Michigan and popular constitutionalism

Earl Maltz emaltz at camden.rutgers.edu
Thu Nov 9 16:25:32 PST 2006


I think that we have to be very careful about how we talk about "causation" 
in this context.  Ms. Gratz was not denied admission "because" of her 
socio-economic status, but rather because her grades and test 
scores.  Without question, there is a significant correlation between those 
markers and socioeconomic status, and certainly one could make a strong 
argument that, in a truly just society, we should have affirmative action 
for all lower income people, particularly those whose parents did not 
attend college.  However, that is never going to happen (except at the 
margins) in the admissions process for elite law schools; given the small 
number of seats available, such a program would completely reshape the 
class, and cause an uproar within some of the law schools most influential 
constituencies.

At 02:01 PM 11/9/2006 -0600, Barksdale, Yvette wrote:
>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/
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu To subscribe,
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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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