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Judging Opportunity Lost: Assessing The Viability Of Race-Based Affirmative Action After Fisher V. University Of Texas, Austin, Angela Onwuachi-Willig, Mario Barnes, Erwin Chemerinsky
Judging Opportunity Lost: Assessing The Viability Of Race-Based Affirmative Action After Fisher V. University Of Texas, Austin, Angela Onwuachi-Willig, Mario Barnes, Erwin Chemerinsky
Faculty Scholarship
In this Article, Mario Barnes, Erwin Chemerinsky, and Angela Onwuachi-Willig examine and analyze one recent, affirmative action case, Fisher v. University of Texas, Austin, as a means of highlighting why the anti-subordination or equal opportunity approach, as opposed to the anti-classification approach, is the correct approach for analyzing equal protection cases. In so doing, these authors highlight several opportunities that the U.S. Supreme Court missed to acknowledge and explicate the way in which race, racism, and racial privilege operate in society and thus advance the anti-subordination approach to equal protection. In the end, the authors suggest that, with regard to …
Class, Classes, And Classic Race Baiting: What’S In A Definition?, Angela Onwuachi-Willig, Amber Fricke
Class, Classes, And Classic Race Baiting: What’S In A Definition?, Angela Onwuachi-Willig, Amber Fricke
Faculty Scholarship
Overall, in this Article, we briefly lay out each of our challenges to Sander's arguments in Class in American Legal Education. In Part I, we first address the very problems that Sander's article highlights about the difficulties of defining class and SES, problems that may make classbased affirmative action programs less feasible and effective than Sander suggests. In so doing, we identify what we consider to be defects in Sander's class/SES groupings. We also highlight the complexities around class and race that already exist within law student populations, answering in part the important questions about to whom black law students …
The Associated Dangers Of "Brilliant Disguises," Color-Blind Constitutionalism, And Postracial Rhetoric, André Douglas Pond Cummings
The Associated Dangers Of "Brilliant Disguises," Color-Blind Constitutionalism, And Postracial Rhetoric, André Douglas Pond Cummings
Faculty Scholarship
Affirmative action, since its inception in 1961, has been under siege. The backlash against affirmative action began in earnest almost immediately following its origination through President John F. Kennedy’s and President Lyndon B. Johnson’s Executive Orders. Organized hostility in opposition to affirmative action crystallized early with “color-blind” theories posited and adopted, “reverse discrimination” alleged and embraced, and constitutional narrowing through adoption of white-privileged justifications. Enmity against affirmative action continues unabated today as exemplified by recent academic writings and studies purporting to prove that affirmative action positively injures African Americans and recent state-wide campaigns seeking to eradicate affirmative action through state …
Grutter At Work: A Title Vii Critique Of Constitutional Affirmative Action, Jessica Bulman-Pozen
Grutter At Work: A Title Vii Critique Of Constitutional Affirmative Action, Jessica Bulman-Pozen
Faculty Scholarship
This Note argues that Title VII doctrine both illuminates internal contradictions of Grutter v. Bollinger and provides a framework for reading the opinion. Grutter's diversity rationale is a broad endorsement of integration that hinges on the quantitative concept of critical mass, but the opinion's narrow-tailoring discussion instead points to a model of racial difference that champions subjective decisionmaking and threatens to jettison numerical accountability. Title VII doctrine supports a reading of Grutter that privileges a view of diversity as integration and therefore cautions against the opinion's conception of narrow tailoring. Grutter, in turn, can productively inform employment discrimination law. The …
Cry Me A River: The Limits Of 'A Systemic Analysis Of Affirmative Action In American Law Schools', Angela Onwuachi-Willig, Kevin Johnson
Cry Me A River: The Limits Of 'A Systemic Analysis Of Affirmative Action In American Law Schools', Angela Onwuachi-Willig, Kevin Johnson
Faculty Scholarship
This article is a response to Richard H. Sander's article, A Systemic Analysis of Affirmative Action in American Law Schools, which recently appeared in the Stanford Law Review. In his article, Professor Sander argues that affirmative action in law schools harms, rather than helps, African American law students by setting up African American students, who are out-matched by their white peers in terms of undergraduate grade point average and LSAT scores, for failure. Specifically, Professor Sander contends that because affirmative action enables African Americans to attend law schools for which they are unqualified, they are more likely to perform poorly …
Using The Master’S “Tool” To Dismantle His House: Why Justice Clarence Thomas Makes The Case For Affirmative Action, Angela Onwuachi-Willig
Using The Master’S “Tool” To Dismantle His House: Why Justice Clarence Thomas Makes The Case For Affirmative Action, Angela Onwuachi-Willig
Faculty Scholarship
Justice Clarence Thomas, the second black man to sit on the Supreme Court, is famous, or rather infamous, for his opposition to affirmative action. His strongest critics condemn him for attacking the very preferences that helped him reach the Supreme Court. None, however, have considered how Thomas's life itself may be used as a justification for affirmative action. In what ways can the master's "tool" be used to dismantle his house? This Article analyzes Justice Thomas's appointment to the Supreme Court and contends that his nomination to and performance on the Court ironically make the case for forward-looking affirmative action. …
A Brief History Of Chicana/O School Segregation: One Rationale For Affirmative Action, Margaret E. Montoya
A Brief History Of Chicana/O School Segregation: One Rationale For Affirmative Action, Margaret E. Montoya
Faculty Scholarship
This article uses Critical Race Theory methodologies, such as autobiographical narratives, and analytical approaches, such as revising the history of the civil rights struggle, especially as it applies to the Chicano-Latino communities. This paper represents a student-faculty collaboration in that the students organized the conference at which some of this analysis was first proposed. This was the conference at which now Justice Sonia Sotomayor made her now iconic comments about being a "wise Latina." People can't get to be judges without first going to law school, and Latinas/as can't get to law school, at least in significant numbers, without affirmative …
Of 'Subtle Prejudices,' White Supremacy And Affirmative Action: A Reply To Paul Butler, Margaret E. Montoya
Of 'Subtle Prejudices,' White Supremacy And Affirmative Action: A Reply To Paul Butler, Margaret E. Montoya
Faculty Scholarship
I analyze the connection of affirmative action to two models of race and racism. I contend that the Supreme Court Justices who continue to support affirmative action adhere to a "prejudice" model in which race is a concept to be overcome and racism is merely a condition of individual ignorance. 13 On the other hand, I posit that Professor Butler's proposals fall within a "white supremacy" model, which looks at race as a historically contingent concept that has been used to subordinate non-white peoples from precolonial times through the present. This historical perspective offers the possibility that the concept of …