Constitutional Law II
Affirmative Action
Spring 2005
Con Law II
1
Precursors
Slavery – precepts
Black inferiority / white supremacy
 Crime to teach slaves to read or write

Slavery-enforcing decisions

Taney in Dred Scott (1856):
 Blacks “were not intended to be included under word
`citizen’ [or have] rights & privileges of citizens”
 “The unhappy black race were never thought of or
spoken of except as property [which is] expressly
affirmed in the Constitution”
 Congress has power only to “guard and protect the
owner in his rights,” not to interfere with slavery.
Spring 2005
Con Law II
2
Precursors
Early Interpretations of EP Clause

Miller in Slaughterhouse Cases (1873):
“We doubt very much whether any action of a State
not directed by way of discrimination against the
negroes as a class, or on account of their race, will
ever be held to come within the purview of this
protection. It is so clearly a provision for that race
and that emergency, that a strong case would be
necessary for its application to any other.”

Bradley in Civil Rights Cases (1883)
 Congress lacks power to prohibit private discrmination
 Illegal (for congress) to rectify de facto discrimination
Spring 2005
Con Law II
3
Precursors
Early Interpretations of EP Clause

Brown in Plessy v. Ferguson (1896):
 The “14th amendment could not have been intended
to abolish distinctions based upon color”
 “Legislation is powerless to eradicate social prejudices,
racial instincts or physical distinctions”
 If one race be inferior to the other socially, the
constitution cannot put them upon the same plane”

Harlan, dissenting:
 “Our constitution is color-blind, and neither knows nor
tolerates classes among citizens.”
 “The white race deems itself to be the dominant race
… I doubt not that it will continue to be for all time”
Spring 2005
Con Law II
4
Precursors
De Facto discrimination tolerated

State Action Doctrine:
 Social (private) discrimination not unconstitutional
 State tolerance of private discrimination not unconst

Requirement of Purpose
 Discriminatory effects not unconstitutional
 Discriminatory purpose difficult to prove
The constitution tolerates social bias (private discrimination)
and substantive inequality (non-purposeful discrimination).
Can legislation correct this, or was Brown right: “Legislation is
powerless to eradicate social prejudices and racial instincts”?
Spring 2005
Con Law II
5
UC Regents v. Bakke
(1978)
Entering class at UC Davis Medical School


50 students < 1971
100 students > 1971
 16 special admits (all minority students)
 84 regular admits (avg 11 minority students)
 Total with affirmative action: 27% min, 74% white
 Total w/o affirmative action: 13% min, 87% white
Spring 2005
Con Law II
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UC Regents v. Bakke
(1978)
Level of scrutiny under EP clause

White males as “discrete & insular class”
 Any of the indicia of “suspectness”?
 Is majority even
discrim.
against
itself
“suspect”?
“innocent
if Bakke
(and
other
 Is AA in fact
“benign”
perpetuate class biases?
victim”
whites)
areorbeneficiaries
construct
of dewhen
factoblacks
discrimination
 What happens
are a (local) majority?
Two-class theory of EP
Whites are not a unitary class (incl. subsets)
 Right to EP is an individual not group right

 Why should Allan Bakke pay for corrective action?
Spring 2005
Con Law II
7
UC Regents v. Bakke
(1978)
Standard of Review for AA

Strict Scrutiny
 Exception: where AA is a judically imposed remedy
for de jure discrimination (e.g., school deseg. cases)

Compelling Ends
 Reducing historic deficit of minority medical students
 Countering effects of social discrimination
 Increasing no. of MDs in underserved communities
 Enhancing educational quality through diversity

Necessary Means
Spring 2005
Con Law II
8
UC Regents v. Bakke
(1978)
“Race Norming” is
Compelling
Ends
never
a compelling
or
even
a legitimate
ENDof minority medical students
 Reducing
deficit
 In comparison to relevant population demographics
 To assure substantive equality (equal treatment)


Cannot be achieved at expense of process equality
Countering effects of social discrimination
 Illegal discrimination can be countered w/ AA, but
To justify
plan discrimination
on this
not AA
de facto
ground,
gov’t
entity legislatve,
must
 Need
“judicial,
or administrative findings
expose
to lawsuit
ofitself
constitutional
or statutory violations”
 Gov’t entity can correct only its own de jure discrim.

