Law Class Notes
On Monday, we’ll start substantive due process, the “liberty” part of the Fourteenth Amendment. We now have a handout explaining the history of this doctrine of substantive due process. Without some history, it’s hard to understand. We’ll go back-to-back on Monday. We’ll go from to . We’ll start with Lochner, then we’ll do Griswold.
We also have a double session on Wednesday. We’ll have a regular 50 minute class, then a break, then we’ll come back from to for the second session. Since it’s six classes, we’ll have two different on-call groups: one for Monday and Tuesday and one for Wednesday and Thursday.
Gratz v. Bollinger
holding is pretty clear: the undergraduate program at
One of the justifications that the undergraduate school supplied was administrative necessity: the undergraduate college got so many applications and it was such a large school relative to the law school that it couldn’t do the kind of file-by-file review that the law school was doing, but instead had to adopt a more structured approach to undergraduate admissions, and therefore it made sense to come up with specified point factors for all of these “soft” considerations. They argued that they were doing the same thing the law school was doing, but had to use the point system out of necessity because of the volume of their applications. The Court rejects this claim of necessity: this administrative necessity is not a compelling interest in itself. It doesn’t count as narrowly tailored. The Court tells the undergraduate program that they must adopt something like what the law school was doing. After the case came out, the university announced that they would hire many more undergraduate admissions officers so they could process applications file-by-file. Their argument turned out to be more about money: it would just cost more to look at applications file-by-file.
do we understand the constitutional distinction that the Court here is adopting
between what is impermissible (the 20
extra points) and on the other hand, the permissibility
of the individualized file-by-file review in Grutter? The law school
asserts that what it’s looking for in the context of individualized review is “critical
mass”. The minority argued that “critical
mass” converted the purported file-by-file review into effectively a quota
system. The Court rejects that. The assignment of 20 points is obviously
different from what occurred in Bakke,
which was a set aside for minority medical students, and the holding in Bakke was that you can’t have that set
aside. In Gratz, you don’t have that set-aside. 20 points may or may not be enough to get you
admitted. If you scored more, or got a
higher score from other factors, you would get admitted over a minority
applicant who got 20 points but didn’t get a greater number of points than the
20 points for all minority members does not differentiate among the diversity within those groups. Maybe some African Americans grow up in suburbia and some grow up in the inner city. Maybe some of them have parents who are doctors or lawyers, and others have parents who didn’t go to college. O’Connor is concerned about how insufficiently attentive this system is to true diversity. Socioeconomic diversity and racial diversity aren’t the same kind of diversity.
then to look at the same question from a different angle, Justice Powell in Bakke did not use the term “critical
mass”, and the Harvard plan did not use that term. The plaintiffs in Grutter say that when the law school searches for “critical mass”,
they’re not using race as a “tiebreaker”.
“Critical mass” seems to be different: from the beginning of the
admissions process, you’re looking to make sure that the entering class has a
certain proportion of entering students of a certain background. There is some notion of sufficiency. The plaintiffs say this is a quota. But the Court in Grutter rejects that argument.
There has been variation from 12% to 20% in minority backgrounds at
It’s not enough that you have a compelling interest here. It seems that it’s essential to the success of the law school’s claim in this case that it’s open to the possibility year to year that they fail to reach “critical mass”. That’s the difference between a quota and a goal, or a quota and a target. Race cannot be outcome-determinative regardless of other considerations. Justice O’Connor thus ties the idea of fluctuation to flexibility. Fluctuation, in her mind, is a product of a process that is sufficiently flexible so race is never entitled to be mechanically or rigidly outcome-determinative. We’ll look at race as one factor, but if it turns out in our applicant pool in a given year that we’re not able to achieve “critical mass”, then we don’t, and we don’t let that factor override all other factors.
We may all have views on this stuff, but ultimately we need to know what the Court thinks about the issues so we can represent clients in Court. For example, are the LSATs inherently racist? But on the other hand, will the current U.S. Supreme Court pay attention to this? Probably not.
of the issues that we talked about yesterday, and one of the issues that’s
lurking in this case is whether we can trust Boalt Hall and
What about this 25-year sunset thing? It may be an effort to narrow the ruling in a particular way. It seems to be O’Connor’s view that even considering diversity is a compelling interest because it goes to the legitimacy of our government, she seems to say that it has a time limit on it. The use of race cannot be unlimited and open-ended, not withstanding the necessity of the government being legitimate to its citizens. You would think it would be imperative to have diversity and the means to achieve it no matter what! 25 years is like a generation. O’Connor thinks we should get over it.