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The lecture notes are here.

Affirmative Action

• Affirmative Action (1386-1389).
• Grutter v. Bollinger (1389-1401).
• Notes (1401-1405).
• Fisher v. University of Texas, Austin (2013).
• Affirmative Action Outside Education (1405-1407).
• Schuette v. Coalition to Defend Affirmative Action (2014).

Palmer v. Thompson

Rather than desegregate a swimming pool, the city of Jackson, Mississippi filled it with cement.

Michigan Affirmative Action Cases

This is Jennifer Gratz, the lead plaintiff in Gratz v. Bollinger:

This is the University of Michigan Office of Undergraduate Admission.

This is the University of Michigan Law School Admission Office.

Abigail Fisher v. University of Texas, Austin

This is Abigail Fisher of Sugarland, Texas

This is the University of Texas, Austin.

Also, this story from University of California at Berkeley Law School is relevant to our discussion.

Berkeley Law’s ‘critical mass’ policy results in racial divisions

In an effort to create a more positive experience for underrepresented-minority students, the UC Berkeley School of Law has implemented a new “critical mass” policy, which has resulted in some racial divisions in the first-year classes.

The policy was criticized earlier this month in an article published on the blog Above the Law Redline, which stated that students at the law school are being racially segregated.

At Berkeley Law, incoming students are divided into nine smaller sections, called mods, in which first-year law students take their introductory classes. These nine mods then compose three super-mods, larger groups in which students also take certain courses. This year, the administration placed more underrepresented-minority students into certain mods in order to create a “critical mass” but left one super-mod entirely devoid of black students.

The administration has responded to students’ concerns, saying the critical mass policy, which aims to ensure that a certain number of underrepresented-minority students are in each classroom, was a response to previous concerns with the mods.

According to Berkeley Law Dean Sujit Choudhry, last year, the school hosted focus groups of students, faculty and staff in which underrepresented-minority students reported feeling isolated as the only members of their racial groups in their classes. Choudhry said the benefits of the critical mass system are widespread.

“It promotes robust conversations and reveals the diversity of viewpoints within racial groups,” Choudhry said in an email sent out to the law school community. “And it can help dispel stereotypes that others may hold because people see that not everyone from a particular group is alike.”

Four of the smaller mods had critical masses of black students, but all mods included underrepresented-minority students. So while one of the super-mods had no black students, all mods had some Hispanic and Asian American students.

According to the UC Berkeley chapter of La Raza Law Students Association, studies by researchers such as Executive Vice Chancellor and Provost Claude Steele have shown that being the only member of a certain racial group in a classroom can negatively affect a student’s abilities to perform well academically. Such “solo status” places additional pressure on underrepresented minorities to perform well as the representatives of their respective racial or ethnic groups.

Isolation in the classroom, the studies showed, may also lead to “stereotype threat” — in which students fear that their performance may confirm negative stereotypes about ability — and can have negative physiological effects on the student, further hindering academic performance.

La Raza, which seeks to empower Latino students, in an email voiced its support for the critical mass program as a way to “reduce academic anxiety and stereotype threat.”

Students at the law school have responded positively to the policy as well.

Reed Frye, a second-year law student, said in an email that first-year black and Hispanic students “largely love the policy,” adding that they seem more assertive and empowered than he remembers feeling as a black first-year student, before the policy was implemented.

Frye suggested that the absence of black students in one super-mod disadvantages white students in that mod. He added, however, that the barriers for underrepresented minorities overcome by this policy outweigh the detriments (of a lack of diversity) to white students “by several orders of magnitude.”

Similarly, Emmanuelle Berdugo, a first-year student, said the administration’s decision to listen to the concerns of underrepresented-minority students who had felt marginalized in previous years and respond with the critical mass policy was a prudent decision, and dismissed the idea that such a policy amounted to segregation.

