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Flashcards in ConLaw II Quotes and Arguments Deck (158)
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“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)