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Topic: “Affirmative Action Admissions Programs in publicly funded institutions of higher education (colleges/universities)” Speaker: William Broderick-Villa.

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Presentation on theme: "Topic: “Affirmative Action Admissions Programs in publicly funded institutions of higher education (colleges/universities)” Speaker: William Broderick-Villa."— Presentation transcript:

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3 Topic: “Affirmative Action Admissions Programs in publicly funded institutions of higher education (colleges/universities)” Speaker: William Broderick-Villa Attorney with Curtis Legal Group September 25, 2013 AMERICAN HERITAGE SCHOLARSHIP SERIES

4 William Broderick-Villa Curtis Legal Group 209-521-1800 1300 K Street Modesto, CA 95354 WBroderick-Villa@CurtisLegalGroup.com Curtis Legal Group attorney William Broderick-Villa received his Juris Doctor from Georgetown University Law Center in Washington DC, where he served as the President of the Student Bar Association. During law school, Mr. Broderick-Villa interned for the Court of Appeals of Maryland (Maryland’s equivalent of California’s Supreme Court) for Judge Sally Adkins. Mr. Broderick-Villa received his Bachelor’s degree from the University of Southern California (USC). Prior to law school Mr. Broderick-Villa was a high school teacher at Waterford High School where he taught primarily Math but also History and Academic Decathlon and served as the Academic Decathlon coach. Mr. Broderick-Villa is involved in education and serves or has served on several education boards including the Ag In Motion Board and the American Heritage Scholarship Committee. Prior to law school William was also involved in local politics. He served first on the Waterford City Council and then as the Mayor of Waterford.

5 Opening (Right Hand/Left Hand warm up) Plan to attend college? Any Giants baseball fans? Any A’s baseball fans? Any right handed people? Any Cricket fans? Opposed to discrimination?

6 Outline I. The Fourteenth Amendment in 14 minutes II. Higher Education III. Diversity as a Virtue IV. Group Identity V.Apples, Oranges, and Common Metrics VI. Affirmative Action Cases, Summary of Arguments VII. Materials/Questions/Thanks

7 "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Fourteenth Amendment to the Constitution, Section 1.

8 "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.“ Fourteenth Amendment to the Constitution, Section 1. Citizenship Clause Privileges or Immunities Clause Due Process Clause Equal Protection Clause

9 "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.“ Fourteenth Amendment to the Constitution, Section 1. Citizenship Clause Privileges or Immunities Clause Due Process Clause Equal Protection Clause Tonight’s Topic

10 Sounds good. How equal is equal? “There is no such thing as a law that treats everyone the same. Every law discriminates.” --Viet Dinh Speeding laws… Attorney licensing act… Probate Code… Cigarette Tax… Minor laws (carding, voting, contracts, etc)… MICRA… Medical Injury Compensation Reform Act (1975) Equal Protection Clause

11 dis·crim·i·nate \dis-kri-mə-nāt\ dis·crim·i·nat·eddis·crim·i·nat·ing "Discriminate." Merriam-Webster.com. Merriam-Webster, n.d. Web. 10 Sept. 2013.. Definition of transitive verb 1a: to mark or perceive the distinguishing or peculiar features of b: distinguish, differentiate 2a: to distinguish by discerning or exposing differences; especially : to distinguish from another like object intransitive verb 1a: to make a distinction b: to use good judgment 2a: to make a difference in treatment or favor on a basis other than individual merit

12 Sounds good. How equal is equal? “All animals are equal, but some animals are more equal than others.” --George Orwell, Animal Farm Equal Protection Clause

13 Three (unequal) levels of “equal protection.” Strict Scrutiny Intermediate Scrutiny (“Heightened Scrutiny”) Rational Basis Applies to Laws: … affecting fundamental right (enumerated right); … burdening discrete and insular minority; religious; national; racial; alienage. Often called “suspect classification” Applies to Laws: … relating to sex/gender; legitimacy Default rule: Applies to all other groups.

