Thursday, October 11, 2012

Daily Read: Rebecca Lee on Core Diversity

Rebecca-leeProfessor Rebecca Lee (pictured) notes that "in this age of ““diversity talk,”” it may seem that the issue of workplace discrimination is somewhat passé, or at least not as much of the problem it was in the past."  That was certainly some of the sentiment in yesterday's oral argument in Fisher v. UT.  But Lee offers a more sophisticated interpretation, arguing that

Most employers implement models of diversity that promote only what I call ““surface diversity”” and ““marginal diversity,”” both of which focus on diversifying the organization’’s ranks but which stop short of valuing diversity in full form, thus inhibiting substantive equity. The surface and marginal diversity paradigms neglect to treat the malady of embedded discrimination because they emphasize demographic diversity rather than diversity in a substantive sense. A focus on numerical parity alone, however, will not bring about racial and gender equity. Although women and people of color have been entering various workplaces in increasing numbers, the way in which work gets done has not changed much. This is because simply adding more members of previously excluded groups to the organization may not change dominant organizational practices that remain biased against such groups.

Instead in her 2010 article entitled Core Diversity, available on ssrn, Lee argues that much deeper and more structural change is necessary.  This is definitely worth a read.

Lee's follow-up article, Implementing Grutter's Diversity Rationale: Diversity and Empathy in Leadership, available on ssrn, is also essential reading.  In this article, Professor Lee makes more explicit the links between educational diversity and employment diversity.


October 11, 2012 in Affirmative Action, Equal Protection, Gender, Race, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 10, 2012

Fisher v. University of Texas: Oral Argument

200px-Large_university-of-texas_seal_rgb(199-91-18)The Court's oral argument today in Fisher v. UT contained few surprises for those acquainted with the parties' briefs or our preview yesterday.

Bert Rein, arguing on behalf of petitioner Abigal Fisher opened his argument with a classic issue statement:

The central issue here is whether the University of Texas at Austin can carry its burden approving that its use of race as an admissions-plus factor in the consequent denial of equal treatment, which is the central mandate of the Equal Protection Clause, to Abigail Fisher met the two tests of strict scrutiny which are applicable.

His attempt to expand - - - by stating "first" - - - was quickly interrupted by Justice Ginsburg who raised the issue of standing, an inquiry that Justice Sotomayor joined.  Justice Scalia attempted to provide an answer, referring to Fisher's as being "that she was denied a fair chance in the admission lottery."

Justice Breyer moved to the question of whether Fisher was asking the Court to "overrule Grutter," a question that Rein answered by stating that Fisher "could satisfy Grutter" if the case was "properly read." 

During the rebuttal argument, Sotomayor asked "So you don't want to overrule Grutter, you just want to gut it."

MR. REIN: Excuse me?

JUSTICE SOTOMAYOR: You just want to gut it. You don't want to overrule it, but you just want to gut it.

MR. REIN: Well -­

JUSTICE SOTOMAYOR: Now you want to tell universities that once you reach a certain number, then you can't use race anymore.

MR. REIN: Justice Sotomayor, I don't want to gut it. And the only way one could reach that conclusion is to assume that Grutter is an unlimited mandate without end point to just use race to your own satisfaction and to be deferred to in your use of race. That is unacceptable. That is the invasion of Abigail Fisher's rights to equal protection under the law. Thank you.

During the main argument, however, the Grutter discussion led to an extended discussion of the effect of Texas' "ten percent" program, to which the Grutter type admissions policy was only an augment. 

 Arguing for University of Texas, Gregory Garre also opened with a classic issue articulation - and was also quickly interrupted:

For two overriding reasons, the admissions plan before you is constitutional under this Court's precedents. First, it is indistinguishable in terms of how it operates in taking race into account as only one modest factor among many for the individualized considerations of applicants in their totality from plans that this Court has upheld in Grutter and plans that this Court approved in Bakke and the Harvard plan.

JUSTICE SOTOMAYOR: I -- I put that in the narrow tailoring category, that it is narrowly tailored the way Grutter did, said.

Chief Justice Roberts soon focused on the question of numbers and identity categories:

CHIEF JUSTICE ROBERTS: Counsel, before -- I need to figure out exactly what these numbers mean. Should someone who is one-quarter Hispanic check the Hispanic box or some different box?
MR. GARRE: Your Honor, there is a multiracial box. Students check boxes based on their own determination. This is true under the Common Application -­
CHIEF JUSTICE ROBERTS: Well, I suppose a person who is one-quarter percent Hispanic, his own determination, would be I'm one-quarter percent Hispanic.
MR. GARRE: Then they would check that box, Your Honor, as is true -­
CHIEF JUSTICE ROBERTS: They would check that box. What about one-eighth?
With Justice Kennedy widely considered the "swing vote" on this case, certainly there will be much parsing of Kennedy's queries.  He seemed focused on understanding the facts as well as their implications.  
For Fisher's counsel, Kennedy posed a question that was raised for many readers of Petitioner's brief:
You argue that the University's race-conscious admission plan is not necessary to achieve a diverse student body because it admits so few people, so few minorities. And I had trouble with that reading the brief. I said, well, if it's so few, then what's the problem.
In dialogue with Garre, Kennedy seemed particularly troubled by any mention of race, asking at one point "So what you're saying is that what counts is race above all."

