Law Commons^™

Importing Indian Intolerance: How Title Vii Can Prevent Caste Discrimination In The American Workplace, Brett Whitley

Arkansas Law Review

"If Hindus migrate to other regions on [E]arth, [Indian] Caste would become a world problem." - Dr. B.R. Ambedkar (1916) Imagine it is the year 2020. You are one of the more than 160 million people across India that are labeled as Dalits, formerly known as the “Untouchables." Most Hindus view Dalits as belonging to the lowest rung in the ancient system of social stratification that impacts individuals across the globe called the caste system. Your people have endured human rights abuses for centuries, but luckily, neither you nor a loved one have ever been the victim of one of …

Affirmative Inaction: A Quantitative Analysis Of Progress Toward “Critical Mass” In U.S. Legal Education, Loren M. Lee

Michigan Law Review

Since 1978, the Supreme Court has recognized diversity as a compelling government interest to uphold the use of affirmative action in higher education. Yet the constitutionality of the practice has been challenged many times. In Grutter v. Bollinger, for example, the Court denied its use in perpetuity and suggested a twenty-five-year time limit for its application in law school admissions. Almost two decades have passed, so where do we stand? This Note’s quantitative analysis of the matriculation of and degrees awarded to Black and Latinx students at twenty-nine accredited law schools across the United States illuminates a stark lack of …

“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 …

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 …

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 …

The Color Of Perspective: Affirmative Action And The Constitutional Rhetoric Of White Innocence, Cecil J. Hunt Ii

Cecil J. Hunt II

This Article discusses the Supreme Court's use of the rhetoric of White innocence in deciding racially-inflected claims of constitutional shelter. It argues that the Court's use of this rhetoric reveals its adoption of a distinctly White-centered perspective, representing a one-sided view of racial reality that distorts the Court's ability to accurately appreciate the true nature of racial reality in contemporary America. This Article examines the Court's habit of using a White-centered perspective in constitutional race cases. Specifically, it looks at the Court's use of the rhetoric of White innocence in the context of the Court's concern with protecting "innocent" Whites …

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

Faculty Scholarship at Penn Carey Law

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 …

The New Affirmative Action After Fisher V. University Of Texas: Defining Educational Diversity Through The Sixth Amendment's Cross-Section Requirement, Adam Lamparello, Cynthia Swann

Adam Lamparello

Skin color and diversity are not synonymous, and race provides no basis upon which to stereotype individuals or groups, regardless of whether the reasons are malevolent or benign.

Affirmative action policies in higher education should focus on the things that individuals have overcome, not the traits that individuals—and groups—cannot change. Currently, the opposite is true, as such policies typically equate racial diversity with educational diversity, thereby precluding consideration of factors such as family and personal background, life experience, and the overcoming of adversity that would result in true educational diversity. This is not to say that race is irrelevant, …

The Constitutional Rhetoric Of White Innocence

Cecil J. Hunt II

This article discusses the Supreme Court’s use of the rhetoric of white innocence in deciding racially inflected claims of constitutional shelter. It argues that the Court’s use of this rhetoric reveals that it has adopted a distinctly white-centered-perspective which reveals only a one-sided view of racial reality and thus distorts its ability to accurately appreciate the true nature of racial reality in contemporary America. This article examines the Court’s habit of consistently choosing a white-centered-perspective in constitutional race cases by looking at the Court’s use of the rhetoric of white innocence first in the context of the Court’s concern with …

Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise

Michael Heise

No abstract provided.

“Something Wicked This Way Comes”: Political Correctness And The Reincarnation Of Chairman Mao, David Barnhizer

David Barnhizer

Mao’s Red Guards and the “Wicked Wisdom” of Lesley Gore There could not possibly be any parallel between the actions of Mao Tse Tung’s young Red Guard zealots and the intensifying demands of identity groups that all people must conform to their version of approved linguistic expression or in effect be condemned as “reactionaries” and “counter-revolutionaries” who are clearly “on the wrong side of history”. Nor, in demanding that they be allowed to effectively take over the university and its curriculum while staffing faculty and administrative positions with people who think like them while others are subjected to “re-education” sessions …

Identity And Form, Jessica A. Clarke

Vanderbilt Law School Faculty Publications

Recent controversies over identity claims have prompted questions about who should qualify for affirmative action, who counts as family, who is a man or a woman, and who is entitled to the benefits of U.S. citizenship. Commentators across the political spectrum have made calls to settle these debates with evidence of official designations on birth certificates, application forms, or other records. This move toward formalities seeks to transcend the usual divide between those who believe identities should be determined based on objective biological or social standards, and those who believe identities are a matter of individual choice. Yet legal scholars …

