Romer and Michigan

Sat Nov 11 05:49:36 PST 2006

I think that we make a mistake when we consider the situation of blacks (or 
whites) en bloc.  Without intending in any way to minimize the impact of 
racism on the daily lives of even affluent blacks, the problems faced by 
this demographic pale when compared to those faced by poor blacks, 
particularly those who are trapped in the inner city.  Members of the 
latter group are typically not helped directly by affirmative 
action.  However, one of the greatest difficulties is that many young inner 
city blacks have lost both hope and aspirations.  Seeing successful black 
faces on television and in other media can have at least a marginal 
positive effect on this problem (providing, of course, that the message is 
right--but that is a whole different issue).  This, to me, justifies 
affirmative action.

I understand that the Supreme Court has rejected this role model 
justification.  But it is impossible to take the Powell/O'Connor approach 
to affirmative action seriously.

At 11:06 PM 11/10/2006 -0800, Scarberry, Mark wrote:
>Content-class: urn:content-classes:message
>Content-Type: multipart/alternative;
>         boundary="----_=_NextPart_001_01C7055F.F0D26B23"
>
>As I noted earlier, the corrosive effect of under-representation of racial 
>minorities in the legal profession might in my view create a compelling 
>interest that would justify state law schools in engaging in affirmative 
>action. The social effects of the gap in other "facets of the economy" 
>might create similarly compelling interests with regard to other kinds of 
>higher education. But, as I also noted earlier, the Supreme Court 
>seemingly has ruled out of bounds such kinds of interests, and instead has 
>required us to focus on an educational diversity rationale -- a rationale 
>that seems to have little to do with these gaps and that is highly 
>unpersuasive as a genuinely compelling interest that would justify racial 
>discrimination.
>
>Mark Scarberry
>Pepperdine
>
>----------
>From: conlawprof-bounces at lists.ucla.edu on behalf of matthewhpolsci at aol.com
>Sent: Fri 11/10/2006 10:37 PM
>To: emaltz at camden.rutgers.edu; zimmermi at shu.edu; nebraskalawprof at yahoo.com
>Cc: conlawprof-bounces at lists.ucla.edu; CONLAWPROF at lists.ucla.edu
>Subject: Re: Romer and Michigan
>
>The question may be asked as to whether Professor Zimmer's answer below is 
>not correct.  Professor Maltz seems to say that the answer is either mixed 
>or irrelevant in 2006.
>
>Whichever view may be taken, there is a two part 2006 policy question.
>
>  Part 1.  Is it now to be assumed that the demonstrable gap, in virtually 
> all facets of the economy, between blacks en bloc and whites en bloc is 
> (a) simply a permanent fact of life or is (b) treatable by policy?
>
>Part 2.  How the empirical political theory (let us name it 
>'judicio-political theory') argued in briefs and law reviews, and 
>pronounced in judges' holdings deal with the problem of "making and 
>maintaining commonwealths"?
>
>
>-----Original Message-----
>From: emaltz at camden.rutgers.edu
>To: zimmermi at shu.edu; nebraskalawprof at yahoo.com
>Cc: CONLAWPROF at lists.ucla.edu; conlawprof-bounces at lists.ucla.edu
>Sent: Fri, 10 Nov 2006 2:49 PM
>Subject: Re: Re: Romer and Michigan
>
>Equal protection jurisprudence has strayed so far from the original 
>understanding that asking what the Civil War Amendments were "about" seems 
>almost beside the point. However, for what its worth, the most direct 
>evidence on this issue comes from the debates over the Fifteenth Amendment 
>and the changes in the Naturalization law in the early 1870's. 
>Unfortunately, the evidence is somewhat conflicting. With respect to the 
>former, the drafters explicitly rejected language referring specifically 
>to blacks in favor of a more general race-blind formulation. In the 
>naturalization debate, by contrast, they chose to single out immigrants 
>from Africa specifically rather than removing the racial limitation on 
>naturalization more generally. In both cases, the specific discussion 
>focused not on affirmative action, but rather on Chinese immigrants.
>
>At 03:26 PM 11/10/2006 -0500, Michael Zimmer wrote:
>
> >Rick gives the equal treatment answer for why race is different: "the 
> big >difference between racial preferences and all these others is 
> the >normative view that racial discrimination is always highly suspect." 
> The >reason racial classifications are suspect is that they have been 
> used >mostly to the disadvantage of racial minorities, not that they will 
> very >often disadvantage the majority. I suppose it all goes back to 
> first >Justice Harlan's dissent in Plessy. Rick picks out the phrase 
> about >"color-blind" out of a paragraph in which subordination of the 
> minority >race is the thrust. Whatever else the Civil War Amendments were 
> about, >they were not about the risk of harm to the white majority. What 
> was true >then, is true today.
> >
> >Michael J. Zimmer
> >Professor of Law
> >Seton Hall Law School
> >One Newark Center
> >Newark, NJ 07102
> >973.642.8833
> >973.642.8194 fax
> >_______________________________________________
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