Supreme Court Issues Narrow Holding in Affirmative Action Case

By Brian Pasquale

In Fisher v. University of Texas at Austin, the Supreme Court of the United States considered the issue of racial classifications in education.  While many were hoping for a landmark decision, ultimately the Court held that the lower court did not apply the correct standard and remanded the case for further proceedings.


The admission program at the University has evolved in recent history.  Prior to 1997 the University considered two factors when evaluating an applicant; one score that was based off of their academic performance in high school as well as their standardized test scores, and the second score based on the applicant’s race.  The United States Court of Appeals for the Fifth Circuit held this system unconstitutional in 1996 because the system did not further any compelling government interest.[i]  The University adopted a new system to comply with the Court of Appeals holding and began using a system that substituted race with what an applicant’s potential contribution to the university would be.  The University titled this program the Personal Achievement Index (“PAI”).  The PAI measures a student’s leadership and work experience, awards, extracurricular activities, community service and other circumstances that shed light on a student’s background.  In addition to the PAI being implemented, the Texas State Legislature passed the Top Ten Percent Law, which granted admission to any student who placed in the top ten percent of their graduating class.  Following the Supreme Court’s decisions in Grutter v. Bollinger[ii] and Gratz v. Bollinger[iii], a third admission program was adopted which is the one that was challenged in the case at bar.[iv]  The new program included a student’s race as a component in the PAI score, asking students to classify themselves as one of five races.  After an applicant has been scored, they are placed on a grid with the Academic Index on the x-axis and the PAI on the y-index, students who are in a cell above a certain line are admitted and students in a cell below the line are denied admission.

Petitioner applied for admission to the University in 2008 and was denied admission.  She sued the University, claiming that the University’s program violated the Equal Protection Clause.  The District Court granted summary judgment to the University.  The United States Court of Appeals for the Fifth Circuit affirmed the decision holding that Grutter required courts to give deference to the University in both the benefit that they believe having a diverse student population brings to the University as well as whether the plan was applied to achieve the goal of achieving educational benefits by increasing the diversity of the student population.


The Court began by tracing the Court’s history on the issue of racial classification in education.  In Regents of Univ of Cal. V. Bakke[v] Justice Powell set out the standard by stating “any racial classification must meet strict scrutiny, for when government decisions touch upon an individual’s race or background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling government interest.”[vi]  Of the compelling interests that Justice Powell identified included the interest in the educational benefits that flow from a diverse student body, because it is not simply above race, but about benefiting the overall educational experience.  Gratz and Grutter added to Justice Powell’s point in Bakke, by stating that the process used to achieve the racial diversity must be subject to judicial review, and race cannot be used as a factor unless the admission process can withstand strict scrutiny.

The Court then took up the present case, and began by agreeing with the District Court and Court of Appeals that the Court should defer to the University’s experience and expertise in deciding that diversity would serve the University’s educational goals.  However, while the Court agreed with the lower courts on the first issue, they disagreed with them on the second.  According to the Court, once the use of diversity to further educational goals has been held to be consistent with strict scrutiny, the University must also pass a second test.  The second test is whether the program is “narrowly tailored to achieve the goal of furthering education.”  In essence, the University must have considered other alternative admission programs that do not take race into account and determine whether they could further their stated goal.  In addition to considering the alternative programs, if a program that does not involve race would have still allowed the University to achieve its goal, then the University may not consider race.  Due to the fact that the Court of Appeals did not apply the strict scrutiny standard correctly, the Court remanded the case.

[i] Hopwood v. Texas, 78 F.2d 932, 955 (1996)

[ii] 539 U.S. 306 (2003)

[iii] 539 U.S. 244 (2003).

[iv] In Grutter, the Court permitted the University of Michigan Law School to use race as a factor in the admission process because the University was not using a “quota system” where a set number of minorities had to be admitted.  In Gratz, the Court struck down The University of Michigan’s undergraduate admission program because the University automatically added points to an applicant if they were from a certain racial minority.

