Looking forward to the next millennium: Social previews to legal change

Temple Law Review

Volumn 70, Issue 4, 1997, Pages 1085-1122

  Wald, Patricia M ^a  

^a U States Ct Appeals Dist C ^*  (United States)

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EID: 0003450747     PISSN: 08998086     EISSN: None     Source Type: Journal    
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References (250)

1. Jack Rosenthal, The Age Boom: American Discovers A New Stage of Life as Many People Live Much Longer - and Better, N. Y. TIMES, Mar. 9, 1997, § 6 (Magazine), at 39 (discussing impact of aging on American society); see also Martin H. Malin, Unemployment Compensation in a Time of Increasing Work-Family Conflicts, 29 U. MICH. J.L. REFORM 131, 134 (1995-96) ("The fastest-growing segment of the United States population is the elderly, with individuals aged sixty-five and older comprising twelve percent of the population."); Jon Sawyer, Dismal Science: Economists Questioning Basic Assumptions, ST. Louis POST-DISPATCH, Feb. 9, 1997, at 5B (assuming "that an extreme scenario develops, with lifespans increasing and birth rates staying low.... [b]y 2030, the number of people aged 65 and over would double. But there would be no increase in the number of workers generating taxes to support these retirees."); Frank Swoboda, Study: Many in Graying Work Force May Not Have the Green to Retire, WASH. POST, Apr. 18, 1997, at G3 (examining projected changes in U.S. work force).
2. Jack Rosenthal, The Age Boom: American Discovers A New Stage of Life as Many People Live Much Longer - and Better, N. Y. TIMES, Mar. 9, 1997, § 6 (Magazine), at 39 (discussing impact of aging on American society); see also Martin H. Malin, Unemployment Compensation in a Time of Increasing Work-Family Conflicts, 29 U. MICH. J.L. REFORM 131, 134 (1995-96) ("The fastest-growing segment of the United States population is the elderly, with individuals aged sixty-five and older comprising twelve percent of the population."); Jon Sawyer, Dismal Science: Economists Questioning Basic Assumptions, ST. Louis POST-DISPATCH, Feb. 9, 1997, at 5B (assuming "that an extreme scenario develops, with lifespans increasing and birth rates staying low.... [b]y 2030, the number of people aged 65 and over would double. But there would be no increase in the number of workers generating taxes to support these retirees."); Frank Swoboda, Study: Many in Graying Work Force May Not Have the Green to Retire, WASH. POST, Apr. 18, 1997, at G3 (examining projected changes in U.S. work force).
3. Jack Rosenthal, The Age Boom: American Discovers A New Stage of Life as Many People Live Much Longer - and Better, N. Y. TIMES, Mar. 9, 1997, § 6 (Magazine), at 39 (discussing impact of aging on American society); see also Martin H. Malin, Unemployment Compensation in a Time of Increasing Work-Family Conflicts, 29 U. MICH. J.L. REFORM 131, 134 (1995-96) ("The fastest-growing segment of the United States population is the elderly, with individuals aged sixty-five and older comprising twelve percent of the population."); Jon Sawyer, Dismal Science: Economists Questioning Basic Assumptions, ST. Louis POST-DISPATCH, Feb. 9, 1997, at 5B (assuming "that an extreme scenario develops, with lifespans increasing and birth rates staying low.... [b]y 2030, the number of people aged 65 and over would double. But there would be no increase in the number of workers generating taxes to support these retirees."); Frank Swoboda, Study: Many in Graying Work Force May Not Have the Green to Retire, WASH. POST, Apr. 18, 1997, at G3 (examining projected changes in U.S. work force).
4. Jack Rosenthal, The Age Boom: American Discovers A New Stage of Life as Many People Live Much Longer - and Better, N. Y. TIMES, Mar. 9, 1997, § 6 (Magazine), at 39 (discussing impact of aging on American society); see also Martin H. Malin, Unemployment Compensation in a Time of Increasing Work-Family Conflicts, 29 U. MICH. J.L. REFORM 131, 134 (1995-96) ("The fastest-growing segment of the United States population is the elderly, with individuals aged sixty-five and older comprising twelve percent of the population."); Jon Sawyer, Dismal Science: Economists Questioning Basic Assumptions, ST. Louis POST-DISPATCH, Feb. 9, 1997, at 5B (assuming "that an extreme scenario develops, with lifespans increasing and birth rates staying low.... [b]y 2030, the number of people aged 65 and over would double. But there would be no increase in the number of workers generating taxes to support these retirees."); Frank Swoboda, Study: Many in Graying Work Force May Not Have the Green to Retire, WASH. POST, Apr. 18, 1997, at G3 (examining projected changes in U.S. work force).
5. See Editorial, Refusing to Act Their Age, LANCASTER NEW ERA, Mar. 31, 1997, at A6 ("In 1900, life expectancy at birth in America was 49. Now it is 76. Most people who reach 55 can expect to live into their 80s, thanks to improved nutrition, medical care and, above all, better hygiene that kills germs."); Rosenthal, supra note 1, at 40 (stating that longevity "has grown more in the last 100 years than in the prior 5,000"); see also Katharine Q. Seelye, The U.S. of the Future: Grayer and More Hispanic, N.Y. TIMES, Mar. 27, 1997, at B16 (projecting that people over 85 will be the fastest growing segment of our population by 2050, numbering 18 million, and that twenty percent of our country will be over 65).
6. See Editorial, Refusing to Act Their Age, LANCASTER NEW ERA, Mar. 31, 1997, at A6 ("In 1900, life expectancy at birth in America was 49. Now it is 76. Most people who reach 55 can expect to live into their 80s, thanks to improved nutrition, medical care and, above all, better hygiene that kills germs."); Rosenthal, supra note 1, at 40 (stating that longevity "has grown more in the last 100 years than in the prior 5,000"); see also Katharine Q. Seelye, The U.S. of the Future: Grayer and More Hispanic, N.Y. TIMES, Mar. 27, 1997, at B16 (projecting that people over 85 will be the fastest growing segment of our population by 2050, numbering 18 million, and that twenty percent of our country will be over 65).
7. See Rosenthal, supra note 1, at 40 ("To maintain a stable population size, the necessary replacement rate is 2.1 children per couple. The United States figure is barely 2.0, and it has been below the replacement rate for 30 years.").
8. In the New York City area, serious crime already has fallen to its lowest level since 1980. In the nation as a whole violent crime fell 6.5% between 1990 and 1995.
9. Max Frankel, Less Medicare, More Magic, N.Y. TIMES, Mar. 9, 1997, § 6 (Magazine), at 30-31 (arguing to preserve universal coverage of Social Security); cf. Editorial, Promises to Keep, TAMPA TRIB., Dec. 15, 1996, at 2 ("In 1945 there were 20 workers paying benefits to support each retiree. By 1950 the ratio had dropped to 16-to-1. Because people are living longer, the ratio is now down to 3.1-to-1. By 2030, when the whole post-World War II baby boom generation is 65-plus and being supported by the smaller generation behind it, the ratio will be down to 2-to-1. Two workers may be officially expected to support one retiree, but that doesn't mean they will be financially able to do so.").
10. Max Frankel, Less Medicare, More Magic, N.Y. TIMES, Mar. 9, 1997, § 6 (Magazine), at 30-31 (arguing to preserve universal coverage of Social Security); cf. Editorial, Promises to Keep, TAMPA TRIB., Dec. 15, 1996, at 2 ("In 1945 there were 20 workers paying benefits to support each retiree. By 1950 the ratio had dropped to 16-to-1. Because people are living longer, the ratio is now down to 3.1-to-1. By 2030, when the whole post-World War II baby boom generation is 65-plus and being supported by the smaller generation behind it, the ratio will be down to 2-to-1. Two workers may be officially expected to support one retiree, but that doesn't mean they will be financially able to do so.").
11. Id.
12. Id.
13. See, e.g., Robert A. Rosenblatt, Social Security Panel Offers 3 Reform Plans, L.A. TIMES, Jan. 7, 1997, at Al ("Social Security enjoys a surplus now but is projected to face demographic strains when baby boomers - the biggest generation in American history, those born between 1946 and 1964 - begin drawing retirement checks. Based on projections, the retirement fund would confront a fiscal crisis in 2029, when revenues are expected to be sufficient to pay only about 75% of promised benefits.").
14. See COMMITTEE ON LONG RANGE PLANNING, JUDICIAL CONFERENCE OF THE UNITED STATES, PROPOSED LONG RANGE PLAN FOR THE FEDERAL COURTS 32-33 (2d prtg. 1995) [here-inafter PROPOSED LONG RANGE PLAN] (recommending measures to expand and strengthen administrative hearing and review process for disputes under jurisdiction of federal agency).
15. See Rosenthal, supra note 1, at 42.
16. See id.
17. See Michael Moss, Golden Years? For One 73 Year-Old, Punching Time Clock Isn't a Labor of Love, WALL ST. J., Mar. 31, 1997, at Al ("On average, Social Security covers just two-thirds of an older middle-class person's needs. Current proposals to bolster the program's finances by reducing cost-of-living increases, expanding the number of work years used to com-pute benefits, and postponing retirement age to 67 could make things even tighter.").
18. See id. ("One in six elderly fall near or below the poverty line of $7,300 in annual income.").
19. See id. at A8 (reporting that "2.9% of the work force is 65 years and older now, up from 2.5% in 1985").
20. See id. at Al ("During the past five years, the number of elderly day laborers has doubled to as many as 160,000 nationwide as the entire temporary-labor market has also doubled.").
21. See id. at A8 ("Only 43% of private-sector workers have pensions, a number that drops to 25% in companies with two dozen or fewer employees, according to the Pension and Welfare Benefits Administration."). Moreover, "[t]he Social Security Administration estimates that one in three people age 65 and older have no unearned income whatsoever from savings or investments. Those who do receive a median income from savings of $1,306 a year. " Id.; see also Frank Swoboda, Study: Many in Graying Workforce May Not Have the Green to Retire, WASH. POST, Apr. 18, 1997, at G3 (stating many American workers cannot afford to retire).
22. See Longer, Healthier, Better, N.Y. TIMES, Mar. 9, 1997, § 6 (Magazine), at 45.
23. See Paul Krugman, Does Getting Old Cost Society Too Much?, N. Y. TIMES MAG., Mar. 7, 1997, at 59 (discussing financial pressure growing elderly population places on society).
24. See Rosenthal, supra note 1, at 41, 42 (noting that despite decline in number of disabled individuals, "one of every three people over 65 needs some kind of hospital care in any given year" and "one in 20 needs nursing-home care at any given time").
25. Id. at 58. President Clinton recently proposed extending Medicare coverage to three million "near elderly" between the ages of 55 and 64. See Peter T. Kilborn, 55-to-64 Bracket Seems Next in Line for Insurance Aid, N.Y. TIMES, Nov. 24, 1997, at A1.
26. Id.
27. See, e.g., Frankel, supra note 5, at 30 ("By covering almost all the elderly, irrespective of need, [Social Security and Medicare] have avoided the stigma that attaches to other redistributions, like welfare and Medicaid. The young have borne a growing burden because they were assured their turn to benefit would come. The old have cashed their checks with no trace of guilt because they've been led to believe they are only drawing down their own investments.").
28. Id. (noting that creating need-based programs "will tempt the nonneedy to shed their assets to qualify for benefits" and "will stigmatize all aid to the elderly poor as 'welfare,' depriving them of significant political support").
29. Krugman, supra note 18, at 60.
30. See Laurie McGinley, Lawmakers Wrestle Over Cost of Alzheimer's Proposal, WALL ST. J., Mar. 25, 1997, at A20 (quoting one commentator as inquiring, "[w]hat makes a family member who cares for an elderly Alzheimer's victim more deserving of governmental assistance than a family member who cares for a terminally ill cancer victim?") (internal quotations omitted).
31. Id.
32. Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 (1996).
33. BRUCE STERLING, HOLY FIRE (1996).
34. Indeed, a national survey indicated that already one in four households is "involved in the often stressful, time-consuming task of caring for an aging relative." Susan Levine, One in Four U.S. Families Cares for Aging Relatives, WASH. POST, Mar. 24, 1997, at A13; see also Marshall B. Kapp, Family Caregiving for Older Persons in the Home, 16 J. LEGAL MED. 1, 5 (1995) ("National estimates are that 85% of the patients who need long-term supportive care receive it from family and friends."); Malin, supra note 1, at 134 ("An estimated twenty to twenty-five percent of all workers have some care-giving responsibilities for an older relative.").
