Law Commons^™

"Freedom Is Not Enough...": Affirmative Action And J.D. Completion Among Underrepresented People Of Color, Jason M. Scott, Paige Wilson, Andrea Pals

AccessLex Institute Research

In Fall 2022, the Supreme Court heard arguments regarding the future of affirmative action in higher education. Initially, affirmative action policies were adopted to give equal opportunity to communities who have been and continue to be harmed by discriminatory systems and practices. As we wait for the Court’s decision, it is crucial to understand how existent affirmative action bans impact underrepresented people of color’s (uPOC) graduate/professional degree attainment. Data from the Integrated Postsecondary Education Data System, the U.S. Census Bureau, and the Center for Reproductive Rights is analyzed to determine whether affirmative action bans decrease the proportion of uPOC completing …

Protecting Diversity: Can We Afford To Throw Out Grutter Before Its Expiration Date?, Jason M. Scott, Paige Wilson, Tiffane Cochran, Andrea Pals

AccessLex Institute Research

With landmark affirmative action decisions pending from the United States Supreme Court in Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, this paper examines whether the educational benefits that flow from diversity acknowledged in Grutter v. Bollinger (2003) persist twenty years later in a law school context. Using data from the American Bar Association (ABA), the U.S. Census Bureau, and the Law School Survey of Student Engagement (LSSSE), we model law school campus diversity as a predictor of attrition, predicted law school GPA, and first-time bar …

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 …

Affirming The Purpose Of Affirmative Action: Understanding A Policy Of The Past To Move Toward A More Informed Future, Meagan Schantz

Sacred Heart University Scholar

The application of affirmative action policies to university admissions is a topic of ongoing controversy. This article (ex)amines the debate through an interdisciplinary lens, drawing on the fields of history, law, and ethics. The first section provides historical background on affirmative action policies, tracing how they expanded from the employment sector into higher education. Next examined are legal challenges to affirmative action in admissions, with a focus on the pivotal 1978 Bakke case. The ethical implications of affirmative action are next considered, in particular the question of how affirmative action can be applied in a way that supports disenfranchised groups …

Sffa V. Harvard: How Affirmative Action Myths Mask White Bonus, Jonathan Feingold

Faculty Scholarship

In the ongoing litigation of Students for Fair Admissions v. Harvard College, Harvard faces allegations that its once-heralded admissions process discriminates against Asian Americans. Public discourse has revealed a dominant narrative: affirmative action is viewed as the presumptive cause of Harvard’s alleged “Asian penalty.” Yet this narrative misrepresents the plaintiff’s own theory of discrimination. Rather than implicating affirmative action, the underlying allegations portray the phenomenon of “negative action” — that is, an admissions regime in which White applicants take the seats of their more qualified Asian-American counterparts. Nonetheless, we are witnessing a broad failure to see this case for what …

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 …

Principles And Consequences In A Virtue Ethics Analysis Of Affirmative Action, Caleb H A Brown

Montview Journal of Research & Scholarship

In this paper, I evaluate affirmative action from the framework of virtue ethics. In doing so, I consider the principles behind affirmative action as well as its consequences because a perfectly virtuous person will act per just principles but will also be concerned with the consequences of her actions. An attempt to restore justice that utilizes a mechanism known to be ineffective is not truly an attempt to restore justice, and so is not virtuous. Therefore, if affirmative action is principally justified, a complete virtue ethical analysis will still ask, “Do we know if it works?” I conclude that affirmative …

Mismatch And Science Desistance: Failed Arguments Against Affirmative Action, Richard O. Lempert

Articles

When I attended Michigan Law School in 1966, as a 2L Harvard transfer, there was only one, or perhaps two, African Americans in a student body of about 1100 students, and if there were any students of Latino heritage their presence went unnoticed. When I began teaching at Michigan in the fall of 1968, the situation had begun to change. There were eight or nine African American students in the first year class, the first cohort to be admitted under a newly approved racially sensitive affirmative action program. Since then, Michigan has graduated more than 1500 minority students, most of …

Justice Kennedy And The Fisher Revisit: Will The Irrelevant Prove Decisive?, Richard O. Lempert

Articles

Most Court watchers expect Justice Kennedy to cast the deciding vote when the Supreme Court hands down its decision in this term’s installment of Fisher v. University of Texas at Austin or, as it is colloquially titled, Fisher II. What divides observers is not whose vote will be crucial, but the law that vote will make. At one extreme, Justice Kennedy could vote to uphold the Fifth Circuit’s reaffirmation of its earlier decision. When the case was heard, this would almost certainly have meant affirming the circuit court’s decision by an equally divided Court. (Justice Kagan, an almost certain supporter …

