AMERICAN HERITAGE
SCHOLARSHIP SERIES
Topic: “Affirmative Action Admissions Programs in
publicly funded institutions of higher education
(colleges/universities)”
Speaker: William Broderick-Villa
Attorney with Curtis Legal Group
September 25, 2013
William Broderick-Villa
Curtis Legal Group
209-521-1800
1300 K Street
Modesto, CA 95354
WBroderick-Villa@CurtisLegalGroup.com
Curtis Legal Group attorney William Broderick-Villa received his Juris Doctor from
Georgetown University Law Center in Washington DC, where he served as the President
of the Student Bar Association. During law school, Mr. Broderick-Villa interned for the
Court of Appeals of Maryland (Maryland’s equivalent of California’s Supreme Court) for
Judge Sally Adkins.
Mr. Broderick-Villa received his Bachelor’s degree from the University of Southern California
(USC). Prior to law school Mr. Broderick-Villa was a high school teacher at Waterford
High School where he taught primarily Math but also History and Academic Decathlon and
served as the Academic Decathlon coach. Mr. Broderick-Villa is involved in education and
serves or has served on several education boards including the Ag In Motion Board and
the American Heritage Scholarship Committee. Prior to law school William was also
involved in local politics. He served first on the Waterford City Council and then as the
Mayor of Waterford.
Opening
(Right Hand/Left Hand warm up)
•
•
•
•
•
•
Plan to attend college?
Any Giants baseball fans?
Any A’s baseball fans?
Any right handed people?
Any Cricket fans?
Opposed to discrimination?
Outline
I.
II.
III.
IV.
V.
VI.
VII.
The Fourteenth Amendment in 14 minutes
Higher Education
Diversity as a Virtue
Group Identity
Apples, Oranges, and Common Metrics
Affirmative Action Cases, Summary of Arguments
Materials/Questions/Thanks
"All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection
of the laws."
Fourteenth Amendment to the Constitution, Section 1.
Citizenship Clause
"All persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and of the
State wherein they reside.
Privileges or
Immunities
Clause
No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States;
Due Process
Clause
nor shall any State deprive any person of life,
liberty, or property, without due process of
law;
Equal Protection
Clause
nor deny to any person within its jurisdiction the
equal protection of the laws.“
Fourteenth Amendment to the Constitution,
Section 1.
Citizenship Clause
"All persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and of the
State wherein they reside.
Privileges or
Immunities
Clause
No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States;
Due Process
Clause
nor shall any State deprive any person of life,
liberty, or property, without due process of
law;
Equal Protection
Clause
nor deny to any person within its jurisdiction the
equal protection of the laws.“
Fourteenth Amendment to the Constitution,
Section 1.
Equal Protection Clause
Sounds good. How equal is equal?
“There is no such thing as a law that treats
everyone the same. Every law discriminates.”
--Viet Dinh
Speeding laws…
Attorney licensing act…
Probate Code…
Cigarette Tax…
Minor laws (carding, voting, contracts, etc)…
MICRA…
Medical Injury Compensation Reform Act (1975)
dis·crim·i·nate
\dis-kri-mə-nāt\
dis·crim·i·nat·ed
dis·crim·i·nat·ing
"Discriminate." Merriam-Webster.com. Merriam-Webster, n.d. Web. 10 Sept. 2013.
<http://www.merriam-webster.com/dictionary/discriminate>.
Definition of
transitive verb
1
a:
b:
to mark or perceive the distinguishing or peculiar features of
distinguish, differentiate <discriminate hundreds of colors>
2
a:
to distinguish by discerning or exposing differences;
especially : to distinguish from another like object
intransitive verb
1
a:
b:
to make a distinction <discriminate among historical sources>
to use good judgment
2
a:
to make a difference in treatment or favor on a basis other than
individual merit <discriminate in favor of your friends>
<discriminate against a certain nationality>
Equal Protection Clause
Sounds good. How equal is equal?
“All animals are equal, but some animals are
more equal than others.”
--George Orwell, Animal Farm
Three (unequal) levels of “equal
protection.”
• Strict Scrutiny
Applies to Laws:
… affecting fundamental right (enumerated right);
… burdening discrete and insular minority; religious;
national; racial; alienage. Often called “suspect
classification”
• Intermediate
Scrutiny
(“Heightened
Scrutiny”)
Applies to Laws:
… relating to sex/gender; legitimacy
• Rational Basis
Default rule: Applies to all other groups.