14 Three (unequal) levels of “equal protection.” Strict Scrutiny Intermediate Scrutiny (“Heightened Scrutiny”) Rational Basis Requires compelling governmental interest; Law must be narrowly tailored (i.e. least restrictive means) to achieve that interest; Law presumed invalid; burden on government Requires important governmental interest; Law must be substantially related to that interest; Law presumed invalid; b.o.p. on government Requires only legitimate governmental interest; Law must be rationally related to that interest Law presumed valid; b.o.p. on challenger

15 How did this tripartite system of Equal Protection evolve? ?

16 1789Constitution 1791Bill of Rights 1833Barron v. Baltimore, 32 U.S. 243 (1833) 1857Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861Civil War Begins (ends in 1865) 1863Emancipation Proclamation 1865Lincoln Assassinated; 13 th Amendment Ratified 186814 th Amendment 1873Slaughter-House Cases, 83 U.S. 36 (1873) 1896Plessy v. Ferguson, 163 U.S. 537 (1896) 1905Lochner v. New York, 198 U.S. 45 1938US v. Carolene Products Co., 304 U.S. 144 (1938) 1954Brown v. Board of Education, 347 U.S. 483 (1954)

17 1789Constitution 1791Bill of Rights 1833Barron v. Baltimore, 32 U.S. 243 (1833) 1857Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861Civil War Begins (ends in 1865) 1863Emancipation Proclamation 1865Lincoln Assassinated; 13 th Amendment Ratified 186814 th Amendment 1873Slaughter-House Cases, 83 U.S. 36 (1873) 1896Plessy v. Ferguson, 163 U.S. 537 (1896) 1905Lochner v. New York, 198 U.S. 45 1938US v. Carolene Products Co., 304 U.S. 144 (1938) 1954Brown v. Board of Education, 347 U.S. 483 (1954)

18 1789Constitution 1791Bill of Rights 1833Barron v. Baltimore, 32 U.S. 243 (1833) 1857Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861Civil War Begins (ends in 1865) 1863Emancipation Proclamation 1865Lincoln Assassinated; 13 th Amendment Ratified 186814 th Amendment 1873Slaughter-House Cases, 83 U.S. 36 (1873) 1896Plessy v. Ferguson, 163 U.S. 537 (1896) 1905Lochner v. New York, 198 U.S. 45 1938US v. Carolene Products Co., 304 U.S. 144 (1938) 1954Brown v. Board of Education, 347 U.S. 483 (1954) Chief Justice John Marshall held that the first ten “amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.” Barron v. Baltimore, 32 U.S. 243, 250.

19 1789Constitution 1791Bill of Rights 1833Barron v. Baltimore, 32 U.S. 243 (1833) 1857Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861Civil War Begins (ends in 1865) 1863Emancipation Proclamation 1865Lincoln Assassinated; 13 th Amendment Ratified 186814 th Amendment 1873Slaughter-House Cases, 83 U.S. 36 (1873) 1896Plessy v. Ferguson, 163 U.S. 537 (1896) 1905Lochner v. New York, 198 U.S. 45 1938US v. Carolene Products Co., 304 U.S. 144 (1938) 1954Brown v. Board of Education, 347 U.S. 483 (1954)

20 1789Constitution 1791Bill of Rights 1833Barron v. Baltimore, 32 U.S. 243 (1833) 1857Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861Civil War Begins (ends in 1865) 1863Emancipation Proclamation 1865Lincoln Assassinated; 13 th Amendment Ratified 186814 th Amendment 1873Slaughter-House Cases, 83 U.S. 36 (1873) 1896Plessy v. Ferguson, 163 U.S. 537 (1896) 1905Lochner v. New York, 198 U.S. 45 1938US v. Carolene Products Co., 304 U.S. 144 (1938) 1954Brown v. Board of Education, 347 U.S. 483 (1954)

21 1789Constitution 1791Bill of Rights 1833Barron v. Baltimore, 32 U.S. 243 (1833) 1857Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861Civil War Begins (ends in 1865) 1863Emancipation Proclamation 1865Lincoln Assassinated; 13 th Amendment Ratified 186814 th Amendment 1873Slaughter-House Cases, 83 U.S. 36 (1873) 1896Plessy v. Ferguson, 163 U.S. 537 (1896) 1905Lochner v. New York, 198 U.S. 45 1938US v. Carolene Products Co., 304 U.S. 144 (1938) 1954Brown v. Board of Education, 347 U.S. 483 (1954)

22 1789Constitution 1791Bill of Rights 1833Barron v. Baltimore, 32 U.S. 243 (1833) 1857Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861Civil War Begins (ends in 1865) 1863Emancipation Proclamation 1865Lincoln Assassinated; 13 th Amendment Ratified 186814 th Amendment 1873Slaughter-House Cases, 83 U.S. 36 (1873) 1896Plessy v. Ferguson, 163 U.S. 537 (1896) 1905Lochner v. New York, 198 U.S. 45 1938US v. Carolene Products Co., 304 U.S. 144 (1938) 1954Brown v. Board of Education, 347 U.S. 483 (1954)

