* Professor of Law, Columbia University. A.B. 1945, LL.B. 1948, Columbia University. Dean, Columbia College (1989–1993). Director-Counsel, NAACP Legal Defense and Educational Fund (1961–1984). I am grateful to the following Columbia Law students for their assistance with this article: Bryan Sells, Erez Liebermann, Michelle Burg, Zakiyyah Salim, Scott Chesin, and reference librarian Dana Neacsu. I am grateful also for advice of friends and colleagues: Mike Dorf, Cindy Estlund, Jeff Fagan, Sam Issacharoff, Jim Milligan, Henry Monaghan, James M. Nabrit, III, Andrzej Rapaczynski, Richard Ford, Teddy Shaw, Susan Sturm, and Kendall Thomas. This article is an expanded version of my 1998 Dean’s Distinguished Lecture at Columbia University College of Physicians and Surgeon’s Medical School. It deals only with affirmative action for African-Americans in higher education. Other groups, for example, Hispanics, Native Americans, and Asians, and other activities, for example, small business and employment, have their own unique features and require somewhat different discussion.
1 Grover Cleveland, Third Annual Message to Congress (Dec. 6, 1887).
2 See infra Part II.
3 See infra Part I.A.
4 See infra Part I.B.
5 See infra Part I.C.
6 See infra Part I.D.
7 See infra Part I.D.
8 See infra Part I.E.
9 See infra Part II.
10 See infra Part II.A.1.
11 See infra Part II.B.
12 438 U.S. 265, 312 (1978).
13 Id. at 319–20.
14 Hopwood v. Texas, 78 F.3d 932, 944 (5th Cir. 1996) [Hopwood I].
15 See infra Part III.
16 See infra Part II.A.1.
17 See infra Part II.A.1.
18 See infra Part III.A.
19 See infra Part III.A.
20 See infra Part III.A.2.
21 See infra Part IV.
22 Christopher Jencks & Meredith Phillips, The Black-White Test Score Gap: An Introduction, in The Black White Test Score Gap 1, 3 (Christopher Jencks & Meredith Phillips eds., 1998) [hereinafter Test Score Gap].
23 Id. at 1.
24 Id. These percentages mean that if the black-white distributions are normal and have the same standard deviation, and if the black-white gap is one (black or white) standard deviation, when the authors compare a randomly selected black to a randomly selected white, the black will score higher than the white 24% of the time. If the black-white gap is 0.75 rather than 1.00 standard deviation, a randomly selected black will score higher than a randomly selected white about 30% of the time. Id.
The score gap has narrowed since 1970, but that trend may be reversing. Between 1988 and 1998, blacks’ average SAT score rose 1%; during the same period, whites’ scores increased more. By 1998, the gap had grown to 194 points. See Why There Has Been No Progress in Closing the Black-White SAT Gap, 22 J. Blacks Higher Educ. 6, 6–7 (Winter 1998/1999) [hereinafter Why There Has Been No Progress].
25 Reluctantly, I am using the U.S. News & World Report ratings, which often make unwarranted discriminations among schools, incorporating factors that have no necessary relationship to quality of education. The weight U.S. News gives to SATs and similar tests discourages schools from engaging in affirmative action, because admitting low scoring blacks reduces test score average, and thereby, a school’s position in the ratings hierarchy. But they are the only widely circulated ratings. By encouraging or discouraging applications they affect a school’s selectivity and have evolved into a self-fulfilling prophecy of how a school will be regarded by the general public.
26 On college selectivity or competitiveness, see Barron’s Profiles of American Colleges 223–1622 (23d ed. 1999).
27 Barron’s designates fifty-four schools as most competitive. Id. Admission to one of these schools requires rank in the top 10% to 22% of high school class, a B+ to A average, and a score of 655 to 800 on each of the SATs. Id. Barron’s labels about 100 schools as highly competitive. Id. Admission to one of these highly competitive schools requires placing in the top 20% to 35% of high school class and a score of 620–650 on the SATs. Id. The vast majority of other schools are labeled at lesser levels of competitiveness. Id.
28 Theodore Cross & Robert Slater, Special Report: Affirmative Action and Black Access to Higher Education, 17 J. Blacks Higher Educ. 8, 10 (Fall 1997).
29 The ACT, a test similar to the SAT, is given mainly in the Midwest and the South. See id.
30 Id.
31 Id. at 12. The median score at Yale is 171; at second-tier schools (ranking fifty-first to eighty-ninth in U.S. News rankings), it is 153 to 161; at third-tier schools, it ranges from 150 to 157; at fourth-tier schools, it runs from 144 to 154. Id. Only 1745 blacks scored at or above 150, the median score for students at most of what U.S. News calls the third and fourth tier law schools. Id. More than 36,000 whites scored above 150. Id. at 14.
32 Id. at 16.
33 Cross & Slater, supra note 28, at 16. In pre-med science courses, blacks admitted to medical school had a grade point average (GPA) of 3.09, whites, 3.58. The average GPA of whites who were rejected was 3.28, higher than the GPA of admitted blacks. Id.
34 Id. at 17.
35 Calculating the Impact of a Rollback of Affirmative Action on the Nation’s Major MBA Programs, 18 J. Blacks Higher Educ. 6 (Winter 1997/1998) [hereinafter Calculating the Impact]. In 1994–95, only 422 black students in the whole country scored over 600, while 22,429 whites did. Id. at 6–7. In the same year, only thirty-three blacks scored over 700, while 3238 whites did. Id. at 7–8.
In 1960, before affirmative action, blacks were less than 2% of all executives, managers, and administrators; now they comprise 7.2%. Id. at 9.
36 Id. at 8.
37 Id.
38 Cross & Slater, supra note 28, at 8.
39 What if Private Universities Were Forced to Abandon Affirmative Action, 28 J. Blacks Higher Educ. 6, 7 (Summer 2000) [hereinafter What if Private Universities].
40 A Nationwide Ban on Race-Sensitive Admissions Would Have a More Serious Impact on African-American Higher Education Than Most People Expect, 31 J. Blacks Higher Educ. 14, 14–15 (Spring 2001) [hereinafter A Nationwide Ban] (“[A]t all colleges and universities surveyed the average combined SAT score of admitted black students was lower than the average combined score of admitted white students . . . not only at flagship state universities but at second—and third—tier institutions.”) (citing Robert Lenner & Althea K. Naqai, Center for Equal Opportunity, Pervasive Preferences: Racial and Ethnic Differences in Undergraduate Admissions Across the Nation (2001) (report on file with Boston College Law Review until May, 2003)).
41 See William J. Bowen & Derek Bok, The Shape of the River 7 (1998) (“[T]he percentage of blacks enrolled in Ivy League colleges rose from 2.3 in 1967 to 6.3 in 1976, while the percentages in other ‘prestigious’ colleges grew from 1.7 to 4.8. Meanwhile, the proportion of black medical students had climbed to 6.3 percent by 1975 and black law students had increased their share to 4.5 percent.”).
42 See William Claiborne, Affirmative Action Ban Is Upheld, Wash. Post, Apr. 9, 1997, at A1.
43 William Booth, U. of Calif. Ends Racial Preferences, Wash. Post, July 21, 1995, at A1.
44 See Initiative 200, Proposed Washington State Civil Rights Initiative, at http://www. secstate.wa.gov/inits/text/i200.htm (last visited Feb. 8, 2002).
45 78 F.3d 934 (5th Cir. 1996). A second Hopwood decision, Hopwood v. Texas, 236 F.3d 256 (5th Cir. 2000) (Hopwood II), that moderated the Fifth Circuit’s ruling in Hopwood I, has had little discernible effect in reviving affirmative action in that Circuit. See Hopwood II, 236 F.3d at 267–77 (summarizing the differences between Hopwood I and Hopwood II).
46 See infra Part I.D.1.
47 See Mark Hollis, Lawmakers Hope to Revive Rage Against One Florida, Orlando Sentinel, June 19, 2000, at C3; Clarence Page, Jeb Bush Plan for Colleges Offers Good Solutions, Orlando Sentinel, Nov. 30, 1999, at A13.
48 See Podberesky v. Kirwan, 38 F.3d 147, 151 (4th Cir. 1994).
49 See Grutter v. Bollinger, 137 F. Supp. 2d 821 (E.D. Mich. 2001), rev’d, 247 F.3d 631 (6th Cir. 2001); Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000), aff’d, 135 F. Supp. 2d 790 (E.D. Mich. 2001).
50 See Gratz, 122 F. Supp. 2d at 814 (striking down the University policy from 1995 to 1998, but upholding its 1999–2000 policy as a legitimate means to achieve diversity); Gratz, 135 F. Supp. 2d at 802 (rejecting argument that 1995 to 1998 policy remedied past or present discrimination).
51 See Grutter, 137 F. Supp. 2d at 872 (holding that the law school’s use of race as a factor violated Title VI of the 1964 Civil Rights Act, that diversity of the student body was not a compelling state interest and not narrowly tailored, and that the law school could not claim that remedying societal discrimination is a compelling state interest); Grutter, 247 F.3d at 633 (granting stay of injunction pending expedited appeal because the district court’s interpretation of Bakke diverged from other courts’ interpretations, including the Gratz decision).
52 Johnson v. Bd. of Regents, 263 F.3d 1234, 1237 (11th Cir. 2001).
53 See, e.g., id. at 1237 (basing the decision on a violation of Fourteenth Amendment’s Equal Protection clause, but noting that the University also violated Title VI); Grutter, 137 F. Supp. 2d at 872 (same).
54 See Civil Rights Act of 1964, Title VI, 42 U.S.C. � 2000(d) (1994) (covering non-state actors who receive federal funds); see also Id. � 1981 (granting all persons within the United States the same right to make and enforce contracts as that enjoyed by white citizens; no state action is required). Title VI and the Equal Protection clause are coterminous. See Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 589–90 (1983); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 287 (1978).
55 See Alexander v. Sandoval, 532 U.S. 275, 285–86 (2001) (holding that individuals have no private right of action to enforce regulations that prohibited discriminatory impact of conduct by federal funding recipients, because implementing statute only prohibited intentional discrimination in federal programs).
56 See Why There Has Been No Progress, supra note 24, at 9.
57 347 U.S. 483 (1954).
58 See Jencks & Phillips, supra note 22, at 9.
59 Id. at 10 (“In the 1960s and 1970s, many conservatives blamed blacks’ problems on a culture of poverty that rejected school achievement, the work ethic, and the two-parent family in favor of instant gratification and episodic violence.”).
60 Id.
61 Id. Jencks and Phillips summarize related research as well, but those studies yield no definitive conclusions. See id. at 16–20.
62 Id. at 9. Other commentators recognize similar effects. According to Elijah Anderson:
To accept the school would be to give in and act white, to give up the value of the street for some other thing. And the value of that other thing has not been sufficiently explained. . . . In fact, the code of the street, and by extension the oppositional culture, competes very effectively with traditional values. . . . Alienated black students take on the oppositional role so effectively that they often become models for other disaffected students.
Elijah Anderson, Code of the Street 97 (1999); see also William Julius Wilson, When Work Disappears: The World of the New Urban Poor 72 (1996).
