Friday, September 28, 2012

Daily Read: Segall on O'Connor in Grutter

As the October 10 oral argument in Fisher v. University of Texas approaches, Grutter v. Bollinger (2003) is  center stage.  Consider this critique:

Finally, at the end of Justice O’Connor’s opinion [in Grutter] upholding the law school’s racial preferences, she wrote that, “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”  How does Justice O’Connor know what the state of racial affairs know what the state of racial affairs will be in this country in 25 years and what authorizes her to put a sunset provision on the holding of this case?  A legislator voting for an unpopular piece of legislation might wish to place her vote in the context of a statement suggesting that a time may come when her vote will change or become necessary. But given the historical and political complexity of the affirmative action debate, for Justice O’Connor to suggest that she has some special awareness as to when race-bases measures ay no longer be necessary, and to identify that time 25 years in advance, is judicial hubris and an inappropriate and arbitrary exercise of judicial power.  In fact, it is not “judicial” at all.

It's from Eric Segall's book, Supreme Myths: Why the Supreme Court is Not a Court and Its Justices Are Not Judges (2012). 


It is a sentiment with which others, including perhaps the now-retired Justice O'Connor, might agree, albeit in more gentle language.

Segall's chapter on "Affirmative Action" is a good review of the cases and controversies that have led to Fisher.  His critical perspective on affirmative action would counsel the Court to defer to the university's use of racial criteria. 

Segall's overall thesis - - - captured by the book's subtitle - - - provides a somewhat daunting view of the relevance of constitutional litigation in the Supreme Court, but Segall's book is ultimately an optimistic and engaging read.


September 28, 2012 in Affirmative Action, Books, Cases and Case Materials, Equal Protection, Federalism, Fourteenth Amendment, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 19, 2012

Daily Read: Radice on Bell on ConLaw Pedagogy

Need some midweek teaching inspiration? 

Derrick BellProfessor Joy Radice shares her observations of the conlaw teaching of the late Derrick Bell (pictured): "Bell’s classroom community was a safe space to learn constitutional law, to discuss difficult but related issues of race, class, and gender, and to take risks when thinking about legal strategies."

Radice's terrific brief essay, "Derrick Bell’s Community-Based Classroom,” is part of the wonderful collection of essays from the conference last year, now available in Columbia Journal of Race and Law:

  • “The Post Racial Era: Race, Silence, the Denial of Race/Racism and Optimism,” –Leonard Baynes, St. John’s University School of Law
  •  “Notes Toward a Critical Contemplation of the Law,” –Sonia Katyal, Fordham University School of Law
  • “Derrick Bell’s ‘Afrolantica’ and Gentrification in Harlem,” –Twila Perry, Rutgers University School of Law
  • “How Derrick Bell Helped Me Decide to Become an Educator, Not Just a Faculty Member,” –Vanessa Merton, Pace University School of Law
  • “Derrick Bell’s Community-Based Classroom,” –Joy Radice, University of Tennessee College of Law
  • “ ‘A Living Working Faith’: Remembering Our Colleague Derrick A. Bell, Jr. as Teacher,” –Andrea McArdle, CUNY School of Law
  • “A Legacy of Teaching,” –Robin Lenhardt, Fordham University School of Law
  • “Derrick Bell’s Children,” –I. Bennett Capers, Brooklyn Law School
  • “From Interest Convergence to Solidarity,” –Julie Suk, Cardozo School of Law, Yeshiva University
  • “A Multiplicity of Interests,” –Rachel Godsil, Seton Hall University School of Law
  • “Racial Fortuity, Rights Sacrifice, and the Promise of Convergence in Prison and Policing Policy,” –Taja-Nia Henderson, Rutgers School of Law – Newark

Each one of these essays is worth a read.


September 19, 2012 in Affirmative Action, Current Affairs, Equal Protection, Profiles in Con Law Teaching, Race, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Monday, September 17, 2012

Daily Read: Sanders on Fisher v. UT

Why should courts deciding constitutional questions give deference to a bunch of professors? 

Steve SandersConLawProf Steve Sanders (pictured) poses this query with reference to the Court's decisionmaking in Fisher v. University of Texas in his brief essay over at SCOTUSBlog (part of SCOTUSBlog's terrific Fisher Symposium).

The best answer, Sanders tells us, "is that faculty members’ educational judgments are formed by the specialized training, engagement with scholarly disciplines, and daily classroom experience they bring to their work, and judges lack these things."

An interesting take on academic freedom in the context of affirmative action.


September 17, 2012 in Affirmative Action, Association, Equal Protection, First Amendment, Fourteenth Amendment | Permalink | Comments (1) | TrackBack (0)

Monday, September 3, 2012

Labor Day Scholarship Pick: "Labor and Racial Solidarity"

494px-Martin_Luther_King_Jr_NYWTSIn their draft "So Closely Intertwined: Labor and Racial Solidarity," available on ssrn, Professors Nancy Leong (Denver) and Charlotte Garden (Seattle) seek to bring alive the words of Martin Luther King from which their title is derived:  "As I have said many times, and believe with all my heart, the coalition that can have the greatest impact in the struggle for human dignity here in America is that of the blacks and forces of labor, because their fortunes are so closely intertwined.”

ConLawProfs Leong and Garden deploy a variety of theories and doctrines, anchoring their article in "an interdisciplinary literature that includes insights from legal, economic, psychological and sociological scholarly research."  They view their narrative as a counter-narrative to the conventional wisdom that the relationship between unions and people of color is one of rivalry.  Their first section takes on four pieces of conventional wisdom: 

  • Interests of White and Non-White Workers Are Fundamentally Opposed
  • Unions Benefit Only White Workers
  • Unions Lack Racial Empathy
  • Unions Don’t Care About Communities of Color

These myths are worth debunking, although Leong and Garden also discuss their genesis in scholarship and doctrine. One of the joys of the paper as a piece of co-authored scholarship is the authors' frank portrayal of their own attempts at understanding and their disagreements.  In considering the difficulty in discerning how to interpret the "Black History Month event" organized by the SEIU, Service Employees International Union, the professors agree that there was "overt exoticism," but differed as to how broadly problematic the entire event should be judged.

