Romer and Michigan
emaltz at camden.rutgers.edu
Sat Nov 11 08:24:17 PST 2006
I greatly appreciate the thoughtful explanation of the
difference. However, the most important similarity between the O'Connor
and Powell approaches remains. Affirmative action needs to be either legal
or illegal. The effort to draw fine distinctions between different types
of race-based affirmative action does nothing but invite lying, evasion and
more litigation. Both of them may have thought that they were articulating
a viable middle ground; it fact, they were simply demonstrating an abysmal
misunderstanding of the way the world works.
At 10:52 AM 11/11/2006 -0500, Douglas Laycock wrote:
>Mark Scarberry's post is a fair description of Powell's opinion in Bakke,
>but it misreads O'Connor's opinion for the Court in Grutter. Earl Maltz's
>reference to the "Powell/O'Connor" theory implies the same mistake.
>O'Connor starts with Powell's opinion in Bakke, and she uses his word,
>diversity. But by the time she gets done explaining it, it is a
>completely different and vastly more relevant concept. Diversity for
>Powell was a First Amendment interest in diverse ideas, with just a
>passing hint of an acknowledgement that ideas about race might be
>especially important in this context. From that starting point, O'Connor
>progresses to overcoming stereotypes and learning to work with students of
>other races, to the need for an officer corps that is both excellent and
>diverse, to educating a leadership class for the next generation, to
>demonstrating that the pathway to leadership is visibly open to all
>Americans. There's not much difference between that last step and role
>models, although the most obvious reading of her language is that black
>kids and their parents have to be able to see that older black kids are
>being admitted to elite schools.
>For the nearly half the country in which minority populations are
>approaching majority status, the need to educate a minority leadership
>class at the highest levels is about as compelling as a state interest can
>be. Not that many politicians are capable of thinking that far ahead.
>O'Connor did not say, although she should have, that in selective schools,
>affirmative action is an essential means of desegregation. She did not
>say, although the Thomas and Scalia dissents squarely posed the issue,
>that affirmative action is important to the maintenance of high academic
>standards in selective institutions. The first response to the end of
>affirmative action is an assault on the admission standards that make it
>necessary. We saw it in Texas and California, there's already talk about
>it in Michigan, we heard it from Yvette on this list the other day.
>Shameless plug: I elaborate this broad range of reasons for affirmative
>action, and how many of these reasons show up in Grutter, in The Broader
>Case for Affirmative Action: Desegregation, Academic Excellence, and
>Future Leadership, 78 Tulane L. Rev. 1767 (2004).
>Quoting "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>:
> > 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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