Three (unequal) levels of “equal
protection.”
• Strict Scrutiny
• Intermediate
Scrutiny
(“Heightened
Scrutiny”)
• Rational Basis
Requires compelling governmental interest;
Law must be narrowly tailored (i.e. least
restrictive means) to achieve that interest;
Law presumed invalid; burden on government
Requires important governmental interest;
Law must be substantially related to that interest;
Law presumed invalid; b.o.p. on government
Requires only legitimate governmental interest;
Law must be rationally related to that interest
Law presumed valid; b.o.p. on challenger
• How did this tripartite system of Equal
Protection evolve?
?
1789
1791
1833
1857
1861
1863
1865
1868
1873
1896
1905
1938
1954
Constitution
Bill of Rights
Barron v. Baltimore, 32 U.S. 243 (1833)
Dred Scott v. Sandford, 60 U.S. 393 (1857)
Civil War Begins (ends in 1865)
Emancipation Proclamation
Lincoln Assassinated; 13th Amendment Ratified
14th Amendment
Slaughter-House Cases, 83 U.S. 36 (1873)
Plessy v. Ferguson, 163 U.S. 537 (1896)
Lochner v. New York, 198 U.S. 45
US v. Carolene Products Co., 304 U.S. 144 (1938)
Brown v. Board of Education, 347 U.S. 483 (1954)
1789
1791
1833
1857
1861
1863
1865
1868
1873
1896
1905
1938
1954
Constitution
Bill of Rights
Barron v. Baltimore, 32 U.S. 243 (1833)
Dred Scott v. Sandford, 60 U.S. 393 (1857)
Civil War Begins (ends in 1865)
Emancipation Proclamation
Lincoln Assassinated; 13th Amendment Ratified
14th Amendment
Slaughter-House Cases, 83 U.S. 36 (1873)
Plessy v. Ferguson, 163 U.S. 537 (1896)
Lochner v. New York, 198 U.S. 45
US v. Carolene Products Co., 304 U.S. 144 (1938)
Brown v. Board of Education, 347 U.S. 483 (1954)
1789
1791
1833
1857
1861
1863
1865
1868
1873
1896
1905
1938
1954
Constitution
Bill of Rights
Barron v. Baltimore, 32 U.S. 243 (1833)
Dred Scott v. Sandford, 60 U.S. 393 (1857)
Civil War Begins (ends in 1865)
Emancipation Proclamation
Lincoln Assassinated; 13th Amendment Ratified
14th Amendment
Slaughter-House Cases, 83
U.S.
36 (1873)
Chief
Justice
John Marshall
Plessy v. Ferguson, 163 U.S.
held537
that(1896)
the first ten
Lochner v. New York, 198“amendments
U.S. 45
contain no
expression
indicating
an Co.,
intention
to apply
to
US
v. Carolene
Products
304 U.S.
144 them
(1938)
the State
governments.
This court
cannot
apply
Brown
v. Board
of Education,
347 U.S.
483so
(1954)
them.”
Barron v. Baltimore, 32 U.S. 243, 250.