The constitutional theory is mostly implicit, but this is an important piece bridging racial equality and employment equality for this Labor Day.

[image: Martin Luther King, 1964, via]

September 3, 2012 in Affirmative Action, Current Affairs, Equal Protection, Race, Reconstruction Era Amendments, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Friday, August 17, 2012

Federal DC Judge Enjoins Small Business Affirmative Action Program as Applied to Military Simulators

In an extensive opinion in DynaLantic Corp. v. United States Department of Defense, Judge Emmet G. Sullivan has enjoined the Small Business Administration and the Department of Defense from awarding procurements for military simulators under the Section 8(a) program without first articulating a strong basis in evidence for doing so.

Huey_HelicopterIn a nutshell, the judge found that the constitutionality infirmity resided in the agencies' failure to specifically determine "that it is necessary or appropriate to set aside contracts in the military simulation and training industry."  Relying upon City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (plurality opinion), Judge Sullivan stated that " Croson made clear that the government must provide evidence demonstrating there were eligible minorities in the relevant market - in that case, the Richmond construction industry - that were denied entry or access notwithstanding their eligibility," and thus the agencies' lack of specific studies relating to the military simulation industry was fatal.

Yet Judge Sullivan rejected the facial challenge to Section 8(a) of the Small Business Act which permits the federal government to limit the issuance of certain contracts to socially and economically disadvantaged businesses.  The corporation argued that the Section 8(a) program - - - a program that evolved from Executive Orders issued by Presidents Lyndon B. Johnson and Richard M. Nixon in response to the Kerner Commission - - - violated the Equal Protection component of the Fifth Amendment. Applying the rigorous standard of United States v. Salerno, 481 U.S. 739, 745 (1987). requiring that the "challenger must establish that no set of circumstances exists under which the Act would be valid,” Judge Sullivan carefully considered reams of studies, data, and information, as well as the corporation's arguments attacking the provision for being both overinclusive and underinclusive.

This litigation began in 1995 when the Navy determined it would award its contract for a flight simulator for the Huey helicopter (pictured above) through the Section 8 (a) program.  DynaLantic's lawsuit was dismissed for standing, the D.C. Circuit reversed, and then protracted litigation continued as Congress reauthorized the program and a plethora of studies, evidence, and arguments accumulated.

As the educational affirmative action case of Fisher goes to the United States Supreme Court,  DynaLantic is a reminder of the continued legacy of Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), as well as Croson in the government procurement context. 

[image via]

August 17, 2012 in Affirmative Action, Due Process (Substantive), Equal Protection, Fifth Amendment, Race, Reconstruction Era Amendments | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 25, 2012

Scholarly Discussion on Fisher v. University of Texas

The United States Supreme Court is set to hear oral arguments in the affirmative action case of Fisher v. University of Texas on October 10, having granted certiorari from the Fifth Circuit's decision upholding the UT plan and perhaps informed by Judge Edith Jones' stinging dissent from the denial of en banc review, as we discussed.

The Vanderbilt Law Review En Banc Roundtable has just published a series of relatively brief articles on the case: 

Girardeau A. Spann, Fisher v. Grutter

James F. Blumstein, Grutter and Fisher: A Reassessment and a Preview

Vikram David Amar, Is Honesty the Best (Judicial) Policy in Affirmative Action Cases? Fisher v. University of Texas Gives the Court (Yet) Another Chance to Say Yes

Gerald Torres, Fisher v. University of Texas: Living in the Dwindling Shadow of LBJ’s America

Tomiko Brown-Nagin, The Diversity Paradox: Judicial Review in an Age of Demographic and Educational Change


Each of these articles is worth a read and the law review editors promise further exchange among the authors. 


July 25, 2012 in Affirmative Action, Equal Protection, Federalism, Fourteenth Amendment, Reconstruction Era Amendments, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 23, 2012

CFP: AALS ConLaw Section

Section on Constitutional Law
Call for Papers for January 2013 AALS Annual Meeting Program:
“Forty Years after Rodriguez, 35 Years after Bakke:
Education, Equality and Fundamental Rights”
UnderwoodKeyboardThe Section on Constitutional Law and the Section on Education Law will be holding a joint program at the January 2013 AALS annual meeting. The program topic is “Forty Years after Rodriguez, 35 Years after Bakke: Education, Equality and Fundamental Rights.” The program will be held on Friday, January 4, from 2:00-5:00pm.

The panel organized by the Education Law Section will emphasize school financing, forty years after the Supreme Court held in Rodriguez that there is no fundamental right to education under the U.S. Constitution and that public school funding disparities are not subject to close scrutiny.
The Section on Constitutional Law panel will deal primarily with the constitutionality of racial affirmative action in higher education admissions. Among other matters, it will consider the implications of the Court’s grant of review in Fisher v. University of Texas, involving an undergraduate affirmative-action admissions program.

The Section on Constitutional Law invites submission of abstracts (of no more than five pages) for purposes of choosing one speaker for this panel. The speaker who is chosen will be expected to produce a paper that can be posted on the AALS web site prior to the annual meeting and that will be published in the Loyola Law Review.
Deadline Date for Submission: August 1, 2012
For more information and submission of abstracts, contact Professor Mark S. Scarberry, Pepperdine University School of Law, mark.scarberry AT


May 23, 2012 in Affirmative Action, Conferences, Race, Recent Cases, Reconstruction Era Amendments, Scholarship | Permalink | Comments (1) | TrackBack (0)

Tuesday, February 21, 2012

Supreme Court to hear Fisher v. University of Texas: The Use of Race in Admissions

In a case that might be called the sequel to Grutter v. Bollinger, the United States Supreme Court granted certiorari  today in Fisher v. University of Texas, a suit by a white woman challenging the post-Grutter admission plan at UT. (Justice Kagan recused).  [Update: There's a terrific explanation of the procedural problems with the case, including Art III standing issues, by Adam Chandler].

