Affirmative Action - Sheet1

Question 1

“The benign purpose of compensating for social disadvantages, whether they have been acquired by reason of prior discrimination or otherwise, [cannot] be pursued by the illegitimate means of racial discrimination . . . .”

Answer 1

Richmond v. Croson (1989)Scalia (concurring):

Question 2

“[T]he fact that the implementation of a program capable of providing individualized consideration might present administrative challenges does not render constitutional an otherwise problematic system.”

Answer 2

Gratz v. Bollinger (2003)

Question 3

“Any argument that the ‘tailoring’ amounts to a set-aside, then, boils down to the claim that a plus factor of 20 points makes some observers suspicious, where a factor of 10 points might not.”

Answer 3

Gratz v. Bollinger (2003)Souter, Ginsburg (dissenting)

Question 4

“Critical mass” is just a “naked effort to achieve racial balancing.” The University does not apply the plan equally to all races—statistics support that the plan heavily favored AAs. Why is a smaller number of Hispanics relative to AAs the right amount for “critical mass” in a class of 350 students?The University wasn’t just paying “some attention” to the racial make-up of the class. The number of admitted students in each race tracked precisely with the number of applicants from that race.

Answer 4

Grutter v. Bollinger (2003)Rehnquist, with Scalia, Kennedy, Thomas (dissenting)

Question 5

“Critical mass” is just a disguise for using race as an automatic factor. Race is likely outcome determinative for the 15–20% of students who don’t have high enough numbers to get in on their own. The automatic acceptance was especially prevalent at the end of the admissions period, when the school would quickly admit minorities to meet its targeted goal. During this period, individual consideration went out the window. When the Court gives this much deference to universities, it doesn’t challenge the schools to seriously consider race-neutral alternatives.When the Court does this, I am unable to approve of classifications, even if I agree that the classification is based on diversity, which is a compelling interest.

Answer 5

Grutter v. Bollinger (2003)Kennedy (dissenting)

Question 6

“In my view, government can never have a ‘compelling interest’ in discriminating on the basis of race in order to ‘make up’ for past racial discrimination in the opposite direction.”

Answer 6

Adarand Constructors v. Pena (1995)Scalia (concurring):

Question 7

“Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators.”

Answer 7

Grutter v. Bollinger (2003)Thomas (concurring, dissenting)

Question 8

“Our jurisprudence ranks race as a ‘suspect’ category, ‘not because [race] is inevitably an impermissible classification, but because it is one which usually, to our national shame, has been drawn for the purpose of maintaining racial inequality.’ But where race is considered ‘for the purpose of achieving equality,’ no automatic proscription is in order . . . .”

Answer 8

Gratz v. Bollinger (2003)Ginsburg (dissenting)

Question 9

“These are precisely the types of statistical and testimonial evidence which, until today, this Court had credited in cases approving of race-conscious measures designed to remedy past discrimination.” “[T]he majority would require cities seeking to eradicate the effects of past discrimination within their borders to reinvent the evidentiary wheel and engage in unnecessarily duplicative, costly, and time-consuming fact-finding.”

Answer 9

Richmond v. Croson (1989)Marshall, with Brennan, Blackmun (dissenting):

Question 10

“Under our Constitution, the government may never act to the detriment of a person solely because of that person’s race . . . . . The rule cannot be any different when the persons injured by a racially biased law are not members of a racial minority.” The law also requires categorizing persons into different races, which is a suspicious mandate—the Third Reich could teach us a thing or two about how to do that.

Answer 10

Fullilove v. Klutznick (1980)Stewart (dissenting, with Rehnquist, Stevens)

Question 11

(1) Diversity promotes mutual understanding between students of different races.(2) Diversity better prepares students to enter a diverse workforce.(3) Elite minorities: Law schools supply a disproportionate the nation’s leaders, so they need to maintain high admissions standards while promoting diversity. Sweatt; also compare with hiring in the military.(4) Legitimacy for the University: The school has an interest in appearing legitimate before the citizenry, that its paths are “visibly open” to people of every race and background.

