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University of Michigan Law School

Affirmative action

Series

Civil Rights and Discrimination

Articles 1 - 16 of 16

Full-Text Articles in Law

On Class-Not-Race, Samuel R. Bagenstos Jan 2015

On Class-Not-Race, Samuel R. Bagenstos

Book Chapters

Throughout the civil rights era, strong voices have argued that policy interventions should focus on class or socioeconomic status, not race. At times, this position-taking has seemed merely tactical, opportunistic, or in bad faith. Many who have opposed race-based civil rights interventions on this basis have not turned around to support robust efforts to reduce class-based or socioeconomic inequality. That sort of opportunism is interesting and important for understanding policy debates in civil rights, but it is not my focus here. I am more interested here in the people who clearly mean it. For example, President Lyndon Baines Johnson—who ...


Grutter's Denouement: Three Templates From The Roberts Court, Ellen D. Katz Jan 2013

Grutter's Denouement: Three Templates From The Roberts Court, Ellen D. Katz

Articles

Precedent from the Roberts Court shows the Justices taking three distinct approaches to precedent they dislike. Each provides a template for the Court to criticize race-based affirmative action in higher education, as Fisher v. University of Texas at Austin is widely expected to do. Most narrowly, the Court might use Fisher to issue a warning, much like it did in 2009 when it sidestepped a constitutional challenge to the Voting Rights Act; under this approach, the opinion would spell out why the Justices think the diversity celebrated in Grutter v. Bollinger no longer provides sufficient justification for the use of ...


On Overreaching, Or Why Rick Perry May Save The Voting Rights Act But Destroy Affirmative Action, Ellen D. Katz Jan 2012

On Overreaching, Or Why Rick Perry May Save The Voting Rights Act But Destroy Affirmative Action, Ellen D. Katz

Articles

The State of Texas is presently staking out two positions that are not typically pursued by a single litigant. On the one hand, Texas is seeking the invalidation of the Voting Rights Act, and, on the other, the State is now defending the validity of the expansive race-based affirmative action policy it uses at its flagship university. This Essay presses the claim that Texas has increased the chance it will lose in bothTexas v. Holder andFisher v. University of Texas because it has opted to stake out markedly extreme positions in each. I argue that Texas would be more likely ...


The Future Of Disparate Impact, Richard A. Primus Jan 2010

The Future Of Disparate Impact, Richard A. Primus

Articles

The Supreme Court's decision in Ricci v. DeStefano foregrounded the question of whether Title VIl's disparate impact standard conflicts with equal protection. This Article shows that there are three ways to read Ricci, one of which is likely fatal to disparate impact doctrine but the other two of which are not.


Post-Admissions Educational Programming In A Post-Grutter World: A Response To Professor Brown, Evan H. Caminker Jan 2006

Post-Admissions Educational Programming In A Post-Grutter World: A Response To Professor Brown, Evan H. Caminker

Articles

When asked to provide commentary on another scholar's reflections on Grutterl and Gratz and affirmative action, I am usually struck by two fears. First, because so much ink has been spilled on this topic, I worry the main presenter will have nothing new and interesting to say. Today this worry has been put to rest; I am so pleased that Professor Dorothy Brown offers a number of novel and intriguing observations and, in the end, advances a novel and intriguing proposal about the role Critical Race Theory ought to play in our nation's law school classrooms. Second, for ...


Bolling Alone, Richard A. Primus Jan 2004

Bolling Alone, Richard A. Primus

Articles

Under the doctrine of reverse incorporation, generally identified with the Supreme Court's decision in Bolling v. Sharpe, equal protection binds the federal government even though the Equal Protection Clause by its terms is addressed only to states. Since Bolling, however, the courts have almost never granted relief to litigants claiming unconstitutional racial discrimination by the federal government. Courts have periodically found unconstitutional federal discrimination on nonracial grounds such as sex and alienage, and reverse incorporation has also limited the scope of affirmative action. But in the presumed core area of preventing federal discrimination against racial minorities, Boiling has virtually ...


A Glimpse Behind And Beyond Grutter, Evan H. Caminker Jan 2004

A Glimpse Behind And Beyond Grutter, Evan H. Caminker

Articles

Many people have suggested that the recent battle over affirmative action was a defining moment for the contemporary relevance of Brown v. Board of Education and that it would determine the promise and potential for widespread societal integration. In my remarks, I want to comment upon a couple of comparisons and links between the Brown, Bakke, Grutter, and Gratz cases.


Equal Protection And Disparate Impact: Round Three, Richard A. Primus Jan 2003

Equal Protection And Disparate Impact: Round Three, Richard A. Primus

Articles

Prior inquiries into the relationship between equal protection and disparate impact have focused on whether equal protection entails a disparate impact standard and whether laws prohibiting disparate impacts can qualify as legislation enforcing equal rotection. In this Article, Professor Primus focuses on a third question: whether equal protection affirmatively forbids the use of statutory disparate impact standards. Like affirmative action, a statute restricting racially disparate impacts is a race-conscious mechanism designed to reallocate opportunities from some racial groups to others. Accordingly, the same individualist view of equal protection that has constrained the operation of affirmative action might also raise questions ...