35. Indeed, a national survey indicated that already one in four households is "involved in the often stressful, time-consuming task of caring for an aging relative." Susan Levine, One in Four U.S. Families Cares for Aging Relatives, WASH. POST, Mar. 24, 1997, at A13; see also Marshall B. Kapp, Family Caregiving for Older Persons in the Home, 16 J. LEGAL MED. 1, 5 (1995) ("National estimates are that 85% of the patients who need long-term supportive care receive it from family and friends."); Malin, supra note 1, at 134 ("An estimated twenty to twenty-five percent of all workers have some care-giving responsibilities for an older relative.").
36. Levine, supra note 29, at A13.
37. See, e.g., Thomas J. DiLorenzo, Who Really Speaks for the Elderly?, CONSUMERS' RES. MAG., Sept. 1, 1996, at 15 ("With 33 million members and an annual budget of $350 million, the AARP is the nation's second largest nonprofit organization after the Catholic Church. It is perhaps the most influential political organization in America.").
38. Id. ("The AARP ... continues to reassure its members that the Social Security system is sound.... [D]espite privatization's proven track record in several countries, AARP's opposition is a major stumbling block to privatizing Social Security in the United States.").
39. Frankel, supra note 5, at 40.
40. See generally Peter Passell, How Chile Farms Out Nest Eggs: Can Its Private Pension Plan Offer Lessons to the U.S.?, N.Y. TIMES, Mar. 21, 1997, at D1. We can, for example, expect to hear proposals for totally private pension schemes such as Chile's, where wage deductions of 13% are invested mandatorily in a private pension plan, along with 3% in disability insurance, and workers can switch among twenty officially approved private mutual fund groups (Administradora de Fondos Pensiones or AFPs) whenever they choose, which in turn invest in bonds and stocks under certain restrictions. The government guarantees a minimum pension to those whose accounts do not produce up to subsistence levels. Argentina, Mexico, and Peru have similar schemes; Britain is following suit. The Chilean AFPs delivered a 13% average annual return after inflation over the last fifteen years, but theirs, as the economists point out, is a rapidly growing economy.
41. See PROPOSED LONG RANGE PLAN, supra note 9, at 35 (advocating that Congress abolish federal court jurisdiction to adjudicate routine claims for ERISA benefits in cases where application or interpretation of federal statutory or regulatory requirements are not at issue).
42. Wayne Morse, ABC's of ERISA: An Alabama Perspective, 57 ALA. LAW. 356, 357 (1996) (internal quotations omitted).
43. Other commentators, in contrast, suggest that federal courts have adopted common law rules under ERISA, but that these adopted rules are systematically pro-employer and anti-employee. See George L. Flint, Jr., ERISA: Reformulating the Federal Common Law for Plan Interpretation, 32 SAN DIEGO L. REV. 955, 960-61 (1995) (listing court-adopted ERISA rules "that are extremely detrimental to litigating participants denied benefits"). Among the anti-employee rules noted by Flint are the following: (1) courts review the plan administrator's benefit-denial decision with the arbitrary and capricious standard - a standard which only requires the use of one of many logical reasons and some minimal documentation to confirm the administrator's decision; (2) courts accept the plan administrator's interpretation of ambiguous ERISA plan terms; (3) participants may not have a jury trial under ERISA; (4) only the written terms of the plan, and not estoppel doctrines, define the employee's reasonable expectations; (5) participants may not recover extracontractual damages under ERISA; (6) successful participants may not recover legal fees except in rare instances. Id. (footnotes omitted). However, recent Supreme Court decisions questioned a number of these "rules." See Morse, supra note 36, at 358. For example, some courts interpreted the Court's decision in Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990), to permit extracontractual and even punitive damages in some cases, even though not specifically provided for in ERISA. See Morse, supra note 36, at 358 (citing East v. Long, 785 F. Supp. 941, 943-44 (N.D. Ala. 1992); Haywood v. Russell Corp., 584 So. 2d 1291 (Ala. 1991)). Similarly, the Court's decision in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), held that courts reviewing the acts or omissions of ERISA fiduciaries do so de novo, rather than under the arbitrary and capricious standard. Id. at 115. Some courts suggested that a jury trial may sometimes be appropriate. Sullivan v. LTV Aerospace & Defense Co., 850 F. Supp. 202, 216 (W.D.N.Y. 1994).
44. Under existing law, ERISA preempts almost all state remedies. For example, state law bad faith breach of contract remedies are unavailable. Whereas, in a state court, this doctrine could be invoked "to prevent insurance companies from unreasonably refusing to pay when required by contract to do so." See Flint, supra note 37, at 963. In a federal court, application of this doctrine would be preempted and would have to be adopted specifically under federal common law. Id. at 962-63.
45. Adoption of either of these approaches would be somewhat ironic given the fact that Congress originally enacted ERISA in response to state contract law's failure to protect pension benefits. Id. at 955-57.
46. See Id. at 981-82 (explaining that trust law's focus on determining beneficiary's intent, rather than contractors' agreement, may cut against beneficiary of trust). "Trust law takes a different approach from contract law because it does not deal with a negotiated transaction. Instead, it deals with a donation by one party. The basic interpretative principle under trust law is to determine the intent of the settlor in making the donation." Id. at 1004.
47. Roger C. Siske et al., What's New in Employee Benefits - A Summary of Current Case and Other Developments, SB66 ALI-ABA 1, 141 (Mar. 19, 1995) (explaining developments in each of these areas and citing numerous examples of cases).
48. In addition to the issues discussed in the text herein, federal courts individually will hear diversity cases pertaining to the elderly including: challenges to zoning laws (some of which may raise federal constitutional issues as, for example, whether extended family members can live in the same household, or whether group homes for the elderly can locate in certain neighborhoods); tort law (for example, what duty of care is ascribed to an elderly person and what value is placed on an elderly person's life); and criminal law (treatment of the elderly in prison as increasing numbers of inmates serve life sentences without parole).
49. See, e.g., Marianne Lavelle, On the Edge of Age Discrimination, N.Y. TIMES, Mar. 9, 1997, § 6 (Magazine), at 66 ("[F]or [one ADEA plaintiff] and all [other baby boomers] who came of age at the birth of the civil rights movement, no course of action could be more proper than to imbue one's personal struggle with universal significance by taking it to court.").
50. Vacco v. Quill, 117 S. Ct. 2293 (1997) (holding state prohibition on physician assisted suicide not violation of Equal Protection Clause); Washington v. Glucksberg, 117 S. Ct. 2258 (1997) (holding asserted right to physician assisted suicide not fundamental liberty interest pro-tected by Due Process Clause).
51. Ronald Dworkin et al., Assisted Suicide: The Philosophers' Brief, N.Y. REV. BOOKS, Mar. 27, 1997, at 41-42 ("If the justices believe that they cannot now accept the lower court decisions . . . then they should consider a third strategy - postponement. They might declare that both precedent and principle offer strong grounds for a constitutional right to manage one's own death, but that there is as yet too little experience with legally permitted assisted suicide for the Court to rule that states lack the constitutional power to follow their traditional practice of outlawing it.").
52. One proposed amendment would allow an additional 24 hours a year for dental appointments and parent conferences or other family-related needs. Here employers say that parsing time off in 15 minute segments or less is an administrative nightmare and simply can not be done in some jobs. With our luck, these kinds of disputes may also reach the courts.
53. See Steven Ginsberg, To Some Employers, an Expanded Family Leave Act Won't Fly, WASH. POST, Mar. 23, 1997, at H6 (stating that Act requires employers to give employees up to 12 weeks of unpaid leave for births, adoption, or serious illness of a loved one or oneself).
54. Id.
55. Id.
56. Id.
57. Id.; see also Phyllis T. Bookspan, A Delicate Imbalance - Family and Work, 5 TEX. J. WOMEN & L. 37, 46-47 (1995) ("Two years after passage of the [FMLA], resistance to family leaves remains strong. Employers and supervisors resent the disruption to their workforce and the culture of the workplace, and fear of reprisal precludes many workers - especially men - from asking for leaves.").
58. Id.; see also Phyllis T. Bookspan, A Delicate Imbalance - Family and Work, 5 TEX. J. WOMEN & L. 37, 46-47 (1995) ("Two years after passage of the [FMLA], resistance to family leaves remains strong. Employers and supervisors resent the disruption to their workforce and the culture of the workplace, and fear of reprisal precludes many workers - especially men - from asking for leaves.").
59. Lavelle, supra note 43, at 66.
60. Id.
61. Id.
62. Id.
63. Id.; cf. Christine Jolls, Hands-Tying and the Age Discrimination in Employment Act, 74 TEX. L. REV. 1813, 1815 (1996) (noting "a striking empirical regularity in the ADEA cases: older workers are often terminated or otherwise disfavored because they command higher wages than younger workers capable of performing the same job"); see also Michael Higgins, Success Has Its Price, Courts OK Firing Older, Higher-Paid Workers to Save Money, A.B.A. J., Feb. 1998, at 34 ("In recent years, courts increasingly have been asked to choose between protecting older and preserving employers' ability to cut costs.").
64. Id.; cf. Christine Jolls, Hands-Tying and the Age Discrimination in Employment Act, 74 TEX. L. REV. 1813, 1815 (1996) (noting "a striking empirical regularity in the ADEA cases: older workers are often terminated or otherwise disfavored because they command higher wages than younger workers capable of performing the same job"); see also Michael Higgins, Success Has Its Price, Courts OK Firing Older, Higher-Paid Workers to Save Money, A.B.A. J., Feb. 1998, at 34 ("In recent years, courts increasingly have been asked to choose between protecting older and preserving employers' ability to cut costs.").
65. See Lavelle, supra note 43, at 66.
66. Id.
67. Id. ("[One $3.7 million ADEA jury verdict] was a signal that baby boomers will not permit organizations . . . to hire and fire as they have in the past. [Gilbert] Casellas, the E.E.O.C. chairman, says: 'While those in or just past the baby-boom years may be the targets of age discrimination, they may also be its final arbiters. Would a trial with a jury most likely made up of the middle-aged peers of those let go from [one company] have proved too risky for the company?'").
68. See Longer, Healthier, Better, supra note 17, at 44 ("In the 1994 Congressional elections, 45 percent of those over 60 voted, while 36 percent of those under 60 voted. . . . [W]hen asked which major political party they identified with, people over 65 were more Democratic (39 percent vs. 31 percent) and less independent (26 percent vs. 34 percent) than those younger.").
69. Cheryl W. Thompson, D.C. Corrections Plans to Send 1,500 Lorton Prisoners to Ohio, WASH. POST, Jan. 30, 1997, at C5; Editorial, Escaping a Bad Prison Contract, WASH. POST, Mar. 23, 1997, at C8.
70. Cheryl W. Thompson, D.C. Corrections Plans to Send 1,500 Lorton Prisoners to Ohio, WASH. POST, Jan. 30, 1997, at C5; Editorial, Escaping a Bad Prison Contract, WASH. POST, Mar. 23, 1997, at C8.
71. Editorial, Shaping Up the D.C. Police . . . Shipping Out D.C. Prisoners, WASH. TIMES, Mar. 3, 1997, at A14.
72. Rudolph A. Pyatt, Jr., Once Again, One Bid Almost Stole the Trick, WASH. POST, Mar. 24, 1997, at F3.
73. Philip P. Pan, The Limits of Home Detention, WASH. POST, Feb. 2, 1997, at A1.
74. Id.
75. Id.
76. Id.
77. Id.
78. Id.
79. Id. U.S. Administrative Office data shows only 9% of home confinement detainees violate their confinement and only 2% commit new crimes during their average 120 day stay in the program. Pretrial incarceration costs more than $60 a day; halfway houses, $40; home confinement, about $14-$19. In the federal program, probation officers who handle an average of 10 calls a day from the monitoring devices schedule frequent home and community visits. Home Confinement Proves Effective in Dollars and Sense, THIRD BRANCH (Admin. Office of the U.S. Cts./Office of Public Affairs, Washington, D.C.), Mar. 1997, at 9.
