Very interesting stuff all. Reading these cases always piques my interest.
Lad wrote:I gotta be honest, after oral arguments for Fisher v UT II on Wednesday, it doesn't look good for URM's looking to apply next cycle. It seems as if Kennedy, the swing vote will side Thomas, Alito, Roberts and Scalia on this one and vote to end affirmative action altogether. If this is the case there will almost certainly be a precipitous decline in URM representation in many of the T-14 schools, particularly at HYS.
HYS are private schools and can do whatever they want. It would only really impact UVA Michigan and Cal
did the civil rights act get repealed?
I think part of the argument against affirmative action is that it violates the Civil Rights Act of 1964. The idea is that the Civil Rights Act prohibits discrimination on the basis of race by any agency which receives federal funding (which includes private schools, if their students are getting pell grants, etc.), and that affirmative action is discrimination. I think this one is fairly easy to understand - if it was the reverse, and schools had policies giving preference to whites, everyone would call it racial discrimination - discrimination is discrimination. Whether you discriminate against whites or blacks its still discrimination.
Lad wrote:Scalia, Roberts and Alito, grilled UT's lawyer and made it explicitly clear that they hate affirmative action, not surprising. Thomas as usual didn't say anything, but everybody knows he's against affirmative action and that he's the most conservative justice on the court. The liberal judges: Breyer, Ginsburg and Sotomayor defended AA, and Kennedy (the swing vote) was more so irritated at the fact that they were arguing the same case after it was sent back to the appeals court a couple years back. Furthermore, Kennedy has never ever voted to uphold affirmative action, so if precedent is at all indicative of how he'll vote this time around, it doesn't bode well for affirmative action. Moreover, i'm pretty sure this would overturn Grutter and make using race as a factor in admissions illegal, would it not?
I mostly just want to make note about Thomas's jurisprudence. I don't think the conservative v liberal mode is useful with judges, and Thomas is more than just a conservative. I realize this isn't going to be news to most here, but he's a textualist who doesn't care much about precedence. And I read once that he doesn't speak in court because he believes that in all but one or two cases a year, the justices know their opinion before the case is even heard.
I think that this will be something similar to what it was before. I don't think we're going to get a decision saying AA is legal, nor are we going to get one saying "it ends here", we're going to get some kind of half measure. Previously universities were told that have 25 years to phase out AA, if I remember right - and they've got 12 left? With what I presume is not signs of scaling back. I assume the judges will insert something more firm saying that universities have to start phasing it out, but will still give them ample time to do so.