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, …

Presumed Incompetent: Continuing The Conversation (Part I), Carmen G. Gonzalez, Angela P. Harris

Carmen G. Gonzalez

On March 8, 2013, the Berkeley Journal of Gender, Law & Justice hosted an all-day symposium featuring more than forty speakers at the University of California, Berkeley School of Law to celebrate and invite responses to the book entitled, Presumed Incompetent: The Intersections of Race and Class for Women in Academia (Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carmen G. González & Angela P. Harris eds., 2012). Presumed Incompetent presents gripping first-hand accounts of the obstacles encountered by female faculty of color in the academic workplace, and provides specific recommendations to women of color, allies, and academic leaders on ways …

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 …

Introduction: Presumed Incompetent: Continuing The Conversation (Part Ii), Carmen G. Gonzalez, Angela P. Harris

Carmen G. Gonzalez

On March 8, 2013, the Berkeley Journal of Gender, Law & Justice hosted an all-day symposium featuring more than forty speakers at the University of California, Berkeley School of Law to celebrate and invite responses to the book entitled, Presumed Incompetent: The Intersections of Race and Class for Women in Academia (Gabriella Gutiérrez y Muhs, Yolanda Flores Niemann, Carmen G. González & Angela P. Harris eds., 2012). Presumed Incompetent presents gripping first-hand accounts of the obstacles encountered by female faculty of color in the academic workplace, and provides specific recommendations to women of color, allies, and academic leaders on ways …

The White Interest In School Integration, Robert A. Garda Jr.

Robert A. Garda

Scholarship concerning desegregation, affirmative action and voluntary integration is primarily, if not exclusively, focused on whether such policies harm or benefit minorities. Scant attention is paid to the benefits whites receive in multiracial schools despite these interests underpinning over thirty years of Supreme Court integration jurisprudence. In this article, I explore the academic and social benefits whites receive in multiracial schools, and I do so from a white parent’s perspective. The article begins by explaining the interest-convergence theory and how white interests explain the course and content of the Supreme Court’s desegregation jurisprudence. White parents must understand that their “buy-in” …

Ricci’S Dicta: Signaling A New Standard For Affirmative Action Under Title Vii?, Roberto L. Corrada

Sturm College of Law: Faculty Scholarship

This Article argues that Ricci v. DeStefano, while having dealt a blow to disparate impact theory, has not necessarily dealt a fatal blow to affirmative action in the process. Many believe that Ricci has no implications for affirmative action at all since the case’s facts involved no preferences for minorities. However, I believe that dicta in the case suggests how the Court may handle a Title VII affirmative action case in the future, even though I agree that no affirmative action issue was before the Court in Ricci. The key to understanding Ricci and to anticipating the foreseeable future of …

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 …

An Effective Compromise: Class-Based Affirmative Action In Boston Schools, Gabriel O'Malley

New England Journal of Public Policy

The author seeks to shift the traditional focus of the affirmative action debate from race to class. With the Boston Latin School as an example, he argues that, under certain circumstances, a shift in an admission policy based on preferences from race to class will maintain academic standards while increasing minority representation; it will also expand opportunity for economically underprivileged youths who have succeeded academically despite the obstacles they face. A focus on class rather than race offers both sides of the affirmative action debate a philosophy that can be reconciled with their views on race-based affirmative action. In certain …

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, ... …

Robert M. O'Neil's Discriminating Against Discrimination: A Review, Karen Ruse Strueh

IUSTITIA

It is difficult these days to find anyone who will deny that racial minorities have been discriminated against in the area of educational opportunities. Few will deny the desirability of enhancing these opportunities and increasing the number of minority persons in the various professions. But very few will agree on the means that are appropriate to accomplish this desirable end. Robert O'Neil has tackled the awesome task of pinpointing and evaluating the policy considerations that affect the tough choices involved in formulating standards for admissions to professional school programs that will promote academic quality but at the same time allow …

Higher Education: The Black Professional, Donald H. Godbold, Andrew Goodrich, William Moore, Jr.,

IUSTITIA

The black professional in the community college is a catalog of contradictions. His or her condition can only be described as tragic; and his or her plight is a travesty on the philosophy of the two-year college. The preliminary findings of one study in progress note that nearly half (409 or 47 per cent) of the 865 two-year institutions included in the sample do not have a single black faculty member or administrator. Eighty-nine of the remaining 456 colleges have only one black staff member. Similarly, there are a number of community colleges located in areas heavily populated by blacks …