Law Commons^™

The Legacy Of Brown V. Board Of Education: Achieving Student Body Diversity In All Levels Of Education, Nancy L. Zisk

Touro Law Review

This Article addresses the legal standard by which school admissions programs may be judged and validated as school districts struggle to achieve student body diversity. As the Supreme Court recognized in its seminal decision, Brown v. Board of Education, education “is the very foundation of good citizenship.” Twenty years after that case was decided, Thurgood Marshall, who had argued that separate was not equal in the Brown case, observed as a Justice of the Court that “unless our children begin to learn together, there is little hope that our people will ever learn to live together.” Because achieving student body …

Two Approaches To Equality, With Implications For Grutter, Keith N. Hylton

Faculty Scholarship

The question “what is equality?”, applied to the distribution of resources across races, suggests the following answer: when there appears to be no need for a policy that focuses on improving the welfare of one race relative to another. There is another way to approach the same question: equality is when traditionally-recognized paths to advancement do not give preference to or disadvantage an individual because of his race. Notice the difference here is between end-state and process-based notions of equality, a distinction Nozick emphasized in his examination of justice in distribution. Nozick rejected end-state theories of justice in distribution. I …

Equal Dignity, Colorblindness, And The Future Of Affirmative Action Beyond Grutter V. Bollinger, Thomas P. Crocker

William & Mary Law Review

In Grutter v. Bollinger the Supreme Court held that diversity was a compelling interest for equal protection purposes that justifies limited consideration of race through affirmative action programs. But there was a catch. The Court predicted that diversity would cease to be a compelling interest within twenty-five years. This Article examines the surprising doctrinal and conceptual implications that would follow if, having both the motive and means, the Court were to overturn Grutter before its predicted 2028 sunset. Exploring internal tensions within existing doctrine, this Article argues that even if the Court were to overturn Grutter, a form of …

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 …

Use Of Economic-Based Affirmative Action In College Admissions, Torrino Travell Travis

Florida A & M University Law Review

Preferential treatment based on race is currently on life support and will soon die as a part of the college admissions process. However, banning racial preference in college admissions does not mean the end of minorities receiving preferential treatment in college admissions. Recently, federal courts have begun to hold that colleges may give preferential treatment and use various criteria in compiling its student body; however, these criteria must be race neutral. Part I of this note discusses Grutter v. Bollinger. Part II argues that admissions committees will still be able to give deserving minorities special consideration under a race neutral …

The Good, The Bad, And The Ugly: Reflections Of A Counterclerk, Gil Seinfeld

Michigan Law Review First Impressions

Everyone has strong feelings about Justice Scalia. Lionized by the political right and demonized by the left, he has been among the most polarizing figures in American public life over the course of the last halfcentury. It is hardly surprising, then, that in the weeks since Justice Scalia’s death, the public discourse surrounding his legacy has exhibited something of a split personality. There have, of course, been plenty of appropriately respectful—even admiring—tributes from some of the Justice’s ideological adversaries; and here and there one of the Justice’s champions has acknowledged, with a hint of lament, the acerbic quality of some …

Grutter V. Bollinger/Gratz V. Bollinger: View From A Limestone Ledge, Gerald Torres

Gerald Torres

No abstract provided.

Grutter V. Bollinger/Gratz V. Bollinger: View From A Limestone Ledge, Gerald Torres

Gerald Torres

No abstract provided.

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 …

Death Or Transformation? Educational Autonomy In The Roberts Court, Elizabeth Dale

Elizabeth Dale

In the aftermath of the Supreme Court's decisions in Grutter and Gratz a number of commentators argued that the Court had begun to embrace a new constitutional doctrine that required deference to the decisions of some institutions. Most notably they asserted that the Court would defer within the field of education. But even as they suggested that the Court was more willing to explore the doctrine, those two opinions left several large questions unanswered: Did the Court's embrace of institutional autonomy extend beyond higher education, into the K-12 realm? If so, what were its bounds? Was the doctrine only relevant …

Diversity Matters: Race, Gender And Ethnicity In Legal Education., Nancy E. Dowd, Kenneth B. Nunn, Jane E. Pendergast

Kenneth B. Nunn

This Article presents more evidence of the inequality that persists in legal education for students. Based on a survey of University of Florida law students conducted in 2001, this study reaffirms the existence of differential experience and an inegalitarian culture in legal education. However, it also demonstrates the importance of diversity and the recognition by a significant majority of students of the value of race and gender pluralism. These competing findings provide a clear guide to the future direction of legal education.

Diversity Matters: Race, Gender And Ethnicity In Legal Education., Nancy E. Dowd, Kenneth B. Nunn, Jane E. Pendergast

Nancy Dowd

This Article presents more evidence of the inequality that persists in legal education for students. Based on a survey of University of Florida law students conducted in 2001, this study reaffirms the existence of differential experience and an inegalitarian culture in legal education. However, it also demonstrates the importance of diversity and the recognition by a significant majority of students of the value of race and gender pluralism. These competing findings provide a clear guide to the future direction of legal education.

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 …

Federalism, Diversity, Equality, And Article Iii Judges: Geography, Identity, And Bias, Sharon E. Rush

UF Law Faculty Publications

Each individual has a background, and that background shapes the individual’s views about life, creating an inevitable form of bias referred to as “experiential bias.” Experiential bias is shaped by many identity traits, including, among others, race, sex, sexual orientation, religion and even geography. The geographic identity of state judges and their potential unfair experiential bias is the common justification for federal court diversity jurisdiction. But experiential bias is inescapable, affecting everyone who's ever had an experience, and is generally not unfair, as demonstrated by most studies regarding the "fairness" justification for diversity jurisdiction. More recently, Justice O’Connor connected racial …

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 …

Affirmative Action And Academic Freedom: Why The Supreme Court Should Continue Deferring To Faculty Judgments About The Value Of Educational Diversity, Steve Sanders

Indiana Journal of Law and Social Equality

No abstract provided.

