Law and Race Commons^™

The Misguided Use Of The Harvard/Unc Ruling To Thwart Law Firm And Other Private Employer Dei Efforts, Ronald A. Norwood

SLU Law Journal Online

This article explores the Harvard/UNC ruling and what, in the author’s view, is the misguided efforts by certain political and well-financed private actors to use that ruling to justify the eradication of private employers and law firm DEI efforts. It is the author’s firm belief that because the Supreme Court’s holding is limited to an analysis of the Constitution’s Equal Protection clause (limited to state actors) and Title VI (covering private actions receiving federal funding), that ruling should not be used by courts to quash DEI programs designed to level the employment playing field for minorities, women and other protected …

Separate And Unequal: Promoting Racial Equity In Public Schools In The United States And South Africa, Paige Sferrazza

St. John's Law Review

(Excerpt)

On January 24, 2022, the Supreme Court of the United States announced that it will hear two cases, against Harvard College and the University of North Carolina, which “rais[e] serious doubts about the future of affirmative action in higher education.” The plaintiff in both cases, Students for Fair Admissions, Inc. (“SFFA”), is a non-profit organization devoted to eradicating affirmative action programs nationwide. Described as the “culmination of a years-long strategy by conservative activists,” these cases represent the first affirmative action challenges to be argued before the Court’s new conservative majority, where they “pose the gravest threats yet” to over …

Most Favored Racial Hierarchy: The Ever-Evolving Ways Of The Supreme Court's Superordination Of Whiteness, David Simson

Articles & Chapters

This Article engages in a critical comparative analysis of the recent history and likely future trajectory of the Supreme Court’s constitutional jurisprudence in matters of race and religion to uncover new aspects of the racial project that Reggie Oh has recently called the “racial superordination” of whiteness—the reinforcing of the superior status of whites in American society by, among other things, prioritizing their interests in structuring constitutional doctrine. This analysis shows that the Court is increasingly widening the gap between conceptions of, and levels of protection provided for, equality in the contexts of race and religion in ways that prioritize …

Racial And Ethnic Ancestry Of The Nation's Black Law Students: An Analysis Of Data From The Lssse Survey, Kevin D. Brown, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

This article proceeds in three substantive parts. In Part I, we discuss the changing racial and ethnic ancestries of Black people in the United States since affirmative action began. In Part II, we discuss the LSSSE data set that we use along with our weighting procedure based on the ABA data. Also in Part II, we discuss the Public Use Microdata Sample (PUMS), a subset of the American Community Survey (ACS). We use the ACS PUMS to provide comparative national data to analyze the relative representation of each group of Blacks among law students. In Part III, we present the …

Disaggregation & Diversity: A Case For Race Conscious Admissions, Connor Oniki

Brigham Young University Prelaw Review

Since its founding, people all over the world have looked towards

America as a land of opportunity. Immigrants viewed it as a place

for fresh starts, new beginnings, and equal chances. However, for

centuries, concrete and subtle barriers have slowed the opportunity

for progress for those who are not in the majority. Throughout America’s

beginnings, lawmakers legalized segregation and discrimination

throughout the country multiple times. The Chinese Exclusion

Act prevented Asian Americans from immigrating to the United

States to pursue opportunities. Jim Crow laws enforced racial segregation

and ensured that though African Americans were no longer

enslaved, they did not …

Explaining Grutter V. Bollinger, Neal Devins

Neal E. Devins

No abstract provided.

