Let us try this scenario out:
Actually, according to the facts mentioned in the case, this is not entirely true. Justice Thomas points out in his dissent that the UM Law Review also has a “diversity plan”. Law schools traditionally take the top 15-20 people in class rank, plus maybe a write-on or two, and offer them membership on the law review. UM apparently has some backup plan in case the top 15-20 were all white people.
One more reason to hate Law Review. 
At my school, all the journals were anonymous write-ons, no grades considered. The staff members were reasonably diverse, too. Conclusion: Ditch the grades, go on skill.
Was the Law Review scheme being challenged in the lawsuit, or was that just something else that made its way into evidence?
Actually, this is already the case in CA, where you and I live. There is an extensice sytem of UC, CS, and JCs. You know as well as I that you can get into one of those if you graduate from high school. If you mean every HS grad should be able to get into a “top-notch” school, well that’s just ridiculous.
Hopefully, the system allowed by the SCotUS will make sure this does not happen. It could easily have been so under the U of M undergard system, but with individual review, as in the law school, the admissions board should be smart enough to realize that a millionaire’s son doesn’t need preferential treatment. Of course there is no guarantee that this is so. If there goal is to have x% minorities on campus (they say this isn’t true, but of course it must be if they claim it’s between x% and y%) they may have to give preference to the millionaire’s kids to meet that goal.
This decision will essential drive AA into a fuzzy area of subjective systems where no outsider will really know exactly how it’s done. I actually find the u-grad system to be more honest, but we’ll have to see how this works.
And don’t forget the “25 year time limit”. I still think this is a ticking bomb for any AA supporter. I was really surprised to see that in the court’s opinion.
[QUOTE]
*Originally posted by John Mace *
**Actually, this is already the case in CA, where you and I live. There is an extensice sytem of UC, CS, and JCs. You know as well as I that you can get into one of those if you graduate from high school. If you mean every HS grad should be able to get into a “top-notch” school, well that’s just ridiculous.
Not “top-notch”, ANY school
Sorry my post got cut short, but the shortest distance to my conclusion is this:
The reason we have this debate is because someone realized that not all public schools were equal. Somebody realized it should be fixed. One of the first places attacked was higher education institutions. 18 yr olds and above tend to have more rights or more voice about their rights to get them publicized.
To help prove where the problem lies: In California, they have these stupid state exams to justify the amount of money a school should get. In short, the better the scores, the more money you get. Fair and balanced?
My view entirely: The real reason education (and other racially biased issues) come to light is voting. Rich people front the politicians, get their rich friends to vote for their candidates, Rich people have the resources to promote their candidate to the community, the candidate (usually rich) can afford to miss work to campaign, and the struggling less educated people can’t afford or leave either their first or second job to listen to the issues or had shoddy educations themselves and wouldn’t know the issue in the way it’s presented to them to even try and base a decision.
Lump in the case with these less fortunate people having “latch-key” kids and no real adult supervision and no role model except watching their parents work two jobs to put a roof over their heads and food on the table and a lack luster care for education.
A vicious circle is formed. I’ve seen it. I grew up growing tobacco and raising animals on a farm. I now develop databases for a Fortune 500 company because I wanted to break the circle I was born into. A democracy is not perfect in any form. There will always be levels. It just so happens that we use skin tone to help determine those levels. Another vicious circle.
The blame lies in the perception of education and what it can get you. You can have a Masters degree in Sociology and get a job as a welfare worker making $30K a year and you might get stabbed by an enraged parent or spouse or you can drop out of school in the ninth grade and make $100K dealing drugs. At fourteen, can you imagine the choice here if you wanted everything right now?
We need to fix the problems before it gets to the level of higher learning.
I hope you get a chance to read the case, I’m “lucky” in the sense that I have nothing going on this summer, so had the time.
Alot of things made it into evidence that weren’t challenged, this was one of them. The reason they are mentioned in the dissents is that the dissent seems almost to be treating this like a Title VII case and utilizing the McDonell-Douglas burden-shifting test. The dissent focuses almost entirely on showing that UM’s ability to operate as an elite public law school is not a “compelling state interest”, as well as applying “strict scrutiny”, and examining whether there is a workable race-blind alternative. Those phrases are shared by both Powell’s Bakke analysis and by the Title VII test for government actions, so perhaps the dissenters’ approach has some validity. Indeed the tests seem remarkably similiar.
