Law Commons^™

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

The Sffa V. Harvard Trojan Horse Admissions Lawsuit, Kimberly West-Faulcon

Seattle University Law Review

Affirmative-action-hostile admissions lawsuits are modern Trojan horses. The SFFA v. Harvard/UNC case—Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et. al., decided jointly—is the most effective Trojan horse admissions lawsuit to date. Constructed to have the distractingly appealing exterior façade of a lawsuit seeking greater fairness in college admissions, the SFFA v. Harvard/UNC case is best understood as a deception-driven battle tactic used by forces waging a multi-decade war against the major legislative victories of America’s Civil Rights Movement, specifically Title VI and Title VII …

Going Forward: The Role Of Affirmative Action, Race, And Diversity In University Admissions And The Broader Construction Of Society, Steven W. Bender

Seattle University Law Review

The third annual EPOCH symposium, a partnership between the Seattle University Law Review and the Black Law Student Association took place in late summer 2023 at the Seattle University School of Law. It was intended to uplift and amplify Black voices and ideas, and those of allies in the legal community. Prompted by the swell of public outcry surrounding ongoing police violence against the Black community, the EPOCH partnership marked a commitment to antiracism imperatives and effectuating change for the Black community. The published symposium in this volume encompasses some, but not all, the ideas and vision detailed in the …

Sffa V. Harvard College: Closing The Doors Of Equality In Education, Ediberto Roman

Seattle University Law Review

The United States Supreme Court’s recent combined decision ending affirmative action in Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina was hailed in conservative circles as the beginning of “the long road” towards racial equality. Others declared that “the opinion may begin the restoration of our nation’s constitutional colorblind legal covenant.” Another writer pronounced, “Affirmative action perpetuated racial discrimination. Its end is a huge step forward.” A Washington-based opinion page even declared: “[T]he demise of race-based affirmative action should inspire renewed commitment to the ideal of equal opportunity in America.” Despite …

Religious Freedom And Diversity Missions: Insights From Jesuit Law Deans, Anthony E. Varona, Michèle Alexandre, Michael J. Kaufman, Madeleine M. Landrieu

Seattle University Law Review

This Article is a transcript of a panel moderated by Anthony E. Varona, Dean of Seattle University School of Law. During the panel, Jesuit and religious law school deans discussed what law schools with religious missions have to add to the conversation around SFFA and the continuing role of affirmative action in higher education.

Affirmative Action Tested: The Constitutionality Of “Landscape”, Eric James Seltzer

St. John's Law Review

(Excerpt)

In August 2019, the College Board announced it was launching a program providing higher education institutions with “context about students’ high schools and neighborhoods when making admissions decisions.” In August 2019, the College Board announced it was launching “Landscape,” a program providing higher education institutions with “context about students’ high schools and neighborhoods when making admissions decision.” Landscape collects and organizes data into three categories—basic high school data, such as school locale, test score comparison, and high school and neighborhood indicators—that offers insight into high schools and neighborhoods. Among these indicators are quintessential measures of socioeconomic status, including college …

In The Name Of Diversity: Why Mandatory Diversity Statements Violate The First Amendment And Reduce Intellectual Diversity In Academia, Daniel M. Ortner

Catholic University Law Review

In the 1950s and 1960s in many parts of the country, a professor could be fired or never hired if he refused to denounce communism or declare loyalty to the United States Constitution. The University of California system took the lead in enforcing these loyalty oaths. These loyalty oaths were challenged all the way up to the United States Supreme Court and were soundly rejected, establishing the centrality of academic freedom and open inquiry on the university campus. So why are loyalty oaths making their resurgence in the form of mandatory diversity statements? Universities have begun requiring faculty members to …

Disaggregation & Diversity: A Case For Race Conscious Admissions, Connor Oniki

Brigham Young University Prelaw Review

Since its founding, people all over the world have looked towards

America as a land of opportunity. Immigrants viewed it as a place

for fresh starts, new beginnings, and equal chances. However, for

centuries, concrete and subtle barriers have slowed the opportunity

for progress for those who are not in the majority. Throughout America’s

beginnings, lawmakers legalized segregation and discrimination

throughout the country multiple times. The Chinese Exclusion

Act prevented Asian Americans from immigrating to the United

States to pursue opportunities. Jim Crow laws enforced racial segregation

and ensured that though African Americans were no longer

enslaved, they did not …

Return Of The Campus Speech Wars, Thomas Healy

Michigan Law Review

Review of Erwin Chemerinsky and Howard Gillman's Free Speech on Campus.