23 1789Constitution 1791Bill of Rights 1833Barron v. Baltimore, 32 U.S. 243 (1833) 1857Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861Civil War Begins (ends in 1865) 1863Emancipation Proclamation 1865Lincoln Assassinated; 13 th Amendment Ratified 186814 th Amendment 1873Slaughter-House Cases, 83 U.S. 36 (1873) 1896Plessy v. Ferguson, 163 U.S. 537 (1896) 1905Lochner v. New York, 198 U.S. 45 1938US v. Carolene Products Co., 304 U.S. 144 (1938) 1954Brown v. Board of Education, 347 U.S. 483 (1954) Citizenship Clause Privileges or Immunities Clause Due Process Clause Equal Protection Clause

24 1789Constitution 1791Bill of Rights 1833Barron v. Baltimore, 32 U.S. 243 (1833) 1857Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861Civil War Begins (ends in 1865) 1863Emancipation Proclamation 1865Lincoln Assassinated; 13 th Amendment Ratified 186814 th Amendment 1873Slaughter-House Cases, 83 U.S. 36 (1873) 1896Plessy v. Ferguson, 163 U.S. 537 (1896) 1905Lochner v. New York, 198 U.S. 45 1938US v. Carolene Products Co., 304 U.S. 144 (1938) 1954Brown v. Board of Education, 347 U.S. 483 (1954) Justice Stephen FieldJustice Samuel Miller

25 Justice Stephen Field First Californian on U.S. Supreme Court Formerly the 5 th Chief Justice of California Supreme Court Appointed by Lincoln His body guard shot and killed California’s 4 th Chief Justice, David S. Terry, in Lathrop, in 1889 In re Neagle California Trivia (not on test) Chief Justice David S. Terry The 4 th Chief Justice of California Supreme Court Buried in Stockton Pro-slavery Democrat Shot and killed his former friend / turned political rival, U.S. Senator David Broderick David Broderick (no relation) U.S. Senator from California Free Soil Democrat Death in 1859 at the hands of California Chief Justice tipped the state towards joining the Civil War on behalf of the Union Died in San Francisco

26 1789Constitution 1791Bill of Rights 1833Barron v. Baltimore, 32 U.S. 243 (1833) 1857Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861Civil War Begins (ends in 1865) 1863Emancipation Proclamation 1865Lincoln Assassinated; 13 th Amendment Ratified 186814 th Amendment 1873Slaughter-House Cases, 83 U.S. 36 (1873) 1896Plessy v. Ferguson, 163 U.S. 537 (1896) 1905Lochner v. New York, 198 U.S. 45 1938US v. Carolene Products Co., 304 U.S. 144 (1938) 1954Brown v. Board of Education, 347 U.S. 483 (1954)

27 "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.“ Fourteenth Amendment to the Constitution, Section 1. Citizenship Clause Privileges or Immunities Clause Due Process Clause Equal Protection Clause Slaughtered by Slaughterhouse Five Replaced by “Separate but Equal” farce in Plessy v. Ferguson

28 1789Constitution 1791Bill of Rights 1833Barron v. Baltimore, 32 U.S. 243 (1833) 1857Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861Civil War Begins (ends in 1865) 1863Emancipation Proclamation 1865Lincoln Assassinated; 13 th Amendment Ratified 186814 th Amendment 1873Slaughter-House Cases, 83 U.S. 36 (1873) 1896Plessy v. Ferguson, 163 U.S. 537 (1896) 1905Lochner v. New York, 198 U.S. 45 1938US v. Carolene Products Co., 304 U.S. 144 (1938) 1954Brown v. Board of Education, 347 U.S. 483 (1954)

29 1789Constitution 1791Bill of Rights 1833Barron v. Baltimore, 32 U.S. 243 (1833) 1857Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861Civil War Begins (ends in 1865) 1863Emancipation Proclamation 1865Lincoln Assassinated; 13 th Amendment Ratified 186814 th Amendment 1873Slaughter-House Cases, 83 U.S. 36 (1873) 1896Plessy v. Ferguson, 163 U.S. 537 (1896) 1905Lochner v. New York, 198 U.S. 45 1938US v. Carolene Products Co., 304 U.S. 144 (1938) 1954Brown v. Board of Education, 347 U.S. 483 (1954)

