Affirmative Action

Question 1

1) Higher ed aff’tive action (favoring based on race)

Answer 1

= SS

a) Analysis:
i) Compelling interest? diversity = good
ii) Necessary/narrowly tailored (takes race into account as little as possible)
(1) alternatives?

Question 2

2) Griffin/Green/Swann:

Answer 2

school system segregation = remedy can take race into account, whereas Bakke = remedy for societal discrimination as a whole

Question 3

3) Bakke:

Answer 3

Higher ed can take race into account BUT can’t do quotas (numerical floors); diversity is valid compelling int

a) F: quota system: 15/100 spots for minorities
b) Powell opinion (combining wings): as long as other factors taken into account, race can be one factor, but quota implies race as dispositive factor, which is uncon’l
i) liberal wing: SS only implicated for discrimination against discrete/insular minoritiesRB test
ii) conservative wing: EP clause prohibits any line-drawing based on race

Question 4

4) Grutter:

Answer 4

st interest in diversity justifies taking race into account for admissions, but means must be narrowly tailored to achieve that goal

i) diversity = comp int, BUT remedying past societal discrimination =/= comp int
b) F: UoM Law holistic determination taking race into accountcon’l
c) diversity as comp int particularized to higher ed, open Q of how much it applies in other contexts

Question 5

5) Fisher I:

Answer 5

One University has established its goal is consistent with SS (diversity = good), it has the burden of proof to prove that its means are necessary and narrowly tailored (taking race into account as little as possible to achieve goal)

Question 6

6) Fisher II:

Answer 6

meets burden that alt is not going to sufficiently meet goals; sufficiently narrow

a) F: UT holistic review taking race into accountcon’l
b) BoP: University did rigorous studies on need for holistic review that isn’t race-neutralsufficient
c) FT: Seems like SS is less strict for “positive” discrimination (aff’tive action) than it is for ‘negative’ discrimation
i) SS used to be fatal in fact, but now it doesn’t seem to be for aff’tive action