Law Commons^™

Privileges, Immunities, And Affirmative Action In Medical Education, Gregory Curfman

Journal of Law and Health

In Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, the Supreme Court ruled that affirmative action in university admissions, in which an applicant of a particular race or ethnicity receives a plus factor, is unconstitutional. This ruling was based on both the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. This article argues that a more natural fit as the basis for constitutional analysis would be a different clause in the Fourteenth Amendment, the Privileges or Immunities …

Students For Fair Admissions Sends Us Bakke To The Drawing Board For Race- Conscious Affirmative Action In Higher Education, Monica Teixeira De Sousa

Roger Williams University Law Review

No abstract provided.

Dobbs And The Future Of Liberty And Equality, Kim Forde-Mazrui

Cleveland State Law Review

This lecture critiques Dobbs v. Jackson Women’s Health Organization and assesses its implications for liberty and equality. Dobbs’ immediate effect was major disruption to abortion rights. In the longer term, by discarding fifty years of precedent and by basing constitutional rights exclusively on long-standing history and tradition, Dobbs jeopardizes liberty and equality rights that the Court has recognized in the late twentieth and early twenty-first centuries. Such modern liberty rights include contraception, interracial marriage, adult sexual intimacy and same-sex marriage. Modern equality rights include strong bars on discrimination based on race and sex, and moderate protections for LGBTQ+ status. …

Gender Identity, Sports, And Affirmative Action: What's Title Ix Got To Do With It?, Michael E. Rosman

St. Mary's Law Journal

There is much talk these days of promoting “equity” rather than “equality.” When applied outside athletics, Title IX promotes non-discrimination, usually associated with equality. As it has been applied to sports, though, it may be our most prominent “equity” statute, making sure each sex gets its fair share.

The questions this article seeks to address are legal ones that the debate about trans females seems to bring to the fore. How did we start with a statute whose language looks very similar to every other civil rights statute—and, indeed, that acts just like every other civil rights statute outside of …

Not White Enough, Not Black Enough: Reimagining Affirmative Action Jurisprudence In Law School Admissions Through A Filipino-American Paradigm, Joseph D. G. Castro

Pepperdine Law Review

Writing the majority opinion upholding the use of racial preferences in law school admissions in 2003, Justice Sandra Day O’Connor anticipated that racial preferences would no longer be necessary in twenty-five years. On the contrary, 2021 has seen the astronomic rise of critical race theory, the popularity of race-driven “diversity” initiatives in higher education, and the continued surge of identity politics in the mainstream. So much has been written on affirmative action—what else could this Comment add to the conversation? Analyzing the Court’s application of strict scrutiny through a Filipino- American paradigm, this Comment ultimately concludes that affirmative action in …

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.

Private Problem, Public Solution: Affirmative Action In The 21st Century, Darlene C. Goring

Akron Law Review

This Article will explore the origins of the Court’s color-blind interpretation of the Fourteenth Amendment, and the role that this interpretation plays in the development of new barriers against challenges to race-based affirmative action programs. Part II of this Article traces the development and application of the strict scrutiny test to evaluate the constitutionality of both invidious and benign racial classifications. Part III examines Justice Powell’s position that racial classifications used as remedial measures may overcome the presumption of constitutional invalidity associated with the use of race-based classifications. In this context, the Court recognizes that the continued impact of past …

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 Quixotic Search For Race-Neutral Alternatives, Michael E. Rosman

University of Michigan Journal of Law Reform

The Supreme Court has stated that the narrow-tailoring inquiry of the Equal Protection Clause’s strict scrutiny analysis of racially disparate treatment by state actors requires courts to consider whether the defendant seriously considered race-neutral alternatives before adopting the race-conscious program at issue. This article briefly examines what that means in the context of race-conscious admissions programs at colleges and universities. Part I sets forth the basic concepts that the Supreme Court uses to analyze race-conscious decision-making by governmental actors and describes the role of “race-neutral alternatives” in that scheme. Part II examines the nature of “race-neutral alternatives” and identifies its …

Fisher V. Texas: The Limits Of Exhaustion And The Future Of Race-Conscious University Admissions, John A. Powell, Stephen Menendian

University of Michigan Journal of Law Reform

This Article investigates the potential ramifications of Fisher v. Texas and the future of race-conscious university admissions. Although one cannot predict the ultimate significance of the Fisher decision, its brief and pregnant statements of law portends an increasingly perilous course for traditional affirmative action programs. Part I explores the opinions filed in Fisher, with a particular emphasis on Justice Kennedy’s opinion on behalf of the Court. We focus on the ways in which the Fisher decision departs from precedent, proscribes new limits on the use of race in university admissions, and tightens requirements for narrow tailoring. Part II investigates the …

Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer

Indiana Journal of Law and Social Equality

No abstract provided.

