Law Commons^™

The New Affirmative Action After Fisher V. University Of Texas: Defining Educational Diversity Through The Sixth Amendment's Cross-Section Requirement, Adam Lamparello, Cynthia Swann

Adam Lamparello

Skin color and diversity are not synonymous, and race provides no basis upon which to stereotype individuals or groups, regardless of whether the reasons are malevolent or benign.

Affirmative action policies in higher education should focus on the things that individuals have overcome, not the traits that individuals—and groups—cannot change. Currently, the opposite is true, as such policies typically equate racial diversity with educational diversity, thereby precluding consideration of factors such as family and personal background, life experience, and the overcoming of adversity that would result in true educational diversity. This is not to say that race is irrelevant, …

Replay That Tune: Defending Bakke On Stare Decisis Grounds, Charles Adside Iii

Charles adside III

No abstract provided.

Money And Power In Religious Competition: A Critique Of The Religious Free Market, Jianlin Chen

Jianlin Chen

Academics have frequently alluded to the normative value of the religious free market fostered by the twin legal guarantees of the free exercise of religion and the absence of state establishment of religion. This article challenges the idealized portrayal of a religion’s ‘flourish[ing] according to the zeal of its adherents and the appeal of its dogma’ and examines the dynamics of material wealth and political power in a religion’s success. This article suggests that controversial measures such as affirmative action for socio-economically disadvantaged religions and restrictions of religious involvement in politics are not necessarily incompatible with the religious free market.

Challenges In Designing Public Procurement Linkages: The Case Study Of Smes Preference In China’S Government Procurement, Jianlin Chen

Jianlin Chen

Preferential treatment in government procurement, also known as procurement linkages, is a con-troversial yet popular tool to achieve socio-economic goals, most importantly, affirmative action for certain targeted groups. This Article utilizes the recently enacted small-medium enterprise (“SME”) procurement linkages in China to examine the pitfalls in the design of procurement linkages. Two major deficiencies of the Chinese regime impede effective implementation of procurement linkages. First, loopholes in the Chinese regulatory regime allow large enterprises to usurp the benefits meant for SMEs through the use of wholly owned subsidiaries and other corporate arrangements. Second, aggrieved suppliers face stringent procedural requirements and …

The Haunting Of Abigail Fisher: Race, Affirmative Action, And The Ghosts Of Legal History, Hilary A. Leewong

Hilary A Leewong

What is race in 2012, and why does it matter?

At the end of the current term, the Supreme Court will decide Fisher v. University of Texas. In doing so, the Court revisits the role of affirmative action and the meaning of race much sooner than constitutional law scholars, and likely the average college applicant, expected it would.

The Court’s last definitive take on the subject was conveyed by Justice O’Connor in 2003’s Grutter v. Bollinger. Justice O’Connor’s opinion conveyed disappointment that race-based admissions in higher education was still necessary this long after Brown v. Board of Education, heralded the …

The Role Of The Hunter/Seattle Doctrine In Adjudicating Measures Against Affirmative Action, Gautam Y. Reddy

Gautam Y Reddy

In 1997, the Ninth Circuit upheld the constitutionality of Proposition 209, a ballot initiative that the citizens of California passed to ban affirmative action programs in the state. However, over a decade later in 2011, the Sixth Circuit reached the opposite conclusion regarding Proposal 2, a nearly identical ballot initiative passed by the voters of Michigan. At the core of this circuit split is the applicability of a rarely invoked Equal Protection test: the Hunter/Seattle Doctrine.

Controversy stems from the incongruity of this doctrine with the Rehnquist Court’s move towards a less deferential stance regarding affirmative action in key Equal …

The Racial Metamorphosis Of Justice Kennedy, With An Eye Towards The End Of The Second Reconstruction, Luis Fuentes-Rohwer

Luis Fuentes-Rohwer

This Essay examines the recent turn in Justice Kennedy’s race jurisprudence. The shift is palpable, from a narrow and uncompromising approach to the use of race by state actors to a more nuanced and contextual understanding of the role that race plays in American society. This is no small change, best explained by Justice Kennedy’s status on the Court as a “super median.” This is a position of power and influence, as any majority coalition must count on Justice Kennedy’s vote; but more importantly, it is also a position of true independence. Justice Kennedy entertains his idiosyncratic and very personal …

How Affirmative Action Could Be Used To Make A Co-President And Protect Civil Rights, James T. Struck

