ConLaw II Quotes and Arguments Flashcards
“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 . . . .”
Richmond v. Croson (1989)Scalia (concurring):
“(1) Was federal reconstruction legislation race-conscious or race-neutral? Congress adopted many social welfare laws after the Civil War that seem to expressly benefits blacks only. e.g., the 1865 Freedmen’s Act created a bank for “persons heretofore held in slavery in the United States, or their descendants.”
Note: Affirmative Action and Original Intention
“(2) Did federal reconstruction law even take the 14th Amendment into account?The 14th Amendment applies to the states, not the federal government. Hypothetically, if the P&I clause were substantive (it’s not—Slaughterhouse), then all “citizens” have certain privileges and immunities, and under the 14th Amendment, all persons born in the U.S. are citizens—equally. So, if every citizen of the U.S. has equal rights, then that would forbid classifications by state and federal government. “
Note: Affirmative Action and Original Intention
“(3) Did the Framers subscribe to “color-blindness”?Total non-discrimination was actually considered too radical, because that would have provided no basis for keeping blacks out of the voting booth. The Framers instead used open-ended phrases of civil equality, like “privileges and immunities” and “equal protection.” The framers of the 14th Amendment plainly didn’t expect that blacks were to be made socially and politically equal to whites (there were way too many race-conscious laws that cut against that kind of equality). *If the framers intended only for civil equality before the law, then should an “originalist” fight against any classification that promotes social (e.g., education, welfare) or political (e.g., voting, running for office) equality before the law?”
Note: Affirmative Action and Original Intention
“[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.”
Gratz v. Bollinger (2003)
“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.”
Gratz v. Bollinger (2003)Souter, Ginsburg (dissenting)
“Conclusion: Judicial recognition of race-based behavior should instead arise from an inquiry into the behavior’s “cultural meaning”—how the behavior is viewed by the culture. Is the action viewed as a symbolic message to which the culture attaches racial significance? Example: a wall constructed between a white and a black community. Even if the intent is to reduce traffic (not just black traffic), the cultural meaning of the wall will have significant racial undertones and thus perpetuate the power structure courts seek to counter. A narrow inquiry into intent would not (and did not, since this was a real case from 1981) recognize race-based behavior. This will have the added benefit of removing the stigma people attach to violators of prohibitions on discriminatory practices. Courts will condemn the effect, not the offender, so there’s less cause for hard feelings. “
Commentaries: Lawrence
“Courts should employ an “anti-subordination” perspective. “This approach seeks to eliminate the power disparities between men and women, and between whites and non-whites, through the development of laws and policies that directly redress those disparities.” This approach provides a substantive explanation for why we tolerate some classifications (intelligence, age, ability, etc.) and not others (race, sex, etc). “Anti-subordination proponents therefore advocate the use of race- or sex-specific policies, such as affirmative action, when those policies redress the subordination of racial minorities or women.” “
Colker, Anti-Subordination Above All: Sex, Race, and Equal Protection
“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.
Grutter v. Bollinger (2003)Rehnquist, with Scalia, Kennedy, Thomas (dissenting)
“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.
Grutter v. Bollinger (2003)Kennedy (dissenting)
“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.”
Adarand Constructors v. Pena (1995)Scalia (concurring):
“Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators.”
Grutter v. Bollinger (2003)Thomas (concurring, dissenting)
“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 . . . .”
