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  • Race, Educational Loans & Bankruptcy

    This Article reports new data from the 2007 Consumer Bankruptcy Project revealing that college graduates and specifically White graduates are less likely to file for bankruptcy than their counterparts without a college degree. Although these observations suggest that a college degree helps graduates to weather the setbacks that sometimes lead to financial hardship as measured by bankruptcy, they also indicate that a college degree may not help everyone equally. African American college graduates are equally likely to file for bankruptcy as African Americans without a college degree. Thus, a college education may not confer the same protective benefit against financial hardship for African Americans that it does for their White counterparts. These observations draw attention to the tension between two federal policies with respect to educational attainment: educational lending policy that encourages Americans to take on debt to finance their educations and bankruptcy policy that makes discharge of educational debt practically impossible. Given preexisting wealth, educational loan borrowing, and post-graduate income data concerning African Americans, these data suggest that African Americans may experience Congress's restrictive educational loan discharge policy more acutely than Whites. Indeed, African Americans are more likely to borrow money for college, earn less after graduation, and yet are bound by the same duty to repay educational loans. Ultimately, these educational loan policies may reveal who, as a practical matter, should and who should not be going to college. More troubling is that this division seems to track socioeconomic and racial lines. Accordingly, this Article considers whether these findings should persuade Congress to reformulate its policy on the discharge of educational loans in bankruptcy or alternatively, to change the manner in which it supports educational attainment.

  • Teaching Whren to White Kids

    This Article addresses issues at the intersection of United States v. Whren and Grutter v. Bollinger at a time when the reality of racial profiling was recently illustrated by the high-profile arrest of a prominent Harvard professor. Given the highly racialized nature of criminal procedure, there is a surprising dearth of writing about the unique problems of teaching issues such as racial profiling in racially homogeneous classrooms. Because African American and other minority students often experience the criminal justice system in radically different ways than do Whites, the lack of minority voices poses a significant barrier to effectively teaching criminal procedure. This Article critiques current law school pedagogical approaches and suggests that we must both re-think academic methods for teaching criminal procedure within the classroom and expose 'post-racial" mythologizing outside the classroom.

  • Affirmative Action & Negative Action: How Jian Li’s Case Can Benefit Asian Americans

    In October 2006, Asian American student Jian D filed a civil rights complaint against Princeton University claiming that Princeton's affirmative action policies were discriminatory. Li argues that affirmative action gives preferences to non-Asian minorities at the expense of Asian students. Li's case aligns the interests of Asian Americans with Whites who challenge affirmative action and suggests that such policies are inherently discriminatory because they exclude students based on race and sacrifice merit. This Article argues that Li's exclusion is not due to affirmative action but is likely due to "negative action," the unfavorable treatment of Asian Americans relative to Whites. Affirmative action is not discriminatory because it considers a multitude of factors, including race, to achieve a diverse student population. Nor does affirmative action sacrifice merit; rather, it redefines merit in a way that can benefit students of all racial groups. On the other hand, negative action is discriminatory and prevalent. Whether it takes the form of legacies, admission limits or racial group comparisons, negative action discriminates against Asian Americans based on their race and contributes to existing inequalities in admissions. Framing Li's case as a claim against negative action instead of affirmative action is a more accurate analysis that attacks ongoing discrimination in admissions, but preserves affirmative action's benefit for all racial groups.

  • From Proposition 209 to Proposal 2: Examining the Effects of Anti-Affirmative Action Voter Initiatives

    Transcript of the symposium held at the University of Michigan Law School on Saturday, February 9, 2008 in Hutchins Hall Room 100

  • Can Michigan Universities Use Proxies for Race After the Ban on Racial Preferences?

    In 2003, the Supreme Court of the United States held that public universities—and the University of Michigan in particular--had a compelling reason to use race as one of many factors in their admissions processes: to reap the educational benefits of a racially diverse student body. In 2006, in response to the Supreme Court's decision, the people of Michigan approved a ballot proposal--called the Michigan Civil Rights Initiative ("MCRI")-that prohibits public universities in the state from discriminating or granting preferential treatment on the basis of race. Shortly after the MCRI was approved, a number of Michigan universities suggested that they were considering whether to use proxies for race in their admissions process in order to enroll racially diverse student bodies while circumventing the MCRI. These proxies include preferences for applicants who reside in heavily African American Detroit, applicants who are bilingual, and applicants who have lived on an Indian reservation. This Essay considers whether it is legal for the universities to use proxies for race like these in their admissions processes.

