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
US v. Virginia
1996
VMI must admit women; celebration of differences OK, but not denigration (*)
(*)Note 7 reserves same issue as MUW note 1
MUW v. Hogan
1982
Have to admit men to nursing program.
Note 1 says not concerned with symmetric discrimination like separate boys’ and girls’ high schools
Bostock
2020
LGBT-status discrimination counts as “discrimination on the basis of sex” under CRA 1964
Plyler v. Doe
1982
Intermediate scrutiny for citizenship classifications if undocumented; can’t deny kids education
“We may … take into
account [the statute’s] costs to the Nation and to the innocent
children who are its victims,”
Plyler. 1982
Intermediate scrutiny for citizenship classifications if undocumented; can’t deny kids education
“the
Constitution does not constitute us as ‘Platonic Guardians.’ ”
Burger’s dissent in Plyler, 1982
Feeney
1979
disparate impact on women from veterans hiring preference not trigger intermediate scrutiny
What two cases discuss not triggering intermediate scrutiny - for what two groups? What is the distinction?
Feeney (1979) - veteran hiring over women and Washington (1976) - gender
Distinction between doing things “because of” impact and “despite” impact (Vacco)
Ambach
1979
May limit teachers to citizens on “governmental function” exception to strict scrutiny for alienage distinctions
Metro Broadcasting
1990
Allow broadcasting-license affirmative action - lowering scrutiny to intermediate
What case overrules Metro Broadcasting
Adarand Constructors (1995)
What is the only exception to anti-discrimination standards for feds and states
Mathews v. Diaz (1976)
Richmond v. Croson (1989)
Adopts Powells strict-scrutiny-for-all racial classifications view
“Absent searching judicial
inquiry into the justification for such race-based measures, there is
simply no way of determining what classifications are ‘benign’ or
‘remedial’ and what classifications are in fact motivated by
illegitimate notions of racial inferiority or simple racial politics.”
Richmond v. Croson (1989)
“Classifications based on race carry a danger of stigmatic harm.
Unless they are strictly reserved for remedial settings, they may in
fact promote notions of racial inferiority and lead to a politics of
racial hostility.”
Richmond v. Croson (1989)
What does Grutter disavow - from what case
“strict reservation” when adopting Powell’s diversity rationale for educational affirmative action- Richmond v Croson
What case uses the reverse discrimination hypo - what year
Strauder - 1880
“An otherwise qualified
medical student with a particular background—whether it is
ethnic, geographic, culturally advantaged or disadvantaged—may
bring to a professional school of medicine experiences, outlooks,
and ideas that enrich the training of its student body and better
equip its graduates to render with understanding their vital service
to humanity.”
Bakke (1978)
Powell saying OK to pursue diversity - that race can be a plus but the program must be flexible enough to consider all elements of diversity
Regents v. Bakke
1978
Affirmative action OK sometimes
Brennan 4 says only use intermediate scrutiny for affirmative action in med school admissions - 4 say no consideration for statutory reasons (CRA 1964) - Powel says this program was unconstitutional but a program that seeks to sought the educational benefits of diversity OK
Murgia
1976
Age discrimination only needs a rational basis
What does the court rely on in Murgia
Carolene Products (1934)
Everyone gets old - so self interest normally prevents discrimination; not “insular”
What does dissent in Murgia say
Marshall doesn’t like the “rigid two-tier model” - wants to incorporate “relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive.
