Professor Tushnet is surely right that affirmative action advocates may be concerned about the risk of suit. After all, the University of Michigan Law School had to go to considerable lengths to establish the constitutionality of its admissions practices. So even if a university's practices are within constitutional bounds, lawsuits may be unavoidable.
I meant to ask about the substance of the Court's decision in Grutter, not about the risk of litigation (which may be meritless) after Grutter. I'll ask again: Where in Justice O'Connor's opinion does she say that a university may not calibrate its consideration of race in order to yield a critical mass of underrepresented minority students?
Trevor Morrison Assistant Professor of Law Cornell Law School
From: Scott Gerber <[EMAIL PROTECTED]> Reply-To: Discussion list for con law professors <[EMAIL PROTECTED]> To: [EMAIL PROTECTED] Subject: Re: AALS president's message on affirmative action Date: Mon, 15 Sep 2003 11:32:53 -0400
I don't agree. I also should note that the quote in question from President Tushnet's message is in a parenthical discussion in his personal capacity as a constitutional law scholar and he states at the end of that discussion that his "sense is that advocates of affirmative action may be unduly nervous about reading the Court's decisions as aggressively as the foregoing analysis suggests can be done, and the probably would be prudent." I applaud Mark for providing that caveat.
Scott
At 02:49 PM 9/15/03 +0000, you wrote: >Professor Gerber: > >The Court clearly held, did it not, that considering race is a permissible >means of producing a "critical mass" of underrepresented minority students >in the student body as a whole. Unless one is to argue that a university >may only achieve such critical mass unintentionally, by fluke or >coincidence, doesn't it naturally follow that a university may calibrate its >consideration of race to enhance the likelihood of producing the critical >mass it permissibly seeks? > >Trevor Morrison >Assistant Professor of Law >Cornell Law School > > > >>From: Scott Gerber <[EMAIL PROTECTED]> >>Reply-To: Discussion list for con law professors >><[EMAIL PROTECTED]> >>To: [EMAIL PROTECTED] >>Subject: AALS president's message on affirmative action >>Date: Sat, 13 Sep 2003 07:35:57 -0400 >> >>I read with interest Mark Tushnet's president's message in the most recent >>issue of the AALS Newsletter. I disagree with Mark's thesis that the only >>thing the Michigan decisions forbid is "mechanical" allocation of points >>(as was done in the undergrad process). I think the Court's decision was >>that academic institutions are allowed to consider race as a factor in the >>admissions process when making decisions about applicants who possess >>roughly similar tests scores and grades, etc. In short, I think the Court >>adopted Justice Powell's approach in Bakke, and I think Mark's analysis is >>much different than that of Justice Powell. For example, I disagree with >>Mark's statement that "if the number of offers extended suggested that the >>school might fall short of its goal, the weight given race in the 'whole >>file' review might increase to ensure that the target was met." I know >>Mark disagrees, but that sounds like a quota to me. >> >>Best wishes, >>Scott Gerber >>Law College >>Ohio Northern University >>********** >>Scott Gerber >>Law College >>Ohio Northern University >>Ada, OH 45810 >>419-772-2219 >>http://www.law.onu.edu/faculty/gerber/ > >_________________________________________________________________ >Send and receive larger attachments with Hotmail Extra Storage. >http://join.msn.com/?PAGE=features/es > ********** Scott Gerber Law College Ohio Northern University Ada, OH 45810 419-772-2219 http://www.law.onu.edu/faculty/gerber/
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