Dissentals and Munsingwear vacatur

The Supreme Court recently declined to hear two cases from the Fourth Circuit on hot-button issues, both of which prompted written dissents from the Court's most conservative Justices. One case dealt with affirmative action in high school admissions and the other with so-called "speech codes" on college campuses. 

Thomas Jefferson High School

The accepted definition of a “dissental” in appellate parlance seems to be a “dissent from the denial of a rehearing en banc,” which of course only applies to intermediate courts of appeals. So, if that’s what a dissental is, then what is a dissent from the denial of a petition for a writ of certiorari? I think dissental fits this situation well, though I’ve heard it referred to as a “certsent.” But to my ears, that just doesn’t have the same ring to it.

In any event, the Supreme Court recently denied cert in a Fouth Circuit case that came as a surprise to many court watchers. The case, Coalition for TJ v. Fairfax County School Board, 68 F.4th 864 (4th Cir. 2023), was a split decision in which the panel majority held that a controversial change in the admissions policy at Thomas Jefferson High School, supposedly one of the best public high schools in the country, did not violate the Equal Protection Clause of the Fourteenth Amendment. Prior to 2020, the school had an admissions policy that resulted in approximately seventy percent of its class being Asian-American. Id. at 872. After the policy change, that percentage decreased to approximately fifty-four percent. Id. at 875. The new policy resulted in increased representation of every other racial classification – as defined by the school: White, Black, Hispanic, and Multiracial. Id. at 875-76.

Justice Alito, joined by Justice Thomas, wrote a sharply worded dissental. He wrote that the Fourth Circuit’s majority opinion was “based on a patently incorrect and dangerous understanding of what a plaintiff must show to prove intentional race discrimination.” Coalition for TJ v. Fairfax County School Board, No. 23-170, slip op. at 1 (2024) (Alito, J., dissenting from denial of certiorari). Justice Alito’s interpretation of the opinion was that the new admissions policy was constitutional only because the changes “did not reduce the percentage of Asian-American admittees below the percentage of Asian-American students” in the jurisdiction covered by the school. Id.

Alito invoked the common hypothetical of a predominately black high school basketball team replacing some of its black players with white ones for “some contrived—but facially neutral—reason.” Id. at 8-9. He posited that under the reasoning of Coalition for TJ, this would be perfectly permissible so long as the percentage of blacks remaining on the team still exceeded the percentage of blacks at the school. He called this reasoning “flagrantly wrong” and “a virus that may spread if not promptly eliminated.” Id. at 9.

In reading the majority and dissenting opinions in Coalition for TJ, you may wonder if they are even talking about the same case. The majority held that the admissions policy had “no racially disparate impact on Asian-American students[,]” and that there was “no showing of discriminatory intent by the Board” in enacting the policy. Coalition for TJ, 68 F.4th at 879. The dissent, on the other hand, found that the “Board plainly stated its intention to craft an admissions policy for [the school] that would reform the racial composition of the student body to reflect the racial demographics of the district,” and that policy change was motivated because “only Asian students were ‘over-represented’” and “all other races were ‘under-represented.’” Id. at 894-95 (Rushing, J., dissenting).

It was only one month after the Fourth Circuit decided Coalition for TJ when the Supreme Court issued its decision in Students for Fair Admissions v. President & Fellows of Harvard College, 600 U.S. 181 (2023). Without getting too into the weeds, suffice it to say here that a major factual distinction between the two cases is that the admissions policies of Harvard and UNC explicitly considered race whereas the admissions policy at Thomas Jefferson is fully race blind.

I think a reasonable takeaway from the Coalition for TJ case is that, at least in the Fourth Circuit, a school is permitted to use significant amounts of racial modeling data to formulate an officially race-blind admissions policy that is designed to achieve a certain racial balancing result. Given the current make up and trajectory of the Supreme Court, it was surprising that they didn’t grant cert in Coalition for TJ which presented that issue rather cleanly.

