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Articles 1 - 19 of 19
Full-Text Articles in Law
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 …
Grutter's Denouement: Three Templates From The Roberts Court, Ellen D. Katz
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 …
Preserving A Racial Hierarchy: A Legal Analysis Of The Disparate Racial Impact Of Legacy Preferences In University Admissions, Kathryn Ladewski
Preserving A Racial Hierarchy: A Legal Analysis Of The Disparate Racial Impact Of Legacy Preferences In University Admissions, Kathryn Ladewski
Michigan Law Review
Many public and private universities around the country employ legacy admissions preferences in order to give children of alumni special consideration in the admissions process. Such preferences disproportionately benefit white applicants at the cost of their nonwhite counterparts, because past generations of college students were less diverse than today's applicant pool. However, universities argue that their legacy preferences are justified because they assist in alumni fundraising efforts. This Note presents a statistical analysis to argue that legacy preferences are prohibited by the Civil Rights Act of 1964 because they have a discriminatory effect on minority college applicants and have not …
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. …
Without Color Of Law: The Losing Race Against Colorblindness In Michigan, Khaled Ali Beydoun
Without Color Of Law: The Losing Race Against Colorblindness In Michigan, Khaled Ali Beydoun
Michigan Journal of Race and Law
This Essay examines affirmative action, while discussing its fall in California, Washington State, and ultimately Michigan.
Post-Admissions Educational Programming In A Post-Grutter World: A Response To Professor Brown, Evan H. Caminker
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 …
A Glimpse Behind And Beyond Grutter, Evan H. Caminker
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.
"I Will Not Sit Idly By While My Future Is Determined:" The Response Of The University Of Michigan Black Law Students' Alliance To Grutter V. Bollinger, Et Al., The Black Law Students' Alliance
"I Will Not Sit Idly By While My Future Is Determined:" The Response Of The University Of Michigan Black Law Students' Alliance To Grutter V. Bollinger, Et Al., The Black Law Students' Alliance
Michigan Journal of Gender & Law
Back in 1998, the Michigan Journal of Gender & Law expressed support for the University of Michigan Law School's defense of its affirmative action policy, which is at controversy in Grutter v. Bollinger. Today, as in 1998, "[W]e certainly do not believe the Law School admissions policy truly addresses the inequalities within our law school and the legal profession generally. Legal education is unfortunately not a bastion of diversity." Women and students of color struggle to be heard and seen, and to achieve equal representation in both the study and practice of law. "Without active efforts, we cannot create …
A General Theory Of Cultural Diversity, Steven A. Ramirez
A General Theory Of Cultural Diversity, Steven A. Ramirez
Michigan Journal of Race and Law
This Article seeks to extend the analysis of these developments in the corporate world to anti-discrimination law under the Equal Protection Clause of the Fourteenth Amendment. This Article will show that discrimination based upon cultural insights or experiences is distinct from race discrimination and will articulate a general theory of why and under what circumstances this holds true. The difference between culture-based discrimination and using culture as a proxy for race (Which would then be race discrimination) requires a careful and non-mythological understanding of what race is, and what race is not. Moreover, showing that culture discrimination is not prohibited …
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.
Minority Preferences Reconsidered, Terrance Sandalow
Minority Preferences Reconsidered, Terrance Sandalow
Reviews
During the academic year 1965-66, at the height of the civil rights movement, the University of Michigan Law School faculty looked around and saw not a single African-American student. The absence of any black students was not, it should hardly need saying, attributable to a policy of purposeful exclusion. A black student graduated from the Law School as early as 1870, and in the intervening years a continuous flow of African-American students, though not a large number, had been admitted and graduated. Some went on to distinguished careers in the law.
Rejoinder (Response To Article By William G. Bowen And Derek Bok), Terrance Sandalow
Rejoinder (Response To Article By William G. Bowen And Derek Bok), Terrance Sandalow
Articles
In The Shape of the River, presidents Bowen and Bok pronounce the race-sensitive admission policies adopted by selective undergraduate schools a resounding success. The evidence they adduce in support of that conclusion primarily concerns the performance of African-American students in and after college. But not all African-American students in those institutions were admitted in consequence of minority preference policies. Some, perhaps many, would have been admitted under race-neutral policies. I argued at several points in my review that since these students might be expected to be academically more successful than those admitted because of their race, the evidence on which …
Perspectives On Affirmative Action / Rethinking Racial Divides: Asian Pacific Americans And The Law, Michigan Journal Of Race & Law
Perspectives On Affirmative Action / Rethinking Racial Divides: Asian Pacific Americans And The Law, Michigan Journal Of Race & Law
Michigan Journal of Race and Law
Statements on affirmative action followed by the Asian Pacific American Law Students Association Symposium.
Minority Preferences In Law School Admissions, Terrance Sandalow
Minority Preferences In Law School Admissions, Terrance Sandalow
Book Chapters
In addressing the subject of "reverse discrimination," I want to caution at the outset against permitting the use of the word "discrimination" to prejudice consideration of the subject. "Discrimination" has, in recent years, become a bad word. It tends to be used as a shorthand for "unjustifiably unequal treatment." In its original and still proper meaning, however, the word is quite neutral. Discrimination merely means differentiation. It comes from a Latin word that means "to distinguish." Accordingly, when we discriminate-i.e., when we differentiate or distinguish-among people, the propriety of our action depends upon the reasons that we have acted as …
Bakke: A Compelling Need To Discriminate, Theodore J. St. Antoine
Bakke: A Compelling Need To Discriminate, Theodore J. St. Antoine
Articles
Two of America's most cherished values collided head-on a few months ago, when the U.S. Supreme Court began to come to grips with the most significant civil rights suit since the school desegregation cases of 1954. Arrayed on one side is the principle of governmental "color-blindness," the appealing notion that the color of a person's skin should have nothing to do with the distribution of benefits or burdens by the state. Set against it is the goal of a truly integrated society, and the tragic realization that this objective cannot be achieved within the foreseeable future unless race and color …
A New Dimension In Equal Protection?, Theodore J. St. Antoine
A New Dimension In Equal Protection?, Theodore J. St. Antoine
Articles
Two of America's most cherished values will collide head-on this year, when the U.S. Supreme Court comes to grips with the most significant civil rights suit since the school desegregation cases of 1954. Arrayed on one side is the principle of governmental "color-blindness," the appealing notion that the color of a person's skin should have nothing to do with the distribution of benefits or burdens by the state. Set against it is the goal of a truly integrated society and the tragic realization that this objective cannot be achieved within the foreseeable future unless race and color are taken into …
Racial Preferences In Higher Education: Political Responsibility And The Judicial Role, Terrance Sandalow
Racial Preferences In Higher Education: Political Responsibility And The Judicial Role, Terrance Sandalow
Articles
Controversy continues unabated over the question left unresolved by DeFunis v. Odegaard: whether in its admissions process a state law school may accord preferential treatment to certain racial and ethnic minorities. In the pages of two journals published by the University of Chicago, Professors John Hart Ely and Richard Posner have established diametrically opposed positions in the debate. Their contributions are of special interest because each undertakes to answer the question within the framework of a theory concerning the proper distribution of authority between the judiciary and the other institutions of government. Neither position, in my judgment, adequately confronts the …