63 See Bowen & Bok, supra note 41, at 84.
64 See Jencks & Phillips, supra note 22, at 11.
65 Explaining the Gap in Black-White Scores on IQ and College Admissions Tests, 18 J. Blacks Higher Educ. 94, 96 (Winter 1997/1998) [hereinafter Explaining the Gap] (article adapted from American Psychological Association, Task Force Report (1996) (chaired by Ulric Neisser of Emory University)).
66 Claude M. Steele & Joshua Aronson, Stereotype Threat and the Test Performance of Academically Successful African Americans, in Test Score Gap, supra note 22, at 402; see also Claude Steele, A Threat in the Air: How Stereotypes Shape Intellectual Identity and Performance, 52 Am. Psychologist 613, 614 (1997). But cf. Richard Herrnstein & Charles Murray, The Bell Curve: Intelligence and Class Structure in American Life (1995) (exploring ways that low intelligence, independent of social, economic, or ethnic background lies at the root of social problems in the United States).
67 See Richard E. Nisbett, Race, Genetics, and IQ, in Test Score Gap, supra note 22, at 86–90. There also are studies of German children born to American soldiers in Germany that offer little or no support for the genetic explanation. One such study reports that among several hundred children fathered by American soldiers in Germany, those fathered by black G.I.s had an average IQ of 96.5, whereas those fathered by white G.I.s had an average IQ of 97. See id. at 91.
68 See Herrnstein & Murray, supra note 66, at 105–10, 309–11.
69 See generally The Bell Curve Wars (Steven Fraser ed., 1995).
70 Nisbett, supra note 67, at 89.
71 See id. at 88.
72 See id. at 89–91.
73 Confidential source.
74 Id.
75 See Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 Cal. L. Rev. 953, 969 (1996).
76 See id. at 991; Tony Schwartz, The Test Under Stress, N.Y. Times, Jan. 10, 1999, � 6 (Magazine), at 30. On black students feeling tense during tests, see generally Steele & Aronson, supra note 66.
77 A study by the Law School Admissions Council reports that for the 1996–97 academic year, 28.03% of black and 31.31% of white test takers took such courses. See Andrea E. Thornton et al., Law School Admissions Council, LSAT Technical Report 97–02: Summary of Self Reported Methods of Test Preparation by LSAT Takers for Testing Years 1991–1997, at 11 tbl.13 (1998). Course takers average score was less than a point higher than that of those who did not. See id. at 17 tbl.25. Tutoring companies argue that such studies lump together one-day cram courses with much more extensive preparation. See Schwartz, supra note 76, � 6, at 30. SAT tutoring companies, meanwhile, claim that some students raise their scores up to 100 points in lengthier courses costing up to $175 an hour. See id. Some tutors charge over $400 per hour. For some students, tutoring throughout high school has cost $25,000. See id.
78 See Edward G. Haggarty, LSAT: Uses and Misuses, 70 N.Y. St. Bar. J. 45, 45 (May/June 1998).
79 Law School Admissions Council, LSAT & LSDAS Registration & Information Book 121 (2002) (“Correlation is stated as a coefficient for which 1.00 indicates an exact correspondence between candidates’ test scores and subsequent law school performance. . . . The closer to 1.00 the correlation coefficient is, the greater the test’s predictive validity. . . . The correlation between LSAT scores and first-year grades varies from one law school to another. . . . During 2000, validity studies were conducted for 183 law schools. Correlations between LSAT scores ranged from .13 to .62 (median is .41). Correlations between LSAT scores combined with undergraduate grade-point averages and first-year law school grades ranged from .26 to .67 (median is .50).”).
80 Bowen and Bok present a wealth of evidence on the income of former affirmative action students. See Bowen & Bok, supra note 41, at 122–28, 362–74; see also David B. Wilkins & Elizabeth Chambliss, Harvard Law School Black Alumni Survey, Preliminary Report 1–22 (Sept. 2000). For information on former affirmative action students at Michigan Law School, see David L. Chambers et al., Doing Well and Doing Good, The Careers of Minority and White Graduates of the University of Michigan Law School 1970–1996, 42 L. Quadrangle Notes 61, 62 (1999).
81 Hugh Price, current president of the National Urban League, former vice-president of the Rockefeller Foundation, and former member of the editorial board of The New York Times, was admitted to Yale Law School with LSAT scores about 200 points below those of his average white classmate, and graduated at the lower end of the middle third of his class. There were only seven blacks in his class, which indicates that in law school he performed better than about a third of his white classmates whose scores were far better than his. See Hugh Price, Speech to the Commonwealth Club of California (Feb. 10, 1995), in Commonwealth, Feb. 1995, at 1, 4.
82 See Charles L. Finke, Affirmative Action in Law School Academic Support Programs, 39 J. Legal Educ. 55, 66 n.22 (1989) (observing that blacks do not perform as predicted and that the tests “over-predict”). A recent study of the predictive capacity of the SAT concludes that “high school class rank and SAT scores were very accurate predictors of which students would graduate with honors at a group of several private liberal arts colleges” and that “using a large sample of institutions and students . . . high school grades and SAT scores are good predictors of both freshman GPA and individual freshman course grades.” L. Scott Miller, Promoting High Academic Achievement Among Non-Asian Minorities, in Promise and Dilemma: Perspectives on Racial Diversity and Higher Education 47, 54 (Eugene Y. Lowe, Jr. ed., 1999).
83 See Why Family Income Differences Don’t Explain the Racial Gap in SAT Scores, 20 J. Blacks Higher Educ. 6 (Summer 1998).
84 See Cross & Slater, supra note 28, at 12.
85 I was dean from 1989 to 1993.
86 See Naked Hypocrisy: The Nationwide System of Affirmative Action for Whites, 18 J. Blacks Higher Educ. 40, 40–43 (Winter 1997/1998) [hereinafter Naked Hypocrisy].
87 See, e.g., Ralph Frammolino et al., UCLA Eased Entry Rules for the Rich, Well-Connected, L.A. Times, Mar. 21, 1996, at A1 (stating that the UCLA chancellor and others often gave preference to friends and relatives of donors).
88 Naked Hypocrisy, supra note 86, at 40.
89 Id. at 41–42. At Harvard University, there were 264 legacies in 1997; at Cornell, 1150. Id. at 41. Schools usually will not reveal the numbers or names of students admitted because of affluence or celebrity of parents, although occasionally it leaks out. Additionally, to endear themselves to alumni, schools often will make public the number of alumni children whom they admit.
90 Jane Mayer & Alexandra Robbins, Dept. of Aptitude—How George W. Made the Grade, New Yorker, Nov. 8, 1999, at 30.
91 See Nicholas D. Kristof, The Campaign 2000: The Cheerleader; Earning A’s in People Skills at Andover, N.Y. Times, June 10, 2000, at A1. The article continues: “So if his father and grandfather had not been stars at Yale, and his grandfather had not been a Yale trustee, George almost certainly would have ended up at Texas.” Id.
92 I learned this as Dean of Columbia College.
93 See Frammolino, supra note 87, at A1.
94 Id.
95 438 U.S. 265 (1978).
96 Joel Dreyfus & Charles Lawrence III, The Bakke Case: The Politics of Inequality 23–24 (1979).
97 There is a basis in human rights theory for arguing that discrimination on economic grounds is prohibited. The International Covenant on Civil and Political Rights, which also is a compendium of widely accepted fundamental rights, prohibits discrimination on the basis of wealth. It provides that “the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as . . . social origin, property, birth. . . .” International Covenant on Civil and Political Rights, Mar. 23, 1976, art. 26, 999 U.N.T.S. 171 (emphasis supplied). The United States has ratified the Covenant and pursuant to it might prohibit favoritism for legacies and children of wealthy parents. See Committee on Foreign Relations, International Covenant on Civil and Political Rights, Exec. Rep. No. 102–23, at 19 (1992). But the United States has declared that the Covenant is not self-enforcing. See id. Moreover, the United States takes the position that this and other human rights treaties do not bind the states. See id. The Supreme Court has held that wealth is not a suspect classification. See San Antonio v. Rodriguez, 411 U.S. 1, 20–28 (1973).
98 See generally Nathan Glazer, Should the SAT Account for Race? Yes, New Republic, Sept. 27, 1999, at 26.
99 Id.
100 See infra Part I.D.1–3.
101 See infra Part I.D.1–3.
102 See infra Part I.D.1–3.
103 Tex. Educ. Code Ann. � 51.803(a) (Vernon 2002). Of note, Texas A&M University has recently proposed extending the plan to the top 20% of graduates from each of 250 high schools. See Jeffrey Selingon, Critics Blast Plan to Expand Class-Rank Policy in Texas as Affirmative Action Ploy, Chron. Higher Educ., Jan. 11, 2002, at 29. Many have criticized the plan, but one of the architects of the 10% plan says he “believes the A&M plan is within the confines of the class-rank law and Hopwood.” Id.
104 Tex. Educ. Code Ann. � 51.805(b) (Vernon 2002).
105 Id.
106 See infra app. A (statistics for 1995–1996).
107 See infra app. A; see also Office of Institutional Studies, Univ. of Tex. at Austin, Fall Enrollment of New Students by Group and Ethnicity, at http://www.utexas.edu/academic/ois/stathb.00-01/students/s12b/s12b.html (last visited Mar. 21, 2002).
108 Gary M. Lavergne & Dr. Bruce Walker, Implementation and Results of the Texas Automatic Admissions Law (HB 588) at the University of Texas at Austin, Report Number 4, Demographic Analysis, Fall 2001, Academic Performance and Persistence of Top Ten Percent Students, Academic Years 1996–2000, available at http://www.utexas.edu/student/research/reports/admissions/HB588-report4.htm (last visited Feb. 19, 2002) (“Top 10% students perform about as well as their non-top 10% classmates with SAT scores about 200–300 points higher. This is true in all colleges and for all racial/ethnic groups.”); see also Dr. Bruce Walker, Implementation and Results of HB 588 at University of Texas at Austin, Preliminary Report Number 2, Academic Performance and Persistence of Top 10 Percent Students, Academic Year, 1998–99, University of Texas at Austin News, Office of Public Affairs, Oct. 19, 2000, available at http://www.utexas.edu/student/research/reports/admissions//top10.html (last visited Apr. 17, 2001) (“Top 10 percent students at every level of the SAT earn grade point averages that exceed those of non-top 10 percent students having SAT scores that are 200 to 300 points higher.”).
109 University of Texas Law School Bulletin 30 (2002), available at http://www. utexas.edu/law/depts/admissions/UTLAWbul.pdf> (visited Mar. 1, 2002) [hereinafter Texas Law School Bulletin].
110 See Lavergne & Walker, supra note 108.
111 Id.
112 Id.
113 Id.
114 See infra app. A. In 1996, there were twenty-nine African-Americans at the Center. For a more complete history of enrollment figures at the University of Texas at Austin, see The University of Texas at Austin, Office of Institutional Studies, Fall Enrollment of New Students by Group and Ethnicity, Fall and Summer Entrants Combined Number Distribution, at http://www.utexas.edu/academic/ois/stathb.01-02/students/s12a/s12a.html (last visited Mar. 30, 2002).
115 See infra app. A.
116 Infra app. A.
117 Infra app. A.
118 Infra app. A.
119 California has operated under a top 4% plan, but it has not led to an increase in the presence of minorities in California colleges. See infra notes 131–141.