Gratz v. Bollinger (2003)Ginsburg (dissenting)
“Reasons for the “suspect classification” doctrine: Preventing “first degree prejudice”—harming and vilifying a group for no reason other than to disadvantage its members. Preventing “second degree prejudice”—harm that results from attempts to promote some legitimate social goal by the use of “a generalization whose incidence of counterexample is significantly higher than the legislative authority appears to have thought it was.” Identifying second degree prejudice is difficult and involves “balancing the increase in fairness that greater individualization will produce against the added costs it will entail.” One sign of too-costly generalizations might be when the generalizations serve the interests of the decision makers, for example by supporting positive myths, like whites are smarter or men are more stable emotionally. “
Ely, Democracy and Distrust
“Sexual identity is a crucially relevant category within our culture—arguably even more important than race. We live in a patriarchal society in which it matters enormously whether a person is male or female. But to be female, unlike being black, is to be regarded as different but not necessarily a creature of less worth. Women are both put on a pedestal and deemed not fully developed persons—they are idealized and their admiration is highly sought after. Because sexism is so complicated, it is hard to identify and eradicate—some people would even openly admit to being sexist while no one would openly admit to being a racist. Thus, sexism is deeply imbedded in our culture and institutions. “
Wasserstrom, Racism, Sexism, and Preferential Treatment
“Status - race as an indicator of social status (usually stereotypically negative)Formal - skin color alone
What is ‘Race’ for Purposes of the Equal Protection Clause?
“Stereotypes about women have been around forever and have cost women dearly, even if they may be rooted in a sort of good humor and protectionism. However, it must also be recognized that women are out in the open (unlike homosexuals) and are technically not even a minority. But despite this, it seems right to claim that women have been operating at an unfair disadvantage in the political process. Although it’s hard to pinpoint why. Have women for a long time chosen that diminished participation, accepting their role as given?The persistence of this disparity is further complicated by the fact that a sufficiently pervasive prejudice can block its own correction by not only keeping its victims in the closet, but also convincing even them of its correctness.”
Ely, Democracy and Distrust
“The 14th Amendment rejected all reasons for treating blacks differently, no matter how “reasonable” (Plessy). It is laughable to suggest that “equality” can be achieved under segregation—we all know how ridiculous it is to say that it is “better” for blacks to be separated. “
Charles Black, The Lawfulness of the Segregation Decisions
“The anti-discrimination principle guards against harmful results. Race-based decisions are based on assumptions of intrinsic worth and selective indifference, which inflicts psychological injury by stigmatizing victims as inferior. See Strauder (14th Amendment protects blacks from “legal discriminations, implying their inferiority in civil society) and Harlan Dissent from Plessy (separation placed a “badge of servitude” on blacks, implying that they are “inferior and degraded”). Since race is immutable, victims of racial generalizations feel they have been unfairly judged without regard to their actual behavior or character. The harmful effects tend to be cumulative—being denied one opportunity deprives a person of other opportunities later on, so the harm multiplies. “
Brest: In Defense of the Antidiscrimination Principle
“Viewing discrimination from the lens of social cognition theory:Stereotyping is something everyone does—it is simply a process of categorization. Stereotyping is a cognitive process, rather than motivational. It operates before the moment of decision and affects the unconscious thought process. This, stereotypes “sneak up” on the decision maker, distorting bit by bit each piece of data analyzed in the decision process. Viewed from this lense, it’s clear that discrimination is automatic—it does not result from a motive or intent to discriminate. It’s an unwelcome byproduct of otherwise adaptive cognitive processes. Even the most “color-blind” decision maker will fall prey to these biases. Conclusion: causality is the better inquiry—not intent. “
Commentaries: Krieger
(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.
Grutter v. Bollinger (2003)
(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’ . . . .”
Regents of the Univ. of California v. Bakke (1978)Powell, with Burger, Stewart, Rehnquist, Stevens (controlling concurrence):
(Important purpose): The academies were developed in response to a crisis facing young AA boys manifested by high homicide, unemployment, and drop-out rates. This is an important objective. (Not substantially related): Board has not demonstrated that excluding girls from the classes serves the purpose. Female students in Detroit are facing the same obstacles. The schools impermissibly rely on gender as a “proxy” for at-risk individuals. “Ignoring the plight of urban females institutionalizes inequality and perpetuates the myth that females are doing well in the current system.” There is also no evidence that co-ed schools will not serve the interest, i.e. that co-ed schools have failed to protect boys from the risks.
