Affirmative Action and Online Free Speech Cases Once Again Loom Large on Supreme Court Docket

October 3, 2002 12:00 am

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Statement of Chris Hansen, Senior Staff Attorney, ACLU

Thursday, October 3, 2002

WASHINGTON–This year, the Supreme Court has once again been asked to consider the high profile issues of affirmative action and free speech online in two important cases on the ACLU docket.

The first case involves two challenges to the use of race as one factor in determining admissions at the University of Michigan. The second is a challenge to a law that forces libraries to deny adults as well as minors access to constitutionally protected speech online in order to receive federal funding.

Grutter v. Bollinger and Gratz v. Bollinger

These two affirmative action cases challenge the admissions practices of the University of Michigan’s law school and undergraduate programs, respectively.

A group of civil rights organizations, including the ACLU, the NAACP Legal Defense and Education Fund, the Mexican American Legal Defense and Education Fund, and a local group of advocates intervened in the undergraduate case on behalf of African American and Latino applicants. Similar local groups intervened in the law school case.

The two cases were filed in 1997 by white plaintiffs who alleged that the University’s use of race violated their constitutional right to equal protection of the laws. The University vigorously defended its use of race in admissions decisions as a means of achieving a diverse student body and asserted that it had a constitutionally sufficient compelling interest in achieving a diverse student body.

In both cases, the University assembled an extraordinary record of facts and expert analyses to establish that a diverse student body provided educational benefits to all of the university’s students. The challengers largely conceded the educational benefits of a diverse student body, but asserted that those benefits were irrelevant because the use of race violated the constitution.

The intervenors supported the University in its view that a diverse educational environment was beneficial for all students and was a compelling interest. We also argued that the University’s use of race in admissions decisions could be justified as a means of remedying past and present discrimination. For example, we presented evidence that many of the other admissions criteria, such as alumni status or test scores, had a racially discriminatory effect on African American and Latino applicants.

The district court in the law school case found for the plaintiffs, holding that diversity was not a compelling interest under the constitution and that therefore the use of race in admissions decisions was impermissible. The district court in the undergraduate case reached the opposite conclusion. It also ruled against the intervenors, holding that remediation could not be a justification for affirmative action unless asserted by the University.

Both cases were appealed to the United States Court of Appeals for the Sixth Circuit. The Sixth Circuit heard the cases together in a rare initial en banc hearing. The Circuit reversed the district court in the law school case, holding that diversity was a compelling interest. The Circuit has not yet acted on the undergraduate case.

The white plaintiffs have filed a petitions for a writ of certiorari in both cases. In the undergraduate case, the plaintiffs ask the court to accept the case even though the Sixth Circuit has not yet acted. The University has announced that it will oppose both petitions. The undergraduate intervenors have not yet reached a decision on their position in these cases.

The issue of affirmative action in university admissions has been a hotly contested issue in the lower courts since the Supreme Court’s divided opinion in Regents v. Bakke, 438 U.S. 265 (1978). In Bakke, the court divided 4-1-4. Justice Powell, the swing vote, found that a carefully structured use of race in university admissions was constitutional as a means of achieving the educational benefits of a diverse student body. Since that time, courts have split on whether Justice Powell’s decision is binding and on what it means.

In 1996, many expected the Supreme Court to decide this issue in Texas v. Hopwood, 518 U.S. 1033 (1996), but the Court declined to review that case. Since that time, the lower courts have split on the constitutional validity of diversity and the viability of Justice Powell’s opinion. In Hopwood, the Fifth Circuit found Justice Powell’s decision was not binding and that diversity was not a compelling interest. In this case, the Sixth Circuit found the opposite, as did the Ninth Circuit in Smith v. University of Washington, 233 F.3d 1188 (9th Cir. 2000). Other circuits have repeatedly indicated their confusion, as in Johnson v. Board of Regents, 263 F.3d 1234 (11th Cir. 2001). As a result of this division, there would appear to be a substantial chance that the Supreme Court will grant the petition in one or both of these cases.

United States v. American Library Association, No. 02-361

This case is a challenge to a federal statute, the Children’s Internet Protection Act (CIPA). CIPA requires all public libraries in the country that receive federal funds to install blocking software on their Internet access computers, whether those computers are being used by staff or by patrons, and whether those computers were paid for by federal funds or not. The software must be engaged at all times. It must block access to visible depictions of obscenity and child pornography and additionally, when a minor is using the computer, must block access to visual depictions that are harmful to minors. There is a provision that permits a library to unblock a blocked site upon a patron request if the patron has a “bona fide research or other lawful purpose.”

Two lawsuits were filed in Philadelphia challenging the statute as a violation of the First Amendment. United States of America v. Multnomah County Library, in which the plaintiffs were represented by the ACLU, was filed on behalf of a number of libraries and library associations, library patrons, and a number of web sites blocked by major blocking software programs. United States v. American Library Association was filed by the American Library Association and a number of other library associations and libraries, along with library patrons. The cases were consolidated and, as required by the statute, were tried in front of a special three-judge court in Philadelphia.

On May 31, 2002, the three-judge court unanimously found that the statute was unconstitutional. The court relied primarily on an extensive factual record that established that no product exists that will block the categories of speech listed in the law without also blocking huge amounts of speech that everyone agreed was valuable, constitutionally protected speech. Most importantly, no product even claims to do the job. None blocks material on the basis of the legal categories; all use variously defined categories of their own. None blocks on the basis of visual depictions; all consider and block text as well. Virtually all publicize their categories, but refuse to make public their blocked sites lists. Thus, librarians are forced to block a list of sites without even knowing what sites are blocked.

There are over two billion web pages and the web is growing and changing at an extraordinary rate. Because no company can keep up with this content and because no software exists that can accurately make content judgments, the blocking software companies that exist have to cut corners in a variety of ways. For example, they often block entire web sites as a result of just one page in a web site. As a result of cutting corners, all of the products vastly overblock (block sites that don’t meet their own criteria, much less the law’s criteria) and underblock (fail to block sites that meet their criteria).

The three-judge court gave numerous examples of wrongly blocked sites including religion sites (e.g. Orphanage Emmanuel, a Christian orphanage in Honduras blocked by CyberPatrol as Adult/Sexually Explicit and the homepage of a Buddhist nun categorized as nudity by N2H2), government sites (e.g. a Danish anti-death penalty site categorized by N2H2 as pornography and a list of government web sites in Adams County, Pennsylvania categorized by Websense as sex), and sports sites (e.g. the Sydney University Australian Football Club categorized by Smartfilter as Sex). The court found that overblocking and underblocking were inescapable given existing technology and the size and changing nature of the Internet.

Prior to this law, over 90 percent of American libraries, after careful consideration, decided not to require patrons to use blocking software. Those libraries, after looking at the deficiencies of existing blocking software products, concluded that other means of preventing unwanted Internet content were at least as effective and were more protective of the values shared by libraries and the First Amendment. Some libraries offer optional use of blocking software. Others offered training on Internet searches, lists of recommended sites, privacy screens or other methods of assisting patrons in finding material they want and avoiding material they do not want.

In September, 2002, the government ask the Court to review the case; the Court’s response to that request is pending.

This case marks the third time in recent years that the ACLU has brought challenged federal statutes that seek to censor speech on the Internet. In the first, Reno v. ACLU, the Supreme Court found the statute unconstitutional in a landmark 1997 ruling. In the second, Ashcroft v. ACLU, the Supreme Court last year maintained a lower court ban on the censorship law and remanded the case to the Third Circuit, which has set argument for late October 2002.

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