Spring 2005

Not discrimination by other/higher levels of gov’t
Must make contemporaneous findings of past unlawful acts
Con Law II
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UC Regents v. Bakke
(1978)
Compelling Ends

Increasing MDs in underserved communities
 Facilitating health care may be a compelling interest

Ethnic diversity among student body
 Exposure to diversity contributes to education


Especially in a medical school. In a law school?
Subtext of “academic freedom” (also a const’l right)
 Diversity is qualitative not quantitative construct
Necessary Means


Minority doctors for minority communities?
Set-asides to attain diverse student body
Spring 2005
Con Law II
10
UC Regents v. Bakke
(1978)
Necessary Means

Set-asides to attain diverse student body
 Racial quota would hinder, rather than promote
 Quotas not necessary; other schools achieve
diversity using less extreme means



Harvard College: race a factor, but not determinative
All pertinent “diversity” elements must be considered
Some attention to quantity ok, but not rigid quotas
 Less harmful to “innocent” (rejected) applicant
Bottom line of Powell opinion: Race may be a factor, but not
a decisive one (soft Affirmative Action ok, but no quotas)
Spring 2005
Con Law II
11
UC Regents v. Bakke
(1978)
Brennan concurrence


“Color-blind” constitution is aspiration, not real
De jure racial separation ended only 24 yrs ago
 No meaningful desegregation in California schools
until Serrano v. Priest (1971, 1976, 1977)
 Accounts for systemic, chronic underrepresentation

Would adopt mid-level (heightened) scrutiny
 “substantially related to important objectives”
 Because “benign” discrimination can mask invidious
 Ending de facto discrimination would be ok
Spring 2005
Con Law II
12
UC Regents v. Bakke
(1978)
Marshall concurrence/dissent

The same constitution
 that once tolerated (even required) de jure discrimi-


nation, and now permits de facto discrimination
 prohibits effective means to overcome it
Can this be? Undoing the
Wholingering
are the victims
here?
effects of de facto
discrimination
Racism is so pervasive
that individual
blacks don’t
is unfair
to whites?
need to prove themselves victims of race bias
Black AA on different footing than other races
Bottom line: Constitution tolerates de facto discrimination;
now it also forbids its elimination (by race sensitive means)
Spring 2005
Con Law II
13
UC Regents v. Bakke
(1978)
Stevens concurrence/dissent


Decide case on narrower statutory ground
Title VI prohibits recipient of federal funds
to discriminate on basis of race
Spring 2005
Con Law II
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UC Regents v. Bakke
(1978)
Counting heads:



Powell (plurality) – 1
Brennan (concur) – 4
Stevens (concur) – 4
Powell + Stevens4
= judgment
Powell + Brennan4
= holding
Hopwood v. Texas (5th Cir. 1996)


Powell plurality no longer good law
Diversity not a compelling state interest
 AA per se invalid

Reversed by Grutter v. Bollinger (2004)
 Lower courts cannot predict overruling of precedent
Spring 2005
Con Law II
15
Richmond v. J.A. Croson
(1989)
City construction set-aside (30% MBE)
can’t undo
Richmond


50% black
.67% prime contracts to minorities
Why the disparity?




this w/ AA
can undo
this if City
admits
De facto discrimination
Subtly
racist?
Lingering effects of de jure discrimination
by City
Blacks don’t want to be contractors
Blacks not qualified to be contractors
Spring 2005
Con Law II
Not so
subtle !
16
Richmond v. J.A. Croson
(1989)
ENDS: Remedying past discrimination

Still
true?
Any level of gov’t can remedy own de jure disc.
 Contemporaneous findings are required

Congress can remedy de facto discrimination
 Because of special const’l power to enforce 14th amd

State can also remedy de facto discrimination,
 But only if it is complicit (as “passive participant”)

Scalia
dissents
on this

Did more than merely tolerate private discrimination
How far short of “state action” is unclear from opinion
 Example? Dept. Public Works requires bank-issued
construction bond, but banks won’t issue to black firms
 Detailed findings are required here too

Spring 2005
Even in the seat of the Confederacy?
Con Law II
17
Richmond v. J.A. Croson
(1989)
ENDS: Remedying past discrimination

Absent complicity, states can’t remedy de facto
 leads to race norming
 no telling what a non-discriminatory mix would be


sheer speculation how many black contractors absent bias
maybe blacks want to be something else (football players?)
 Each disadvantaged group would claim remediation

Leads to rule (or allowance) of substantive equality
 Discrimination in construction trades can’t be
undone by AA