Garrett v. Board of Education … (E.D. Mich. 1991)
(No compelling purpose): There is no legitimate purpose independent of invidious racial discrimination and maintaining White Supremacy.
Loving v. Virginia (1967)
(No important purpose): Stated purpose: compensating for past discrimination. The State has not carried its burden for this purpose. Has not demonstrated with evidence that women suffered a disparity of opportunity in this field. In fact, history supports this to be a female-dominated field. This law only further perpetuates the stereotype that nursing is a woman’s job. (Not substantially related): The law allows men to audit classes, so this undermines the claim that women are adversely affected by the presence of men.
Mississippi Univ. for Women v. Hogan (1982)
(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 . . . .”
Regents of the Univ. of California v. Bakke (1978)Powell, with Burger, Stewart, Rehnquist, Stevens (controlling concurrence):
… is based on “an over-broad sex-based generalization.” The Court characterizes the plan as rational …, but this Court has rejected even rational and empirically-supported “official actions that classify unnecessarily and over broadly by gender when more accurate and impartial functional lines can be drawn.” This law is “paradigmatic of a historic regime that left women with responsibility, and freed men from responsibility, for non-marital children.”
Nguyen v. INS (2001)O’Connor, with Souter, Ginsburg, Breyer (dissenting):
4-H and Homemaker Clubs were still de facto segregated (had been de jure until the CRA 1964) in 1980. The Court held that Greene’s affirmative duty didn’t apply to clubs that no one was compelled to join—much like no one is compelled to go to college, much less the college of their choice.
Bazemore v. Friday (1986)
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.
Richmond v. Croson (1989)
Absent being present at birth, “it is not always certain that a father will know that a child was conceived, nor is it always clear that even the mother will be sure of the father’s identity. This fact takes on particular significance in the case of a child born overseas and out of wedlock.” “There is nothing irrational or improper in the recognition that at the omen of birth—a critical event in the statutory scheme and in the whole tradition of citizenship law—the mother’s knowledge of the child and the fat of parenthood have been established in a way not guaranteed in the case of the unwed father. This is not a stereotype.”
Nguyen v. INS (2001)
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.
Richmond v. Croson (1989)(O’Connor makes these same points in Adarand)
Agree the law is unconstitutional under 5th Amd. BUT Sex should not be included as a suspect classification. Reed controls this case perfectly and reaches the same outcome. The Court should not jump ahead of the democratic process on sensitive issues like sex discrimination when, as is the case here, the legislature is just a step away from doing so (Equal Rights Amendment). “[D]emocratic institutions are weakened, and confidence in the restraint of the Court is impaired, when we appear unnecessarily to decide sensitive issues of broad social and political importance at the very time they are under consideration within the prescribed constitutional processes.”
Frontiero v. Richardson (1973)Powell (concurring)
American schools are heavily segregated, and this puts desegregation plans in jeopardy. “[W]e have not yet realized the promise of Brown. … The plurality’s promise, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.”
Parents Involved in Community Schools v. Seattle School Dist. (2007)Breyer (dissenters)
An “integrated school system” doesn’t necessarily mean totally non-racially-identifiable. It means that the state in as many ways as it’s involved in the racial makeup of the school is affirmatively seeking to racially integrate. “[I]f, after such detailed and complete public supervision, substantial school segregation still persists, the presumption is strong that the school board, by its acts or omissions, is in some part responsible.” The burden then must fall on the school board. Busing should be approached with caution, as with “any proposal as disruptive of family life and interests”—the focus should be “the best quality education for all pupils.”
Keyes v. School District No. 1, Denver, Colorado (1973)Powell (concurring in part, dissenting in part):
Brown II required as an initial step banning the exclusion of black students, but “that immediate goal was only the first step . . . . The transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about . . . .” The school didn’t demonstrate that “its proposed plan promises meaningful and immediate progress toward disestablishing state-imposed segregation.” The means (freedom of choice) isn’t in itself unconstitutional, but it is not a permissible end. If it is ineffective, other means must be employed. School boards have “the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.”