A Diverse Student Body Without Student Bodies?: Online Classrooms And Affirmative Action, Ryan H. Nelson

Pepperdine Law Review

America’s public universities engage students in myriad classroom environments that range from traditional, entirely-in-person classroom environments to entirely-online, virtual classrooms, with every shade of grey in between. These varied learning environments pose a fascinating question with respect to the ways such universities use affirmative action in admissions. In Grutter v. Bollinger, the United States Supreme Court held that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” Indeed, student body diversity remains one of the few “compelling interests” that the Court has held satisfies the constitutional imperative that the “government may …

Ensuring The Constitution Remains Color Blind Vs. Turning A Blind Eye To Justice: Equal Protection And Affirmative Action In University Admissions, Attashin Safari

Loyola of Los Angeles Law Review

No abstract provided.

Protecting Diversity In The Ivory Tower With Liability Rules, Ting Wang

Pace Law Review

The two sides of the debate over race-based affirmative action in higher education tell two distinct stories – one of diversity’s benefits and the other of affirmative action’s burdens. In Grutter v. Bollinger, 539 U.S. 306 (2003), the Supreme Court found the benefits to be so compelling to society that they were deemed to outweigh the burdens. Voters in Michigan and other states found otherwise and the Court in Schuette v. Coalition to Defend Affirmative Action, 572 U.S. — (2014) upheld their right to ban race-conscious admissions. Paradoxically, since the use of race as a “plus factor” by selective universities …

Faculty Insights On Educational Diversity, Meera E. Deo

Fordham Law Review

Twice in the past two years, the U.S. Supreme Court has approved educational diversity as a compelling state interest that justifies the use of race in higher education admissions decisions. Nevertheless, it remains on somewhat shaky ground. Over the past decade, the Court has emphasized that its acceptance of diversity stems from the expectation that a diverse student body will enhance the classroom environment, with students drawing on their diverse backgrounds during classroom conversations that ultimately bring the law to life. Yet, the Court provides no support for its assumption that admitting and enrolling diverse students actually result in these …

Following Fisher: Narrowly Tailoring Affirmative Action, Eang L. Ngov

Catholic University Law Review

Affirmative action has been at the forefront of educational policies and to this day continues to enliven debates. For decades, schools have litigated over whether affirmative action can be used to create a diverse student body. Now, the litigation has shifted to whether affirmative action policies are narrowly tailored. The Supreme Court’s most recent affirmative action case, Fisher v. University of Texas at Austin, requires that schools prove that there are no workable race neutral alternatives in order to demonstrate that their affirmative action programs are narrowly tailored. This article examines the available race neutral alternatives: percentage plans; socioeconomic …

The 'Compelling Government Interest' In School Diversity: Rebuilding The Case For An Affirmative Government Role, Philip Tegeler

University of Michigan Journal of Law Reform

How far does Justice Kennedy’s “moral and ethical obligation” to avoid racial isolation extend? Does the obligation flow primarily from Supreme Court case law, does it derive from an evolving consensus in the social sciences, or does it also have a statutory basis in Title VI and other federal law? In addition to its value as a justification for non-individualized, race-conscious remedial efforts by state and local governments, does the compelling interest identified in Parents Involved also suggest an affirmative duty on the part of the federal government? And if so, how far does this affirmative duty extend, and how …

In Defense Of Deference: The Case For Respecting Educational Autonomy And Expert Judgments In Fisher V. Texas, Eboni S. Nelson

University of Richmond Law Review

No abstract provided.