The dissenting opinion to the denial of en banc review by the Fifth Circuit, authored by the high profile conservative Chief Judge Edith Jones, sets out the arguments against the panel's opinion, 631 F.3d 213, upholding the UT plan, arguing that the panel extends Grutter in three ways.

  • First, it adopts a new “serious good faith consideration” standard of review, watering down Grutter’s reliance on strict narrow tailoring.
  • Second, it authorizes the University’s race-conscious admissions program although a race-neutral state law (the Top Ten Percent Law) had already fostered increased campus racial diversity.
  • Finally, the panel appears to countenance an unachievable and unrealistic goal of racial diversity at the classroom level to support the University’s race-conscious policy.

Jones continues, arguing that the meaning of "diversity" is less than coherent:

This decision in effect gives a green light to all public higher education institutions in this circuit, and perhaps beyond, to administer racially conscious admissions programs without following the narrow tailoring that Grutter requires. Texas today is increasingly diverse in ways that transcend the crude White/Black/Hispanic calculus that is the measure of the University’s race conscious admissions program. The state’s Hispanic population is predominately Mexican-American, including not only families whose Texas roots stretch back for generations but also recent immigrants. Many other Texas Hispanics are from Central America, Latin America and Cuba. To call these groups a “community” is a misnomer; all will acknowledge that social and cultural differences among them are significant. Whether the University also misleadingly aggregates Indians, Pakistanis and Middle Easterners with East “Asians” is unclear, but Houston alone is home to hundreds of thousands of people from East Asia, South Asia and the Middle East. In Texas’s major cities, dozens of other immigrant groups reside whose families have overcome oppression and intolerance of many kinds and whose children are often immensely talented. Privileging the admission of certain minorities in this true melting-pot environment seems inapt. But University administrators cherish the power to dispense admissions as they see fit, which might be reasonable except for two things: the Texas legislature has already spoken to diversity, and the U.S. Constitution abhors racial preferences. Because even University administrators can lose sight of the constitutional forest for the academic trees, it is the duty of the courts to scrutinize closely their “benign” use of race in admissions.


Jones later states,

The effect of the panel’s wholesale deference becomes clear when one considers the important factual distinction between this case and Grutter. In Fisher, the plaintiffs challenged a post-Grutter University plan whereby 19% of the entering freshman class were subject to a race-conscious admissions process to increase diversity.  As Judge Garza’s concurrence demonstrates, the number of students actually admitted under this racial preference policy is unclear, but it amounted to no more than a couple hundred out of more than six thousand new students. . . . The panel opinion asserts that the University’s admission process is constitutionally acceptable because it is modeled closely after Grutter. Yet the difference is obvious. The Texas legislature statutorily mandated increased diversity in admissions by means of the Top Ten Percent Law. Under that race- neutral law, covering 80% of University admissions, the top ten percent of graduates from every Texas high school were automatically admitted, and many African-American and Hispanic students matriculated to the University. The challenged preferential policy was adopted on top of the unprecedentedly high numbers (compared to many other universities) of preferred minorities entering under the Top Ten Percent Law.

The pertinent question is thus whether a race-conscious admissions policy adopted in this context is narrowly tailored to achieve the University’s goal of increasing “diversity” on the campus. Contrary to the panel’s exercise of deference, the Supreme Court holds that racial classifications are especially arbitrary when used to achieve only minimal impact on enrollment. 

. . .  Finally, in an entirely novel embroidering on Grutter, the panel repeatedly implies that an interest in “diversity” at the classroom level—in a university that offers thousands of courses in multiple undergraduate schools and majors—justifies enhanced race-conscious admissions.

While Justice O'Connor ended the Court's opinion in Grutter with an expectation that  "25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,"  it seems that Grutter will be revisited less than a decade later - - - and with O'Connor no longer on the Court and Kagan recused.


February 21, 2012 in Affirmative Action, Current Affairs, Equal Protection, Fourteenth Amendment, Race, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Monday, September 26, 2011

Wisconsin Law School Conference: The Constitutionalization of Labor and Employment Law?

Wisconsin has recently been the site of several recent controversies regarding labor law, including academic labor, and the University of Wisconsin Law School Conference, The Constitutionalization of Labor and Employment Law?, on October 28-29, 2011 in Madison is sure to address some of these issues. 


Additionally, the conference organizers note that recent "U.S. Supreme Court cases have contained much legal discussion at the intersection of constitutional law concepts and the law of the workplace – both in the public-sector workplace where constitutional state action exists and in the private-sector workplace where it does not. Recent cases include: Garcetti v. Ceballos, Christian Legal Society v. Martinez, City of Ontario v. Quon, NASA v. Nelson, Engquist v. Oregon Dept. of Agricultural, and Ricci v. DeStefano."

The 5 panels are Equal Protection, 13th Amendment, Workplace Privacy, Freedom of Association and Freedom of Speech.  

More information, including registration information is here.  The "symposium fee is waived for full-time members of academia," pre-registration is required and the deadline is October 18. 


September 26, 2011 in Affirmative Action, Association, Conferences, Current Affairs, Equal Protection, First Amendment, Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Privacy, Race, Recent Cases, Scholarship, Speech, Supreme Court (US), Thirteenth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 13, 2011

CFP: Diversity and Law School Admissions

Hosted by SALT, the Society of American Law Teachers, the Journal of Civil Rights and Economic Development at St. John's University School of Law is seeking articles and essays.

StJohnConference The call for papers specifically mentions:
"How the U.S. News and World Report could incorporate diversity into its law school rankings methodology in a fair and meaningful way;
Studies on special issues present when advising college students of color about law school admissions;
Model practices for pre-law advisement of students of color."

