Law and Race Commons^™

Ochoa, Big Ten Law Deans Pledge Support For Diversity Ahead Of Scotus Affirmative Action Ruling, The Indiana Lawyer

Christiana Ochoa (7/22-10/22 Acting; 11/2022-)

s the U.S. Supreme Court prepares to hand down a decision that could fundamentally alter affirmative action, a group of law school deans — including Dean Christiana Ochoa of the Indiana University Maurer School of Law — has issued a statement affirming the deans’ commitment to diversity.

The group of 15 deans represent Big Ten law schools, including IU Maurer. In their statement — which IU Maurer posted to its official Facebook page — the deans say they are “joining together to affirm our commitment to advancing diversity, equity, and inclusion through legally permissible means, regardless of the outcome of …

Expiration Of The Sunset Clause: Is The Clock Ticking For The Grutter Standard And Affirmative Action In Higher Education?, Simona Stodulkova

GGU Law Review Blog

Affirmative action, an active effort to provide access to educational and employment opportunities to historically underrepresented groups, is now in danger of being eradicated by the Supreme Court. While the Court upheld affirmative action in Grutter v. Bollinger in 2003, it suggested in its “sunset clause” of the opinion that the issue should be revisited in twenty-five years. Two cases concerning affirmative action in higher education are now before the current conservative-led Court, which has already indicated that it is prepared to overrule its precedent.

Affirmative action in higher education has been advanced as a solution to past discriminatory …

Douglass, Lincoln, And Douglas Before Dred Scott: A Few Thoughts On Freedom, Equality, And Affirmative Action, Henry L. Chambers Jr.

Law Faculty Publications

In 1854, Senator Stephen Douglas, Abraham Lincoln, and Frederick Douglass delivered speeches about the newly passed Kansas-Nebraska Act. That law opened the Kansas and Nebraska Territories to slavery by extending popular sovereignty, the practice of letting territorial majorities decide whether to allow slavery in a territory, to them. Given before Dred Scott v. Sandford, the infamous case in which the Supreme Court ruled that Black Americans—whether freeborn, freed, or enslaved—could not be citizens of the United States absent congressional action or constitutional amendment, the speeches are worth revisiting. They focus on whether or how slavery should be limited, reflecting …

Affirmative Action After Sffa, Jonathan Feingold

Faculty Scholarship

In SFFA v. Harvard (SFFA), the Supreme Court further restricted a university’s right to consider the racial identity of individual applicants during admissions. The ruling has spawned considerable confusion regarding a university’s ongoing ability to pursue racial diversity, racial inclusion, and other equality-oriented goals—whether through “raceconscious” or “race-neutral” means. To assist institutions attempting to navigate the ruling, this article outlines a set of key legal rights and responsibilities that universities continue to possess following SFFA.

Random Justice, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

As recent Senate confirmation practices suggest, the Supreme Court is best understood as the head of a political branch of government, whose Justices are chosen in a process that makes their ideological views dispositive. Throughout the nation’s history, the Supreme Court has exercised its governing political ideology in ways that sacrifice the interests of nonwhites in order to advance the interests of Whites. In the present moment of heightened cultural sensitivity to structural discrimination and implicit bias, it would make sense to use affirmative action to help remedy the racially disparate distribution of societal resources that has been produced by …

“Trumping” Affirmative Action, Vinay Harpalani

Faculty Scholarship

This Essay examines the Trump administration’s actions to eliminate affirmative action, along with the broader ramifications of these actions. While former-President Trump’s judicial appointments have garnered much attention, the Essay focuses on the actions of his Department of Justice, Civil Rights Division. It lays out the Department of Justice’s investigations of Harvard and Yale, highlighting how they have augmented recent lawsuits challenging race-conscious admissions policies by Students for Fair Admissions. It considers the timing of the DOJ’s actions, particularly with respect to Students for Fair Admissions, Inc. v. President & Fellows of Harvard College. It examines the strategies used by …

Lawyers For White People?, Jessie Allen

Articles

This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate against …

Rejecting Honorary Whiteness: Asian Americans And The Attack On Race-Conscious Admissions, Philip Lee

