Law Commons^™

Affirming The Purpose Of Affirmative Action: Understanding A Policy Of The Past To Move Toward A More Informed Future, Meagan Schantz

Sacred Heart University Scholar

The application of affirmative action policies to university admissions is a topic of ongoing controversy. This article (ex)amines the debate through an interdisciplinary lens, drawing on the fields of history, law, and ethics. The first section provides historical background on affirmative action policies, tracing how they expanded from the employment sector into higher education. Next examined are legal challenges to affirmative action in admissions, with a focus on the pivotal 1978 Bakke case. The ethical implications of affirmative action are next considered, in particular the question of how affirmative action can be applied in a way that supports disenfranchised groups …

The Constitutionality Of Affirmative Action: Views From The Supreme Court, Jesse H. Choper

Jesse H Choper

No abstract provided.

Thinking About The Supreme Court's Successes And Failures, Erwin Chemerinsky

Erwin Chemerinsky

The Supreme Court often has failed at its most important tasks and at the most important times. I set out this thesis at the beginning the book:

To be clear, I am not saying that the Supreme Court has failed at these crucial tasks every time. Making a case against the Supreme Court does not require taking such an extreme position. I also will talk about areas where the Court has succeeded in protecting minorities and in enforcing the limits of the Constitution. My claim is that the Court has often failed where and when it has been most needed. …

The Deserving Poor, The Undeserving Poor, And Class-Based Affirmative Action, Khiara M. Bridges

Khiara M Bridges

This Article is a critique of class-based affirmative action. It begins by observing that many professed politically conservative individuals have championed class-based affirmative action. However, it observes that political conservatism is not typically identified as an ideology that generally approves of improving the poor’s well-being through the means that class-based affirmative action employs — that is, through redistributing wealth by taking wealth from a wealthy individual and giving it directly to a poor person. This is precisely what class-based affirmative action does: it takes a seat in an incoming class (a species of wealth) from a wealthy individual and gives …

Class-Based Affirmative Action, Or The Lies That We Tell About The Insignificance Of Race, Khiara Bridges

Khiara M Bridges

This Article conducts a critique of class-based affirmative action, identifying and problematizing the narrative that it tells about racial progress. The Article argues that class-based affirmative action denies that race is a significant feature of American life. It denies that individuals - and groups - continue to be advantaged and disadvantaged on account of race. It denies that there is such a thing called race privilege that materially impacts people’s worlds. Moreover, this Article suggests that at least part of the reason why class-based affirmative action has been embraced by those who oppose race-based affirmative action is precisely because it …

More Than Just The Numbers: Fisher V. Texas And The Practical Impact Of Texas’S Top Ten Percent Law, Shakira D. Pleasant

Shakira D. Pleasant

No abstract provided.

Bakke’S Lasting Legacy: Redefining The Landscape Of Equality And Liberty In Civil Rights Law, Rachel F. Moran

Faculty Scholarship

The fortieth anniversary of Regents of the University of California v. Bakke is worth commemorating simply because the decision has survived. The United States Supreme Court’s opinion upholding the use of race in admissions has had remarkable staying power, even as other programs of affirmative action, for example, in government contracting, have been struck down as unconstitutional. That longevity might seem surprising because Bakke set forth an exacting standard of strict scrutiny under equal protection law that renders all race-based classifications suspect, whether government officials are motivated by benign or invidious purposes. That standard is one that few programs can …

Sffa V. Harvard: How Affirmative Action Myths Mask White Bonus, Jonathan Feingold

Faculty Scholarship

In the ongoing litigation of Students for Fair Admissions v. Harvard College, Harvard faces allegations that its once-heralded admissions process discriminates against Asian Americans. Public discourse has revealed a dominant narrative: affirmative action is viewed as the presumptive cause of Harvard’s alleged “Asian penalty.” Yet this narrative misrepresents the plaintiff’s own theory of discrimination. Rather than implicating affirmative action, the underlying allegations portray the phenomenon of “negative action” — that is, an admissions regime in which White applicants take the seats of their more qualified Asian-American counterparts. Nonetheless, we are witnessing a broad failure to see this case for what …