Judging Opportunity Lost: Assessing The Viability Of Race-Based Affirmative Action After Fisher V. University Of Texas, Austin, Angela Onwuachi-Willig, Mario Barnes, Erwin Chemerinsky

Erwin Chemerinsky

In this Article, Mario Barnes, Erwin Chemerinsky, and Angela Onwuachi-Willig examine and analyze one recent, affirmative action case, Fisher v. University of Texas, Austin, as a means of highlighting why the anti-subordination or equal opportunity approach, as opposed to the anti-classification approach, is the correct approach for analyzing equal protection cases. In so doing, these authors highlight several opportunities that the U.S. Supreme Court missed to acknowledge and explicate the way in which race, racism, and racial privilege operate in society and thus advance the anti-subordination approach to equal protection. In the end, the authors suggest that, with regard to …

Embracing Race-Conscious College Admissions Programs: How Fisher V. University Of Texas At Austin Redefines "Affirmative Action" As A Holistic Approach To Admissions That Ensures Equal, Not Preferential, Treatment, Nancy L. Zisk

Nancy L. Zisk

In Fisher v. University of Texas at Austin, the United States Supreme Court affirmed well-established Supreme Court doctrine that race may be considered when a college or university decides whom to admit and whom to reject, as long as the consideration of race is part of a narrowly tailored holistic consideration of an applicant's many distinguishing features. The Court's latest decision heralds a new way of thinking about holistic race-conscious admissions programs. Rather than considering them as "affirmative action" plans that prefer any one applicant to the disadvantage of another, they should be viewed as the Court has described …

Racial Indirection, Yuvraj Joshi

Yuvraj Joshi

Schuette And Antibalkanization, Samuel Weiss, Donald Kinder

William & Mary Bill of Rights Journal

In Schuette v. Coalition to Defend Affirmative Action, Justice Kennedy’s controlling plurality revised the political process doctrine and ended the practice of affirmative action in Michigan. In this opinion, Kennedy followed in the Court’s tradition of invoking antibalkanization values in equal protection cases, making the empirical claims both that antibalkanization motivated the campaign to end affirmative action in Michigan and that the campaign itself would, absent judicial intervention, have antibalkanizing effects.

Using sophisticated empirical methods, this Article is the first to examine whether the Court’s claims on antibalkanization are correct. We find they are not. Support for the Michigan …

A Diverse Student Body Without Student Bodies?: Online Classrooms And Affirmative Action, Ryan H. Nelson

Pepperdine Law Review

America’s public universities engage students in myriad classroom environments that range from traditional, entirely-in-person classroom environments to entirely-online, virtual classrooms, with every shade of grey in between. These varied learning environments pose a fascinating question with respect to the ways such universities use affirmative action in admissions. In Grutter v. Bollinger, the United States Supreme Court held that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” Indeed, student body diversity remains one of the few “compelling interests” that the Court has held satisfies the constitutional imperative that the “government may …

Qualitative Diversity: Affirmative Action’S New Reframe, Eang L. Ngov

Utah Law Review

How is diversity measured? When is diversity sufficient? The Supreme Court has pressed these hard questions in affirmative action cases. With respect to college admissions, although a university campus might have a diverse student body, universities are beginning to justify the continuation of race-based affirmative action programs on the need for qualitative diversity, i.e., intraracial diversity—diversity within diversity.

In the Court’s most recent affirmative action case, Fisher v. University of Texas at Austin, the university advanced two novel diversity arguments, never before employed in affirmative action cases, to justify its race-based admissions policy: there is a lack of diversity within …

Embracing Race-Conscious College Admissions Programs: How Fisher V. University Of Texas At Austin Redefines "Affirmative Action" As A Holistic Approach To Admissions That Ensures Equal, Not Preferential, Treatment, Nancy L. Zisk

Marquette Law Review

In Fisher v. University of Texas at Austin, the United States Supreme Court affirmed well-established Supreme Court doctrine that race may be considered when a college or university decides whom to admit and whom to reject, as long as the consideration of race is part of a narrowly tailored holistic consideration of an applicant's many distinguishing features. The Court's latest decision heralds a new way of thinking about holistic race-conscious admissions programs. Rather than considering them as "affirmative action" plans that prefer any one applicant to the disadvantage of another, they should be viewed as the Court has described …

Courtroom To Classroom: Judicial Policymaking And Affirmative Action, Dylan Britton Saul

Political Science Honors Projects

The judicial branch, by exercising judicial review, can replace public policies with ones of their own creation. To test the hypothesis that judicial policymaking is desirable only when courts possess high capacity and necessity, I propose an original model incorporating six variables: generalism, bi-polarity, minimalism, legitimization, structural impediments, and public support. Applying the model to a comparative case study of court-sanctioned affirmative action policies in higher education and K-12 public schools, I find that a lack of structural impediments and bi-polarity limits the desirability of judicial race-based remedies in education. Courts must restrain themselves when engaging in such policymaking.

