HANDOUT AFFIRMATIVE ACTION:

14th Amendment (1868): No state shalldeny to any person within its

jurisdiction the equal protection of the laws.
1875 Civil Rights Act: That all persons within the jurisdiction of the United
States shall be entitled to the full and equal enjoyment of the accommodations,
advantages, facilities, and privileges of inns, public conveyances on land or water,
theaters, and other places of public amusement; subject only to the conditions and
limitations established by law, and applicable alike to citizens of every race and
color, regardless of any previous condition of servitude. The CRA is struck as an
unconstitutional use of federal power by the Court over the dissent of Harlan.
Carolene Products (1938): sets out levels of judicial scrutiny of laws. Economic
rights are subject to lower levels of scrutiny than laws affecting discrete and insular
minorities.
Brown v. Board (1954) strikes segregation as an unconstitutional violation of
equal protection.
Civil Rights Act, Title VI (1964): No person in the United States shall, on the
ground of race, color, or national origin, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance.
UC Daviss Medical School Admission Program (challenged in Regents of
California v. Bakke):

100 admission slots for 2,664 candidates.

Admissions system works on points. 470 is the threshold for automatic
admission.
In 1970, the faculty had instituted a program designed to admit more
students from economically or educationally disadvantaged members of the
following groups: Black, Chicano, Asian, and American Indian.
o 16/100 admission slots are reserved for these applicants.

U Michigans Admissions Program:

Challenged in Gratz v. Bollinger: The Undergraduate policy was a points

system in which 100 points was needed for entry. There were several
attributes measured (e.g., high school class standing), but 20 pointsmore
than for any other single attributewere awarded to those that came from
historically disadvantaged racial groups (African American, Hispanic, Native
American).

Challenged in Grutter v. Bollinger: The Law School evaluates each application

individually base on undergraduate GPA, LSAT score, a personal statement,
letters of recommendation, and an essay describing how the applicant would
contribute to the life and diversity of the law school

University of Texass Undergraduate Admissions Program (challenged in

Fisher v. Texas, 2013):

Prior to 1996, UT used race as a direct factor in admission

In 1996, a Federal court struck this approach (Hopwood v. Texas).

UT responded by adopting a holistic admissions process (Personal Achievement

Index) that excluded race as a direct factor, and relied on factors such as
leadership, awards, community service, special circumstances (socioeconomic
factors at home). Black and Hispanic enrollment declined.
In response, the Texas legislature instituted a top 10% law, which admits all Texas
high school seniors who rank in the top 10% of their class to UT.

From 1998 to 2006, UT admitted roughly 80% of the incoming freshman class
through the top 10% law.
Remaining 15-20% admitted through the holistic approach.

Grutter permits race to be used as a factor in the holistic approach, and UT once
again uses race as a factor beginning in 2004.

Competing Views of Racial Equal Protection in Historical Context:

Douglass, What the Black Man Wants (1865): What I ask for the negro is
not benevolence, not pity, not sympathy, but simply justice. The American people
have always been anxious to know what they shall do with us . I have had but one
answer from the beginning. Do nothing with us! Your doing with us has already
played the mischief with us. Do nothing with us! If the apples will not remain on the
tree of their own strength, if they are worm-eaten at the core, if they are early ripe
and disposed to fall, let them fall! And if the negro cannot stand on his own legs,
let him fall also. All I ask is, give him a chance to stand on his own legs! Let him
alone!
Bradley for the 8-1 Court striking the 1875 Civil Rights Act: When a man
has emerged from slavery, and by the aid of beneficent legislation has shaken off
the inseparable concomitants of that state, there must be some stage in the
progress of his elevation when he takes the rank of a mere citizen, and ceases to be
the special favorite of the laws, and when his rights as a citizen, or a man, are to be
protected in the ordinary modes by which other mens rights are protected.
Harlans dissent in the Civil Rights Cases (1883): But did the freedom thus
established involve nothing more than exemption from actual slavery? Was nothing
more intended than to forbid one man from owning another as property? Was it the
purpose of the nation simply to destroy the institution, and then remit the race,
theretofore held in bondage, to the several states for such protection, in their civil
rights, necessarily growing out of freedom, as those states, in their discretion,
choose to provide?

Harlans Dissent in Plessy (1896): "In the eye of the law, there is in this country
no superior, dominant, ruling class of citizens. There is no caste hereOur
constitution is colorblind, and neither knows nor tolerates classes among citizens. In
respect of civil rights, all citizens are equal before the law. The humblest is the peer
of the most powerful. . .The arbitrary separation of citizens on the basis of race,
while they are on a public highway, is a badge of servitude.
Warren in Brown (1954), striking segregation: In approaching this problem,
we cannot turn the clock back to 1868, when the Amendment was adopted, or even
to 1896, when Plessy v. Ferguson was written. We must consider public education in
the light of its full development and its present place in American life throughout
the Nation. Only in this way can it be determined if segregation in public schools
deprives these plaintiffs of the equal protection of the laws.