Law Commons^™

A Nation Of Widening Opportunities: The Civil Rights Act At 50, Ellen D. Katz, Samuel R. Bagenstos

Books

The Civil Rights Act of 1964 was an extraordinary achievement of law, politics, and human rights. On the fiftieth anniversary of the Act's passage, it is appropriate to reflect on the successes and failures of the civil rights project reflected in the statute, as well as on its future directions. This volume represents an attempt to assess the Civil Rights Act's legacy.

On October 11, 2013, a diverse group of civil rights scholars met at the University of Michigan Law School in Ann Arbor to assess the interpretation, development, and administration of civil rights law in the five decades since …

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 …

The Promise Of Grutter: Diverse Interactions At The University Of Michigan Law School, Meera E. Deo

Michigan Journal of Race and Law

In Grutter v. Bollinger, the U.S. Supreme Court upheld affirmative action at the University of Michigan Law School on the grounds of educational diversity. Yet the Court's assumption that admitting diverse students into law school would result in improved race relations, livelier classroom conversations, and better professional outcomes for students has never been empirically tested. This Article relies on survey and focus group data collected at the University of Michigan Lav School campus itself in March 2010 to examine not only whether, but how diversity affects learning. The data indicate both that there are sufficient numbers of students of color …

A Call For The End Of The Doctrine Of Realignment, Jacob S. Sherkow

Michigan Law Review

In Indianapolis v. Chase National Bank, 1941, the Supreme Court established the doctrine of realignment, requiring federal courts to examine the issues in dispute and realign each party as plaintiff or defendant if necessary. Due to the complete diversity requirement, realignment gave the federal courts the ability to both create and destroy diversity jurisdiction. Since 1941, the federal courts have struggled to interpret the central holding in Indianapolis, and have created several competing "tests" for realignment. This confusion has made the doctrine of realignment unworkable. Realignment along with each of the present tests-encourages jurisdictional abuses by forcing the federal …

The Diversity Rationale: Unprovable, Uncompelling, Brian N. Lizotte

Michigan Journal of Race and Law

Student body diversity-and the purported educational benefits diversity bestows- is the final Supreme Court-endorsed justification for affirmative action by public universities. Are the benefits of diversity indeed "substantial," as the Grutter majority claimed? The author analyzes the social scientific research upon which the Court relied in articulating the diversity interest. By critiquing its theory and methodology, the author shows how the research fails to prove educational benefits; and by considering the logic underlying social science generally, he shows how the causal relationship is, technically, not provable. The author questions, then, how the diversity interest can possibly be compelling.

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 …

Fair And Facially Neutral Higher Educational Admissions Through Disparate Impact Analysis, Michael G. Perez

Michigan Journal of Race and Law

Part I of this Note proposes both remedial and instrumental justifications for applying disparate impact scrutiny to admissions policies. This Part argues that disparate impact analysis should be applied to higher education as a remedy for the disadvantage minority applicants face as a result of historic and ongoing intentional discrimination and that schools are culpable for unnecessarily utilizing admissions criteria that have this discriminatory effect. The result of applying disparate impact analysis will be admissions policies that produce diverse student bodies while remaining facially neutral with regard to race. Part II proposes that a necessity standard, unique to the higher …

Multiracial Identity, Monoracial Authenticity & Racial Privacy: Towards An Adequate Theory Of Mulitracial Resistance, Maurice R. Dyson

Michigan Journal of Race and Law

This Article is divided into five parts. Part I briefly places the significance of the Supreme Court's affirmative action ruling in Grutter v. Bollinger in context, particularly the implications of its recommended twenty-five year timeframe in recognizing racial diversity. Part II examines the dangerous consequences of implicit assumptions underlying the RPI. More specifically, I investigate the potential ramifications the RPI would have had upon multiple sectors of our society, including healthcare, education, and law enforcement. In the process, I attempt to demonstrate that the concept of racial privacy is a strategic misnomer intended not to protect one's privacy, but rather …

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.

