Law Commons^™

Students For Fair Admissions Sends Us Bakke To The Drawing Board For Race- Conscious Affirmative Action In Higher Education, Monica Teixeira De Sousa

Roger Williams University Law Review

No abstract provided.

Dobbs And The Future Of Liberty And Equality, Kim Forde-Mazrui

Cleveland State Law Review

This lecture critiques Dobbs v. Jackson Women’s Health Organization and assesses its implications for liberty and equality. Dobbs’ immediate effect was major disruption to abortion rights. In the longer term, by discarding fifty years of precedent and by basing constitutional rights exclusively on long-standing history and tradition, Dobbs jeopardizes liberty and equality rights that the Court has recognized in the late twentieth and early twenty-first centuries. Such modern liberty rights include contraception, interracial marriage, adult sexual intimacy and same-sex marriage. Modern equality rights include strong bars on discrimination based on race and sex, and moderate protections for LGBTQ+ status. …

Ochoa, Big Ten Law Deans Pledge Support For Diversity Ahead Of Scotus Affirmative Action Ruling, The Indiana Lawyer

Christiana Ochoa (7/22-10/22 Acting; 11/2022-)

s the U.S. Supreme Court prepares to hand down a decision that could fundamentally alter affirmative action, a group of law school deans — including Dean Christiana Ochoa of the Indiana University Maurer School of Law — has issued a statement affirming the deans’ commitment to diversity.

The group of 15 deans represent Big Ten law schools, including IU Maurer. In their statement — which IU Maurer posted to its official Facebook page — the deans say they are “joining together to affirm our commitment to advancing diversity, equity, and inclusion through legally permissible means, regardless of the outcome of …

Gender Identity, Sports, And Affirmative Action: What's Title Ix Got To Do With It?, Michael E. Rosman

St. Mary's Law Journal

There is much talk these days of promoting “equity” rather than “equality.” When applied outside athletics, Title IX promotes non-discrimination, usually associated with equality. As it has been applied to sports, though, it may be our most prominent “equity” statute, making sure each sex gets its fair share.

The questions this article seeks to address are legal ones that the debate about trans females seems to bring to the fore. How did we start with a statute whose language looks very similar to every other civil rights statute—and, indeed, that acts just like every other civil rights statute outside of …

Not White Enough, Not Black Enough: Reimagining Affirmative Action Jurisprudence In Law School Admissions Through A Filipino-American Paradigm, Joseph D. G. Castro

Pepperdine Law Review

Writing the majority opinion upholding the use of racial preferences in law school admissions in 2003, Justice Sandra Day O’Connor anticipated that racial preferences would no longer be necessary in twenty-five years. On the contrary, 2021 has seen the astronomic rise of critical race theory, the popularity of race-driven “diversity” initiatives in higher education, and the continued surge of identity politics in the mainstream. So much has been written on affirmative action—what else could this Comment add to the conversation? Analyzing the Court’s application of strict scrutiny through a Filipino- American paradigm, this Comment ultimately concludes that affirmative action in …

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 …

Ensuring The Constitution Remains Color Blind Vs. Turning A Blind Eye To Justice: Equal Protection And Affirmative Action In University Admissions, Attashin Safari

Loyola of Los Angeles Law Review

No abstract provided.

The Fight For Equal Protection: Reconstruction-Redemption Redux, Kermit Roosevelt Iii, Patricia Stottlemyer

All Faculty Scholarship

With Justice Scalia gone, and Justices Ginsburg and Kennedy in their late seventies, there is the possibility of significant movement on the Supreme Court in the next several years. A two-justice shift could upend almost any area of constitutional law, but the possible movement in race-based equal protection jurisprudence provides a particularly revealing window into the larger trends at work. In the battle over equal protection, two strongly opposed visions of the Constitution contend against each other, and a change in the Court’s composition may determine the outcome of that struggle. In this essay, we set out the current state …

Private Problem, Public Solution: Affirmative Action In The 21st Century, Darlene C. Goring

Akron Law Review

This Article will explore the origins of the Court’s color-blind interpretation of the Fourteenth Amendment, and the role that this interpretation plays in the development of new barriers against challenges to race-based affirmative action programs. Part II of this Article traces the development and application of the strict scrutiny test to evaluate the constitutionality of both invidious and benign racial classifications. Part III examines Justice Powell’s position that racial classifications used as remedial measures may overcome the presumption of constitutional invalidity associated with the use of race-based classifications. In this context, the Court recognizes that the continued impact of past …

Fisher V. Texas: The Limits Of Exhaustion And The Future Of Race-Conscious University Admissions, John Powell, Stephen Menendian

john a. powell

This Article investigates the potential ramifications of Fisher v. Texas and the future of race-conscious university admissions. Although one cannot predict the ultimate significance of the Fisher decision, its brief and pregnant statements of law portends an increasingly perilous course for traditional affirmative action programs. Part I explores the opinions filed in Fisher, with a particular emphasis on Justice Kennedy’s opinion on behalf of the Court. We focus on the ways in which the Fisher decision departs from precedent, proscribes new limits on the use of race in university admissions, and tightens requirements for narrow tailoring. Part II investigates the …

Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise

Michael Heise

No abstract provided.

