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An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw
An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw
Faculty Scholarship
For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …
Integration, Reconstructed, Olatunde C.A. Johnson
Integration, Reconstructed, Olatunde C.A. Johnson
Faculty Scholarship
This article examines Parents Involved for the light it sheds on integration's continuing relevance to educational and social equity. Part I examines the story of school integration in Jefferson County and shows how this largely successful metropolitan integration plan challenges claims of racial integration's futility. Part II puts forward the empirical evidence that plaintiffs in Parents Involved used in seeking to establish that school boards have a compelling interest in promoting racial integration and avoiding the harm of racially isolated schools. This part argues that the empirical case for racial integration, while not without limitations, moves beyond stigmatization, psychological harm, …
Grutter At Work: A Title Vii Critique Of Constitutional Affirmative Action, Jessica Bulman-Pozen
Grutter At Work: A Title Vii Critique Of Constitutional Affirmative Action, Jessica Bulman-Pozen
Faculty Scholarship
This Note argues that Title VII doctrine both illuminates internal contradictions of Grutter v. Bollinger and provides a framework for reading the opinion. Grutter's diversity rationale is a broad endorsement of integration that hinges on the quantitative concept of critical mass, but the opinion's narrow-tailoring discussion instead points to a model of racial difference that champions subjective decisionmaking and threatens to jettison numerical accountability. Title VII doctrine supports a reading of Grutter that privileges a view of diversity as integration and therefore cautions against the opinion's conception of narrow tailoring. Grutter, in turn, can productively inform employment discrimination law. The …
A Comment On Grutter And Gratz V. Bollinger, Lee C. Bollinger
A Comment On Grutter And Gratz V. Bollinger, Lee C. Bollinger
Faculty Scholarship
Now that the Supreme Court has definitively resolved (at least for a generation) the issue of the constitutionality of affirmative action in American higher education, thereby continuing without major adjustment what has been the practice in our selective colleges and universities for more or less the last thirty years, it is easy to forget how different the United States would have looked in the years ahead if only one vote had shifted to the dissenting side. Just how precipitous and long-lasting the decline in racial and ethnic diversity would have been is a complicated matter, but that it would have …
Judicial Scrutiny Of "Benign" Racial Preference In Law School Admissions, Kent Greenawalt
Judicial Scrutiny Of "Benign" Racial Preference In Law School Admissions, Kent Greenawalt
Faculty Scholarship
Racial preferences for blacks generate ambivalence in those who care about racial equality and also believe that individuals should be judged "on their own merits." This ambivalence is reflected in divergent "equal protection" values, the value of eliminating barriers to equality imposed on minority groups and that of distributing the burdens and benefits of social life without reference to arbitrary distinctions. It is hardly surprising, therefore, that after Marco DeFunis, Jr. challenged the constitutionality of racial preferences for admission to a state law school, the Supreme Court's resolution of the issue was awaited with intense interest and some trepidation. For …