AMERICAN HERITAGE SCHOLARSHIP SERIES

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Topic: “Affirmative Action Admissions Programs in publicly funded institutions of higher education

(colleges/universities)”

Speaker: William Broderick-Villa Attorney with Curtis Legal Group

September 25, 2013

AMERICAN HERITAGE SCHOLARSHIP SERIES

William Broderick-VillaCurtis Legal Group209-521-18001300 K StreetModesto, CA [email protected]

Curtis Legal Group attorney William Broderick-Villa received his Juris Doctor from Georgetown University Law Center in Washington DC, where he served as the President of the Student Bar Association. During law school, Mr. Broderick-Villa interned for the Court of Appeals of Maryland (Maryland’s equivalent of California’s Supreme Court) for Judge Sally Adkins.

Mr. Broderick-Villa received his Bachelor’s degree from the University of Southern California (USC). Prior to law school Mr. Broderick-Villa was a high school teacher at Waterford High School where he taught primarily Math but also History and Academic Decathlon and served as the Academic Decathlon coach. Mr. Broderick-Villa is involved in education and serves or has served on several education boards including the Ag In Motion Board and the American Heritage Scholarship Committee. Prior to law school William was also involved in local politics. He served first on the Waterford City Council and then as the Mayor of Waterford.

mailto:[email protected]

Opening(Right Hand/Left Hand warm up)

• Plan to attend college?

• Any Giants baseball fans?

• Any A’s baseball fans?

• Any right handed people?

• Any Cricket fans?

• Opposed to discrimination?

Outline

I. The Fourteenth Amendment in 14 minutesII. Higher EducationIII. Diversity as a VirtueIV. Group IdentityV. Apples, Oranges, and Common MetricsVI. Affirmative Action Cases, Summary of

ArgumentsVII. Materials/Questions/Thanks

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Fourteenth Amendment to the Constitution, Section 1.

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal protection of the laws.“


Citizenship Clause

Privileges or Immunities Clause

Due Process Clause

Equal Protection Clause






Citizenship Clause


Due Process Clause


Tonight’s Topic

Sounds good. How equal is equal?

“There is no such thing as a law that treats everyone the same. Every law discriminates.”

--Viet DinhSpeeding laws…Attorney licensing act…Probate Code…Cigarette Tax…Minor laws (carding, voting, contracts, etc)…MICRA… Medical Injury Compensation Reform Act

(1975)


dis·crim·i·nate \dis-kri-mə-nāt\dis·crim·i·nat·ed dis·crim·i·nat·ing

"Discriminate." Merriam-Webster.com. Merriam-Webster, n.d. Web. 10 Sept. 2013. <http://www.merriam-webster.com/dictionary/discriminate>. Definition of

transitive verb

1 a: to mark or perceive the distinguishing or peculiar features of b: distinguish, differentiate <discriminate hundreds of colors>

2 a: to distinguish by discerning or exposing differences; especially : to distinguish from another like object

intransitive verb

1 a: to make a distinction <discriminate among historical sources> b: to use good judgment

2 a: to make a difference in treatment or favor on a basis other than individual merit <discriminate in favor of your friends> <discriminate against a certain nationality>

Sounds good. How equal is equal?

“All animals are equal, but some animals are more equal than others.”

--George Orwell, Animal Farm


Three (unequal) levels of “equal protection.”

• Strict Scrutiny

• Intermediate Scrutiny (“Heightened Scrutiny”)

• Rational Basis

Applies to Laws:

… affecting fundamental right (enumerated right);

… burdening discrete and insular minority; religious; national; racial; alienage. Often called “suspect classification”

Applies to Laws:

… relating to sex/gender; legitimacy

Default rule: Applies to all other groups.

Three (unequal) levels of “equal protection.”

• Strict Scrutiny

• Intermediate Scrutiny (“Heightened Scrutiny”)

• Rational Basis

Requires compelling governmental interest;

Law must be narrowly tailored (i.e. least restrictive means) to achieve that interest;

Law presumed invalid; burden on government

Requires important governmental interest;

Law must be substantially related to that interest;

Law presumed invalid; b.o.p. on government

Requires only legitimate governmental interest;

Law must be rationally related to that interest

Law presumed valid; b.o.p. on challenger

• How did this tripartite system of Equal Protection evolve?

?