The Inevitable Collision: Affirmative Action And The Constitution, Jennifer Moore

Pepperdine Law Review

No abstract provided.

Subordination And The Fortuity Of Our Circumstances, Sergio J. Campos

University of Michigan Journal of Law Reform

The antisubordination principle exists at the margins of equality law. This Article seeks to revive the antisubordination principle by taking a fresh look at its structure and underlying justification. First, the Article provides an account of the harm of subordination that focuses on one's position in society, rejecting the focus on groups popular in the existing antisubordination literature. Second, it argues for a theory of state obligation that goes beyond both the existing state action doctrine of the Equal Protection Clause and the failure to protect doctrine associated with Charles Black. The Article argues instead that the antisubordination principle mandates …

Affirmative Action & Negative Action: How Jian Li's Case Can Benefit Asian Americans, Adrian Liu

Michigan Journal of Race and Law

In October 2006, Asian American student Jian D filed a civil rights complaint against Princeton University claiming that Princeton's affirmative action policies were discriminatory. Li argues that affirmative action gives preferences to non-Asian minorities at the expense of Asian students. Li's case aligns the interests of Asian Americans with Whites who challenge affirmative action and suggests that such policies are inherently discriminatory because they exclude students based on race and sacrifice merit. This Article argues that Li's exclusion is not due to affirmative action but is likely due to "negative action," the unfavorable treatment of Asian Americans relative to Whites. …

A Sheep In Wolf's Clothing: The Michigan Civil Rights Initiative As The Savior Of Affirmative Action, Ryan C. Hess

Michigan Law Review First Impressions

The University of Michigan has long been a place of important discussions about civil and human rights. On the steps of the Michigan Student Union, only a few paces from the Law School, lies an inconspicuous marker where then-President John F. Kennedy, Jr. dedicated the United States Peace Core. During the Vietnam War, the University played host to significant protests that changed how we think about war and its consequences. Most recently, the University litigated a series of Supreme Court cases that have helped define the role of educational institutions in the quest for equality. This role promises to continue …

Disparate Impact And The Use Of Racial Proxies In Post-Mcri Admissions, Matthew S. Owen, Danielle S. Barbour

Michigan Law Review First Impressions

The Michigan Civil Rights Initiative (“MCRI”) amended the Michigan Constitution to provide that public universities, colleges, and school districts may not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of . . . public education.” We argue that, in addition to prohibiting the overt use of racial preferences in admissions, the MCRI also prohibits using racial proxies such as socioeconomic status or a “Ten Percent Plan” that aim to prefer minorities in admissions. Though the MCRI does not expressly say so, we stipulate …

What The Mcri Can Teach White Litigants About White Dominance, Adam Gitlin

Michigan Law Review First Impressions

The ballots have barely been counted, but litigation to enjoin implementation of the now-codified Michigan Civil Rights Initiative (“MCRI”) or at least limit its effect on admissions practices in Michigan’s universities is already underway. One of the primary arguments against the MCRI—and the basis upon which some plaintiff professors assert standing—is that students will suffer an impaired education if current admissions practices are discarded. Assuming that the MCRI survives these legal challenges, educators should be consoled somewhat to know the MCRI may still offer some pedagogy as compensation: litigation will likely be brought to enforce its provisions, and that litigation …

The Michigan Civil Rights Initiative And The Civil Rights Act Of 1964, Carl Cohen

Michigan Law Review First Impressions

The underlying principle of the Michigan Civil Rights Initiative (MCRI), adopted by state wide vote on 7 November 2006, is identical to that of the Civil Rights Act of 1964. Section 601 of the Civil Rights Act provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” The recent passage of the MCRI results now in the inclusion [in Article 1, Section 26 of the Michigan constitution] of section …