However the topic is certainly sufficiently broad to encompass ConLaw discussions and scholarship.

From the editors:
If you would like to contribute a paper for consideration,
please submit an abstract of 250 words or less through our online abstract submission form or by email to The abstract submission deadline is October 1, 2011. Selected authors must submit their finished papers to the Journal no later than January 15, 2012.


September 13, 2011 in Affirmative Action, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, August 26, 2011

Paradox of Political Power: William Carter on Post-Racialism and Equality

The paradox is one that has almost become taken for granted.  As ConLawProf William Carter (pictured below) phrases it in his new essay, The Paradox of Political Power: Post-Racialism, Equal Protection, and Democracy, available on ssrn:

Racial minorities have achieved unparalleled electoral success in recent years. Simultaneously, they have continued to rank at or near the bottom in terms of health, wealth, income, education, and the effects of the criminal justice system.

Carter_WebPhoto Carter argues that the Supreme Court has contributed to this paradox.  Importantly, Carter contends that electoral success has been "isolated," despite the election of President Obama, and that the Court has not uniformly supported legislative acts to increase electoral representation.  Additionally, Carter notes the "tension" between the "Court's conservatives' repeated calls for minorities to achieve their goals through the political process" and the ways in which the Court "severely constrains the circumstances" in which the political power of racial minorities can effectively be exercised.

In discussing Ricci v. DeStefano (2009), Carter concludes that the Court's majority opinion "showed deep suspicion of black political power."  Carter contends that the Court found that

successful black political advocacy that temporarily prevented the perpetuation of racial exclusion amounted to reverse discrimination against whites. It reached this conclusion despite the fact that no promotions were made at all and the fact that making the racially discriminatory promotions likely would have violated then-existing law. In essence, Ricci makes a racial minority group’s success in using ordinary politics to prevent its continued subordination and exclusion presumptively illegal.

Carter also analyzes Northwest Austin v. Holder, decided the same year as Ricci, involving  §5 of the federal Voting Rights Act.  He provides a different window on the opinion than the ones (such as our discussion) construing it as a narrow opinion that avoided declaring §5 unconstitutional.  For Carter, Justice Roberts "lengthy dicta" was a signal to Congress that several members of the Court believed §5 raised serious constitutional questions.  The opinion, Carter says, was "suffised with post-racialist assumptions about minority political power."   Carter sums up the paradox of voting rights legislation in a neat question: "If racial minorities are powerful enough to have such legislation enacted, then why do they need it?"

The major contribution of Carter's essay, however, is his suggestion for addressing these paradoxes.  In addition to theorizing our understandings of our Constitutional and Equal protection Clause narratives, Carter suggests

the addition of a preliminary step to the equal protection analysis. Prior to the application of
strict scrutiny in cases where racial minorities have used the political process to enact legislation directed toward remedying the effects of past discrimination or otherwise leveling the playing field, the courts should scrutinize the political process that led to the decision in question, not merely the end result.

Undoubtedly, Carter's essay is a noteworthy contribution to our scholarly understanding of recent "race-cases" from the Court.  It is also terrific teaching material.  Carter's relatively brief essay, 34 pages, would make an excellent assignment for students in traditional Constitutional Law courses as well as courses focusing on the Fourteenth Amendment, on Equality, or on Race.  It is sure to inspire discussion and student reaction papers.


August 26, 2011 in Affirmative Action, Congressional Authority, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, Race, Scholarship, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Monday, January 24, 2011

Fifth Circuit Upholds UT Affirmative Action Plan

A three-judge panel of the Fifth Circuit last week upheld the affirmative action plan used by the University of Texas for its undergraduate admissions.  The panel ruled in Fisher v. University of Texas that the plan was modeled on the plan that the Supreme Court upheld in Grutter v. Bollinger--that it used race as only one factor and that it looked at applications as a whole in order to achieve the educational benefits of diversity at the school.  The plan thus satisfied strict scrutiny.

UT has a two-part admission policy.  First, the school automatically admits Texas seniors in the top 10% of their high school graduating class.  Next, for all others UT uses an index based upon two required essays and a "personal achievement score," which represents an evaluation of the applicant's entire file (including, among many other factors, race). 

Only the second part was at issue in the case.  But the panel ruled that the second part met the standard under Grutter.  The panel first rejected the appellants' argument that it should apply a "strong basis in evidence" standard.  That standard, the panel ruled, was appropriate for backward-looking employment decisions to remedy past wrongs, but not for forward-looking, holistic educational decisions to enhance diversity:

The high standard for justifying the use of race in public employment decisions responds to the reality that race used in a backward-looking attempt to remedy past wrongs, without focus on individual victims, does not treat race as part of a holistic consideration.  In doing so, it touches the third rail of racial quotas.  Wygant and Croson both involved explicit quotas; in Ricci, the Court was concerned that the city's use of race threatened to devolve into a de facto quota.

By contrast, Grutter recognized that universities are engaged in a different enterprise.  Their holistic approach is part of a forward-looking effort to obtain the educational benefits of diversity.  The look to race as but one element of this further goal, coupled with individualized consideration, steers university admissions away from a quota system.  Grutter teaches that so long as a university considers race in a holistic and individualized manner, and not as part of a quota or fixed-point system, courts must afford a measure of deference to the university's good faith determination that certain race-conscious measures are necessary to achieve the educational benefits of diversity, including attaining critical mass in minority enrollment.

Parents Involved in Community Schools v. Seattle School District No. 1 further supports this understanding.  When scrutinizing two school districts' race-conscious busin plans, the Court invoked Grutter's "serious, good faith consideration" standard, rather than the strong-basis-in-evidence standard that Appellants would have us apply.

Op. at 31. 