James T Struck

How Affirmative Action Could Be used to Make a Co-President And Protect Civil Rights The presidency can be seen as a loaf of bread with many slices-one presidency/president but many co presidents. Affirmative action law has been federal law since the 1960’s. I have Lithuanian, German, Luxembourg, French, Belgium, Russian ancestry, some hernia/blistering, and affirmative action concepts could mean those ancestries, disability should be favored. My debate partners were female, Asian American, and some could once be called Jewish or Ukrainian American too, so these groups could be favored by affirmative action law. My partners and I won the National …

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” …

The Associated Dangers Of "Brilliant Disguises," Color-Blind Constitutionalism And Post Racial Rhetoric, André Douglas Pond Cummings

andré douglas pond cummings

Affirmative action, since its inception in 1961, has been under siege. The backlash against affirmative action began in earnest almost immediately following its origination through President John F. Kennedy’s and President Lyndon B. Johnson’s Executive Orders. Organized hostility in opposition to affirmative action crystallized early with “color-blind” theories posited and adopted, “reverse discrimination” alleged and embraced, and constitutional narrowing through adoption of white-privileged justifications. Enmity against affirmative action continues unabated today as exemplified by recent academic writings and studies purporting to prove that affirmative action positively injures African Americans and recent state-wide campaigns seeking to eradicate affirmative action through state …

Fitting Square Pegs Into Round Holes: How Race-Based Affirmative Action In Higher Education Admissions Is An Inadequate And Inequitable Means To An End, Justin C. Aday

Justin C Aday

Race-based affirmative action in higher educaction admissions presents problems for all persons involved in the admissions process - insitution administrators who develop admissions policies, students who apply for admission to the insitution, and especially the never-envied admissions director (or admissions committee). This paper presents a critique of race-based affirmative action and jurisprudential theories that support the practice, from the perspective of a law school admissions director. After admitting 98 of 100 students into an entering law school class, the admissions director must chose the remaining two students for admission from only a pool of four applicants - two privileged minorities, …

Lost In The Numbers: The Underrepresentation Of Asian American Groups And The Case For Disaggregating “Asian” Data, William W. Yu

William W Yu

While certain Asian ethnicities outperform Whites and other groups with respect to socioeconomic achievement, other Asian groups fail to reach the same levels of success. Despite this, the aggregate treatment of Asian Americans continues in affirmative action debates, especially in the educational context. As a result, the unique needs and issues of groups such as Southeast Asians are often ignored. The aggregate treatment is also used to justify the exclusion of Asian Americans from affirmative action policies because of a belief that Asian Americans as a whole are already adequately represented in schools, and thus no longer need affirmative action. …

Teaching 'Whren' To White Kids, M. Katherine B. Darmer

M. Katherine B. Darmer

This paper was inspired by my experiences as a white criminal procedure professor teaching mostly-white classes and arises at the intersection of WHREN v. UNITED STATES and GRUTTER v. BOLLINGER. The article starts from the premise that criminal procedure remains highly racialized, with blacks experiencing the criminal justice system in significantly different ways than do whites. The article suggests that the lack of minority voices in the classroom poses a significant barrier to effectively teaching criminal procedure and critiques current approaches to criminal procedure pedagogy.

Balancing Competing Priorities: Affirmative Action In The United States And Canada, Roozbeh (Rudy) B. Baker

Roozbeh (Rudy) B. Baker

This Article shall present a detailed analysis of Equality Rights in the United States and Canada, and their relationship to race based government affirmative action programs as practiced in those two countries. At its most basic level, Equality Rights can be defined generally as the idea that a government must not discriminate against its citizens (i.e. treat some of them differently from others). Yet given this general definition of Equality Rights, how can one reconcile the concept with that of race based affirmative action programs? As this Article shall demonstrate, via its survey of the radically opposed American and Canadian …

Fairness And The Distribution Of Primary Goods, Nathan W. Dean

Nathan W. Dean

I consider whether any one of the schemes of distributive justice envisioned by John Rawls, Robert Nozick, or G.A. Cohen is truly fair. By means of a close and critical reading of their work on distributive justice, I conclude that their schemes of distributive justice in some instances fail to correct for elements of unfairness and at other times introduce unfairness in the furtherance of other largely unacknowledged ends. More specifically, I (1) describe the ways in which Rawls, Nozick, and Cohen fail to show us what a fair scheme of distributive justice would look like, (2) sketch what I …

"The People" And "The People": Disaggregating Citizen Lawmaking From Popular Constitutionalism, Raphael Rajendra

Raphael Rajendra

In this essay, I argue that popular constitutionalism can be understood – and the borders it shares with the wider corpus of studies on constitutional change can be demarcated – by thinking of constitutions that either "live among people" or are "entombed in glass cases." This analysis distinguishes between popular constitutionalism and a ballot initiative-oriented notion of constitutional change that I call "initiative constitutionalism." Popular constitutionalism and initiative constitutionalism advance substantially different models for tempering democracy and other fundamental values. To conflate these models – and to call the MCRI a product of popular constitutionalism when it is not – …

