Compelling interests/compelling institutions: Law schools as constitutional litigants

UCLA Law Review

Volumn 54, Issue 6, 2007, Pages 1613-1634

  Karlan, Pamela S ^a  

^a STANFORD LAW SCHOOL   (United States)

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EID: 34948839029     PISSN: 00415650     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (111)

1. Jerome N. Frank, Accounting for Investors, The Fundamental Importance of Corporate Earning Power, 68 J. ACCT. 295, 295-96 (1939).
2. This qualification is important because the U.S. Congress and the U.S. Supreme Court have, through the enactment and the interpretation of statutes such as 42 U.S.C. §1981 (2000) and Titles II, VI, and VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a, 2000d, 2000e (2000), extended constitutional antidiscrimination constraints to a wide variety of nominally private actors.
3. Other than Justice O'Connor, who served as a senator in the Arizona legislature, none of the recent Justices has had real legislative branch service at any level of government. Indeed, only Justice Breyer has had significant experience as a legislative staff member, serving as special counsel to the Senate Judiciary Committee in 1974-75 and chief counsel in 1979-80.
4. See JOHN C. JEFFRIES, JR., JUSTICE LEWIS F. POWELL, JR.: A BIOGRAPHY 131-83 (1994) (recounting Justice Powell's service as head of the Richmond, Virginia school board during the years following Brown v. Board of Education).
5. 539 U.S. 306 (2003).
6. 547 U.S. 47 (2006).
7. 339 U.S. 629 (1950).
8. Id. at 631-32.
9. Id. at 633.
10. Id. at 634.
11. In 1960, for example, Harvard Law School-then probably the most selective school in the nation-admitted nearly half of all students who applied. See JOEL SELIGMAN, THE HIGH CITADEL: THE INFLUENCE OF HARVARD LAW SCHOOL 7-8 (1978).
12. Today, by contrast, Harvard admits fewer than 13 percent of its applicants. See USNews.com, America's Best Graduate Schools 2008: Harvard University (Law): At a glance, http://www.usnews.com/usnews/ edu/grad/directory/dir-law/brief/glanc_03074_brief.php (last visited June 17, 2007).
13. When Heman Sweatt applied to the University of Texas Law School, the school had only just adopted a competitive admissions process. See Interview by Bill Brands with Dean W. Page Keeton, University of Texas Law School, Austin, Tx. (June 2, 1986) (transcript available in the Tarlton Law Library of the University of Texas-Austin), available at http://www.law.du.edu/russell/lh/ sweatt/docs/koh.htm.
14. For a discussion of the rise of affirmative action and its relationship to the use of standardized tests, see NICHOLAS LEMANN, THE BLG TEST: THE SECRET HISTORY OF THE AMERICAN MERITOCRACY (1999). For a discussion of the disparate impact of reliance on the Law School Admissions Test (LSAT) and undergraduate grade point averages
15. see Linda F. Wightman, The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admissions Decisions, 72 N.Y.U. L. REV. 1, 13-14 (1997).
16. 438 U.S. 265 (1978).
17. An earlier lawsuit involving a challenge to affirmative action in admissions to the University of Washington Law School had been dismissed as moot. See DeFunis v. Odegaard, 416 U.S. 312 (1974). For an insightful discussion of Regents of the University of California v. Bakke, particularly in hindsight after Grutter
18. see John C. Jeffries, Jr., Bakke Revisited, 2003 SUP. CT. REV. 1.
19. Bakke, 438 U.S. at 369 (Brennan, White, Marshall, & Blackmun, JJ., concurring in part and dissenting in part).
20. Id. at 370.
21. See id. at 291, 305 (Powell, J.).
22. See id. at 305-15.
23. See id. at 313 (quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)).
24. 515 U.S. 200 (1995).
25. Id. at 224 (emphasis added).
26. 539 U.S. 306 (2003).
27. 488 U.S. 469 (1989).
28. I explore this point more fully in Pamela S. Karlan, Easing the Spring: Strict Scrutiny and Affirmative Action After the Redisricting Cases, 43 WM. & MARY L. REV. 1569, 1578, 1594-98 (2002).
29. 515 U.S. at 227 (emphasis added).
30. Miller v. Johnson, 515 U.S. 900, 916 (1995).