Applying Indices Post-Grutter To Monitor Progress Toward Attaining A Diverse Student Body, Roger W. Reinsch, Sonia Goltz, Hong Chen, Joel C. Tuoriniemi

Northwestern Journal of Law & Social Policy

The Supreme Court decision in Grutter v. Bollinger provided more definitive guidance for institutions of higher education desiring to use racial preferences in an effort to achieve a diverse student body. This Article first examines Grutter and other relevant cases to set forth the parameters established by the Supreme Court concerning how university preferences, including but not limited to race, may be used in an admissions policy. This Article then provides a framework for creating and using diversity indices that can help institutions implement the guidelines found in these court decisions and monitor whether or not the goal of diversity …

Retaining Diversity In The Classroom: Strategies For Maximizing The Benefits That Flow From A Diverse Student Body, Chris Chambers Goodman

Pepperdine Law Review

In Grutter v. Bollinger, the United States Supreme Court addressed the issue of whether diversity is a sufficiently compelling government interest to justify an affirmative action program that considered race and ethnicity in allocating law school admission offers. The Court determined that diversity was a compelling interest, resolving the conflict in the federal circuits on that issue. In this article, Goodman argues that the courts must examine the tightness of the fit between the goal of either achieving diversity or of realizing the benefits that flow from a diverse student body, and the means used to try to accomplish either …

The Future Of School Integration: Socioeconomic Diversity As An Education Reform Strategy, Edited By Richard D. Kahlenberg (Century Foundation 2012), 397 Pages, Eloise Pasachoff

University of Michigan Journal of Law Reform Caveat

The last decade has seen a quiet but steady expansion of interest in using socioeconomic diversity in schools to improve educational outcomes. Ten years ago, only a few school districts around the country used formal strategies to integrate their schools along class lines. Today, over eighty school districts around the United States, together educating around four million students, ensure that poor children are taught alongside middle-class and wealthier children through a variety of voluntary integration programs. The message of The Future of School Integration: Socioeconomic Diversity as an Education Reform Strategy, the important new book edited by Richard Kahlenberg, is …

The Promise Of Grutter: Diverse Interactions At The University Of Michigan Law School, Meera E. Deo

Michigan Journal of Race and Law

In Grutter v. Bollinger, the U.S. Supreme Court upheld affirmative action at the University of Michigan Law School on the grounds of educational diversity. Yet the Court's assumption that admitting diverse students into law school would result in improved race relations, livelier classroom conversations, and better professional outcomes for students has never been empirically tested. This Article relies on survey and focus group data collected at the University of Michigan Lav School campus itself in March 2010 to examine not only whether, but how diversity affects learning. The data indicate both that there are sufficient numbers of students of color …

(Still) Constitutional School De-Segregation Strategies: Teaching Racial Literacy To Secondary School Students And Preferencing Racially-Literate Applicants To Higher Education, Michael J. Kaufman

Michigan Journal of Race and Law

In Parents Involved in Community Schools v. Seattle School Dist. No. 1, the Supreme Court declared that it will continue to scrutinize race-conscious educational decisions to insure that they are narrowly-tailored to serve a compelling governmental interest. This Article develops a strategy for enhancing racial diversity at all levels of American public education that can survive that rigorous constitutional scrutiny. The Article shows that school districts may prove that assigning a meaningful number of racially diverse students to their secondary schools is narrowly-tailored to achieve their compelling educational interest in teaching racial literacy. The constitutionality of this race-conscious educational …

Can Michigan Universities Use Proxies For Race After The Ban On Racial Preferences?, Brian T. Fitzpatrick

Michigan Journal of Race and Law

In 2003, the Supreme Court of the United States held that public universities—and the University of Michigan in particular--had a compelling reason to use race as one of many factors in their admissions processes: to reap the educational benefits of a racially diverse student body. In 2006, in response to the Supreme Court's decision, the people of Michigan approved a ballot proposal--called the Michigan Civil Rights Initiative ("MCRI")-that prohibits public universities in the state from discriminating or granting preferential treatment on the basis of race. Shortly after the MCRI was approved, a number of Michigan universities suggested that they were …

The Diversity Rationale: Unprovable, Uncompelling, Brian N. Lizotte

Michigan Journal of Race and Law

Student body diversity-and the purported educational benefits diversity bestows- is the final Supreme Court-endorsed justification for affirmative action by public universities. Are the benefits of diversity indeed "substantial," as the Grutter majority claimed? The author analyzes the social scientific research upon which the Court relied in articulating the diversity interest. By critiquing its theory and methodology, the author shows how the research fails to prove educational benefits; and by considering the logic underlying social science generally, he shows how the causal relationship is, technically, not provable. The author questions, then, how the diversity interest can possibly be compelling.

