Seth Chandler, Law Foundation Professor of Law at the University of Houston Law Center.
June 30, 2023 — Seth Chandler, Law Foundation Professor of Law at the University of Houston Law Center, is available for commentary on the recent Supreme Court rulings on LGBTQ+ rights, and affirmative action. See bio here.
His initial reactions to the cases are below.
LGBTQ+ Rights
The Supreme Court, in a 6-3 decision today, limited LGBTQ+ protections, ruling that the First Amendment protects a Colorado business from creating same-sex wedding websites, despite the state’s protective anti-discrimination law. The case is 303 Creative LLC v. Elenis.
Chandler’s comments on the ruling:
“The Court's decision in 303 Creative has stated that a state like Colorado cannot enforce a "public accommodations" law to make businesses that don't squarely fall into that category, such as a website design firm, create messages they don't agree with. For example, they can't be forced to make a website celebrating a gay marriage if they object to it. However, the Court has also made it clear that the state can still require traditional public accommodations like hotels and restaurants to certain groups, such as black people or LGBTQ individuals, even if they dislike their members. There's little expressive conduct in renting a room or seating someone with a plate of ribs.
The Court's decision doesn't provide great help in figuring out where the line is. Can a private school that is against LGBTQ individuals now use the First Amendment to refuse admission to a transgender student, claiming that providing services to them would express accepting for their decision? Or can a business make its services so unappealing to certain groups, like putting a "God wants the races kept separate" message on every napkin that members of that group are practically deterred from using that restaurant? Certainly, after today's decision, states will need to proceed with great caution before they seek to use public accommodations laws as a way of forcing businesses that in some way combine service with expression to say things of which government approves. The cost of that freedom, however, will be continued insult and continued business complications for some minorities in some places.”
Affirmative Action
In a 6-3 ruling yesterday, the Supreme Court struck down affirmative action in college admissions. The court cases are Students for Fair Admissions, Inc., Petitioner v. President and Fellows of Harvard College and Students for Fair Admissions, Inc., Petitioner v. University of North Carolina, et al.
Chandler’s reaction to the decision:
“The Supreme Court has now clearly said that colleges and universities can no longer use race as a direct factor in deciding who gets admitted. However, even the majority allowed for a more indirect use of race. If a student mentions their race and explains that they have faced challenges or hardships because of it, the university can consider this racially correlated hardship as a "plus" in their application. The problem is that it can be difficult to determine whether the university is genuinely considering the student's hardships or if they are simply giving preferential treatment based on race just as they did before. Untangling the real cause of an admission decision from a mass of statistical data kept by people who are both aware of the new Supreme Court decision and very much opposed to it will be very difficult. What I am certain of is that, just as the Dobbs decision on abortion last year did not end the legal and political battle over abortion, the SFFA decision this week is not going to end the legal and political batter over affirmative action.
The ruling by the Supreme Court is likely to have the most impact on prestigious schools like Harvard, at least if they continue to prioritize traditional criteria like SAT or ACT scores when selecting students. As a result of the ruling, these schools may admit fewer students from certain minority groups.
However, this doesn't mean that minority students with lower scores will be left without opportunities. For example, a minority student with a SAT score of 1400 who might now be rejected by Harvard could still be a highly competitive applicant at a school like Tulane. They should have the opportunity for an excellent education there and have good prospects for employment.
Similarly, a minority student with a SAT score of 1300 who may now be rejected by Tulane could become a very competitive applicant at a school like Syracuse. Again, though the student might be somewhat disappointed, they would still have the chance to receive a strong education and have good employment prospects.
So, while the Supreme Court ruling may limit the chances of minorities who can't demonstrate specific hardships based on their skin color to attend the most prestigious universities, it should not significantly reduce diversity at most schools. There will still be opportunities for minority students to attend other reputable institutions and receive a quality education. And if the student has indeed endured individualized hardship based on race (or anything else), today’s Supreme Court decision, which focuses only on "check box race" should not seriously hurt their chances.”
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