ACS Constitutional Law Reading Group
Protecting Equal Protection
Overview:
Today, many of the "active" protections of minority rights by the Court and the
Legislature are under attack. In part this may be because past affirmative action on behalf of
minorities worked so well. For instance, today there are 41 members of the Congressional Black
Caucus and we have an African American president. This would have been unthinkable 50 years
ago, and would never have occurred without the Voting Rights Act. Yet the fact that it has
occurred lends at least some credence to the arguments Chief Justice Roberts hinted at in
NAMUDNO and the notion that the VRA is "no longer needed." Eight years ago in Grutter v.
Bollinger, Justice O'Connor suggested that maybe within "25 years" the affirmative action plan
upheld would be no longer needed, and therefore no longer constitutional. Recently the
Charlotte-Mecklenburg school district's integration plan, a model for post-Brown integration,
was dismantled by a Tea Party school board as outdated. And as affirmative action programs
and the like have expanded beyond merely racial categories, there has also been push back from
those who believe our society is already equal enough and that such programs are fundamentally
unfair.1 Whenever a discriminated against minority group attains political power, conservatives
jurists and politicians make the argument that the group loses their prerogative for protection, no
matter how silly that argument seems to be, such as Justice Scalia's dissent in Romer v. Evans
arguing, among other things, that since gay Coloradans were generally wealthy, they were in no
need of Court protection. This “preclusion” theory, whereby newly “successful” historically
disadvantaged groups are precluded from protection, pervades our legal system and prevents
measures that seek to promote equality.
The success of decades of Civil Rights work has also allowed those who oppose such
affirmative measures to drive a wedge between white working class Americans and others. And,
indeed, while arguably society is becoming more equal on racial and gender levels, inequality is
greater now in other ways, namely economic inequality, than ever before.
Our reading group will begin by asking tough questions about what "Equal Protection"
really means. We will follow up by discussing what old measures must be preserved, how we
can work to preserve them, and asking how our old strategies for protecting Civil Rights can be
updated to current 21st Century situations. Many of us don't share the confidence that the
election of a black president signifies that the dismantling of the VRA would be acceptable.
Many of us probably share Justice Ginsburg's Grutter reticence that maybe even in 25 years
racism will still be persistent enough to warrant affirmative action. And finally, many of us
recognize that opposing arguments are less frivolous today than they once were and that, in the
Affirmative Action context, for instance, poor whites often rightfully feel they are on the short
end of the stick. Perhaps we need new methods of Equal Protection to combat new inequalities.
Syllabus:
Week 1 with Constitutional Law Professor:
Topic: General Constitutional Law
Key questions:
o "What is Equal Protection?
1
See, for instance, this Wall Street Journal op-ed by Democratic Senator Jim Webb:
http://online.wsj.com/article/SB10001424052748703724104575379630952309408.html
o Who deserves to be equally protected?
o What does "equal" mean?
Reading:
 At the discretion of the professor
Week TBD with Voting Rights Professor:
Topic: Voting Rights
Key Questions:
o Why do we need the VRA?
o How do we preserve it or update it??
o How it can be applied to groups other than African Americans?
Reading:
o At the discretion of the Professor
Week TBD with Women’s Rights Professor:
Topic: Extending Equal Protection Doctrine: Protecting Women’s Rights
Key Questions:
o How do we deal with and promote meaningful “intermediate scrutiny?”
o What social and legal mechanisms do we have for ensuring that women’s rights
are protected in the workplace and elsewhere?
o Where are we now and where and how should we go from here?
Reading:
o At the discretion of the professor.
Week TBD with LGBT Rights Professor:
Topic: LGBT Rights after the Prop 8 case, the repeal of DADT and the
Administration’s changed stance on DOMA.
Key Questions:
o Where do we stand currently, and where and how do we want to go?
o What can LGBT rights advocates learn from other Civil Rights movements?
o What can we learn about Constitutional theory from the Prop 8 case?
Potential Reading:
o At the discretion of the professor.
Week TBD with Civil Rights Professor:
Topic: Improving Race Relations
Key Questions:
o How can we continue to combat racism, both overt and subtle, in a country that is,
in theory, less overtly racist than it once was?
o What strategies do we need to move forward?
o What strategies of the past have we wrongly abandoned?
Potential Reading:
o At the discretion of the professor.
Week TBD with Immigration Law/Civil Rights Professor:
Topic: Xenophobia, Arizona, and Immigration
Key Questions:
o What can be done to stem the tide of xenophobic anti-immigrant sentiments?
o What Constitutional arguments do proponents of a more fair and just immigration
system have at their disposal?
o What can immigration rights advocates learn from other Civil Rights movements?
Potential Reading:
o Briefs in DOJ’s lawsuit against Arizona
o Sklansky, "Prop 187 & the Ghost of Thayer" (from last year)
o At the discretion of the professor.
Week TBD with Constitutional Litigation Professor:
Topic: The mechanics of Equal Protection lawsuits, class actions, and the litigation
state, and how non-traditional mechanisms can be used in civil rights enforcement2
Key Questions:
o What tools do Equal Protection advocates have at their disposal in the
Administrative state?
o How might the Wal-Mart sex discrimination case affect future equal protection
strategies?
o What legislative strategies might be needed? (Something like the Lily Ledbetter
Fair Pay Act?)
Potential Reading:
o At the discretion of the Professors
Week TBD with Education Professor:
Topic: Brown revisited, fighting for school equity post de jure segregation.
Key Questions:
o How has school equity litigation progressed post-San Antonio?
o What are some of the ways that state lawyers have litigated on behalf of school
equity?
o What approaches do we still have to promote school equality in a world without
de jure segregation and with respect not just to racial segregation but deleterious
income segregation?
o What strategies new strategies can we develop to promote school equity?
Potential Reading:
o At the discretion of the professor.