Spring 2005
Other means? anti-discrimination laws
Is this realistic in construction trades, or anywhere?
Con Law II
18
Richmond v. J.A. Croson
(1989)
MEANS:


Even where compelling ends found (e.g., past
de jure discrimination)
State must use narrowest means available
 Must demonstration that race-neutral means are
unavailing


E.g., preferences or subsidies for small businesses
Quotas (set-asides) are never necessary
 Small business preferences may have effect of
increasing minority participation, but not de jure
 Example: After Prop. 209, UC changed admission
system to admit top 4% of each high school in state

Spring 2005
Unconst. AA, or permissible race-neutral means?
Con Law II
19
Richmond v. J.A. Croson
(1989)
Scalia (concurrence/dissent)



Only permissible ENDS is to provide remedy to
actual victims of de jure discrimination
Group remedies never permitted
Does this approach perpetuate or remediate
discrimination in America?
Bottom line: Race discrimination is a problem of
the past; AA is not needed to achieve equality
Spring 2005
Con Law II
20
Congressional AA programs
Adarand Constructors v. Pena (1995) [not
assigned]

Congressional AA programs also subject to
Strict Scrutiny
 overrules Metro Broadcasting v. FCC (1990)
 Thomas replaces Marshall



Spring 2005
“Laws designed to subjugate a race” and AA programs
designed to “foster some current notion of equality” are
“morally and constitutionally equivalent”
“Racial paternalism and its unintended consequences can
be as poisonous & pernicious as any other discrimination”
“These programs stamp minorities with a badge of
inferiority”
Con Law II
21
Racial Paternalism ?
Beneficiary of AA in
high school,
college, law school,
DC Court of
Appeals, and
Supreme Court
Spring 2005
Con Law II
22
Spring 2005
Con Law II
23
Grutter v. Bollinger
(2003)
Graduating class
Univ of Michigan
Law School, 1886
Spring 2005
Con Law II
24
Grutter v. Bollinger
(2003)
SCRUTINY: Strict
ENDS: Successful students & ed experience


success in law school
success in practice of law
 contributing in diverse ways to well being of others
MEANS:

Admissions criteria
 LSAT score
 UG-GPA
 Soft variables

Spring 2005
essays, recommendations, major, legacy, diversity
 geographic, economic, racial/ethnic
Con Law II
25
Grutter v. Bollinger
(2003)
SCRUTINY: Strict
ENDS: Successful students & ed experience


success in law school
success in practice of law
 contributing in diverse ways to well being of others
MEANS:

Admissions criteria
 LSAT score
 UG-GPA
 Soft variables

Spring 2005
How good are these as predictors?
Are they racially discrminatory?
essays, recommendations, major, legacy, diversity
 geographic, economic, racial/ethnic
Con Law II
26
Bar Pass Correlation - LSAT
Pass Rate
All Students Graduating (year hidden)
Pass Rate by LSAT
100.0%
90.0%
80.0%
70.0%
60.0%
50.0%
40.0%
30.0%
20.0%
10.0%
0.0%
87.3%
1
89.6%
2
78.6%
3
79.6%
4
83.8%
68.1%
5
72.2%
6
Decile
Correlation: .19 .13
Spring 2005
Con Law II
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65.8%
66.7%
8
9
54.8%
10
Eventual Pass
1st Time Pass
27
Bar Pass Correlation - UGPA
Pass Rate
All Students Graduating (year hidden)
Pass Rate by Undergraduate GPA
100.0%
90.0%
80.0%
70.0%
60.0%
50.0%
40.0%
30.0%
20.0%
10.0%
0.0%
77.1%
79.1%
1
2
77.7%
80.0%
3
4
70.3%
66.7%
72.6%
76.8%
78.7%
5
6
7
8
9
Decile
Correlation: .05 .05
Spring 2005
Con Law II
66.1%
10
Eventual Pass
1st Time Pass
28
Grutter v. Bollinger
(2003)
SCRUTINY: Strict
ENDS: Successful students & ed experience


success in law school
success in practice of law
 contributing in diverse ways to well being of others
MEANS:

