Michigan and popular constitutionalism

Barksdale, Yvette 7barksda at jmls.edu
Thu Nov 9 12:01:44 PST 2006


Of course, part of the problem with this analysis is the question of
which voters rejected affirmative action. The stats showed that only 14%
(or something similar to that)  of minority voters supported it. So that
it was rejected essentially by white voters. Question - whether this
vote was popular constitutionalism, or simply self- interest by whites
who assume (falsely) their opportunities will be substantially limited
by affirmative action. 

One of the  real problems with these ballot initiatives is that the
debate is usually conducted by sloganeering (particularly appeals  to
equality and justice") without any real understanding of what terms
mean.  For example Grutter, who fought for this, clearly believes that
she was excluded from U of M because of race, when it fact, the
overwhelming likelihood is that her lower socioeconomic class was the
reason (daughter of a police officer)- because of the relationship
between socioeconomic class and LSAT scores.  The people ahead of her in
line were not minority applicants, they were  more advantaged richer,
better educated,  white applicants were able to score higher on the
standardized tests.   Even if no minority applicants had applied, she
would still not have gotten in, because they would have been too many
privileged applicants ahead of her.   Yet, she blames race for her
exclusion, rather  than class. 

This kind of faulty thinking (affirmative action substantially limits
the opportunities of whites) is what drives the affirmative action
debate, and makes these decisions the result of false choices rather
than some higher constitutional moment redefining equality. 

There is substantial agreement that race, qua race,  should  not be
relevant to these decisions. The question is how  do you account for the
fact that race (and class) ARE relevant in determining educational and
economic opportunities in our society. 

What Grutter refuses to understand is that she needed to fight for class
based remedies, instead of attacking race based remedies, which, in the
end, would do little or nothing, to advance her cause - equal
educational opportunity.) 

In any event, perhaps this might be a good thing if it pushes Michigan
to reevaluate its dependence on standardized test scores for its
decisionmaking. 

yb


***/////////////////////////////////////////***
 
Professor Yvette M. Barksdale
The John Marshall Law School
315 S. Plymouth Ct. 
Chicago, IL 60604
(312) 427-2737 (phone)
(312) 427-9974 (fax)
 
***/////////////////////////////////////////***

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Thursday, November 09, 2006 1:12 PM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Michigan and popular constitutionalism

 
Of course, in a sense the voters in Michigan did override the Supreme
Court's decision, and, though I often disagree with Scott, I don't think
he is guilty of a "basic error" in saying so. Functionally the voters
did override the Supreme Court's decision to allow the law school
affirmative action program to continue. Further, the Supreme Court
allowed the law school affirmative action program to continue on the
basis that educational diversity was a compelling interest that
justified race conscious state action. A majority of the voters
apparently rejected the notion that diversity was that important. In
addition, some of the voters may have thought that as a matter of
constitutional law the Supreme Court got it wrong -- that diversity is
not a compelling interest and that the US Constitution should not be
interpreted to permit the affirmative action program to continue. (It
would be interesting to see whether the pro-MCRI ads and literature
argued that the Supreme Court had misinterpreted the 14th Amendment.)

I support affirmative action by private institutions (like my law
school) but am ambivalent with regard to state affirmative action. The
diversity rationale in my view does not come close to presenting a
compelling interest as we normally think of compelling interests. The
real compelling interest that may justify racial classifications with
regard to law schools is the corrosive effect on our society of racial
groups being underrepresented in the legal system that governs all of us
and that sends a lot of people -- including disproportionately members
of some of those underrepresented racial groups -- to prison. We need
the legal system not only to be just but to appear to all segments of
society to be just. We need all racial groups to "buy in" to the
legitimacy of our legal system. The alternative is a likelihood of civil
disorder. An argument of that kind might well have carried the day with
the voters of Michigan, but it is foreclosed by the Supreme Court's
reliance only on the unpersuasive educational diversity rationale to
justify affirmative action.

Mark S. Scarberry
Pepperdine University School of Law
 

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Lupu
Sent: Thursday, November 09, 2006 10:36 AM
To: RJLipkin at aol.com; Scott Gerber
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: Michigan and popular constitutionalism

The message below from Scott shows the basic error in Scott's thinking.
The people of Michigan did not override a decision of the Supreme Court,
which hadn't created the affirmative action program, and certainly
hadn't ordered the University to continue it.  The people of Michigan
overruled the officers of the University, who had initiated and
implemented the program.  That is a legitimate populist control over
state policy (the lawsuit will fail, just as the comparable lawsuit in
California failed), but why should we think of it as a "constitutional" 
judgment?  The constitution permits the state to have, or to not have,
an affirmative action policy of the sort upheld in Grutter.  The
university chose to have such a policy, and the voters chose not to have
it any longer.

From: 	Scott Gerber <s-gerber at onu.edu>
To:             	RJLipkin at aol.com
Copies to:      	CONLAWPROF at lists.ucla.edu
Subject:        	Michigan and popular constitutionalism

> Bobby:
> 
> Your answer doesn't address what happened in Michigan.  The _people_ 
> voted _directly_ to ban affirmative action.  The legislative process 
> has nothing to do with it.  It seems to me that the _people_ of 
> Michigan have overridden the US Supreme Court's decision, which is 
> what Ward Connerly was trying to do.  As such, what happened in 
> Michigan seems like a good case study in popular constitutionalism, 
> although the outcome might not be endearing to left-leaning popular 
> constitutionalists.
> 
> Scott
> 
> 
> RJLipkin at aol.com wrote:
> 
> 
> >A popular constitutionalist, of a  certain stripe, can embrace courts
> just so
> >long as he or she does not embrace  judicial supremacy.  Thus, one 
> >can
> be a
> >popular constitutionalist  while favoring legislative overrides of
> judicial
> >decisions. In this case, the  popular constitutionalist recognizes 
> >the
> role of
> >the courts in having their say  on matters of constitutionality, 
> >while
> insisting
> >that the legislature has the  final say on the matter. Hence, we need
> to
> >define "popular  constitutionalism" with much greater precision than 
> >is
> usually
> >supposed. 
> > 
> >Bobby
> >
> >Robert Justin Lipkin
> >Professor of Law
> >Widener  University School of Law
> >Delaware
> >
> 
> 
> ----------------------------------------------------------------------
> --
> 
> 
> _______________________________________________
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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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Ira C. ("Chip") Lupu
F. Elwood & Eleanor Davis Professor of Law The George Washington
University Law School 2000 H St., NW Washington D.C 20052

(202) 994-7053

ICLUPU at main.nlc.gwu.edu
ICLUPU at law.gwu.edu


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