1789
1791
1833
1857
1861
1863
1865
1868
1873
1896
1905
1938
1954
Constitution
Bill of Rights
Barron v. Baltimore, 32 U.S. 243 (1833)
Dred Scott v. Sandford, 60 U.S. 393 (1857)
Civil War Begins (ends in 1865)
Emancipation Proclamation
Lincoln Assassinated; 13th Amendment Ratified
14th Amendment
Slaughter-House Cases, 83 U.S. 36 (1873)
Plessy v. Ferguson, 163 U.S. 537 (1896)
Lochner v. New York, 198 U.S. 45
US v. Carolene Products Co., 304 U.S. 144 (1938)
Brown v. Board of Education, 347 U.S. 483 (1954)
1789
1791
1833
1857
1861
1863
1865
1868
1873
1896
1905
1938
1954
Constitution
Bill of Rights
Barron v. Baltimore, 32 U.S. 243 (1833)
Dred Scott v. Sandford, 60 U.S. 393 (1857)
Civil War Begins (ends in 1865)
Emancipation Proclamation
Lincoln Assassinated; 13th Amendment Ratified
14th Amendment
Slaughter-House Cases, 83 U.S. 36 (1873)
Plessy v. Ferguson, 163 U.S. 537 (1896)
Lochner v. New York, 198 U.S. 45
US v. Carolene Products Co., 304 U.S. 144 (1938)
Brown v. Board of Education, 347 U.S. 483 (1954)
1789
1791
1833
1857
1861
1863
1865
1868
1873
1896
1905
1938
1954
Constitution
Bill of Rights
Barron v. Baltimore, 32 U.S. 243 (1833)
Dred Scott v. Sandford, 60 U.S. 393 (1857)
Civil War Begins (ends in 1865)
Emancipation Proclamation
Lincoln Assassinated; 13th Amendment Ratified
14th Amendment
Slaughter-House Cases, 83 U.S. 36 (1873)
Plessy v. Ferguson, 163 U.S. 537 (1896)
Lochner v. New York, 198 U.S. 45
US v. Carolene Products Co., 304 U.S. 144 (1938)
Brown v. Board of Education, 347 U.S. 483 (1954)
1789
1791
1833
1857
1861
1863
1865
1868
1873
1896
1905
1938
1954
Constitution
Bill of Rights
Barron v. Baltimore, 32 U.S. 243 (1833)
Dred Scott v. Sandford, 60 U.S. 393 (1857)
Civil War Begins (ends in 1865)
Emancipation Proclamation
Lincoln Assassinated; 13th Amendment Ratified
14th Amendment
Slaughter-House Cases, 83 U.S. 36 (1873)
Plessy v. Ferguson, 163 U.S. 537 (1896)
Lochner v. New York, 198 U.S. 45
US v. Carolene Products Co., 304 U.S. 144 (1938)
Brown v. Board of Education, 347 U.S. 483 (1954)
1789
1791
1833
1857
1861
1863
1865
1868
1873
1896•
•
1905•
1938•
1954
Constitution
Bill of Rights
Barron v. Baltimore, 32 U.S. 243 (1833)
Dred Scott v. Sandford, 60 U.S. 393 (1857)
Civil War Begins (ends in 1865)
Emancipation Proclamation
Lincoln Assassinated; 13th Amendment Ratified
14th Amendment
Slaughter-House Cases, 83 U.S. 36 (1873)
Citizenship
Plessy v. Clause
Ferguson, 163 U.S. 537 (1896)
Privileges or Immunities Clause
Lochner v. New York, 198 U.S. 45
Due Process Clause
US v.Protection
CaroleneClause
Products Co., 304 U.S. 144 (1938)
Equal
Brown v. Board of Education, 347 U.S. 483 (1954)
1789 Constitution
1791 Bill of Rights
1833 Barron v. Baltimore, 32 U.S. 243 (1833)
1857 Dred Scott v. Sandford, 60 U.S. 393 (1857)
1861 Civil War Begins (ends in 1865)
1863 Emancipation Proclamation
1865 Lincoln Assassinated; 13th Amendment Ratified
1868 14th Amendment
1873 Slaughter-House Cases, 83 U.S. 36 (1873)
1896 Plessy v. Ferguson, 163 U.S. 537 (1896)
1905 Lochner v. New York, 198 U.S. 45
1938 US v. Carolene Products Co., 304 U.S. 144 (1938)
Justice Samuel
Justice Stephen Field
Miller
1954 Brown v. Board of Education, 347 U.S. 483 (1954)
California Trivia (not on test)
David Broderick (no relation)
U.S. Senator from California
Free Soil Democrat
Death in 1859 at the hands of
California Chief Justice tipped
the state towards joining the
Civil War on behalf of the
Union
Died in San Francisco
Justice Stephen Field
First Californian on U.S.
Supreme Court
Formerly the 5th Chief Justice
of California Supreme
Court
Appointed by Lincoln
His body guard shot and killed
California’s 4th Chief
Justice, David S. Terry, in
Lathrop, in 1889
In re Neagle
Chief Justice David S. Terry
The 4th Chief Justice of California
Supreme Court
Buried in Stockton
Pro-slavery Democrat
Shot and killed his former friend /
turned political rival, U.S.