Constitutional Sunsetting?: Justice O'Connor's Closing Comments On Grutter, Vikram David Amar, Evan H. Caminker

Articles

Most Supreme Court watchers were unsurprised that Justice Sandra Day O'Connor's vote proved pivotal in resolving the University of Michigan affirmative action cases; indeed, Justice O'Connor has been in the majority in almost every case involving race over the past decade, and was in the majority in each and every one of the 5-4 decisions the Court handed down across a broad range of difficult issues last Term. Some smaller number of observers were unsurprised that Justice O'Connor decided (along with the four Justices who in the past have voted to allow latitude with regard to race-based affirmative action programs) …

Prologue: Brief Of Amici Curiae On Behalf Of A Committee Of Concerned Black Graduates Of Aba Accredited Law Schools: Vicky L. Beasley, Devon W. Carbado, Tasha L. Cooper, Kimberlé Crenshaw, Luke Charles Harris, Shavar Jeffries, Sidney Majalya, Wanda R. Stansbury, Jory Steele, Et Al., In Support Of Respondents, Luke Charles Harris

Michigan Journal of Race and Law

The brief of Amici Curiae on Behalf of a Committee of Concerned Black Graduates of ABA Accredited Law Schools in Grutter v. Bollinger was written so as to intervene and to assist in the refraining of the public debate surrounding minority admissions programs in institutions of higher education.

Brief Of Amici Curiae On Behalf Of A Committee Of Concerned Black Graduates Of Aba Accredited Law Schools: Vicky L. Beasley, Devon W. Carbado, Tasha L. Cooper, Kimberlé Crenshaw, Luke Charles Harris, Shavar Jeffries, Sidney Majalya, Wanda R. Stansbury, Jory Steele, Et Al., In Support Of Respondents, Mary Mack Adu Esq.

Michigan Journal of Race and Law

In the Supreme Court of the United States. Barbara Grutter V. Lee Bollinger

A Rational Basis For Affirmative Action: A Shaky But Classical Liberal Defense, Richard A. Epstein

Michigan Law Review

I am honored to participate in a symposium on the occasion of the lOOth anniversary of one of America's preeminent law reviews. I am saddened, however, to write, at what should be a moment of celebration, with the knowledge that both the Law School and the College of Literature, Science and the Arts are enmeshed in extensive litigation over the critical and explosive issue of affirmative action. To find striking evidence of the deep split of learned judicial views on this issue, it is necessary to look no further than the sequence of opinions in Gratz v. Bollinger and Grutter …

The Causation Fallacy: Bakke And The Basic Arithmetic Of Selective Admissions, Goodwin Liu

Michigan Law Review

Last Term, the Supreme Court turned down two invitations to resolve the constitutionality of affirmative action in college and university admissions. In May 2001, the Court for the second time declined to review a Fifth Circuit decision holding that the use of racial preferences to achieve diversity in the student body serves no compelling interest. A few weeks later, the Court let stand a conflicting Ninth Circuit decision that upheld a .law school affirmative action policy on the ground that "educational diversity is a compelling governmental interest that meets the demands of strict scrutiny." The legal controversy over admissions preferences …

What's Wrong With Our Talk About Race? On History, Particularity, And Affirmative Action, James Boyd White

Michigan Law Review

One of the striking and original achievements of the Michigan Law Review in its first century was the publication in 1989 of a Symposium entitled Legal Storytelling. Organized by the remarkable editor-in-chief, Kevin Kennedy - who tragically died not long after his graduation - the Symposium not only brought an important topic to the forefront of legal thinking, it did so in an extraordinarily interesting way. For this was not a mere collection of papers; the authors met in small editorial groups to discuss their work in detail, and as a result the whole project has a remarkable coherence and …

Integration Without Classification: Moving Toward Race-Neutrality In The Pursuit Of Public Elementary And Secondary School Diversity, Paul Diller

Michigan Law Review

Ever since the Supreme Court's invalidation of racially segregated public schools in Brown v. Board of Education, America has wrestled with the challenge of successfully dismantling educational apartheid. In recent years, the federal judiciary has largely retreated from enforcing desegregation in school districts that were once under court supervision for engaging in intentional racial discrimination, finding that the vestiges of past discrimination have been satisfactorily ameliorated. In some such unitary school districts, as well as in districts in which no intentional segregation was ever identified by the courts, boards of education, have voluntarily implemented student assignment plans designed to increase …

Race-Conscious Diversity Admissions Programs: Furthering A Compelling Interest, Marty B. Lorenzo

Michigan Journal of Race and Law

This Article argues that narrowly tailored, race-conscious admissions programs can be employed to achieve a more diverse student body and consequently a more enlightened and egalitarian society. An admissions body which looks beyond traditional academic indicators and explores the whole person of each applicant will matriculate a group of students with a wide variety of race, gender, class and other backgrounds, thereby fostering a robust exchange of ideas among these students. Pointing to the enduring precedential value of Bakke as well as the ideological makeup of the Supreme Court, this Article asserts that the Courts would likely uphold a program …