80. For Small Town, Plan for Private Prison Brings Hope and Fears, N.Y. TIMES, Feb. 16, 1997, at A31.
81. Id.
82. Id.; see also Nzong Xiong, Private Prisons: A Question of Savings, N.Y. TIMES, July 13, 1997, at F5 (reporting 85,000 or 3% of inmates are in privately owned prisons).
83. Id.; see also Nzong Xiong, Private Prisons: A Question of Savings, N.Y. TIMES, July 13, 1997, at F5 (reporting 85,000 or 3% of inmates are in privately owned prisons).
84. For Small Town, supra note 71, at A31.
85. Anita Sharpe, Psyched Up: More States Turn Over Mental-Health Care to the Private Sector, WALL ST. J., Jan. 24, 1997, at A1.
86. Id.
87. See Rick Henderson, Schools of Thought, REASON, Jan. 1, 1997, at 30 (discussing voucher debates and other recent school reforms); Jonathan Kozol et al., Saving Public Education: Progressive Educators Explain What it Will Take to get Beyond the Gimmicks, THE NATION, Feb. 17, 1997, at 18 (discussing role of charter schools in reform of public education); see also Nina Bernstein, Deletion of Word in Welfare Bill Opens Foster Care to Big Business, N.Y. TIMES, May 4, 1997, at Al (describing private foster care facilities as profit-making feeding frenzy).
88. See Rick Henderson, Schools of Thought, REASON, Jan. 1, 1997, at 30 (discussing voucher debates and other recent school reforms); Jonathan Kozol et al., Saving Public Education: Progressive Educators Explain What it Will Take to get Beyond the Gimmicks, THE NATION, Feb. 17, 1997, at 18 (discussing role of charter schools in reform of public education); see also Nina Bernstein, Deletion of Word in Welfare Bill Opens Foster Care to Big Business, N.Y. TIMES, May 4, 1997, at Al (describing private foster care facilities as profit-making feeding frenzy).
89. See Rick Henderson, Schools of Thought, REASON, Jan. 1, 1997, at 30 (discussing voucher debates and other recent school reforms); Jonathan Kozol et al., Saving Public Education: Progressive Educators Explain What it Will Take to get Beyond the Gimmicks, THE NATION, Feb. 17, 1997, at 18 (discussing role of charter schools in reform of public education); see also Nina Bernstein, Deletion of Word in Welfare Bill Opens Foster Care to Big Business, N.Y. TIMES, May 4, 1997, at Al (describing private foster care facilities as profit-making feeding frenzy).
90. Warren Cohen et al., Fiscal State of the States: Local Officials Across the Nation Have Bolstered Their Budgets, U.S. NEWS & WORLD REP., Feb. 6, 1995, at 38-39.
91. Id.
92. Id. at 40-41.
93. Sharpe, supra note 75, at A1.
94. Id. Fifteen states already operate under waivers permitting them to enroll all or some of their Medicaid population into privately managed care programs. Id.
95. Id.
96. Id.
97. Id.
98. Id.
99. Id.
100. Id.
101. Id.
102. Id.
103. Editorial, Where Did Your Money Go?, WASH. POST, Jan. 31, 1997, at A20 (tracing allegations that president of mental health firm spent more than $659,000 on non-mental health expenses); Amy Goldstein, FBI Removes Records From Care Provider, WASH. POST, June 19, 1996, at B1 (reporting FBI probe of mental health contractors who possibly misused $4 million a year in Washington, D.C. city funds).
104. Editorial, Where Did Your Money Go?, WASH. POST, Jan. 31, 1997, at A20 (tracing allegations that president of mental health firm spent more than $659,000 on non-mental health expenses); Amy Goldstein, FBI Removes Records From Care Provider, WASH. POST, June 19, 1996, at B1 (reporting FBI probe of mental health contractors who possibly misused $4 million a year in Washington, D.C. city funds).
105. Judith Havemann, Welfare Reform Incorporated: Social Policy Going Private, WASH. POST, Mar. 7, 1997, at A1.
106. New York City's senior advisor and the architect of the city's workfare program is leaving the public sector to run a private welfare privatization consulting firm. His new company, Opportunity America, Inc., urges companies to "capitalize on the massive growth potential of the new world of welfare reform" and to "gain a leading edge in the market while it is in its early stage." David Firestone, Workfare Expert to Enter Private Sector, N.Y. TIMES, Feb. 12, 1997, at B3. The company will be available as a contractor to run workfare programs around the country based on the New York City model. That program reduced New York City's welfare rolls 20% in less than two years, but city records show that less than one-tenth of the 125,000 people in the program found permanent jobs; two-thirds left the program with no indication of employment and no city follow-up.
107. Sharon Dietrich et al., Welfare Reforming the Workplace: Protecting the Employment Rights of Welfare Recipients, Immigrants, and Displaced Workers, 30 CLEARINGHOUSE REV. 903, 904 (1997) (citing Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, § 104(a)(1)(A)-(B), 110 Stat. 2105 (1996)).
108. Id. (citing H.R. REP. No. 104-725, at 274 (1996)).
109. In some observed cases, workers have not even received occupational safety and health training for handling infectious blood-borne materials or been given gloves and boots for shoveling snow. Dietrich, supra note 94, at 905.
110. Id. at 923-24.
111. Havemann, supra note 92, at A14. The Clinton Administration responded negatively to a proposed Texas plan to contract out 13,000 welfare-eligibility determining jobs to a private company. See Jason DeParle, White House Calls for Minimum Wage in Workfare Plan, N.Y. TIMES, May 16, 1997, at Al (stating most recipients in work programs should be covered by minimum wage laws); Sam Howe Verhovek, Clinton Reining in Role for Business in Welfare Effort, N.Y. TIMES, May 11, 1997, at Al (reporting Clinton blocked Texas plan to give private businesses role in administration of social service program); Barbara Vobejda, Privatization of Social Programs Curbed; Texas is Told Firms Can't Determine Medicaid, Food Stamp Eligibility, WASH. POST, May 10, 1997, at A9 (noting only state employers can be charged with determining who is eligible for the Medicaid and food stamps).
112. Havemann, supra note 92, at A14. The Clinton Administration responded negatively to a proposed Texas plan to contract out 13,000 welfare-eligibility determining jobs to a private company. See Jason DeParle, White House Calls for Minimum Wage in Workfare Plan, N.Y. TIMES, May 16, 1997, at Al (stating most recipients in work programs should be covered by minimum wage laws); Sam Howe Verhovek, Clinton Reining in Role for Business in Welfare Effort, N.Y. TIMES, May 11, 1997, at Al (reporting Clinton blocked Texas plan to give private businesses role in administration of social service program); Barbara Vobejda, Privatization of Social Programs Curbed; Texas is Told Firms Can't Determine Medicaid, Food Stamp Eligibility, WASH. POST, May 10, 1997, at A9 (noting only state employers can be charged with determining who is eligible for the Medicaid and food stamps).
113. Havemann, supra note 92, at A14. The Clinton Administration responded negatively to a proposed Texas plan to contract out 13,000 welfare-eligibility determining jobs to a private company. See Jason DeParle, White House Calls for Minimum Wage in Workfare Plan, N.Y. TIMES, May 16, 1997, at Al (stating most recipients in work programs should be covered by minimum wage laws); Sam Howe Verhovek, Clinton Reining in Role for Business in Welfare Effort, N.Y. TIMES, May 11, 1997, at Al (reporting Clinton blocked Texas plan to give private businesses role in administration of social service program); Barbara Vobejda, Privatization of Social Programs Curbed; Texas is Told Firms Can't Determine Medicaid, Food Stamp Eligibility, WASH. POST, May 10, 1997, at A9 (noting only state employers can be charged with determining who is eligible for the Medicaid and food stamps).
114. Havemann, supra note 92, at Al.
115. Dietrich, supra note 94, at 926.
116. Id. at 914.
117. See generally id. (discussing strategies for maximizing training and protecting workers' rights).
118. Johns v. Stewart, 57 F.3d 1544, 1558 (10th Cir. 1995) (arguing workfare participants differ from state employees by virtue of application process and tax consequences).
119. LAWRENCE M. FRIEDMAN, TOTAL JUSTICE 40-41 (1985) (contending state must intervene to protect people from harm of modern society's tools on which they depend).
120. Richardson v. McKnight, 117 S. Ct. 2100, 2102-03 (1997) (affirming Sixth Circuit in 5-4 decision, holding employee of private contractor for state correctional facilities not entitled to qualified immunity).
121. Id. at 2102.
122. See id.
123. McKnight v. Rees, 88 F.3d 417, 418 (6th Cir. 1996).
124. See id.
125. Id. (affirming refusal to extend guard's qualified immunity).
126. In the prison context, the Supreme Court found state action where the conduct at issue relates to the state's affirmative duty to provide medical care to prisoners. See, e.g., West v. Atkins, 487 U.S. 42, 55-56 (1988) (holding that medical physician contractually engaged by state to provide medical care and treatment to prison inmates is state actor engaged in state action because he is performing functions that historically are governmental in nature).
127. McKnight, 88 F.3d at 423.
128. See Arguments Before the Court, 65 U.S.L.W. 3657-59 (April 1, 1997) (arguing that risk of constitutional violation increases when government power is placed in private hands).
129. Id. at 3658.
130. See Michael Martinez, No Immunity for Government-Contract Employees, TEX. LAW., July 21, 1997, at 30 (stating Supreme Court decision focused on lack of historic source for immunity and marketplace differences between public and private actors).
131. The state action doctrine has a broader reach than the historical government function context primarily relied on in prison cases. State action may be found where a deprivation is "caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible" and "the party charged with the deprivation [is] a person who may fairly be said to be a state actor. This may be because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). This ultimately is a factual inquiry that must be conducted on a case-by-case basis, as is reflected by the number of different tests articulated by the Supreme Court in different contexts to address the second prong of the test. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164 (1978) (state action test); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974) (nexus test or symbiotic relationship test); Adickes v. S. H. Kress & Co., 398 U.S. 144, 170 (1970) (state compulsion test); Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961) (symbiotic relationship test); Terry v. Adams, 345 U.S. 461, 469 (1953) (public function test); Marsh v. Alabama, 326 U.S. 501, 509 (1946) (public function test).
132. See 42 U.S.C. §§ 405, 1395mm (1994); Robert Pear, H.M.O.'s Limiting Medicare Appeals, U.S. Inquiry Finds, N. Y. TIMES, Mar. 18, 1997, at Al (discussing Medicare HMO's lack of respect for appeal right).
133. See Pear, supra note 117, at Al.
134. Grijalva v. Shalala, 946 F. Supp. 747, 757, 760-61 (D. Ariz. 1996) (holding Secretary of Department of Health and Human Services violated 42 U.S.C. § 1395mm when she entered into contract with HMOs that did not provide procedural due process in their claim denials); see Robert Pear, Home-Care Denial in Medicare Cases is Ruled Improper, N.Y. TIMES, Feb. 15, 1998, at Al (stating federal judges in "thousands of recent cases" ruled that elderly Medicare beneficiaries are improperly being denied home health service, 81% of appeals from denials prevailed).
135. Shea v. Esensten, 107 F.3d 625, 629 (8th Cir. 1997) (holding that HMO has fiduciary duty to disclose financial incentives provided to plan doctors which discourage specialized referrals to its members).
136. Freedom of Information Act, 5 U.S.C. § 552 (1994); Privacy Act of 1974, 5 U.S.C. § 552a (1994).
137. 947 F.2d 787 (6th Cir. 1991).
138. Id. at 811.
139. 116 S. Ct. 2432 (1996) (plurality opinion).
140. Id. at 2447 (interpreting "FIRREA," 12 U.S.C. § 1464(t)).
141. Id. at 2459.
142. See Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 88 (1980) (recognizing student's freedom of expression in collecting petitions at privately owned shopping center); Hudgens v. NLRB, 424 U.S. 507, 521 (1976) (finding no federal constitutional right to free speech in private shopping malls); see also Marsh v. Alabama, 326 U.S. 501, 509-10 (1946) (upholding right of Jehovah's Witness to distribute religious leaflets in company town).