[v] 438 U.S. 305 (1978) (opinion of Powell. J)

[vi] Id. at 229

Highly Anticipated Fifth Amendment Decision by Supreme Court in Salinas v. Texas Leaves Many Disappointed

By Brian Pasquale


On December 18th, 1992, two men were shot and killed inside their home in Houston.  There were no witnesses but a neighbor informed the police that she had observed someone run out of the house and speed away in a dark-colored car.  The investigation led police to Mr. Salinas (“Petitioner”), who was at the victim’s house the previous night attending a party.  When police arrived at Petitioner’s house he agreed to give them his shotgun for ballistics testing and voluntarily go to the police station for questioning.

The interview at the police station was noncustodial and the Petitioner was not read his Miranda rights.  Throughout the interview the Petitioner answered all of the officer’s questions.  However, when the officer asked whether the Petitioner’s shotgun “would match the shells recovered at the scene of the murder,” Petitioner declined to answer and looked down at the floor and “began to tighten up.”  The prosecutor initially declined to prosecute due to a lack of evidence; however, several days later, police obtained a statement from a man who stated that he had heard Petitioner confess to the killings.  The Petitioner did not testify at trial, and key evidence from the State included the use of Petitioner’s reaction to the officer’s question during the interview.  After being found guilty, Petitioner argued that the use of his silence violated his Fifth Amendment right.  The Court of Appeals rejected Petitioner’s argument as did the Texas Court of Criminal Appeals.


Whether the prosecution may use a defendant’s assertion of the privilege against self-incrimination during a noncustodial police interview as part of its case in chief?


One of the few exceptions to the principle that the Government has the right to everyone’s testimony is the privilege against self-incrimination.  However, one who wishes to use the protection must claim it at the time that he relies on it.  This restriction provides the government with an opportunity to either offer the suspect a grant of immunity or argue that the testimony could not be self-incriminating.  The Supreme Court has established two exceptions to this requirement that the suspect assert his right.  The first is that a defendant does not need to take the stand and assert the privilege at his own trial, and the second is when law enforcement coerces the statement and thus renders the privilege involuntary.

In the current case, the Court stated that is clear that neither of the exceptions apply to the Petitioner, as he voluntarily went with the police from his home and he was free to leave the interview at any time.  Thus, he was outside the scope of Miranda and the use of his silence by the prosecution did not violate the Fifth Amendment.


While many in the legal community were anticipating the Court’s decision in Salinas v. Texas, after the ruling was handed down many of those people were left disappointed.  The Issue that many were hoping to see be resolved was whether the Government could use a suspect’s reliance on the Fifth Amendment when the suspect had not already been arrested.  However the Court announced early in its opinion that it was not necessary to resolve that question because the Petitioner did not assert the privilege.

New Facebook Friend? Be Careful or You Might Find Yourself Served!

Written by Muthena Alsahlani and Edited By Wassem M. Amin

Social networking site likes Facebook and Twitter play a significant role in society and in most people’s daily life. So big, in fact, that a court ruled that Service of Process via Facebook is permissible under Federal Rules of Civil Procedure 4(f) .

Facts of the Case

The Defendants allegedly operated a scheme that tricked American consumers into spending money to fix non-existent problems with their computers. This scheme was operated in large part out of call centers located in India.

The U. S. District Court of Southern District of New York issued a temporary restraining order on the defendants’ business practices. On September 27, 2012, the Federal Trade Commission (FTC) submitted the Summons, Complaint, and related documents to the Indian Central Authority for service on defendants, in accordance with Federal Rule of Civil Procedure 4(f)(1) and The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Service Convention” or “Convention”). The FTC also sent these documents to defendants by three alternative means: (1) by email to defendants’ known email addresses; (2) by Federal Express (“FedEx”); and (3) by personal service via a process server.

The FTC moved for leave to effect service by alternative means, mainly email and Facebook, on five of the defendants. The defendants sought a preliminary injunction to prevent this method of service.


The District Court enjoys discretion of whether to order service of process under Rule 4(f)(3) . Both the United States and India are signatories to the Hague Service Convention, mentioned in Rule 4(f). Article 10 of the Hague Convention allows for service of process through alternative means, provided the destination state does not object to those means. Thus far, service by email and Facebook are not among the means listed in Article 10 and India has not specifically objected to them. As well, service via email comports with due process where a plaintiff demonstrates that the email is likely to reach the defendant.

