Education Commons^™

Evading A Race-Conscious Constitution, Cara Mcclellan

All Faculty Scholarship

The idea of a “colorblind” Constitution is front and center in cases before the Supreme Court this term, including Students for Fair Admissions v. President & Fellows of Harvard College, and Students for Fair Admissions v. University of North Carolina (UNC). In these cases, the same plaintiff organization, Students for Fair Admissions (SFFA), has asked the Supreme Court to rule that the Equal Protection Clause and Title VI of the Civil Rights Act of 1964 prohibit universities from considering race as one of many factors in admissions to pursue the educational benefits that flow from diversity. In support …

Branch Rickey, Affirmative Action And 'Merit' In Baseball And Education, Evan H. Caminker

Book Chapters

When General Manager Wesley Branch Rickey broke Organized Baseball’s longstanding color barrier on October 23, 1945, by signing Jackie Robinson to a contract to play for the Montreal Royals, a minor league affiliate of the Brooklyn Dodgers, Rickey catalyzed the movement for racial justice. Millions of people saw, heard, and read about black and white men playing side-by-side. Integrating the national pastime helped challenge segregationist norms across the land, facilitating the integration of military troops and public schools soon thereafter.

Rickey’s stirring call in his 1956 Atlanta address to judge people on their merits rather than their pigmentation still resonates …

The Mismatch Myth In U.S. Higher Education: A Synthesis Of The Empirical Evidence At The Law School And Undergraduate Levels, William C. Kidder, Richard O. Lempert

Book Chapters

Opponents of affirmative action in higher education commonly cite two principles to justify their opposition. One is that admissions to institutions of higher education should be based on "merit," which is often treated by critics of affirmative action as consisting of little more than test score results and high school or undergraduate grades. The second is the legal and moral imperative of not making consequential decisions based on race. We shall not address these principles except to note that others have shown that they do not make the case against affirmative action (Carbado & Harris 2008, Shultz & Zedeck 2011, …

The Aesthetics Of Affirmative Action, Brian Soucek

Studio for Law and Culture

Justice Thomas’s dissent in Grutter v. Bollinger — which dismissed diversity as an “aesthetic” — highlighted the Supreme Court’s least-discussed rationale for affirmative action in higher education: the claim that visible diversity in elite institutions bolsters those institutions’ “perceived legitimacy.” This Article takes seriously that claim, and Thomas’s critique, as distinctively aesthetic arguments about the role of appearances in public life. By distinguishing the perceived legitimacy argument from others made on behalf of affirmative action, the Article traces for the first time its origins, scope, and unacknowledged popularity. By identifying the aesthetic logic of the Court's argument and drawing on …

Now Is The Appropriate Time For Selective Higher Education Programs To Collect Racial And Ethnic Data On Its Black Applicants And Students, Kevin D. Brown

Articles by Maurer Faculty

American colleges and universities have traditionally lumped all of their black students into a unified “Black/African/African American" category. However, there is growing evidence that American higher education is witnessing a historic change in the racial and ethnic ancestry of Blacks who are the beneficiaries of affirmative action. Recent studies have pointed out that disproportionately large percentages of Blacks benefiting from affirmative action are foreign-born Black immigrants, their sons and/or daughters, and multiracials. In addition, the number and percentage of blacks approaching college age from these groups will increase substantially in the next five to ten years.

In light of this …

Bakke In Balance: Some Preliminary Thoughts, Robert M. O'Neil

Articles by Maurer Faculty

No abstract provided.

Racial Preferences In Higher Education: Political Responsibility And The Judicial Role, Terrance Sandalow

Book Chapters

... Professors John Hart Ely and Richard Posner have established diametrically opposed positions in the debate. Their contributions are of special interest because each undertakes to answer the question within the framework of a theory concerning the proper distribution of authority between the judiciary and the other institutions of government

...Professor Ely [see pp. 208-216, herein] defends the constitutionality of racial preferences, essentially on the ground that the equal-protection clause should not be read to prevent a majority from discriminating between itself and a minority only to its own disadvantage. The predicate for an active judicial role is lacking, ... …