Law Commons^™

The Erosion Of Affirmative Action: The Fifth Circuit Contradicts The Supreme Court On The Issue Of Diversity, Emily V. Pastorius

Golden Gate University Law Review

This Comment will begin by examining the facts and procedural history of the Hopwood case. It will discuss background information relevant to understanding affirmative action and the precedent used by the Fifth Circuit, most notably the Bakke decision. This Comment will also examine the application of affirmative action in higher education admissions policies. It will evaluate the Fifth Circuit's reasoning for contradicting Bakke when the Fifth Circuit concluded that racial considerations are impermissible in admission plans in higher education. Finally, this Comment proposes that the Fifth Circuit was hasty in rendering its conclusion.

Affirmative Action And The California Civil Wrongs Initiative, Eva Jefferson Paterson

Golden Gate University Law Review

No abstract provided.

What Would Be The Impact Of Eliminating Affirmative Action?, Erwin Chermerinsky

Golden Gate University Law Review

This afternoon I want to discuss what would be the impact of eliminating affirmative action. To do this, I want to focus on what I see as the myths of affirmative action and then the realities of affirmative action. I believe that the popular discussion of this important and divisive topic is very much distorted by certain myths. I would identify for you three myths of affirmative action.

Eldredge V. Carpenters' 46 Northern California Counties Joint Apprenticeship Training Committee: The Ninth Circuit Finally Hammers The Carpenters' Union With An Affirmative Action Plan, Unaloto-Ki-Vahanoa Halamehi Aholelei-Aonga

Golden Gate University Law Review

No abstract provided.

Defining The Parameters Of Permissible State And Local Affirmative Action Programs, Janice R. Franke

Golden Gate University Law Review

In the 1989 case of Richmond v. Croson, the United States Supreme Court issued a decision which has had a tremendous impact on subsequent judicial evaluations of other public sector affirmative action efforts, and hence also on the adoption and structuring of state and local affirmative action programs. One significant factor about the Croson decision was that it was the first time a majority of the Court set strict scrutiny as the standard of review for assessing the constitutionality of state and local race-based affirmative action endeavors. Despite this agreement as to the proper standard of review, however, there was …

Constitutional Law, Christopher Windle

Golden Gate University Law Review

No abstract provided.

Johnson V. Santa Clara County Transportation Agency: Affirmative Action Expanded Under Title Vii, Theresa Marks

Golden Gate University Law Review

This note discusses the guidelines established in Johnson. It will suggest that under the Johnson standards, general societal discrimination may provide a sufficient basis for imposing voluntary, sexually classified remedies under Title VII It will further suggest that voluntary affirmative action in response to general societal discrimination is consistent with the United States Supreme Court's interpretation of Congress's intent in enacting Title VII Finally, this note will evaluate the potential benefit the Johnson decision brings to women's rights as well as noting the problems presented by the Court's failure to clearly delineate appropriate standards for affirmative action.

An Agenda For Women Lawyers: Pandora's Box, Ann Fagan Ginger

Golden Gate University Law Review

No abstract provided.

Grutter's Regrets: An Empirical Investigation Of How Affirmative Action Is(N'T) Working, Deirdre Bowen

Deirdre M Bowen

This exploratory empirical work examines whether students of color enjoy the benefits articulated by the U.S. Supreme Court in the Grutter decision that rationalized the continuation of affirmative action based on diversity interests. Specifically, the Court stated that affirmative action was permissible because students of all backgrounds would increase their racial understanding and decrease their racial stereotyping of minorities. Supporters and opponents were skeptical that such benefits would really materialize for students of color. Supporters argued that minority students would merely be tokens in which only white students would benefit from a diverse classroom. Opponents argued that this diversity rationale …

Probabilities In Probable Cause And Beyond: Statistical Versus Concrete Harms, Sherry F. Colb

Cornell Law Faculty Publications

No abstract provided.

The Associated Dangers Of "Brilliant Disguises," Color-Blind Constitutionalism And Post Racial Rhetoric, André Douglas Pond Cummings

andré douglas pond cummings

Affirmative action, since its inception in 1961, has been under siege. The backlash against affirmative action began in earnest almost immediately following its origination through President John F. Kennedy’s and President Lyndon B. Johnson’s Executive Orders. Organized hostility in opposition to affirmative action crystallized early with “color-blind” theories posited and adopted, “reverse discrimination” alleged and embraced, and constitutional narrowing through adoption of white-privileged justifications. Enmity against affirmative action continues unabated today as exemplified by recent academic writings and studies purporting to prove that affirmative action positively injures African Americans and recent state-wide campaigns seeking to eradicate affirmative action through state …

Affirmative Action In Brazil: Reverse Discrimination And The Creation Of A Constitutionally Protected Color-Line, Christopher Dischino

University of Miami International and Comparative Law Review

No abstract provided.

John Paul Stevens And Equally Impartial Government, Diane Marie Amann

Scholarly Works

This article is the second publication arising out of the author's ongoing research respecting Justice John Paul Stevens. It is one of several published by former law clerks and other legal experts in the UC Davis Law Review symposium edition, Volume 43, No. 3, February 2010, "The Honorable John Paul Stevens."