1789 Constitution

1791 Bill of Rights

1833 Barron v. Baltimore, 32 U.S. 243 (1833)

1857 Dred Scott v. Sandford, 60 U.S. 393 (1857)

1861 Civil War Begins (ends in 1865)

1863 Emancipation Proclamation

1865 Lincoln Assassinated; 13th Amendment Ratified

1868 14th Amendment

1873 Slaughter-House Cases, 83 U.S. 36 (1873)

1896 Plessy v. Ferguson, 163 U.S. 537 (1896)

1905 Lochner v. New York, 198 U.S. 45

1938 US v. Carolene Products Co., 304 U.S. 144 (1938)

1954 Brown v. Board of Education, 347 U.S. 483 (1954)

1789 Constitution

1791 Bill of Rights






1868 14th Amendment






1789 Constitution

1791 Bill of Rights






1868 14th Amendment






Chief Justice John Marshall held that the first ten “amendments contain no

expression indicating an intention to apply them to the State governments. This court cannot so apply them.”

Barron v. Baltimore, 32 U.S. 243, 250.

1789 Constitution

1791 Bill of Rights






1868 14th Amendment






1789 Constitution

1791 Bill of Rights






1868 14th Amendment






1789 Constitution

1791 Bill of Rights






1868 14th Amendment






1789 Constitution

1791 Bill of Rights






1868 14th Amendment






1789 Constitution

1791 Bill of Rights






1868 14th Amendment






• Citizenship Clause• Privileges or Immunities Clause• Due Process Clause• Equal Protection Clause

1789 Constitution

1791 Bill of Rights






1868 14th Amendment






Justice Stephen FieldJustice Samuel Miller

Justice Stephen FieldFirst Californian on U.S.

Supreme CourtFormerly the 5th Chief Justice

of California Supreme Court

Appointed by LincolnHis body guard shot and killed

California’s 4th Chief Justice, David S. Terry, in Lathrop, in 1889

In re Neagle

California Trivia (not on test)

Chief Justice David S. TerryThe 4th Chief Justice of California

Supreme CourtBuried in StocktonPro-slavery DemocratShot and killed his former friend /

turned political rival, U.S. Senator David Broderick

David Broderick (no relation)U.S. Senator from CaliforniaFree Soil DemocratDeath in 1859 at the hands of

California Chief Justice tipped the state towards joining the Civil War on behalf of the Union

Died in San Francisco

1789 Constitution

1791 Bill of Rights






1868 14th Amendment











Citizenship Clause


Due Process Clause


Slaughtered by Slaughterhouse Five

Replaced by “Separate but Equal” farce in Plessy v. Ferguson

1789 Constitution

1791 Bill of Rights






1868 14th Amendment






1789 Constitution

1791 Bill of Rights






1868 14th Amendment







U.S. Supreme Court upholds the constitutionality of The Filled Milk Act, 42 Stat. 1486, which Congress passed in 1923 to regulate certain dairy products. Decision signals end of Lochner era scrutiny as applied to economic regulations.

FOOTNOTE 4: Carolene Products is most famous for FN 4, which sets forth a framework for varying levels of Equal Protection analysis and scrutiny (i.e. strict scutiny for laws affecting discrete and insular minorities, or infringing on fundamental rights) that has been adopted by the Court and is still used today.

The most famous footnote in Supreme Court history, FN 4 has been the subject of numerous scholarly journals and cited in many court decisions since 1938 (you can even Google “Footnote 4”).

1789 Constitution

1791 Bill of Rights






1868 14th Amendment






Chief Justice of the United States Earl WarrenFirst Californian to become Chief Justice of the

United States (14th U.S. Chief Justice)Formerly the 30th Governor of CaliforniaWrote Brown v. Board of Education, 9-0 opinion

California Trivia (not on test)

Succeeded as Chief Justice of the United States by Warren Earl Burger, 15th U.S. Chief Justice (no relation)

1789 Constitution

1791 Bill of Rights






1868 14th Amendment






1789 Constitution

1791 Bill of Rights






1868 14th Amendment






15th Amendment: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

19th Amendment: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex….

24th Amendment: The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

26th Amendment: The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Question: Why are the following framed in the negative?

14 minutes?

II. Higher Education• Education Important to founding of Nation, even prior to

Constitution (written 1787, ratified 1789)

• Continental Congress: Land Ordinance of 1785

• One square mile ofevery 36 set aside for education(Section 16)

• 2.78% education set-aside

Each section 640

acres, or 1 mile square

Alexis de Tocqueville

By 1830s, de Tocqueville wrote a friend in Paris that “[t]he effort made in this country to spread instruction is truly prodigious. The universal and sincere faith that they profess here in the efficaciousness of education seems to me one of the most remarkable features of America…”

Source: The College Payoff. Georgetown University Center on Education and the Workforce (CEW), Carnervale/Cheah/Rose, 2011http://cew.georgetown.edu/collegepayoff/

Beware!!!

• The “My uncle / my cousin” fallacy

Rich Uncle Dropout Poor Cousin Booksmarts

Ergo, statistics lie and college is a waste of time

Q.E.D.