Senator David Broderick
1789
1791
1833
1857
1861
1863
1865
1868
1873
1896
1905
1938
1954
Constitution
Bill of Rights
Barron v. Baltimore, 32 U.S. 243 (1833)
Dred Scott v. Sandford, 60 U.S. 393 (1857)
Civil War Begins (ends in 1865)
Emancipation Proclamation
Lincoln Assassinated; 13th Amendment Ratified
14th Amendment
Slaughter-House Cases, 83 U.S. 36 (1873)
Plessy v. Ferguson, 163 U.S. 537 (1896)
Lochner v. New York, 198 U.S. 45
US v. Carolene Products Co., 304 U.S. 144 (1938)
Brown v. Board of Education, 347 U.S. 483 (1954)
Citizenship Clause
"All persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and of the
State wherein they reside.
Privileges or
Immunities
Clause
No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States;
Slaughtered by Slaughterhouse Five
Due Process
Clause
nor shall any State deprive any person of life,
liberty, or property, without due process of
law;
Equal Protection
Clause
nor deny to any person within its jurisdiction the
equal protection of the laws.“
Replaced by “Separate but Equal” farce in Plessy v. Ferguson
Fourteenth Amendment to the Constitution,
Section 1.
1789
1791
1833
1857
1861
1863
1865
1868
1873
1896
1905
1938
1954
Constitution
Bill of Rights
Barron v. Baltimore, 32 U.S. 243 (1833)
Dred Scott v. Sandford, 60 U.S. 393 (1857)
Civil War Begins (ends in 1865)
Emancipation Proclamation
Lincoln Assassinated; 13th Amendment Ratified
14th Amendment
Slaughter-House Cases, 83 U.S. 36 (1873)
Plessy v. Ferguson, 163 U.S. 537 (1896)
Lochner v. New York, 198 U.S. 45
US v. Carolene Products Co., 304 U.S. 144 (1938)
Brown v. Board of Education, 347 U.S. 483 (1954)
1789
1791
1833
1857
1861
1863
1865
1868
1873
1896
1905
1938
1954
Constitution
Bill of Rights
Barron v. Baltimore, 32 U.S. 243 (1833)
Dred Scott v. Sandford, 60 U.S. 393 (1857)
Civil War Begins (ends in 1865)
Emancipation Proclamation
Lincoln Assassinated; 13th Amendment Ratified
14th Amendment
Slaughter-House Cases, 83 U.S. 36 (1873)
Plessy v. Ferguson, 163 U.S. 537 (1896)
Lochner v. New York, 198 U.S. 45
US v. Carolene Products Co., 304 U.S. 144 (1938)
Brown v. Board of Education, 347 U.S. 483 (1954)
1938 US v. Carolene Products Co., 304 U.S. 144 (1938)
U.S. Supreme Court upholds the constitutionality of The Filled Milk Act, 42 Stat.
1486, which Congress passed in 1923 to regulate certain dairy products.
Decision signals end of Lochner era scrutiny as applied to economic
regulations.
FOOTNOTE 4: Carolene Products is most famous for FN 4, which sets forth a
framework for varying levels of Equal Protection analysis and scrutiny
(i.e. strict scutiny for laws affecting discrete and insular minorities, or
infringing on fundamental rights) that has been adopted by the Court and
is still used today.
The most famous footnote in Supreme Court history, FN 4 has been the subject
of numerous scholarly journals and cited in many court decisions since
1938 (you can even Google “Footnote 4”).
