Law Commons^™

"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 …

Constructing The Co-Ed Military, Elaine Donnelly

Duke Journal of Gender Law & Policy

During a pre-launch test of the Apollo One spacecraft,1 an electrical spark ignited the pure-oxygen atmosphere inside the cramped capsule, killing astronauts Virgil Grissom, Edward White, and Roger Chafee.2 Critics demanded to know why the mechanical and electrical engineers of the National Aeronautic and Space Administration (NASA) failed to recognize the inherent dangers of operating in a pure-oxygen environment. To ensure that the intent of Congress is carried out with regard to homosexuals in the military, the Secretary of Defense should: * Improve understanding and enforcement of the law by eliminating the Clinton Administration's enforcement regulations, known as "Don't Ask, …

The Admission Of Legacy Blacks, Angela Onwuachi-Willig

Faculty Scholarship

Two years ago, the New York Times reported the results of a study that revealed that two-thirds of the black population at Harvard College consisted of first generation black immigrant students in the United States, second generation black American students, and mixed race students with one black parent. Additional studies have confirmed that the same phenomenon exists at other elite institutions, which include schools such as Columbia, Oberlin, the University of Michigan, the University of North Carolina, the University of Pennsylvania, Smith, and Yale. For many of those concerned about how affirmative action advances social justice, this growing number of …

The Admission Of Legacy Blacks, Angela Onwuachi-Willig

Vanderbilt Law Review

Three years ago, the New York Times reported the results of a study that revealed that two-thirds of the black population at Harvard College consisted of first-generation black immigrant students in the United States, second-generation black American students, and mixed-race students with one black parent. Additional studies have confirmed that the same phenomenon exists at other elite institutions, which include schools such as Columbia, Duke, Georgetown, Northwestern, Oberlin, the University of California- Berkeley, the University of Michigan, the University of North Carolina-Chapel Hill, the University of Pennsylvania, Smith, Stanford, and Yale.

For many of those interested in how affirmative action …

Majority Politics And Race Based Remedies, Darren Lenard Hutchinson

UF Law Faculty Publications

This Essay applies the principles of social movement theory and analyzes the legal status of race-based remedies. Many scholars have debated the constitutionality and efficacy of affirmative action, the appropriateness of race-consciousness (from legal and social perspectives) and the legitimacy of structural judicial remedies for various types of discrimination. This paper will add to this literature by demonstrating the influence of conservative race politics and ideology on Court doctrine concerning affirmative action and other race-based remedies. In particular, this Essay will demonstrate that, consistent with broader political trends, the Court disfavors governmental usage of race as a remedy for discrimination …

Antisubordination Of Whom? What India’S Answer Can Tell Us About The Meaning Of Equality In Affirmative Action, Sean A. Pager

Seattle University

Who should be the beneficiaries of race-conscious affirmative action? Conspicuous by its absence in the US affirmative action debate, this question takes us beyond conventional majority/minority discourse and forces us to confront questions of comparative entitlement. Asking the “Who Question” serves to illuminate a much larger debate over the nature of equality itself. Two paradigms of equal protection compete in modern scholarship: antidiscrimination vs. antisubordination. Yet, neither offers a satisfactory method to select affirmative action beneficiaries on its own.

The Supreme Court’s current antidiscrimination approach to affirmative action remains incomplete. In focusing solely on remedying particularized underrepresentation, the Court tells …

Antisubordination Of Whom? What India’S Answer Tells Us About The Meaning Of Equality In Affirmative Action, Sean A. Pager

Seattle University

Who should be the beneficiaries of race-conscious affirmative action? Conspicuous by its absence in the US affirmative action debate, this question takes us beyond conventional majority/minority discourse and forces us to confront questions of comparative entitlement. Asking the “Who Question” serves to illuminate a much larger debate over the nature of equality itself. Two paradigms of equal protection compete in modern scholarship: antidiscrimination vs. antisubordination. Yet, neither offers a satisfactory method to select affirmative action beneficiaries on its own.

The Supreme Court’s current antidiscrimination approach to affirmative action remains incomplete. In focusing solely on remedying particularized underrepresentation, the Court tells …

Antisubordination Of Whom? What India’S Answer Tells Us About The Meaning Of Equality In Affirmative Action, Sean Pager

Seattle University

Who should be the beneficiaries of race-conscious affirmative action? Conspicuous by its absence in the US affirmative action debate, this question takes us beyond conventional majority/minority discourse and forces us to confront questions of comparative entitlement. Asking the “Who Question” serves to illuminate a much larger debate over the nature of equality itself. Two paradigms of equal protection compete in modern scholarship: antidiscrimination vs. antisubordination. Yet, neither offers a satisfactory method to select affirmative action beneficiaries on its own.

The Supreme Court’s current antidiscrimination approach to affirmative action remains incomplete. In focusing solely on remedying particularized underrepresentation, the Court tells …

Antisubordination Of Whom? What India’S Answer Tells Us About The Meaning Of Equality In Affirmative Action, Sean Pager

Seattle University

Who should be the beneficiaries of race-conscious affirmative action? Conspicuous by its absence in the US affirmative action debate, this question takes us beyond conventional majority/minority discourse and forces us to confront questions of comparative entitlement. Asking the “Who Question” serves to illuminate a much larger debate over the nature of equality itself. Two paradigms of equal protection compete in modern scholarship: antidiscrimination vs. antisubordination. Yet, neither offers a satisfactory method to select affirmative action beneficiaries on its own.

The Supreme Court’s current antidiscrimination approach to affirmative action remains incomplete. In focusing solely on remedying particularized underrepresentation, the Court tells …

Moving Beyond Strict Scrutiny: The Need For A More Nuanced Standard Of Protection Analysis For K Through 12 Integration Programs, Deborah N. Archer

Articles & Chapters

In Comfort v. Lynn School Committee, the United States Court of Appeals for the First Circuit evaluated a race-conscious student assignment program using the affirmative action strict scrutiny framework of Grutter v. Bollinger. Comfort is part of a trend of applying strict scrutiny to race-conscious integration programs that has gained new momentum following the decision in Grutter. Invited by the Supreme Court's seemingly unequivocal language in Adarand Constructors v. Pena, that "all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny," federal district and appellate courts confronted with …

Education And Labor Relations: Asian Americans And Blacks As Pawns In The Furtherance Of White Hegemony, Xiaofeng Stephanie Da

Michigan Journal of Race and Law

Asian Americans and Blacks have been, and continue to be, racialized relative to each other in our society. Asian Americans and Blacks have come to occupy marginalized positions as the polarized ends on the economic spectrums of education and labor relations, with an expanding "Whiteness" as the filler in the middle as Whites manipulate the differing interests of both subordinated groups to align with White (the dominant group's) interests. Although Whites purport to champion the interests of one subordinate group over the other, in reality the racialization of Asian Americans and Blacks in our country is rooted in the preservation …

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 …

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

Vanderbilt Law School Faculty Publications

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 …

Without Color Of Law: The Losing Race Against Colorblindness In Michigan, Khaled Ali Beydoun

Michigan Journal of Race and Law

This Essay examines affirmative action, while discussing its fall in California, Washington State, and ultimately Michigan.