Green v. New Kent County School Board (1969)
But “an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another”—especially if “the discrimination is very difficult to explain on nonracial grounds” (e.g. excluding blacks from juries).
Washington v. Davis (1976)
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?
Grutter v. Bollinger (2003)Thomas (concurring, dissenting)
Congress did not intend to guarantee everyone a job. “What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.”
Griggs v. Duke Power (1971)
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.
Fullilove v. Klutznick (1980)Burger (with White, Powell):
Defendant cannot rely on studies demonstrating racism in the system overall—he “must prove that the decisionmakers in his case acted with discriminatory purpose.” He would also have to demonstrate that Georgia kept its capital sentencing system in place because of its disparate impact on blacks. The criminal justice system necessarily requires discretionary judgments—we must demand exceptionally clear proof that that discretion was abused here. A nationwide study is insufficient to address what happened in this particular case.
McCleskey v. Kemp (1987)
Differential wage laws (disparity in freedom of K) between men and women cannot be justified on “physical differences.” Inequalities between men and women “have now come almost, if not quire, to the vanishing point[,]” so there is less reason for protecting women with laws. The Nineteenth Amendment has emancipated com an “from that old doctrine that she must be given special protection . . . .”
Adkins v. Children’s Hospital (1923)
Disparate impact “[s]tanding alone,… does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.” Discriminatory purpose or intent has always been the constitutional starting point. See Keyes (requiring “a current condition of segregation resulting from intentional state action”); Strauder (excluding a black juror was unconstitutional, but there was no requirement that juries proportionally reflect the community).
Washington v. Davis (1976)
Distinguished Batson - in those cases, the State has an opportunity to put the decision maker on the stand to offer a non-discriminatory reason for the decision. Here, the State has no practical opportunity to challenge the study, and can’t put the jurors or prosecutors on the stand.
McCleskey v. Kemp (1987)
Diversity in classrooms is not a compelling interest. If diversity is meant to help students see each other as individuals, treating them as members of a racial group is “fundamentally at cross-purposes with that end.” Brown requires color-blindness: “Before Brown, school children were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons. … The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Parents Involved in Community Schools v. Seattle School Dist. (2007)Roberts (plurality):
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.
Grutter v. Bollinger (2003)Scalia, with Thomas (concurring, dissenting)
Equal protection is a personal right. “Classifications based on race carry a danger of stigmatic harm.”
Richmond v. Croson (1989)
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.”
Adarand Constructors v. Pena (1995)Scalia (concurring):
Everyone knows this law isn’t about separating the races—it’s about excluding blacks from wherever whites are. The law perpetuates a caste system. No law that does this can be Constitutional. “There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”
PlessyHarlan (dissenting)
Facts: University integrated but forced segregated seating in classrooms, libraries, and the cafeteria.Held: UNCONSTITUTIONAL. Such segregation hinders students’ “ability to study, to engage in discussions, and exchange views with other students, and, in general, to learn [their] profession.”
McLaurin v. Oklahoma (1950)
Fails a “but for” test of discrimination. Washington v. Davis and Arlington heights made it clear that evidence of discriminatory intent is necessary to prove a constitutional violation in disparate impact cases. There is a two-part inquiry: (1) Is the law facially neutral? (2) If facially neutral, has the state undertaken the law with a discriminatory purpose? “Discriminatory purpose” implies more than awareness of consequences—it’s about intent, “because of” not merely “in spite of.”
Personnel Administrator v. Feeney (1979)
Govt’s rationale for the law: reducing admin costs. 99% of uniformed services is male; women are usually the dependents, so it would cost more money to make male servicemen to show need for spousal support as women have to.