120 See app. B, tbl.4. In 1997, 920 black undergraduates enrolled. In 2000, 728—or somewhat over 79%—enrolled. See id.
121 Office of the President News Room, Regents Approve Comprehensive Review in UC Freshman Admissions, at http://www.ucop.edu/news/archives/2001/nov15art1.htm (Nov. 15, 2001).
122 Id.
123 Id. For a list of the new criteria, see University of California, Introducing the University, Freshman Selection, at http://www.ucop.edu/news/archives/2001/nov15art1.htm (last visited Mar. 20, 2002).
124 See generally Office of the President New Room, Regents Approve “Dual Admissions” Plan, at http://www.ucop.edu/news/archives/2001/july19art2.htm (dated July 19, 2001, updated Sept. 18, 2001) [hereinafter Office of the President].
125 See id.; see also Rebecca Trounson, Regents Consider Plan to Widen Diversity, L.A. Times, July 19, 2001, at 10.
126 See generally Office of the President, supra note 124; see also Office of Strategic Communications, Facts About the University of California (2001), at http://www.ucop. edu/news/factsheets/2001/admissionsoverview.pdf (last visited Mar. 20, 2002).
127 Trounson, supra note 125, at 10.
128 Id.
129 Id.
130 See Richard C. Atkinson, Standardized Tests and Access to American Universities, at http://www.ucop.edu/news/sat/speech1.html (Feb. 18, 2001).
131 Board of Admissions and Relations with Schools, The Use of Admissions Tests by the University of California 16–18, at http://www.ucop.edu/news/sat/boars.pdf (last visited Mar. 20, 2002).
132 See infra app. B, tbl.4.
133 See infra app. B, tbl.4.
134 See infra app. B, tbl.4.
135 See infra app. B, tbl.4.
136 See infra app. B, tbl.4.
137 See infra app. B, tbl.4.
138 See infra app. B, tbl.4.
139 See infra app. B, tbl.4.
140 See infra app. B, tbl.4.
141 See infra app. B, tbl.4.
142 See infra app. B, tbl.4.
143 Karen Arenson, California Proposal to Improve College Diversity, N.Y. Times, Sept. 22, 2000, at A16.
144 For statistics on blacks in the University of California Law, Medical, and Business Schools, see app. B.
145 See infra app. B, tbl.1.
146 University of California, Medical School, at http://www.ucop.edu/acadadv/ datamgmt/graddata/mednum2.html (providing applicants, admits, and first-year class enrollment numbers) (last visited Mar. 21, 2002).
147 Infra app. B, tbl.1.
148 Id.
149 Id.
150 Id.
151 According to the unsigned website http://www.acusd.edu./~e_cook-vault/ medical/sanfrancisco/uscf-med-98.html, while 4% of Asian and white applicants were admitted to U.C.S.F. Medical School in 1998, 10% of black and Hispanic applicants were admitted, and that the probability of that many black and Hispanic acceptances is less than one in four million. The site makes similar claims about U.C. Irvine Medical School for 1999 (1% decrease in black/Hispanic applicants but 250% increase in their acceptances); UCLA Medical School (alleging that even ignoring grades and MCAT scores the probability that 42 black/Hispanic applicants could have been admitted among 241 acceptances is .000003); and U.C. Davis Medical School (claiming that black and Hispanic applicants were 12% and received 27% of the acceptances; likelihood of this occurring by chance is less than one in 100 million even if all applicants were equally qualified, but blacks and Hispanics had lower GPAs and MCAT scores). It is not inconceivable that litigation will follow. See U. C. San Francisco Medical School 1998, Ethnic Profile Report, available at http://www.acusd.edu/~e_cook/vault/medical/sanfrancisco/ucsf-med-98.html (last visited Feb. 2, 2002). One article claims that blacks and Hispanics were admitted to California medical schools and the University of Texas Law School in extraordinarily large numbers, given number of applicants and their academic records and test scores. See The Death of Meritocracy, La Griffe du Lion, June 2000, available at http://www.lagriffedulion.f2s. com/prop209.htm.
152 See Page, supra note 47, at A13.
153 Rick Bragg, Minority Enrollments Up in Florida, N.Y. Times, Aug. 30, 2000, at A18.
154 Id.
155 One Florida Yields Big Gains in Minority Enrollment, at http://www.myflorida. com/myflorida/government/governo. . ./one_florida_gains_in_ minority.htm (last visited Feb. 4, 2002).
156 See Top 50 Public National Universities—Doctoral, U.S. News & World Rep., Sept. 17, 2001, at 107 (ranking U.C. Berkeley at one, UCLA at four; University of Florida at nineteen, and Florida State University at forty-eight); Best National Universities—Doctoral, U.S. News & World Rep., Sept. 17, 2001, at 106 (ranking U.C. Berkeley at twenty and UCLA at twenty-six; neither Florida university is ranked in the top fifty).
157 Carrie Miller, UF’s Black Enrollment Plummets, Gainesville Sun.com, Sept. 1, 2001, at http://www.sunone.com/articles/2001-09-01c.shtml.
158 See id.
159 See id.
160 See id.
161 See supra Part I.D.1, 3.
162 Under a top ten percentage plan, however, minorities from integrated high schools may still be admitted to a flagship college. Top ten percenters need not constitute the entire entering class. Others can be admitted under standards like the eighteen indicia in the Texas law that identify hardship, character, and other qualities. See Tex. Educ. Code Ann. � 51.805(b) (Vernon 2002).
163 Jim Yardley, The Ten Percent Solution, N.Y. Times, Apr. 14, 2002, at A4.
164 But students might be wary of how that pledge will be implemented. There may be a stigma attached to being consigned to community college, even as an interim measure, which might discourage students from taking advantage of the opportunity. See supra notes 126–127 and accompanying text.
165 For the full text of the Civil Rights Commission criticism, see United States Commission on Civil Rights, Towards an Understanding of Percentage Plans in Higher Education: Are They Effective Substitutes for Affirmative Action?, available at http://www.usccr.gov/pubs/percent/stmnt.htm (last visited April 7, 2002); Mary Francis Berry, How Percentage Plans Keep Minority Students Out of College, Chron. Higher Educ., Aug. 4, 2000, at A8. In 1996 (pre-Hopwood I), 65% of Hispanic and 57% of black applicants to the University of Texas were admitted. Berry, supra, at A8. In 1999 (under the top percentage plan), the numbers were 56 and 46%, respectively. The admission of white students remained steady at 62%. Id.
166 Berry, supra note 165, at A8.
167 See Jeffrey Selingo, What States Aren’t Saying About the “X-Percent Solution,” Chron. Higher Educ., June 2, 2000, at A31.
168 See id.
169 See id.
170 White students are 59% of the high school seniors in Florida, but over 67% of students in the top fifth. Blacks are 23% of high school seniors and 14% of the top fifth. Id.
171 Stephan Thernstrom & Abigail Thernstrom, America in Black and White 421 (1997).
172 Id.
173 Cross & Slater, supra note 28, at 10–11.
174 See id. at 11–12. At highly selective schools a student needs at least 1300 on the SAT (i.e., 650 verbal, 650 mathematics) to be considered for admission. See id. at 9. Whites are fourteen times as likely as blacks to attain a score of 650 on the mathematics exam and four times as likely on the verbal part. Id. At law schools, in 1995–96, Harvard’s and Yale’s admits had a median LSAT score of 170. Id. at 13. Only seventeen black students in the United States scored 170; 2300 others (whites, Asians, and Hispanics) attained that score. Id. A score of 165 was the median at the top fifteen law schools. Id. Of white, Asian, and Hispanic test takers 7227 students scored at or above that level; seventy blacks nationwide reached that score. Id. At a score of 160 or more, 267 blacks in the country attained the median level of admits to the top thirty-four highest-ranked law schools. Id. There were 16,278 students of other groups at 160 or above. Id. The third and fourth or lowest tier law schools had a median score of 150. Id. at 14. Only 1745 blacks in the entire country scored at that level; more than 36,000 whites did. Id. Whites outnumbered blacks twenty to one. Id. There is, therefore, no reason to believe that most black applicants, shunned from selective schools, would be admitted readily to even a non-selective law school if affirmative action ended. See id. at 11–15. Medical schools confront a similar distribution of black and overall scores. The median combined MCAT score of 25.2 for white students who were rejected for admission to medical schools nationwide was significantly higher than the 23.5 median score of black students who were admitted. Id. at 16.
175 A Nationwide, supra note 40, at 14.
176 Sturm & Guinier, supra note 75, at 957–78, 1009–22.
177 While Sturm and Guinier do not discuss it, the Netherlands has extensive experience with lotteries for university admission purposes. By law, for subjects (usually medical education, although sometimes other disciplines) in which there are more applicants than places, students are ranked by grades earned in high school (medical school is an undergraduate program). A weighted lottery is conducted, in which students with higher grades have a better chance of being admitted. The lottery tends towards producing equality of result, in that students with the highest grades may be rejected in favor of others with lower grades. Some highly publicized instances have occurred, giving rise to protests, as a consequence of which the law is likely to be amended. The pending proposal is to admit students with grades above a certain level (now proposed as eight out of a possible ten) and place the remaining applicants in the lottery. The public reaction to the existing system resembles that of opponents of affirmative action in the United States. See Netherlands Ministry of Educ., Culture and Science, Information Dep’t, Education in the Netherlands, available at http://www.minocw.nl/english/edusyst/ednl05.htm (last visited Feb. 13, 2002); P.J.D. Drenth, The Selection of Medical Students in the Netherlands, available at http://www.gov.ie/educ/commission/Research%20Paper%203.htm (last visited Feb. 8, 2002).
Germany employs other equalizing devices. Where there are not enough places for all the students who should be admitted “places available for first-year students shall be awarded in accordance with” the following principles. “Up to three tenths of the study places are to be reserved for: 1. applicants for whom refusal of enrollment would constitute unusually great hardship, particularly from a social point of view; 2. applicants who . . . have committed themselves to practicing a profession in sectors of particular public need. . . .” There are other priorities for making admissions decisions. Beyond those priorities, selection shall be determined “according to the period of time which has elapsed since the necessary qualifications . . . were acquired” and how that time was spent (waiting period: Wartezeit). The waiting period may not exceed eight years. I have discussed the rationale of Wartezeit with German academics who tell me that the rationale is that over time the applicant will have become more mature and has demonstrated commitment. Usually, applicants, if not admitted within a few years, give up and get on with their lives. German Federal Ministry of Education and Science, Framework Act for Higher Education � 32 (2) 1 & (3) 2 (1994).
178 See Sturm & Guinier, supra note 75, at 969–80, 1010, 1019–20.
179 See supra notes 125–128 and accompanying text.
180 See Amy Dockser Marcus, Education: New Weights Can Alter SAT Scores: Family is Factor in Determining Who’s a ‘Striver,’ Wall St. J., Aug. 31, 1999, at B1.
181 See Boalt Hall School of Law – University of California, Berkeley, Policies & FAQS, at http://www.law.berkeley.edu/perspectives/admissions/policyfaq.html (last visited Mar. 22, 2002); U.C. Admissions, UC Admissions Chances, at http:www.acusd.edu/~e_cook/ chances/index.html (last visited Mar. 22, 2002).
182 See Office of the President News Room, UC President Richard C. Atkinson Calls for Ending SAT I Test Requirement at UC, at http://www.ucop.edu/news/sat/satarticle1.htm (last visited Mar. 20, 2002).
