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The Inevitable Irrelevance Of Affirmative Action, Leslie Y. Garfield
The Inevitable Irrelevance Of Affirmative Action, Leslie Y. Garfield
Elisabeth Haub School of Law Faculty Publications
This article proceeds in three parts. In Part I of this article, I provide a narrative of affirmative action jurisprudence in higher education, with a particular focus on the meaning of viewpoint diversity in higher education. This section tracks the definitional shift in preference policies from their original design as remedial and compensatory programs for those suffering the effects of educational discrimination to interest convergence programs, which assure equal benefits irrespective of race. In Part II, I explore the circumstances giving rise to Fisher, including an overview of the lower court decisions. This section presents a discussion of the likely …
Don't Count Them Out Just Yet: Toward The Plausible Use Of Race-Preference Student Assignment Plans, Leslie Yalof Garfield
Don't Count Them Out Just Yet: Toward The Plausible Use Of Race-Preference Student Assignment Plans, Leslie Yalof Garfield
Elisabeth Haub School of Law Faculty Publications
Contrary to conventional wisdom, the Supreme Court's recent decision in Parents Involved in Community Schools v. Seattle School District No. 11 could serve to broaden the permissible use of race beyond the boundaries presently permitted by the Court. In this highly fractionalized decision, five justices ultimately agreed that the race-based student assignment plans before their review could not withstand judicial scrutiny. One of these justices, Justice Kennedy, agreed with the plurality's conclusion, but rejected the plurality's assessment that it is never permissible to use race-preference student assignment plans absent evidence of de jure segregation. His concurrence, when read together with …
Squaring Affirmative Action Admissions Policies With Federal Judicial Guidelines: A Model For The Twenty-First Century, Leslie Y. Garfield
Squaring Affirmative Action Admissions Policies With Federal Judicial Guidelines: A Model For The Twenty-First Century, Leslie Y. Garfield
Elisabeth Haub School of Law Faculty Publications
This article will highlight the legal limitations law schools confront when adopting diversity admission policies in light of the new judicial climate that disfavors considering non-traditional race criteria in the admission decision process. Part I highlights the difficulty law schools face when trying to admit a fully diverse class under the traditional application process. Part II discusses the judicial response to voluntary diversity admission policies and other race-based preference policies and defines the appropriate standard for court review. Part III proposes a model diversity admission policy. Part IV analyzes this model policy under the Court's strict scrutiny test.