Under such a burden-shifting test, a showing of pretextual reasons covering an illegal purpose is rather important. Justice Thomas attempts to show that the “individualized” process endorsed by the majority of the Court is in fact a pretext, that at it’s root the law school’s admission policy is quota-driven. He (and Rehnquist in his own dissent) tosses out alot of statistics that weren’t under challenge in the law suit to the end of trying to show this. The Law Review policy was mentioned to challenge the idea that UM was primarily concerned with the “educational benefit” of diversity.
Actually, burden-shifting is a standard part of equal protection analysis. Once the plaintiff shows that the challenged practice is a classification based on race, that shifts the burden to the state to show a compelling state interest to justify the practice. That’s similar to the Title VII burden-shifting analysis, but a lot less complicated than that particular kettle of fish.
Thanks for the clarification, minty. Due to schedule conflicts, I had to wait until next fall (when I’ll be a 3L) to take Con Law. I only know Title VII burden-shifting because I wrote a paper on it back in my One-L days.
No sweat. Also, I forgot to mention that the practice or policy has to be narrowly tailored to achieving the compelling state interest. That’s the difference between the Michigan law school case and the undergrad case: that bonus-points-for-skin-color scheme wasn’t narrowly tailored.
And I only know Title VII burden shifting because I once wrote an opinion on it. 
Minty:
What do you think of the “25 year” timeline that O’Conner put in the majority opinion. I know she wasn’t using that in a strictly literal sense, but are there any instances you’re aware of when a SCotUS majority opinion mentioned that it’s ruling might be out of date in as short a time as one generation? I find it mind boggling that someone that schooled in the use of language would put something so controversial in a ruling. But maybe I’m overreacting to something that is more common than I think.
I can’t think of any similar statements by the SCt, though you never know what’s lurking in those past opinions. It’s certainly non-binding dicta, merely expressing the current Court’s preference that these racial preferences should not be continued any longer than necessary to achieve the desired diversity. Future cases, whether 10, 25, or 100 years from now, will be determined by their own merits.
That 25 year thing struck me as part of the same problem faced with the Bono Act regarding copyright. In that case, they knew that copyright protection could not last in perpetuity, that it must be finite, but didn’t know how to draw a line, so didn’t. The problem is that statutes can create time thresholds, courts can’t. The legislature doesn’t need a logical reason to explain why a day before you couldn’t copy this, but now you can. They can create thresholds like that, the statute itself is the reason why, even though the situation apart from the statute has changed little over the course of that one day.
In this case, O’Connor blurted out some dicta, perhaps to hide the problem with the opinion. The Court said that such programs would not be Constitutional if they lasted forever, so there had to be some limit on it. But the Court had no specific authority to set a particular year. So they just said weakly “we take the Law School at it’s word” that they plan to end this at some point, and then mentioned 25 years since that was the time between Bakke and this case. As Thomas points out in his dissent, it seems rather arbitrary, and he doesn’t know why it would be any more Constitutional 300 months from now than it is today. At any rate, I agree with minty it’s worded like irrelevant dicta, and the 1000+ cases I’ve probably read in the past couple years as a law student hopefully gave me the ability to spot dicta and distinguish it from holding, as I’m sure minty’s legal practice has done.
I suspect, as Scalia does in his dissent, that the vagueness of these decisions is going to bring more confusion to the District Courts and require the SCOTUS to come back to it much sooner than 25 years. For you Scalia-haters out there, he wrote that he wasn’t looking forward to dealing with those cases, so perhaps you can get a bit of joy out of that 
I realize this is a carzy idea and would never fly, but again the scientist in me can’t help but make the proposal. Based on O’Conner’s recommendation of an approximate 25 year limit, let’s use the undergrad program of 20 points, and reduce it by one point every year. That’ll serve a temporary need and ensure that it ends in a reasonable time. And it gives everyone plenty of time to prepare for the days when you get to be judged on everything you do (academics, work, life experience), but not on race.
By the way, I assume that the 25 years is a reference to Bakke, which itself was 25 years ago. It’s been that long between college admissions/affirmative action cases in the Supreme Court, and I would not bet that such cases are likely to reappear on the Court’s cert. granted list anytime soon. Having given their guidance yesterday, the Court is probably perfectly content to let the individual circuit courts of appeal work out the details and sticky points for quite some time.
Unless we get a new Chief Justice who isn’t a complete lazy bastard who’s cut the cases reviewed by the Court in half over the last two decades.