143. To date, most of the successful litigation by individuals against private communities has occurred under state law. In some instances, individuals who would be deprived of access to historic property successfully challenged the privatization of formerly public property. E.g., Citizens Against Gated Enclaves v. Whitley Heights Civic Ass'n, 28 Cal. Rptr. 2d 451, 457 (Cal. Ct. App. 1994) (upholding injunction against gating of historic neighborhood). Moreover, in one case, nonmembers of a private community prevailed against the community's restrictions on freedom of speech by obtaining a court order permitting the promotional distribution of newspapers to members of the community. Laguna Publ'g Co. v. Golden Rain Found., 182 Cal. Rptr. 813, 837 (Cal. Ct. App.), appeal dismissed, 459 U.S. 1192 (1982).
144. See Jonathan Drimmer, A Year of Bounty Hunter Misconduct, LEGAL TIMES, Sept. 15, 1997, at 27-28 (up to 5000 private bounty hunters make 30,000 arrests annually "mistakes of mistaken identity, wrongful searches, and excessive force are common").
145. David J. Kennedy, Note, Residential Associations as State Actors: Regulating the Impact of Gated Communities on Nonmembers, 105 YALE L.J. 761, 763-64 (1995); see also Kathe-rine Shaver, Doubts About Columbia Contracts Shake Faith in Financial Controls, WASH. POST, May 8, 1997, at Dl, D6 (reporting residents call for more oversight of association governance, alleging favoritism in awarding contracts and lack of financial controls).
146. David J. Kennedy, Note, Residential Associations as State Actors: Regulating the Impact of Gated Communities on Nonmembers, 105 YALE L.J. 761, 763-64 (1995); see also Kathe-rine Shaver, Doubts About Columbia Contracts Shake Faith in Financial Controls, WASH. POST, May 8, 1997, at Dl, D6 (reporting residents call for more oversight of association governance, alleging favoritism in awarding contracts and lack of financial controls).
147. Gates are being marketed to the public as enhancing security and creating a sense of community among the people inside the gates. Fern Shen, Middle Class Homing in on Gated Enclaves, WASH. POST, Apr. 14, 1997, at B5.
148. See Steven Euller, Private Security and the Exclusionary Rule, 15 HARV. C.R.-C.L. L. REV. 649, 651 (1980) (stating that because there is state action when private security personnel investigate crimes and gather evidence, personnel should be scrutinized for constitutional violations). But see Wade v. Byles, 83 F.3d 902, 906 (7th Cir. 1996) (holding exercise of police power does not make private security guard a state actor).
149. 105 F.3d 1465 (D.C. Cir. 1997).
150. Id. at 1485.
151. Id. at 1486.
152. ROBERT FROST, COMPLETE POEMS OF ROBERT FROST 430 (1967).
153. THE FEDERALIST No. 10, at 78-80 (James Madison) (Clinton Rossiter ed., 1961).
154. Id. Madison's solution, of course, was not to eradicate factions - a feat that Madison believed to be impossible without simultaneously eradicating political liberty, given human nature and the inevitable divides among individuals in society - but rather to limit their harm by ensuring that the political system was sufficiently broadened and representative to embrace diverse interest groups and preclude any one faction from becoming permanently ascendant. See id. at 81-84; see also Alexandra Natapoff, Trouble in Paradise: Equal Protection and the Dilemma of Interminority Group Conflict, 47 STAN. L. REV. 1059, 1086-91 (1995) (discussing Madison's theory of faction to our contemporary multicultural society).
155. See ARTHUR SCHLESINGER JR., THE DISUNITING OF AMERICA 24-25 (1992) (quoting George Washington).
156. Id. (quoting Letter from John Quincy Adams to Baron von Furstenwaerther in BEYOND ETHNICITY 4 (Werner Sollors, ed. 1986)).
157. See Kenneth L. Karst, Essay: Paths to Belonging: The Constitution and Cultural Identity, 64 N.C. L. REV. 303, 332-36 (1986) (citing occupational mobility, economic class, and fragmentation of social roles and norms as forces behind immigrant assimilation).
158. 42 U.S.C. § 2000 (1964) (as amended).
159. 42 U.S.C. § 1973 (1965) (as amended).
160. 42 U.S.C. § 12102 (1990).
161. See, e.g. Palmore v. Sidoti, 432 U.S. 429, 432-33 (1984) (holding racial classifications subject to most rigid scrutiny).
162. See, e.g. United States v. Virginia, 116 S. Ct. 2264, 2275-76 (1996) (applying equal protection analysis to gender based government action).
163. 115 S. Ct. 2097 (1995).
164. 113 S. Ct. 2816 (1993).
165. 115 S. Ct. 2475 (1995).
166. 116 S. Ct. 1941 (1996).
167. Adarand, 115 S. Ct. at 2117.
168. Shaw, 113 S. Ct. at 2827. For a particularly powerful and eloquent rejection of racial group identity, see Randall Kennedy, My Race Problem - And Ours, ATLANTIC MONTHLY, May 1997, at 55.
169. For a discussion of communitarian theory, see generally MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982) (criticizing liberalism and suggesting communitarian alternative); MICHAEL WALZER, INTERPRETATION AND SOCIAL CRITICISM (1987) (accepting, but criticizing, communitarian alternative); Stephen A. Gardbaum, Law, Politics, and the Claims of Community, 90 MICH. L. REV. 685 (1992) (discussing community in contemporary moral and political theory).
170. For a discussion of communitarian theory, see generally MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982) (criticizing liberalism and suggesting communitarian alternative); MICHAEL WALZER, INTERPRETATION AND SOCIAL CRITICISM (1987) (accepting, but criticizing, communitarian alternative); Stephen A. Gardbaum, Law, Politics, and the Claims of Community, 90 MICH. L. REV. 685 (1992) (discussing community in contemporary moral and political theory).
171. For a discussion of communitarian theory, see generally MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982) (criticizing liberalism and suggesting communitarian alternative); MICHAEL WALZER, INTERPRETATION AND SOCIAL CRITICISM (1987) (accepting, but criticizing, communitarian alternative); Stephen A. Gardbaum, Law, Politics, and the Claims of Community, 90 MICH. L. REV. 685 (1992) (discussing community in contemporary moral and political theory).
172. See, e.g., T. Alexander Aleinikoff, A Case For Race Consciousness, 91 COLUM. L. REV. 1060 (1991) (discussing "colorblindness" and significance of race on society); Steven A. Holmes, At N.A.A.C.P., Talk of a Shift On Integration, N.Y. TIMES, June 23, 1997, at Al (noting that NAACP leaders say the organization should focus more on seeking improvements in majority black schools; when black parents complain under integration plans "it is their children who are most likely to be the ones bused out of their neighborhoods"); Gary Feller, Race Consciousness, 1990 DUKE L.J. 758 (analyzing integration and ways whites and blacks understand race).
173. See, e.g., T. Alexander Aleinikoff, A Case For Race Consciousness, 91 COLUM. L. REV. 1060 (1991) (discussing "colorblindness" and significance of race on society); Steven A. Holmes, At N.A.A.C.P., Talk of a Shift On Integration, N.Y. TIMES, June 23, 1997, at Al (noting that NAACP leaders say the organization should focus more on seeking improvements in majority black schools; when black parents complain under integration plans "it is their children who are most likely to be the ones bused out of their neighborhoods"); Gary Feller, Race Consciousness, 1990 DUKE L.J. 758 (analyzing integration and ways whites and blacks understand race).
174. See, e.g., T. Alexander Aleinikoff, A Case For Race Consciousness, 91 COLUM. L. REV. 1060 (1991) (discussing "colorblindness" and significance of race on society); Steven A. Holmes, At N.A.A.C.P., Talk of a Shift On Integration, N.Y. TIMES, June 23, 1997, at Al (noting that NAACP leaders say the organization should focus more on seeking improvements in majority black schools; when black parents complain under integration plans "it is their children who are most likely to be the ones bused out of their neighborhoods"); Gary Feller, Race Consciousness, 1990 DUKE L.J. 758 (analyzing integration and ways whites and blacks understand race).
175. Peter Applebome, Nation's Campuses Confront An Expanding Racial Divide, N.Y. TIMES, Oct. 25, 1995, at Al (discussing racial division of students at universities).
176. See BUREAU OF THE CENSUS, POVERTY IN THE UNITED STATES: Series P-60, No. 194, at vi-vii (1995); R. Richard Banks, Book Review: "Nondiscriminatory" Perpetuation of Racial Subordination, 76 B.U. L. REV. 669, 677-79 (1996) (reviewing Melvin L. Oliver & Thomas M. Schapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality (1995)); Carey Goldberg, Hispanic Households Struggle Amid Broad Decline in Income, N.Y. TIMES, Jan. 30, 1997, at Al (reviewing census data on Hispanic households and poverty); see generally ANDREW HACKER, Two NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL (1992) (discussing role that race plays in society).
177. See BUREAU OF THE CENSUS, POVERTY IN THE UNITED STATES: Series P-60, No. 194, at vi-vii (1995); R. Richard Banks, Book Review: "Nondiscriminatory" Perpetuation of Racial Subordination, 76 B.U. L. REV. 669, 677-79 (1996) (reviewing Melvin L. Oliver & Thomas M. Schapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality (1995)); Carey Goldberg, Hispanic Households Struggle Amid Broad Decline in Income, N.Y. TIMES, Jan. 30, 1997, at Al (reviewing census data on Hispanic households and poverty); see generally ANDREW HACKER, Two NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL (1992) (discussing role that race plays in society).
178. See BUREAU OF THE CENSUS, POVERTY IN THE UNITED STATES: Series P-60, No. 194, at vi-vii (1995); R. Richard Banks, Book Review: "Nondiscriminatory" Perpetuation of Racial Subordination, 76 B.U. L. REV. 669, 677-79 (1996) (reviewing Melvin L. Oliver & Thomas M. Schapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality (1995)); Carey Goldberg, Hispanic Households Struggle Amid Broad Decline in Income, N.Y. TIMES, Jan. 30, 1997, at Al (reviewing census data on Hispanic households and poverty); see generally ANDREW HACKER, Two NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL (1992) (discussing role that race plays in society).
179. See BUREAU OF THE CENSUS, POVERTY IN THE UNITED STATES: Series P-60, No. 194, at vi-vii (1995); R. Richard Banks, Book Review: "Nondiscriminatory" Perpetuation of Racial Subordination, 76 B.U. L. REV. 669, 677-79 (1996) (reviewing Melvin L. Oliver & Thomas M. Schapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality (1995)); Carey Goldberg, Hispanic Households Struggle Amid Broad Decline in Income, N.Y. TIMES, Jan. 30, 1997, at Al (reviewing census data on Hispanic households and poverty); see generally ANDREW HACKER, Two NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL (1992) (discussing role that race plays in society).
180. See BUREAU OF THE CENSUS, POVERTY IN THE UNITED STATES: Series P-60, No. 194, at vi-vii (1995); R. Richard Banks, Book Review: "Nondiscriminatory" Perpetuation of Racial Subordination, 76 B.U. L. REV. 669, 677-79 (1996) (reviewing Melvin L. Oliver & Thomas M. Schapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality (1995)); Carey Goldberg, Hispanic Households Struggle Amid Broad Decline in Income, N.Y. TIMES, Jan. 30, 1997, at Al (reviewing census data on Hispanic households and poverty); see generally ANDREW HACKER, Two NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL (1992) (discussing role that race plays in society).
181. BUREAU OF THE CENSUS, CURRENT POPULATION REPORTS: SERIES P-70, No. 51 WHAT'S IT WORTH? FIELD OF TRAINING AND ECONOMIC STATUS: 1993, at 1 (1993).
182. BUREAU OF THE CENSUS, CURRENT POPULATION REPORTS: SERIES P-70, No. 51 WHAT'S IT WORTH? FIELD OF TRAINING AND ECONOMIC STATUS: 1993, at 1 (1993).
183. Erwin Chemerinsky, Making Sense of the Affirmative Action Debate, 22 OHIO N.U. L. REV. 1343, 1344 (1996) (discussing success of affirmative action); Peter T. Kilburn, For Many in Work Force, 'Glass Ceiling' Still Exists, N.Y. TIMES, Mar. 16, 1995, at A22 (discussing lack of women holding senior management positions in workforce). Nor is such discrimination limited to the higher echelons of the economy. Anecdotal evidence suggests that race divisions continue to mar the skilled trades. A 1994 Urban Institute study of employment discrimination demonstrated that even where white and black college students had identical resumes and gave identical responses to questions, the white students received interviews 22% more often, received job offers 41% more often, and were offered wages 17% higher on average than the black students. Louis Uchitelle, Union Goal of Equality Fails the Test of Time, N.Y. TIMES, July 9, 1995, at Al.
