Law Commons^™

Disaggregated Discrimination And The Rise Of Identity Politics, George Rutherglen

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

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 …

The Next Forty Presidents, Ori Aronson

William & Mary Journal of Race, Gender, and Social Justice

A thought experiment in feminist constitutionalism, this Article explores a radical argument: allow only women to be elected as the next forty U.S. presidents. While on its face blatantly discriminatory, the forty female presidents rule turns out to be a robustly justifiable idea, along multiple axes of political fairness, and not to women alone—rather to the electorate as a whole. Due to several of its unique characteristics, the presidency turns out to be particularly fitting to innovation that would correct past injustices of political exclusion. Corrective justice, affirmative action, feminist critique, voter autonomy, and the democratic costs of identity politics …

Section 5: Race, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

A Crowded Room Or The Perfect Fit? Exploring Affirmative Action Treatment In College And University Admissions For Self-Identified Lgbt Individuals, Herbert C. Brown Jr.

William & Mary Journal of Race, Gender, and Social Justice

This Article explores affirmative action treatment for self-identified LGBT individuals in college and university admissions. This Article seeks to explain that while granting affirmative action treatment to self-identified students in the admission process is constitutional, under the current affirmative action precedent, there is a lack of sufficient justification for such an expansion. This Article will also explore the advantages and disadvantages should colleges and universities choose to implement affirmative action programs for LGBT applicants.

Section I of this Article will begin by depicting the evolution of affirmative action programs since their inception in the early 1960s. This section will also …

Section 3: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Unmuting The Volume: Fisher, Affirmative Action Jurisprudence, And The Legacy Of Racial Silence, Mae Kuykendall, Charles Adside Iii

William & Mary Bill of Rights Journal

As typified by its recent decisions in Fisher v. University of Texas at Austin and Shelby County v. Holder, the Supreme Court’s jurisprudence concerning race has long imposed strict judicial oversight over any use of race for the formulation of public policy. This top-down approach has invited various undesirable outcomes, the most pernicious of which are the endorsement of silence on the subject of race and the delegitimizing of most public deliberations about race by non-Court actors. Consequently, speech within universities and other learning environments regarding race has become a psychologically challenging risk for both students and faculty, who justifiably …

The Supreme Court's Post-Racial Turn Towards A Zero-Sum Understanding Of Equality, Helen Norton

William & Mary Law Review

No abstract provided.

How The Diversity Rationale Lays The Groundwork For New Discrimination: Examining The Trajectory Of Equal Protection Doctrine, Michael A. Helfand

William & Mary Bill of Rights Journal

This Article advocates differentiating between two distinct categories of equal protection cases. The first-what I have termed indicator cases-are instances where courts consider whether there are sufficient factual indications to demonstrate the existence of aprimafacie equal protection violation. The second-violation casesare instances where courts consider, having already determined the existence of an equal protection violation, whether there is a good enough justification for a prima facie equal protection violation. Unfortunately, the Supreme Court has not differentiated between these two different types of cases. This has led to a string of decisions where the Supreme Court has erroneously looked for justifications …

The Diversity Rationale For Affirmative Action In Employment After Grutter: The Case For Containment, Jared M. Mellot

William & Mary Law Review

No abstract provided.

Multiracial Identity And Affirmative Action, Nancy Leong

Faculty Publications

No abstract provided.

Racial Free-Riding On The Coattails Of A Dream Deferred: Can I Borrow Your Social Capital?, Maurice R. Dyson

William & Mary Bill of Rights Journal

No abstract provided.

Grutter And The Passion Of Justice Thomas: A Response To Professor Kearney, Ronald Turner

William & Mary Bill of Rights Journal

No abstract provided.

Judicial Review And Nongeneralizable Cases, Neal Devins, Alan J. Meese

Faculty Publications

No abstract provided.

Circling Back To The Obvious: The Convergence Of Traditional And Reverse Discrimination In Title Vii Proof, Charles A. Sullivan

William & Mary Law Review

No abstract provided.