30 1938US v. Carolene Products Co., 304 U.S. 144 (1938) U.S. Supreme Court upholds the constitutionality of The Filled Milk Act, 42 Stat. 1486, which Congress passed in 1923 to regulate certain dairy products. Decision signals end of Lochner era scrutiny as applied to economic regulations. FOOTNOTE 4: Carolene Products is most famous for FN 4, which sets forth a framework for varying levels of Equal Protection analysis and scrutiny (i.e. strict scutiny for laws affecting discrete and insular minorities, or infringing on fundamental rights) that has been adopted by the Court and is still used today. The most famous footnote in Supreme Court history, FN 4 has been the subject of numerous scholarly journals and cited in many court decisions since 1938 (you can even Google “Footnote 4”).

31 1789Constitution 1791Bill of Rights 1833Barron v. Baltimore, 32 U.S. 243 (1833) 1857Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861Civil War Begins (ends in 1865) 1863Emancipation Proclamation 1865Lincoln Assassinated; 13 th Amendment Ratified 186814 th Amendment 1873Slaughter-House Cases, 83 U.S. 36 (1873) 1896Plessy v. Ferguson, 163 U.S. 537 (1896) 1905Lochner v. New York, 198 U.S. 45 1938US v. Carolene Products Co., 304 U.S. 144 (1938) 1954Brown v. Board of Education, 347 U.S. 483 (1954)

32 Chief Justice of the United States Earl Warren First Californian to become Chief Justice of the United States (14 th U.S. Chief Justice) Formerly the 30 th Governor of California Wrote Brown v. Board of Education, 9-0 opinion California Trivia (not on test) Succeeded as Chief Justice of the United States by Warren Earl Burger, 15 th U.S. Chief Justice (no relation)

33 1789Constitution 1791Bill of Rights 1833Barron v. Baltimore, 32 U.S. 243 (1833) 1857Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861Civil War Begins (ends in 1865) 1863Emancipation Proclamation 1865Lincoln Assassinated; 13 th Amendment Ratified 186814 th Amendment 1873Slaughter-House Cases, 83 U.S. 36 (1873) 1896Plessy v. Ferguson, 163 U.S. 537 (1896) 1905Lochner v. New York, 198 U.S. 45 1938US v. Carolene Products Co., 304 U.S. 144 (1938) 1954Brown v. Board of Education, 347 U.S. 483 (1954)

34 1789Constitution 1791Bill of Rights 1833Barron v. Baltimore, 32 U.S. 243 (1833) 1857Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861Civil War Begins (ends in 1865) 1863Emancipation Proclamation 1865Lincoln Assassinated; 13 th Amendment Ratified 186814 th Amendment 1873Slaughter-House Cases, 83 U.S. 36 (1873) 1896Plessy v. Ferguson, 163 U.S. 537 (1896) 1905Lochner v. New York, 198 U.S. 45 1938US v. Carolene Products Co., 304 U.S. 144 (1938) 1954Brown v. Board of Education, 347 U.S. 483 (1954)

35 15 th Amendment: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. 19 th Amendment: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex…. 24 th Amendment: The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax. 26 th Amendment: The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. Question: Why are the following framed in the negative?

36 14 minutes?

37 II.Higher Education Education Important to founding of Nation, even prior to Constitution (written 1787, ratified 1789) Continental Congress: Land Ordinance of 1785 One square mile of every 36 set aside for education (Section 16) 2.78% education set-aside Each section 640 acres, or 1 mile square

38 Alexis de Tocqueville By 1830s, de Tocqueville wrote a friend in Paris that “[t]he effort made in this country to spread instruction is truly prodigious. The universal and sincere faith that they profess here in the efficaciousness of education seems to me one of the most remarkable features of America…”

39 Source: The College Payoff. Georgetown University Center on Education and the Workforce (CEW), Carnervale/Cheah/Rose, 2011 http://cew.georgetown.edu/collegepayoff/

40 Beware!!! The “My uncle / my cousin” fallacy Rich Uncle DropoutPoor Cousin Booksmarts Ergo, statistics lie and college is a waste of time Q.E.D.

