American Constitutionalism in Historical Perspective (packet)

Suspicious of “We/They” thinking: when legislation is enacted to invidiously discriminate. But affirmative action d/n do this because the “we” is hurting itself. (Ely)

Cases

1. 
   NO QUOTAS: Regents of Univ. of California v. Bakke, 1978: court strikes down the university’s “set aside” of 16 spots for minorities b/c no finding that it had engaged in express or implied segreg. Affirmative action is permitted but must be on the individualized Harvard College model which includes race w/ other factors applied to all candidates.
   
   1. 
      Majority (Powell, followed by Rehnquist) subjects the classification to strict scrutiny. Argues that the court s/n act as sociologist in det when a classification is or i/n hostile b/c leads to unprincipled adjudication. (Adarand). Classifications may do more harm then good by reinforcing stereotypes.
      
      1. 
         We are a nation of minorities, c/n pick and choose among minority groups p. 710
         
      2. 
         Principle should speak w/ moral force and s/n be contextualized to social science
         
      3. 
         Prohibition on certain forbidden classifications so d/n need to look at motives.
         
      4. 
         Rejects first 3 arguments of affirmative action
         
         1. 
            Proportional rep: # of each minority proportional to their % of pop
            
         2. 
            Social discrimination: worry about whether finding of history of de jure segregation is authoritative and can use classifications remedially. No such finding in this school.
            
         3. 
            Improve AA h/c delivery (more minority doctors): lack of evidence, s/n give minorities legal obligation to serve minority population
            
      5. 
         Accepts view of fostering diverse student body: but Bakke plan i/n narrowly tailored but mechanical and overbroad/underinclusive (some blacks have better upbringing as whites, while some whites come from more disadvantaged places). Can have other plans that achieve this goal—look at Harvard plan. Pp.712-14
         
   2.