CONSTITUTIONAL LAW
W.B. Fisch, Winter 2006
Assignment #36

[ E. "Benign" Discrimination: Affirmative Action, Quotas, Preferences Based on Gender or Race

2. Classifications Advantaging Racial Minorities]

Problem

Gotham is a medium-sized city with a unified school district. The district has an overall school population 70% European-American and 30% African-American, exactly mirroring the total population. The district has long since modified its formerly strict neighborhood school policy in order to overcome the most extreme examples of racial imbalance in the student population, and has reassigned its minority faculty and staff relatively evenly across the district. The faculty and administration are only 10% African-American overall, however. The elected school board decides to institute a program of hiring more African-American faculty and administration, combining special recruiting efforts with a preference given to otherwise qualified African-American candidates, and stating a goal for this program of 25% minority representation on the professional staff.

Is this proposed action consistent with the Equal Protection clause? Assume the following alternative rationales for the board's decision:

(a) An independent study by experts commissioned by the board determined that the district's past hiring practices consistently undervalued the qualifications of minority faculty and staff candidates on essentially-race-based grounds

(b) Such a study determined that pervasive racial discrimination in the society of the city and the state has discouraged otherwise qualified minority applicants from applying, and indeed from attending schools of education in the city and state

(c) Such a study determined, on the basis of prevailing educational theory as well as extensive interviewing in the Gotham schools, that such a significant under-representation of minority professional staff deprives all students of a valuable cultural perspective, and deprives minority students of important role models for achieving success in the society.

[questions on cases below]

GRUTTER V. BOLINGER, p. 876 (2003). University of Michigan's law school admissions program.

• In what ways are racial and ethnic background taken into account in the policy, and what is the purpose of the policy in this regard?
• what standard of review/burden of justification does the Court apply to this policy?
• how does this policy differ from those struck down in Croson and Adarand?
• does this policy seek to remedy past wrongs? Would it be constitutional if it did?
• how does the policy of diversity differ from a remedial one?
• What is unique about the higher education setting? Would diversity be an appropriate goal for public works contracting?
• how does a "critical mass" differ from a quota? Compare Regents v. Bakke (1978), discussed in the Grutter opinions
• are both designed to serve the policy of diversity?
• why does this particular kind of diversity require a "critical mass", when apparently others don't?
• is there room for a determination that "critical mass" differs from one racial/ethnic minority to another?

Gratz v. Bolinger, p. 898 (2003). University of Michigan's undergraduate admissions program

• In what respects does the undergraduate admissions program differ from the law school one?
• absence of individualized review of applicants?
• point system, with a uniform point total added on the basis of race, a different one for artistic talents, etc.?
• What is the significance of those respects?
• for C.J. Rehnquist?
• for Justice O'Connor?