I think you're mischaracterizing Mark's point, but I'll leave it for him to clarify (if he chooses to do so).
Re: Justice O'Connor's opinion, where in her opinion does it say what you claim it says? SDG At 07:34 PM 9/15/03 +0000, you wrote: >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/ > >_________________________________________________________________ >Get a FREE computer virus scan online from McAfee. >http://clinic.mcafee.com/clinic/ibuy/campaign.asp?cid=3963 > ********** Scott Gerber Law College Ohio Northern University Ada, OH 45810 419-772-2219 http://www.law.onu.edu/faculty/gerber/