The panel, looking closely at the numbers, also rejected the appellants' arguments that the plan amounted to racial balancing and that UT did more than necessary to achieve a critical mass for diversity.  (The panel noted that the first part of the policy, the 10% rule, was "at best a blunt tool for securing the educational benefits that diversity is intended to achieve"--that it alone wasn't doing the job and therefore wasn't an adequate, alternative, race-neutral way of obtaining critical mass, as appellants argued.)

Judge Emilio Garza issued a sharp and lengthy special concurrence, agreeing with the result under Grutter, but strongly disagreeing with Grutter.  Here's a taste:

My disagreement with Grutter is more fundamental, however.  Grutter's failing, in my view, is not only that it approved an affirmative action plan incapable of strict scrutiny, but more importantly, that it approved the use of race in university admissions as a compelling state interest at all.

The idea of dividing people along racial lines is artificial and antiquated.  Human beings are not divisible biologically into any set number of races.  A world war was fought over such principles.  Each individual is unique.  And yet, in 2010, governmental decisionmakers are still fixated on dividing people into white, black, Hispanic, and other arbitrary subdivisions. . . .

When government divides citizens by race, matters are different.  Government-sponsored discrimination is repugnant to the notion of human equality and is more than the Constitution can bear.

Op. at 83-84.


January 24, 2011 in Affirmative Action, Cases and Case Materials, Equal Protection, Fourteenth Amendment, Fundamental Rights, News | Permalink | Comments (1) | TrackBack (0)

Friday, April 9, 2010

Stevens' Anomaly: Rethinking Equal Protection and Affirmative Action

With Justice Stevens' announced retirement, it is a fitting time to consider his contribution to constitutional law, doctrinally, theoretically, and pedagogically. 

One of Stevens' contributions in the equal protection area is his famous "anomaly."  Dissenting in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995), Stevens wrote:

the Court may find that its new "consistency" approach to race-based classifications is difficult to square with its insistence upon rigidly separate categories for discrimination against different classes of individuals. For example, as the law currently stands, the Court will apply "intermediate scrutiny" to cases of invidious gender discrimination and "strict scrutiny" to cases of invidious race discrimination, while applying the same standard for benign classifications as for invidious ones. If this remains the law, then today's lecture about "consistency" will produce the anomalous result that the Government can more easily enact affirmative-action programs to remedy discrimination against women than it can enact affirmative-action programs to remedy discrimination against African Americans - even though the primary purpose of the Equal Protection Clause was to end discrimination against the former slaves. When a court becomes preoccupied with abstract standards, it risks sacrificing common sense at the altar of formal consistency.

In other words, the combination of the "tiers" of scrutiny for equal protection with affirmative action doctrine allows the government to more easily assist those groups who the judiciary has deemed the least deserving of judicial protection. 

While Stevens was not alone in realizing this consequence, the clear discussion in his dissenting opinion in Adarand has been exceedingly useful in the classroom, not to mention formulating exam hypotheticals.


April 9, 2010 in Affirmative Action, Current Affairs, Equal Protection, Fourteenth Amendment, Gender, Interpretation, Race, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 4, 2009

Racial and Economic Integration of K-12 Schools: Conference

Reaffirming the Role of School Integration in K-12 Public Education Policy: A Conversation Among Policymakers, Advocates and Educators is the title of a conference to be held at Howard University School of Law Washington, D.C. on Friday, November 13, 2009.

The Conference is organized by the Charles Hamilton Houston Institute for Race & Justice (at Harvard Law School).


The organizers intend to bring "together a wide range of government officials to converse with educators, civil rights advocates, and scholars who support racially and economically integrated K-12 public schools.  Participants will learn about racial and socioeconomic integration incentives in current and proposed federal policies, regulations and spending programs.  Panelists and audience members also will discuss current integration efforts on the ground that sustain quality integrated schools and stable communities."

Certainly, the continuing impact of the Court's 2007 opinion in Parents Involved in Community Schools v. Seattle School District 1 will be a topic for discussion. Speakers include Theodore Shaw, Susan Eaton, and john powell, as well as a wide array of government officials.

Registration reportedly ends this Friday.  More information here.


November 4, 2009 in Affirmative Action, Conferences, Equal Protection, Fourteenth Amendment, Race | Permalink | Comments (0) | TrackBack (0)

Saturday, October 3, 2009

"Testing" Affirmative Action: Saturday Evening Review

The relationship between the Equal Protection Clause and the 1964 Civil Rights Act (especially Titles VI and VII) was once an amicable one.  Indeed, it was so amicable that one could conveniently ignore the Civil Rights Act when teaching equal protection doctrine; a student query about a reference to Title VI or Title VII could be answered summarily.

Contemporary equal protection doctrine, however, renders any racial classification subject to strict scrutiny, with the consequence that a state actor trying to comply with the 1964 Civil Rights Act and prevent racial disparities may be successfully sued for considering race. In his concurring opinion in Ricci v. DeStefano, Justice Scalia wrote

The Court's resolution of these cases makes it unnecessary to resolve these matters today. But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how- - - and on what terms - - - to make peace between them.

Another battleground in the affirmative action "war" (to use Scalia's term) is between state ballot initiatives (such as the post-Grutter Proposal 2 in Michigan) and the federal law.  A useful intervention in that "war," although probably not on the side that Justice Scalia would favor, is Professor Kimberly West-Faulcon's article, The River Runs Dry: When Title VI Trumps State Anti-Affirmative Action Laws, 157 U. Pa. L. Rev. 1075 (2009).  West-Faulcon's focus is the

tension between state anti-affirmative action laws and federal antidiscrimination law. Consequently, with seemingly little regard for Title VI federal civil rights law, public universities have been prone to assume that “affirmative action-less” admissions policies and plunging minority admissions are the inevitable outcome of compliance with state anti-affirmative action laws. At an affirmative action-less university, the river runs dry--the institution virtually stops admitting certain racial groups and presumes that state anti-affirmative action laws dictate such a result. This Article challenges this framing. Its point of departure is to explain how the prominent role of the SAT in selective college admissions, dictated in large measure by its importance in college-ranking and financial bond-rating systems, creates an incentive for universities to adopt “minority-deficiency” over “test-deficiency” explanations for racial differences in SAT scores.