"Framing Affirmative Action", Kimberlé W. Crenshaw

Michigan Law Review First Impressions

With the passage of the Michigan Civil Rights Initiative (“MCRI”), Michigan joins California and Washington to constitute the new postaffirmative action frontier. For proponents such as Ward Connerly, affirmative action is on the edge of extinction. Connerly plans to carry his campaign against what he calls “racial preferences” to eight states in 2008, scoring a decisive Super-Tuesday repudiation of a social policy that he portrays as the contemporary face of racial discrimination. On the other side of the issue, proponents of affirmative action are struggling to regroup, fearful that the confluence of lukewarm support among Democratic allies, messy presidential politics …

Justifying The Disparate Impact Standard Under A Theory Of Equal Citizenship, Rebecca S. Giltner

Michigan Journal of Race and Law

Part I of this Note outlines the limitations on congressional power under Section V and their implications for justifying the constitutionality of the disparate impact standard. Part II explores the prohibition of intentional discrimination as a justification for the disparate impact standard and argues that justifying the disparate impact standard through this theory, as some courts currently do, may eventually narrow disparate impact doctrine and thus constrain the possibilities for substantive equality in employment. This Part also analogizes the limits of using an intentional discrimination rationale to justify the disparate impact standard to the limits of using the diversity rationale …

A Rational Basis For Affirmative Action: A Shaky But Classical Liberal Defense, Richard A. Epstein

Michigan Law Review

I am honored to participate in a symposium on the occasion of the lOOth anniversary of one of America's preeminent law reviews. I am saddened, however, to write, at what should be a moment of celebration, with the knowledge that both the Law School and the College of Literature, Science and the Arts are enmeshed in extensive litigation over the critical and explosive issue of affirmative action. To find striking evidence of the deep split of learned judicial views on this issue, it is necessary to look no further than the sequence of opinions in Gratz v. Bollinger and Grutter …

Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.

Michigan Law Review

What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document's text, and rarer still because scholars or judges "discovered" new information about the Constitution's original meaning. Precedent and common law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements ("IBSMs") of the twentieth century. Race, sex, and sexual orientation were markers of …

The Diversity And Remedial Interests In University Admissions Programs, Kathryne Raines

Kentucky Law Journal

No abstract provided.

Constitutional Law: Affirmative Action In The Public Sector: The Admissibility Of Post-Enactment Evidence Of Discrimination To Provide A Compelling Governmental Interest, Andrew C. Jayne

Oklahoma Law Review

No abstract provided.

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 …

Race, Class, Caste…? Rethinking Affirmative Action, Clark D. Cunningham, N.R. Madhava Menon

Michigan Law Review

Many who oppose affirmative action programs in the United States because they use "racial" categories such as black, African American, or Latino, claim that equally effective and more equitable programs can be developed using only class categories, such as "low income." A key test case for the "race v. class" debate is admission to law schools, made urgent by recent legal prohibitions on the use of "race" in the admission procedures to state universities in California, Washington, and Texas. An empirical study by Linda Wightman, the former director of research for the Law School Admissions Council (LSAC), has shown that …

Affirmative Action, Caste, And Cultural Comparisons, Cass R. Sunstein

Michigan Law Review

What is permitted, and what is prohibited, by the equality principle of a liberal democracy? Does affirmative action run afoul of that principle? And where should we look to answer these questions? Many critics of affirmative action take it as axiomatic that affirmative action violates the equality principle. But this is far from clear. Every law classifies. The current law of equality itself classifies by, for example, treating discrimination on the basis of race differently from discrimination on the basis of age. No one thinks that the law of equality is, for this reason, inconsistent with the Equal Protection Clause. …

Caste, Class, And Equal Citizenship, William E. Forbath

Michigan Law Review

There is a familiar egalitarian constitutional tradition and another we have largely forgotten. The familiar one springs from Brown v. Board of Education; its roots lie in the Reconstruction era. Court-centered and countermajoritarian, it takes aim at caste and racial subordination. The forgotten one also originated with Reconstruction, but it was a majoritarian tradition, addressing its arguments to lawmakers and citizens, not to courts. Aimed against harsh class inequalities, it centered on decent work and livelihoods, social provision, and a measure of economic independence and democracy. Borrowing a phrase from its Progressive Era proponents, I will call it the social …

Hopwood, Equal Protection, And Affirmative Action: Can Anyone's Ox Be Gored?, David J. Jannuzzi

Touro Law Review

No abstract provided.

Race, Redistricting And A Republican Poll Tax: The Supreme Court's Voting Rights Decisions Of The 1995-96 Term, Frank Parker

Touro Law Review

No abstract provided.