Faculty Publications

Since the 1960s, Asian Americans have been labeled by the dominant society as the “model minority.” This status is commonly juxtaposed against so-called “problem” minorities such as African Americans and Latinx Americans. In theory, the model minority narrative serves as living proof that racial barriers to social and economic development no longer exist in America. If Asians can succeed against all odds, the reasoning goes, so can everyone else. Further, if a member of a minority group fails, it is because of their own lack of diligence and ambition, and not some supposed systemic unfairness. However, the model minority narrative …

Second Redemption, Third Reconstruction, Richard A. Primus

Articles

In The Accumulation of Advantages, the picture that Professor Owen Fiss paints about equality during and since the Second Reconstruction is largely a picture in black and white. That makes some sense. The black/white experience is probably the most important throughline in the story of equal protection. It was the central theme of both the First and Second Reconstructions. In keeping with that orientation, the picture of disadvantage described by Fiss’s theory of cumulative responsibility is largely drawn from the black/white experience. Important as it is, however, the black/white experience does not exhaust the subject of constitutional equality. So in …

The Fight For Equal Protection: Reconstruction-Redemption Redux, Kermit Roosevelt Iii, Patricia Stottlemyer

All Faculty Scholarship

With Justice Scalia gone, and Justices Ginsburg and Kennedy in their late seventies, there is the possibility of significant movement on the Supreme Court in the next several years. A two-justice shift could upend almost any area of constitutional law, but the possible movement in race-based equal protection jurisprudence provides a particularly revealing window into the larger trends at work. In the battle over equal protection, two strongly opposed visions of the Constitution contend against each other, and a change in the Court’s composition may determine the outcome of that struggle. In this essay, we set out the current state …

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 can …

The Paradox Of Race-Conscious Labels, Leslie Y. Garfield

Elisabeth Haub School of Law Faculty Publications

Labeling affirmative action laws with integrity is a hopelessly paradoxical pursuit. This article illustrates the consequences of such a pursuit. Section I traces the origins of the Top Ten Percent Law, which arose as a legislative protest to the Fifth Circuit's rejection of the use of race in admissions decisions. This section provides an in-depth understanding of the Top Ten Percent Law and concludes with a detailed analysis of the Fisher decision. Section II supplies an explanation of the majority's conclusion to treat the Top Ten Percent Law as race-neutral and provides detailed support for Justice Ginsburg's affirmation that the …

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

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 Paradox Of Political Power: Post-Racialism, Equal Protection, And Democracy, William M. Carter Jr.

Articles

Racial minorities have achieved unparalleled electoral success in recent years. Simultaneously, they have continued to rank at or near the bottom in terms of health, wealth, income, education, and the effects of the criminal justice system. Social conservatives, including those on the Supreme Court, have latched onto evidence of isolated electoral success as proof of “post-racialism,” while ignoring the evidence of continued disparities for the vast majority of people of color.

This Essay will examine the tension between the Court's conservatives' repeated calls for minorities to achieve their goals through the political process and the Supreme Court's increasingly restrictive "colorblind" …

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

Publications

The Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District #1 has been extensively analyzed as the latest step in the Court's long struggle with the desegregation of public schools. This Article examines the decision's implications for the full range of equal protection doctrine dealing with benign or remedial race and sex classifications. Parents Involved revealed a sharp division on the Court over whether government may consciously try to promote substantive equality. In the past, such efforts have been subject to an equal protection analysis that allows race-conscious or sex-conscious state action, contingent on existing, de …

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 the same …

Stepping Through Grutter'S Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen L. Norton

Faculty Scholarship

In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling -- specifically, a public law school’s interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well. The switch to instrumental justifications for affirmative action appears a strategic response to the Court’s narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning whether …

Two "Wrongs" Do/Can Make A Right: Remembering Mathematics, Physics, & Various Legal Analogies (Two Negatives Make A Positive; Are Remedies Wrong?) The Law Has Made Him Equal, But Man Has Not, John C. Duncan Jr

Journal Publications

This article demonstrates the incomplete logic and inconsistent legal reasoning used in the argument against affirmative action. The phrase "two wrongs don't make a right" is often heard in addressing various attempts to equalize, to balance, and to correct the acknowledged wrongs of slavery and segregation and their derivative effects. Yet, "two wrongs do/can make a right" has a positive connotation. This article reviews the history of societal and judicial wrongs against Blacks, as well as the evolution of the narrowing in legal reasoning concerning discrimination against minorities, including Blacks. Next, the legal reasoning behind legacy programs will be reviewed …

Stepping Through Grutter's Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen Norton

Publications

In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling - specifically, a public law school's interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well.