Answer 11

Grutter v. Bollinger (2003)

Question 12

(Compelling purpose): Diversity is the only compelling interest offered. “[T]he attainment of a diverse student body . . . clearly is a constitutionally permissible goal for an institution of higher education. Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body[, favoring] students who will contribute the most to the ‘robust exchange of ideas’ . . . .”

Answer 12

Regents of the Univ. of California v. Bakke (1978)Powell, with Burger, Stewart, Rehnquist, Stevens (controlling concurrence):

Question 13

(Not narrowly tailored): The quota is too rigid, forbids individualized determination and consideration of other elements of diversity. By contrast, Harvard race is deemed a “plus” but does not insulate individuals from comparison with everyone else. The Harvard plan “consider[s] all pertinent elements of diversity in light of the particular qualifications of each applicant . . . .”

Answer 13

Regents of the Univ. of California v. Bakke (1978)Powell, with Burger, Stewart, Rehnquist, Stevens (controlling concurrence):

Question 14

A state or local entity can take action to remedy identified discrimination within its jurisdiction—if there was evidence of non-minority contractors systematically excluding minority contractors, “the city could act to dismantle the closed business system by taking appropriate measures against those who discriminate on the basis of race . . . .” Only in an “extreme case” could the City use a race-based group remedy—would need extensive showing of system-wide discrimination.

Answer 14

Richmond v. Croson (1989)

Question 15

Absent “searching judicial inquiry,” there is no way to distinguish b/w a “benign” classification and an “invidious” one. We agree with Powell’s statement from Bakke that equal protection cannot mean different things to different races.

Answer 15

Richmond v. Croson (1989)(O’Connor makes these same points in Adarand)

Question 16

Classifications like this hurt minorities.The University “baits” students with the prospect of prestige and success that comes with a UM law degree—but they cannot achieve it because they are not intellectually up to the task. They are paternalistic and engender attitudes of superiority. They even hurt those AAs that get in on their own merit—the question will follow them wherever they go…were they just admitted because they were given a boost, or did they really earn it?

Answer 16

Grutter v. Bollinger (2003)Thomas (concurring, dissenting)

Question 17

Congress has special powers under § 5. There was solid evidence of past discrimination, and a group remedy was appropriate since individual remedies weren’t possible. By participating in the status quo, the federal government was essentially perpetuating a discriminatory system.

Answer 17

Fullilove v. Klutznick (1980)Burger (with White, Powell):

Question 18

Diversity is not a compelling interest. The University talks about using diversity to prepare its students for joining a diverse workforce, but being able to mix well with people from different backgrounds is not something the law school can/should/does concern itself with. There are no classes the school uses for this that students can put on their transcript. And there’s nothing the law school can teach students that they can’t learn on their own—these are life lessons, not lessons in law.

Answer 18

Grutter v. Bollinger (2003)Scalia, with Thomas (concurring, dissenting)

Question 19

Equal protection is a personal right. “Classifications based on race carry a danger of stigmatic harm.”

Answer 19

Richmond v. Croson (1989)

Question 20

Equal protection is about making individuals whole, not an entire race—”[U]nder our Constitution, there can be no such thing as a creditor or a debtor race.”

Answer 20

Adarand Constructors v. Pena (1995)Scalia (concurring):

Question 21

I agree with O’Connor that racial classifications must be subjected to the “most rigorous scrutiny.” “The moral imperative of racial neutrality is the driving force of the Equal Protection Clause.”—BUT “a rule of automatic invalidity . . . would be a significant break with our precedents . . . .”