Fair And Facially Neutral Higher Educational Admissions Through Disparate Impact Analysis, Michael G. Perez

Michigan Journal of Race and Law

Part I of this Note proposes both remedial and instrumental justifications for applying disparate impact scrutiny to admissions policies. This Part argues that disparate impact analysis should be applied to higher education as a remedy for the disadvantage minority applicants face as a result of historic and ongoing intentional discrimination and that schools are culpable for unnecessarily utilizing admissions criteria that have this discriminatory effect. The result of applying disparate impact analysis will be admissions policies that produce diverse student bodies while remaining facially neutral with regard to race. Part II proposes that a necessity standard, unique to the higher …

Multiracial Identity, Monoracial Authenticity & Racial Privacy: Towards An Adequate Theory Of Mulitracial Resistance, Maurice R. Dyson

Michigan Journal of Race and Law

This Article is divided into five parts. Part I briefly places the significance of the Supreme Court's affirmative action ruling in Grutter v. Bollinger in context, particularly the implications of its recommended twenty-five year timeframe in recognizing racial diversity. Part II examines the dangerous consequences of implicit assumptions underlying the RPI. More specifically, I investigate the potential ramifications the RPI would have had upon multiple sectors of our society, including healthcare, education, and law enforcement. In the process, I attempt to demonstrate that the concept of racial privacy is a strategic misnomer intended not to protect one's privacy, but rather …

Foreword, Separate But Unequal: The Status Of America's Public Schools, James Foreman Jr.

Michigan Journal of Race and Law

This Symposium, convened by the Michigan Journal of Race & Law, was designed to address many of the issues raised by Donny Gonzalez, a student at a Washington, D.C. high school, on the subject of poverty and race and its effects on school-aged youth. Bringing together a diverse group of speakers and attracting a broad cross-section of the university and Ann Arbor communities, the Separate but Unequal Symposium addressed a range of issues, including: the ongoing relevance of integration, the role of charter schools and other alternative programs, and promising strategies for achieving greater educational equality. A theme linking …

Integration Without Classification: Moving Toward Race-Neutrality In The Pursuit Of Public Elementary And Secondary School Diversity, Paul Diller

Michigan Law Review

Ever since the Supreme Court's invalidation of racially segregated public schools in Brown v. Board of Education, America has wrestled with the challenge of successfully dismantling educational apartheid. In recent years, the federal judiciary has largely retreated from enforcing desegregation in school districts that were once under court supervision for engaging in intentional racial discrimination, finding that the vestiges of past discrimination have been satisfactorily ameliorated. In some such unitary school districts, as well as in districts in which no intentional segregation was ever identified by the courts, boards of education, have voluntarily implemented student assignment plans designed to increase …

A General Theory Of Cultural Diversity, Steven A. Ramirez

Michigan Journal of Race and Law

This Article seeks to extend the analysis of these developments in the corporate world to anti-discrimination law under the Equal Protection Clause of the Fourteenth Amendment. This Article will show that discrimination based upon cultural insights or experiences is distinct from race discrimination and will articulate a general theory of why and under what circumstances this holds true. The difference between culture-based discrimination and using culture as a proxy for race (Which would then be race discrimination) requires a careful and non-mythological understanding of what race is, and what race is not. Moreover, showing that culture discrimination is not prohibited …

Direct Measures: An Alternative Form Of Affirmative Action, Daria Roithmayr

Michigan Journal of Race and Law

Part I of this essay sets out in detail the direct measures affirmative action program. This section also compares the program to other alternative affirmative action program experiments undertaken by various educational institutions. Parts II and III discuss the constitutionality of a direct measures program.

The Diversity Dialogues In Higher Education, John H. Bunzel

Fordham Urban Law Journal

It is hard to be an enemy of diversity. Most Americans recognize diversity as one of the nation’s proudest attributes. Beyond that, however, there is confusion over the term’s meaning. No matter how often people say the word, or how strongly they believe in it, they continue to ignore the way diversity has become an all-embracing concept. The term “diversity” has become a code word that fails to define precisely what it allegedly exalts and what exactly is to be accomplished by those who extol its virtues. The elasticity of the term “diversity” has masked many kinds of questionable conduct. …