Con Law: Affirmative Action Hypo HELP

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Con Law: Affirmative Action Hypo HELP

Postby joetheplumber » Sat May 11, 2013 10:13 pm

So basically I need help on deciding what is race-neutral and what are race-conscious means.

Hypo: Stanford College sees that there are less black students in the school. Troubled by this turn of event, Stanford decides to undertake some measures to reverse the recent trend. They then find 10 high schools in California with the most black students in them and automatically admits the top 5% from these 10 high schools.

Question 1: Is this plan facially discriminatory? I have trouble deciding whether this is a racial classification or not.

Question 2: Assuming no, there is still discriminatory purpose correct? Since Stanford wants to reverse the trend and wants to admit more black students. (This is for Washington v. Davis)

Question 3: These is disparate impact/ discriminatory effect since more blacks will be admitted than other race under this plan correct?

As such, this plan will be under strict scrutiny. My question would be whether SS is triggered under "facially discriminatory" or via discriminatory purpose and impact. I can't see to tell whether a law is facially discriminatory or not in this situation.

Since SS would be used, there must be a compelling interest and narrowly tailored. Lets assume that the compelling interest is for diversity in higher education. My question is whether this is narrowly tailored. According to Kennedy, race neutral means are narrowly tailored while race-conscious means are not narrowly tailored.

Question 4: Is this 5% plan with top 10 high school with most black a race-conscious mean or a race neutral mean? I can't tell the difference. If it is race-neutral, it passes narrowly tailored correct? But if it a race conscious mean, then it does not correct?

Thanks guys

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Re: Con Law: Affirmative Action Hypo HELP

Postby nyg22 » Sat May 11, 2013 11:32 pm

Question 1 - I think this plan is facially discriminatory as there is a distinctly separate plan to admit the top 5% students only at the predominantly black high schools. Contrast this plan with the admission policy in Fisher v. Texas, where 10% of all HS students gain automatic entrance into the university. The Texas plan is facially neutral even though it was clearly instituted to increase racial diversity.

Question 2 - Like I said above, I would go with facially discriminatory. but I suppose you could alternatively say its facially neutral, but w/ discriminatory purpose.

Question 3 - Yes disparate effect - but not really relevant to EPC analysis. I think this is more relevant in the Title VII cases, see Washington v. Davis, Greggs, etc.

If P can show the plan is facially discriminatory or facially-neutral w/ discriminatory purpose, the courts applies SS. If the P can only show discriminatory effect, rational basis applies. With respect to the plan, it may fail Grutter's holistic, individual approach to admissions as Stanford is automatically admitting the students attending high URM% schools w/o evaluating each applicant's contribution to diversity. Further, the plan almost seems more like Gratz as it is automatically assigning bonus points to students who go to schools with with a high % of URM students. Stanford might counter that non-URM students at these schools can qualify, but I think this argument would lose considering Kennedy's obsession with dignitary concerns. The dignitary concerns being that these students gain the benefit of automatic admission simply by attending a predominantly black school (similar, but not exactly the same as check-the-box race admission)

Question 4 - Generally, race-neutral plans will pass as narrowly tailed. Race conscious may also pass as narrowly tailored as long as they follow the holistic, individualized approach that is outlined in Grutter. Overall, I think courts would view this plan as race-concious, as Stanford is selecting the basis of the 5% admission based on a proxy for race. There is a counter-argument that white students in these predominantly URM schools can gain admission, and Stanford can claim that its plan to increase diversity is to select the top academically ranked URM students, which is distinct from simply giving URM's extra points or allotting a quota for URMs.

Posts: 178
Joined: Sat Sep 18, 2010 7:23 pm

Re: Con Law: Affirmative Action Hypo HELP

Postby joetheplumber » Sun May 12, 2013 1:33 pm

Wow, this was actually really good. You must have aced your Con law exam. Damn

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