Answer 21

Richmond v. Croson (1989)Kennedy (concurring):

Question 22

IS should apply, not SS. Whites lack the traditional indicia of suspectness: the class is not saddled with disabilities, or subjected to a history of purposeful unequal treatment, or relegated to a position of political powerlessness. Also, SS would most likely be fatal in fact—it would spell the end of affirmative action. IS should apply because there are of course ways in which a “benign” policy is actually invidious.

Answer 22

Regents of the Univ. of California v. Bakke (1978)Brennan, with White, Marshall, Blackmun (dissenting):

Question 23

It is not always clear when a classification is “benign.”

Answer 23

Adarand Constructors v. Pena (1995)(O’Connor makes this same point in Croson)

Question 24

Like the “role model” theory in Wygant, this goal has no “logical stopping point.”

Answer 24

Richmond v. Croson (1989)

Question 25

Meets the requirement in Croson that even a permissible race classification have a termination point. The school has assured that it will end its classification program as soon as practicable. It has been 25 years since Bakke, and we would expect that a program like this will not be necessary 25 years from now.

Answer 25

Grutter v. Bollinger (2003)

Question 26

Racial classifications cannot be used to “even the score.” Discrimination against blacks cannot be remedied by discriminating against whites—“Where injustice is the game, turnabout is not fair play.”

Answer 26

Richmond v. Croson (1989)Scalia (concurring):

Question 27

Remedying past discrimination is a compelling interest for affirmative action. “This insistence on ‘consistency,’ Adarand, would be fitting were our Nation free of the vestiges of rank discrimination long reinforced by law. But we are not far distant from an overtly discriminatory past, and the effects of centuries of law-sanctioned inequality remain painfully evident in our communities . . . .”

Answer 27

Gratz v. Bollinger (2003)Ginsburg (dissenting)

Question 28

Societal discrimination is sufficiently important where there is evidence of “substantial and chronic” minority underrepresentation. This determination should not be only judicial—the university is capable of making such findings.

Answer 28

Regents of the Univ. of California v. Bakke (1978)Brennan, with White, Marshall, Blackmun (dissenting):

Question 29

SS applies. The right to equal protection is an individual right—”it cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.” This applies regardless of whether the burdened group is a discrete and insular minority. .

Answer 29

Regents of the Univ. of California v. Bakke (1978)Powell, with Burger, Stewart, Rehnquist, Stevens (controlling concurrence):

Question 30

The “consistency” proposition assumes there is no difference between a benign and an invidious classification—like disregarding the difference between a no trespassing sign and a welcome mat.It’s not asking too much that we determine whether a classification is benign or not—it’s certainly no harder than, in the disparate impact context, determining whether a law was enacted “because of” or “in spite” of its disparate impact.

Answer 30

Adarand Constructors v. Pena (1995)Stevens, Ginsburg (dissenting):

Question 31

The 5th and 14th Amendments protect “persons, not groups.”

Answer 31

Adarand Constructors v. Pena (1995)

Question 32

The majority “launches a grapeshot” at any future race-conscious remedies simply because they don’t like the method this one municipality used.

Answer 32

Richmond v. Croson (1989)

Question 33

The plan here is simply considering race in full candor. We have approved of plans with the same goal that were race-neutral on their face (e.g., top 10% plan). “Without recourse to [full candor] plans, institutions of higher education may resort to camouflage.” “If honesty is the best policy, surely Michigan’s accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.”

Answer 33

Gratz v. Bollinger (2003)Ginsburg (dissenting)

Question 34

The quota is “outright racial balancing.” “It rests upon the ‘completely unrealistic’ assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population ….”

Answer 34

Richmond v. Croson (1989)

Question 35

The real interest in this case is not educational benefits from diversity—it’s that Michigan LS insists on maintaining a “prestige” law school that uses admissions standards to disproportionately exclude minorities.

