Affirmative Action | Le·gal In·sur·rec·tion - Part 7
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Affirmative Action Tag

Posted by William A. Jacobson on July 03, 2018 42 Comments
Chief Justice Roberts famously wrote that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” That simple and correct formulation exposes how racial discrimination in the name of anti-racial discrimination perpetuates the problem. It's a problem inherent in affirmative action based on race, which, whatever the goals, is a form of racial discrimination.

Posted by William A. Jacobson on October 14, 2017 21 Comments
Cornell University's campus in Ithaca, NY, is in turmoil after two incidents, as I first reported in mid-September. In one incident, a student shouted “build a wall” near the Latino Living Center. At least two reports (Campus Reform and The New American) claim the student was Hispanic and said it to mock Trump. The Cornell administration has declined to confirm or deny those reports, referring me instead to prior general statements from university officials. In a second incident, one or more students who got into a fight off campus with a black student called him the “N” word.

Posted by Vijeta Uniyal on August 17, 2017 15 Comments
Just weeks until the September election, Merkel government is threatening "legal measures" against large German companies that fail to implement a 'gender quota' by putting more women on their executive boards. In what could simply be cheap antics to garner votes from women, the Merkel government is waging a war against “male-dominated” corporate boardrooms. Germany's Women's Affairs Minister Katarina Barley has “threatened legal measures if the firms fail to fix the problem within the year,” German public broadcaster Deutsche Welle reported on Wednesday. The Women's Affairs Minister presented a report on the “Corporate Gender Imbalance” to the Merkel-led cabinet this week. According to the report, large German companies had 27.3 percent of women on their supervisory boards. This still isn't good enough for the Merkel government. The State wants large companies to allocate more than 30 percent of seats on their boards to women.

Posted by Mark Finkelstein on August 03, 2017 26 Comments
Yesterday, we noted the left's freak-out over the news that the Justice Department will be investigating race-based discrimination in college and university admissions. The freak-out was on full display on Andrea Mitchell's MSNBC show yesterday. You knew the fix was in from Mitchell's choice as guests of two critics of the initiative: the Washington Post's Jonathan Capehart, and Janai Nelson of the NAACP Legal Defense and Educational Fund.

Posted by William A. Jacobson on August 02, 2017 45 Comments
If a report in the NY Times is accurate, the Trump administration is getting ready to take on the most precious of liberal dogmas, the institutionalized racial discrimination in college admissions, aka affirmative action. The Times reaches the conclusion that affirmative action will be under attack, even though the documents it has obtained for its reporting don't actually say that. The Times reports, Justice Dept. to Take On Affirmative Action in College Admissions:

Posted by Sarah Rumpf on June 23, 2016 10 Comments
Yet another exciting day for SCOTUS watchers. Thursday morning, the Court released its opinion in Fisher v. University of Texas at Austin, holding in a 4-3 decision (Justice Elena Kagan did not participate) that the use of race in admissions at the Texas university was constitutional. Opinion, written by Justice Anthony Kennedy, is here. Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito dissented. On first glance, it's clear that Texas' "Ten Percent Plan," where the top 10% of the class from every Texas high school gains automatic admission was a big factor, as a race-neutral alternative that still increased diversity.

Posted by Jonathan Levin on February 15, 2016 4 Comments
Two Supreme Court cases with significant public policy implications previously discussed on Legal Insurrection face very different futures in the wake of Supreme Court Justice Antonin Scalia's death on Saturday. Oral arguments in Fisher v. University of Texas and even more more so Friedrichs v. California Teachers’ Association suggested the Court would decide for the conservative position in both. Now those cases are thrown into turmoil.  The traditional response when a Justice dies after oral arguments but before a written decision has been to either affirm the lower court without setting precedent, or to order.  Either option is at least a temporary setback for conservatives.

Fisher revisited

I previewed the challenge to the University of Texas's affirmative action scheme in Fisher, here, and discussed the oral arguments, here.   In Fisher, the Court is reviewing UT's admission system that considers race as one factor among many for admitting applicants who did not otherwise qualify for admission for having graduated in the top-10 percent of their Texas high school class. As noted in the case preview:

Posted by Jonathan Levin on December 08, 2015 10 Comments
The United States Supreme Court will revisit affirmative action in public university admissions on Wednesday, when Fisher v. University of Texas at Austin returns to the high court for the second time. As the Supreme Court previously explained, the University of Texas ("UT") has a two-part admissions system.  First, under Texas’s statutory "Top Ten Percent Law," any student graduating from a Texas high school in the top 10% of their class is automatically admitted. Second, students not admitted pursuant to the Top Ten Percent Law are given numerical Personal Achievement scores by combining academic achievement and a “Personal Achievement Index” (“PAI”).  The PAI:
measures a student’s leadership and work experience, awards, extra-curricular activities, community service, and other special circumstances that give insight into a student’s back-ground. These included growing up in a single-parent home, speaking a language other than English at home, significant family responsibilities assumed by the applicant, and the general socioeconomic condition of the student’s family.
From 1997 to 2003, the PAI had no racial consideration.  UT admissions were entirely race neutral.