John Mace, You are right about the public/private thing, and I am aware the difference this makes in the legality of a racial preference. I chose an Ivy League school because it was the best example of an institution that could, in theory, fill a freshman class with nothing but hyperachievers. I was talking about the principle of “diversity” in general (as it might apply to private and public entities), but I wasn’t clear and I apologize for not inserting the caveat about the public/private difference.
december, I also respect that we will disagree on this issue, and I don’t expect to sway you.
However, you do not seem to be familiar with research on and statistics from higher education, and I feel you are using them incorrectly to support your stance.
For one thing, you may be confusing institution-based and population-based graduation rates. Institutional graduation rates, which are what I was referencing, only count students who entered as freshmen. If a student transfers from college A to college B, neither college will ever count that student in its graduation rate.
As for population-based grad rates, you are correct that African-Americans as a group are less successful at earning degrees. I don’t see how you can allege that this is solely because African-Americans are being admitted to schools where they are overmatched and overwhelmed. What proportion of these nongrads were admitted via affirmative action? What proportion were admitted (or could have been admitted) without AA programs? Do you know those figures? I don’t. But wouldn’t you have to know them before you could confidently blame African-American students’ dropout on AA?
You say ”Your points about finances, family support and climate sound like wishful thinking. You have no evidence that these factors are important." Perhaps they sound like wishful thinking to you. You don’t have to read much persistence literature to find that there is plenty of evidence that lack of ability is not the sole reason for dropout.
It is true that students who get low grades are more likely to drop out (sometimes involuntarily) but this is not the only reason that students leave college. Income, for one, is highly correlated with persistence.
I’d need to see evidence that black studies classes are “easier to pass,” but I have a feeling that this is some sort of cynical allegation that you and I should both consider beneath our notice.
Maybe it all comes down to this: I compare the African-American dropout rate at colleges like Michigan to the higher national average African-American dropout rate, and I conclude selective colleges are doing something right. You compare the African-American dropout rate to the lower white dropout rate and conclude that African-Americans are being admitted to colleges where they don’t belong.
There is proof that finances, at least, play a role. California recently raised public college tuition fees signifigantly. By Grey Davis’s very own estimates, this hike will directly cause 65,000 students to drop out. Other agencies report that it may lead 200,00 to drop out.
California is also working hard to build a University of California campus in the central valley. Why is the centeral valley so important? Well they started wondering why so many Latino students, especially women, dropped out. A quick study revealed that many bright Latino UC students either dropped out early on or transfered to less prestigous state university campuses closer to their homes. They discovered that these students often have family obligations that require them to travel to their homes every weekend (which are often hours away from the nearest UC campus). Eventuall all that travel gets too expensive and too hectic and the students drop out. The UC system is hoping this new campus, located in an area with a large Latino population that has no UC nearby, will allow these students to remain close to their families while they complete school.
Here we have two well documented instances of non-academic factors, such as finance and culture, leading to a higher college drop-out rate among minority populations.
Sven: Cal State Chico, Davis, and Fresno are in the Central Valley. They’ve been around for years. There might be others I’m not aware of (is there one in Bakersfield?).
Cranky: No apology needed. I think we’re on the same page re: the public/private differences and I understand the deal with elite Ivy League schools.
I believe there’s a Cal State in Sacramento. The school in Davis is a full University of California campus.
Dec: You are correct. UC Davis, Cal State Sac.
It could be that Sven is pointing out that even with all the CS schools out there, the CA population is still too big. We’ve got over 30M people here, and growing. I think there is a new one in Monterey (old Fort Ord Base). Not exactly Central Valley, but just a stone’s throw from Salinas.
Sorry, I might have been unclear. In CA, there are three tiers of public schools. There are community colleges, state universities (which the various Cal States belong to) and the University of California campuses (Berkeley, Santa Cruz, Irvine, San Diego, Los Angeles, Davis, Riverside, Santa Barbara). The University of California is the top tier of the system, with the most rigourous admissions standards, the most funding, and the most prestige. Currently there are no UC campuses that serve (as in, are less than a couple hours drive from) the huge region that stretches from Modesto to Bakersfield.
This area is not particularly depopulated- Fresno is a bigger city than Sacramento. It is an area with a high Latino population, some of which are migrant farm workers. And yet a lot of the bright Latino kids from this area who do rise to the top and get accepted into a top tier University of California school end up dropping out or transferring to a less prestigous and less selective California State University because of the reasons I mentioned.
That is why they are building UC Merced. It is a fairly direct response to a problem (smart Latino kids dropping out from University of California campuses) caused by a specific non-academic factor (a cultural understanding of familial obligations that requires physical closeness).