1789
1791
1833
1857
1861
1863
1865
1868
1873
1896
1905
1938
1954
Constitution
Bill of Rights
Barron v. Baltimore, 32 U.S. 243 (1833)
Dred Scott v. Sandford, 60 U.S. 393 (1857)
Civil War Begins (ends in 1865)
Emancipation Proclamation
Lincoln Assassinated; 13th Amendment Ratified
14th Amendment
Slaughter-House Cases, 83 U.S. 36 (1873)
Plessy v. Ferguson, 163 U.S. 537 (1896)
Lochner v. New York, 198 U.S. 45
US v. Carolene Products Co., 304 U.S. 144 (1938)
Brown v. Board of Education, 347 U.S. 483 (1954)
California Trivia (not on test)
Succeeded as Chief Justice of the United
States by Warren Earl Burger, 15th
U.S. Chief Justice (no relation)
Chief Justice of the United States Earl Warren
First Californian to become Chief Justice of the
United States (14th U.S. Chief Justice)
Formerly the 30th Governor of California
Wrote Brown v. Board of Education, 9-0 opinion
1789
1791
1833
1857
1861
1863
1865
1868
1873
1896
1905
1938
1954
Constitution
Bill of Rights
Barron v. Baltimore, 32 U.S. 243 (1833)
Dred Scott v. Sandford, 60 U.S. 393 (1857)
Civil War Begins (ends in 1865)
Emancipation Proclamation
Lincoln Assassinated; 13th Amendment Ratified
14th Amendment
Slaughter-House Cases, 83 U.S. 36 (1873)
Plessy v. Ferguson, 163 U.S. 537 (1896)
Lochner v. New York, 198 U.S. 45
US v. Carolene Products Co., 304 U.S. 144 (1938)
Brown v. Board of Education, 347 U.S. 483 (1954)
1789
1791
1833
1857
1861
1863
1865
1868
1873
1896
1905
1938
1954
Constitution
Bill of Rights
Barron v. Baltimore, 32 U.S. 243 (1833)
Dred Scott v. Sandford, 60 U.S. 393 (1857)
Civil War Begins (ends in 1865)
Emancipation Proclamation
Lincoln Assassinated; 13th Amendment Ratified
14th Amendment
Slaughter-House Cases, 83 U.S. 36 (1873)
Plessy v. Ferguson, 163 U.S. 537 (1896)
Lochner v. New York, 198 U.S. 45
US v. Carolene Products Co., 304 U.S. 144 (1938)
Brown v. Board of Education, 347 U.S. 483 (1954)
Question: Why are the following
framed in the negative?
15th Amendment: The right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any State on account of race,
color, or previous condition of servitude.
19th Amendment: The right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any State on account of
sex….
24th Amendment: The right of citizens of the United States to vote in any
primary or other election for President or Vice President, for electors for
President or Vice President, or for Senator or Representative in Congress,
shall not be denied or abridged by the United States or any State by reason
of failure to pay any poll tax or other tax.
26th Amendment: The right of citizens of the United States, who are eighteen
years of age or older, to vote shall not be denied or abridged by the United
States or by any State on account of age.
14 minutes?
II. Higher Education
• Education Important to founding of Nation, even prior to
Constitution (written 1787, ratified 1789)
• Continental Congress: Land Ordinance of 1785
• One square mile of
every 36 set aside
for education
(Section 16)
• 2.78% education set-aside
Each section 640
acres, or 1 mile square
Alexis de Tocqueville
By 1830s, de Tocqueville wrote
a friend in Paris that “[t]he
effort made in this country to
spread instruction is truly
prodigious. The universal
and sincere faith that they
profess here in the
efficaciousness of education
seems to me one of the most
remarkable features of
America…”
Source:
The College Payoff. Georgetown University Center on Education and the Workforce (CEW), Carnervale/Cheah/Rose, 2011
http://cew.georgetown.edu/collegepayoff/
Beware!!!
• The “My uncle / my cousin” fallacy
Rich Uncle Dropout
Poor Cousin Booksmarts
Ergo, statistics lie and college is a waste of time
Q.E.D.
$3,648,000
$2,268,000
$3,252,000
$2,671,000
$1,727,000
$973,000
Source:
$1,304,000
$1,547,000
The College Payoff. Georgetown University Center on Education and the Workforce (CEW), Carnervale/Cheah/Rose, 2011
http://cew.georgetown.edu/collegepayoff/
My uncle
My cousin
Source:
The College Payoff. Georgetown University Center on Education and the Workforce (CEW), Carnervale/Cheah/Rose, 2011
http://cew.georgetown.edu/collegepayoff/
Source:
The College Payoff. Georgetown University Center on Education and the Workforce (CEW), Carnervale/Cheah/Rose, 2011
http://cew.georgetown.edu/collegepayoff/
Things to consider…
• College spaces are limited
• Those with college degrees on average earn
more than those without
• Publicly funded institutions of higher education
are strapped for cash, and must decide whom to
admit and whom to reject
• How should society allocate such a valuable
resource?
• If certain groups are underrepresented, should
society intervene?
