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Full-Text Articles in Law and Race
The Quixotic Search For Race-Neutral Alternatives, Michael E. Rosman
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 …
Thinking Hard About 'Race-Neutral' Admissions, Richard H. Sander, Aaron Danielson
Thinking Hard About 'Race-Neutral' Admissions, Richard H. Sander, Aaron Danielson
University of Michigan Journal of Law Reform
Our exploration is organized as follows. In Part I, we sympathetically consider the very difficult dilemmas facing higher education leaders. Understanding the often irreconcilable pressures that constrain university administrators is essential if we are to envision the plausible policies they might undertake. In Part II, we draw on a range of data to illustrate some of the “properties” of admissions systems and, in particular, the ways in which race, SES, and academic preparation interact dynamically both within individual schools and across the educational spectrum. Partly because the questions we examine here have been so little studied, ideal data does not …
Fisher V. Texas: The Limits Of Exhaustion And The Future Of Race-Conscious University Admissions, John A. Powell, Stephen Menendian
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 …
Affirmative Action & Negative Action: How Jian Li's Case Can Benefit Asian Americans, Adrian Liu
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. …
Can Michigan Universities Use Proxies For Race After The Ban On Racial Preferences?, Brian T. Fitzpatrick
Can Michigan Universities Use Proxies For Race After The Ban On Racial Preferences?, Brian T. Fitzpatrick
Michigan Journal of Race and Law
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 number of Michigan universities suggested that they were …
Negative Action Versus Affirmative Action: Asian Pacific Americans Are Still Caught In The Crossfire, William C. Kidder
Negative Action Versus Affirmative Action: Asian Pacific Americans Are Still Caught In The Crossfire, William C. Kidder
Michigan Journal of Race and Law
The author concludes that Espenshade and Chung's inattention to the distinction between negative action and affirmative action effectively marginalizes APAs and contributes to a skewed and divisive public discourse about affirmative action, one in which APAs are falsely portrayed as conspicuous adversaries of diversity in higher education. The author will also argue that there is ample reason to be concerned about the harmful effects of divisive and empirically unsupported claims about APAs influencing the public debate over affirmative action, particularly in Michigan, where an anti-affirmative action initiative nearly identical to California's Proposition 209 will appear on the November 2006 ballot. …
Reading, Writing, And Reparations: Systemic Reform Of Public Schools As A Matter Of Justice, Verna L. Williams
Reading, Writing, And Reparations: Systemic Reform Of Public Schools As A Matter Of Justice, Verna L. Williams
Michigan Journal of Race and Law
This Article analyzes Virginia's effort to remedy massive resistance and posits that, under reparations theory, a broader remedy is necessary to redress the scope of the state's wrongdoing. To do this, Part I briefly examines reparations theory, which provides the tools to identify the proper scope of the injury to be addressed, and, in turn, informs the proper choice of remedy. With this background, Part II discusses the Brown Fund Act and the massive resistance it seeks to remedy. In this connection, the Article demonstrates that the school shutdowns were part of a statewide decision to defy Brown and maintain …
Challenging The Bounds Of Education Litigation: Castaneda V. Regents And Daniel V. California, Alan E. Schoenfeld
Challenging The Bounds Of Education Litigation: Castaneda V. Regents And Daniel V. California, Alan E. Schoenfeld
Michigan Journal of Race and Law
This Note argues that by combining the normative suasion of educational finance litigation with the political imperatives manifested in affirmative action law and practice, those who seek to improve the quality of secondary education and expand access to higher education would likely effect greater change than they would working independently. Under the appropriate political and legal circumstances, access to public higher education ought to be treated as something akin to a fundamental right, the unequal distribution of which constitutes a violation of equal protection for students of color and for economically disadvantaged students. Using the Castaneda and Daniel lawsuits to …
Locked In Inequality: The Persistence Of Discrimination, Daria Roithmayr
Locked In Inequality: The Persistence Of Discrimination, Daria Roithmayr
Michigan Journal of Race and Law
In this Article, the author argues that the practice of charging school fees to attend public school is an example of locked-in discrimination that persists over time, even in the absence of intentional discrimination. Exploring the lock-in model of discrimination in the unique context of South Africa, Roithmayr makes two central points. First, discriminatory practices often become locked into institutional structures because high switching costs-the costs of moving from a discriminatory practice to an inclusive one—make it too difficult for an institution to discontinue discriminating. Even when institutional actors are fully committed to eradicating racial disparity, they may be constrained …
Direct Measures: An Alternative Form Of Affirmative Action, Daria Roithmayr
Direct Measures: An Alternative Form Of Affirmative Action, Daria Roithmayr
Michigan Journal of Race and Law
Part I of this essay sets out in detail the direct measures affirmative action program. This section also compares the program to other alternative affirmative action program experiments undertaken by various educational institutions. Parts II and III discuss the constitutionality of a direct measures program.
"Reverse Discrimination" And Higher Education Faculty, Joyce A. Hughes
"Reverse Discrimination" And Higher Education Faculty, Joyce A. Hughes
Michigan Journal of Race and Law
In this Article, the author critiques the use of "reverse discrimination" claims by White plaintiffs to challenge the hiring of Blacks in institutions of higher education. The author argues that "reverse discrimination" is a myth since no such claim is possible when one White candidate is selected over another; assumptions of inferiority are implicit where such a claim is made when a Black candiate is selected over a White candidate. In other words, allowing such a claim, even if ultimately unsuccessful, implies a presumption of superiority on the part of the White candidate. For this reason, the author argues that …
The Naacp's Legal Strategy Against Segregated Education, Robert L. Carter
The Naacp's Legal Strategy Against Segregated Education, Robert L. Carter
Michigan Law Review
A Review of The NAACP's Legal Strategy Against Segregated Education, 1925-1950 by Mark Tushnet
The New American Dilemma: Liberal Democracy And School Desegregation, Mary Jo Newborn
The New American Dilemma: Liberal Democracy And School Desegregation, Mary Jo Newborn
Michigan Law Review
A Review of The New American Dilemma: Liberal Democracy and School Desegregation by Jennifer L. Hochschild
Civil Rights--Segregation--Federal Income Tax: Exemptions And Deductions--The Validity Of Tax Benefits To Private Segregated Schools, Michigan Law Review
Civil Rights--Segregation--Federal Income Tax: Exemptions And Deductions--The Validity Of Tax Benefits To Private Segregated Schools, Michigan Law Review
Michigan Law Review
In granting the preliminary injunction, the district court found that plaintiffs were asserting a substantial constitutional claim and had a reasonable possibility of success. Balancing the equities of the parties, the court decided that the possibility of significant adverse effect on the Commissioner and schools awaiting tax benefits was not great and was in any event far outweighed by the harm which could result from a denial of the requested relief pendente lite. Thus, the court found that the threat of irreparable injury justified the issuance of a preliminary injunction. The propriety of the court's decision to grant a preliminary …
The Fourteenth Amendment And The "Separate But Equal" Doctrine, Joseph S. Ransmeier
The Fourteenth Amendment And The "Separate But Equal" Doctrine, Joseph S. Ransmeier
Michigan Law Review
Recent cases in which the Court has overthrown enforced separation in public higher education on the ground of inequality but without consideration of the merits of the separate but equal rule have been the occasion for an outpouring of law review discussion on the subject. The present paper is a part of this stream. Its purpose is two-fold: first, to set forth the judicial history of the modern separate but equal rule, noting its pre-Fourteenth Amendment origin and the rather uncritical manner in which courts permitted it to infiltrate its way from one area of the law to another; and …