Law Class Notes
We will do affirmative action today, tomorrow, and Thursday and deal with Grutter and Gratz.
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.
would the precedents of
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
is the constitutional question in this case?
What claim are the plaintiffs making?
The plaintiffs claim that Grutter was denied
admission to the
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
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.
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