Romer and Michigan
Mark.Scarberry at pepperdine.edu
Sat Nov 11 11:39:32 PST 2006
Doug's post (and a rereading of Grutter) has convinced me that the Court has not taken quite the position I had thought it had on whether the general societal need for broader participation of racial and ethnic minorities -- as opposed to the educational benefits of diversity -- may constitute a compelling state interest. Maybe Doug's reading of the case is the best one, and I am always happy and grateful to learn from him. At the time I worked on our law school's strategic academic plan and incorporated in it the concern about the social corrosion caused by underrepresentation of racial minorities in legal institutions, Bakke was the last word. Perhaps Grutter really has moved the ball.
Justice O'Connor's opinion leaves us in some doubt as to its future application. The opinion weaves the narrower concept of educational benefit in and out and leaves in doubt, I think, the role of the more general societal need.
The opinion also does not deal with the disconnect between the broader interest that Doug argues is accepted by the Court and the narrow interest in the students' educational experience, which was the only interest put forward by the law school. You would think that if the Court were accepting as compelling an interest not put forward by the law school, some clearer statement would be made.
Justice O'Connor sums up the holding of the case as follows:
"In summary, the Equal Protection Clause does not prohibit the Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body." 549 U.S. at 343.
Here the Justice seems to have suggested the narrower understanding of the compelling interest: educational benefits that flow from diversity, not general social benefits that flow from diversity. I suppose, though, that it is possible for "educational benefits" to be read as including the broader general social benefits that may flow from having racial diversity in institutions of higher education.
I wonder whether Doug (or anyone else on the list) thinks that Wygant v. Jackson Board of Education, 476 US 267 (1986) has been overruled sub silento, as I think Justice Thomas's dissent comes close to suggesting. (I think Wygant's plurality opinion plus the concurrence of Justice White amount to a holding that the need for minority role models is not a compelling interest justifying racial classification. Thus white teachers with more seniority than minority teachers could not be laid off when layoffs were necessary.) Is it unreasonable to think that Wygant would have been overruled without the Court saying so? Are lower courts still bound by Wygant? Or will Wygant now be understood as a case in which the burden of the racial classification would fall too heavily on particular teachers for the interest in a diverse faculty to be compelling?
From: conlawprof-bounces at lists.ucla.edu on behalf of Douglas Laycock
Sent: Sat 11/11/2006 7:52 AM
To: conlawprof at lists.ucla.edu
Subject: RE: Romer and Michigan
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
> Mark Scarberry
> 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
>> 973.642.8194 fax
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