Following Fisher: Narrowly Tailoring Affirmative Action, Eang L. Ngov

Catholic University Law Review

Affirmative action has been at the forefront of educational policies and to this day continues to enliven debates. For decades, schools have litigated over whether affirmative action can be used to create a diverse student body. Now, the litigation has shifted to whether affirmative action policies are narrowly tailored. The Supreme Court’s most recent affirmative action case, Fisher v. University of Texas at Austin, requires that schools prove that there are no workable race neutral alternatives in order to demonstrate that their affirmative action programs are narrowly tailored. This article examines the available race neutral alternatives: percentage plans; socioeconomic …

Gayffirmative Action: The Constitutionality Of Sexual Orientation-Based Affirmative Action Policies, Peter Nicolas

Articles

Twenty-five years ago, the U.S. Supreme Court established a consistency principle in its race-based equal protection cases. That principle requires courts to apply the same strict scrutiny to racial classifications designed to benefit racial minorities—such as affirmative action policies—as they do to laws invidiously discriminating against them. The new consistency principle, under which discrimination against whites is subject to strict scrutiny, conflicted with the Court's established criteria for declaring a group to be a suspect or quasi-suspect class entitled to heightened scrutiny, which focused on such considerations as the history of discrimination against the group and its political powerlessness.

As …

Diversity: The Red Herring Of Equal Protection, Sharon E. Rush

Sharon E. Rush

Couching the constitutional inquiry in cases like Bakke and VMI in the context of integration also puts in perspective the diversity justification. Affirmative action policies are constitutional because they integrate state programs. Integration on the basis of race and sex also diversifies state programs. In contrast, attempts to justify sex-segregation in state programs by arguing the policy promotes diversity is irrelevant to an equal protection analysis. Voluntarily created all-female schools should be constitutional because they promote the equal citizenship of women without damaging the equal citizenship stature of men. This is true for voluntarily race-segregated programs for minorities; as well. …

Fisher V. Ut Austin - Contextualized Brief, Lauren H. Sobotka

Student Publications

Contextualization of the 2013 Supreme Court case, Fisher v. University of Texas at Austin, in which Abigail Fisher was denied admission. This paper also analyzes past Court cases dealing with affirmative action in the admissions process.

The Quixotic Search For Race-Neutral Alternatives, Michael E. Rosman

University of Michigan Journal of Law Reform

The Supreme Court has stated that the narrow-tailoring inquiry of the Equal Protection Clause’s strict scrutiny analysis of racially disparate treatment by state actors requires courts to consider whether the defendant seriously considered race-neutral alternatives before adopting the race-conscious program at issue. This article briefly examines what that means in the context of race-conscious admissions programs at colleges and universities. Part I sets forth the basic concepts that the Supreme Court uses to analyze race-conscious decision-making by governmental actors and describes the role of “race-neutral alternatives” in that scheme. Part II examines the nature of “race-neutral alternatives” and identifies its …

Fisher V. Texas: The Limits Of Exhaustion And The Future Of Race-Conscious University Admissions, John A. Powell, Stephen Menendian

University of Michigan Journal of Law Reform

This Article investigates the potential ramifications of Fisher v. Texas and the future of race-conscious university admissions. Although one cannot predict the ultimate significance of the Fisher decision, its brief and pregnant statements of law portends an increasingly perilous course for traditional affirmative action programs. Part I explores the opinions filed in Fisher, with a particular emphasis on Justice Kennedy’s opinion on behalf of the Court. We focus on the ways in which the Fisher decision departs from precedent, proscribes new limits on the use of race in university admissions, and tightens requirements for narrow tailoring. Part II investigates the …

Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer

Indiana Journal of Law and Social Equality

No abstract provided.

Reforming Affirmative Action For The Future: A Constitutional And Consequentialist Approach, Quinn Chasan

CMC Senior Theses

In my analysis of affirmative action policy, I began the search without having formed any opinion whatsoever. The topic was interesting to me, and after reading a mass of news editorials and their op-eds, I decided to take up the argument for myself. Other than the fact that I am a student, I have no stake in affirmative action policy. This paper relies primarily on the foremost half-dozen or so notable mismatch theory scholars, a close reading of an innumerable number of Supreme Court opinions, affirmative action related studies from higher education academics and policy institutes, and how historical executive …

The Inevitable Collision: Affirmative Action And The Constitution, Jennifer Moore

Pepperdine Law Review

No abstract provided.

The White Interest In School Integration, Robert A. Garda Jr.