41 $973,000 $1,304,000 $1,547,000 $1,727,000 $2,268,000 $2,671,000 $3,252,000 $3,648,000 Source: The College Payoff. Georgetown University Center on Education and the Workforce (CEW), Carnervale/Cheah/Rose, 2011 http://cew.georgetown.edu/collegepayoff/

42 My uncle My cousin Source: The College Payoff. Georgetown University Center on Education and the Workforce (CEW), Carnervale/Cheah/Rose, 2011 http://cew.georgetown.edu/collegepayoff/

43 Source: The College Payoff. Georgetown University Center on Education and the Workforce (CEW), Carnervale/Cheah/Rose, 2011 http://cew.georgetown.edu/collegepayoff/

44 Things to consider… College spaces are limited Those with college degrees on average earn more than those without Publicly funded institutions of higher education are strapped for cash, and must decide whom to admit and whom to reject How should society allocate such a valuable resource? If certain groups are underrepresented, should society intervene?

45 Dr. Abbott Lawrence Lowell, President of Harvard 1909-1933 History of explicit racism Dr. Lowell tried to limit Jewish enrollment Tried to prohibit African American students from living in Freshman dorms (otherwise mandatory at Harvard) Successfully implemented modern testing and applications system still in use today (See Justice Thomas’ critique in Supreme Court decisions and suggested documents on Curtis Legal Group website) See article: The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton. Article by Jerome Karabel. Excerpt from Higher Education and the Law, 588-91, Foundation Press, Areen, 2009 Curtis Legal Group website

46 Today colleges celebrate diversity…

47 …and being outdoors.

48 III. Diversity as a Virtue Trustees have a fiduciary duty to diversify. California Probate Code§ 16048. In making and implementing investment decisions, the trustee has a duty to diversify the investments of the trust unless, under the circumstances, it is prudent not to do so.

49 Crops lacking diversification are susceptible to disease. Irish Potato Famine 1845-1852 exacerbated by overreliance on one variety of potato, the Irish Lumper varietal

50 Ancient Romans valued uniformity and pragmatism. So why are brick arches embedded within flat walls? Value of diversity in Roman architecture?

51 Pantheon Backside

52 Inca walls Another example of strength through diversity

53 Lack of genetic diversity Inbreeding within English Monarch/ among European royalty Case Study:Queen Victoria and Hemophilia

54 Is diversity good in the realm of ideas as well? Groupthink “…The more amiability and esprit de corps there is among the members of a policy-making ingroup, the greater the danger that independent critical thinking will be replaced by groupthink, which is likely to result in irrational and dehumanizing actions directed against outgroups.” --Irving Janis, Research Psychologist Bay of Pigs Fiasco Corporate boards

55 America’s Strength as diversity? E PLURIBUS UNUM “From many, one” Melting pot metaphor Salad bowl metaphor

56 Dr. Clark Kerr President of the University of California, 1958-1967 The Uses of the University, Observation on Institutions over 500 years old The Uses of the University, 95 (5 th ed. 2001) quote from Alfred North Whitehead

57 IV. Group Identity Gary Larson, The Far Side

58 Proxies If diversity of opinions/ideas is a goal, does diversity of the following help colleges and universities achieve that goal? Ethnic minorities? Religious minorities? Economic minorities? Gender minorities? Geographic minorities? Disability/Sexual Orientation/Age, other minorities? Handedness? (dexterous/sinister and historical prejudice)?

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61 Beware!!! The “My uncle / my cousin” fallacy Uncle S.F. GiantslayerCousin L.A. Giantfan Ergo, group / geographic identity is wrong Q.E.D.

62 V. Apples, Oranges, and Common Metrics When discussing fruit, Ximena, Yesenia and Zelda ranked their favorites (as between Apples, Bananas, and Cherries) as follows: XYZ 1 st abc 2 nd bca 3 rd cab

63 A majority prefer Apples over Bananas (i.e. Ximena and Zelda, or 2/3 or 66.67%) A majority prefer Bananas over Cherries (i.e. Ximena and Yesenia, or 2/3 or 66.67%) A majority prefer Cherries over Apples (i.e. Yesenia and Zelda, or 2/3 or 66.67%)

64 U.C. Fairfield has room for two more students. Here’s how they rank: MathEnglishHistory 1 st Abe Bob Chris 2 nd Bob Chris Abe 3 rd Chris Abe Bob

65 If you admit Abe and Bob, then Chris will complain: “No fair, I beat Abe in 2 out of 3 subjects.” (i.e. English and History) If you admit Bob and Chris, then Abe will complain: “No fair, I beat Bob in 2 out of 3 subjects.” (i.e. Math and History) If you admit Abe and Chris, then Bob will complain: “No fair, I beat Chris in 2 out of 3 subjects.” (i.e. Math and English) Abe BobChris

66 **Highly recommended** For a more complete (and easily readable) treatment of “Social Choice Theory,” See article: The Paradoxes of Democracy Excerpt from: Excursions in Modern Mathematics, 2nd Edition, Prentice-Hall, Peter Tannenbaum, 1995. Curtis Legal Group website

67 Academic Decathlon

68 Two runners: Runner on right has excellent form and finishes just ahead of runner on left. Runner on left has poor form, and can’t quite seem to catch runner on right. Q:You’re the coach, whom do you choose? (Show of hands) A:You choose the runner with poor form, because his performance can be improved with technique and training. Faster runner has perfect form and is performing at potential. No room for improvement.

