualify to carry
firearms throughout Colorado with four specific exceptions:
locations prohibited by federal law, K-12 schools, public buildings
with metal detectors and private property. The court overruled
attempts by the University of Colorado to set its own policies and
bar concealed carry weapons and the exercise of Second Amendment
rights on its campuses.
It appears that Cinemark Holdings Inc., owner of the theater
where these murders took place exercises its rights as an owner of
private property in Colorado to bar those who hold concealed carry
permits from exercising their rights in its theaters.
As a result, law-abiding citizens, including owners of concealed
carry permits, who were in the theater that dreadful night were
unarmed and thus unable to defend themselves and their fellow
movie-goers from the murderous attack visited upon them.
Opponents of the Second Amendment and concealed carry laws call
the areas created by Cinemarks decision gun-free zones. They are
not. As we discovered to our great horror in the early morning
hours of July 20 and as we have discovered in the past, they are
free only of the guns owned by law-abiding citizens.
William Perry Pendley, an attorney, is president of Mountain
States Legal Foundation. Posted July 21, 2012.
Page Six
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Page Seven
LEGAL
ACTION
NOTABLE
QUOTES
n MSLF urged the Supreme Court of the United States to reverse
an opinion by the U.S. Court of Appeals for the Ninth Circuit that,
contrary to federal law, places all forestry roads under the
jurisdiction of the Clean Water Act and the Environmental
Protection Agency (EPA).
n MSLF urged the U.S. Court of Appeals for the Ninth Circuit to
uphold a Montana federal district court ruling that the Bureau of
Land Management plan for a national monument in Montana complies
with federal law.
n A Pennsylvania federal district court ruled in favor of MSLFs
oil and
gas clients and made permanent its December 2009 ruling against
a sweetheart lawsuit settlement made by the Obama
Administration.
n MSLF urged the Ninth Circuit to vacate a ruling by a Montana
federal district court striking the decision of the U.S. Fish and
Wildlife Service to delist the wolf in Idaho and Montana. That
ruling was mooted when Congress amended the Endangered Species Act
to bar listing the wolf, but the ruling was left standing.
n A District of Columbia federal district court narrowly struck
down a racial preference contracting program used by the U.S.
Department of Defense; MSLF was asked by the court to file an
amicus brief in the case.
n MSLF urged the Supreme Court to hear an appeal by Arizona of
the ruling of the Ninth Circuit that the voter identification
requirements of Proposition 200 are barred by federal law; the
ruling came from a badly split en banc panel.
n MSLF Vice President and Chief Legal Officer, Steven J.
Lechner, argued on behalf of MSLFs clients in Arizona federal
district court to protect grazing rights from a challenge by
environmental groups.
n The Supreme Court of the United States denied a petition filed
by the State of Wyoming to review the U.S. Court of Appeals for the
Tenth Circuit ruling that President Clintons roadless rule did not
violate the Wilderness Act of 1964; MSLF urged the Court to grant
the petition.
n MSLF was in a Wyoming federal district court for oral
arguments in a lawsuit, which began with one of MSLFs first cases,
seeking to remove wild horses from grazing allotments.
n A New Jersey federal district court ordered that a trial be
held regarding the property rights of a rural family sued by the
National Park Service for trespass when the family put gates on its
fence to protect family members. Feds in SWAT gear served the
suit.
[MSLF] is an amazing not-for-profit institution that takes on
[Second Amend-ment] cases pro bono and they won at the [Colorado]
Supreme Court.Brooke Goldstein, Esq.New York, NYOn ABC Red Eye
[Y]our organization does great work.Jason C. Miller,
Esq.Lakewood, CO
Thank you very much for your hard work.James V. YoungSan
Francisco, CA
Thanks to you courageous and great people. God bless you.Beth
StuckerSultan, WA
I hope you can help save the U.S.Claude JungmanPremont, TX
I strongly support what you are doing.C.A. BelangerRochester
Hills, MI
Thank you for all that you do.Margaret K. PetersOro Valley,
AZ
You do good things.Donald D. ThayerLa Barge, WY
Keep up the great work!Carol A. MorrisEast Jordan, MI
I am heartened [each] time I receive The Litigator and realize
there are still people like you standing up for individual
libertiesand WINNING!Michael GibsonWalnut, CA
I truly support your cause.Arthur H. AbrottBeatty, OR
Keep up the good work!Ward D. StoepkerBerwyn, PA
Keep up the good work.Russell A. ReedMerritt Island, FL
We are proud of MSLF; thank you!Emra Duke LathropLostine, OR
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RACE-BASED ADMISSION BY COLLEGES: UNCONSTITUTIONAL On the first
Monday in October, the Supreme Court of the United States began its
October 2012 Term and later heard arguments on ending the use of
racial quotas by universities by overturning a 2003 Supreme Court
ruling. During those arguments, a hard-hitting brief by MSLF was
before the justices. Unlike the attorneys arguing the case, MSLF
strongly urged the Court to overturn its 2003 ruling in Grutter v.
Bollinger, which permits colleges and universities to admit
students on the basis of their race or ethnicity until 2028! MSLF,
which won a landmark civil rights decision by the Supreme Court,
urged the Court in a friend of the court brief to reverse a ruling
by a U.S. Court of Appeals for the Fifth Circuit panel upholding
the University of Texas at Austins right to use the race of a Texas
coed, Abigail Noel Fisher, to reject her. Earlier, MSLF had urged
the Supreme Court to hear the case because the panels ruling
conflicts with the Courts legal precedents. In January 2011, a
three-judge panel upheld an earlier ruling by a Texas federal
district court that the University of Texas may use race to admit
students. Both the district court and the panel relied on the
controversial 2003 ruling; however, Judge Emilio M. Garza, in a
concurring opinion, argued that the 2003 ruling was flawed and
should be abandoned. In June 2011, the appeals court declined to
rehear the case en banc.
In 1996, the U.S. Court of Appeals for the Fifth Circuit held
that diversity was not a compelling governmental interest and that
the University of Texas Law Schools use of race for admission was
unconstitutional. In response, Texas enacted a
law requiring all Texas students graduating in the top ten
percent of their class to be admitted to the University of Texas.
As a result, the University of Texas was able to achieve the racial
diversity that had existed on campus prior to the Fifth Circuits
1996 ruling. In June 2003, the Supreme Court abrogated the Fifth
Circuits decision when it ruled, in Grutter v. Bollinger, that
racial diversity could be
a compelling interest for the University of Michigan School of
Law. Thereafter, the University of Texas began using race as a
basis for granting admission. Abigail Noel Fisher of Sugar Land,
who graduated in the top 12 percent of her class, applied for but
was denied admission. In April 2008, she sued the University and
its officials in the U.S. District Court for the Western District
of Texas in Austin, alleging that she was denied the right to
compete for admission on an equal footing with minority students in
violation of the U.S. Constitutions equal protection guarantee. In
August 2009, the district court ruled in favor of the University of
Texas based upon the Supreme Courts holding in Grutter.
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