1. Civil Rights 14th Amendment � �equal protection of the laws� Abolish racial discrim & allow govt to interfere Right to�. Positive liberty Positive action on part of government to protect and provide = protection Civil liberties � freedom from, negative liberty

2. Question of Interpretation Similar persons to be dealt with in similar manner Govt can make classifications, but has to justify need for classification Look at purpose and means: Rational � legit/reasonable � age Suspect � compelling/only � race Intermediate � important/subst�l - gender

3. Court rulings Plessy v. Ferguson (1896) �separate but equal� Sweatt v. Painter (1950) Denied admission to U of Texas Law School 6 months to establish sep law school Substantially equal facilities Brown v. Bd of Ed, Topeka, KA (1954) Segregation itself denial of equal protection 1955 re-argument � �all deliberate speed�

4. Continuing Controversies Scope of equal protection De jure De facto What state actions required Negative � stop discrim � desegregate Positive � remedy - integrate Target Individual grievance Group � class based Duration � when is goal achieved? Remedy past effects of state discrimination Diversity

5. Affirmative Action or Reverse Discrimination Goal � race neutral law and policy Issue � Can the govt use race conscious programs to redress continuing effects of past discrimination? Metaphor of �shackled runner� When does �fairness� for one runner result in �unfairness� for another runner?

6. Bakke v. DeFunis (1978) Admission to UC Davis Med School 100 places 84 for regular admissions 16 for �economically &/or educationally disadvantaged persons� Minorities given priority � �most disadvantaged� Bakke applied twice and was denied � borderline case

7. Lower Court Rulings CA Trial Court Davis discriminated on basis of race Violated Bakke�s equal protection Davis not have to admit Bakke � data not support he would be admitted CA Supreme Court Compelling state interest = racial equality Only use racially neutral means Ordered Bakke�s admission

8. Supreme Court�s Bakke Decision Bakke was entitled to admission University could take race into account as one of several factors in its admission criteria Bakke won but affirmative action was upheld Goals are OK, quotas not Six separate opinions

9. Bakke Decision Plurality Opinion Powell + Burger, Stewart, Rehnquist and Stevens Bakke should be admitted � can�t set aside a certain number of seats Powell + Brennan, White, Marshall and Blackmun Race may be considered a �plus� Compelling interest in �diverse student body�

10. Michigan Cases Grutter v. Bollinger (law school pres) filed Dec. 1997 in District Court Two claims: discrimination on basis of race violated both 14th Amendment equal protection Title VI of CRA of 1964 � recipients of federal funds cannot discriminate on basis of race Judge Friedman ruled (March�01)that Michigan�s use of race violated the equal protection clause Racially diverse student body NOT compelling SI Wanted 10-17% minorities � NOT narrowly tailored

11. Michigan Cases Sixth Circuit Court of Appeals � May�02 Reversed lower court Ruled there was a �compelling state interest� Narrowly tailored point system Each applicant is considered as individual

12. Michigan Cases Gratz v. Bollinger Filed Oct. 1997 in District Court Assigned to Judge Patrick Duggan Dec. 2000 ruling Diversity is compelling interest System under which Gratz rejected is unconst�l � grid system � added points to GPA or LSAT System Michigan implemented in 1999 is const�l � 150 points/ 20 for race Both parties appealed

13. Supreme Court Grutter v. Bollinger 5-4 decision upholding Law School policy (O�Connor, Stevens, Souter, Ginsburg, Breyer) �Narrowly tailored use of race� �Compelling interest� in educat�l benefits from �diverse student body� Reaffirm Powell�s Bakke decision 25 years � after that use of racial preferences will no longer be necessary

14. Supreme Court Gratz v. Bollinger 6-3 decision (Rehnquist, O�Connor, Scalia, Kennedy, Thomas, Breyer) Points system violated equal protection Not �narrowly tailored� Says diversity can be a �compelling SI� - can be a �plus� but consider as individual