The switch to instrumental justifications for affirmative action appears a strategic response to the Court's narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning …

Brown'S Legacy Then And Now: Race And Law School Admissions Debates Continue After Nearly 70 Years, Lauren M. Collins

Law Faculty Articles and Essays

Next month marks the 50th anniversary of the landmark desegregation case Brown v. Board of Education. Although this case represents a major victory in the battle for civil rights, the struggle against racism in education began some 20 years prior to Brown. During the 1930s and 1940s, at least seven African-American law school candidates aggressively challenged the unequal treatment of minority applicants in state courts, some eventually reaching the U.S. Supreme Court. Early successes in these cases lead to the more sweeping Brown decision, which then contributed to further law school admission policy reform. Discussion about the role of …

Diversity And The Practice Of Interest Assessment, Robert F. Nagel

Publications

No abstract provided.

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 no …

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.

Grutter V. Bollinger: This Generation's Brown V. Board Of Education, Michelle Adams

Articles

At first blush, Grutter appears to be a deviation from the body of the Court's recent affirmative action jurisprudence: it says "yes" where the other cases said "no." But it is not so clear that Grutter is a deviation from current law. Instead, it might be seen as consistent with it, in that the justification for the racial preference recognized in Grutter transcended the justifications offered in the previous cases, and the method used to achieve that end, "race as a factor," diffused rather than highlighted race. From this perspective, Grutter addressed several concerns that had troubled the Court for …

The "Inexorable Zero", Bert I. Huang

Faculty Scholarship

[F]ine tuning of the statistics could not have obscured the glaring absence of minority [long-distance] drivers .... [T]he company's inability to rebut the inference of discrimination came not from a misuse of statistics but from "the inexorable zero."

The Supreme Court first uttered the phrase "inexorable zero" a quarter-century ago in International Brotherhood of Teamsters v. United States, a landmark Title VII case. Ever since, this enigmatic name for a rule of inference has echoed across legal argument about segregation, discrimination, and affirmative action. Justice O'Connor, for instance, cited the "inexorable zero" in a major sex discrimination decision upholding an …

Constitutional Sunsetting?: Justice O'Connor's Closing Comments On Grutter, Vikram David Amar, Evan H. Caminker

Articles

Most Supreme Court watchers were unsurprised that Justice Sandra Day O'Connor's vote proved pivotal in resolving the University of Michigan affirmative action cases; indeed, Justice O'Connor has been in the majority in almost every case involving race over the past decade, and was in the majority in each and every one of the 5-4 decisions the Court handed down across a broad range of difficult issues last Term. Some smaller number of observers were unsurprised that Justice O'Connor decided (along with the four Justices who in the past have voted to allow latitude with regard to race-based affirmative action programs) …

An Essay On The Professional Responsibility Of Affirmative Action In Higher Education, Emily Calhoun

Publications

No abstract provided.

The American 'Legal' Dilemma: Colorblind I/Colorblind Ii--The Rules Have Changed Again: A Semantic Apothegmatic Permutation, John C. Duncan Jr

Journal Publications

"Our Constitution is colorblind" initially meant that white majority preferences could not and should not be reflected in government action. The maxim now means race should not be reflected at all in government action. The answer to racism lies somewhere between well-reasoned "blind" hope and historically-proven skepticism. Part I of this Article discusses the ideal of the colorblind society; Part II discusses what this Article deems as Colorblind I. Part III places each colorblind argument in perspective, and seeks to illustrate that the concept of colorblindness could be an ideal, but has rather become meaningless rhetoric in an endless racial …

Utilitarianism Left And Right: A Response To Professor Armour, Robert F. Nagel

Publications

No abstract provided.