Who's Afraid Of White Class Migrants? On Denial, Discrediting, And Disdain (And Toward A Richer Conception Of Diversity), Lisa R. Pruitt

Lisa R Pruitt

The False Choice Between Race And Class And Other Affirmative Action Myths, Lisa R. Pruitt

Lisa R Pruitt

This article refutes the widely held assumption that affirmative action is appropriate either to support only racial and ethnic minorities or to support only low-income students, but that it cannot or should not support both. Pruitt argues that we need not make such a choice and that we should aspire to socioeconomically diversify higher education institutions—including the most elite sector—with low-income students of all colors. Pruitt thus disputes the framing of Richard Kahlenberg and Richard Sander who have long argued that we should seek socioeconomic diversity in lieu of racial/ethnic diversity, a stance that has needlessly pitted underrepresented minorities against …

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 …

Money And Power In Religious Competition: A Critique Of The Religious Free Market, Jianlin Chen

Jianlin Chen

Academics have frequently alluded to the normative value of the religious free market fostered by the twin legal guarantees of the free exercise of religion and the absence of state establishment of religion. This article challenges the idealized portrayal of a religion’s ‘flourish[ing] according to the zeal of its adherents and the appeal of its dogma’ and examines the dynamics of material wealth and political power in a religion’s success. This article suggests that controversial measures such as affirmative action for socio-economically disadvantaged religions and restrictions of religious involvement in politics are not necessarily incompatible with the religious free market.

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 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" …

Radicalism, Racism, And Affirmative Action: In Defense Of A Historical Approach, Deseriee Kennedy

Deseriee A. Kennedy

No abstract provided.

Affirmative Action & The Obligations Of American Citizenship, Robert Justin Lipkin

Robert Justin Lipkin

No abstract provided.

Change In Racial And Ethnic Classifications Is Here: Proposal To Address Race And Ethnic Ancestry Of Blacks For Affirmative Action Admissions Purposes, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

Determining The (In)Determinable: Race In Brazil And The United States, D. Wendy Greene

Michigan Journal of Race and Law

In recent years, the Brazilian states of Rio de Janeiro, So Paulo, and Mato Grasso du Sol have implemented race-conscious affirmative action programs in higher education. These states established admissions quotas in public universities for Afro-Brazilians or afrodescendentes. As a result, determining who is "Black'' has become a complex yet important undertaking in Brazil. Scholars and the general public alike have claimed that the determination of Blackness in Brazil is different than in the United States; determining Blackness in the United States is allegedly a simpler task than in Brazil. In Brazil it is widely acknowledged that most Brazilians are …

Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Don't Count Them Out Just Yet: Toward The Plausible Use Of Race-Preference Student Assignment Plans, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

Contrary to conventional wisdom, the Supreme Court's recent decision in Parents Involved in Community Schools v. Seattle School District No. 11 could serve to broaden the permissible use of race beyond the boundaries presently permitted by the Court. In this highly fractionalized decision, five justices ultimately agreed that the race-based student assignment plans before their review could not withstand judicial scrutiny. One of these justices, Justice Kennedy, agreed with the plurality's conclusion, but rejected the plurality's assessment that it is never permissible to use race-preference student assignment plans absent evidence of de jure segregation. His concurrence, when read together with …

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 …

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 …

Open Water: Affirmative Action, Mismatch Theory And Swarming Predators: A Response To Richard Sander, André Douglas Pond Cummings, Seth Harper

Faculty Scholarship

"Open Water" offers a sharp normative critique of Richard Sander's Stanford Law Review study (57 STAN. L. REV. 367 (2004)) that claims to prove empirically that affirmative action positively injures African American law students. Sander's law review article and conclusions are troublesome for a range of reasons and my critique unfolds as follows: First, Sander promulgates an objectionable form of racial paternalism in his anti-affirmative action study; Second, Sander casts himself in the fateful and historically disturbing role of the "Great White Father"; Third, Sander seemingly manipulated the mass media in drawing attention to his study and purported findings, particularly …

The Cost Of Good Intentions: Why The Supreme Court's Decision Upholding Affirmative Action Admission Programs Is Detrimental To The Cause, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

This article provides an overview of the Federal Courts’ interpretation of equal protection challenges to affirmative action admission policies beginning with University of California v. Bakke through the recent Supreme Court decisions of Grutter v. Bollinger and Gratz v. Bollinger. The article then identifies and outlines the appropriate elements of a constitutionally sound affirmative action admission policy. Finally, the article concludes that the permissible policy is almost unattainable for schools other than small institutions.