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 …

Ambivalent Advocates: Why Elite Universities Compromised The Case For Affirmative Action, Jonathan Feingold

Faculty Scholarship

“The end of affirmative action.” The headline is near. When it arrives, scholars will explain that a controversial set of policies could not withstand unfriendly doctrine and less friendly Justices. This story is not wrong. But it is incomplete. Critically, this account masks an underappreciated source of affirmative action’s enduring instability: elite universities, affirmative action’s formal champions, have always been ambivalent advocates.

Elite universities are uniquely positioned to shape legal and lay opinions about affirmative action. They are formal defendants in affirmative action litigation and objects of public obsession. And yet, schools like Harvard and the University of North Carolina—embroiled …

“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 …

More Than Just The Numbers: Fisher V. Texas And The Practical Impact Of Texas’S Top Ten Percent Law, Shakira D. Pleasant

Shakira D. Pleasant

No abstract provided.

Principles And Consequences In A Virtue Ethics Analysis Of Affirmative Action, Caleb H A Brown

Montview Journal of Research & Scholarship

In this paper, I evaluate affirmative action from the framework of virtue ethics. In doing so, I consider the principles behind affirmative action as well as its consequences because a perfectly virtuous person will act per just principles but will also be concerned with the consequences of her actions. An attempt to restore justice that utilizes a mechanism known to be ineffective is not truly an attempt to restore justice, and so is not virtuous. Therefore, if affirmative action is principally justified, a complete virtue ethical analysis will still ask, “Do we know if it works?” I conclude that affirmative …

Awaiting The Rebirth Of An Icon: Brown V. Board Of Education, R. Lawrence Purdy

Mitchell Hamline Law Review

No abstract provided.

The More Things Change, The More They Stay The Same: Why Fisher V. University Of Texas At Austin Will Not Fundamentally Alter The Affirmative Action Landscape, Adam Lamparello

University of Miami Business Law Review

No abstract provided.

Diversity Is Dead. Long Live Diversity: The Racial Isolation Prong Of Kennedy’S Pics Concurrence In Fisher And Beyond., Francisco M. Negrón Jr.

University of Miami Business Law Review

No abstract provided.

More Than Just The Numbers: Fisher V. Texas And The Practical Impact Of Texas’S Top Ten Percent Law, Shakira D. Pleasant

University of Miami Business Law Review

No abstract provided.

It’S Not About Race: The True Purpose Of The University Of Texas’ Holistic Admissions System Is To Give Preferences To Well-Connected White Applicants, Not To Disadvantaged Minorities, Jonathan R. Zell

University of Miami Business Law Review

No abstract provided.

Getting Real About Race And Class: An Evaluation Of The Constitutionality Of Class-Based, Socioeconomic Affirmative Action Without Grutter, Junis L. Baldon

University of Miami Business Law Review

No abstract provided.

Fisher V. University Of Texas At Austin: The Incoherence And Unseemliness Of State Racial Classification, Jay Alan Sekulow, Walter M. Weber

University of Miami Business Law Review

No abstract provided.

Use Of Economic-Based Affirmative Action In College Admissions, Torrino Travell Travis

Florida A & M University Law Review

Preferential treatment based on race is currently on life support and will soon die as a part of the college admissions process. However, banning racial preference in college admissions does not mean the end of minorities receiving preferential treatment in college admissions. Recently, federal courts have begun to hold that colleges may give preferential treatment and use various criteria in compiling its student body; however, these criteria must be race neutral. Part I of this note discusses Grutter v. Bollinger. Part II argues that admissions committees will still be able to give deserving minorities special consideration under a race neutral …

Economic Inequality And College Admissions Policies, David Orentlicher

Scholarly Works

As economic inequality in the United States has reached unprecedented heights, reformers have focused considerable attention on changes in the law that would provide for greater equality in wealth among Americans. No doubt, much benefit would result from more equitable tax policies, fairer workplace regulation, and more generous spending policies.