Dr. Abbott Lawrence Lowell,
President of Harvard 1909-1933
•
History of explicit racism
•
Dr. Lowell tried to limit Jewish enrollment
•
Tried to prohibit African American students from
living in Freshman dorms (otherwise mandatory
at Harvard)
•
Successfully implemented modern testing and
applications system still in use today (See Justice
Thomas’ critique in Supreme Court decisions and
suggested documents on Curtis Legal Group
website)
See article:
The Chosen: The Hidden History of Admission and
Exclusion at Harvard, Yale, and
Princeton. Article by Jerome Karabel. Excerpt
from Higher Education and the Law, 588-91,
Foundation Press, Areen, 2009
Curtis Legal Group website
Today colleges celebrate
diversity…
…and being
outdoors.
III. Diversity as a Virtue
Trustees have a fiduciary duty to diversify.
• California Probate Code
§ 16048. In making and implementing
investment decisions, the trustee has a duty to diversify the
investments of the trust unless, under the circumstances, it is
prudent not to do so.
Crops lacking diversification
are susceptible to disease.
Irish Potato Famine
1845-1852
exacerbated by overreliance
on one variety of potato,
the Irish Lumper varietal
Ancient Romans valued uniformity and pragmatism.
So why are brick arches embedded within flat walls?
Value of diversity in Roman architecture?
Pantheon Backside
Inca walls
Another example of strength through diversity
Lack of genetic diversity
Inbreeding within English Monarch/ among European royalty
Case Study: Queen Victoria and Hemophilia
Is diversity good in the realm of
ideas as well?
Groupthink
“…The more amiability and esprit
de corps there is among the
members of a policy-making
ingroup, the greater the danger
that independent critical thinking
will be replaced by groupthink,
which is likely to result in
irrational and dehumanizing
actions directed against
outgroups.”
--Irving Janis, Research
Psychologist
Bay of Pigs Fiasco
Corporate boards
America’s Strength as diversity?
• E PLURIBUS UNUM
“From many, one”
• Melting pot metaphor
• Salad bowl metaphor
Dr. Clark Kerr
President of the University of California, 1958-1967
The Uses of the University,
Observation on Institutions over 500
years old
The Uses of the University, 95 (5th
ed. 2001) quote from Alfred North
Whitehead
IV. Group Identity
Gary Larson, The Far Side
Proxies
If diversity of opinions/ideas is a goal, does diversity of the
following help colleges and universities achieve that goal?
•
•
•
•
•
•
•
Ethnic minorities?
Religious minorities?
Economic minorities?
Gender minorities?
Geographic minorities?
Disability/Sexual Orientation/Age, other minorities?
Handedness? (dexterous/sinister and historical prejudice)?
Beware!!!
• The “My uncle / my cousin” fallacy
Uncle S.F. Giantslayer
Cousin L.A. Giantfan
Ergo, group / geographic identity is wrong
Q.E.D.
V. Apples, Oranges, and Common
Metrics
When discussing fruit, Ximena, Yesenia and Zelda
ranked their favorites (as between Apples,
Bananas, and Cherries) as follows:
1st
2nd
3rd
X
a
b
c
Y
b
c
a
Z
c
a
b
A majority prefer Apples over Bananas
(i.e. Ximena and Zelda, or 2/3 or 66.67%)
A majority prefer Bananas over Cherries
(i.e. Ximena and Yesenia, or 2/3 or 66.67%)
A majority prefer Cherries over Apples
(i.e. Yesenia and Zelda, or 2/3 or 66.67%)
U.C. Fairfield has room for two more students.
Here’s how they rank:
1st
2nd
3rd
Math
Abe
Bob
Chris
English
Bob
Chris
Abe
History
Chris
Abe
Bob
If you admit Abe and Bob, then Chris will complain:
“No fair, I beat Abe in 2 out of 3 subjects.”
(i.e. English and History)
If you admit Bob and Chris, then Abe will complain:
“No fair, I beat Bob in 2 out of 3 subjects.”
(i.e. Math and History)
If you admit Abe and Chris, then Bob will complain:
“No fair, I beat Chris in 2 out of 3 subjects.”
(i.e. Math and English)
Abe
Chris
Bob
**Highly recommended**
For a more complete (and easily readable)
treatment of “Social Choice Theory,” See
article:
The Paradoxes of Democracy
Excerpt from:
Excursions in Modern Mathematics, 2nd
Edition, Prentice-Hall, Peter
Tannenbaum, 1995.
Curtis Legal Group website
Academic Decathlon
Two runners:
Runner on right has excellent form and finishes just ahead of runner on left.
Runner on left has poor form, and can’t quite seem to catch runner on right.