31. In a later decision, the Court went further, concluding that even an express statement that a plan was drawn to '"provide[ ] for a fair, geographic, racial and partisan balance throughout the State,'" Easley v. Cromartie, 532 U.S. 234, 235 (2001) (quoting Senator Roy Cooper's testimony to a legislative committee in 1997), was insufficient to trigger strict scrutiny because such words "sa[y] little or nothing about whether race played a predominant role comparatively speaking,"
32. id.
33. 323 U.S. 214 (1944).
34. See, e.g., Richmond v. J.A. Croson Co., 488 U.S. 469, 493-94 (1989) (stating that racial classifications were constitutionally problematic "[u]nless they are strictly reserved for remedial settings").
35. 42 U.S.C. §§ 1973, 1973c (2000).
36. For the most recent example, a particularly striking one given that it marks the first time that Justices Scalia and Thomas-along with the newly appointed Chief Justice and Justice Alito-would have upheld race-conscious government decisionmaking under strict scrutiny, see League of United Latin American Citizens (LULAC) v. Perry, 126 S. Ct. 2594, 2667-68 (2006) (Scalia, J., concurring in part and dissenting in part). In earlier cases, a majority of the other Justices had concluded that compliance with the Voting Rights Act of 1965 can constitute a compelling state interest that justifies taking race into account in the redistricting process.
37. See, e.g., Bush v. Vera, 517 U.S. 952, 990 (1996) (O'Connor, J., concurring);
38. Shaw v. Reno, 509 U.S. 630, 674 (1993) (White, J., dissenting).
39. Section 2 of the Voting Rights Act of 1965 forbids the use of voting practices or procedures that "result" in minority voters having less opportunity to participate in the political process or to elect representatives of their choice. 42 U.S.C. § 1973. Section 5 forbids particular jurisdictions from implementing any changes in their electoral practices if those changes have either a discriminatory purpose or a discriminatory "effect." Id. § 1973c(a).
40. Thomburg v.Gingles, 478 U.S. 30, 45 (1986) (quoting S. REP. No. 97-417, at 30 (1982)).
41. 42 U.S.C. § 1973(b).
42. 539 U.S. 244 (2003).
43. See id. at 275.
44. See Grutter v. Bollinger, 539 U.S. 306, 327-33 (2003).
45. Id. at 328.
46. Id.
47. Id. at 329. Grutter derived this phrase from Justice Powell's opinion in Bakke, 438 U.S. 265, 318-19 (1978) (Powell, J.). There, Justice Powell wrote that "a court would not assume that a university, professing to employ a facially nondiscriminatory admissions policy, would operate it as a cover for the functional equivalent of a quota system. In short, good faith would be presumed in the absence of a showing to the contrary in the manner permitted by our cases."
48. Id.
49. In support of this proposition, he cited Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977)
50. Washington v. Davis, 426 U.S. 229 (1976)
51. and Swain v. Alabama, 380 U.S. 202 (1965).
52. Bakke, 438 U.S. at 319. But those three cases all involved the question whether facially neutral government decisions should nonetheless be understood to rest on race. In contemporary parlance, they were all cases involving the question whether strict scrutiny should be triggered in the first place. There is thus a double irony in Justice Powell and the Grutter Court using the phrase to explain a presumption of good faith in a case in which the government undeniably relied on race.
53. As this Article was going to press, the Supreme Court announced its decision in Parents Involved in Community Schools v. Seattle School District No. I, 127 S. Ct. 2738 (2007). There, a bitterly divided Court struck down two public school districts' race-conscious student assignment policies-policies that were designed to produce racially integrated schools despite residential segregation.
54. While a full discussion of Parents Involved is beyond the scope of this Article - I intend to discuss the case more fully in a forthcoming work, see Pamela S. Karlan, The Law of Small Numbers: Some Emerging Themes of the Roberts Court (2007) (unpublished manuscript, on file with author) - it is striking how Chief Justice Roberts's opinion for the Court recast the interest found compelling in Grutter as "the interest in diversity in higher education," Parents Involved, 127 S. Ct. at 2753, by reemphasizing the '"special niche in our constitutional tradition'" occupied by institutions of higher education due to the "expansive freedoms of speech and thought associated with the university environment,"