Branch Rickey, Affirmative Action And 'Merit' In Baseball And Education, Evan H. Caminker

Book Chapters

When General Manager Wesley Branch Rickey broke Organized Baseball’s longstanding color barrier on October 23, 1945, by signing Jackie Robinson to a contract to play for the Montreal Royals, a minor league affiliate of the Brooklyn Dodgers, Rickey catalyzed the movement for racial justice. Millions of people saw, heard, and read about black and white men playing side-by-side. Integrating the national pastime helped challenge segregationist norms across the land, facilitating the integration of military troops and public schools soon thereafter.

Rickey’s stirring call in his 1956 Atlanta address to judge people on their merits rather than their pigmentation still resonates …

Second Redemption, Third Reconstruction, Richard A. Primus

Articles

In The Accumulation of Advantages, the picture that Professor Owen Fiss paints about equality during and since the Second Reconstruction is largely a picture in black and white. That makes some sense. The black/white experience is probably the most important throughline in the story of equal protection. It was the central theme of both the First and Second Reconstructions. In keeping with that orientation, the picture of disadvantage described by Fiss’s theory of cumulative responsibility is largely drawn from the black/white experience. Important as it is, however, the black/white experience does not exhaust the subject of constitutional equality. So in …

Revitalizing The Meaning Of Diversity For Racial Justice In Education, Tanya K. Hernandez

Faculty Scholarship

The concept of diversity undermines the true spirit of any affirmative action policy, which is to remedy society's racism and promote racial justice and equality. This is because “diversity” detached from racial justice can signify any human difference unrelated to social inequality. Infusing the notion of “diversity” with the insights from implicit bias research would mean instead considering the goal of “diversity” as a device for making admissions procedures more equitable and justified amidst the continuing implicit bias that can be actually measured. Furthermore, connecting the diversity goal as a device for procedurally addressing

implicit bias in admissions decisions and …

Radical Reconstruction: (Re) Embracing Affirmative Action In Private Employment, Hina B. Shah

Publications

The history of employment in this country is the history of racism. Using public and private mechanisms as well as violence to devise and enforce segregation and preferential treatment, the white male institutionalized an unprecedented advantage in the labor market. Yet this is rarely acknowledged as a factor in the current widening economic disparity between whites and blacks. Today, many white Americans, cloaked in the myth of colorblindness and meritocracy, refuse to see the persistence of racial prejudice, disadvantage and discrimination in the labor market.

This article is a call for a radical reconstruction of the private labor market through …

Radical Reconstruction: (Re) Embracing Affirmative Action In Private Employment, Hina B. Shah

University of Baltimore Law Review

No abstract provided.

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 …

Affirmative Action, David Oppenheimer, Angela Onwuachi-Willig, Nancy Leong

Faculty Scholarship

There are consistent messages to people of color about their proper place in
society, which has always been a really important tool for maintaining and
advancing white supremacy. Referring back to what Professor Haney-Lopez
asserted earlier today, in today’s post-civil rights society, few people would
argue in favor of segregation in racial terms explicitly so. And few people would
assert that Blacks, for example, do not belong in certain places. However,
opponents of affirmative action have begun to articulate a form of these
arguments as an add-on to the mismatch theory. In the minds of these scholars,
affirmative action should …

Hidden In Plain Sight: A More Compelling Case For Diversity, Jonathan Feingold

Faculty Scholarship

For four decades, the diversity rationale has offered a lifeline to affirmative action in higher education. Yet even after forty years, this critical feature of equal protection doctrine remains constitutionally insecure and politically fraught. Legal challenges persist, the Justice Department has launched a new assault on race-conscious admissions, and an impending shift on the Supreme Court could usher in an era of increased hostility toward the concept of diversity itself. The future of race-conscious admissions arguably hangs in the balance.

In this Article, I argue that the diversity rationale’s present fragility rests, in part, on its defenders’ failure to center …