183 See Gaston Aperton, Why We Need the SAT, N.Y. Times, Sept. 4, 2000, at A16. (“The vast majority of the nation’s highly selective institutions, as well as other large public universities, are expected to rely on the tests for the foreseeable future.”); see also Jacques Steinberg, Most Colleges are Expected to Continue to Use the SAT, N. Y. Times, Feb. 24, 2001, at A6 (“It’s the only standard factor in every student’s application.”) (quoting dean of admissions at Stanford). But see Jess Bravin, Law School Admission Council Aims to Quash Overreliance on LSAT, Wall St. J., Mar. 29, 2001, at B14 (noting that the test has become single most important factor in deciding who gets admitted to a law school, but is in danger of becoming casualty of battles over affirmative action; and that a past president of Association of American Law Schools said “we ought to be open to thinking about whether we need the test at all”).
184 See Richard H. Sander, Experimenting with Class-Based Affirmative Action, 47 J. Legal Educ. 472, 484 (1997). See generally Deborah Malamud, A Response to Professor Sander, 47 J. Legal Educ. 504 (1997).
185 See Sander, supra note 184, at 484.
186 See id. at 484–85.
187 See Indra Sawhney v. Union of India, 80 A.I.R. 1993 S.C. 477, 558–60 (formulating the “creamy layer” test).
188 The Constitution of India requires that universities (and other institutions) employ “reservations,” or affirmative action, for certain tribes and castes. See India Const. arts. 15 (4), 16 (4).
189 The Supreme Court of India has ruled that the constitutional requirement to provide affirmative action excludes applicants whose families were in the “creamy layer” of society. See Sawhney, 80 A.I.R. at 560; see also India Const. arts. 15 (4), 16 (4). The “creamy layer” included families with income, wealth, and education above a certain level. See Sawhney, 80 A.I.R. at 558–60. The most comprehensive scholarly treatment of affirmative action in India is Marc Galanter, Competing Inequalities: Law and the Backward Classes in India (1984).
190 Malamud, supra note 184, at 504. The average black enrollment went from 9.7% between 1990 and 1996 to 2.6% in 1997. Sander, supra note 184, at 497 tbl.13.
191 Infra app. B, tbl.1.
192 Id.
193 Id.
194 Malamud, supra note 183, at 505.
195 Id.
196 University of California, Office of the President, University of California's Law Schools, at http://www.ucop.edu/acadadv/datamgmt/graddata/lawnos.html (last visited Mar. 26, 2002).
197 For example, see The Princeton Review, Guaranteed Satisfaction, at http://www. review.com/integrated/templates/defaultrh/testprep.cfm?TPRPAGE=65&TYPE=LSAT (last visited Mar. 26, 2002).
198 See Thornton, supra note 77, at 16–17 tbls.20–25.
199 See Schwartz, supra note 76, � 6, at 16. Schwartz asks why, if the LSAC believes that test preparation is ineffective, it supplies test preparation materials itself. See Schwartz, supra note 76, � 6 at 16.
200 See Thornton, supra note 77, at 11 tbl.13.
201 See Jodi Wilgoren, Seeking to Clone Success for the Poor, N.Y. Times, Aug. 16, 2000, at A1 (describing the success of KIPP Academy, a pair of public middle schools in poor areas of Houston and the Bronx, that have instituted various experimental tactics to improve student performance).
202 Charles R. Lawrence III, Two Views of the River: A Critique of the Liberal Defense of Affirmative Action, 101 Colum. L. Rev. 928, 965 (2001).
203 For a thorough canvas of legal-ethical issues involving affirmative action, see Kent Greenawalt, Discrimination and Reverse Discrimination (1983).
204 See infra Part I.A.
205 See infra Part I.B.
206 See Anderson, supra note 62, at 32–33.
207 Id. at 32.
208 Id.
209 Id. at 33.
210 347 U.S. 483, 490 (1954).
211 Douglas S. Massey & Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass 60–82 (1993).
212 Id. at 2.
213 Id. at 10–11.
214 Id. at 11.
215 David Grissmer et al., Why Did the Black-White Score Gap Narrow in the 1970s and 1980s?, in Test Score Gap, supra note 22, at 206–11.
216 See, e.g., Bd. of Educ. v. Dowell, 498 U.S. 237, 245–46 (1991).
217 See, e.g., id.
218 Clyde Haberman, Integration, One Sunday at a Time, N. Y. Times, Jan. 13, 2001, at B1. James M. Nabrit III, an African-American lawyer in the District of Columbia, born in the District in 1932, reports a similar experience. He attended segregated schools in Washington but his parents, who wanted him to have an excellent, integrated education, sent him to Mount Hermon School for Boys in Massachusetts for high school. In Legends in the Law, an interview published in the Washington Lawyer, he said, “Before I went to school in Massachusetts, I knew only one white person, a man who had a store on Georgia Avenue.” Legends in the Law, Washington Law., July/Aug. 2001, available at http://www.dcbar.org/ washLaw/08_01/legends.html (last visited Apr. 16, 2002).
219 See Richard Lee Colvin, Oakland District Says Policy on Ebonics Misunderstood, L.A. Times, Dec. 31, 1996, at A1.
220 See Teachers of English to Speakers of Other Languages, Policy Statement of the TESOL Board on African American Vernacular English (Mar. 10, 1997), at http://www.cal. org/ebonics/tesolebo.html (last visited Feb. 4, 2002).
221 See Colvin, supra note 219, at A1.
222 See CNN Interactive, Oakland School Board Amends Ebonics Policy, Jan. 16, 1997, at http://www.cnn.com/US/9701/16/black.english/index.html (last visited March 23, 2002).
223 The language-race difference is not exclusively a United States phenomenon. Frantz Fanon has described a similar barrier between blacks in the French colonies and whites in Metropolitan France: “I ascribe a basic importance to the phenomenon of language. . . . The black man has two dimensions. One with his fellows, the other with the white man.” Frantz Fanon, Black Skin White Masks 17 (1970).
224 See Joel Kovel, White Racism: A Psychohistory 9 (1984) (“[T]he power of which I write stems from a view of the universe that takes the symbols of whiteness and blackness with a deadly seriousness, spreads them out to the whole of human activity, and, from that point, onto the many-hued skins of men, thereby reducing them to the categories of race.”); see also John E. Williams & J. Kenneth Morland, Race, Color, and the Young Child 262 (1976) (“We propose that virtually every child has experiences early in life which lead to the development of a preference for light over darkness.”); Kenneth Gergen, The Significance of Skin Color in Human Relations, 96 Daedalus 390, 398 (1967) (“More compelling is the possibility that the emotional response to at least the experience of black and white is established at a very early age, and as a result of almost universal experiences. Two such experiences seem especially germane: the meaning of night versus day for the child and the training he receives in cleanliness.”).
225 See Andre Beteille, Race and Descent as Social Categories in India, in Color and Race, supra note 224, at 172–74. According to Beteille:
The inhabitants of the Northern states—particularly Punjab, Jammu and Kashmir, Rajasthan, and parts of Uttar Pradesh—are on the whole fairer than those of the Southern states. Indeed, many North Indians have a vague prejudice against South Indians because of their dark skin color. . . . Within the subcaste, a certain amount of selective breeding has no doubt taken place for centuries. . . . The ideal bride, whose beauty and virtue are praised in the songs sung at marriages, almost always has a light complexion. . . . Even a casual examination of the matrimonial columns of such popular dailies as The Hindu, The Hindustan Times, or The Hindustan Standard shows that virginity and a light skin color are among the most desirable qualities in a bride.
Id.
226 See Hiroshi Wagatsuma, The Social Perception of Skin Color in Japan, in Color and Race, supra note 224, at 129 (“Long before any sustained contact with either Caucasoid Europeans or dark-skinned Africans or Indians, the Japanese valued ‘white’ skin as beautiful and deprecated ‘black’ skin as ugly.”).
227 See E. R. Braithwaite, The “Colored Immigrant” in Britain, in Color and Race, supra note 224, at 218. Braithwaite wrote:
Immigrant groups have for many centuries been a familiar and important part of the British community. Mostly refugees from persecution in other European countries . . . all these groups were white-skinned. They could, if they chose, fade without difficulty into the ‘white’ background. The colored immigrant is and seems likely to remain the exception. His high visibility is a constant reminder to Britons of his earliest relationship with them—slave to owner, subject to sovereign, conquered to conqueror, and man to master.
Id.
228 Gergen, supra note 224, at 122.
229 Malcolm X & Alex Haley, The Autobiography of Malcolm X 61–62 (1965).
230 Margaret Hunter et. al., The Significance of Skin Color Among African Americans and Mexican Americans, in Afr. Am. Res. Persp., Winter 2001, at 180, available at http://www. rcgd.isr.umich.edu/prba/persp/winter2001/mhunter.pdf (last visited Apr. 7, 2002).
231 See Rochelle L. Stanfield, The Blending of the United States, available at http://usinfo.state.gov/journals/itsv/0699/ijse/stanfld.htm (last visited Feb. 4, 2002).
232 Id.
233 Reynolds Farley, University of Michigan, Rates of Mixed-Race Marriages Increasing, Study Finds (1997), at http://www.sistahspace.com/nommo/ir6.html (last visited Feb. 4, 2002) (delivered to the annual meeting of the Population Association of America, March 27, 1997).
234 Id.
235 The Factors Behind the 52 % Intermarriage Rate, available at http: //www.joi.org/ library/research/rate.shtml (last visited Feb. 4, 2002).
236 See supra notes 211–212 and accompanying text.
237 See generally Kelvin M. Pollard & William P. O'Hare, America's Racial and Ethnic Minorities, in Population Bulletin, Sept. 1999, available at http: //www.prb.org/Content/NavigationMenu/PRB/AboutPRB/Population_Bulletin2/Americas_Racial_and_Ethnic_Minorities.htm (last visited Apr. 17, 2002). But black women had the highest female labor force participation, 64% of all racial and ethnic groups. Id.
238 Id.
239 Id. tbl.5.
240 See id.
241 Id.
242 Pollard & O’Hare, supra note 237.
243 Id.
244 Changing America: Indicators of Social and Economic Well-Being, at http: //search.access.gpo.gov/GPO/SearchRight.asp?ct=GPO&q1=income&x=33&y=26 (last visited Apr. 17, 2002).
245 Pollard & O’Hare, supra note 237, tbl.6.
246 Id.
247 Id.
248 Id. tbl.7.
249 Id. tbl.7.
250 The State of Black Entrepreneurship: Are We Making the Right Moves for True Economic Empowerment?, Kip. Bus. Rep., at http://www.kipbusinessreport.com/Cover_Story_06-01.htm (last visited Apr. 17, 2002).
251 Douglas S. Massey, Population Research Ctr., Univ. of Chicago, American Apartheid: Housing Segregation and Persistent Urban Poverty (Mar. 1994), available at http://www.ssri.niu.edu/dl/massey.html (last visited Apr. 17, 2002).
252 Paul A. Jargowski, Tabulations from 1990 Census Summary Tape File 3A, CD-ROM, at 31 tbl. PF 3.2 (1990), available at http://aspe.hhs.gov/hsp/97trends/Pf3-2.htm (last visited Apr. 17, 2002) (documenting percentage of children who live in poor neighborhoods).