Speech First

The Supreme Court *granted* cert in Speech First, Inc. v. Sands, 69 F.4th 184 (4th Cir. 2023), but only for the purpose of vacating the opinion pursuant to United States v. Munsingwear, Inc., 340 U.S. 36 (1950). Munsingwear vacatur, as it’s known, is a procedure typically limited to vacating an intermediate appellate court’s opinion when the prevailing party has mooted the case before the Supreme Court has an opportunity to review it. The purpose is so the losing party is not stuck with the appellate court decision which might bind them in future cases. But there are times where the prevailing party in the intermediate appellate court intentionally moots the case before Supreme Court review and requests Munsingwear vacatur. And while the move ostensibly benefits the losing party, the motivation behind such a tactic might be because the prevailing party is afraid of losing in the Supreme Court.

Justice Thomas, joined by Alito, wrote that they wanted to resolve the current circuit split on this “high-stakes issue.” Speech First, Inc. v. Sands, No. 23-156 slip op. at 6 (Thomas, J. dissenting). The issue in the case, whether a conservative organization whose mission is to “put colleges and universities on notice that shutting down unwanted speech will no longer be tolerated” has standing to sue universities over policies that encourage students to report “biased” conduct or speech, has now been addressed in five circuits.

To resolve this issue the courts have had to grapple with whether the challenged policies objectively “chill” students’ speech, i.e., whether they cause students to self-censor. Three circuits have held that Speech First has standing. Speech First, Inc. v. Cartwright, 32 F.4th 1110 (11th Cir. 2022); Speech First Inc., v. Fenves, 979 F.3d 319 (5th Cir. 2020); Speech First, Inc. v. Schlissel, 939 F.3d 756 (6th Cir. 2019). The Fourth Circuit joined the Seventh Circuit to hold that it does not. Speech First, Inc. v. Sands, 69 F.4th 184 (4th Cir. 2023); Speech First, Inc. v. Killeen, 968 F.3d 628 (7th Cir. 2020).

Virginia Tech implemented a “bias policy,” that defined a “bias incident” as “expressions against a person or group because of [their] age, color, disability, gender (including pregnancy), gender identity, gender expression, genetic information, national origin, political affiliation, race, religion, sexual orientation, veteran status, or any other basis protected by law.” Sands, 69 F.4th at 187. Tech encouraged students to report all “bias incidents” to their “Bias Intervention and Response Team.” The Team consisted of various school officials and included representatives from the police department. Id. at 188-89. People accused of violating the policy might get invited to a voluntary meeting with the Team, but the Team had no authority to initiate disciplinary proceedings against a student. The Team could, however, refer the student to other authorities that could initiate disciplinary, or even criminal, proceedings against the student. Id. at 194-95.

Speech First claims that its member students want to openly express controversial and unpopular opinions but are afraid that they will be reported, so they stay quiet. In a split decision, the Fourth Circuit found the Team’s inability to initiate disciplinary action meant that a reasonable student’s speech would not be chilled by the policy, and therefore lacked standing. Id. at 196-97. The dissent, on the other hand, concluded that the Team’s ability to refer a student for disciplinary proceedings was enough. Id. at 209-10 (Wilkinson, J. dissenting).

After Virginia Tech won the case in the Fourth Circuit, it eliminated its bias policy and the school’s president promised not to reinstate it. Tech asked the Supreme Court to vacate the Fourth Circuit opinion but Speech First opposed that. If the Supreme Court were to address this issue, I suspect Speech First would prevail given the current makeup of the Court. But instead, a 3-2 circuit split is now reduced to 3-1.

There is a theory that the Supreme Court has been increasingly using Munsingwear vacatur to disproportionately eliminate “liberal” opinions in the circuit courts. See Tucker, Lisa A. and Risch, Michael, Canceling Appellate Precedent, 76 Fla. L. Rev. 175 (2024). And the vacatur of the Fourth Circuit’s opinion here certainly aligns with that theory. But peak appellate gamesmanship is strategically mooting cases to manipulate the Supreme Court’s jurisdiction to prevent them from deciding issues. In the world of appellate litigation, it’s easy to understand that it’s better to lose a favorable circuit opinion than to gain an unfavorable Supreme Court one.

adam@ruffinappeals.com

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