President's weekly report — July 18, 2014

July 18, 2014 | By ROB RIVETT

Equality Under the Law Project — Implicit Bias Victory

The Iowa Supreme Court today issued this unanimous opinion in Pippen v. State of Iowa, tossing out an “implicit bias” discrimination lawsuit against the State of Iowa. Under the theory of the case, because Iowa state government officials had, unbeknownst to themselves, an “implicit bias” against certain minorities, they were engaged in unconscious discrimination. In other words, the officials were discriminating against minorities not because they intended to, but because deep down in their subconscious minds they had negative thoughts about minorities. Sort of reminds of us the “Monster from the Id” in The Forbidden Planet, circa 1956. Well, this is Iowa, not Altair-5, and the Iowa Supreme Court struck the case down, pointing out that the plaintiffs could point to no discrete employment practice that caused any alleged injury. You can read more about the case on our blog, and our amicus brief here.

Monster from the Id

Equality Under the Law — More from Texas and the 5th Circuit

In Fisher v. University of Texas, the Fifth Circuit Court of Appeal ruled against Abigail Fisher in her challenge to the University of Texas’s “holistic review” admissions process that considers the race of the applicant.  This is after the United States Supreme Court told the court to take a more careful look at the University’s discriminatory policy in order to determine if it is “narrowly tailored” and whether there are “less restrictive means” of achieving racial diversity.  There was a strong dissent from Judge Garza who suggested that the University’s stated goal of reaching a “critical mass” of diversity was a standard without meaning.  We had filed this amicus brief urging the court to rule for Fisher.  You can read more in our blog post here.  Now, we’re not exactly sure what “critical mass” is supposed to mean in the classroom today either, but this is the sort of critical mass that some of us learned about in the classroom back in the day:

Pretty powerful stuff, critical mass is.

Property Rights — Coastal Land Rights Project

We argued the Lynch v. California Coastal Commission before the California Court of Appeal in San Diego this Monday in San Diego.  This is the case where the California Coastal Commission is putting a 20-year limit on a seawall permit and denying a permit to repair a staircase to the beach.  The Commission suggests that it needs to put a 20-year expiration date on the seawall permit in case conditions change — as if they are saying that the sea level may fall!  In reality, we believe the Commission is simply seeking another opportunity to demand more from the homeowners in twenty years than it thought it could get away with now.  For more on how the argument went, see our blog report.  Also, be sure to listen to the podcast.  Now, to be fair, the sea level has fallen in the past, so maybe the seawall will become unnecessary in the future — just like in this shot of an ancient sea level in Israel:

But we susepct this isn’t what the Coastal Commission has in mind.

Water Rights — Public Trust and Groundwater

This week, the Sacramento Superior Court ruled in Environmental Law Foundation v. State Water Resources Control Board that the public trust doctrine extends to groundwater extraction that affects navigable waters.   Pacific Legal Foundation filed an amicus brief in the case on behalf of the California Farm Bureau Federation, arguing that extending the doctrine to groundwater extraction would raise serious constitutional questions under the due process and takings clauses.  The reach of the decision, however, is limited and you should read our blog post here to learn why.

Environment — EPA Mining Regulations

The D.C. Circuit Court of Appeals issued this adverse decision last week in National Mining Association v. McCarthy.  The Court upheld EPA’s so-called “enhanced permitting procedure” where “enhanced” means enhanced for the EPA, but not the landowners and miners.  We had filed this amicus brief along with other amici last year.