Class Notes Flashcards
Schuette v. BAMN
- Ok for MI to constitutionalize opposition to affirmative action
Fisher I
2013
Court says it doesn’t defer to state’s assessment of what counts as narrow tailoring.
Fisher II
2016
Kagen is recused - looks like might affirm but Scalia dies - Court upholds program
Flexibility requirements trump narrow-tailoring
“Since the University is prohibited from seeking a particular number or quota of minority students, it cannot be faulted for failing to specify the particular level of minority enrollment at which it believes the educational benefits of diversity will be obtained.”
Fisher II (2016)
Court doesn’t explain how narrow tailoring and flexibility requirements fit together, but does make it clear that the flexibility requirement trumps.
Windsor
2013.
DOMA imposes “a disadvantage, a separate status, and so a stigma”
What are the arguments for same-sex marriage getting intermediate scrutiny?
One is based on sex discrimination (i.e., the constitutional analogue of Bostock). If Bob can marry Jill but Sally can’t, Sally faces discrimination based on her sex
If Craig requires intermediate scrutiny for anything paying attention to sex in any way, we get it for anything paying attention to LGBT status, because paying attention to LGBT status pays attention to sex.
Being “historically subjected to discrimination” was a factor for higher scrutiny.
Identifiable characteristics and political powerlessness
How long will affirmative action last?
Court says expect that racial considerations won’t be necessary to promote diversity in 2028
Why is Thomas upset in Grutter dissent?
He says that people denigrate Yale degree & SC appointments by saying he’s just filling a quota
Stigma is the same as stigma imposed by segregation
When does the Washington Rule apply
Only applies when there isn’t an explicit racial classification. But inadvertent (collateral-damage) stigma from an explicit racial classification might seem analogous to inadvertent (collateral damage) disparate racial impact from a neutral law
What is a better argument for affirmative action
Either that Croson should be overruled or tiers of scrutiny melted down
Grutter
2003
Allows a holistic use of race to produce diversity, but it can’t be mechanical.
Adopts Powells approach itself from Bakke (1978)
Gratz
2003
Mechanical extra-points-for-race program struck down
Why is “critical mass” theory unhelpful
Because it’s a very precise amount of uranium or plutonium in a particular density - here, the answer cannot be precise, because then it would be a quota and that would be forbidden under Powell in Bakke
“[n]ot every decision influenced by race is equally
objectionable,”
Grutter (2003)
Costs of using race seem to be fixed by asking the same questions about its benefits in every case (i.e., whether it’s narrowly tailored to compelling interest)
What is O’Connor’s view in Grutter and Gratz
In Grutter, O’Connor says that when using race as a ‘plus’ factor in admissions, the admissions program must remain flexible enough to ensure that the race/ethnicity of applicant isn’t the defining feature of their application.
In her concurrence in Gratz, O’Connor says that applying an automatic 20-point bonus without consideration of background, experiences, or qualities of each applicant is not provide a meaningful individualized review.
“[I]t seems especially unfair to treat the candor of the
admissions plan as an Achilles’ heel…. Michigan states its purpose
directly and, if this were a doubtful case for me, I would be
tempted to give Michigan an extra point of its own for its
frankness. Equal protection cannot become an exercise in which
the winners are the ones who hide the ball.”
Souter’s Gratz dissent
Michigan was penalized for precision about how much a thumb was on the scale - hard to distinguish Grutter approved system from randomized quota
Romer
1996
No rational basis for state-level repeal of local bans on discrimination against gays.
Repeal at different level government seen as a clue to existence of animus (i.e., Moreno-style “bare desire to harm politically unpopular group”
In what is Harlan’s Plessy dissen used in the 90’s, and what important case isn’t mentioned
Romero. It uses his citizenship-laded Plessy dissent. There is no mention of Bower - upsets Scalia
Cleburne
1985
Disability isn’t a suspect or quasi-suspect class, but there is no rational basis (rational basis with bite)
What three groups get strict scrutiny - why?
Race, alienage, and national-origin
Because they tend to reflect “a view that those in the burdened class are not as worthy or deserving as others”
What group gets intermediate scrutiny - why
Gender.
Because it “generally provides no ground for differential treatment” and “very likely reflect outdated notions of the relative capabilities of men and women
When is rational basis applied to a group
Only when a group has “distinguishing characteristics relevant to interests the State has the authority to implement.”
What level of scrutiny do we give the disabled? Why?
Rational basis - because dealing with and providing for them is among state’s responsibilities. Giving them benefits gets rational basis, because we want leeway
Heller v. Doe
1993
Long history of making a distinction (mental retardation v. mentally ill) is reason in favor of it (a la Gluckbergs) elsewhere history of discrimination is reason against it