Admissions criteria
 LSAT score
 UG-GPA
 Soft variables

Spring 2005
essays, recommendations, major, legacy, diversity
 geographic, economic, racial/ethnic
Con Law II
29
The Advantage of Legacy
Harvard Law School, Class of 1895
Spring 2005
Con Law II
30
The Advantage of Legacy
Boston University Law School 1903
Spring 2005
Con Law II
31
The Advantage of Legacy
Northeastern University School of Law
Spring 2005
Con Law II
32
The Advantage of Legacy
University of West
Virginia Law School
Con Law II
33
Spring 2005
The Advantage of Legacy
University of Miami
Con Law II Law School 192934
Spring 2005
The Advantage of Legacy
Con Law II
Stanford University
Law School 1953
Spring 2005
35
The Advantage of Legacy
Columbia
University
Law School
1923
Spring 2005
Con Law II
36
The Advantage of Legacy
Columbia
University
Law School
1923
Paul Robeson
Spring 2005
Con Law II
37
Grutter v. Bollinger
(2003)
SCRUTINY: Strict
ENDS: Successful students & ed experience


success in law school
success in practice of law
 contributing in diverse ways to well being of others
MEANS:

Admissions criteria
 LSAT score
 UG-GPA
 Soft variables

Spring 2005
NB: This is the
only factor that
is subject to SS.
Others subject
only to RB
essays, recommendations, major, legacy, diversity
 geographic, economic, racial/ethnic
Con Law II
38
Grutter v. Bollinger
(2003)
Diversity as Compelling End

Defer to UM’s judgment that
diversity yields educational benefits
 Still valid after Sander study?
 Academic Freedom?
Race-conscious factors as necessary Means

Race -> critical mass -> diverse student body
-> “cross-racial understanding” -> “diffusion of
knowledge” and professional responsibility
 What significance that many US businesses have
own “diversity recruitment” programs?

Law schools are training grounds for politicians
Spring 2005
Con Law II
39
The Benefits of Legacy
Yale University Law School 1966
Gerald Ford, Cyrus Vance, Sargent Shriver,
Potter Stewart, Byron White, William Scranton
Spring 2005
Con Law II
40
Grutter v. Bollinger
(2003)
Race-conscious factors as necessary Means

“Narrow-tailoring”
 No quotas (fixed number, free from competition)
 Race can be used as a “plus” (1 of many factors)


Spring 2005
Must be individualized, as part of wholistic assessment
Can’t work automatically to select based on race
Con Law II
41
Factor
S.Ct. invalidates
Undergrad AA
policy because
race+ factors are
too mechanical;
not individualized
Spring 2005
Con Law II
Points
GPA
80
School
10
Curric
8
SAT
12
Geogr.
10
Legacy
4
Essay
1
Personal
5
Misc
20
TOTAL
150
42
The Myth of Meritocracy
Spring 2005
Con Law II
43
Grutter v. Bollinger
(2003)
Race-conscious factors as necessary Means

“Narrow-tailoring”
 No quotas (fixed number, free from competition)
 Race can be used as a “plus” (1 of many factors)



Must be individualized, as part of wholistic assessment
Can’t work automatically to select based on race
Race-Neutral Means
 Lottery?
 Percentage plans

Time-limited
 Sunset provisions and periodic review
 Continuing examination of other means
 in 25 years … race-based admission unnecesary?
Spring 2005
Con Law II
44
Grutter v. Bollinger
(2003)
Ginsburg (concurrence)

De facto and de jure race bias still exists
 hopefully (but not sure), need for AA will sunset
Scalia (dissent) [Rehnquist]


Michigan scheme disguised race norming
Diversity is not compelling (not even tested)
 A lesson of life, not of law
Thomas (dissent)

Public law-school is not a compelling interest
 Much less an elite one (lottery system would work)

Leave us alone
Spring 2005
Con Law II
45
Grutter v. Bollinger
(2003)
Thomas (dissent)

Leave us alone
 Racial heterogeneity impairs learning among blacks
 AA stamps minorities w/ badge of inferiority

Would racial homogeneity be constitutional?
 Sex homogeneity? VMI case

Any difference between exclusion & inclusion?
 Not to Thomas: can’t tell whether AA helps or hurts
Kennedy (dissent)

Majority fails to apply SS
 Even if diversity is compelling ENDS, the MEANS are
not scrutinized; they are disguised race norming
Spring 2005
Con Law II
46
Future of AA
Race-based AA still subject to SS

Except as targeted remedial measure, or
“soft factor” in higher ed, unlikely to survive.
Other AA programs unaffected
Spring 2005
Con Law II
47
Grutter v. Bollinger
(2003)
Admission statistics
Spring 2005
Con Law II
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