Robert A. Garda

Scholarship concerning desegregation, affirmative action and voluntary integration is primarily, if not exclusively, focused on whether such policies harm or benefit minorities. Scant attention is paid to the benefits whites receive in multiracial schools despite these interests underpinning over thirty years of Supreme Court integration jurisprudence. In this article, I explore the academic and social benefits whites receive in multiracial schools, and I do so from a white parent’s perspective. The article begins by explaining the interest-convergence theory and how white interests explain the course and content of the Supreme Court’s desegregation jurisprudence. White parents must understand that their “buy-in” …

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.

Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

Subordination And The Fortuity Of Our Circumstances, Sergio J. Campos

University of Michigan Journal of Law Reform

The antisubordination principle exists at the margins of equality law. This Article seeks to revive the antisubordination principle by taking a fresh look at its structure and underlying justification. First, the Article provides an account of the harm of subordination that focuses on one's position in society, rejecting the focus on groups popular in the existing antisubordination literature. Second, it argues for a theory of state obligation that goes beyond both the existing state action doctrine of the Equal Protection Clause and the failure to protect doctrine associated with Charles Black. The Article argues instead that the antisubordination principle mandates …

Affirmative Action & Negative Action: How Jian Li's Case Can Benefit Asian Americans, Adrian Liu

Michigan Journal of Race and Law

In October 2006, Asian American student Jian D filed a civil rights complaint against Princeton University claiming that Princeton's affirmative action policies were discriminatory. Li argues that affirmative action gives preferences to non-Asian minorities at the expense of Asian students. Li's case aligns the interests of Asian Americans with Whites who challenge affirmative action and suggests that such policies are inherently discriminatory because they exclude students based on race and sacrifice merit. This Article argues that Li's exclusion is not due to affirmative action but is likely due to "negative action," the unfavorable treatment of Asian Americans relative to Whites. …

A Sheep In Wolf's Clothing: The Michigan Civil Rights Initiative As The Savior Of Affirmative Action, Ryan C. Hess

Michigan Law Review First Impressions

The University of Michigan has long been a place of important discussions about civil and human rights. On the steps of the Michigan Student Union, only a few paces from the Law School, lies an inconspicuous marker where then-President John F. Kennedy, Jr. dedicated the United States Peace Core. During the Vietnam War, the University played host to significant protests that changed how we think about war and its consequences. Most recently, the University litigated a series of Supreme Court cases that have helped define the role of educational institutions in the quest for equality. This role promises to continue …

Disparate Impact And The Use Of Racial Proxies In Post-Mcri Admissions, Matthew S. Owen, Danielle S. Barbour

Michigan Law Review First Impressions

The Michigan Civil Rights Initiative (“MCRI”) amended the Michigan Constitution to provide that public universities, colleges, and school districts may not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of . . . public education.” We argue that, in addition to prohibiting the overt use of racial preferences in admissions, the MCRI also prohibits using racial proxies such as socioeconomic status or a “Ten Percent Plan” that aim to prefer minorities in admissions. Though the MCRI does not expressly say so, we stipulate …

What The Mcri Can Teach White Litigants About White Dominance, Adam Gitlin

Michigan Law Review First Impressions

The ballots have barely been counted, but litigation to enjoin implementation of the now-codified Michigan Civil Rights Initiative (“MCRI”) or at least limit its effect on admissions practices in Michigan’s universities is already underway. One of the primary arguments against the MCRI—and the basis upon which some plaintiff professors assert standing—is that students will suffer an impaired education if current admissions practices are discarded. Assuming that the MCRI survives these legal challenges, educators should be consoled somewhat to know the MCRI may still offer some pedagogy as compensation: litigation will likely be brought to enforce its provisions, and that litigation …

The Michigan Civil Rights Initiative And The Civil Rights Act Of 1964, Carl Cohen

Michigan Law Review First Impressions

The underlying principle of the Michigan Civil Rights Initiative (MCRI), adopted by state wide vote on 7 November 2006, is identical to that of the Civil Rights Act of 1964. Section 601 of the Civil Rights Act provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” The recent passage of the MCRI results now in the inclusion [in Article 1, Section 26 of the Michigan constitution] of section …

"Framing Affirmative Action", Kimberlé W. Crenshaw

Michigan Law Review First Impressions

With the passage of the Michigan Civil Rights Initiative (“MCRI”), Michigan joins California and Washington to constitute the new postaffirmative action frontier. For proponents such as Ward Connerly, affirmative action is on the edge of extinction. Connerly plans to carry his campaign against what he calls “racial preferences” to eight states in 2008, scoring a decisive Super-Tuesday repudiation of a social policy that he portrays as the contemporary face of racial discrimination. On the other side of the issue, proponents of affirmative action are struggling to regroup, fearful that the confluence of lukewarm support among Democratic allies, messy presidential politics …