$973,000$1,304,000

$1,547,000$1,727,000

$2,268,000

$2,671,000

$3,252,000

$3,648,000

Source: The College Payoff. Georgetown University Center on Education and the Workforce (CEW), Carnervale/Cheah/Rose, 2011http://cew.georgetown.edu/collegepayoff/

My uncle

My cousinSource: The College Payoff. Georgetown University Center on Education and the Workforce (CEW), Carnervale/Cheah/Rose, 2011

http://cew.georgetown.edu/collegepayoff/

Source: The College Payoff. Georgetown University Center on Education and the Workforce (CEW), Carnervale/Cheah/Rose, 2011

http://cew.georgetown.edu/collegepayoff/

Things to consider…• College spaces are limited• Those with college degrees on average earn

more than those without• Publicly funded institutions of higher education

are strapped for cash, and must decide whom to admit and whom to reject

• How should society allocate such a valuable resource?

• If certain groups are underrepresented, should society intervene?

Dr. Abbott Lawrence Lowell, President of Harvard 1909-1933

• History of explicit racism

• Dr. Lowell tried to limit Jewish enrollment • Tried to prohibit African American students from

living in Freshman dorms (otherwise mandatory at Harvard)

• Successfully implemented modern testing and applications system still in use today (See Justice Thomas’ critique in Supreme Court decisions and suggested documents on Curtis Legal Group website)

See article:

The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton. Article by Jerome Karabel. Excerpt from Higher Education and the Law, 588-91, Foundation Press, Areen, 2009

Curtis Legal Group website

Today colleges celebrate diversity…

…and being outdoors.

III. Diversity as a Virtue

Trustees have a fiduciary duty to diversify.

• California Probate Code § 16048. In making and implementing investment decisions, the trustee has a duty to diversify the investments of the trust unless, under the circumstances, it is prudent not to do so.

Crops lacking diversification are susceptible to disease.

Irish Potato Famine

1845-1852

exacerbated by overreliance on one variety of potato, the Irish Lumper varietal

Ancient Romans valued uniformity and pragmatism.

So why are brick arches embedded within flat walls?Value of diversity in Roman architecture?

Pantheon Backside

Inca wallsAnother example of strength through diversity

Lack of genetic diversityInbreeding within English Monarch/ among European royalty

Case Study: Queen Victoria and Hemophilia

Is diversity good in the realm of ideas as well?

Groupthink

“…The more amiability and esprit de corps there is among the members of a policy-making ingroup, the greater the danger that independent critical thinking will be replaced by groupthink, which is likely to result in irrational and dehumanizing actions directed against outgroups.”

--Irving Janis, Research Psychologist

Bay of Pigs FiascoCorporate boards

America’s Strength as diversity?

• E PLURIBUS UNUM

“From many, one”

• Melting pot metaphor

• Salad bowl metaphor

Dr. Clark KerrPresident of the University of California, 1958-1967

The Uses of the University,

Observation on Institutions over 500 years old

The Uses of the University, 95 (5th ed. 2001) quote from Alfred North Whitehead

IV. Group Identity

Gary Larson, The Far Side

Proxies

If diversity of opinions/ideas is a goal, does diversity of the following help colleges and universities achieve that goal?

• Ethnic minorities?• Religious minorities?• Economic minorities?• Gender minorities?• Geographic minorities?• Disability/Sexual Orientation/Age, other minorities?• Handedness? (dexterous/sinister and historical prejudice)?

Beware!!!

• The “My uncle / my cousin” fallacy

Uncle S.F. Giantslayer Cousin L.A. Giantfan

Ergo, group / geographic identity is wrong

Q.E.D.

V. Apples, Oranges, and Common Metrics

When discussing fruit, Ximena, Yesenia and Zelda ranked their favorites (as between Apples, Bananas, and Cherries) as follows:

X Y Z

1st a b c

2nd b c a

3rd c a b

A majority prefer Apples over Bananas (i.e. Ximena and Zelda, or 2/3 or 66.67%)

A majority prefer Bananas over Cherries(i.e. Ximena and Yesenia, or 2/3 or 66.67%)

A majority prefer Cherries over Apples (i.e. Yesenia and Zelda, or 2/3 or 66.67%)

U.C. Fairfield has room for two more students. Here’s how they rank:

Math English History1st Abe Bob Chris2nd Bob Chris Abe 3rd Chris Abe Bob

If you admit Abe and Bob, then Chris will complain:“No fair, I beat Abe in 2 out of 3 subjects.”

(i.e. English and History)

If you admit Bob and Chris, then Abe will complain:“No fair, I beat Bob in 2 out of 3 subjects.”

(i.e. Math and History)

If you admit Abe and Chris, then Bob will complain:“No fair, I beat Chris in 2 out of 3 subjects.”

