Tough on Underdogs

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The impact of any law depends on what facts must be established in court and how persuasively they must be proved. Recent Supreme Court decisions place a heavier burden of proof on political underdogs, in California and nationwide -- minority voters and students, employees and citizen activists. This increases the advantage already held in our legal system by upperdogs; California state officials, whites and employers.

The court nullified the Voting Rights Act provision requiring jurisdictions with a history of discrimination to show in advance that changes in voting procedures won't violate the Act. Instead, minorities now have the burden of proving their rights were violated. Protecting voting rights just became harder.

The affirmative action case, Fisher v. University of Texas, requires universities to prove that no alternative to race-based admission practices will achieve a sufficient level of student diversity. It is unclear how schools can meet this more exacting burden. If they can't, minority student access to higher education will decline.

Vance v. Ball State University narrowed employers' liability in workplace discrimination cases. By making it harder for employees to prove discrimination, the court weakened the Civil Rights Act.

In the Prop. 8 case, the court narrowed the range of actors who can sue when California state officials don't enforce voter-approved propositions. Parties must show a direct stake in the outcome to seek judicial relief. This means fewer court challenges to the actions of state officials.


All these rulings make it less likely that political underdogs will win in court. Even if they have valid legal arguments, it will be harder for them to provide sufficient evidence to support their case. The legal playing field has never been level. These decisions have tilted it even more.

With a perspective, I'm Steve Woolpert.

Steve Woolpert is the Dean of Liberal Arts at St. Mary's College in Moraga.