Q:
A:
You’re the coach, whom do you choose? (Show of hands)
You choose the runner with poor form, because his performance
can be improved with technique and training. Faster runner has perfect
form and is performing at potential. No room for improvement.
VI. Affirmative Action Cases,
Summary of Arguments
Only four Supreme Court cases that deal with affirmative action
programs in publicly funded institutions of higher education
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Bakke
Gratz
Grutter
Fisher
(1978)
(2003)
(2003)
(2013) so recent it doesn’t have a page number yet in
the United States Reports
This is manageable: Everyone can read these cases. Links to
on the Curtis Legal Group website.
Note:
all are
American Heritage Scholarship Committee waited to release
this year’s prompt until Fisher was decided
Regents of Univ. of California v. Bakke, 438
U.S. 265 (1978)
Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978)
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UC Davis Medical School
Opened 1968
50 students (94% white)
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Increased enrollment in 1971 to100 students
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3 Asians
No African Americans
No Mexican Americans
No Native Americans
Of these, 16 seats were set aside for special admission
Remaining 84 seats were under general admission
Six opinions; no single opinion carried majority of Court
Judgment: Bakke admitted
Harvard model, cited approvingly by Justice Powell, quickly becomes national model
Justice Powell
Stevens
C.J. Burger
Rehnquist
Stewart
Justice Brennan
White
Marshall
Blackmun
Pay particular attention to opinions of Justice Powell, Marshall, and
Stevens
Curtis Legal Group website
Gratz v. Bollinger, 539 U.S. 244 (2003)
Gratz v. Bollinger, 539 U.S. 244 (2003)
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University of Michigan, Undergrad
Tinkered with several admissions systems
Factors considered: grades; scores; school quality; curriculum strength; geography;
alumni relationships; leadership; race
150 point system
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100-150 (Admit)
95-99 (Admit or Postpone)
90-94 (Postpone or Admit)
75-89 (Delay or Postpone)
74 and below (delay or reject)
20 points automatically awarded for membership in an underrepresented racial or
ethnic minority group
A perfect SAT score was worth 12 points
Seven opinions; Majority opinion 5-4
Automatic Point System overturned 6-3 (Breyer concurring in judgment)
Opinion:
C.J. Rehnquist
O’Connor
Scalia
Kennedy
Thomas
Pay particular attention to opinions of Chief Justice Rehnquist, Justice
Thomas concurrence, Justice Ginsburg dissent
Curtis Legal Group website
Grutter v. Bollinger, 539 U.S. 306 (2003)
Grutter v. Bollinger, 539 U.S. 306 (2003)
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University of Michigan, Law School
Admissions considered:
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Personal Statement;
Letters of Recommendation
Essay regarding contribution to Diversity
GPA
LSAT
“Soft” factors considered as well
High Score no guarantee of admission; low score no guarantee of rejection
Barbara Grutter, 3.8 GPA and 161 LSATapplied in 1996 and was waitlisted
Court Upheld Michigan Law School Admission program
Opinion:
Justice O’Connor
Stevens
Souter
Ginsburg
Breyer
Pay particular attention to opinions of Justice O’Connor, concurrence by
Ginsburg, Dissent by Scalia, Dissent by Justice Thomas (one of his most
passionate and well argued), Dissent by C.J. Rehnquist, and Dissent by
Kennedy.
Curtis Legal Group website
• Fisher v. University of Texas, 570 U.S. ___
(2013)
Fisher v. University of Texas, 570 U.S. ___ (2013)
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University of Texas
10% plan
Vacated and remanded the Fifth Circuit's ruling
Fifth Circuit failed to apply strict scrutiny
Remanded for further fact-finding
Much re-hashing of earlier arguments, punting on merits (See Scalia
concurrence).
• Details left as exercise
Opinion 7-1 Decisions:
Kennedy,
C.J. Roberts,
Scalia,
Thomas,
Breyer,
Alito,
Sotomayor
Pay particular attention to Dissent by Justice Thomas and Dissent by
Justice Ginsburg.
Curtis Legal Group website
VII. Materials / Questions / Thanks
www.CurtisLegalGroup.com
“Attorney Profiles”
“William Broderick-Villa”
“American Heritage Scholarship Series 2013 Supreme Court
decisions and suggested documents”
American Heritage
Scholarship Series 2013
Supreme Court decisions
and suggested
documents