Vulgar attitudinalism

Tue Jun 6 10:37:11 PDT 2006

Diversity is not the only possibly compelling interest in K-12
education.  Others might include fending off the risk of future
discriminatory segregation, especially in a former de jure segregated
school system; providing a modicum of racial stability to school
enrollments and to residential neighborhoods; or overcoming the effects
of the school system's past discrimination in education.  On the other
side of the equation, the injury to the white students seems less than
in Gratz or Grutter, since all students are guaranteed at least a
minimally adequate education [Rodriguez].  Perhaps the programs
discriminate to some extent against the white students, but only by
sending them to one integrated school instead of another.  

>>> Scott Gerber <s-gerber at onu.edu> 6/6/2006 6:20:43 AM >>>
I'd need to know more about the facts in the k-12 cases to answer 1.  
With respect to 2, as I responded this morning to Sandy, I don't 
understand why diversity is a more compelling interest in higher 
education than in k-12 (I don't think it's a compelling interest in 
either, but the Court stated it was in the former).  In other words, I

don't understand how the Court will make this distinction assuming, as

Sandy does, that it will distinguish Grutter from the k-12 cases.

Scott

sghosh2 at buffalo.edu wrote:

>Would the Court need to distinguish Grutter at all, and base its 
>decision on Gruner, which seemed to distinguish Grutter on (1) the 
>less catergorical approach for the law school admissions program and 
>(2) the (assumed) more compelling need for diversity in legal 
>education?  
>
>> -----Original Message-----
>> From: Scott Gerber [mailto:s-gerber at onu.edu] 
>> Sent: Monday, June 05, 2006 3:16 PM
>> To: Sanford Levinson
>> Cc: ConLaw Prof; Elizabeth Dale
>> Subject: Re: RE: RE:Vulgar attitudinalism
>>
>> Sandy:
>>
>> You predict Grutter will be distinguished.  How will the Court
>> (Roberts
>> for the majority, you say) do it?
>>
>> Scott
>>
>>
>> Sanford Levinson wrote:
>>
>>
>> >I assume that Brown wll be distinguished by reference to the use
>> of 
>> >race in order to realize complete separation.  Or perhaps
>> they'll 
>> >simply say, after 50 years, that the "real meaning" of Brown was
>> in 
>> >fact "color-blindness" in school assignments, unless there is
indeed
>> a 
>> >compelling interest, as in Grutter (?).
>> >
>> >sandy
>> >
>> >-----Original Message-----
>> >From: Elizabeth Dale [mailto:edale1 at bellsouth.net] 
>> >Sent: Monday, June 05, 2006 3:04 PM
>> >To: Sanford Levinson; ConLaw Prof
>> >Subject: Re: RE:Vulgar attitudinalism
>> >
>> >And what of Brown, Sandy? Will this opinion you imagine assert
>> that 
>> >while Brown asserted there was a value to integrated education in
>> K-12,
>>
>> >it could not have meant that value should be achieved through 
>> >affirmative action? Or will it sadly reflect on the difficulties
>> of 
>> >achieving Brown's lofty goals given the realities of what we used
>> to 
>> >call white flight and now simply accept as the inevitable 
>> >homogenization, by race and class, of neighborhoods, cities and
>> towns?
>> >
>> >
>> >
>> >Elizabeth Dale
>> >University of Florida
>> >Associate Professor, Legal History, Dept of History Affiliate 
>> >Professor, Legal History, Levin College of Law
>> >
>> >PO Box 117320
>> >Gainesville, Florida 32611
>> >
>> >352-392-0271
>> >edale at history.ufl.edu 
>> >http://plaza.ufl.edu/edale 
>> >
>> >
>> >----- Original Message -----
>> >From: "Sanford Levinson" <SLevinson at law.utexas.edu>
>> >To: <lawcourts-l at usc.edu>; "ConLaw Prof"
>> <conlawprof at lists.ucla.edu>
>> >Sent: Monday, June 05, 2006 2:45 PM
>> >Subject: RE:Vulgar attitudinalism
>> >
>> >
>> >
>> >With regard to the two cases on which the Court just granted
>> cert, 
>> >involving the use of race by local school districts, let me
predict
>> the
>>
>> >following (without reading either of the cases below or,
obviously,
>> any
>>
>> >of the briefs that are to be written or listening to any of the 
>> >forthcoming oral argument):
>> >
>> >The final vote will be 5-4 to strike down the plans (since I
>> cannot 
>> >conceive that any of the moderates voted to grant cert in order
>> to 
>> >uphold the decisions below or that Alito or Roberts voted to grant
>> cert
>>
>> >because they knew that lots of us were interested in what his
>> views 
>> >were on the issue) with Chief Justice Roberts writing the
>> majority 
>> >decision distinguishing Grutter. That is, I think that "attitude"
>> will 
>> >triumph, though part of the relevant attitude is a reluctance to 
>> >reverse Grutter, out of a desire to pay some fealty to stare
>> decisis 
>> >and, perhaps more importantly, because lots of people whom elite 
>> >Republicans respect, such as 65 large corporations and lots of
>> former 
>> >generals, admirals, and high officials in DOD, emphasized the 
>> >importance of affirmative action in elite institutions for
business
>> and
>>
>> >the military.  Whether or not it makes any sense to praise
>> "diversity" 
>> >at elite institutions (which very, very few people attend) and not
>> in 
>> >America's public schools is another matter, beyond the scope of
>> this
>> foray into Holmesian prediction.
>> >
>> >sandy
>> >_______________________________________________
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>> >
>> >
>>
>> --------------------------------------
>>
>> Scott Gerber
>> Law College
>> Ohio Northern University
>> Ada, OH 45810
>> 419-772-2219
>> http://www.law.onu.edu/faculty/gerber/ 
>> _______________________________________________
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>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu 
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>
>Please note that messages sent to this large list cannot be viewed as

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--------------------------------------

Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty/gerber/ 
_______________________________________________
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