Rejoinder (Response To Article By William G. Bowen And Derek Bok), Terrance Sandalow Jan 1999

Rejoinder (Response To Article By William G. Bowen And Derek Bok), Terrance Sandalow

Articles

In The Shape of the River, presidents Bowen and Bok pronounce the race-sensitive admission policies adopted by selective undergraduate schools a resounding success. The evidence they adduce in support of that conclusion primarily concerns the performance of African-American students in and after college. But not all African-American students in those institutions were admitted in consequence of minority preference policies. Some, perhaps many, would have been admitted under race-neutral policies. I argued at several points in my review that since these students might be expected to be academically more successful than those admitted because of their race, the evidence on which ...


Minority Preferences Reconsidered, Terrance Sandalow Jan 1999

Minority Preferences Reconsidered, Terrance Sandalow

Reviews

During the academic year 1965-66, at the height of the civil rights movement, the University of Michigan Law School faculty looked around and saw not a single African-American student. The absence of any black students was not, it should hardly need saying, attributable to a policy of purposeful exclusion. A black student graduated from the Law School as early as 1870, and in the intervening years a continuous flow of African-American students, though not a large number, had been admitted and graduated. Some went on to distinguished careers in the law.


Supreme Court Philosophy On Labor And Employment Issues, Theodore J. St. Antoine Jan 1992

Supreme Court Philosophy On Labor And Employment Issues, Theodore J. St. Antoine

Other Publications

It would not take a confirmed cynic to suggest that the title of this paper amounts to an oxymoron. That soft-hearted but tough-minded commentator, Florian Bartosic, and his collaborator, Gary Minda, came close to putting it in so many words: " [T]he Supreme Court lacks a consistent and coherent theory of labor law" (1982). My own view is somewhat different. First, lack of a consistent judicial philosophy is not all bad; at least it is better than a consistently wrong philosophy. Second, the vacillating theories of the Supreme Court tend to reflect the divergent attitudes of American society toward labor ...


Scholars' Reply To Professor Fried, Yale Kamisar, Lee C. Bollinger, Judith C. Areen, Barbara A. Black Jan 1989

Scholars' Reply To Professor Fried, Yale Kamisar, Lee C. Bollinger, Judith C. Areen, Barbara A. Black

Articles

As Solicitor General of the United States, Charles Fried, like any good advocate, was often in the position of attempting to generate broad holdings from relatively narrow and particularistic Supreme Court decisions. This was especially true in affirmative action cases. There, the Department of Justice argued that cautious precedents actually stood for the broad proposition that measures designed to put members of disadvantaged groups on a plane of equality should, for constitutional purposes, be treated the same as measures intended to stigmatize or subordinate them. The Supreme Court, however, has consistently rejected this reading of its precedents and the broad ...


A New Dimension In Equal Protection?, Theodore J. St. Antoine Jan 1977

A New Dimension In Equal Protection?, Theodore J. St. Antoine

Articles

Two of America's most cherished values will collide head-on this year, when the U.S. Supreme Court comes to grips with the most significant civil rights suit since the school desegregation cases of 1954. Arrayed on one side is the principle of governmental "color-blindness," the appealing notion that the color of a person's skin should have nothing to do with the distribution of benefits or burdens by the state. Set against it is the goal of a truly integrated society and the tragic realization that this objective cannot be achieved within the foreseeable future unless race and color ...


Bakke: A Compelling Need To Discriminate, Theodore J. St. Antoine Jan 1977

Bakke: A Compelling Need To Discriminate, Theodore J. St. Antoine

Articles

Two of America's most cherished values collided head-on a few months ago, when the U.S. Supreme Court began to come to grips with the most significant civil rights suit since the school desegregation cases of 1954. Arrayed on one side is the principle of governmental "color-blindness," the appealing notion that the color of a person's skin should have nothing to do with the distribution of benefits or burdens by the state. Set against it is the goal of a truly integrated society, and the tragic realization that this objective cannot be achieved within the foreseeable future unless ...


Affirmative Action: Hypocritical Euphemism Or Noble Mandate?, Theodore J. St. Antoine Jan 1976

Affirmative Action: Hypocritical Euphemism Or Noble Mandate?, Theodore J. St. Antoine

Articles

Title VII of the Civil Rights Act of 1964 was adopted in an atmosphere of monumental naivete. Congress apparently believed that equal employment opportunity could be achieved simply by forbidding employers or unions to "discriminate" on the basis of "race, color, religion, sex, or national origin," and expressly disavowed any intention to require "preferential treatment." Perhaps animated by the Supreme Court's stirring desegregation decisions of the 1950's, the proponents of civil rights legislation made "color-blindness" the rallying cry of the hour. Today we know better. The dreary statistics, so familiar to anyone who works in this field, tell ...


Racial Preferences In Higher Education: Political Responsibility And The Judicial Role, Terrance Sandalow Jan 1975

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

Articles

Controversy continues unabated over the question left unresolved by DeFunis v. Odegaard: whether in its admissions process a state law school may accord preferential treatment to certain racial and ethnic minorities. In the pages of two journals published by the University of Chicago, 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. Neither position, in my judgment, adequately confronts the ...