184. Erwin Chemerinsky, Making Sense of the Affirmative Action Debate, 22 OHIO N.U. L. REV. 1343, 1344 (1996) (discussing success of affirmative action); Peter T. Kilburn, For Many in Work Force, 'Glass Ceiling' Still Exists, N.Y. TIMES, Mar. 16, 1995, at A22 (discussing lack of women holding senior management positions in workforce). Nor is such discrimination limited to the higher echelons of the economy. Anecdotal evidence suggests that race divisions continue to mar the skilled trades. A 1994 Urban Institute study of employment discrimination demonstrated that even where white and black college students had identical resumes and gave identical responses to questions, the white students received interviews 22% more often, received job offers 41% more often, and were offered wages 17% higher on average than the black students. Louis Uchitelle, Union Goal of Equality Fails the Test of Time, N.Y. TIMES, July 9, 1995, at Al.
185. Erwin Chemerinsky, Making Sense of the Affirmative Action Debate, 22 OHIO N.U. L. REV. 1343, 1344 (1996) (discussing success of affirmative action); Peter T. Kilburn, For Many in Work Force, 'Glass Ceiling' Still Exists, N.Y. TIMES, Mar. 16, 1995, at A22 (discussing lack of women holding senior management positions in workforce). Nor is such discrimination limited to the higher echelons of the economy. Anecdotal evidence suggests that race divisions continue to mar the skilled trades. A 1994 Urban Institute study of employment discrimination demonstrated that even where white and black college students had identical resumes and gave identical responses to questions, the white students received interviews 22% more often, received job offers 41% more often, and were offered wages 17% higher on average than the black students. Louis Uchitelle, Union Goal of Equality Fails the Test of Time, N.Y. TIMES, July 9, 1995, at Al.
186. DOUGLAS S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS 66 (1993).
187. Id. at 223. The pattern of white suburbs and black cities remains characteristic of metropolitan areas in the United States, despite some increase in black suburbanization, and white flight from areas with significant black populations continues. Id. at 73-74, 78-80. Overall, Massey and Denton found that "one-third of all African-Americans live under conditions of intense racial segregation." Id. at 77. Their data indicates that Hispanics are not as segregated as blacks. Id.
188. See, e.g., Missouri v. Jenkins, 115 S. Ct. 2038, 2056 (1995) (refusing to enforce district court order to desegregate school and increase teachers' wages in effort to combat substandard test scores); Milliken v. Bradley, 418 U.S. 717, 745 (1974) (refusing to enforce multidistrict desegregation plan designed to present single district de jure discrimination); see also Peter Applebome, Schools See Re-Emergence Of 'Separate But Equal', N.Y. TIMES, Apr. 8, 1997, at A10 (noting that Harvard study found that in 1986, 67.1% of black students were in schools where less than half of student body was white, compared to 63.6% in 1972).
189. See Abigail Thernstrom & Henry D. Fetter, From Scottsboro to Simpson, PUB. INT., Winter 1996, at 17 (citing differing reactions of whites and blacks to Simpson verdict); see also Bill Ong Hing, In the Interest of Racial Harmony: Revisiting the Lawyer's Duty to Work for the Common Good, 47 STAN. L. REV. 901, 911-15 (1995) (detailing recent conflicts between blacks and Koreans in Los Angeles); Abigail Thernstrom, Two Nations, Separate and Hostile?, N.Y. TIMES, Oct. 12, 1995, at A23 (noting that in 1989 poll, 26% of black respondents stated that they thought the majority of whites shared the views of the KKK). Compare Steven A. Holmes, For Hundreds of Thousands, A Heartfelt Joining of Hands, N.Y. TIMES, Oct. 17, 1995, at Al (detailing reactions of March participants and observers), with Sam Howe Verhovek, Million Man March Puzzles A Houston Suburb, N.Y. TIMES, Oct. 19, 1995, at A16 (reporting attitudes of whites in Houston towards March).
190. See Abigail Thernstrom & Henry D. Fetter, From Scottsboro to Simpson, PUB. INT., Winter 1996, at 17 (citing differing reactions of whites and blacks to Simpson verdict); see also Bill Ong Hing, In the Interest of Racial Harmony: Revisiting the Lawyer's Duty to Work for the Common Good, 47 STAN. L. REV. 901, 911-15 (1995) (detailing recent conflicts between blacks and Koreans in Los Angeles); Abigail Thernstrom, Two Nations, Separate and Hostile?, N.Y. TIMES, Oct. 12, 1995, at A23 (noting that in 1989 poll, 26% of black respondents stated that they thought the majority of whites shared the views of the KKK). Compare Steven A. Holmes, For Hundreds of Thousands, A Heartfelt Joining of Hands, N.Y. TIMES, Oct. 17, 1995, at Al (detailing reactions of March participants and observers), with Sam Howe Verhovek, Million Man March Puzzles A Houston Suburb, N.Y. TIMES, Oct. 19, 1995, at A16 (reporting attitudes of whites in Houston towards March).
191. See Abigail Thernstrom & Henry D. Fetter, From Scottsboro to Simpson, PUB. INT., Winter 1996, at 17 (citing differing reactions of whites and blacks to Simpson verdict); see also Bill Ong Hing, In the Interest of Racial Harmony: Revisiting the Lawyer's Duty to Work for the Common Good, 47 STAN. L. REV. 901, 911-15 (1995) (detailing recent conflicts between blacks and Koreans in Los Angeles); Abigail Thernstrom, Two Nations, Separate and Hostile?, N.Y. TIMES, Oct. 12, 1995, at A23 (noting that in 1989 poll, 26% of black respondents stated that they thought the majority of whites shared the views of the KKK). Compare Steven A. Holmes, For Hundreds of Thousands, A Heartfelt Joining of Hands, N.Y. TIMES, Oct. 17, 1995, at Al (detailing reactions of March participants and observers), with Sam Howe Verhovek, Million Man March Puzzles A Houston Suburb, N.Y. TIMES, Oct. 19, 1995, at A16 (reporting attitudes of whites in Houston towards March).
192. See Abigail Thernstrom & Henry D. Fetter, From Scottsboro to Simpson, PUB. INT., Winter 1996, at 17 (citing differing reactions of whites and blacks to Simpson verdict); see also Bill Ong Hing, In the Interest of Racial Harmony: Revisiting the Lawyer's Duty to Work for the Common Good, 47 STAN. L. REV. 901, 911-15 (1995) (detailing recent conflicts between blacks and Koreans in Los Angeles); Abigail Thernstrom, Two Nations, Separate and Hostile?, N.Y. TIMES, Oct. 12, 1995, at A23 (noting that in 1989 poll, 26% of black respondents stated that they thought the majority of whites shared the views of the KKK). Compare Steven A. Holmes, For Hundreds of Thousands, A Heartfelt Joining of Hands, N.Y. TIMES, Oct. 17, 1995, at Al (detailing reactions of March participants and observers), with Sam Howe Verhovek, Million Man March Puzzles A Houston Suburb, N.Y. TIMES, Oct. 19, 1995, at A16 (reporting attitudes of whites in Houston towards March).
193. See Abigail Thernstrom & Henry D. Fetter, From Scottsboro to Simpson, PUB. INT., Winter 1996, at 17 (citing differing reactions of whites and blacks to Simpson verdict); see also Bill Ong Hing, In the Interest of Racial Harmony: Revisiting the Lawyer's Duty to Work for the Common Good, 47 STAN. L. REV. 901, 911-15 (1995) (detailing recent conflicts between blacks and Koreans in Los Angeles); Abigail Thernstrom, Two Nations, Separate and Hostile?, N.Y. TIMES, Oct. 12, 1995, at A23 (noting that in 1989 poll, 26% of black respondents stated that they thought the majority of whites shared the views of the KKK). Compare Steven A. Holmes, For Hundreds of Thousands, A Heartfelt Joining of Hands, N.Y. TIMES, Oct. 17, 1995, at Al (detailing reactions of March participants and observers), with Sam Howe Verhovek, Million Man March Puzzles A Houston Suburb, N.Y. TIMES, Oct. 19, 1995, at A16 (reporting attitudes of whites in Houston towards March).
194. See NEWSLETTER OF THE NATIONAL COMMISSION ON CIVIC RENEWAL, PANEL 3: RACE, ETHNICITY, AND CIVIC COHESION (Spring 1997) (describing study by David Bositis). The same scholar found that 43% of blacks believe that police brutality and harassment of blacks is a serious problem, compared to 10% of whites. Id.
195. See William Branigin, Nearly 1 in 10 in U.S. is Foreign-Born, Census Says, WASH. POST, Apr. 9, 1997, at A18 (stating leading continents of emigration shifted from Latin America and Europe to Latin America and Asia); Karst, supra note 141, at 304 & n.5 (recounting shift in immigration trends since repeal of national origins quota system).
196. Steven A. Holmes, Census Sees a Profound Ethnic Shift in U.S., N.Y. TIMES, Mar. 14, 1996, at A16.
197. Id.
198. Id.; see also BUREAU OF THE CENSUS, POPULATION PROJECTIONS OF THE UNITED STATES: BY AGE, SEX, RACE AND HISPANIC ORIGIN: 1995 TO 2050, at 42 (1996) (tabulating Census Bureau projections).
199. Id.; see also BUREAU OF THE CENSUS, POPULATION PROJECTIONS OF THE UNITED STATES: BY AGE, SEX, RACE AND HISPANIC ORIGIN: 1995 TO 2050, at 42 (1996) (tabulating Census Bureau projections).
200. Id.
201. See Branigin, supra note 164, at A18 (reporting on census population data and projections).
202. See, e.g. Shaw v. Hunt (Shaw II), 116 S. Ct. 1894, 1902 (1996) (involving racial districting decisions); Adarand v. Pena, 115 S. Ct. 2097, 2117 (1995) (involving all racial classifications); Miller v. Johnson, 115 S. Ct. 2475, 2490 (1995) (involving redistricting designed to comply with Justice Department preclearance requirement).
203. Adarand, 115 S. Ct. at 2117. Although not all of the Justices concurring in the majority opinion in Adarand agreed on the constitutionality of race-based remedial action - this is the point on which Justice Scalia's concurrence and the majority appear to be inconsistent - the Court previously indicated its acceptance of some race-based remedies, and it seems likely that the Adarand dissenters will adhere to this view. See City of Richmond v. J.A. Croson, Co., 488 U.S. 469, 491-92 (1989) (plurality opinion) (finding states have authority to remedy discrimination within their own legislative jurisdiction); United States v. Paradise, 480 U.S. 149, 167 (1987) (plurality opinion) (finding discriminary conduct by state justified race-conscious relief).
204. Shaw II, 116 S. Ct. at 1902 (citing Croson, 488 U.S. at 504; Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277 (1986)).
205. See Washington v. Davis, 426 U.S. 229, 242 (1976) (finding discriminatory impact alone does not trigger strict scrutiny). For a criticism of the intent requirement, see Barbara Flagg, "Was Blind, But Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 MICH. L. REV. 953 (1993).
206. Croson, 488 U.S. at 491-93, 503, 509. Moreover, despite its comments that evidence of low participation by eligible minority firms could justify race-based action and data demonstrating that few minority firms received contracts, the Court in Croson rejected Richmond's program that set aside 30% of the dollar value of the subcontracting on government projects to minority-owned companies. Id. at 503, 507-08.
207. Adarand, 115 S. Ct. at 2117 (citing United States v. Paradise, 480 U.S. 149 (1987)).
208. 476 U.S. 267, 274 (1986).
