Constitutional
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
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
Gratz v.
Bollinger
The
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.
How
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
other applicant.
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.
But
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.
The
lawyers from
One
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.