Affirmative Action and Sex Offender Registration

In Fisher the court vacated the Appeals Court ruling and remanded the case saying that the court should have used the highest “strict scrutiny” standard in reviewing the race based admissions policy at the University. The vote was 7-1.

The basic issue in this case was racial preferences as part of college admissions. The question at hand was whether or not they violated the Equal Protection Clause of the Constitution since it does treat one race differently than another.

Over the years the general rule has been that racial preferences can be part of the admissions process at a college or university but not the only standard, and that the system must be narrowly tailored.

In this case the Fifth Circuit Court of Appeals had upheld the program at the University of Texas, but the Supreme Court vacated that ruling and sent it back for further analysis by the Fifth Circuit.

According to Justice Kennedy the lower court had not properly applied the existing standard under the Grutter case. In that case the Supreme Court had upheld an admissions program at the University of Michigan Law School.

However according to the seven-member majority that standard was not properly applied by the Fifth Circuit. The order to the Fifth requires them to apply a two-step analysis.

In the first step of the analysis they are to do what the Fifth Circuit basically did already which is to determine that the university had a good-faith belief that using race as a factor in admissions provides an educational benefit (i.e. that students benefit from being in a racially diverse student body).

In the second step the University also have to show to the court that they have tried other methods to encourage minority enrollment and that none of them are workable or viable. If so then it appears the court is willing to uphold the admissions process if not they would likely hold it needs to be changed or eliminated.

It seems to me that in this case they are essentially adopting the standard that many people have discussed, to basically consider whether society has evolved to the point that racial preferences are no longer necessary and if so to eliminate those preferences from admissions processes

The court also issued a ruling in the case of United States v. Kebodeaux. In this case the court was examining the application of the Sex Offender Registration and Notification Act (SORNA), a law which requires federal sex offenders to register in the states where they live.

Kebodeaux is a former member of the United States Air Force who was convicted in a special court-martial of a sexual offense (he was 21 and had consensual sex with a 15 year old) and sentenced to time in prison as well as a bad conduct discharge. When his sentence was completed Kebodeaux was released without conditions, that is there was no probation or other requirements connected to his release.

Several years later Congress passed SORNA and Kebodeaux initially registered but later failed to update his registration. He was tried and convicted of violation of the act and sentenced to year in prison.

He appealed arguing that since he had fully served his sentence before the law was passed it could not possibly apply to him. The Fifth Circuit Court of Appeals agreed and reversed his conviction. The Supreme Court reversed the Fifth Circuit and restored his conviction

Writing for the majority Justice Breyer stated that even after his release from custody the defendant was still subject to the terms of the Wetterling Act, a law passed prior to the defendant’s conviction which required some level of sex offender registration.

In essence the court found that the new law was merely an amendment or adjustment to the old and thus Kedodeaux was covered by it. In addition the court held that since Congress has the power to regulate the Military, the law was covered by the Necessary and Proper Clause.

Justice Scalia dissented holding that the new law was not an extension of the old (the Wetterling Act required *states* to establish a sex registry but did not establish a federal one) and further that it was debatable as to whether the original law was a valid exercise of federal power. Justice Thomas also dissented holding that the law “usurps the general police power vested in the states”.

This is another one of those cases where you can find yourself conflicted. Certainly nobody wants sex offenders out there preying on innocent victims, but on the other hand there is a principle that ex post facto laws should not be allowed.

I will certainly want to read all of the opinions in this case.


Posted on June 24, 2013, in Constitution, Patrick and tagged , . Bookmark the permalink. 1 Comment.

  1. An additional concern that I have – are there some crimes (or class of crimes) that, as a society, we hold in such disdain, such loathing, such deep revulsion, that there is no way we (a) have a sufficient penalty to make atonement and (b) we want no chance of losing track of the individuals who commit such crimes?

    On a personal note, I find myself unable to be dispassionate about this particular class of crime. The damage is so overwhelming to the victim and so widespread among those who will have any relationship with the victim in the future that there is no possibility of ever making any act of restoration on the side of the criminal.

    That being the case, I would prefer to see Congress enact permanent and strict tracking and registration, but, alas, lessons learned has to apply to cases before such legislation. The Constitution must stand supreme (ex post facto). It is a small comfort that virtually all of these criminals will re-offend and thus end up under the constraints of a new law. But that will also require the societal sacrifice of new victims, and that is repulsive yet again.


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