The District Court noted that if the plaintiff proposed serving the defendants only through Facebook, without a supplemental form of service, then a substantial question of due process would arise. However, the FTC’s proposal does not suffer that defect. The FTC proposes service via Facebook in conjunction with traditional email. The plaintiffs were able to establish that the Facebook accounts identified are actually operated by the defendants. Thus, there is a likelihood that the message will be received.

Important to note that Facebook is routinely used to serve claims in Australia, New Zeland, and Britain to a lesser extent.


Foreign defendants can be served process via Facebook, in addition to email, provided that the message will likely reach its intended target, under Fed. Rule of Civil Procedure 4(f). The Court did not that “[H]istory teaches that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.”

It’s only natural to wonder: will this open the door for an eventual change in Federal Rule of Civil Procedure, which applies to service of process for defendants residing in the U.S.? It’s plausible the traditional rules of service may evolve in order to appropriately reflect the technological shift. Electronic service is more effective and the more common mode of communication in many respects. The challenge, of course, is establishing receipt or acknowledgment of electronic service. Given the struggles of the U.S. Postal Service and the uncertain future of traditional mail, there may not be an option but to evolve and accommodate.

US Supreme Court: K-9 Dog Sniff Sufficient to Establish Probable Cause

On February 19, 2013, the Supreme Court decided the case of Florida v. Harris, and held that use of a drug dog to establish probable cause to search a vehicle does not violate the Fourth Amendment of the United States Constitution.

Facts: Respondent was pulled over by a law enforcement officer for a routine traffic stop.  While speaking to the respondent, the officer noticed that the respondent was becoming increasingly nervous and also observed an open beer can.  Respondent refused the officer’s request to search the vehicle; the officer subsequently executed a sniff test with his trained narcotics dog, Aldo.  The dog alerted at the driver’s side door, leading the officer to determine that he had probable cause to search the vehicle.  The search did not provide anything that the dog was trained to detect, but did reveal ingredients that are used to manufacture methamphetamine.  When the respondent was released on bail he was pulled over by the same officer who again had Aldo do a sniff of the vehicle, this time producing nothing.  The respondent moved to have the evidence from the stop suppressed, arguing that the officer did not have probable cause to search his vehicle based on the dog’s alert.  The trial court held that the officer had probable cause and denied the motion to suppress.  The respondent then entered a no-contest plea, reserving the right to appeal the trial court’s ruling.  After an intermediate state court affirmed, The Florida Supreme Court reversed.

Florida Supreme Court: The Florida Supreme Court held that the officer lacked probable cause to search the defendant’s vehicle under the Fourth Amendment.  The court went on to say that “When a dog alerts, the fact that the dog has been trained, and is certified, is simply not enough to establish probable cause.”  The court held that the State needed to produce a wider array of evidence to demonstrate a dog’s reliability.  The Florida Supreme Court gave several examples: the dog’s training and certification records; an explanation of the meaning of the particular training and certification; field performance records; and evidence concerning the experience and training of the officer handling the dog.

Supreme Court’s Ruling: The Court began by tracing the history of probable cause and establishing the foundation for the Courts decision.  The Court stressed that, in determining whether the State has met the probable cause standard, the Court has consistently looked to the “totality of the circumstances” test.  Foreshadowing its ultimate decision, the Court noted that in Gates, the Court abandoned the old test for assessing the reliability of informant’s tips “because it had devolved into a “complex superstructure of evidentiary and analytical rules.” (1)  The Court continued, describing probable cause as a “fluid concept-turning on the assessment of probabilities in any particular factual context-not readily, or even usefully, reduced to a neat set of legal rules.”  The Supreme Court determined that this is exactly what the Florida Supreme Court did in its decision, created a strict evidentiary checklist, which requires the state to mark off each item.

Rather than having the “strict evidentiary checklist” that the Florida Supreme Court determined was the best approach, the Supreme Court held that evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.  “If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume that the dog’s alert provides probable cause to search.”