253 Douglas S. Massey et al., Migration, Segregation, and the Geographic Concentration of Poverty, 59 Am. Soc. Rev. 425, 426 (1994) (citing Jonathan Crane, The Epidemic Effect of Ghettos and Neighborhood Effects on Dropping Out and Teenage Childbearing, 96 Am. J. Soc. 1226 (1991)).
254 Douglas S. Massey, American Apartheid; Segregation and the Making of the Underclass, 96 Am. J. Soc., 329, 350 (1990). Massey has written “the probability of a teenage birth increases dramatically as the percentage of low-status workers in the child’s neighborhood increases from 70% to 95%, ultimately reaching a likelihood of about 20%.” Douglas S. Massey, American Apartheid 178 (1994). Moreover, school performance drops as segregation increases. “Given complete segregation between blacks and whites and a 20% rate of black poverty, our simulation predicts that children will attend high schools where 47% of the students score below the 15th percentile on the CAT [California achievement test]. Id. at 141.
255 See Dennis P. Hogan & Evelyn M. Kitagawa, The Impact of Social Status, Family Structure, and Neighborhood on the Fertility of Black Adolescents, 90 Am. J. Soc. 825, 825 (1985).
256 Jeanne Brooks-Gunn et al., Do Neighborhoods Influence Child and Adolescent Development?, 99 Am. J. Soc. 353, 353 (1993).
257 Linda Datcher, Effects of Community and Family Background on Achievement, 64 Rev. of Econ. and Stat. 41 (1982). See generally Mary Corcoran et al., Effects of Family and Community Background on Economic Status, 80 Am. Econ. Rev. 362–66 (1990).
258 Bureau of Justice Statistics, U.S. Dep’t of Justice, Homicide Trends in the United States (1998), available at http://www.ojp.usdoj.gov/bjs/homicide/oars.txt (last visited Mar. 14, 2002).
259 Id.
260 Id.
261 James Alan Fox & Marianne W. Zawitz, Bureau of Justice Statistics, U.S. Dep’t of Justice, Homicide trends in the United States 59–60, available at http://www.ojp.usdoj.gov/bjs/pub/pdf/htius.pdf (last visited Mar. 26, 2002).
262 Bureau of Justice Statistics, U.S. Dep’t of Justice, available at http://www.fbi.gov/ucr/cius/_00/00crime4.pdf. (last visited Apr. 7, 2002).
263 Drug Policy Alliance, U.S. Prison Population Passes Two Million Mark, Feb. 15, 2000, at http://www.lindesmith.org/news/DailyNews/2million_inmates2.html (last visited Apr. 7, 2002).
264 Id.
265 Bureau of Justice Statistics, U.S. Dep’t of Justice, Criminal Offender Statistics, Lifetime Likelihood of Going to State or Federal Prison, available at http://www.ojp.usdoj.gov/bjs/crimoff.htm (last visited Feb. 4, 2002).
266 Sentencing Project, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States, at http://www.sentencingproject.org/policy/9080.htm (last visited Feb. 4, 2002).
267 See id.
268 See Drug Policy Alliance, Drug Prohibition and the U.S. Prison Population, at http://www.soros.org/lindesmith/cites_sources/brief13.html (last visited Feb. 4, 2002).
269 Id.
270 See Simpson Judge OKs Jury Prospects Who Admit Bias, Sept. 25, 1996, available at http://www.cnn.com/US/9609/25/simpson (last visited Apr. 17, 2002). Similarly, as jurors deliberated at the New York trial of Sean Combs, a hip-hop impresario, in connection with a shooting that wounded three people in a Manhattan night club, black and white jurors were on both sides of the question of whether to convict. But race-tinged tensions characterized the deliberations: a black juror accusing a white of wanting to convict because the defendant was black; a white juror cried because he believed he was being called a racist; a black juror confronted a white juror who was adamant about a co-defendant’s guilt by saying “[d]on’t forget Amadou Diallo. He was shot 41 times.” Katherine E. Finkelstein & Dan Barry, Jurors in Rapper’s Trial Recall 3 Days of Heated Exchanges, N.Y. Times, Apr. 12, 2001, at A1, B6.
271 See Melissa Roth, Understanding the Riots Part 1, The Path to Fury: How Los Angeles Reached the Crisis Point Again, L.A. Times, May 11, 1992, at T1.
272 Melissa Grace, Diallo Trial Albany-bound, Times Union (Albany), Dec. 17, 1999 at A8.
273 See generally Report of the National Advisory Commission on Civil Disorders (1968) (“Kerner Commission Report”). As I edit these pages, Cincinnati has just emerged from a race riot set off by the police killing of a young black man. See Francis X. Clines, Appeals for Peace in Ohio After Two Days of Protests, N.Y. Times, Apr. 12, 2001, at A18.
274 Loic J.D. Wacquant & William Julius Wilson, The Ghetto Underclass; Social Science Perspectives, in 501 Annals Am. Acad. Pol. & Social Sci. 22–23 (1989).
275 Jackson Toby, Social Disorganization and Stake in Conformity, 48 J. Crim. Law, Criminology & Pol. Sci. 12, 16 (May/June 1957).
276 Elijah Anderson, Code of the Street 289 (1999).
277 See generally Mary Corcoran & Terry Adams, Race, Sex, and the Intergenerational Transmission of Poverty, in Consequences of Growing Up Poor 461–517 (Greg J. Duncan & Jeanne Brooks-Gunn eds., 1997).
278 T.L.C., Thomas Carlyle and Affirmative Action, 24 J. Blacks Higher Educ. 7, 7 (Summer 1999). These statistics may include some double counting in that at least some of the professional school graduates were also among the college graduates. The number is impressive, nonetheless.
279 See supra note 174 and accompanying text.
280 Bowen & Bok, supra note 41, at 10 (citing U.S. Bureau of the Census statistics from 1960 & 1990).
281 Id. at 123.
282 Id.
283 Id. at 128.
284 Alan B. Krueger, Economic Scene: Children Smart Enough to Get into Elite Schools May Not Need to Bother, N.Y. Times, Apr. 27, 2000, at C2 (citing College and Beyond survey data collected by the Mellon Foundation).
285 Alan Krueger & Stacy Dale, Estimating the Payoff to Attending A More Selective College: An Application of Selection on Observables and Unobservables, (Nat’l Bureau of Econ. Research, Working Paper No. w7322, 1999), available at http://papers.nber.org/papers/W7322 (last visited Mar. 29, 2002); see also Krueger, supra note 284, at C2.
286 See Wilkins & Chambliss, supra note 80.
287 See id. at 1.
288 Id. at 1, 3. This may well not be a representative sample of all black graduates. It is possible that higher earners replied earlier and more readily than those who earned less.
289 Id. at 3.
290 The Importance of Preserving a Core of African Americans at the Most Prestigious Law Schools, 26 J. Blacks Higher Educ. 22, 23 (Winter 1999/2000).
291 See The Higher Education of the Nation’s Leading Black Corporate Executives, 27 J. Blacks Higher Educ. 78, 78 (Spring 2000).
292 My information comes from a State Department official who requested anonymity.
293 I received e-mail on January 25 and 26, 2002. The following is an edited extract from one of those confidential e-mails:
A “Career Ambassador” is the highest rank in the Foreign Service and equates to a four star general. There are nine blacks serving as ambassadors, only one is a political appointee, who is serving in Trinidad and is a Yale grad. Of the eight career Foreign Service Officers, six attended selective schools; (U.S.C., DePauw, Syracuse, Brown, Tufts and UCLA). The other two attended Virginia State 1968 and Western College for Women in Ohio that same year. They may or may not have had much choice when entering college in 1964. There are five blacks who are Ambassador-designates and must be confirmed by the Senate. All are career officers. Four went to Penn, Harvard, UCLA and Hampton (then Ohio U. for grad school). The fifth attended Emory University in Atlanta and graduated second in his class.
294 Bowen & Bok, supra note 41, at 8.
295 438 U.S. 265, 312 (1978).
296 See id. at 316–17.
297 See 399 U.S. 629, 635–36 (1950); see also McLaurin v. Oklahoma St. Regents for Higher Educ., 339 U.S. 637 (1950).
298 Sweatt, 399 U.S. at 634.
299 See United States v. Virginia, 518 U.S. 515, 553 (1996).
300 Association of American Universities, Diversity Statement: On the Importance of Diversity in University Admissions, Sept. 14, 1997, at http://www.aau.edu/issues/Diversity4.14.97.html (last visited Apr. 17, 2002).
301 Bowen & Bok, supra note 41, at 254.
302 Thernstrom & Thernstrom, supra note 171, at 386–88.
303 See infra app. B, tbls.1–4.
304 What Would Happen If the Nation’s Most Selective Private Universities Were Required to Abandon Affirmative Action Admissions?, 28 J. Blacks Higher Educ. 6, 6 (Summer 2000).
305 See The Progress of Black Student Matriculations at the Nation’s Highest-Ranked Colleges and Universities, 21 J. Blacks Higher Educ. 9, 10 (Autumn 1998).
306 See id.
307 See Thernstrom & Thernstrom, supra note 171, at 415–16.
308 See id. at 415.
309 See id.
310 See Lawrence, supra note 202, at 940–41.
311 See id. at 941.
312 See, e.g., Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (2000); Randall N. Robinson, The Debt: What America Owes to Blacks (2000).
313 See, e.g., H.R. 40, 106th Cong. (1999) (Commission to Study Reparation Proposals for African-Americans Act); see also Tuneen E. Chisolm, Comment, Sweep Around Your Own Front Door: Examining the Argument for Legislative African American Reparations, 147 U. Pa. L. Rev. 677 (1999).
314 See, e.g., Cato v. United States, 70 F.3d 1103, 1109–11 (9th Cir. 1995). In March, 2002, a suit seeking compensation from United States companies for allegedly profiting from the slave trade was filed in a New York federal court. Robert F. Worth, Companies Are Sued for Slave Reparations, N.Y. Times, Mar. 27, 2002, at B2.
315 See Charles J. Ogletree, Jr., Litigating the Legacy of Slavery, N.Y. Times, Mar. 31, 2002, at wk 9. See generally Jeffrey Ghannam, Repairing the Past, 86 A.B.A. J., Nov. 2000, at 38.
316 Boris Bittker, Case for Black Reparations 4 (1973).
317 Id. at 17.
318 Oxford English Dictionary (2nd ed. 1989).
319 Germany, following World War I, paid reparations to the Allies; during recent years, it has paid reparations to individual victims of the holocaust and to Israel. See, e.g., Michael J. Kelly, U.N. Security Council Permanent Membership: A New Proposal for a Twenty-First Century Council, 31 Seton Hall L. Rev. 319, 372 (2000) (describing staggering post-war reparations); Jennifer Peter, Germany Pays Nazis’ Wartime Slave $4,454 in Reparations, Wichita Eagle, Feb. 24, 2002, at 6A (noting the German reparations program ultimately will distribute $5 billion to holocaust survivors). Similarly, Norway has decided to pay $60 million in compensation to individual Jews and to Jewish organizations for property seized during World War II. Norway Plans to Pay Jews $60 Million Compensation, N.Y. Times, June 27, 1998, at A4. A Japanese fund compensates Korean “comfort women” whom Japanese troops impressed into prostitution during the Second World War. Margaret Stetz, Comfort Women’s Due, N.Y. Times, June 2, 1998, at A22.