Judging Opportunity Lost: Assessing The Viability Of Race-Based Affirmative Action After Fisher V. University Of Texas, Austin, Angela Onwuachi-Willig, Mario Barnes, Erwin Chemerinsky

Faculty Scholarship

In this Article, Mario Barnes, Erwin Chemerinsky, and Angela Onwuachi-Willig examine and analyze one recent, affirmative action case, Fisher v. University of Texas, Austin, as a means of highlighting why the anti-subordination or equal opportunity approach, as opposed to the anti-classification approach, is the correct approach for analyzing equal protection cases. In so doing, these authors highlight several opportunities that the U.S. Supreme Court missed to acknowledge and explicate the way in which race, racism, and racial privilege operate in society and thus advance the anti-subordination approach to equal protection. In the end, the authors suggest that, with regard to …

Affirmative Action, Justice Kennedy, And The Virtues Of The Middle Ground, Allen K. Rostron

Faculty Works

When the Supreme Court hears arguments this fall about the constitutionality of affirmative action policies at the University of Texas, attention will be focused once again on Justice Anthony Kennedy. With the rest of the Court split between a bloc of four reliably liberal jurists and an equally solid cadre of four conservatives, the spotlight regularly falls on Kennedy, the swing voter that each side in every closely divided and ideologically charged case desperately hopes to attract. Critics condemn Kennedy for having an unprincipled, capricious, and self-aggrandizing style of decision-making. Though he is often decisive in the sense of casting …

Class, Classes, And Classic Race Baiting: What’S In A Definition?, Angela Onwuachi-Willig, Amber Fricke

Faculty Scholarship

Overall, in this Article, we briefly lay out each of our challenges to Sander's arguments in Class in American Legal Education. In Part I, we first address the very problems that Sander's article highlights about the difficulties of defining class and SES, problems that may make classbased affirmative action programs less feasible and effective than Sander suggests. In so doing, we identify what we consider to be defects in Sander's class/SES groupings. We also highlight the complexities around class and race that already exist within law student populations, answering in part the important questions about to whom black law students …

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

Faculty Scholarship

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 …

Multiracial Identity And Affirmative Action, Nancy Leong

Faculty Publications

No abstract provided.

Grutter At Work: A Title Vii Critique Of Constitutional Affirmative Action, Jessica Bulman-Pozen

Faculty Scholarship

This Note argues that Title VII doctrine both illuminates internal contradictions of Grutter v. Bollinger and provides a framework for reading the opinion. Grutter's diversity rationale is a broad endorsement of integration that hinges on the quantitative concept of critical mass, but the opinion's narrow-tailoring discussion instead points to a model of racial difference that champions subjective decisionmaking and threatens to jettison numerical accountability. Title VII doctrine supports a reading of Grutter that privileges a view of diversity as integration and therefore cautions against the opinion's conception of narrow tailoring. Grutter, in turn, can productively inform employment discrimination law. The …

Judicial Notice: How Judicial Bias Impacts The Unequal Application Of Equal Protection Principles In Affirmative Action Cases, Victor Suthammanont

NYLS Law Review

No abstract provided.

