Law Commons^™

The Rhetoric Of Equality, Neal Devins

Neal E. Devins

No abstract provided.

Righting Past Wrongs: When Affirmative Action May Be Reverse Discrimination, Neal Devins

Neal E. Devins

No abstract provided.

Philadelphia Plan, Neal Devins

Neal E. Devins

No abstract provided.

Reinventing Bakke, Alan J. Meese

Alan J. Meese

No abstract provided.

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

Alan J. Meese

No abstract provided.

Bakke Betrayed, Alan J. Meese

Alan J. Meese

No abstract provided.

Explaining Grutter V. Bollinger, Neal Devins

Neal E. Devins

No abstract provided.

Group Versus Individuals, Neal Devins

Neal E. Devins

No abstract provided.

Affirmative Action After Reagan, Neal Devins

Neal E. Devins

No abstract provided.

Adarand Constructors, Inc. V. Pena And The Continuing Irrelevance Of Supreme Court Affirmative Action Decisions, Neal Devins

Neal E. Devins

No abstract provided.

Judging Opportunity Lost: Assessing The Viability Of Race-Based Affirmative Action After Fisher V. University Of Texas, Austin, Angela Onwuachi-Willig, Mario Barnes, Erwin Chemerinsky

Erwin Chemerinsky

In this Article, Mario Barnes, Erwin Chemerinsky, and Angela Onwuachi-Willig examine and analyze one recent, affirmative action case, Fisher v. University of Texas, Austin, as a means of highlighting why the anti-subordination or equal opportunity approach, as opposed to the anti-classification approach, is the correct approach for analyzing equal protection cases. In so doing, these authors highlight several opportunities that the U.S. Supreme Court missed to acknowledge and explicate the way in which race, racism, and racial privilege operate in society and thus advance the anti-subordination approach to equal protection. In the end, the authors suggest that, with regard to …

Embracing Race-Conscious College Admissions Programs: How Fisher V. University Of Texas At Austin Redefines "Affirmative Action" As A Holistic Approach To Admissions That Ensures Equal, Not Preferential, Treatment, Nancy L. Zisk

Nancy L. Zisk

In Fisher v. University of Texas at Austin, the United States Supreme Court affirmed well-established Supreme Court doctrine that race may be considered when a college or university decides whom to admit and whom to reject, as long as the consideration of race is part of a narrowly tailored holistic consideration of an applicant's many distinguishing features. The Court's latest decision heralds a new way of thinking about holistic race-conscious admissions programs. Rather than considering them as "affirmative action" plans that prefer any one applicant to the disadvantage of another, they should be viewed as the Court has described …

Racial Indirection, Yuvraj Joshi

Yuvraj Joshi

Is Carolene Products Dead--Reflections On Affirmative Action And The Dynamics Of Civil Rights Legislation, Daniel A. Farber, Philip P. Frickey

Daniel A Farber

No abstract provided.

Affirmative Action In The Marketplace Of Ideas, Rodney A. Smolla

Rod Smolla

No abstract provided.

Acting White? Or Acting Affluent? A Book Review Of Acting White? Rethinking Race In "Post-Racial" America, Lisa Pruitt

Lisa R Pruitt

Acting White? Rethinking Race in “Post-Racial” America (2013) is the latest installment in Devon Carbado and Mitu Gulati’s decade-plus collaboration regarding issues of race and employment. This review lauds the book’s comprehensive treatment of the double bind that racial minorities—especially blacks—experience within principally white institutions. In this volume, the authors expand on their prior employment-centered work to consider, for example, Barack and Michelle Obama’s presence on the national political stage, racial identity and performance in the context of higher education admissions, and racial profiling by law enforcement. With a focus on intra-racial diversity, Carbado and Gulati begin to gesture to …

The False Choice Between Race And Class And Other Affirmative Action Myths, Lisa R. Pruitt

Lisa R Pruitt

This article refutes the widely held assumption that affirmative action is appropriate either to support only racial and ethnic minorities or to support only low-income students, but that it cannot or should not support both. Pruitt argues that we need not make such a choice and that we should aspire to socioeconomically diversify higher education institutions—including the most elite sector—with low-income students of all colors. Pruitt thus disputes the framing of Richard Kahlenberg and Richard Sander who have long argued that we should seek socioeconomic diversity in lieu of racial/ethnic diversity, a stance that has needlessly pitted underrepresented minorities against …

Good Faith And Narrow Tailoring In Fisher, Jennifer Mason Mcaward

Jennifer Mason McAward

This piece considers three issues relating to the Supreme Court’s upcoming decision in Fisher v. University of Texas: First, how should the Court perform the narrow tailoring inquiry? Is any deference due the University with respect to its choice of means by which it seeks to diversify its class? Second, how should the relatively modest impact of the university’s racial preference impact the Court’s assessment of narrow tailoring? Third, what is the constitutional relevance of Texas’s Top Ten Percent Program? Does the relative success of the program make it a workable race-neutral alternative that constitutionally precludes the school from adding …

How Quickly We Forget: The Short And Undistinguished Career Of Affirmative Action, Robert Parrish

Robert Parrish

Diversity initiatives in higher education, also known as affirmative action are nearing their nadir. For those who have been watching the jurisprudence and the progression of events closely this should come as little surprise. These initiatives have been under attack since their very inception and now sit teetering on the brink of being declared unconstitutional as the United States Supreme Court considers Fisher v. Texas. Beginning with Regents of California v. Bakke in 1978, the Supreme Court has gradually and consistently whittled away these higher education diversity programs, leaving them currently in a vulnerable and legally precarious position. The Court’s …

