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racial preferences

A few more notes on the case already covered yesterday in tweet form:

Scalia sets the stage beautifully: “[In this] jurisprudential twilight zone… we confront a frighteningly bizarre question: does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” The drama, however, is not destined to play out on that rhetorical stage, since all eight Justices, even Sotomayor and Ginsburg, claim to believe that the Equal Protection issue is only whether Michigan citizens chose a constitutionally valid method by which to end preferences.

To me, this much increased the interest of the case. The constitutionality of racial preferences as such has been thrashed out for years in so many high-profile Court decisions that anyone who cares has had ample chance to think about the issue. There has been far less attention to the unprincipled, un-administrable, substance-masquerading-as-procedure Reitman/Hunter/Seattle line of cases, by which the Court occasionally and selectively intervenes to reverse democratically arrived-at processes when they come out with the “wrong” policy answer. Scalia and Thomas are ready to overrule this bad line of cases directly; the plurality, for better or worse, are not (yet) willing to do so, and instead limit the cases’ reach in ways that neither Scalia nor Sotomayor find logically compelling.

Sotomayor’s mantra “Race matters” is likely to thrill some readers — it has already been in use for a while as a catch-phrase in academia and elsewhere — but as a device for organizing a legal opinion, it’s at best … imprecise. All the other Justices agree that race matters, but disagree on how. As Ilya Somin and David Bernstein point out at Volokh Conspiracy, Sotomayor also gerrymanders “race” in a way convenient to her purposes, using it to include Hispanic-Americans (who aren’t a race) while breathing not one word about Asian-Americans (a more genuine racial classification whose situation of being both historically disadvantaged *and* discriminated against in university admissions cries out for recognition). “Race matters,” indeed. More thoughts: Roger Pilon and Ilya Shapiro, Cato. (adapted newer version at Cato at Liberty).

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Yesterday the U.S. Supreme Court, over two dissents, ruled that the voters of Michigan were within their rights under the Constitution’s Equal Protection Clause to enact an amendment to the state constitution barring racial preference in public university admissions. (Earlier here, here, etc.) Justice Kennedy wrote a plurality opinion for three Justices, while Justice Scalia, joined by Justice Thomas, Justice Breyer, and Chief Justice Roberts wrote separate concurring opinions. Justice Sotomayor dissented, joined by Justice Ginsburg, and Justice Kagan was recused. Both sides maintained that the core controversy was not over whether Michigan was obliged to keep racial preferences as such, but rather over whether the state’s way of banning them (through voter constitutional amendment) had fallen afoul of the Court’s holding in earlier cases that the Equal Protection Clause requires that the political process itself not be arranged in ways unfavorable to minority interests.

I sent out tweets and retweets summarizing highlights of the Roberts, Scalia, Sotomayor, and plurality opinions and reprint them here, earliest first (starting with the Roberts and Scalia opinions).

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Schools roundup

by Walter Olson on March 11, 2014

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Josh Blackman on yesterday’s oral argument in Schuette v. Coalition To Defend Affirmative Action.

February 23 roundup

by Ted Frank on February 23, 2008

  • Easterbrook: “One who misuses litigation to obtain money to which he is not entitled is hardly in a position to insist that the court now proceed to address his legitimate claims, if any there are…. Plaintiffs have behaved like a pack of weasels and can’t expect any part of their tale be believed.” [Ridge Chrysler v. Daimler Chrysler via Decision of the Day]
  • Retail stores and their lawyers find sending scare letters with implausible threats of litigation against accused shoplifters mildly profitable. [WSJ]
  • Kentucky exploring ways to reform mass-tort litigation in wake of fen-phen scandal. [Mass Tort Prof; Torts Prof; AP/Herald-Dispatch; earlier: Frank @ American]
  • After Posner opinion, expert should be looking for other lines of work. [Kirkendall; Emerald Investments v. Allmerica Financial Life Insurance & Annuity]
  • Judge reduces jury verdict in Premarin & Prempro case to “only” $58 million. And I still haven’t seen anyone explain why it makes sense for a judge to decide damages awards were “the result of passion and prejudice,” but uphold a liability finding from the same impassioned and prejudiced jury. Wyeth will appeal. [W$J via Burch; AP/Business Week]
  • Judge lets lawyers get to private MySpace and Facebook postings. [OnPoint; also Feb. 19]
  • Nanny staters’ implausible case for regulating salt. [Sara Wexler @ American; earlier: Nov. 2002]
  • Doctor: usually it’s cheaper to pay than to go to court. [GNIF BrainBlogger]
  • Trial lawyers in Colorado move to eviscerate non-economic damages cap in malpractice cases [Rocky Mountain News]
  • Bonin: don’t regulate free speech on the Internet in the name of “campaign finance” [Philadelphia Inquirer]
  • “Executives face greater risks—but investors are no safer.” [City Journal]
  • Professors discuss adverse ripple effects from law school affirmative action without mentioning affirmative action. Paging Richard Sander. Note also the absence of “disparate impact” from the discussion. [PrawfsBlawg; Blackprof]
  • ATL commenters debate my American piece on Edwards. [Above the Law]

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Chicago firefighters exam

by Ted Frank on March 24, 2005

In 1995, Chicago paid $5 million for an African-American consultant to work with a blue-ribbon panel to devise a race-neutral exam for promoting firefighters. Unfortunately, in the end result, whites were twice as likely to score “well-qualified” as blacks. In 2002, when it ran out of candidates who scored 89, Chicago stopped requiring that promoted firefighters score that high, and a federal district court has decided as a result that the test was racially discriminatory for the previous seven years. Chicago taxpayers may be on the hook for as much as an additional $80 million in back pay and front pay. (Glenn Jeffers, “Judge rules city fire exam biased”, Chicago Tribune, Mar. 23; AP/Chicago Sun-Times, Mar. 23; Fran Spielman, “Exam bias ruling may cost city $80 million in firefighter lawsuit”, Chicago Sun-Times, Mar. 24).

A question for readers: none of the press has mentioned it, but, in 2001, a labor arbitrator ruled that the city discriminates against whites when it promotes a lower-scoring minority over a white. (Fran Spielman, “City ordered to promote white firefighters”, Chicago Sun-Times, Apr. 14, 2001). In 2002, a federal jury found that the 1986 test was fair, and that the city discriminated by promoting lower-scoring minorities over whites, awarding millions. (AP, May 18, 2002). These would appear to put the city in an impossible position. Or has something happened in the interim that obviates these earlier rulings? As an experiment, I’ve opened comments; please restrict your remarks to this latter question, and please remain civil and respectful.

Update: the 2002 decision’s reverse-discrimination finding was affirmed in Biondo v. Chicago (7th Cir. Aug. 27, 2004), though the damages award was vacated. (Schrank blog discussion).

The decisions are arguably reconcilable: the two exams are different; Biondo involved an explicit quota. On the other hand, page 5 of the Biondo slip opinion explicitly endorsed the methodology used by Chicago that the district court condemned this week.

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