But there may be even more to gain by revising college admissions policies. Admissions policies at the Ivy League and other elite American colleges do much to exacerbate the problem of economic inequality. Accordingly, reforming those policies may represent the most effective strategy for restoring a reasonable degree of economic …

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 …

What Once Was Lost Must Now Be Found: Rediscovering An Affirmative Action Jurisprudence Informed By The Reality Of Race In America, Lee C. Bollinger

Faculty Scholarship

This academic year has seen college and university students across America calling on their institutions to do more to create campus cultures supportive of African American students and other underrepresented minorities. There have been demands to increase faculty and student diversity, change curricular requirements, and adopt mandatory cultural sensitivity trainings. There have been efforts to rename buildings, remove images, and abandon symbols associating schools with major historic figures who were also proponents of slavery, segregation, or other forms of racism. As in all tumultuous periods for higher education, these events have provoked useful discussions about fundamental principles and brought to …

Grutter V. Bollinger/Gratz V. Bollinger: View From A Limestone Ledge, Gerald Torres

Gerald Torres

No abstract provided.

Grutter V. Bollinger/Gratz V. Bollinger: View From A Limestone Ledge, Gerald Torres

Gerald Torres

No abstract provided.

Fisher V. Texas: The Limits Of Exhaustion And The Future Of Race-Conscious University Admissions, John Powell, Stephen Menendian

john a. powell

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 …

From Access To Success: Affirmative Action Outcomes In A Class-Based System, Matthew N. Gaertner, Melissa Hart

Publications

Scholarly discussion about affirmative action policy has been dominated in the past ten years by debates over "mismatch theory'"--the claim that race-conscious affirmative action harms those it is intended to help by placing students who receive preferences among academically superior peers in environments where they will be overmatched and unable to compete. Despite serious empirical and theoretical challenges to this claim in academic circles, mismatch has become widely accepted outside those circles, so much so that the theory played prominently in Justice Clarence Thomas's concurring opinion in Fisher v. University of Texas. This Article explores whether mismatch occurs in …

The Mismatch Myth In U.S. Higher Education: A Synthesis Of The Empirical Evidence At The Law School And Undergraduate Levels, William C. Kidder, Richard O. Lempert

Book Chapters

Opponents of affirmative action in higher education commonly cite two principles to justify their opposition. One is that admissions to institutions of higher education should be based on "merit," which is often treated by critics of affirmative action as consisting of little more than test score results and high school or undergraduate grades. The second is the legal and moral imperative of not making consequential decisions based on race. We shall not address these principles except to note that others have shown that they do not make the case against affirmative action (Carbado & Harris 2008, Shultz & Zedeck 2011, …

Place, Not Race: Affirmative Action And The Geography Of Educational Opportunity, Sheryll Cashin

University of Michigan Journal of Law Reform

Ultimately, I argue that one important response to the demise of race-based affirmative action should be to incorporate the experience of segregation into diversity strategies. A college applicant who has thrived despite exposure to poverty in his school or neighborhood deserves special consideration. Those blessed to come of age in poverty-free havens do not. I conclude that use of place, rather than race, in diversity programming will better approximate the structural disadvantages many children of color actually endure, while enhancing the possibility that we might one day move past the racial resentment that affirmative action engenders. While I propose substituting …

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

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 …

The 'Compelling Government Interest' In School Diversity: Rebuilding The Case For An Affirmative Government Role, Philip Tegeler

University of Michigan Journal of Law Reform

How far does Justice Kennedy’s “moral and ethical obligation” to avoid racial isolation extend? Does the obligation flow primarily from Supreme Court case law, does it derive from an evolving consensus in the social sciences, or does it also have a statutory basis in Title VI and other federal law? In addition to its value as a justification for non-individualized, race-conscious remedial efforts by state and local governments, does the compelling interest identified in Parents Involved also suggest an affirmative duty on the part of the federal government? And if so, how far does this affirmative duty extend, and how …

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 …

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 …

Following Fisher: Narrowly Tailoring Affirmative Action, Eang L. Ngov

Faculty Scholarship

No abstract provided.