The Universities mistake interests grounded in the First Amendment—including their interests in selecting student bodies—with First Amendment rights. It is not clear, for example, how the Universities, as subordinate organs of the State, have First Amendment rights against the State or its voters. See, e.g., Trustees of Dartmouth College v. Woodward, 17 U.S. 518, 629 (1819). One does not generally think of the First Amendment as protecting the State from the people but the other way around—of the Amendment protecting individuals from the State.Also, I was very surprised to see that the federal district court had actually enjoined a state constitutional provision based solely on a stipulation, without even bothering to identify any federal issue in the case (let alone going through the usual 4-part analysis as to injunctive relief). Whatever you think of the merits of affirmative action, it is a very bad idea for plaintiffs to be able to "sue" a friendly politician, and then collude in a stipulation that allows a federal court to override state law based on nothing. As a lawyer, I cannot imagine a circumstance in which I would ask a federal court to do such a ridiculous thing.
Saturday, December 30, 2006
Sixth Circuit case
A Sixth Circuit decision came out yesterday -- on a very quick timeline -- reversing a district court decision to allow the University of Michigan, the Governor, and pro-affirmative action plaintiffs to stipulate to a federal court injunction blocking the enforcement of the Michigan constitutional ban on racial preferences. A nice line about the bizarre argument that the First Amendment somehow protects state entities from having to obey the state constitution:
You mean you wouldn't do this even if you thought it would get the desired result for your client? Why note? Our job as lawyers is to use the law as it is, not as we wish it to be.
ReplyDeleteI take your point about doing whatever the law allows in service of the client's interests. But my point assumes (rightly, I think) that there simply is no law, in any form whatsoever, that allows such an outcome. I've never heard of any precedent for the notion that if you don't like a state law, you can sue a friendly state politician in federal court, and then merely "stipulate" that the federal court should enjoin the law. I'm surprised that any federal district court would approve such a stipulation without even identifying any potentially meritorious federal claim in the case. And as we see, the 6th Circuit agreed that the district court's action was baseless.
ReplyDeleteSo should I, as an attorney, use whatever tools the law allows? Yes. But should I advise a client to engage in an utterly frivolous strategy that is going to be reversed on appeal within the week? No.