The article posits that Justice Stevens's embrace of race-conscious measures to ensure continued diversity stands in tension with his early rejections of affirmative action programs. The contrast suggests a linear movement toward a progressive interpretation of the Constitution’s equality guarantee; however, examination of Stevens's writings in biographical context reveal …

Note, Making Ballot Initiatives Work: Some Assembly Required, Portia Pedro

Faculty Scholarship

For over one hundred years, the ballot initiative or proposition has been touted as a solution to some of the problems in the representative system of democracy in the United States. Depending on a state’s ballot initiative system, this mechanism enables citizens to make laws, to create or eliminate rights, or to amend the state’s constitution through a popular vote. Popular initiatives were initially intended to allow ordinary citizens to intervene in the democratic process when their representative officials were not carrying out their wishes. These proposition processes were supposed to create a space for public deliberation. By allowing the …

Fitting Square Pegs Into Round Holes: How Race-Based Affirmative Action In Higher Education Admissions Is An Inadequate And Inequitable Means To An End, Justin C. Aday

Justin C Aday

Race-based affirmative action in higher educaction admissions presents problems for all persons involved in the admissions process - insitution administrators who develop admissions policies, students who apply for admission to the insitution, and especially the never-envied admissions director (or admissions committee). This paper presents a critique of race-based affirmative action and jurisprudential theories that support the practice, from the perspective of a law school admissions director. After admitting 98 of 100 students into an entering law school class, the admissions director must chose the remaining two students for admission from only a pool of four applicants - two privileged minorities, …

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

Michigan Journal of Gender & Law

This Article uses the term contingent equal protection to describe the constitutional analysis that applies to a range of governmental efforts to ameliorate race and sex hierarchies. "Contingent" refers to the fact that the equal protection analysis is contingent upon the existence of structural, de facto inequality. Contingent equal protection cases include those that involve explicit race and sex classifications, facially neutral efforts to reduce inequality, and accommodation of sex differences to promote equality. Uniting all three kinds of cases under a single conceptual umbrella reveals the implications that developments in one area can have for the other two.

Affirmative Action In Higher Education Over The Next Twenty-Five Years: A Need For Study And Action, Sandra Day O'Connor, Stewart Schwab

Cornell Law Faculty Publications

No abstract provided.

Tailoring The Narrow Tailoring Requirement In The Supreme Court's Affirmative Action Cases, Luiz Antonio Salazar Arroyo

Cleveland State Law Review

In his first and only affirmative action decision since becoming the controlling member of the Supreme Court, Justice Kennedy, in Parents Involved in Community Schools v. Seattle School District No. 1, showed a possible willingness to go back to the looser, more contextualist view of the narrow tailoring requirement that the Court embraced when Justice Powell was the swing vote. This Article argues that regardless of whether Justice Kennedy actually was moving back toward a more contextualist approach to narrow tailoring, a shift away from the highly formalistic inquiry adopted by Justice O'Connor back to the looser contextual standard used …

Glimmers Of Hope: The Evolution Of Equality Rights Doctrine In Japanese Courts From A Comparative Perspective, Craig Martin

Duke Journal of Comparative & International Law

No abstract provided.

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

Publications

The Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District #1 has been extensively analyzed as the latest step in the Court's long struggle with the desegregation of public schools. This Article examines the decision's implications for the full range of equal protection doctrine dealing with benign or remedial race and sex classifications. Parents Involved revealed a sharp division on the Court over whether government may consciously try to promote substantive equality. In the past, such efforts have been subject to an equal protection analysis that allows race-conscious or sex-conscious state action, contingent on existing, de …

The Future Of Disparate Impact, Richard A. Primus

Articles

The Supreme Court's decision in Ricci v. DeStefano foregrounded the question of whether Title VIl's disparate impact standard conflicts with equal protection. This Article shows that there are three ways to read Ricci, one of which is likely fatal to disparate impact doctrine but the other two of which are not.

Diversity's Strange Career: Recovering The Racial Pluralism Of Lewis F. Powell, Jr., Anders Walker

All Faculty Scholarship

Though diversity remains a compelling state interest, recent rulings like Ricci v. DeStefano and Parents’ Involved toll a menacing bell for schools employing racial classifications to admit minority students. Yet, defenders of diversity may find refuge in original meanings, particularly the original meaning of diversity as articulated by Justice Lewis F. Powell, Jr. in Regents v. Bakke in 1978. Virginian by birth, Powell’s interest in “genuine diversity” coincided with a forgotten version of pluralism extant in the American South during thefirst half of the Twentieth Century. Further, Powell’s conviction that diversity distinguished America coalesced during a trip to the Soviet …

Engineering The Endgame, Ellen D. Katz

Michigan Law Review

This Article explores what happens to longstanding remedies for past racial discrimination as conditions change. It shows that Congress and the Supreme Court have responded quite differently to changed conditions when they evaluate such remedies. Congress has generally opted to stay the course, while the Court has been more inclined to view change as cause to terminate a remedy. The Article argues that these very different responses share a defining flaw, namely, they treat existing remedies as fixed until they are terminated. As a result, remedies are either scrapped prematurely or left stagnant despite dramatically changed conditions. The Article seeks …

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

Robert Justin Lipkin

No abstract provided.