Cry Me A River: The Limits Of 'A Systemic Analysis Of Affirmative Action In American Law Schools', Angela Onwuachi-Willig, Kevin Johnson

Faculty Scholarship

This article is a response to Richard H. Sander's article, A Systemic Analysis of Affirmative Action in American Law Schools, which recently appeared in the Stanford Law Review. In his article, Professor Sander argues that affirmative action in law schools harms, rather than helps, African American law students by setting up African American students, who are out-matched by their white peers in terms of undergraduate grade point average and LSAT scores, for failure. Specifically, Professor Sander contends that because affirmative action enables African Americans to attend law schools for which they are unqualified, they are more likely to perform poorly …

Using The Master’S “Tool” To Dismantle His House: Why Justice Clarence Thomas Makes The Case For Affirmative Action, Angela Onwuachi-Willig

Faculty Scholarship

Justice Clarence Thomas, the second black man to sit on the Supreme Court, is famous, or rather infamous, for his opposition to affirmative action. His strongest critics condemn him for attacking the very preferences that helped him reach the Supreme Court. None, however, have considered how Thomas's life itself may be used as a justification for affirmative action. In what ways can the master's "tool" be used to dismantle his house? This Article analyzes Justice Thomas's appointment to the Supreme Court and contends that his nomination to and performance on the Court ironically make the case for forward-looking affirmative action. …

The Journey From Brown V. Board Of Education To Grutter V. Bollinger: From Racial Assimilation To Diversity, Harry T. Edwards

Michigan Law Review

Fifty years ago, in Brown v. Board of Education, the Supreme Court confronted a precise and straightforward question: "Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other 'tangible' factors may be equal, deprive the children of the minority group of equal educational opportunities?" The Court's answer was precise and straightforward: "We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs ... are, by reason of the segregation complained of, …

Millennium Showdown For Public Interest Law And Non-White Access To Public Higher Education: Wolves Circling At The Henhouse Door, Stephanie Y. Brown

University of the District of Columbia Law Review

Institutions of higher education are uniquely positioned to influence the tone and character of justice available in the society. As centers of information and acculturation, colleges, universities, and professional schools determine the next generation of legal innovators and how they will be trained. In an era when aggressive opponents of racial equality indulged by a conservative court impede the gradual progress made possible through affirmative action programs, I believe that legal educators share considerable responsibility for the chronic deficiency of equal access to education plaguing racial minorities in this country. Intoxicated by the rhetoric of public interest and ritualistic tilting …

Explaining Grutter V. Bollinger, Neal Devins

Faculty Publications

No abstract provided.

A Brief History Of Chicana/O School Segregation: One Rationale For Affirmative Action, Margaret E. Montoya

Faculty Scholarship

This article uses Critical Race Theory methodologies, such as autobiographical narratives, and analytical approaches, such as revising the history of the civil rights struggle, especially as it applies to the Chicano-Latino communities. This paper represents a student-faculty collaboration in that the students organized the conference at which some of this analysis was first proposed. This was the conference at which now Justice Sonia Sotomayor made her now iconic comments about being a "wise Latina." People can't get to be judges without first going to law school, and Latinas/as can't get to law school, at least in significant numbers, without affirmative …

Clarence Thomas: The First Ten Years Looking For Consistency, Mark Niles

Articles in Law Reviews & Other Academic Journals

No abstract provided.

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.

Fostering Equity And Diversity In The Nova Scotia Legal Profession, Douglas G. Ruck, Craig M. Garson, Robert G. Mackeigan, Carol A. Aylward, Innis Christie, Cora States, Candy Palmater, Douglas Keefe, Margaret Macdonald, Burnley A. (Rocky) Jones, Heidi Marshall, Heather Mcneill, Kelvin Gilpin, Judith Ferguson

Innis Christie Collection

The Province of Nova Scotia has, for many years, attempted, through a variety of means, to address issues of diversity and affirmative action. However, despite the lessons of history there are still those who question the need for programs and policies that promote, encourage and enforce equality. Even though significant advances have been made on many fronts Nova Scotia continues to struggle with issues of inequality. As with many problems faced by society acknowledging the existence of the problem is the first step towards developing solutions.