(i.e. Math and English)

Abe

BobChris

**Highly recommended**For a more complete (and easily readable)

treatment of “Social Choice Theory,” See article:

The Paradoxes of Democracy

Excerpt from:

Excursions in Modern Mathematics, 2nd Edition, Prentice-Hall, Peter Tannenbaum, 1995.


Academic Decathlon

Two runners:Runner on right has excellent form and finishes just ahead of runner on left.Runner on left has poor form, and can’t quite seem to catch runner on right.

Q: You’re the coach, whom do you choose? (Show of hands)

A: You choose the runner with poor form, because his performance can be improved with technique and training. Faster runner has perfect form and is performing at potential. No room for improvement.

VI. Affirmative Action Cases, Summary of Arguments

Only four Supreme Court cases that deal with affirmative action programs in publicly funded institutions of higher education

• Bakke (1978)• Gratz (2003)• Grutter (2003)• Fisher (2013) so recent it doesn’t have a page number yet in

the United States Reports

This is manageable: Everyone can read these cases. Links to all are on the Curtis Legal Group website.

Note: American Heritage Scholarship Committee waited to release this year’s prompt until Fisher was decided

Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978)

Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978)

• UC Davis Medical School• Opened 1968• 50 students (94% white)

– 3 Asians– No African Americans– No Mexican Americans– No Native Americans

• Increased enrollment in 1971 to100 students– Of these, 16 seats were set aside for special admission– Remaining 84 seats were under general admission

• Six opinions; no single opinion carried majority of Court• Judgment: Bakke admitted• Harvard model, cited approvingly by Justice Powell, quickly becomes national model

Justice Powell

Justice BrennanWhiteMarshall Blackmun

StevensC.J. BurgerRehnquistStewart

UC Davis’ Racial set

aside or quota

violates Equal

Protection. Bakke

ordered admitted

Race can be taken

into account for rationale of “Diversity”

Pay particular attention to opinions of Justice Powell, Marshall, and Stevens


Gratz v. Bollinger, 539 U.S. 244 (2003)

Gratz v. Bollinger, 539 U.S. 244 (2003)

• University of Michigan, Undergrad• Tinkered with several admissions systems• Factors considered: grades; scores; school quality; curriculum strength; geography;

alumni relationships; leadership; race• 150 point system

– 100-150 (Admit)– 95-99 (Admit or Postpone)– 90-94 (Postpone or Admit)– 75-89 (Delay or Postpone)– 74 and below (delay or reject)

• 20 points automatically awarded for membership in an underrepresented racial or ethnic minority group

• A perfect SAT score was worth 12 points• Seven opinions; Majority opinion 5-4• Automatic Point System overturned 6-3 (Breyer concurring in judgment)

Opinion:C.J. RehnquistO’ConnorScaliaKennedyThomas

Pay particular attention to opinions of Chief Justice Rehnquist, Justice Thomas concurrence, Justice Ginsburg dissent


Grutter v. Bollinger, 539 U.S. 306 (2003)

Grutter v. Bollinger, 539 U.S. 306 (2003)

• University of Michigan, Law School• Admissions considered:

– Personal Statement; – Letters of Recommendation– Essay regarding contribution to Diversity– GPA– LSAT

• “Soft” factors considered as well• High Score no guarantee of admission; low score no guarantee of rejection• Barbara Grutter, 3.8 GPA and 161 LSATapplied in 1996 and was waitlisted• Court Upheld Michigan Law School Admission program

Opinion:Justice O’ConnorStevensSouterGinsburgBreyer

Pay particular attention to opinions of Justice O’Connor, concurrence by Ginsburg, Dissent by Scalia, Dissent by Justice Thomas (one of his most passionate and well argued), Dissent by C.J. Rehnquist, and Dissent by Kennedy.


• Fisher v. University of Texas, 570 U.S. ___ (2013)

Fisher v. University of Texas, 570 U.S. ___ (2013)

• University of Texas• 10% plan• Vacated and remanded the Fifth Circuit's ruling• Fifth Circuit failed to apply strict scrutiny• Remanded for further fact-finding• Much re-hashing of earlier arguments, punting on merits (See Scalia

concurrence).• Details left as exercise

Opinion 7-1 Decisions:Kennedy, C.J. Roberts, Scalia, Thomas, Breyer, Alito, Sotomayor

Pay particular attention to Dissent by Justice Thomas and Dissent by Justice Ginsburg.


VII. Materials / Questions / Thanks

www.CurtisLegalGroup.com

“Attorney Profiles”

“William Broderick-Villa”

“American Heritage Scholarship Series 2013 Supreme Court decisions and suggested documents”

American Heritage Scholarship Series 2013 Supreme Court decisions and suggested documents

Documents

AMERICAN HERITAGE SCHOLARSHIP SERIES