Answer 35

Grutter v. Bollinger (2003)Scalia, with Thomas (concurring, dissenting)

Question 36

The United States is a “Nation of minorities” so it is “no longer possible to peg the guarantees of the Fourteenth Amendment to the struggle for equality of one racial minority.” We also cannot peg its protections to a disadvantaged “class” because political forces are always changing—there would be no principled way for the Court to determine which group needs protection

Answer 36

Regents of the Univ. of California v. Bakke (1978)Powell, with Burger, Stewart, Rehnquist, Stevens (controlling concurrence):

Question 37

The University cannot enact racial classifications to solve its own “self-inflicted wounds” from insisting on admissions standards that disproportionately exclude minorities (like continued reliance on the LSAT). Selective admissions are not constitutionally protected.

Answer 37

Grutter v. Bollinger (2003)Thomas (concurring, dissenting)

Question 38

The University is in a better position to decide which applicants to accept—they already have preferences of all kinds built into the process. Judicial scrutiny of such decisions should be the exception, not the rule.

Answer 38

Regents of the Univ. of California v. Bakke (1978)Blackmun (dissenting):

Question 39

The University is just being “forthright” about its racial preferences. Other permissible plans do the same thing—they just don’t say it. “I would be tempted to give Michigan a point of its own for its frankness. Equal protection cannot become an exercise in which the winners are the ones who hide the ball . . . .”

Answer 39

Gratz v. Bollinger (2003)Souter, Ginsburg (dissenting)

Question 40

The University seriously considered race-neutral alternatives in good faith—alternatives were not reasonably available. Strict scrutiny doesn’t require exhaustion of every conceivable race-neutral alternative. Lowering standards was not an adequate alternative, because that would require the school to change its status as an elite law school.

Answer 40

Grutter v. Bollinger (2003)

Question 41

The University’s interest is not “compelling” enough to pass SS. There is no “pressing public necessity” for the school to have a diverse student body. We have only allowed racial classifications in extreme circumstances. See Korematsu (nat’l security); Palmore (interests of a child).It’s also not a “state” interest—Michigan LS students mostly go beyond Michigan to practice law. The majority gives too much deference to the University’s conclusion that diversity will yield educational benefits. It cites social science for this, but ignores much social science to the opposite. Compare with VMI. In that case, the majority recognized that the school wanted to maintain a particular kind of program, but said the school still couldn’t use sex classifications to maintain that program.

Answer 41

Grutter v. Bollinger (2003)Thomas (concurring, dissenting)

Question 42

There is a moral equivalence in using race in an invidious way and a benign way. “In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. In each instance, it is racial discrimination, plain and simple.”

Answer 42

Adarand Constructors v. Pena (1995)Thomas (concurring):

Question 43

There is no “racial paternalism” exception to Equal Protection. The government cannot make us equal; it can only respect and protect us as equal before the law.

Answer 43

Adarand Constructors v. Pena (1995)Thomas (concurring):

Question 44

There is no doubt a “sorry history” of discrimination against black business owners, but this observation alone cannot justify a rigid quota. The quota cannot be tied to any injury suffered by anyone.

Answer 44

Richmond v. Croson (1989)

Question 45

This country has a “sorry history” of discrimination against AA’s. “I fear that we have come full circle.”—The decision in this case resembles decisions during Reconstruction that stunted the progress of remedying the effects of slavery and systemic discrimination.

Answer 45

Regents of the Univ. of California v. Bakke (1978)Marshall (dissenting):

Question 46

Under Croson, we have three propositions about our approach to racial classifications: (1) skepticism, (2) consistency (doesn’t depend on which race benefits from the law), and (3) congruency (Equal Protection under the 14th and 5th Amendments is the same).

Answer 46

Adarand Constructors v. Pena (1995)

Question 47

We will defer to the “law school’s educational judgment that . . . diversity is essential to its educational mission” because of the “complex educational judgments in an area that lies primarily within the expertise of the university.” Diversity promotes the “robust exchange of ideas” which is uniquely important in higher education. It equips students to go out and join an increasingly diverse workforce.

Answer 47

Grutter v. Bollinger (2003)