320 The United States has made reparations payments of $20,000 to Japanese-Americans and $5000 to Latin-Americans of Japanese descent who were interned in relocation centers during the Second World War. U.S. Will Pay Reparations to Former Latin American Internees, N.Y. Times, June 15, 1998, at A19; see also Civil Liberties Act of 1988, 102 Stat. 103 (1988) (codified as 50 U.S.C. app. 1989b).
321 Under German law, for example, compensation for slave labor will be paid to heirs of persecutees who died after February 16, 1999 only if they are the spouse, child, grandchild, sibling or testamentary heir of the persecutee. See Claims Conference on Jewish Material Claims Against Germany, Slave and Forced Labor Compensation, Am I Eligible? available at http://www.claimscon.org/compensation/eligibility.asp (last visited May 3, 2002).
322 Justice Marshall summarized some of this legislation in his opinion in Bakke. See 438 U.S. at 390–91 (Marshall, J., concurring) (noting that Congress passed the Reconstruction Acts and the Civil Rights Act, and established the Freedman’s Bureau in response to southern states’ attempt to re-enslave blacks).
323 Bittker, supra note 316, at 12.
324 Id.
325 See id.
326 Barkan, supra note 312, at 294.
327 See Adolph L. Reed, Jr., The Case Against Reparations, Progressive, Dec. 2000, available at http://www.progressive.org/reed/200.htm (last visited Mar. 16, 2002).
328 See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 270 (1995) (Souter, Breyer, Ginsburg, JJ., dissenting); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276, 281, 282 (1986) (Powell, J., plurality); id. at 288 (O’Connor, J., concurring); id. at 311 (Marshall, J., dissenting); Bakke, 438 U.S. at 397 (Powell, J.).
329 See Adarand, 515 U.S. at 270 (Souter, Breyer, Ginsburg, JJ., dissenting); Wygant, 476 U.S. at 276, 281, 282 (Powell, J., plurality); id. at 288 (O’Connor, J., concurring); id. at 311 (Marshall, J., dissenting); Bakke, 438 U.S. at 397 (Powell, J.).
330 Ogletree, supra note 315, at wk.9; Worth, supra note 314, at B2.
331 Adarand, 515 U.S. at 240.
332 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). There is a question about how far this commitment to color-blindness goes. Some affirmative action opponents advocate recruiting the most academically accomplished black students. Thomas Sowell, Black Education: Myths and Tragedies 133–34 (1972). But why encourage blacks to go to college and not whites? Absolutists would outlaw scholarships limited to blacks and, indeed, in Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994), the United States Court of Appeals for the Fourth Circuit court so held. Despite Podberesky, race-targeted scholarship programs are commonplace; to abolish them would further deplete black presence at some schools.
333 See, e.g., Adarand, 515 U.S. at 239 (Scalia, J., concurring); id. at 240 (Thomas, J., concurring).
334 See 488 U.S. 469, 509 (1989).
335 See generally United States v. Paradise, 480 U.S. 149 (1987).
336 See id. at 167.
337 406 U.S. 205, 234 (1994).
338 436 U.S. 49, 55 (1978).
339 See Smith v. Collin, 436 U.S. 953, 953 (1978) (Blackmun & Rehnquist, JJ., dissenting from denial of stay) (Court effectively upholding lower court’s determination that Skokie, Illinois ordinances would unconstitutionally bar a Nazi march).
340 See Beauharnais v. Illinois, 343 U.S. 250, 266 (1952).
341 Smith, 436 U.S. at 953 (Blackmun & Rehnquist, JJ., dissenting).
342 See Wisconsin v. Mitchell, 508 U.S. 476, 490 (1993).
343 See Adarand, 515 U.S. at 227.
344 See Bowen & Bok, supra note 41, at 276–78.
345 See supra Part I.C.
346 See supra Part I.C.
347 See Charles L. Lawrence III & Mari Matsuda, We Won’t Go Back 101 (1997) (“[P]rivilege should not trump merit, and merit should include the talents of those without privilege. . . . A good affirmative action plan broadens the definition of qualification, expanding the pool of talent available for any given opportunity.”).
348 See Strauder v. West Virginia, 100 U.S. 303 (1879). Strauder may be the first case in which stigma and stereotype were a basis for decision. The Court wrote:
The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, . . . [is] practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race . . . [equal justice].
Id. at 308. The concept of stigma in the affirmative action context uses the term to refer to blacks who are benefiting from the programs, unlike Strauder where blacks were excluded from juries.
349 See Tracy v. Bd. of Regents, 59 F. Supp. 2d 1314, 1323 (1999) (concerning the University of Georgia affirmative action program). The court wrote: “AUGA [University of Georgia] is willing to stigmatize its non-white students for the sake of a largely symbolic racial preference.” Id. Sometimes the term “stigma” is used to suggest that rejected whites have been stigmatized. But while excluded whites may feel indignant and that rejection was unfair, they are not likely to feel or be perceived as unworthy.
350 Fullilove v. Klutznick, 488 U.S. 448, 545 (1980) (Stevens, J., dissenting).
351 Bakke, 438 U.S. at 298; see also Erwin Chemerinsky, Making Sense of the Affirmative Action Debate, 22 Ohio N.U. L. Rev. 1159, 1175–76 (1996) (presenting a number of arguments against affirmative action).
352 Adarand, 515 U.S. at 241 (Thomas, J., concurring).
353 See Bowen & Bok, supra note 41, at 118–55.
354 See What about the Charge that Affirmative Action Reinforces a Sense of Group Inferiority?, 18 J. Blacks Higher Educ. 20, 20 (Winter 1997/1998) (“Ask a Harvard Law School graduate who was admitted under affirmative action if, as a result of this advantage, he or she was psychologically damaged or hurt or handicapped in his or her later practice of law.”).
355 Stephen Carter, Reflections of an Affirmative Action Baby 16–17 (1991).
356 Id. at 62–64.
357 Id. at 62, 69.
358 In October 1997, the Journal of the American Medical Association published a study of twenty years of affirmative action at the University of California at Davis Medical School. See Robert L. Davidson & Ernst L. Lewis, Affirmative Action and Other Special Consideration Admissions at the University of Calfornia, Davis, School of Medicine, 278 JAMA 1153, 1153 (1997). In summary, regular admission students had higher grades; there was no difference in failure rates of core courses. Id. at 1153. Regular admission students had higher scores on the National Board of Medical Examiners examination, and were less likely to repeat the examination to receive a passing grade. Id. Following graduation, the experience of both groups was similar, including completion and evaluation of residency training. Id. Both populations selected primary care disciplines at the same rate and had remarkably similar practice characteristics. Id.
359 There are studies of affirmative action in employment of women and in contexts other than admissions. An example is George Lowenstein & Samuel Issacharoff, Source Dependence in the Valuation of Objects, 7 J. Behav. Decision Making 157 (1994). The article reports on a study conducted in a typical manner: experimenters distributed mugs to students who had received top grades in a class exercise. Half the students were told they received a mug due to their performance, half were told mugs were distributed randomly. The first group valued the mugs more highly. The implication is that those who were admitted on the same basis as whites would value their admission more highly. See id. at 157–61, 165–67.
360 See David A. Kravitz et al., The Society for Industrial and Organizational Psychology, Affirmative Action: A Review of Psychological and Behavioral Research (1997), available at http://www.siop.org/AffirmAct/siopsaartoc.html (last visited Mar. 19, 2002). Kravitz determined that confident assertions about stereotype and stigma that favor or oppose affirmative action have little scientific support: “[O]pinion polls results revealed that White Americans strongly support equality and the elimination of discrimination, but oppose preferential treatment. Reactions to compensatory actions are less clear. Polls of Black Americans revealed somewhat higher support for preferential treatment, but a clear preference for equal opportunity.” Id. at 12. Experimental data, using undergraduates as respondents, led to a conclusion that “[t]here is greater support for the principle of equal opportunity than for the principle of affirmative action. Evaluations . . . of affirmative action are strongly influenced by actual or presumed AAP [affirmative action program] structure; they are inversely related to the weighting of demographic status in decision making.” Id. at 16. “[I]ndividuals do think about affirmative action in terms of fairness.” Id. at 17. “Programs directed at Blacks or minorities are viewed less positively by Whites than programs directed at women or the handicapped. Reasons for this difference are unclear.” Id. at 25. “Blacks clearly feel more positively about AAPs in general than do Whites, though the size of this difference depends on details of the AAP.” Id. at 32. “[W]omen generally have more positive attitudes than men.” Id. “[S]elf report measures of racism are positively associated with opposition to affirmative action targeted at racial minorities.” Id. “[B]acklash exists when the individual resents the fact that others have received positive outcomes. With few exceptions . . . , backlash has been ignored in the affirmative action literature.” Id. at 37. “[A]ttitudes toward affirmative action seem to be positively associated with having experienced discrimination and having worked at an organization with an AAP, at least if the AAP resulted in positive experiences.” Id. at 40–41.
There is one doctoral dissertation, published subsequent to the survey, that addresses how beneficiaries of affirmative action in higher education view themselves. See Maudette M. Jackson, Reactions to Race-Based Preferential Selection (Apr. 1997) (unpublished Ph.D. dissertation submitted to the Faculty of the Graduate School of the State University of New York at Buffalo) (on file with author). “[T]he results showed no significant negative effects of selection based on solely race or a combination of both merit and race on the psychological well-being of Blacks selected for a leadership position. . . . Overall these results suggest that the negative effects of gender-based selection procedures found for women do not apply to Blacks.” Id. at 26–28. The author acknowledges that the study was conducted in laboratory settings with college students as subjects, limiting its “generalizability.” Id. She writes that “given that this is the first race-based preferential selection experimental study, additional research is essential.” Id. at 29.
361 Monica E. Schneider et al., Social Stigma and the Potential Costs of Assumptive Help, 22 Personality & Soc. Psychol. Bull. 201, 208 (1996). Another study concludes that “[a]lthough several psychological theories predict that members of stigmatized groups should have low global self-esteem, empirical research typically does not support this prediction.” Jennifer Crocker & Brenda Major, Social Stigma and Self Esteem: The Self-Protective Properties of Stigma, 96 Psychol. Rev. 608, 608 (1989).
362 Kravitz, supra note 360, at 53.
363 Id. at 44. A Gallup poll asked employed blacks and employed white women whether they had ever felt that others questioned their abilities because of affirmative action. Paula R. Skedsvold & Tammy L. Mann, The Affirmative Action Debate: What’s Fair in Policy and Programs?, 52 J. Soc. Issues 25, 25–31 (1996).
364 Kravitz, supra note 360, at 53.
365 See generally Linda Hamilton Krieger, Civil Rights Perestroika: Intergroup Relations After Affirmative Action, 86 Cal. L. Rev. 1251 (1998).
366 “[M]ost research on the self-derogating effects of affirmative action has focused on gender preference. Little empirical evidence has been done on the effects of preferential selection on minority self evaluation.” Id. at 1259.
367 “Studies have demonstrated that the self-denigrating effects of affirmative action are highly sensitive to contextual variables and, under certain conditions, disappear entirely.” Jackson, supra note 360, at 1261. Jackson continues: “Taken as a whole, social cognition, procedural justice, and social identity theory can be used either to oppose or support preferential forms of affirmative action. But even if it were possible to determine whether the cost of preferences outweighed their benefits, such an exercise would hardly be worthwhile if it could be shown that, absent affirmative action, remaining policy tools were inadequate.” Id. at 1276.