209. See, e.g., Shaw II, 116 S. Ct. at 1911-12 (Stevens, J., dissenting) (refusing to find that actual redistricting presumptively harms all voters living in new district); Bush v. Vera, 116 S. Ct. 1941, 1999-2003 (1996) (Souter, J., dissenting) (recounting pie-Shaw I requirement of harm done to identifiable group of voters for cognizable claim to exist); Pamela S. Karlan & Daryl J. Levinson, Why Voting Is Different, 84 CAL. L. REV. 1201, 1211-16, 1227-28 (1996) (criticizing presumption of representational harm in Shaw I when white voters redistricted into majority-minority district and stating that voters' free choice is not diluted by redistricting). The lack of injury from racial redistricting forced the Court to conclude that individuals are harmed simply by living in a society that draws political lines on the basis of race, a species of "expressive harm." See Richard H. Pildes & Robert Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 MICH. L. REV. 483, 506-09 (1993) (finding Shaw I represents judicial assertion that state may not practice value reductionism, thereby leading to overly dominant role for race in society). Resort to such amorphous or "expressive harms" does not sit easily with the Court's recent standing jurisprudence, which increasingly has denied standing to individuals who seek to allege generalized grievances. Another criticism of the Court's recognition of such "expressive harms" is based on its simultaneous refusal to recognize that denial of racial consciousness is also perceived by many as a harm. As Charles Taylor commented, the politics of multiculturalism is premised on the belief that "our identity is partly shaped by recognition or its absence, often by the misrecognition of others, and so a person or group of people can suffer real damage, real distortion, if the people or society around them mirror back to them a confining or demeaning or contemptible picture of themselves." CHARLES TAYLOR, MULTICULTURALISM AND THE POLITICS OF RECOGNITION 25, 25 (Amy Gutmann ed., 1992). Citizens who identify primarily as members of a minority group and want social recognition of their unique group status feel harmed by society's refusal to provide such recognition. The Court's recent opinions must be read, at a minimum, as holding that this is not a harm that the Equal Protection Clause recognizes, but the Court never even acknowledged the argument that it is a harm.
210. See, e.g., Shaw II, 116 S. Ct. at 1911-12 (Stevens, J., dissenting) (refusing to find that actual redistricting presumptively harms all voters living in new district); Bush v. Vera, 116 S. Ct. 1941, 1999-2003 (1996) (Souter, J., dissenting) (recounting pie-Shaw I requirement of harm done to identifiable group of voters for cognizable claim to exist); Pamela S. Karlan & Daryl J. Levinson, Why Voting Is Different, 84 CAL. L. REV. 1201, 1211-16, 1227-28 (1996) (criticizing presumption of representational harm in Shaw I when white voters redistricted into majority-minority district and stating that voters' free choice is not diluted by redistricting). The lack of injury from racial redistricting forced the Court to conclude that individuals are harmed simply by living in a society that draws political lines on the basis of race, a species of "expressive harm." See Richard H. Pildes & Robert Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 MICH. L. REV. 483, 506-09 (1993) (finding Shaw I represents judicial assertion that state may not practice value reductionism, thereby leading to overly dominant role for race in society). Resort to such amorphous or "expressive harms" does not sit easily with the Court's recent standing jurisprudence, which increasingly has denied standing to individuals who seek to allege generalized grievances. Another criticism of the Court's recognition of such "expressive harms" is based on its simultaneous refusal to recognize that denial of racial consciousness is also perceived by many as a harm. As Charles Taylor commented, the politics of multiculturalism is premised on the belief that "our identity is partly shaped by recognition or its absence, often by the misrecognition of others, and so a person or group of people can suffer real damage, real distortion, if the people or society around them mirror back to them a confining or demeaning or contemptible picture of themselves." CHARLES TAYLOR, MULTICULTURALISM AND THE POLITICS OF RECOGNITION 25, 25 (Amy Gutmann ed., 1992). Citizens who identify primarily as members of a minority group and want social recognition of their unique group status feel harmed by society's refusal to provide such recognition. The Court's recent opinions must be read, at a minimum, as holding that this is not a harm that the Equal Protection Clause recognizes, but the Court never even acknowledged the argument that it is a harm.
211. See, e.g., Shaw II, 116 S. Ct. at 1911-12 (Stevens, J., dissenting) (refusing to find that actual redistricting presumptively harms all voters living in new district); Bush v. Vera, 116 S. Ct. 1941, 1999-2003 (1996) (Souter, J., dissenting) (recounting pie-Shaw I requirement of harm done to identifiable group of voters for cognizable claim to exist); Pamela S. Karlan & Daryl J. Levinson, Why Voting Is Different, 84 CAL. L. REV. 1201, 1211-16, 1227-28 (1996) (criticizing presumption of representational harm in Shaw I when white voters redistricted into majority-minority district and stating that voters' free choice is not diluted by redistricting). The lack of injury from racial redistricting forced the Court to conclude that individuals are harmed simply by living in a society that draws political lines on the basis of race, a species of "expressive harm." See Richard H. Pildes & Robert Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 MICH. L. REV. 483, 506-09 (1993) (finding Shaw I represents judicial assertion that state may not practice value reductionism, thereby leading to overly dominant role for race in society). Resort to such amorphous or "expressive harms" does not sit easily with the Court's recent standing jurisprudence, which increasingly has denied standing to individuals who seek to allege generalized grievances. Another criticism of the Court's recognition of such "expressive harms" is based on its simultaneous refusal to recognize that denial of racial consciousness is also perceived by many as a harm. As Charles Taylor commented, the politics of multiculturalism is premised on the belief that "our identity is partly shaped by recognition or its absence, often by the misrecognition of others, and so a person or group of people can suffer real damage, real distortion, if the people or society around them mirror back to them a confining or demeaning or contemptible picture of themselves." CHARLES TAYLOR, MULTICULTURALISM AND THE POLITICS OF RECOGNITION 25, 25 (Amy Gutmann ed., 1992). Citizens who identify primarily as members of a minority group and want social recognition of their unique group status feel harmed by society's refusal to provide such recognition. The Court's recent opinions must be read, at a minimum, as holding that this is not a harm that the Equal Protection Clause recognizes, but the Court never even acknowledged the argument that it is a harm.
212. On the inherently group-based character of voting, see Lani Guinier, [E]racing Democracy: The Voting Rights Case, 108 HARV. L. REV. 109, 125 (1994) (stating group representation as foundation of democracy legitimates Voting Rights Act); Samuel Issacharoff, Groups and The Right to Vote, 44 EMORY L.J. 869, 883 (1995) (finding voting power expressed as opportunity to aggregate votes with like-minded individuals, makes voting a group right); Karlan & Levinson, supra note 177, at 1204 (stating that purpose of apportionment is to sort voters into groups).
213. On the inherently group-based character of voting, see Lani Guinier, [E]racing Democracy: The Voting Rights Case, 108 HARV. L. REV. 109, 125 (1994) (stating group representation as foundation of democracy legitimates Voting Rights Act); Samuel Issacharoff, Groups and The Right to Vote, 44 EMORY L.J. 869, 883 (1995) (finding voting power expressed as opportunity to aggregate votes with like-minded individuals, makes voting a group right); Karlan & Levinson, supra note 177, at 1204 (stating that purpose of apportionment is to sort voters into groups).
214. See Pamela S. Karlan, Our Separatism? Voting Rights As An American Nationalities Policy, 1995 U. CHI. LEGAL F. 83, 96-103 (1995) (arguing that Voters Rights Act allows for fair cross-section of representation in legislative bodies); see generally Karst, supra note 141, at 341-46 (recounting integrative effects of affirmative action). The Court's refusal to allow official recognition of racial identity in the districting context is at odds with the Court's continuing acceptance of vote dilution claims. Vote dilution claims are premised on the recognition that race can be outcome determinative in voting, yet the Court's decisions in Shaw, Miller, and Bush hold that race cannot be outcome determinative in creating voting districts. The requirements of a vote dilution claim, set out in Thornburg v. Gingles, 478 U.S. 30 (1986), are: "that [the minority group] is sufficiently large and geographically compact to constitute a majority in a single-member district"; "that it is politically cohesive"; and "that the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate." Id. at 50-51. Right now it appears that a majority of Justices continue to accept the constitutionality of redistricting to avoid vote dilution, even though the majority decisions in Miller and Vera merely assumed that a state could assert the need to rectify vote dilution as a compelling interest, and even though some Justices suggested that the constitutional right to vote may not encompass vote dilution. See Holder v. Hall, 114 S. Ct. 2581, 2592 (1994) (Thomas, J., concurring) (finding dilution issue forces judiciary to make political judgments). On the inconsistency between the Court's recent redistricting decisions and its recognition of racial bloc voting, see generally Karlan & Levinson, supra note 177, at 1216-27.
215. Bush, 116 S. Ct. at 2004 (Souter, J., dissenting).
216. See Richard H. Pildes, Book Review: The Politics of Race, 108 HARV. L. REV. 1359, 1367 (1995) (reviewing QUIET REVOLUTION IN THE SOUTH (Chandler Davidson & Bernard Grofman, eds., 1994)).
217. See Richard H. Pildes, Book Review: The Politics of Race, 108 HARV. L. REV. 1359, 1367 (1995) (reviewing QUIET REVOLUTION IN THE SOUTH (Chandler Davidson & Bernard Grofman, eds., 1994)).
218. See id. at 1368 (citing study conducted for QUIET REVOLUTION IN THE SOUTH).
219. Id. at 1374-75. Of course, whether by increasing the number of minorities in office the Voting Rights Act has enhanced the political representation of minorities' interests is a different and more debatable issue. Id. at 1376-90 (examining partisan and ideological effects of Voting Rights Act redistricting).
220. Johnson v. Miller, 922 F. Supp. 1552 (S.D. Ga. 1995), cert, granted sub nom. Abrams v. Johnson, 116 S. Ct. 1823 (1996).
221. See Applebome, supra note 161, at A10.
222. See, e.g., Susan Chira, Housing and Fear Upend Integration, N.Y. TIMES, Feb. 14, 1993, at E3 (examining integration in schools); Robert A. Frahm, Busing in St. Louis Holds Complex Lessons for Hartford, HARTFORD COURANT, Oct. 27, 1996 at A1 (examining effects of busing in St. Louis); V. Dion Haynes et al., Americans Rethink Desegregation, CHI. TRIB., Nov. 10, 1995, at 1 (examining social and fiscal costs of busing); James S. Kunen, The End of Integration: A Four-Decade Effort Is Being Abandoned as Exhausted Courts and Frustrated Blacks Dust Off the Concept of "Separate But Equal", TIME, Apr. 29, 1996, at 38 (examining desegregation and school systems); Andy Parker et al., Blacks Say Integration Is Not Worth Busing: Children Caught in Balance, FORT LAUDERDALE SUN SENTINEL, Feb. 19, 1995, at 1A (noting that schools are becoming less integrated and that black students' scores are sagging); Cheryl W. Thompson, Neighborhood Schools: Some Say the Focus Should Shift From Racial Balance to Quality, KAN. CITY STAR, May 11, 1994, at A1 (stating that neither integration nor achievement is being met).
223. See, e.g., Susan Chira, Housing and Fear Upend Integration, N.Y. TIMES, Feb. 14, 1993, at E3 (examining integration in schools); Robert A. Frahm, Busing in St. Louis Holds Complex Lessons for Hartford, HARTFORD COURANT, Oct. 27, 1996 at A1 (examining effects of busing in St. Louis); V. Dion Haynes et al., Americans Rethink Desegregation, CHI. TRIB., Nov. 10, 1995, at 1 (examining social and fiscal costs of busing); James S. Kunen, The End of Integration: A Four-Decade Effort Is Being Abandoned as Exhausted Courts and Frustrated Blacks Dust Off the Concept of "Separate But Equal", TIME, Apr. 29, 1996, at 38 (examining desegregation and school systems); Andy Parker et al., Blacks Say Integration Is Not Worth Busing: Children Caught in Balance, FORT LAUDERDALE SUN SENTINEL, Feb. 19, 1995, at 1A (noting that schools are becoming less integrated and that black students' scores are sagging); Cheryl W. Thompson, Neighborhood Schools: Some Say the Focus Should Shift From Racial Balance to Quality, KAN. CITY STAR, May 11, 1994, at A1 (stating that neither integration nor achievement is being met).
224. See, e.g., Susan Chira, Housing and Fear Upend Integration, N.Y. TIMES, Feb. 14, 1993, at E3 (examining integration in schools); Robert A. Frahm, Busing in St. Louis Holds Complex Lessons for Hartford, HARTFORD COURANT, Oct. 27, 1996 at A1 (examining effects of busing in St. Louis); V. Dion Haynes et al., Americans Rethink Desegregation, CHI. TRIB., Nov. 10, 1995, at 1 (examining social and fiscal costs of busing); James S. Kunen, The End of Integration: A Four-Decade Effort Is Being Abandoned as Exhausted Courts and Frustrated Blacks Dust Off the Concept of "Separate But Equal", TIME, Apr. 29, 1996, at 38 (examining desegregation and school systems); Andy Parker et al., Blacks Say Integration Is Not Worth Busing: Children Caught in Balance, FORT LAUDERDALE SUN SENTINEL, Feb. 19, 1995, at 1A (noting that schools are becoming less integrated and that black students' scores are sagging); Cheryl W. Thompson, Neighborhood Schools: Some Say the Focus Should Shift From Racial Balance to Quality, KAN. CITY STAR, May 11, 1994, at A1 (stating that neither integration nor achievement is being met).