For Health's Sake Be Not Colorblind, Ruth Hackford-Peer

Ruth Hackford-Peer

The United States’ past ideology of overt state-sanctioned racism has been replaced by a covert, seemingly race-neutral ideology. This Article looks at the history of racism in the United States and traces the recent shift in ideology and discourse about race, positing that the discourse of “colorblindness” powerfully maintains the racial status quo while purporting to advance race neutrality. Then, using affirmative action as the lens from which to view these shifts in ideology and discourse, this Article analyzes racial disparities in health and healthcare. It highlights some of the health consequences people of color face because they live a …

Suspect Classification And Its Discontents, Susannah W. Pollvogt

Susannah W Pollvogt

Suspect classification analysis and the associated tiers of scrutiny framework are the primary doctrinal features of contemporary equal protection jurisprudence. How plaintiffs fare under these twin doctrines determines the ultimate fate of their equal protection claims. But neither doctrine finds firm footing in precedent or theory. Rather, a close examination of the United States Supreme Court’s equal protection jurisprudence reveals these doctrines as historically contingent and lacking in any principled justification. But rather than disregard the contributions of these cases altogether, this Article mines that same body of law not for the discrete doctrinal mechanisms developed in each case, but …

Doing Affirmative Action, Stephen Clowney

Stephen Clowney

The Role Of Networks, Mentors, And The Law In Overcoming Barriers To Organizational Leadership For Women With Children, Cindy A. Schipani, Terry Morehead Dworkin, Aarti Ramaswami

Cindy A Schipani

Subtle yet entrenched forms of gender-based discrimination continue to disadvantage women’s career progress. Research on sex differences and the consequences of family status for career development and progress suggests that discrimination is alive and well. Gender differences in the work environment need to be considered in order to understand the causes and consequences of inequality and discrimination in the workplace. There is a rich literature on the benefits of mentoring and networking for career advancement. Yet, few studies have examined the role of mentoring in network related outcomes and consequently our current knowledge and insights about the interaction of demographics …

Willful [Color-] Blindness: The Supreme Court's Equal Protection Of Ascription, Aaron J. Shuler

Aaron J Shuler

Rogers Smith in his "Beyond Tocqueville, Myrdal and Hartz: The Multiple Traditions in America," warns of novel legal systems reconstituting ascriptive American inequality. The post-Warren Courts' approach to Equal Protection, specifically their unwillingness to consider disparate impact and the difference between invidious and benign practices, betrays an "ironic innocence" as described by James Baldwin to a history of racial discrimination and domination, and a disavowal of a hiearchy that the Court perpetuates.

Casting Shadows: Fisher V. University Of Texas And The Misplaced Fear Of Too Much Diversity, Susannah W. Pollvogt

Susannah W Pollvogt

Well, I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before.

- Justice Alito

Justice Alito’s comment, made during the recent oral argument before the Supreme Court in Fisher, is troubling on many levels. Significantly, the comment suggests that Justice Alito has not recently re-read Bakke or Grutter—the two Supreme Court decisions that will likely control the outcome in Fisher. Both Bakke and Grutter acknowledge two distinct justifications for race-conscious admissions policies: remedial justifications meant to cure …

Iqbal & Twobly: Will Plausibility Requirments Influence The Supreme Court's Analysis Of Affirmative Action?, Colin W. Maguire

Colin W. Maguire

The U.S. Supreme Court seems intent on taking another look at affirmative action in higher education. What could this mean for colleges and universities? This blawg post offers no definitive answers, but points out that arguments exists for both sides of the issue through a recent legal development: Iqbal & Twobly's Plausibility Doctrine. If the Doctrine forces a transative duty on case law, then affirmative action programs' legal rationale - long decried for not making logical sense - could suffer. Conversely, the Court appears to have already used plausibility as a factor in promoting a different type of affirmative action …

Women And Law: A Comparative Analysis Of The United States And Indian Supreme Courts’ Equality Jurisprudence, Eileen Kaufman

Eileen Kaufman

No abstract provided.

Personae Non Suspect: Sexual Orientation Discrimination Under The Supreme Court’S New Anticlassification Regime, Chris R. Copeland

Chris R Copeland

As Perry v. Schwarzenegger seemingly makes its way to the Supreme Court, LGBT advocates are staking their legal claims around the Fourteenth Amendment’s Equal Protection Clause – arguing for the designation of LGBTs as a suspect or quasi-suspect group. The desire for suspect class designation is in vain though. In the late 1970s, the Supreme Court closed the set of suspect and quasi-classifications, and the set will likely remain closed. Around the same time, the Court faced a series of affirmative action cases in which it was forced to choose between two approaches to equal protection: antisubordination and anticlassification. It …

The Frontier Of Affirmative Action: Employment Preferences And Diversity In The Private Workplace, Corey A. Ciocchetti, John Holcomb

Corey A Ciocchetti

The Supreme Court has decided only a dozen prominent cases on the topic of affirmative action. The impact of each decision, however, has profoundly shaped public policy and societal expectations. Few topics generate such passion and controversy within academia, business, government, the legal profession and the social sciences – not to mention among the citizenry and the press. The paper demonstrates that the affirmative action of our parents will not be the affirmative action of our children. What is significantly different today is that the justification for preference plans has changed drastically from backward-looking to forward-looking. The Remedial Rationale – …

Tailoring The Narrow Tailoring Requirement In The Supreme Court’S Affirmative Action Cases, Luiz A. Arroyo

Luiz A Arroyo

When faced with the use of race by affirmative action programs, the Supreme Court has decided to subject any such program to its strict scrutiny test. In applying that test, the Court first determines whether there is a compelling interest for the use of race by the affirmative action program, and then the Court determines whether the program is narrowly tailored to meet that compelling interest. This Article focuses on the second part of the Court’s test: the narrow tailoring requirement.

This Article analyzes the narrow tailoring requirement by first detailing the history of the Supreme Court’s use of the …