368 Webster’s New Collegiate Dictionary (1977).
369 See Paul M. Sniderman & Edward G. Carmines, Reaching Beyond Race (1997).
370 Id. at 25.
371 Id. at 28, 30.
372 Id. at 32.
373 Id. at 39.
374 Charlotte Steeh & Mariah Krysan, Polls Trends, Affirmative Action and the Public, 1970–1975, 60 Pub. Opinion 128, 140 (Spring 1996).
375 See Elections ’96 State Propositions: A Snapshot of Voters, L.A. Times, Nov. 7, 1996, at A29.
376 See Julie Mason, City’s Affirmative Action Plan Gains Support, Polls Says, Houston Chron., Oct. 5, 1999, at A17.
377 See Mason, supra note 376, at A17 (public opinion poll shows 54% in favor, 46% opposed); Ron Nissimov, Affirmative Action Case Will Be Heard, Houston Chron., Feb. 5, 1999, at A29.
378 Brown v. Blum, 9 S.W.3d 840, 842 (Tex. 1999).
379 Ricshawn Adkins, Affirmative Action and Public Opinion Polls, in Race versus Class, The New Affirmative Action Debate 102–03 (1996).
380 M.A. Aubin, Race Issues in the United States Based on National Public Opinion Polls, in Black Americans: Issues and Concerns (N. N. Rachveli ed., 1994).
381 Bowen & Bok, supra note 41, at 36.
382 Id. at 36–37 (quoting Thomas J. Kane, Racial and Ethnic Preferences in College Admissions, in Test Score Gap, supra note 22, at 453).
383 Id. at 66.
384 Thernstrom & Thernstrom, supra note 171, at 408 tbl.9.
385 Id. at 391–93. This is one of the Thernstroms’ principal arguments against affirmative action in higher education.
386 Bowen & Bok, supra note 41, at 258–59. The National Collegiate Athletic Association (NCAA) monitors student athletes’ academic performance to make sure that their participation in sports is not at the expense of their schoolwork. As a consequence, although the NCAA is not concerned about questions of race or affirmative action, it is the keeper of dropout statistics.
387 Id.; see Racial Conservatives Are Still Replaying the Myth that Racial Preferences Cause High Black Student College Dropout Rates, 32 J. Blacks Higher Educ. 12, 12–13 (Summer 2001).
388 Bakke, 438 U.S. at 292.
389 See id.
390 See id.
391 As of August 30, 2000, 18,683,698 blacks lived in the South out of a total national black population of 34,862,169. At the end of the twentieth century, blacks were returning to the South, producing a surge in that region’s non-Hispanic black population. See generally William H. Frey, Population Reference Bureau, Migration to the South Brings U.S. Blacks Full Circle, Population Reference Bureau, available at http://www.prb.org/Content/NavigationMenu/PT_articles/April-June_2001/Migration_ to_the_South_Brings_U_S__Blacks_Full_Circle.htm (last visited Mar. 26, 2002).
392 347 U.S. 483 (1954).
393 See generally Brown, 347 U.S. at 483.
394 See Civil Rights Acts of 1964, 42 U.S.C. �� 1971–2000h-6 (1964).
395 See Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 344 (1938).
396 See McLaurin, 339 U.S. at 641–42; Sweatt, 339 U.S. at 629.
397 See, e.g., Nat’l Labor Relations Act of 1935, 29 U.S.C. �� 151–169 (1994); Fair Labor Standards Act of 1938, 29 U.S.C. �� 201–219 (1994) (examples of New Deal programs); see also Federal Home Loan Bank Act of 1933, 12 U.S.C. �� 1421–1449 (1994); Nat’l Housing Act of 1934, 12 U.S.C. �� 1701–1750g (1994) (creating FSLIC, FDIC, and the FHA).
398 A thoroughgoing discussion of the racial impact of the original Social Security, Unemployment Insurance, and Aid to Dependent Children Acts is in Robert Lieberman, Shifting the Color Line (1998), and William Forbath, Caste, Class and Equal Citizenship, 98 Mich. L. Rev. 1 (1999) (describing “social citizenship tradition,” a majoritarian egalitarian constitutional tradition). For discussion of unemployment insurance and loans, see generally David H. Onkst, First A Negro . . . Incidentally a Veteran, 31 J. Soc. Hist. 517, 519 (1998).
399 Ira Katznelson et al, Limiting Liberalism: The Southern Veto in Congress, 1933–1950, 108 Pol. Sci. Q. 283 (1993).
400 See Onkst, supra note 398, at 527, 529.
401 Id.
402 Id.
403 Id.
404 Cf. id. at 534 (noting that while blacks could not fully participate in the G.I. bill program, “others received significant benefits”).
405 Onkst, supra note 398, at 529.
406 Id. at 530.
407 Melvin L. Oliver & Thomas M. Shapiro, Black Wealth, White Wealth 18 (1995).
408 Id. at 18, 39.
409 Id. at 18.
410 Id.
411 Id.
412 Oliver & Shapiro, supra note 407, at 51–52.
413 Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13, 17.
414 International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, 660 U.N.T.S. 195.
415 See id. (United States’ ratification of the race convention). The United States is not a party to the Discrimination Against Women Convention.
416 See, e.g., United States v. Fordice, 505 U.S. 717 (1992).
417 Dillard v. Indus. Comm., 416 U.S. 783, 800 (1974) (Douglas, J., dissenting).
418 Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000), regarding affirmative action policies at the University of Michigan, is widely expected to reach the Supreme Court. See Barbara Kantrovitz, Head of the Class, Columbia’s Incoming Chief is Part of a New, Visionary Breed of College Presidents, Newsweek, Mar. 1, 2002, at 54.
419 438 U.S. 265, 313 (1978).
420 Id.
421 Id. at 316.
422 Id. at 319–20.
423 See id. at 324–408 (Blackmun, Brennan, Marshall, & White, JJ., concurring).
424 See Bakke, 438 U.S. at 412–21 (Stevens, Rehnquist, Stewart, JJ. & Burger, C.J., concurring in part and dissenting in part).
425 See, e.g., Hopwood v. Texas, 78 F.3d 932, 944 (1996) [Hopwood I].
426 Id.
427 See id. at 936. The affirmative action plan at issue in Hopwood I had been suspended in 1992 and replaced with a different plan by the time the Court of Appeals decided the case in 1996. See Hopwood v. Texas, 518 U.S. 1033, 1033 (1996) (internal citation omitted). Justices Ginsburg and Souter, concurring in the denial of certiorari, gave this as a reason for declining to review. Id.
428 Hopwood I, 78 F.3d at 948–49.
429 Hopwood v. Texas, 236 F.3d 256, 275 (5th Cir. 2000) (Hopwood II) (“Although Bakke clearly stands for the proposition that the government can use racial preferences under some circumstances, no controlling rationale emerged from that opinion to delineate precisely what those justifying circumstances are. Thus, in deciding whether the system of racial preferences emphasized by the Law Schools was constitutional, the [Hopwood I] panel was free to determine which among the competing rationales offered by the justices in Bakke is constitutionally valid.”).
430 Id. (“Although Justice Powell would surely have disagreed with [the Hopwood I] holding, we cannot say that [Hopwood I] conflicts with any portion of Bakke that is binding on this court.”).
431 Johnson v. Bd. of Regents, 263 F.3d 1234 (11th Cir. 2001). Johnson discusses diversity extensively and concludes that Justices Powell and Brennan agreed only that diversity is important but did not agree that it is compelling. See id. at 1245–47. However, the opinion does not “decide whether or when student body diversity may be a compelling interest . . . .” Id. “It disapproves the plan because it was not narrowly tailored.” Id. at 1237. Because a fixed number of points were added to the Total Student Index (a measure used in making admissions decisions) of minority students, the court held that the plan was not narrowly tailored. See id. The university “must be prepared to shoulder the burden of fully and fairly analyzing applicants as individuals and not merely as members of groups when deciding their likely contribution to student body diversity.” Id. at 1256.
432 Hopwood I, 78 F.3d at 944.
433 Id.
434 See id. at 944–45.
435 Id. at 944.
436 See Marks v. United States, 430 U.S. 188, 193 (1976).
437 Id. at 193 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)).
438 For examples of cases in which the Supreme Court has accepted as binding a single-justice opinion deemed narrower than multiple-justice opinions, see O’Dell v. Netherland, 521 U.S. 151, 160 (1997) (“Justice White concurred in the judgment, providing the narrowest grounds of decision among the Justices whose votes were necessary to the judgment.”); Schlup v. Delo, 513 U.S. 298, 344 (1995) (“[T]he concurrence’s merely making the claim causes it to be an accurate description of what the Court today holds since the narrower ground taken by one of the Justices comprising a five-Justice majority becomes the law.”); Romano v. Oklahoma, 512 U.S. 1, 9 (1994) (“As Justice O’Connor supplied the fifth vote in Caldwell and concurred on grounds narrower than those put forth by the plurality, her position is controlling.”).
439 Bakke, 438 U.S. at 326 n.1 (Brennan, J., concurring).
440 Id. at 379 (Brennan, J., concurring).
441 Id. at 374 (Brennan, J., concurring).
442 Id. at 324–25.
443 Id. at 326 n.1.
444 497 U.S. 547 (1990).
445 Id. at 568.
446 See id. at 311–15.
447 See supra note 423 and accompanying text.
448 See supra note 426 and accompanying text.
449 Hopwood I, 78 F.3d at 942.
450 The only case involving education is Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986), a layoff situation in which racial balance for high school teachers had been agreed to in a union contract. Id. at 270. The role model argument was rejected. See id. at 275–76. None of the opinions discuss higher education.
451 476 U.S. at 267.
452 488 U.S. 469 (1989).
453 515 U.S. 200 (1995).
454 See Adarand, 515 U.S. at 218–21; Croson, 488 U.S. at 493–94; Wygant, 476 U.S. at 274.
455 Adarand, 515 U.S. at 239, 240.
456 Id. at 237.
457 Id. at 238.
458 See Croson, 488 U.S. at 486–92.
459 See Adarand Constructors, Inc. v. Slater, 228 F.3d 1147, 1181(10th Cir. 2000), cert. granted Adarand Constructors, Inc. v. Mineta, 532 U.S. 941 (2001), cert. dismissed as improvidently granted, 534 U.S. 103 (2001). During the certiorari stage, the petitioner challenged the statutes and regulations. Adarand, 534 U.S. at 513. However, the petitioner later “challeng[ed] only the statutes and regulations that pertain[ed] to direct procurement of DOT funds for highway construction on federal lands.” Id. The Supreme Court found that the petitioner’s shift in its posture necessitated a dismissal of the writ. See id.
460 The six justices are Kennedy and Stevens, in addition to O’Connor, Souter, Ginsburg, and Breyer. See Croson, 488 U.S. at 486–92 (O’Connor, J.); id. at 519 (Kennedy, J., concurring) (“I accept the less absolute rule contained in Justice O’Connor’s opinion.”); id. at 517 (Stevens, J., concurring) (“[O]nly two conceivable bases for differentiating the preferred classes from society as a whole have occurred to me: (1) that they were the victims of unfair treatment in the past and (2) that they are less able to compete in the future.”); see also Adarand, 515 U.S. at 269 (Souter, J., dissenting) (Ginsburg, & Breyer, JJ., joining in dissent) (“The Court has long accepted the view that constitutional authority to remedy past discrimination is not limited to the power to forbid its continuation, but extends to eliminating those effects that would otherwise persist . . . .”).