69 VI. Affirmative Action Cases, Summary of Arguments Only four Supreme Court cases that deal with affirmative action programs in publicly funded institutions of higher education Bakke(1978) Gratz(2003) Grutter(2003) Fisher (2013)so recent it doesn’t have a page number yet in the United States Reports This is manageable: Everyone can read these cases. Links to all are on the Curtis Legal Group website. Note:American Heritage Scholarship Committee waited to release this year’s prompt until Fisher was decided

70 Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978)

71 UC Davis Medical School Opened 1968 50 students (94% white) –3 Asians –No African Americans –No Mexican Americans –No Native Americans Increased enrollment in 1971 to100 students –Of these, 16 seats were set aside for special admission –Remaining 84 seats were under general admission Six opinions; no single opinion carried majority of Court Judgment: Bakke admitted Harvard model, cited approvingly by Justice Powell, quickly becomes national model Justice Powell Justice Brennan White Marshall Blackmun Stevens C.J. Burger Rehnquist Stewart UC Davis’ Racial set aside or quota violates Equal Protection. Bakke ordered admitted Race can be taken into account for rationale of “Diversity” Pay particular attention to opinions of Justice Powell, Marshall, and Stevens Curtis Legal Group website

72 Gratz v. Bollinger, 539 U.S. 244 (2003)

73 University of Michigan, Undergrad Tinkered with several admissions systems Factors considered: grades; scores; school quality; curriculum strength; geography; alumni relationships; leadership; race 150 point system –100-150 (Admit) –95-99 (Admit or Postpone) –90-94 (Postpone or Admit) –75-89 (Delay or Postpone) –74 and below (delay or reject) 20 points automatically awarded for membership in an underrepresented racial or ethnic minority group A perfect SAT score was worth 12 points Seven opinions; Majority opinion 5-4 Automatic Point System overturned 6-3 (Breyer concurring in judgment) Opinion: C.J. Rehnquist O’Connor Scalia Kennedy Thomas Pay particular attention to opinions of Chief Justice Rehnquist, Justice Thomas concurrence, Justice Ginsburg dissent Curtis Legal Group website

74 Grutter v. Bollinger, 539 U.S. 306 (2003)

75 University of Michigan, Law School Admissions considered: –Personal Statement; –Letters of Recommendation –Essay regarding contribution to Diversity –GPA –LSAT “Soft” factors considered as well High Score no guarantee of admission; low score no guarantee of rejection Barbara Grutter, 3.8 GPA and 161 LSATapplied in 1996 and was waitlisted Court Upheld Michigan Law School Admission program Opinion: Justice O’Connor Stevens Souter Ginsburg Breyer Pay particular attention to opinions of Justice O’Connor, concurrence by Ginsburg, Dissent by Scalia, Dissent by Justice Thomas (one of his most passionate and well argued), Dissent by C.J. Rehnquist, and Dissent by Kennedy. Curtis Legal Group website

76 Fisher v. University of Texas, 570 U.S. ___ (2013)

77 University of Texas 10% plan Vacated and remanded the Fifth Circuit's ruling Fifth Circuit failed to apply strict scrutiny Remanded for further fact-finding Much re-hashing of earlier arguments, punting on merits (See Scalia concurrence). Details left as exercise Opinion 7-1 Decisions: Kennedy, C.J. Roberts, Scalia, Thomas, Breyer, Alito, Sotomayor Pay particular attention to Dissent by Justice Thomas and Dissent by Justice Ginsburg. Curtis Legal Group website

78 VII. Materials / Questions / Thanks www.CurtisLegalGroup.com “Attorney Profiles” “William Broderick-Villa” “American Heritage Scholarship Series 2013 Supreme Court decisions and suggested documents”

79 American Heritage Scholarship Series 2013 Supreme Court decisions and suggested documents

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