Berdugo and others noted that while the mods themselves are not a problem, there still exist concerns regarding the representation of underrepresented minorities at Berkeley Law. Many cited California Proposition 209 — which prohibits public education institutions from considering race, sex or ethnicity in admissions — as an underlying factor.

“The fact that there is a super mod with no Black students is a problem the university needs to deal with,” Berdugo said in an email. “They have to admit more Black and Brown students.”

According to the Law Students of African Descent, Prop. 209 caused a steep decline in the enrollment of black students at the law school.

A December 2014 study done by the Journal of Blacks in Higher Education showed that, on the basis of black students as a percentage of total enrollment, Berkeley Law ranked 14th out of 15 leading law schools in the nation.

Though it strongly supports the critical mass policy, La Raza stated in an email that it is merely an attempt to fix a “symptom of the bigger problem of the law school admissions and retention systems — a failure to achieve true racial diversity and inclusion.”

During oral arguments this morning in Zubik, Justice Breyer engaged in a 49-line soliloquy about Quakers, St. Benedict, Jews, and Muslims. How that will guide him to resolving the case, I have no idea. But I’ll tell you–in the Court the question seemed to drag on for even longer.

The previous record (by my unscientific count) was 44-lines in Hosanna-Tabor, another religious liberty case. In Bond, he spoke for 38 lines uninterrupted. 36 Lines in FERC v. Electric Power Supply Association. He went 32 lines in Medtronic v. Boston Scientific Corp. He had 35 lines in EPA v. EME Homer. In Franchise Tax Bd. of Cal. v. Hyatt, Justice Breyer spoke had 34 lines. Alas, only 27 lines in Zivotofsky.

One of my first blog posts in October 2009, immediately after I passed the Virginia Bar, started a count-down till my eligibility for admission to the Supreme Court Bar. In that post, I wrote, “I am seriously considering skipping the swearing ceremony in Richmond, but I will not miss my debut at 1 First St. NE.” I indeed did skip the swearing ceremony in Richmond, which, alas delayed my SCOTUS bar-admission.

As I noted in a December 2012 post, in order to be eligible for the bar of the Supreme Court of the United States, I had to first be a member of the Supreme Court of Virginia for three years. In one of the quirks of the Old Dominion, being a member of the Virginia Bar is separate and apart from being a member of the Commonwealth’s highest court. So in December 2012, I was (finally) sworn into the Supreme Court of Virginia Bar in a ceremony in Richmond. That started the ultimate three year clock, which allowed me to (finally) apply for the SCOTUS bar in December 2015. (And if you are curious, I mailed in my application on the exact date I was allowed to). Randy Barnett and Ilya Shapiro were my two sponsors.

The swearing in, or as I call it, my SCOTUS Cotillion, took less time than the Texas Dip. The Chief Justice called on Ilya to read a prepared script. Once Ilya said my name, I stood up. The Chief then granted the motion, and I sat down. After all of the motions for admission were granted, the Chief asked us to stand again. The Clerk administered the oath while holding a Bible. I said “I do.” And then sat down. It happens really fast. I could’ve sworn Justice Kagan smiled at me when Roberts said my name, but it could have been a hallucination from the Frozen Yogurt in the cafeteria.

But now it’s over, and I am a member of the Bar. What does this get me? I can now use the Bar line, and leave my stuff in the lawyer’s lounge, rather than frantically searching for quarters.

Thankfully, I was able to schedule my swearing-in for the same day as Zubik v. Burwell, which gave me a guaranteed seat about 3 feet from the Petitioner’s counsel table. I was so close I could see Paul Clement’s zen-like aura as he prepared for arguments. I was also sitting immediately adjacent to the press section, a few feet from Nina Totenberg as she kibitzed about her recent interview with POTUS. Lyle Denniston, who relishes in ribbing me for my age, asked if they let 18-year-olds enter the Bar. Though, there was one downside to being up front. I was so close to the bench that I could not see Justice Ginsburg unless I sat up high in my chair. During arguments, I could only hear a disembodied voice. It is still jarring to see the Bench without Justice Scalia up there. Especially during today’s arguments, I really missed his presence.