461 See 532 U.S. 234, 251–58 (2001).
462 Id. at 258.
463 Id. at 251.
464 Id. at 257.
465 Mitchell v. United States, 526 U.S. 314, 331–32 (1999) (Scalia, J., dissenting).
466 See, e.g., Dickerson v. United States, 530 U.S. 428, 443 (2000) (internal citation omitted).
467 See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 867 (1992).
468 See, e.g., Planned Parenthood, 505 U.S. at 865–69 (to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question).
469 Dickerson, 530 U.S. at 428.
470 Planned Parenthood, 505 U.S. at 833.
471 384 U.S. 436 (1966).
472 See Dickerson, 530 U.S. at 443.
473 Id.
474 Id. at 443.
475 Id.
476 Id. (quoting Mitchell, 526 U.S. at 331–32 (Scalia, J., dissenting)).
477 See Casey, 505 U.S. at 833.
478 400 U.S. 113 (1973).
479 Casey, 505 U.S. at 833–34.
480 See id. at 834–35.
481 Id. at 866.
482 Id.
483 Id. at 864.
484 Casey, 505 U.S. at 865.
485 Id. at 867.
486 198 U.S. 45 (1905).
487 163 U.S. 537 (1896).
488 Casey, 505 U.S. at 864.
489 Id. at 865.
490 That Bakke is the center of great controversy in the public arena is obvious. Seventy-nine amicus curiae briefs were filed, some for a number of amici.
491 See Bakke, 438 U.S. at 311–12.
492 See supra Part II.A.2.
493 See Bakke, 438 U.S. 265, 311–12.
494 See Look What Happens When Affirmative Action is Banned: Black Students are Pushed Down Into Second– and Third-Tier Institutions of Higher Education, 34 J. Blacks Higher Educ. 82, 82 (Winter 2001–02).
495 See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 219 (1995).
496 Today those five are Chief Justice Rehnquist, and Justices O’Connor, Kennedy, Scalia, and Thomas. See generally Adarand, 515 U.S. 200 (1995).
497 The four are Justices Stevens, Souter, Ginsburg, and Breyer. Justices Stevens and Ginsburg, dissenting in Adarand, noted: “I think it is unfortunate that the majority insists on applying the label ‘strict scrutiny’ to benign race-based programs.” Id. at 243.
498 Id. at 275–76 (Ginsburg, J., dissenting) (quoting Adarand, 515 U.S. at 237–38 (O’Connor, J., majority) (quoting Fullilove v. Klutznick, 448 U.S. 448, 519 (1980)).
499 515 U.S. at 200.
500 See City of Richmond v. J. A. Croson Co., 488 U.S. 469 (1989); Wygant v. Jackson Bd. of Ed. 476 U.S. 267 (1986).
501 Adarand, 515 U.S. at 220.
502 See Wygant, 476 U.S. at 270 (“Societal discrimination without more, is too amorphous a basis for finding a racially classified remedy.”).
503 See Adarand, 515 U.S. at 205–06; Croson, 488 U.S. at 477–83.
504 See, e.g., Adarand, 515 U.S. at 269 (Souter, J., dissenting) (Ginsburg & Breyer, JJ., joining) (“The Court has long accepted the view that constitutional authority to remedy past discrimination is not limited to the power to forbid its continuation, but extends to eliminating those effects that would otherwise persist and skew the operation of public systems even in the absence of current intent to practice any discrimination.”); see also Adarand, 515 U.S. at 242 (Stevens, J., dissenting).
505 See, e.g., id. at 200.
506 Justices Stevens and Ginsburg (two of the four dissenters) wrote in Adarand:
There is no moral or constitutional equivalence between a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination. Invidious discrimination is an engine of oppression, subjugating a disfavored group to enhance or maintain the power of the majority. Remedial race-based preferences reflect the opposite impulse: a desire to foster equality in society. No sensible conception of the Government’s constitutional obligation to “govern impartially,” . . . should ignore this distinction.
Id. at 243. Although social conditions were not under consideration, “caste system” and “racial subordination” are parts of social conditions theory. See supra Part II.A.1.
507 See, e.g., Wygant, 476 U.S. at 276. In Croson, Justice O’Connor, referring to Wygant, wrote: “This Court reversed, with a plurality of four Justices reiterating the view expressed by Justice Powell in Bakke that ‘[s]ocietal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy.’” Croson, 488 U.S. at 497 (internal citation omitted).
508 See Adarand, 515 U.S. at 237.
509 See Adarand Constructors, Inc. v. Slater, 228 F.3d 1147 (10th Cir. 2000), cert. granted Adarand v. Mineta, 532 U.S. 967 (2001), cert. dismissed as improvidently granted, 534 U.S. 103 (2001).
510 Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (2001). For discussion of this case, see supra note 459.
511 Adarand, 515 U.S. at 237.
512 Croson, 488 U.S. at 509.
513 Bakke, 438 U.S. at 307; see also United States v. Paradise, 480 U.S. 149, 167 (1987) (“[E]very Justice . . . agreed that the Alabama Department of Public Safety’s ‘pervasive, systematic, and obstinate discriminatory conduct’ justified a narrowly tailored race-based remedy.”).
514 Wygant, 476 U.S. at 286 (O’Connor, J., concurring). In Croson, Justice O’Connor applied similar reasoning: “[A]ppellee argues that the city must limit any race-based remedial efforts to eradicating the effects of its own prior discrimination. . . . Appellant argues . . . the city of Richmond enjoys sweeping legislative power to define and attack the effects of prior discrimination in its local construction industry. We find that neither of these two rather stark alternatives can withstand analysis.” 488 U.S. at 486.
515 Hunt v. Cromartie, 532 U.S. 234, 236 (2001); see supra notes 461–464 and accompanying text. On the other hand, Justice Kennedy, who has agreed with Justice O’Connor about some aspects of affirmative action, was opposed to the use of race in Cromartie. See id. at 259–67.
516 See supra Part II.A.1.
517 See supra Part II.A.1.
518 See supra Part II.A.1.c.
519 See supra Part II.A.3.
520 Justice Powell suggested another compelling interest when he “assumed” in Bakke that a state has a compelling interest in facilitating the health care of its citizens. Because there had been no evidence that affirmative action would facilitate health care, he did not base his opinion on the claim. See Bakke, 438 U.S. at 310–11. But extrapolating from his assumption, other social conditions that deserve remedy, if supported by the evidence, should warrant affirmative action as well. This assumption recognizes that a university program may encompass more than instruction and scholarship. It may embrace a concern for health care in society. If health care, why not other interests?
521 See supra Part II.A.1.
522 If, for example, under affirmative action a class consisted of 100 students, ninety of whom were white and ten of whom were minorities, an affirmative action opponent might charge that ten whites had been rejected to allow room for the ten minorities. If the size of the class were increased to 110, then it might be assumed that all of the 100 whites who would have been admitted originally, if there had been no affirmative action, would then be admitted.
523 See supra text accompanying notes 327–329.
524 Chief Justice Burger in Fullilove v. Klutznick expressed this view:
It is not a constitutional defect in this program that it may disappoint the expectations of nonminority firms. When effectuating a limited and properly tailored remedy to cure the effects of prior discrimination, such “a sharing of the burden” by innocent parties is not impermissible. . . . Moreover, although we may assume that the complaining parties are innocent of any discriminatory conduct, it was within congressional power to act on the assumption that in the past some nonminority businesses may have reaped competitive benefit over the years from the virtual exclusion of minority firms from these contracting opportunities.
448 U.S. 448, 484–85 (1978). Adarand has since overruled Fullilove. See Adarand, 515 U.S. at 202.
Still, Justices Ginsburg and Breyer continue to take the position Chief Justice Burger took in Fullilove:
When this price is considered reasonable, it is in part because it is a price to be paid only temporarily: if the justification for the preference is eliminating the effects of a past practice, the assumption is that the effects will themselves recede into the past, becoming attenuated and finally disappearing.
Id. at 270. Justice Powell has written: “As part of this Nation’s dedication to eradicating racial discrimination, innocent persons may be called upon to bear some of the burden of the remedy.” Wygant, 476 U.S. at 280–81.
525 See supra Part IV.A.2.
526 See supra Part II.A.1.
527 See Croson, 488 U.S. at 471.
528 See supra Part I.D.
529 See supra Part I.B.
530 See supra Part I.E.4.
531 See supra text accompanying notes 184–189.
532 See supra text accompanying notes 190–194, app. A.
533 488 U.S. at 506.
534 Adarand, 515 U.S. at 238 (quoting Fullilove, 448 U.S. at 513 (Powell, J., concurring)).
535 See supra notes 85–97 and accompanying test.
536 See supra Part I.E.1.
537 See supra Part I.D.1, 3.
538 See supra Part I.D.2.
539 See supra text accompanying notes 109–112.
540 Plessy v. Fergusson, 163 U.S. 537, 559–60 (1896).
541 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 854 (1992) (explaining decision not to overrule Roe, 410 U.S. 113 (1973)). The Justices also wrote of “the certain cost of overruling . . . ,” id. at 856, and “prescience,” id. at 862.
542 487 U.S. 654 (1988).
543 Id. at 730.
544 Bush v. Gore, 531 U.S. 1046 (2000). Justice Scalia wrote: “The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.” Id. at 1046.
545 349 U.S. 294 (1955).
546 See Mark V. Tushnet, Making Civil Rights Law 199 (possible abolition of public education), 192 (violence), 229 (resistance; end of southern liberalism) (1994).
547 See Mary L. Dudziak, Desegregation as a Cold War Imperative, 41 Stan. L. Rev. 61, 65 (1988).
548 See supra notes 502–503 and accompanying text.
549 See Alexander Bickel, The Supreme Court, 1960 Term—Foreword: The Passive Virtues, 75 Harv. L. Rev. 40 (1961). See generally Note, Constitutional Stare Decisis, 103 Harv. L. Rev. 1344 (1990).
550 See Zadvydas v. Davis, 533 U.S. 678 (2001); Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289 (2001).
551 331 U.S. 549, 570 (1947).
552 Id. at 572. The opinion explained:
the Court will not render advisory opinions; constitutional issues affecting legislation will not be determined in friendly, non adversary proceedings; in advance of the necessity of deciding them; in broader terms than are required by the precise facts to which the ruling is to be applied; [at] the instance of one who fails to show that he is injured by the statute’s operation; [or] if a construction of the statute is fairly possible by which the question may be avoided.
Id.; see also Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 341 (1936) (Brandeis, J., concurring).
553 Cass R. Sunstein, Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 6, 93 (1995).
554 See supra Part III.A.1–2.
555 See, e.g., Casey, 505 U.S. at 867.
556 Brief for the Respondents at 6, Adarand Constructors v. Mineta, 532 U.S. 967 (2001) (No. 00–730). In support of the program, the brief said that “[i]t is designed to ensure that aid recipients employ race-conscious remedies only as a last resort.” Id. at 19.
557 See supra text accompanying note 459.
558 See supra notes 49–51 and accompanying text.
559 430 U.S. 188 (1977).