Michigan and popular constitutionalism

Thu Nov 9 14:01:52 PST 2006

  Minor detail:  It is Jennifer Gratz, not Grutter, who was the face
of the campaign to ban affirmative action.  Gratz applied to the
undergraduate college, so it would be her SAT score, not her LSAT. 
Neither point affects the substance of Yvette's analysis, which is
exactly right.  In the second trial of Hopwood v Texas, we re-ran the
1992 admissions process, and with the burden of proof on the
university, showed that none of the plaintiffs would have been
admitted in a color-blind process.  There were far more white
applicants ahead of them than the maximum number of seats that could
have been taken up by minority admits.

  Perhaps the greatest cost of affirmative action is that it provides
an automatic excuse for every white applicant.  For every
applicant whose admission is actually affected by affirmative action,
there are many more who /think/ they were rejected because of
affirmative action.

  Quoting "Barksdale, Yvette" <7barksda at jmls.edu>:

> 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/[2]
>> _______________________________________________
>> To post, send message to Conlawprof at lists.ucla.edu To subscribe,
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>>
>> Please note that messages sent to this large list cannot be viewed
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> private.  Anyone can subscribe to the list and read messages that
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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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> _______________________________________________
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> Please note that messages sent to this large list cannot be viewed
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>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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