Connecting The Dots: Grutter, School Desegregation, And Federalism, Wendy Parker

William & Mary Law Review

No abstract provided.

Book Review Of Against Equality Of Opportunity, Michael Ashley Stein

Faculty Publications

No abstract provided.

Explaining Grutter V. Bollinger, Neal Devins

Faculty Publications

No abstract provided.

Easing The Spring: Strict Scrutiny And Affirmative Action After The Redistricting Cases, Pamela S. Karlan

William & Mary Law Review

No abstract provided.

Section 1: Adarand Constructors V. Mineta, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Right Of Expressive Association And Private Universities' Racial Preferences And Speech Codes, David E. Bernstein

William & Mary Bill of Rights Journal

The reaction to Boy Scouts of America v. Dale has divided along ideological lines. Conservatives generally support Dale because in their eyes it prevents the government from taking sides in the culture wars. "Progressives, "including many liberals who otherwise have strong civil libertarian instincts, oppose Dale because it inhibits the enforcement of antidiscrimination laws in some contexts. The underlying issue in Dale was whether a private, nonprofit expressive association has a First Amendment right to discriminate to prevent dilution of its message. Despite the ideological rancor over Dale, this right does not favor groups with any particular perspective, but protects …

Affirmative Actions, William W. Van Alstyne

Faculty Publications

Liberals and progressives have been slow to realize that their preferred vocabulary has been hijacked and that when they respond to once hallowed phrases they are responding to a ghost now animated by a new machme. The point is not a small one, for in any debate, especially one fought in the arena of public opinion, the battle is won not by knock-down arguments but by the party that succeeds in placing its own spin on the terms presiding over the discussion.

Bakke Betrayed, Alan J. Meese

Faculty Publications

No abstract provided.

The Role Of Suspicion In Federal Equal Protection, Paul E. Mcgreal

William & Mary Bill of Rights Journal

Recently, Professor Jed Rubenfeld wrote an essay arguing that the Supreme Court's strict scrutiny test for equal protection works best to "smoke out" the purpose of laws to determine whether they were enacted because of racial bias or preference. Professor Rubenfeld criticized the Court's most recent affirmative action decision in Adarand Constructors, Inc. v. Pena for departing from this "smoking out" approach.

In this Essay, Professor McGreal explores how this "smoking out" process is applied in federal equal protection cases. Counter to Professor Rubenfeld's view, he argues that the Supreme Court did use a "smoking out" approach in Adarand. His …

Looking At Communities And Markets, Lan Cao

Faculty Publications

No abstract provided.

Reinventing Bakke, Alan J. Meese

Faculty Publications

No abstract provided.

Section 2: Moot Court, Piscataway Township Board Of Education V. Taxman, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 3: The Court And Race Relations, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Affirmative Action Implications For Colleges And Universities Beyond The Scholarship And Student Admissions Areas, Ellen R. Dassance

William & Mary Bill of Rights Journal

In Podberesky v. Kirwan, the Fourth Circuit held that a University of Maryland scholarship designated for African-American students violated the Constitution's Equal Protection Clause. In so holding, the court contributed to the recent tradition of dismantling affirmative action programs in higher education. This Note explores the implications of Podberesky for other university settings, particularly faculty hiring and endowment programs. The first part of the Note's analysis concentrates on ways in which the Podberesky rationale may -be extended to university ,programs other than scholarships and student admissions. The Fourth Circuit's employment of a narrow set of factors in reviewing the scholarship …

Bakke To The Wall: The Crisis Of Bakkean Diversity, Gabriel J. Chin

William & Mary Bill of Rights Journal

In the years since the United States Supreme Court's affirmative action holding in Board of Regents v. Bakke, many educational institutions have struggled to apply Bakke's doctrine to their admissions policymaking. Professor Chin asserts that Bakke is incoherent because it does not explain whether the diversity it tries to foster is cultural or racial. Furthermore, he argues that neither a racial nor a cultural basis works under the Bakke scheme, leading to the difficulties schools confront in framing an affirmative action program.

Focusing on law school admissions policies, Professor Chin argues that because of Bakke's weakness as law, it is …