225. See, e.g., Susan Chira, Housing and Fear Upend Integration, N.Y. TIMES, Feb. 14, 1993, at E3 (examining integration in schools); Robert A. Frahm, Busing in St. Louis Holds Complex Lessons for Hartford, HARTFORD COURANT, Oct. 27, 1996 at A1 (examining effects of busing in St. Louis); V. Dion Haynes et al., Americans Rethink Desegregation, CHI. TRIB., Nov. 10, 1995, at 1 (examining social and fiscal costs of busing); James S. Kunen, The End of Integration: A Four-Decade Effort Is Being Abandoned as Exhausted Courts and Frustrated Blacks Dust Off the Concept of "Separate But Equal", TIME, Apr. 29, 1996, at 38 (examining desegregation and school systems); Andy Parker et al., Blacks Say Integration Is Not Worth Busing: Children Caught in Balance, FORT LAUDERDALE SUN SENTINEL, Feb. 19, 1995, at 1A (noting that schools are becoming less integrated and that black students' scores are sagging); Cheryl W. Thompson, Neighborhood Schools: Some Say the Focus Should Shift From Racial Balance to Quality, KAN. CITY STAR, May 11, 1994, at A1 (stating that neither integration nor achievement is being met).
226. See, e.g., Susan Chira, Housing and Fear Upend Integration, N.Y. TIMES, Feb. 14, 1993, at E3 (examining integration in schools); Robert A. Frahm, Busing in St. Louis Holds Complex Lessons for Hartford, HARTFORD COURANT, Oct. 27, 1996 at A1 (examining effects of busing in St. Louis); V. Dion Haynes et al., Americans Rethink Desegregation, CHI. TRIB., Nov. 10, 1995, at 1 (examining social and fiscal costs of busing); James S. Kunen, The End of Integration: A Four-Decade Effort Is Being Abandoned as Exhausted Courts and Frustrated Blacks Dust Off the Concept of "Separate But Equal", TIME, Apr. 29, 1996, at 38 (examining desegregation and school systems); Andy Parker et al., Blacks Say Integration Is Not Worth Busing: Children Caught in Balance, FORT LAUDERDALE SUN SENTINEL, Feb. 19, 1995, at 1A (noting that schools are becoming less integrated and that black students' scores are sagging); Cheryl W. Thompson, Neighborhood Schools: Some Say the Focus Should Shift From Racial Balance to Quality, KAN. CITY STAR, May 11, 1994, at A1 (stating that neither integration nor achievement is being met).
227. See, e.g., Susan Chira, Housing and Fear Upend Integration, N.Y. TIMES, Feb. 14, 1993, at E3 (examining integration in schools); Robert A. Frahm, Busing in St. Louis Holds Complex Lessons for Hartford, HARTFORD COURANT, Oct. 27, 1996 at A1 (examining effects of busing in St. Louis); V. Dion Haynes et al., Americans Rethink Desegregation, CHI. TRIB., Nov. 10, 1995, at 1 (examining social and fiscal costs of busing); James S. Kunen, The End of Integration: A Four-Decade Effort Is Being Abandoned as Exhausted Courts and Frustrated Blacks Dust Off the Concept of "Separate But Equal", TIME, Apr. 29, 1996, at 38 (examining desegregation and school systems); Andy Parker et al., Blacks Say Integration Is Not Worth Busing: Children Caught in Balance, FORT LAUDERDALE SUN SENTINEL, Feb. 19, 1995, at 1A (noting that schools are becoming less integrated and that black students' scores are sagging); Cheryl W. Thompson, Neighborhood Schools: Some Say the Focus Should Shift From Racial Balance to Quality, KAN. CITY STAR, May 11, 1994, at A1 (stating that neither integration nor achievement is being met).
228. See generally Kevin Brown, Do African-Americans Need Immersion Schools?: The Paradoxes Created by Legal Conceptualization of Race and Public Education, 78 IOWA L. REV. 813 (1993) (exploring need for alternative education);
229. Charles R.T. Crumpley, How We Got Here: Court Rulings, White Flight; School District's Tragic Past Brings Traumatic Solution, KAN. CITY STAR, May 8, 1994, at Al (describing arguments of black school board member Ed Newsome, who opposes integration measures ordered for the Kansas City school district).
230. See Susan Chira, Rethinking Deliberately Segregated Schools, N.Y. TIMES, July 11, 1993, at E20 (examining segregation in public schools); Thomas Dunkel, Self-Segregated Schools Seek to Build Self-Esteem, WASH. TIMES, Mar. 11, 1991, at El (examining immersion schools); Elaine Ray, All-Male Black Schools Put On Hold In Detroit, Girls Will Be Admitted After Court Challenge, BOSTON GLOBE, Sept. 1, 1991, at A16 (examining challenges to single-sex and single-race schools); Rogers Worthington, Milwaukee Idea Shapes A New School, CHI. TRIB., Dec. 1, 1991, at 25.
231. See Susan Chira, Rethinking Deliberately Segregated Schools, N.Y. TIMES, July 11, 1993, at E20 (examining segregation in public schools); Thomas Dunkel, Self-Segregated Schools Seek to Build Self-Esteem, WASH. TIMES, Mar. 11, 1991, at E1 (examining immersion schools); Elaine Ray, All-Male Black Schools Put On Hold In Detroit, Girls Will Be Admitted After Court Challenge, BOSTON GLOBE, Sept. 1, 1991, at A16 (examining challenges to single-sex and single-race schools); Rogers Worthington, Milwaukee Idea Shapes A New School, CHI. TRIB., Dec. 1, 1991, at 25.
232. See Susan Chira, Rethinking Deliberately Segregated Schools, N.Y. TIMES, July 11, 1993, at E20 (examining segregation in public schools); Thomas Dunkel, Self-Segregated Schools Seek to Build Self-Esteem, WASH. TIMES, Mar. 11, 1991, at El (examining immersion schools); Elaine Ray, All-Male Black Schools Put On Hold In Detroit, Girls Will Be Admitted After Court Challenge, BOSTON GLOBE, Sept. 1, 1991, at A16 (examining challenges to single-sex and single-race schools); Rogers Worthington, Milwaukee Idea Shapes A New School, CHI. TRIB., Dec. 1, 1991, at 25.
233. See Susan Chira, Rethinking Deliberately Segregated Schools, N.Y. TIMES, July 11, 1993, at E20 (examining segregation in public schools); Thomas Dunkel, Self-Segregated Schools Seek to Build Self-Esteem, WASH. TIMES, Mar. 11, 1991, at El (examining immersion schools); Elaine Ray, All-Male Black Schools Put On Hold In Detroit, Girls Will Be Admitted After Court Challenge, BOSTON GLOBE, Sept. 1, 1991, at A16 (examining challenges to single-sex and single-race schools); Rogers Worthington, Milwaukee Idea Shapes A New School, CHI. TRIB., Dec. 1, 1991, at 25.
234. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 25-26 (1971).
235. See Afrocentric Schools: Fighting A Racist Legacy, U.S. NEWS & WORLD REP., Dec. 9, 1991, at 74, 74-75 (quoted in Brown, supra note 187, at 818 n.16); Kenneth J. Cooper, Three Rs and Role Model in Baltimore Third Grade: Single-Sex Class Harnesses Boys Instincts, WASH. POST, Dec. 5, 1990, at A1 (describing class of all-black, all-male students); see also Dari Giles, Black Independent Schools, ESSENCE, Sept. 1, 1995, at 124 (noting that a study by Institute for Independent Education found 64% of students at black independent schools score above national average in reading, 62% score above national average in math). For contrasting views on Afrocentric education, compare Schlesinger, supra note 139 (stating that Afrocentric curricula is inaccurate and dangerous), with Glenn C. Loury, The Hard Questions: Comparative Disadvantage, THE NEW REPUBLIC, Oct. 13, 1997, at 29 (defending Afrocentrism as rooted in racist character of our past and of current society).
236. See Afrocentric Schools: Fighting A Racist Legacy, U.S. NEWS & WORLD REP., Dec. 9, 1991, at 74, 74-75 (quoted in Brown, supra note 187, at 818 n.16); Kenneth J. Cooper, Three Rs and Role Model in Baltimore Third Grade: Single-Sex Class Harnesses Boys Instincts, WASH. POST, Dec. 5, 1990, at A1 (describing class of all-black, all-male students); see also Dari Giles, Black Independent Schools, ESSENCE, Sept. 1, 1995, at 124 (noting that a study by Institute for Independent Education found 64% of students at black independent schools score above national average in reading, 62% score above national average in math). For contrasting views on Afrocentric education, compare Schlesinger, supra note 139 (stating that Afrocentric curricula is inaccurate and dangerous), with Glenn C. Loury, The Hard Questions: Comparative Disadvantage, THE NEW REPUBLIC, Oct. 13, 1997, at 29 (defending Afrocentrism as rooted in racist character of our past and of current society).
237. See Afrocentric Schools: Fighting A Racist Legacy, U.S. NEWS & WORLD REP., Dec. 9, 1991, at 74, 74-75 (quoted in Brown, supra note 187, at 818 n.16); Kenneth J. Cooper, Three Rs and Role Model in Baltimore Third Grade: Single-Sex Class Harnesses Boys Instincts, WASH. POST, Dec. 5, 1990, at A1 (describing class of all-black, all-male students); see also Dari Giles, Black Independent Schools, ESSENCE, Sept. 1, 1995, at 124 (noting that a study by Institute for Independent Education found 64% of students at black independent schools score above national average in reading, 62% score above national average in math). For contrasting views on Afrocentric education, compare Schlesinger, supra note 139 (stating that Afrocentric curricula is inaccurate and dangerous), with Glenn C. Loury, The Hard Questions: Comparative Disadvantage, THE NEW REPUBLIC, Oct. 13, 1997, at 29 (defending Afrocentrism as rooted in racist character of our past and of current society).
238. See Afrocentric Schools: Fighting A Racist Legacy, U.S. NEWS & WORLD REP., Dec. 9, 1991, at 74, 74-75 (quoted in Brown, supra note 187, at 818 n.16); Kenneth J. Cooper, Three Rs and Role Model in Baltimore Third Grade: Single-Sex Class Harnesses Boys Instincts, WASH. POST, Dec. 5, 1990, at A1 (describing class of all-black, all-male students); see also Dari Giles, Black Independent Schools, ESSENCE, Sept. 1, 1995, at 124 (noting that a study by Institute for Independent Education found 64% of students at black independent schools score above national average in reading, 62% score above national average in math). For contrasting views on Afrocentric education, compare Schlesinger, supra note 139 (stating that Afrocentric curricula is inaccurate and dangerous), with Glenn C. Loury, The Hard Questions: Comparative Disadvantage, THE NEW REPUBLIC, Oct. 13, 1997, at 29 (defending Afrocentrism as rooted in racist character of our past and of current society).
239. Hopwood v. Texas, 78 F.3d 932, 943-44 (5th Cir.) (stating that Fourteenth Amendment does not permit discrimination even for purpose of correcting perceived imbalances in student body), cert. denied, 116 S. Ct. 2581 (1996); see Pat Griffith, U. of Michigan to Fight Lawsuits that Challenge Its Push for Minorities, PITTSBURGH-POST GAZETTE, Dec. 4, 1997, at A12 (reporting "'drastic' drop" in minority students at University of Texas Law School following Hopwood, and reduction from 34 to 1 at University of California after Proposition 209).
240. Metro-Broadcasting, Inc. v. FCC, 497 U.S. 547, 566 (1990) (stating that FCC policies to achieve broadcast diversity do not violate equal protection); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 320 (1978) (invalidating special admissions programs).