Posted by William A. Jacobson on May 22, 2014 106 Comments
The 15,000+ word essay by Ta-Nehisi Coates in The Atlantic, The Case for Reparations, is getting completely predictable reactions. It's looooong, which gives it a perceived weight which just is not there.   In fact, there's not much new there, except for historical anecdotes shedding detail but not light on what we already knew to be the history of slavery, segregation and discrimination:
... the crime with which reparations activists charge the country implicates more than just a few towns or corporations. The crime indicts the American people themselves, at every level, and in nearly every configuration. A crime that implicates the entire American people deserves its hearing in the legislative body that represents them. .... No one can know what would come out of such a debate. Perhaps no number can fully capture the multi-century plunder of black people in America. Perhaps the number is so large that it can’t be imagined, let alone calculated and dispensed. But I believe that wrestling publicly with these questions matters as much as—if not more than—the specific answers that might be produced. An America that asks what it owes its most vulnerable citizens is improved and humane. An America that looks away is ignoring not just the sins of the past but the sins of the present and the certain sins of the future. More important than any single check cut to any African American, the payment of reparations would represent America’s maturation out of the childhood myth of its innocence into a wisdom worthy of its founders.
Coates never gives the answer as to who gets what and how. And that's ultimately the problem with reparations arguments that are not based upon the people causing the harm paying the people directly harmed by specific conduct soon after the conduct is remedied.

Posted by Bryan Jacoutot on April 28, 2014 33 Comments
Yesterday, Chris Wallace featured two panelists to debate the outcome of a recent United States Supreme Court ruling on Affirmative Action and the use of race in the admissions process. The case upheld a Michigan voter referendum banning the use of race or gender based Affirmative Action programs in the public university admissions process, among other things. One panelist was a successful litigant from a prior Affirmative Action Supreme Court case, Jennifer Gratz. Gratz is also the CEO of XIV Foundation, an organization "dedicated to the principle that equal treatment is the essence of civil rights and that all people are entitled to civil rights." The other panelist was civil rights attorney, Shanta Driver. As I watched the debate unfold, one thing I could not help but notice was the use of the word "equality," in each opposing side's rationale for their position. Gratz, who advocated for upholding the Michigan referendum to end race preferences cited "equal treatment under law," regardless of race. Likewise Driver, advocated for the continuation of federally protected race preferences in the admissions, also citing the need for equality. In fact, Driver went so far as to compare this decision by the Supreme Court as a revival of Plessy v. Ferguson, the 1896 Supreme Court case that brought about the concept of "separate but equal" segregation.

Posted by William A. Jacobson on March 04, 2014 18 Comments
Badger Pundit has the rundown on a debate at Harvard Law School over the proposition in the title of this post, Epic smackdown of affirmative action at Harvard — following debate, audience’s opposition rises nearly a third. It's a discussion that people on campuses don't like to have. Good for Harvard Law School for hosting such a debate with well-qualified speakers arguing each side. Too often the argument against affirmative action is denegrated as racism. A speaker in favor of the proposition argued that affirmative action is an "epic policy failure" because it actually hurts -- not helps -- minority achievement through lower graduation and professional accomplishment rates. This is commonly called the mismatch effect, as to which there has been a debate in law schools for years.  When University of the South Professor E. Douglass Williams published an article in The Journal of Empirical Legal Studies, Do Racial Preferences Affect Minority Learning in Law Schools? (2013)(pdf.), I had a chance to communicate with him, although I never got around to writing it up as a post.  Here's the Abstract of his article:
An analysis of the The Bar Passage Study (BPS) reveals that minorities are both less likely to graduate from law school and less likely to pass the bar compared to whites even after adjustments are made for group· differences in academic credentials. To account for these adjusted racial gaps in performance, some researchers put forward the "mismatch hypothesis," which proposes that students learn less when placed in learning environments where their academic skills are much lower than the typical student. This article presents new results from the BPS that account for both measurement-error bias and selection-onunobservables bias that makes it more difficult to find a mismatch effect if in fact one exists. I find much more evidence for mismatch effects than previous research ang report magnitudes from mismatch effects more than sufficient to explain racial gaps in performance.
Here is part of our email exchange:
WAJ: I just want to confirm your ultimate finding in layman’s terms: There is evidence of a mismatch effect, and that effect is sufficiently pronounced as to account for differences in bar passage rates. Do I have that right? EDW: Yes this is accurate. Much of the difference in bar passage rates by race is explained by differences in academic credentials. But a significant gap still persists after controlling for these entering credentials. It is this remaining gap that the mismatch effect found in the paper can explain.
Some other reading on the mismatch effect and related controversy:

Posted by William A. Jacobson on November 18, 2013 30 Comments
Supreme Court Justices occasionally issue statements in connection with the Court's decision not to accept a case for review.  Sometimes the statement is in the nature of a dissent, other times just to make a point. Justice Alito has issued a blistering statement in connection with the Court's denial of a Petition for Writ of Certiorari in the case of Martin v. Blessing.  Justice Alito did not disagree with the decision not to take the case in light of the fact that the issue involved appeared isolated. The issue was the practice of U.S. District Judge Harold Baer in the Southern District of New York in requiring that class action counsel ensure that attorney staffing of the case reflect the racial and gender of the class.  That practice, apparently unique to Judge Baer, sparked a lengthy statement by Justice Alito warning that if the Court of Appeals does not address the situation, future Supreme Court review may be warranted. Think about it for a second.  While Judge Baer's intent undoubtedly is to bring diversity to the case, what if the class itself is non-diverse?  What if the class constituted almost entirely white males, would Judge Baer insist that only white male attorney staff a case?  I think not. Justice Alito's statement was part of an Order list issued this morning.  I have extracted Justice Alito's Statement, which is embedded at the bottom of this post.  Here's an excerpt (emphasis added):
The petition in this case challenges a highly unusualpractice followed by one District Court Judge in assessingthe adequacy of counsel in class actions. This judge insiststhat class counsel “ensure that the lawyers staffed on the case fairly reflect the class composition in terms of relevant race and gender metrics.” App. to Pet. for Cert. 35a. The uniqueness of this practice weighs against review by this Court, but the meaning of the Court’s denial of the petition should not be misunderstood.