AA (Which groups benefit?) (Corrected)
Frank Cross
crossf at mail.utexas.edu
Sat Nov 11 12:00:18 PST 2006
I agree with David's take and think it provides considerable room for
widespread consensus, if it is held. It seems similar to the "invidious"
discrimination standard of Title VII.
The tricky question is how narrowly must a provision be designed to be
"narrowly tailored." Clearly, it does not need to be exact.
To some degree, I think this exposes the shortcoming of many existing
affirmative action programs. As I understand it, programs to benefit
disadvantaged minorities often end up benefiting the most advantaged
members of the disadvantaged group. I fear that the motivation of these
programs is simply one of diversity, to obtain some representative of the
minority group. And simple racial screening is obviously much easier to
measure for schools. But I think this counsels for a more complex and
difficult affirmative action program that incorporates both race and other
measures of disadvantage, such as income.
At 01:38 PM 11/11/2006, davidebernstein at aol.com wrote:
> The second to last sentence should read "(albeit generally Latin
> American) heritage."
>
>Also, if there was a program justified based on a rationale that didn't
>apply to one of the groups that benefitted, would that mean that the
>program was not "narrowly tailored" for 14th Amendment purposes (Cf.
>Croson and the applicability of the Richmond program to Aleuts etc)
>
>
>-----Original Message-----
>From: davidebernstein at aol.com
>To: laycockd at umich.edu; conlawprof at lists.ucla.edu
>Sent: Sat, 11 Nov 2006 2:16 PM
>Subject: AA (Which groups benefit?)
>
>I find at least some of the rationales for affirmative action (in terms of
>preferences) presented on this list and elsewhere persuasive, both
>constitutionally and policy-wise in some circumstances. But many of them
>are either primarily or exclusively applicable to the experience of
>African Americans--a population subjected to slavery, Jim Crow, etc., and
>still highly segregated de facto from the white population.
>
>To what extent can these rationales be applied to other groups who are the
>beneficiaries of preferences, such as Asian Americans (who I believe still
>qualify under some federal, state, and private programs, if not in
>university admissions), or culturally and ethnically European individuals
>with Spanish-speaking (albeit generally If the Supreme Court swapped the
>"diversity" rationale for one of these other rationales, wouldn't AA as
>applied to other groups become suspect?
>
>-----Original Message-----
>From: laycockd at umich.edu
>To: conlawprof at lists.ucla.edu
>Sent: Sat, 11 Nov 2006 10:52 AM
>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.&nb!
>sp;
>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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> >
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>
>Douglas Laycock
>Yale Kamisar Collegiate Professor of Law
>University of Michigan Law School
>625 S. State St.
>Ann Arbor, MI 48109-1215
> 734-647-9713
>
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**********************************************************
Frank Cross
McCombs School of Business
The University of Texas at Austin
1 University Station B6000
Austin, TX 78712-1178
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