Kimberly West-Faulcon (pictured right) Westfaulcon2 notes that the "persistence of racial differences in SAT scores even when selecting among applicants with very strong academic credentials puts the SAT at the heart of the affirmative action debate" in the higher education context.  She contends that "decades of analysis of SAT scores have shown a variety of group disparities when students are separated based on certain categories. Specifically, men score, on average, better than women; whites and some Asian groups score better than Latinos and African Americans; the rich score better than the poor; and city dwellers score better than students from rural communities."  (footnotes omitted). 

It is affirmative action admissions policies that can "counterbalance" these test outcomes.  West-Faulcon's discussion, in footnote 122, provides the equal protection connection:

Interestingly, Justice Thomas, a staunch critic of race-based affirmative action, was the member of the Court in Grutter who most explicitly described the manner in which universities have traditionally used affirmative action as a corrective for the deficiencies in tests like the SAT:
[N]o modern law school can claim ignorance of the poor performance of blacks, relatively speaking, on the Law School Admissions Test (LSAT). Nevertheless, law schools continue to use the test and then attempt to “correct” for black underperformance by using racial discrimination in admissions so as to obtain their aesthetic student body.... The [University of Michigan] Law School itself admits that the test is imperfect, as it must, given that it regularly admits students who score at or below 150 (the national median) on the test.

Grutter, 539 U.S. at 369-70 (Thomas, J., dissenting). Justice Thomas refused to condone race-conscious admissions because the University of Michigan Law School's need to use affirmative action was a “self-inflicted wound." Justice Powell, however, reached a very different conclusion in Bakke regarding the legal significance of test deficiency. He suggested that the need to use race as a corrective for deficiencies in a test's predictive ability may constitute a compelling state interest. See Bakke, 438 U.S. at 306 n.43 (suggesting that racial classification could offset “some cultural bias in grading or testing procedures”).  Professor Tomiko Brown-Nagin has noted, “But for the University's heavy reliance upon discriminatory admissions criteria as a sorting mechanism, the aspirations for diversity and selectivity would not be in tension.” Tomiko Brown-Nagin, The Transformative Racial Politics of Justice Thomas?: The Grutter v. Bollinger Opinion, 7 U. Pa. J. Const. L. 787, 800 (2005).

West-Faulcon's article provides a useful counter-balance for the often unexamined proposition that standardized tests (whether they be the SAT, LSAT, the firefighters test in Ricci or the police officers test in Washington v. Davis) are truly "standardized" in a multicultural context.


October 3, 2009 in Affirmative Action, Equal Protection, Race, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Saturday, March 28, 2009

Voting Rights and African-Americans: Robson's Saturday Evening Review

With Northwest Austin Municipal Utility District v. Holder (considering the application and reauthorization of Section 5 of the Voting Rights Act) scheduled for oral argument before the Court the last day in the term, and most recently blogged here, legal scholarship on voting and race could not be more timely.  Luckily, there are two superb recently published articles that illuminate the subject of voting rights and African-Americans, especially pertinent for ConLawProfs.

The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty, 43 Harv. C.R.-C.L. L. Rev. 65 (2008) by Gabriel J. Chin and Randy Wagner opens with this provocative statement:

Modern constitutional law and scholarship rests on a conceptual mistake:
thinking of African Americans as a minority.


Gabriel (Jack) Chin and Randy Wagner argue that although African-Americans may have been a "minority nationally," they were

a majority in the states where their population was most highly
concentrated. In 1880, for example, African Americans were an absolute
majority in Louisiana, Mississippi, and South Carolina; and were over 40%
of the population in Alabama, Florida, Georgia, and Virginia, making Afri-
can Americans the largest single voting bloc in those states.

Further, "allied with Republican whites, African Americans outnumbered conservatives and
earned majority control of the electoral system in many states."  This history of majority political power, they contend, "creates an imperative to rethink segregation and the present condition of African Americans," moving disenfranchisement from one of a "laundry list of indignities," to a central feature of analysis.  The authors offer the tyranny model in which African-Americans

lost their majority power through unconstitutional means.
Thus, the disadvantages they experienced were the result not
of majoritarian indifference or discrimination, but of minority tyranny.

The authors' historical sections (complete with charts) of the Reconstruction and Jim Crow eras is compelling, demonstrating racial discrimination at the local, state, and federal levels as related to disenfranchisement.  The theoretical implications of their argument for judicial review strike at understandings of the so-called "counter-majoritarian difficulty": 

The idea at the core of the counter-majoritarian difficulty, that judicial
review should be restrained lest courts interfere with decisions of majorities,
counseled judicial vigor when those seeking help from the courts were in
fact majorities. If African Americans were a majority or controlling plurality
at the turn of the twentieth century, then judicial decisions failing to defend
their interests could not be the result of an effort, correct or not, to balance
majority rule and minority rights. Instead, anti-African American decisions
sacrificed both the principle of democracy and the letter of the Constitution
in favor of some other principle. The Court knew what it was doing when it
upheld discrimination and disenfranchisement; it consciously upheld laws
passed by minorities, against the will of majorities, who because of their
race had been denied the right to vote provided by the Constitution.
[in 1879] the Court recognized that there were "[s]tates where the colored
people constitute a majority of the entire population.''

Such a recognition, as Chin and Wagner argue, casts Plessy v. Ferguson, as well as other cases, in a very different light.

In her brilliant response, Trampling Whose Rights? Democratic Majority Rule and Racial Minorities: A Response to Chin and Wagner,  43 Harv. C.R.-C.L. L. Rev. 127 (2008), Professor Taunya Lovell Banks essentially agrees with Chin and Wagner, concluding that " litigators should seriously consider using Chin and Wagner's argument and evidence to challenge the invocation of counter-majoritarian concerns in voting rights cases." 