Regarding a probable-cause hearing on a dog’s alert, the Court gave guidance to the lower courts on how these should be administered.  The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure.  After evaluating the proffered evidence to decide what all the circumstances demonstrate; if the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause.  However, if the defendant has challenged the State’s case, then the court should weigh the competing evidence.  Overruling the Florida Supreme Court test, the Court once again stated that the question is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonable prudent person think that a search would reveal contraband or evidence of a crime.

(1)    Illinois v. Gates, 462 U.S. 213, 235 (1983)

Supreme Court Continues Trend of Protecting Individual Fourth Amendment Rights

imagesOn February 19, 2013, in Bailey v. United States, the Supreme Court issued an opinion limiting police officer’s authority to detain an individual incident to the execution of a search warrant.  The decision is another example in recent history of the Supreme Court’s refusal to limit the Fourth Amendment.


While police were preparing to execute a warrant to search a basement apartment, detectives conducting surveillance in an undercover police vehicle located outside the apartment observed two individuals leave the gated area above the apartment, get in a car and drive away.  The detectives waited for the men to leave and then followed the car approximately a mile before stopping it.  Keys to the apartment were found on the petitioner who initially informed police that he resided in the apartment before denying it when informed of the search.  The District Court denied the defendant’s motion to the apartment key and statements he made to the detectives under Michigan v. Summers (1).  The Second Circuit affirmed the decision and the Supreme Court granted certiorari.


The Fourth Amendment provides the right of every citizen to be secure in their persons against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.  A general rule on the Fourth Amendment is that Fourth Amendment seizures are “reasonable” only if based upon probable cause “to believe that the individual has committed a crime.  In Michigan v. Summers, the Supreme Court established an exception to this general principle and defined an important category of cases in which detention is allowed without probable cause to arrest for a crime.  The rule established in Summers, is that the law permits officers executing a search warrant “to detain the occupants of the premises while a proper search is conducted.”  This rule is unique as it extends farther than other exceptions to the Fourth Amendment in that it does not require law enforcement to have particular suspicion that an individual is involved in criminal activity or poses a specific danger to the officers.

In Summers and the cases that followed, the occupants detained were found within or immediately outside a residence at the moment the police officers executed the search warrant.  However, in the present case petitioner left the apartment before the search began and the police officers waited to detain him until he was almost a mile away.  Thus, the Court must decide whether the reasoning the Court used in Summers can justify detentions beyond the immediate vicinity of the premises being searched.

When Summers was decided, the Court reasoned that there were three important law enforcement interests that justify detaining an occupant who is on the premises during the search warrant’s execution.  (1) The safety of the officers and the need to detain the current occupants so they can search without fear that the occupants will become dangerous or frustrate the search.  (2) The facilitation of the completion of the search, if an occupant is free to move around during the search they may potentially obstruct the search or destroy evidence.  (3) The interest in preventing the flight of the occupants.


The Court addressed all three interests established in Summers and applied the facts of the present case to those interests.  The first interest, officer safety, was not at risk because petitioner was away from location of the search and further, he was not even aware that a search was being conducted.  Additionally, if he had returned to the scene and did pose a threat, he would have been able to be lawfully detained because he was on the premises.  Addressing the second interest regarding the facilitation of the search, an individual who is not on the premises when the search is being conducted cannot obstruct a search or destroy evidence.  Finally, in addressing the concern of potential flight, the court said that if law enforcement is able to use flight as an excuse to apprehend occupants without any limitations, a suspect may be able to be seized 10 miles or further away from their house.  The Court then quoted a former Supreme Court case saying “the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.” (2)

The Court also emphasized the fact that the intrusion on personal liberty of a detention away from the premises of one’s home is significantly greater than the intrusion on an individual’s liberty while they are on their premises or inside their home.  When someone is apprehended in their yard or even inside their home, it does not raise the level of the public stigma or indignity associated with the search of the home itself.  However, when one is detained away from their home there is an additional level of intrusiveness.  Even if it is not an arrest it will appear to the public as a full-fledged arrest.  This is another important reason why the decision the Court established in Summers, must be limited and not used by law enforcement as a vehicle to apprehend occupants of a home even if they are not at their home during the search.

(1)    Michigan v. Summers, 452 U.S. 692 (1981)

(2)    Mincey v. Arizona, 437 U.S. 385, 393 (1978)