  • Without Color of Law: The Losing Race Against Colorblindness in Michigan

    This Essay examines affirmative action, while discussing its fall in California, Washington State, and ultimately Michigan.

  • (Still) Constitutional School De-Segregation Strategies: Teaching Racial Literacy to Secondary School Students and Preferencing Racially-Literate Applicants to Higher Education

    In Parents Involved in Community Schools v. Seattle School Dist. No. 1, the Supreme Court declared that it will continue to scrutinize race-conscious educational decisions to insure that they are narrowly-tailored to serve a compelling governmental interest. This Article develops a strategy for enhancing racial diversity at all levels of American public education that can survive that rigorous constitutional scrutiny. The Article shows that school districts may prove that assigning a meaningful number of racially diverse students to their secondary schools is narrowly-tailored to achieve their compelling educational interest in teaching racial literacy. The constitutionality of this race-conscious educational strategy cannot be undermined by the availability of race-neutral student assignment plans; those race-neutral plans are not tailored to meet the precise educational objective of teaching racial literacy. This Article also demonstrates that an institution of higher learning that values racial literacy in its enrolled students may constitutionally prefer applicants who have a measurably strong foundation in racial literacy by virtue of having attended a racially-diverse secondary school. Those students would receive preferential admissions treatment not because of their race, but because of their acquisition of racial literacy. Accordingly, the compelling educational outcome of racial literacy can provide a constitutional foundation for enhancing racial diversity not only in secondary school, but in colleges and universities as well.

  • The Diversity Rationale: Unprovable, Uncompelling

    Student body diversity-and the purported educational benefits diversity bestows- is the final Supreme Court-endorsed justification for affirmative action by public universities. Are the benefits of diversity indeed "substantial," as the Grutter majority claimed? The author analyzes the social scientific research upon which the Court relied in articulating the diversity interest. By critiquing its theory and methodology, the author shows how the research fails to prove educational benefits; and by considering the logic underlying social science generally, he shows how the causal relationship is, technically, not provable. The author questions, then, how the diversity interest can possibly be compelling.

  • Challenging the Bounds of Education Litigation: Castaneda V. Regents and Daniel V. California

    This Note argues that by combining the normative suasion of educational finance litigation with the political imperatives manifested in affirmative action law and practice, those who seek to improve the quality of secondary education and expand access to higher education would likely effect greater change than they would working independently. Under the appropriate political and legal circumstances, access to public higher education ought to be treated as something akin to a fundamental right, the unequal distribution of which constitutes a violation of equal protection for students of color and for economically disadvantaged students. Using the Castaneda and Daniel lawsuits to probe the rigid contours of school "finance" reform litigation and the overly formal conceptions of race-based preferences that pervade discourse about affirmative action, the author argues that these cases provide promising examples of the ways in which advocates for diversity in higher education may capitalize on the political will of the people and the structure of the state system of public education to advance an agenda that simultaneously improves secondary education while diversifying institutions of higher education. Although this Note concentrates on two cases from California, it fundamentally concerns what advocacy for educational equity will look like throughout the country for the next generation of students of color and of economically disadvantaged students. These cases, though born of the particularities of California's state education system, do not embrace strategies unique to California. Rather they are harbingers of a promising nationwide trend.

  • Fair and Facially Neutral Higher Educational Admissions Through Disparate Impact Analysis

    Part I of this Note proposes both remedial and instrumental justifications for applying disparate impact scrutiny to admissions policies. This Part argues that disparate impact analysis should be applied to higher education as a remedy for the disadvantage minority applicants face as a result of historic and ongoing intentional discrimination and that schools are culpable for unnecessarily utilizing admissions criteria that have this discriminatory effect. The result of applying disparate impact analysis will be admissions policies that produce diverse student bodies while remaining facially neutral with regard to race. Part II proposes that a necessity standard, unique to the higher education context, be fashioned such that admissions policies are made as equitable as possible while not undermining a school's ability to achieve its legitimate admissions goals. The proper necessity standard would grant schools latitude to define their institutional goals, but at the same time require that their admissions criteria be the least discriminatory methods of achieving these goals. Finally, Part III shows that a court can feasibly and effectively apply disparate impact analysis to admissions processes despite their complexity and variety.