Frontiero v. Richardson (1973)Brennan, with Douglas, White, Marshall (plurality):
Held: CONSTITUTIONAL. The classification here is between “domestic” disputes and “non-domestic” disputes—not men and women. The plaintiff failed to show that sex was a motivating factor in the decisions.
Hynson v. City of Chester (3d Cir. 1988)
Held: The right to vote is not included in the rights of a “citizen” under the 14th Amd. At the time, many states granted citizenship and voting rights in disparate ways. Section 2 of the 14th Amendment specifically refers to the voting rights of males.
Minor v. Happersett
Held: UNCONSTITUTIONAL. The redrawing was clearly motivated by discriminatory purposes—no other conclusion was even possible. It was “irresistible, tantamount for all practical purposes to a mathematical demonstration, that the legislature is solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their pre-existing municipal vote.”
Gomillion v. Lightfoot (1960)
Higher Ed /= primary and secondary schools. Universities can serve specific missions and accept those that meet the mission. BUT the adoption of race-neutral policies alone is insufficient to affirmatively dismantle the state’s prior dual university system. Four policies in particular are traceable to the prior de jure system: (1) Admissions standards - Only 30% of black students get the required score. The flagship schools require a higher score. Focusing on grades more instead would significantly reduce the gap. (2) Program duplication - As with separate-but-equal, the schools seem to have unnecessary duplication with the only difference being racial makeup. (3) Institutional mission assignments - The missions are suspiciously aligned with the racial makeups of the schools. (4) Continued operation of all eight universities - This many schools is “wasteful and irrational” except for the goal of operating separate, equal schools. On remand, the court should determine whether these policies are educationally justifiable, or merely serve to perpetuate racial identifiability.
United States v. Fordice (1992)
History not helpful in determining original Framers’ intent for 14th Amd and public school racial segregation. There were racially segregated schools back then, but education was very different, and less important at that time. Separate but equal in education is unconstitutional. Even in light of equal “tangible factors,” it’s inherently unequal in the public education context—stamps black children with a badge of inferiority and deprives them of important opportunities available to whites. “Intangible factors” are impossible to overcome. Sweatt. Separating black students from whites affects black students psychologically and impedes the learning process (supported with social science material that has since been refuted).
Brown v. Board of Education I (1954)
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 . . . .”
Richmond v. Croson (1989)Kennedy (concurring):
Implementation of Brown I requires solution of “varied local school problems.” The local courts can best handle this, guided by principles of equity. The “personal interest of the plaintiffs” to be admitted is at stake. The courts should require the schools to “make a prompt and reasonable start toward full compliance”—“good faith compliance at the earliest practicable date”—“all deliberate speed.”
Brown II (1955)
Integration by the courts has not produced the educational benefits once believed. HBC’s in this respect “can function as the center and symbol of black communities, and provide examples of independent black leadership, success, and achievement.”
Missouri v. Jenkins (1995)Thomas (concurring):
IS applies—state must offer an “exceedingly persuasive” justification for the classification. Inherent differences between men and women are “cause for celebration, but not for . . . artificial constraints on an individual’s opportunity.” “[S]uch classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.”
United States v. Virginia (1996)
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.
Regents of the Univ. of California v. Bakke (1978)Brennan, with White, Marshall, Blackmun (dissenting):
It is not always clear when a classification is “benign.”
Adarand Constructors v. Pena (1995)(O’Connor makes this same point in Croson)
Laid out factors for finding discriminatory intent:(1) impact of official action - e.g., Yick Wo(2) historical background - e.g. Guinn; Lane(3) specific sequence of events leading up to he decision(4) departures from the normal procedural sequence(5) substantive departures from the expected decision (6) legislative or administrative history Burden would then shift to state to show that the same decision would have resulted even if the impermissible purpose not been considered. If the state can show that it would have enacted the law for another reason other than discrimination, rational basis review would apply.
Arlington Heights (1977)