Update: And, as proof that I was at the Court, I made the official Art Lien sketch. I am in the first row, second from the left.

And Mark Walsh noted it in his View from the Court:

As usual, bar admissions are the first order of the day, and today’s admittees include a member of Congress, Rep. Keith Rothfus, a Republican from Pennsylvania. His presence may be explained by the fact that he is from the Pittsburgh area and has a law degree from the University of Notre Dame, which had challenged the contraceptive mandate in an earlier case. He also gets a really good, front-row seat in the bar section.

Seated with Rep. Rothfus is Rep. Louie Gohmert, Republican of Texas, who is not being sworn in today but, oddly, is in the section with those who are.

Barely a half-hour into the argument, a Court aide will inform Rothfus that there is a pending vote for which is presence is sought, and he will depart. Rep. Gohmert does not leave.

Also being sworn into the Supreme Court Bar today is Josh Blackman, an associate law professor at South Texas College of Law in Houston, and a frequent commentator on the work of the Court, particularly on the Affordable Care Act cases. (And his blog points out that today is the sixth anniversary of the day the president signed the ACA into law.)

The Affordable Care Act was signed into law on March 23, 2010. Today is the law’s 6th birthday. As a birthday present, the Justices will hold oral argument in Zubik v. Burwell. I’ll be at the Court, and will report back as soon as I can.

The National Constitution Center, The Harlan Institute, and The Constitutional Sources Project (ConSource) will host the championship round of the Fourth Annual Harlan Institute-ConSource Virtual Supreme Court Competition as part of the Center’s Freedom Day Celebration on April 13, 2016 at 2 p.m.. We are pleased to announce that the finalist teams have been selected, and include:

For the petitioners: Kelsey Talbot and Lauren Talbot from Lake Oswego High School in Lake Oswego, Oregon.

Here is the video from their championship round.

For the respondents: Michael Mireles and Tanya Reyna from IDEA Quest College Preparatory in Edinburg, Texas.

Here is their video:

These finalists will travel, along with their teacher and parents, to Philadelphia on April 13th to debate in front of a panel of expert judges, including lawyers, university level debate champions, and legal scholars. Confirmed judges include: The Honorable Theodore McKee, Chief Judge, United States Court of Appeals for the Third Circuit; Professor Kermit Roosevelt, University of Pennsylvania School of Law; Mr. Howard Bashman, Appellate Attorney and Founder of the How Appealing Blog; Julie Silverbrook, Executive Director, ConSource; Josh Blackman, President, Harlan Institute.

Freedom Day is an opportunity to encourage people of all ages to appreciate their unique freedoms as Americans, to understand the relationship between the Declaration of Independence, the Bill of Rights, and the U.S. Constitution, and to encourage dialogue on the meaning of freedom. In addition to the debate, the Center will produce Freedom Day programming and activities for visitors of all ages, including educational games and museum experiences for students, and an evening program for an invitation-only audience featuring high level speakers, moderators, and media discussing current issues surrounding the First Amendment.

The Harlan Institute and ConSource are thrilled that the final round of the Virtual Supreme Court Competition will be part of the National Constitution Center’s Freedom Day celebration. The aim of the Virtual Supreme Court Competition complements that of Freedom Day – to encourage dialogue on the meaning of the U.S. Constitution. Specifically, the competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. This year’s competition focuses on Fisher v. University of Texas at Austin (II), exploring whether race conscious affirmative action is consistent with the Fourteenth Amendment to the United States Constitution.The members of the grand-prize winning team, the Solicitors General of FantasySCOTUS, will receive a free trip, including airfare and one night of hotel accommodations, to Washington, D.C. to attend the ConSource Constitution Day celebration in September 2016. Members of the runner-up team will each receive an iPad Mini. Members of the third and fourth place teams will each receive a $100 Amazon.com Gift card.