Romer and Michigan

Fri Nov 10 10:22:40 PST 2006

Mae Kuykendall writes :"As Steven Jamar seems to suggest, singling out race as the salient basis on which a helping hand may not be given is itself a racial
classification." 

  I understand the point Mae is making here, but it strikes me as a little bit like the Clintonian "it all depends on what the meaning of 'is' is."

  The Michigan intiative does not classify on the basis of race; it prohibits the state from classifying on the basis of race for purposes of awarding preferential treatment. That does not violate Romer and the Equal Protection Clause. It affirms the core principle of the Equal Protection Clause that racial classifications are highly suspect. 

  If this case were before the U.S. Supreme Court, does anyone on this list really believe that the Court would strike down Michigan's color blind--"no racial preferences" rule--under Romer?

  How would Romer have come out if Am 2 merely provided that "sexual orientation may not be used as the basis for providing preferential treatment or opportunities."

  Rick

Mae Kuykendall <mae.kuykendall at law.msu.edu> wrote:
  As Steven Jamar seems to suggest, singling out race as the salient basis
on which a helping hand may not be given is itself a racial
classification. It's one thing to say we should try to have racial
equity and another to treat any consideration of race as toxic. On the
matter of scholarships and the like, I was the first valedictorian of my
all-white Texas high school not to receive a local money award always
given to that person in the past. The reason was that the city fathers
were trying to delay desegregation, and, as a stopgap, shifted the
scholarship to the all-black high school. Now, it did strike me as a
loss and as a matter of somewhat arbitrary decision-making, motivated by
something other than proper concern for fairness. There was no effort
to find a way to pick between the two (they may have said it would
henceforth be rotated between the schools, something that I think got
mooted pretty quickly and which would perhaps be at least one instance
of an arrangement based on a racial classification that all can agree is
bad). But my small reversal also struck me as an inevitable outcome of
a recent (indeed, then existing) form of deep injustice and nothing to
view as an individual injury. It was in fact a harbinger of a long
social process that was about to get underway. If I try hard, I can
conjure the feeling I experienced when first told that I would be the
pathbreaker who didn't get the scholarship because it had been
reallocated. But that small moment of consternation provides me with no
authentic basis on which to make a judgment about how to achieve racial
justice.

Mae Kuykendall

>>> Michael Zimmer 11/10/2006 10:49:53 AM >>>
My background is quite similar to Rick's. Neither of my parents got to
go 
to high school because they had to work to support their families. I
guess 
I have a question about the full range of scholarship opportunities you

were not offered. Most law schools have scholarships based on criteria

established by the giver -- the Brown County Law Scholar, the Hellenic

Culture Law Scholarship, on and on. I never felt particularly miffed
for 
not being eligible for those scholarships. Sure, I wanted all the 
scholarship money that I could get, but so it goes. Is a scholarship
for 
members of racial minorities different? (I know many will just say that

Zimmer is wierd :) ).

Substantively, Col amendment 2 lifted protections that might otherwise
be 
provided based on sexual preference. The Michigan amendment lifts 
opportunities that otherwise might be provided based on race. I am not

sure that Rick's distinction is that solid.

The Michigan amendment puts the ever-present "Dean's wild cards" as
some 
risk, if, as probably is true, they almost always dealt to whites. 
Minority applicants who are denied admission may have a tough time
making 
the argument these preferences are linked to race and therefore banned
by 
the amendment. But it would be worth a shot. If successful, or having
a 
risk of success, then the powers-that-be that can get a "wild card" 
admission for one ot their progeny who would otherwise not be admitted

might use that power to work to get rid of that amendment. A long shot

again. 

Michael J. Zimmer
Professor of Law
Seton Hall Law School
One Newark Center
Newark, NJ 07102
973.642.8833
973.642.8194 fax

Rick Duncan 
Sent by: conlawprof-bounces at lists.ucla.edu 
11/10/2006 09:09 AM

To
CONLAWPROF at lists.ucla.edu 
cc

Subject
Romer and Michigan

I really don't see how Romer can be used to strike down the Michigan 
initiative. In Romer, Colorado Am 2 prohibited laws protecting persons

against sexual orientation discrimination. The Michigan initiative is
not 
an anti-antidiscrimination law; it affirms the principle of 
nondiscrimination and affirms the idea that racial classifications are

suspect. 

The Michigan initiative does not classify on the basis of race (as 
Colorado Am 2 classified on the basis of sexual orientation). Indeed,
it 
forbids the state from classifying on the basis of race when selecting

persons for state-created benefits and opportunities.

On a personal note, let me respond to the notion that affirmative
action 
does not harm lower-income whites. I still feel the stigma of being
denied 
opportunities because of my race. And I am talking about opportunities,

not necessarily getting the prize. 

My mother has a 5th grade education and grew up on welfare in a 
single-parent family. My father barely got through high school, fought
for 
his country (he was at Pearl Harbor when it was attacked) and worked in

construction his entire working life. And it still amazes me (and it
still 
hurts me) that elite law schools gave racial preferences to minorities

from privileged families and denied me an equal opportunity to compete

without regard to my race. Even after getting admitted to Cornell Law 
School and making law review, I had to endure the stigma of being
denied 
scholarship opportunities--as I recall,one full scholarship was awarded
to 
a classmate, a racial minority, who came from a home in which both his

mother and father were medical doctors--solely on the basis of my 
"privileged" racial heritage.

Maybe I would not have gotten that scholarship anyway, but I would have

liked the opportunity to be considered for it on the merits. Equality
is 
not about getting admitted or getting a scholarship; it is about having
an 
equal opportunity--without regard to race or ethnicity--to compete for
the 
prize.

I got a great education at Cornell and have done very well since; but I

still feel the stigma of being treated as a second class citizen by my
law 
shool on the basis of my race. I don't donate money to Cornell and I
don't 
attend class reunions. And it still hurts that I was denied an equal 
opportunity by my law school "community."

As a parent, it hurts me to realize that there are opportunities my 
children will be denied solely on the basis of their race. Racial 
preferences are poison. And they hurt all members of the excluded
racial 
groups, because they deny the American dream of an an opportunity to 
compete without regard to race. 

I think that is probably what Jennifer Gratz was feeling. It is what a
lot 
of lower income white students feel, even if they are often afraid to 
speak out in the classroom when AA is being discussed.

Rick Duncan

Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"It's a funny thing about us human beings: not many of us doubt God's 
existence and then start sinning. Most of us sin and then start
doubting 
His existence." --J. Budziszewski (The Revenge of Conscience)

"Once again the ancient maxim is vindicated, that the perversion of the

best is the worst." -- Id.
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  Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence."  --J. Budziszewski (The Revenge of Conscience)

  "Once again the ancient maxim is vindicated, that the perversion of the best is the worst." -- Id.

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