Yet Banks extends (and in some ways updates) Chin and Wagner's argument:

While I agree with Chin and Wagner that the counter-majoritarian principle
has been misapplied by the Court in race discrimination cases involving
black Americans . . . Fear of black majority
rule was not the sole reason for black disenfranchisement efforts in the late
nineteenth and early twentieth century. If it had been, disenfranchisement
efforts would have decreased as the percentage of black voters in the states
decreased. Yet, as even Chin and Wagner concede, efforts to disenfranchise
black voters have continued into the twenty-first century in the absence of
black majorities or pluralities in the former states of the confederacy. Thus, I
contend that black disenfranchisement on both a local and national level is
linked to resistance by white racial conservatives to full political equality for
black Americans (and often other non-white racial/ethnic minorities).
Further, Chin and Wagner seem overly optimistic in believing that the
problem with the minority model analysis is simply the Court's unwilling-
ness to recognize the lingering effects of disenfranchised black majorities or
pluralities. Continued resistance among white racial conservatives (whose
interests are currently favored by the federal courts) to full political equal-
ity for black Americans makes it unlikely that "law" will grapple with the
consequences of nineteenth- and early-twentieth-century black disen-
franchisement anytime in the near future . . . . the Court continues
to further the rights of white racial conservative minorities nationally and locally.

Banks turns to several recent cases to prove her point.  Her analysis of Justice O'Connor's use of counter-majoritarian discourse in Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) is the best I've seen; I expect it to be turning up in the notes of every Constitutional Law Casebook in the near future.  She also addresses Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) as a springboard to discuss her theories linking resource equality with racial diversity, and linking educational equality and rights with the larger social good.  Additionally, Banks argues that Bush v. Gore, 531 U.S. 98 (2000), should be read as a case about African-American disenfranchisement - - - again, I expect to be seeing the arguments excerpted in the notes of every ConLaw Casebook.

These two articles should be required reading for anyone interested in Northwest Austin Municipal Utility District v. Holder, the United States' deeply problematic history of voting, and judicial theorizing invoking counter-majoritarian difficulties.  


March 28, 2009 in Affirmative Action, Cases and Case Materials, Elections and Voting, Equal Protection, Fifteenth Amendment, History, Interpretation, Race, Reconstruction Era Amendments, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, November 10, 2008

Chicago to have LGBTQA School?

ImagesOn November 19, 2008, the Chicago Board of Education seems set to vote on the Social Justice High School-Pride campus, slated to open in the Fall of 2010.  According to the Social Justice High School website, the purpose is to:

create a new high school campus to address the needs of the underserved population of lesbian, gay, bisexual, transgender, and questioning youth and their allies (LGBTQA youth). Research shows that there are low attendance rates and high drop-out rates among LGBTQA youth, and they struggle with harassment, depression, poor academic achievement, and suicide. Our goal is to provide a school with a safe, affirming, and supportive environment where every student — particularly LGBTQA youth — would develop the knowledge and skills needed to create better lives for themselves and their families and to succeed in their post-secondary pursuits. We envision a succession of graduates attending college or other post-secondary institutions at high rates, becoming transformative and successful members of society who recognize the responsibility to improve their communities and the world. Thus, the Social Justice High School–Pride Campus would improve on current conditions for LGBTQA youth in Chicago’s public schools and would be a national model for best practices in the education of LGBTQA youth.

The Chicago planners reportedly took as their inspiration two other public schools for LGBTQ youth – one in New York and one in Milwaukee.

New York’s Harvey Milk High School began in 1985 as a small institution that provided GED classes primarily to minority students and was operated under the umbrella of the Hetrick-Martin Institute, a 25-year-old social service agency serving at-risk LGBTQ teens.   In 2003, The Harvey Milk High School joined New York City’s “carnival” of highly specialized military, trade, and other targeted public schools.   Soon thereafter, Democratic state senator Ruben Diaz Sr., represented by Liberty Counsel, a Florida-based organization, brought a lawsuit against the school.  The suit was settled by slightly amending the purpose of the school to not limits its admission to exclusively  to "gay" students.   

In Milwaukee, Alliance High School, a public school opened in 2005 advertises itself as “A Milwaukee School where you can be who you are.”  It was chartered as a safe space based upon findings of bullying and low academic achievement of LGBTQ youth with a mission statement “to provide a safe, student-centered, and academically challenging environment to meet the needs of all students.”  Interestingly, this school operates year-round, and in a “college-like atmosphere”, the students can select their courses to fit preference, educational objectives, and interest, and is one of several other targeted-learning schools in the Milwaukee area.  There are no reported lawsuits.

For classroom (or exam) use, the Pride Campus provides an excellent equal protection problem.  It illustrates the “anomalous result” that Justice Stevens described in his dissenting opinion in Adarand when the "tiers of strict scrutiny" meet the Court's affirmative action jurisprudence.  It also highlights the issue of “animus” for the type of heightened rational basis review the Court employed in Romer v. Evans for a sexual orientation classification:  In Pride Campus, the government interest is positive rather than a desire to harm a politically unpopular group.  Additionally, it poses the question of the equal protection classification, given the inclusion of “allies.”   

RR (thanks to Laura Mott for research assistance).

November 10, 2008 in Affirmative Action, Equal Protection, Federalism, Fourteenth Amendment, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Saturday, November 8, 2008

Foreshadowing an Executive Order?

The Obama-Biden Transition Project does not discriminate on the basis of race, color, religion, sex, age, national origin, veteran status, sexual orientation, gender identity, disability, or any other basis of discrimination prohibited by law.

From the Obama-Biden Transition "apply for a job" page here (at the bottom).  Perhaps an Obama E.O. might include "gender identity" as a ground of discrimination?