"A Bulwark Against Anarchy": Affirmative Action, Emory Law School, And Southern Self-Help, William B. Turner

William B Turner

This article presents archival evidence about Pre-Start, Emory Law School’s affirmative action program from 1966 to 1972. It places that evidence into the context of current legal and scholarly debates about affirmative action in law school admissions and demonstrates that Pre-Start is an extremely important case study for anyone who wishes to think carefully about this important topic. I perform post-hoc strict scrutiny on Pre-Start, showing that it meets, not only the standard of the majority in Grutter v. Bollinger (539 U.S. 306 (2003)), but even the much more exacting standard of dissenting Justice Clarence Thomas. Because white supremacists are …

"A Bulwark Against Anarchy": Affirmative Action, Emory Law School, And Southern Self-Help, William B. Turner

William B Turner

This article presents archival evidence about Pre-Start, Emory Law School’s affirmative action program from 1966 to 1972. It places that evidence into the context of current legal and scholarly debates about affirmative action in law school admissions and demonstrates that Pre-Start is an extremely important case study for anyone who wishes to think carefully about this important topic. I perform post-hoc strict scrutiny on Pre-Start, showing that it meets, not only the standard of the majority in Grutter v. Bollinger (539 U.S. 306 (2003)), but even the much more exacting standard of dissenting Justice Clarence Thomas. Because white supremacists are …

Racial Adjudication, Andrew Carlon

Andrew Carlon

In oral arguments for the recent voluntary integration cases, Justice Kennedy raised for the first time a question about the limits of the Court's colorblind jurisprudence which has troubled legal scholars for the past decade: If we make no distinction between benign and discriminatory racial classifications, and none between facially race-neutral policies adopted with a racially discriminatory purpose and those where racial classifications are patent, then may we still take facially race-neutral measures to accomplish benign - but racial - goals? If using race to integrate and to segregate are the same, then why are race-neutral means to achieve each …

Esclavitud Perpetua: Construyendo Una Perspectiva De Raza En El Derecho Constitucional Colombiano, Jorge Gonzalez-Jacome

Jorge Gonzalez-Jacome

The racial element in our society has been generally invisible to many of us. While slavery has been abolished, the process of making black people invisible has been effective. Two recent judgements of the Colombian Constitutional Court have made us think of the race problem as something meaningful in our society. Many difficulties arise in these judgements, and this article presents a critique to some of the legal arguments and consequences of them. It also sustains that the Court has still a long way to go in order to make the racial problem a visible one in our present state …

Taking Conservatives Seriously: A Moral Justification For Affirmative Action And Reparations, Kim Forde-Mazrui

Kim Forde-Mazrui

Underlying the debate over affirmative action and reparations for black Americans is a dispute about the extent to which American society is responsible for present effects of past racial discrimination. Although much has been written on the subject, the scholarship too often sheds more heat than light, and tends to be dominated by extreme positions incapable of taking opposing claims seriously. This Article weighs in on this debate in a novel and constructive manner. The Article defends a societal obligation to remedy past discrimination by accepting, rather than dismissing, principles of conservatives who oppose affirmative action and reparations. Taking conservatives …

The Constitutional Implications Of Race-Neutral Affirmative Action, Kim Forde-Mazrui

Kim Forde-Mazrui

This paper explores the constitutional implications of race-neutral affirmative action, i.e., governmental efforts to pursue affirmative action goals, such as remedying discrimination and promoting diversity, through non-racial means. For example, to increase minority enrollment, some public universities give weight in the admission process to economic background. This paper suggests that such "race-neutral" policies may be just as unconstitutional as racial preferences if they are motivated by arguably discriminatory (against whites) purposes. I then present two doctrinal defenses of race-neutral affirmative action. First, assuming that strict scrutiny would apply to such policies, I argue that remedying discrimination, even so-called "societal discrimination," …

Thinking Critically About Equality: Government Can Make Us Equal, Robert L. Hayman, Nancy Levit

Nancy Levit

As kids we called it having to use the old noodle: needing to think real hard about something that was real hard to think about. It was the kind of thinking that would cause your face to get all scrunched up, and if you didn't stop or if someone didn't stop you - it would eventually make your head hurt. The expression came from our families when we figured something out: that's using your old noodle, they'd tell us. The noodle we eventually understood to be our brains, which, we reckon, do look something like noodles, though we were quite …