241. Although in Adarand the Court specifically overruled Metro-Broadcasting only insofar as it subjected federal affirmative action programs to intermediate scrutiny instead of strict scrutiny, the Court there, as well as in the voting rights cases, restricted its discussion of acceptable race-based action to measures undertaken to achieve remedial purposes.
242. See also Nicholas deB Katzenbach & Burke Marshall, Not Color Blind: Just Blind, N.Y. TIMES, Feb. 22, 1998, § 6 (Magazine), at 42, where they state: It is very nearly as if this Court has simply mandated that what is the country's historic struggle against racial oppression and racial prejudice cannot be acted upon in a race-conscious way - that the law must view racial problems observable by all as if oppression and prejudice did not exist and had never existed. The Court's majority, in other words, has come very close to saying - and the hope and fear about the Piscataway case was that it would finally say at last - that courts cannot be permitted to see what is plain to everybody else. See generally Lani Gunier & Susan Sturm, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953 (1996) (examining "assault" on affirmative action); Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. REV. 263 (1995) (examining race and sexual orientation and integration). For a defense of affirmative action as a way of attacking the caste structure of our society and improving the position of subordinated groups, see Owen M. Fiss, Affirmative Action: Beyond Diversity, WASH. POST, May 7, 1997, at A21.
243. See also Nicholas deB Katzenbach & Burke Marshall, Not Color Blind: Just Blind, N.Y. TIMES, Feb. 22, 1998, § 6 (Magazine), at 42, where they state: It is very nearly as if this Court has simply mandated that what is the country's historic struggle against racial oppression and racial prejudice cannot be acted upon in a race-conscious way - that the law must view racial problems observable by all as if oppression and prejudice did not exist and had never existed. The Court's majority, in other words, has come very close to saying - and the hope and fear about the Piscataway case was that it would finally say at last - that courts cannot be permitted to see what is plain to everybody else. See generally Lani Gunier & Susan Sturm, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953 (1996) (examining "assault" on affirmative action); Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. REV. 263 (1995) (examining race and sexual orientation and integration). For a defense of affirmative action as a way of attacking the caste structure of our society and improving the position of subordinated groups, see Owen M. Fiss, Affirmative Action: Beyond Diversity, WASH. POST, May 7, 1997, at A21.
244. See also Nicholas deB Katzenbach & Burke Marshall, Not Color Blind: Just Blind, N.Y. TIMES, Feb. 22, 1998, § 6 (Magazine), at 42, where they state: It is very nearly as if this Court has simply mandated that what is the country's historic struggle against racial oppression and racial prejudice cannot be acted upon in a race-conscious way - that the law must view racial problems observable by all as if oppression and prejudice did not exist and had never existed. The Court's majority, in other words, has come very close to saying - and the hope and fear about the Piscataway case was that it would finally say at last - that courts cannot be permitted to see what is plain to everybody else. See generally Lani Gunier & Susan Sturm, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953 (1996) (examining "assault" on affirmative action); Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. REV. 263 (1995) (examining race and sexual orientation and integration). For a defense of affirmative action as a way of attacking the caste structure of our society and improving the position of subordinated groups, see Owen M. Fiss, Affirmative Action: Beyond Diversity, WASH. POST, May 7, 1997, at A21.
245. See also Nicholas deB Katzenbach & Burke Marshall, Not Color Blind: Just Blind, N.Y. TIMES, Feb. 22, 1998, § 6 (Magazine), at 42, where they state: It is very nearly as if this Court has simply mandated that what is the country's historic struggle against racial oppression and racial prejudice cannot be acted upon in a race-conscious way - that the law must view racial problems observable by all as if oppression and prejudice did not exist and had never existed. The Court's majority, in other words, has come very close to saying - and the hope and fear about the Piscataway case was that it would finally say at last - that courts cannot be permitted to see what is plain to everybody else. See generally Lani Gunier & Susan Sturm, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953 (1996) (examining "assault" on affirmative action); Kenneth L. Karst, Myths of Identity: Individual and Group Portraits of Race and Sexual Orientation, 43 UCLA L. REV. 263 (1995) (examining race and sexual orientation and integration). For a defense of affirmative action as a way of attacking the caste structure of our society and improving the position of subordinated groups, see Owen M. Fiss, Affirmative Action: Beyond Diversity, WASH. POST, May 7, 1997, at A21.
246. Two notable exceptions are United States v. Virginia, 116 S. Ct. 2264 (1996), where the Court held that a remedial plan to create a separate program for women did not afford comparable benefits, id. at 2283-84, and Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687 (1994), where the Court struck down a New York statute that created a special school district for a village made up of Hasidic Jews, id. at 709-10.
247. See Karst, supra note 194, at 351-57.
248. Two cases addressing claims by religious minorities for special treatment, with opposite results, are Wisconsin v. Yoder, 406 U.S. 205, 234-35 (1972) (accommodating Amish beliefs and not enforcing state secondary education requirements), and Mozert v. Hawkins County Board of Education, 827 F.2d 1058, 1065 (6th Cir. 1987) (requiring students to study materials chosen by school did not create unconstitutional burden). The Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-63 (1994), gives Native American tribes certain procedural and substantive rights in adoption disputes and is based on a recognition of that a tribe has an interest in Native American children separate from that of the children's parents. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 41 (1989) (conducting review of state's decision regarding Indian Welfare Act). On the turn to single sex schools, see Rene Sanchez, In East Harlem, A School Without Boys: Experiment with All-Girls Classes Taps New Mood in Public Education, WASH. POST, Sept. 22, 1996, at Al. Although single sex schools present the same issue - segregated on the basis of a suspect classification - as single race schools, there are reasons to believe that single sex schools are more likely to survive judicial review. There is significant evidence that separate sex classrooms can lead to greater educational achievement. For instance, a 1986 University of Michigan study found that girls in Chicago's single-sex Catholic schools manifested greater interest and enhanced performance in school, especially in math and science, than girls in coeducational Catholic schools, and when Hunter College High School in New York City divided its calculus classes into three sections - coeducational, all male, and all female - both of the single sex sections performed better than the coeducational one. See Judy Mann, Boys and Girls Apart: Single-Sex Education Is One School Choice We Need, WASH. POST, Oct. 20, 1996, at C1 (supporting single-sex programs); Leslie Mann, No Boys Allowed, WASHINGTONIAN, Nov. 1991, at 131. In the VMI case, United States v. Virginia, 116 S. Ct. 2264 (1996), the Supreme Court held that the state must provide "an exceedingly persuasive justification" for gender classifications in governmental programs to survive constitutional scrutiny and even under the intermediate test rejected VMI's defense of its exclusion of women. Id. at 2275. But in a footnote Justice Ginsburg stated that the Court's VMI decision was not meant to foreclose a state from "evenhandedly. . . support[ing] diverse educational opportunities." Id. at 2276 n.7. Some interpreted United States v. Virginia as an attempt to pacify the consortium of women's schools and colleges which filed an amicus brief noting its concern about single sex education going down the tubes if the court was too rigid. But see Garrett v. Board of Educ., 775 F. Supp. 1004, 1007 (E.D. Mich. 1991) (allowing Detroit to go forward with black schools, but requiring that girls be allowed to attend as well as boys; however, racial element of the schools was not challenged and Detroit did not offer any comparable school for girls).
249. Two cases addressing claims by religious minorities for special treatment, with opposite results, are Wisconsin v. Yoder, 406 U.S. 205, 234-35 (1972) (accommodating Amish beliefs and not enforcing state secondary education requirements), and Mozert v. Hawkins County Board of Education, 827 F.2d 1058, 1065 (6th Cir. 1987) (requiring students to study materials chosen by school did not create unconstitutional burden). The Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-63 (1994), gives Native American tribes certain procedural and substantive rights in adoption disputes and is based on a recognition of that a tribe has an interest in Native American children separate from that of the children's parents. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 41 (1989) (conducting review of state's decision regarding Indian Welfare Act). On the turn to single sex schools, see Rene Sanchez, In East Harlem, A School Without Boys: Experiment with All-Girls Classes Taps New Mood in Public Education, WASH. POST, Sept. 22, 1996, at Al. Although single sex schools present the same issue - segregated on the basis of a suspect classification - as single race schools, there are reasons to believe that single sex schools are more likely to survive judicial review. There is significant evidence that separate sex classrooms can lead to greater educational achievement. For instance, a 1986 University of Michigan study found that girls in Chicago's single-sex Catholic schools manifested greater interest and enhanced performance in school, especially in math and science, than girls in coeducational Catholic schools, and when Hunter College High School in New York City divided its calculus classes into three sections - coeducational, all male, and all female - both of the single sex sections performed better than the coeducational one. See Judy Mann, Boys and Girls Apart: Single-Sex Education Is One School Choice We Need, WASH. POST, Oct. 20, 1996, at C1 (supporting single-sex programs); Leslie Mann, No Boys Allowed, WASHINGTONIAN, Nov. 1991, at 131. In the VMI case, United States v. Virginia, 116 S. Ct. 2264 (1996), the Supreme Court held that the state must provide "an exceedingly persuasive justification" for gender classifications in governmental programs to survive constitutional scrutiny and even under the intermediate test rejected VMI's defense of its exclusion of women. Id. at 2275. But in a footnote Justice Ginsburg stated that the Court's VMI decision was not meant to foreclose a state from "evenhandedly. . . support[ing] diverse educational opportunities." Id. at 2276 n.7. Some interpreted United States v. Virginia as an attempt to pacify the consortium of women's schools and colleges which filed an amicus brief noting its concern about single sex education going down the tubes if the court was too rigid. But see Garrett v. Board of Educ., 775 F. Supp. 1004, 1007 (E.D. Mich. 1991) (allowing Detroit to go forward with black schools, but requiring that girls be allowed to attend as well as boys; however, racial element of the schools was not challenged and Detroit did not offer any comparable school for girls).
250. Two cases addressing claims by religious minorities for special treatment, with opposite results, are Wisconsin v. Yoder, 406 U.S. 205, 234-35 (1972) (accommodating Amish beliefs and not enforcing state secondary education requirements), and Mozert v. Hawkins County Board of Education, 827 F.2d 1058, 1065 (6th Cir. 1987) (requiring students to study materials chosen by school did not create unconstitutional burden). The Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-63 (1994), gives Native American tribes certain procedural and substantive rights in adoption disputes and is based on a recognition of that a tribe has an interest in Native American children separate from that of the children's parents. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 41 (1989) (conducting review of state's decision regarding Indian Welfare Act). On the turn to single sex schools, see Rene Sanchez, In East Harlem, A School Without Boys: Experiment with All-Girls Classes Taps New Mood in Public Education, WASH. POST, Sept. 22, 1996, at Al. Although single sex schools present the same issue - segregated on the basis of a suspect classification - as single race schools, there are reasons to believe that single sex schools are more likely to survive judicial review. There is significant evidence that separate sex classrooms can lead to greater educational achievement. For instance, a 1986 University of Michigan study found that girls in Chicago's single-sex Catholic schools manifested greater interest and enhanced performance in school, especially in math and science, than girls in coeducational Catholic schools, and when Hunter College High School in New York City divided its calculus classes into three sections - coeducational, all male, and all female - both of the single sex sections performed better than the coeducational one. See Judy Mann, Boys and Girls Apart: Single-Sex Education Is One School Choice We Need, WASH. POST, Oct. 20, 1996, at C1 (supporting single-sex programs); Leslie Mann, No Boys Allowed, WASHINGTONIAN, Nov. 1991, at 131. In the VMI case, United States v. Virginia, 116 S. Ct. 2264 (1996), the Supreme Court held that the state must provide "an exceedingly persuasive justification" for gender classifications in governmental programs to survive constitutional scrutiny and even under the intermediate test rejected VMI's defense of its exclusion of women. Id. at 2275. But in a footnote Justice Ginsburg stated that the Court's VMI decision was not meant to foreclose a state from "evenhandedly. . . support[ing] diverse educational opportunities." Id. at 2276 n.7. Some interpreted United States v. Virginia as an attempt to pacify the consortium of women's schools and colleges which filed an amicus brief noting its concern about single sex education going down the tubes if the court was too rigid. But see Garrett v. Board of Educ., 775 F. Supp. 1004, 1007 (E.D. Mich. 1991) (allowing Detroit to go forward with black schools, but requiring that girls be allowed to attend as well as boys; however, racial element of the schools was not challenged and Detroit did not offer any comparable school for girls).