November 8, 2008 in Affirmative Action, Executive Authority, Gender, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Thursday, November 6, 2008

Federal Circuit on Affirmative Action

The Federal Circuit ruled on Tuesday that the Defense Department's affirmative action program, designed to remedy the effects of prior discrimination in DoD contracting, violates equal protection (via the Fifth Amendment's Due Process clause).  Many thanks to Professor Dennis Crouch (U. Missouri Law) for the tip.

The program, codified at 10 U.S.C. sec. 2323, sets a goal that five percent of federal defense contracting dollars for each fiscal year be awarded to businesses owned and controlled by "socially and economically disadvantaged individuals"--including, by presumption, Black Americans, Asian Americans, Hispanic Americans, and Native Americans--and it requires the DoD to provide certain assistance to these business to help achieve the five percent goal. 

In the case, Rothe v. DoD, plaintiff Rothe, owned by a Caucasian female, bid $5.57 milliion for an Air Force communication services contract.  Another company, ICT, owned by a Korean-American couple and certified as a socially and economically disadvantaged business, bid $5.57 million.  ICT won the contract, however, because the DoD bumped Rothe's bid to $6.1 million under a portion of the program that required the DoD to artificially bump the bid of a non-disadvantaged bidder when competing with a disadvantaged bidder.  (This portion of the program has since been relaxed.)

Rothe lodged an as-applied and a facial challenge.  And after a complicated procedural history, including several remands back to the district court, the Federal Circuit ruled that the program--the whole thing, on its face--violated equal protection under the Fifth Amendment.

The core of the ruling is that the studies upon which Congress relied in finding prior discrimination were flawed.  More particularly: The studies purporting to measure the disparity between actual and expected contracts for firms owned by socially and economically disadvantaged individuals adopted a faulty benchmark, because they failed to control for firm size and relative capacity. 

Is there anything to suggest that size and capacity of socially and economically disadvantaged firms might be different than size and capacity of other firms?  No.  And even the court acknowledged one problem in so assuming: "And we reocognize that a minority-owned firm's capacity and qualifications may themselves be affected by discrimination."  In other words, it might be discrimination that leads to lower size and capacity that, in turn, leads to fewer contracts for disadvantaged firms.  But according to the court this possibility doesn't outweigh the significant methodological problems--especially the benchmark problem--in the studies.

This is an excellent case study in how one circuit rolls up its sleeves and digs deep into the dirt of Congressional findings to strictly scrutinize a race-based program under the familiar tests and lessons of City of Richmond v. Croson, Wygant v. Jackson Board of Education, and Adarand Constructors v. Pena.  Take a look especially at pages 29 to 37 of the opinion for more.

This is also an area to watch.  We'll update you on developments in the case and in the program.


November 6, 2008 in Affirmative Action, Equal Protection, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Saturday, November 1, 2008

Saturday Evening Review: Affirmative Action Scholarship

As I noted last week (22 October) here, Colorado has an anti-affirmative action ballot initiative that would amend the state constitution.  If only every voter would read the new article by Devon Carbado and Cheryl Harris, The New Racial Preferences, 96 Cal. L. Rev. 1139 (2008), and consider how complex our notions of race, identity, and individual "qualifications" are.  Carbado and Harris consider the anti-affirmative action proposals passed by California and Michigan in the context of the required "personal statement" for academic admissions.

They write:Images_4

Michigan's Proposal 2 and California's Proposition 209 both prohibit their state governments from discriminating or granting “preferential treatment . . . on the basis of race.” Both initiatives were aimed at eliminating state promulgated race-based affirmative action programs. For advocates of Proposal 2 and Proposition 209, affirmative action is the quintessential example of a preference on the basis of race; the policy benefits blacks and Latinos and burdens whites and, in some formulations, Asian Americans.

Supporters of both measures insisted that the state should not be in the business of allocating benefits and burdens along racial lines, particularly when doing so undermines another core American value: meritocracy. More generally, they argued that state policy should not be based on race at all but rather should embody the principles of colorblindness and race neutrality, concepts they deployed interchangeably to mean the non-utilization of race. Under this argument, Proposition 209 and Proposal 2 became a necessary means to a realizable and desirable colorblind end--the elimination of racial preferences. This racial logic made both ballot initiatives the heirs of Brown and affirmative action policies the heirs of Plessy. This Article neither defends affirmative action--though we support the policy-- nor critiques anti-affirmative action initiatives--though we oppose such measures.

Instead, our project is to take Proposition 209 and Proposal 2 seriously by engaging in something of a thought experiment: What concretely does it mean to make institutional processes colorblind or race neutral? We believe it particularly productive to explore this question in the context of school admissions policies, where selection procedures have been highly scrutinized and debated. The broad and interdisciplinary discourse on university admissions provides a rich context for considering the possibility and desirability of formally race-free admissions regimes.

College and university admission policies typically require an evaluation of “objective” measures of academic achievement, such as standardized test  scores and grade point averages. The admissions process also includes an assessment of letters of recommendation and personal statements. While race is implicated in each of the foregoing criteria, we are most interested in the personal statement, which plays a particularly important role in an applicant's file but is rarely discussed in debates about race and admissions. Admissions officers read these statements to ascertain whether applicants can distinguish themselves and demonstrate that their potential contributions to the school extend beyond the applicants' numbers. Applicants, for their part, employ the personal statement as a way to quite literally inscribe themselves into and personalize the application. Given the significance of the personal statement in the application process, we will explore how “anti-preference” initiatives like Proposal 2 and Proposition 209 affect that role.

To that end, this Article asks: what do “anti-preference” mandates require with respect to personal statements?

In the Article, they present various hypothetical personal statements to "illustrate some of the subtle but significant ways in which racial advantages and disadvantages can persist in formally race-free admissions environments." 

Their first "hypothetical" is a “personal statement” based on Barack Obama's Dreams from My Father: A Story of Race and Inheritance.   


November 1, 2008 in Affirmative Action, Fourteenth Amendment, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)