Constitutional Law Class Notes 3/30/04


We will do affirmative action today, tomorrow, and Thursday and deal with Grutter and Gratz.


More on Cleburne


We talked yesterday about the way that the Court, in rejecting the “floodplain” defense of the ordinance, said that this may be a legitimate interest, but the regulation is not plausibly related to the interest.  If they had given super deference, they may have come to a different conclusion.  Some people think that the rational basis test here was “rational basis plus” or “rational basis with bite” or “rational basis with teeth”.  How minimal is the requirement of the rational basis test?  Does there just need to be a quantum of overlap between the ends and means?  Or does there have to be some kind of minimum fit?


Justice Stevens gives us the “sliding scale” idea.  He doesn’t want to think about three boxes (strict scrutiny, intermediate scrutiny, and rational basis).  He wants a range of deference.  But the Court doesn’t embrace the Stevens approach, and claims that it is applying the traditional rational basis approach.  The best understanding is that we have a “turbocharged” version of the rational basis review, but we don’t know when the Court will apply this version as opposed to the regular version.


How would the precedents of Cleburne and Beazer apply to different fact patterns?  The Beazer plaintiffs might succeed in terms of housing, and the Cleburne plaintiffs might fail with respect to jobs.


The major point here is: the judgments that underlie speculations about job discrimination with respect to the mentally retarded would be upheld, while housing discrimination against recovering drug addicts would not be upheld.  The difference in judgment is based on the facts and on policy, not from the Constitution.


Professor Foley just made a dime appear out of nowhere!


Think about the factual differences between cases to try to distinguish them.  It’s more important to be able to argue both sides of cases than to actually come to a conclusion.


Grutter v. Bollinger


What is the constitutional question in this case?  What claim are the plaintiffs making?  The plaintiffs claim that Grutter was denied admission to the Law School because of her race.  How does that relate to the Constitution?  What makes denial to law school based on race a problem based on the Constitution?  She claims it violates the Equal Protection Clause to make race a predominant or outcome-determinative factor in whether someone gets admitted or not.


How do we know that race was a factor in whether she was denied admission?  We clearly have facial discrimination.  Race is taken into account in admissions.  But diversity could be based on things other than race.  What role does racial and ethnic diversity play in Michigan’s definition of their policy?  There was a remedial function.  Some groups were considered to have suffered discrimination, and thus they should be helped out as a form of compensation or remediation.  They single out Native Americans, African Americans, and Hispanic Americans.  Be precise in your language.  Different people were said to bring different ideas to class discussion.


Both Michigan and the Supreme Court see the beneficiaries of this policy as not merely the minority students, but all students.  Justice Thomas objects that the policy is designed to benefit mostly Caucasians and Asians and that the individuals who are admitted because of special consideration actually suffer a sort of stigma.


Are there any other reasons to justify these affirmative action programs besides the classroom learning environment?  The Court also considers that fact that the business community and the military support affirmative action.  Why did the business community submit the amicus brief that they did?  They said that we live in an increasingly multicultural society, and so to be well-educated, you must be exposed to diversity.  So we want a good experience in the classroom, and we want students prepared for diversity outside the classroom.


What about the military?  That’s very important, but it’s a little different than what the businesses say.  What’s the national security deal?  The military says that we need a diverse officer corps for national security.  The military argues that there is racial diversity in the world’s hotspots.  The brief that was filed by the former military officers is one of the most significant and powerful amicus briefs ever filed.  In Vietnam, there was a lot of race tension because there were more minorities in the lower ranks and more majority people in the higher ranks.  The military decided that you must have an officer corps that is representative of the nation as a whole.  The racial composition of the officer corps cannot differ too greatly from that of the troops.  The Court makes the point of legitimacy.  The majority talks about the idea of the legitimacy of our government depending on leadership positions being open to all regardless of racial background.  How is this argument different than the “classroom diversity” argument?


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