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

Indiana Journal of Law and Social Equality

No abstract provided.

When Diversity For Diversity's Sake Is Not Enough: Should Black Immigrants Receive The Benefit Of Affirmative Action At The Detriment Of Native Blacks?, Cedric Gordon

Indiana Journal of Law and Social Equality

No abstract provided.

Grutter's Denouement: Three Templates From The Roberts Court, Ellen D. Katz

Articles

Precedent from the Roberts Court shows the Justices taking three distinct approaches to precedent they dislike. Each provides a template for the Court to criticize race-based affirmative action in higher education, as Fisher v. University of Texas at Austin is widely expected to do. Most narrowly, the Court might use Fisher to issue a warning, much like it did in 2009 when it sidestepped a constitutional challenge to the Voting Rights Act; under this approach, the opinion would spell out why the Justices think the diversity celebrated in Grutter v. Bollinger no longer provides sufficient justification for the use of …

What Can The Brothers Malone Teach Us About Ficher V. University Of Texas?, Charlie Gerstein

Michigan Law Review First Impressions

In 1975, the Brothers Malone took the entrance exam for the Boston Fire Department. At the time, the Department was under a court-ordered affirmative action plan: it divided its pool of test-takers into groups of black and white applicants and gave substantial preference to those in the former. The Brothers listed themselves as white and didn't make the cut. In 1977, the Brothers Malone again took the entrance exam for the Boston Fire department, this time listing themselves as black. The Brothers became firemen. Within a few years, someone at the Fire Department grew suspicious of the Malones. An investigation …

How Strictly Scrutinized?: Examining The Educational Benefits The Court Relied Upon In Grutter, Patrick M. Garry

Pepperdine Law Review

In Grutter v. Bollinger, the Court recognized student body diversity as a compelling state interest that justified the use of racial preferences in selecting applicants for admission to public university law schools. Normally, any state action reviewed under a strict scrutiny approach is destined for invalidation. But in Grutter, the Court bucked the trend and upheld the race-based admissions policy against a racial discrimination challenge brought under the Fourteenth Amendment's equal protection clause. Given the rarity of a state action surviving strict scrutiny review, it is instructive to examine the nature of the diversity interest recognized by the Court in …

On Overreaching, Or Why Rick Perry May Save The Voting Rights Act But Destroy Affirmative Action, Ellen D. Katz

Articles

The State of Texas is presently staking out two positions that are not typically pursued by a single litigant. On the one hand, Texas is seeking the invalidation of the Voting Rights Act, and, on the other, the State is now defending the validity of the expansive race-based affirmative action policy it uses at its flagship university. This Essay presses the claim that Texas has increased the chance it will lose in bothTexas v. Holder andFisher v. University of Texas because it has opted to stake out markedly extreme positions in each. I argue that Texas would be more likely …

Racial Inclusion, Exclusion And Segregation In Constitutional Law, Michelle Adams

Articles

In Part I of the Article, I examine early cases in which the Court described segregation as a form of resource "lock-up." In several cases leading up to Brown, the Court detailed how racial segregation allows a more dominant group to hoard substantial societal resources. In these early cases, the Court's focus was on segregation as a mechanism for excluding individuals from valuable benefits on the basis of race; it did not speak explicitly to the harms associated with racial classification schemes. In this Part of the Article, I also return to Brown v. Board of Education and explore the …

Why We Need Race Conscious Admissions, Deborah N. Archer

Other Publications

No abstract provided.

Grutter V. Bollinger 123 S. Ct. 2325 (2003), Soraya Fata, Amy Schumacher

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Promise Of Grutter: Diverse Interactions At The University Of Michigan Law School, Meera E. Deo

Michigan Journal of Race and Law

In Grutter v. Bollinger, the U.S. Supreme Court upheld affirmative action at the University of Michigan Law School on the grounds of educational diversity. Yet the Court's assumption that admitting diverse students into law school would result in improved race relations, livelier classroom conversations, and better professional outcomes for students has never been empirically tested. This Article relies on survey and focus group data collected at the University of Michigan Lav School campus itself in March 2010 to examine not only whether, but how diversity affects learning. The data indicate both that there are sufficient numbers of students of color …

Is Integration A Discriminatory Purpose?, Michelle Adams

Articles

Is integration a form of discrimination? Remarkably, recent Supreme Court doctrine suggests that the answer to this question may well be yes. In Ricci v. DeStefano, the Court characterizes - for the very first time - government action taken to avoid disparate-impact liability and to integrate the workplace as "race-based," and then invalidates that action under a heightened level of judicial review. Consequently, Ricci suggests that the Court is open to the "equivalence doctrine," which posits that laws intended to racially integrate are morally and constitutionally equivalent to laws intended to racially separate. Under the equivalence doctrine, integration is simply …

Teaching Whren To White Kids, M. K.B. Darmer

Michigan Journal of Race and Law

This Article addresses issues at the intersection of United States v. Whren and Grutter v. Bollinger at a time when the reality of racial profiling was recently illustrated by the high-profile arrest of a prominent Harvard professor. Given the highly racialized nature of criminal procedure, there is a surprising dearth of writing about the unique problems of teaching issues such as racial profiling in racially homogeneous classrooms. Because African American and other minority students often experience the criminal justice system in radically different ways than do Whites, the lack of minority voices poses a significant barrier to effectively teaching criminal …