And arguing for the federal government, supporting the position of University of Texas, Solicitor General Verrilli referred numerous times to Kennedy's dissent in Grutter and concurring opinion in Parents Involved, ending by stating:

I think it is important, Your Honors, not just to government, but to the country, that our universities have the flexibility to shape their environments and their educational experience to make a reality of the principle that Justice Kennedy identified in Parents Involved, that our strength comes from people of different races, different creeds, different cultures, uniting in a commitment to freedom, and to more a perfect union. That's what the University of Texas is trying to do with its admissions policy, and it should be upheld.



October 10, 2012 in Affirmative Action, Equal Protection, Fourteenth Amendment, Oral Argument Analysis, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

Daily Read: Malcolm Gladwell on Ivy League Admissions

Writing in the New Yorker in 2005, Malcolm Gladwell (pictured) argued that the fuss over admissions is best understood as consumerist: ivy league schools are a "luxury brand" - - - "an exquisitely constructed fantasy of what it means to belong to an élite - - - and they have always been mindful of what must be done to maintain that experience."

400px-MalcolmgladwellHere's what he had to say about legal education:

Most élite law schools, to cite another example, follow a best-students model. That’s why they rely so heavily on the L.S.A.T. Yet there’s no reason to believe that a person’s L.S.A.T. scores have much relation to how good a lawyer he will be. In a recent research project funded by the Law School Admission Council, the Berkeley researchers Sheldon Zedeck and Marjorie Shultz identified twenty-six “competencies” that they think effective lawyering demands—among them practical judgment, passion and engagement, legal-research skills, questioning and interviewing skills, negotiation skills, stress management, and so on—and the L.S.A.T. picks up only a handful of them. A law school that wants to select the best possible lawyers has to use a very different admissions process from a law school that wants to select the best possible law students. And wouldn’t we prefer that at least some law schools try to select good lawyers instead of good law students?

This search for good lawyers, furthermore, is necessarily going to be subjective, because things like passion and engagement can’t be measured as precisely as academic proficiency. Subjectivity in the admissions process is not just an occasion for discrimination; it is also, in better times, the only means available for giving us the social outcome we want.

While Gladwell doesn't discuss the specific type of "affirmative action" at issue in Fisher, his essay is certainly relevant to law school admission policies and to Fisher's articulation of the harm of not being admitted to UT undergraduate school.

[image of Malcolm Gladwell via]

October 10, 2012 in Affirmative Action, Equal Protection | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 9, 2012

Fisher v. University of Texas: Oral Argument Preview

The oral argument in Fisher v. UT - - - this term's "affirmative action" case - - - is scheduled for tomorrow and has been receiving much attention as SCOTUSBlog notes. One of the more interesting pieces is Adam Liptak's personalized NYT article that includes quotes from Abigal Fisher, who believes she "probably would have gotten a better job offer" if she had "gone to U.T.," as well as quotes from students.  There is noteworthy scholarly attention.  And as usual Lyle Denniston over at SCOTUSBlog does an excellent job parsing the issues as well as the possible line-ups of the Justices, asking provocatively "is affirmative action about to end?" Moreover, still one of the best templates of the issues is the "dissental" from en banc review in the Fifth Circuit by controversial Judge Edith Jones.

To the extent constitutional and legal arguments matter - - - and for some, that is a debatable question - - - there are several problematic twists that Fisher v. UT presents.

First, there is the standing of Abigal Fisher and relatedly, her claim for injury.  This is not a case in which she was disabled from competing from any specific seat, unlike Bakke, and this is also a case in which she did attend university, unlike Barbara Grutter who did not attend law school.  Adam Chandler has a terrific explanation of this aspect of the case, that he expanded here. 

Second, there are factual discrepancies, and a problematic concession by Fisher regarding UT's government interest in seeking diversity. 

If the Justices seem focused on the facts of the case during oral argument, this might be an indication that the Court would not render a decision on the merits because of these sorts of problems.

Third, there is a doctrinal issue in the case that bears notice.  As one of its three sub-arguments that the UT plan fails strict scrutiny, Fisher argues that "UT cannot establish a strong basis in evidence that its use of race is necessary to further a compelling interest in student-body diversity."  Sandwiched between the usual first prong of the "compelling interest" requirement and the second prong of the "narrowly tailored" requirement, this argument seeks to introduce a new prong.  Fisher's argument in the main brief is telling:

UT also must demonstrate that its use of race in admissions is “necessary to further” an unmet compelling government interest. Adarand, 515 U.S. at 237. This demonstration of necessity requires a “strong basis in evidence.” Wygant, 476 U.S. at 277; Croson, 488 U.S. at 500; Grutter, 539 U.S. at 387-88 (Kennedy, J., dissenting) (“Our precedents provide a basis for the Court’s acceptance of a university’s considered judgment that racial diversity among students can further its educational task, when supported by empirical evidence.”) (emphasis added).

Recall that Adarand, Wygant, and Croson each involved "remedying past discrimination" as the compelling government interest (not diversity) and note that the citation from the 2003 Grutter v. Bollinger is from Justice Kennedy's dissent.  Kennedy is widely considered the swing vote in Fisher, and much of UT's brief seems addressed to Kennedy.

Nevertheless, this "strong basis in evidence" standard is, of course, directly opposed to the "good faith" standard that Justice O'Connor articulated in Grutter. T he Court could easily "gloss" rather than explicitly overrule Grutter by reading in a high - - - and nearly impossible to meet - - - evidentiary standard.

Thus, at the heart of the matter may be just how much deference the Justices may be willing to pay to a state, including a state university, or how much the "unelected federal judiciary" may substitute its own judgments.

UPDATE: discussion of oral argument here.

October 9, 2012 in Affirmative Action, Current Affairs, Equal Protection, Fourteenth Amendment, Oral Argument Analysis, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

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)