55. id. at 2754 (quoting Grutter, 539 U.S. at 329, 334), and downplaying the role of universities (and, more specifically, law schools) in producing citizen-leaders. By contrast, in dissent, Justice Breyer argued that there was a "democratic element: an interest in producing an educational environment that reflects the 'pluralistic society' in which our children will live" that made racial diversity in public schools a compelling state interest.
56. Id. at 2821 (Breyer, J., dissenting) (quoting Swann v. Charlotte-Mecklenburgh Bd. of Educ., 402 U.S. 1, 16 (1971)).
57. 543 U.S. 499 (2005).
58. 482 U.S. 78 (1987).
59. Johnson, 543 U.S. at 506 n.1.
60. Vieth v. Jubelirer was a case in which Justice O'Connor would have held the plaintiffs' claims nonjusticiable altogether, effectively according the plan drawers' decisions unreviewable deference.
61. Johnson, 543 U.S. at 512. And just to make the switch in roles complete, Justices Thomas and Scalia, who were scornfully dismissive of the bona fides of the law school and who insisted on applying conventional strict scrutiny to the law school's admissions policies, argued that prisons were a constitutionally distinctive context in which administrators were entitled to exceptional deference.
62. See id. at 524, 528-32 (Thomas, J., joined by Scalia, J., dissenting). In his dissenting opinion, Justice Thomas also contrasted the deference the Court gave the University of Michigan with its skepticism toward the California Department of Corrections, noting that "[d]eference would seem all the more warranted in the prison context, for whatever the Court knows of administrating educational institutions, it knows much less about administering penal ones."
63. Id. at 543.
64. Most recently, in Parents Involved, Justices Scalia and Thomas joined the two new members of the Court, Chief Justice Roberts and Justice Alito, in relying on Johnson to reject any deference to local school boards on questions of racial integration in public schools. 127 S. Ct. 2738.
65. 390 U.S. 333 (1968) (per curiam).
66. See Johnson, 543 U.S. at 512.
67. See Farmer v. Brennan, 511 U.S. 825, 833-34 (1994) (holding that prison officials can be held liable for deliberately failing to protect a prisoner from inmate-on-inmate violence).
68. 391 U.S. 430 (1968).
69. Id. at 437-38.
70. See Karlan, supra note 24, at 1599 (discussing Title VI-related administrative regulations that forbid educational institutions from using admissions criteria that have a discriminatory effect).
71. Grutter v. Bollinger, 539 U.S. 306, 323 (2003)
72. (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 306-07 (1978)).
73. Id. at 330.
74. Brief of Julius W. Becton, Jr. et al. as Amici Curiae Supporting Respondents at 5, Grutter, 539 U.S. 306 (No. 02-241, 02-516).
75. Id. at 14.
76. Grutter, 539 U.S. at 332.
77. See Brief of Association of American Law Schools as Amicus Curiae Supporting Respondent at 5-6, Grutter, 539 U.S. 320 (No. 02-241). In the interest of full disclosure, I note that I was counsel of record for the Association of American Law Schools (AALS).
78. Grutter, 539 U.S. at 332.
79. Id.
80. Id. at 323 (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 306-07 (1978) (Powell, J.)).
81. See, e.g., United States v. Virginia, 518 U.S. 515, 520, 523, 551-52 (1996) (discussing this networking effect); Sweatt v. Painter, 339 U.S. 629, 634 (1950).
82. Indeed, as John Jeffries points out, this is such a psychologically attractive option that in Bakke, Justice Powell "hit upon the brilliant stratagem" of upholding Harvard College's admissions policy, which was not even before the Court, as a counterweight to his opinion striking down Davis's. See Jeffries, supra note 14, at 8.
83. See Sandra Day O'Connor, Thurgood Marshall: The Influence of a Raconteur, 44 STAN. L. REV. 1217, 1217-18 (1992).
84. 500 U.S. 173 (1991).
85. 531 U.S. 533 (2001).
86. Id. at 541 (quoting Rosenberger v. Univ. of Va., 515 U.S. 819, 833 (1995)).
87. Id. at 542 (quoting Polk County v. Dodson, 454 U.S. 312, 321-22 (1981)).
88. Id. at 545.
89. 539 U.S. 306 (2003).
90. 531 U.S. 533 (2001).
91. 547 U.S. 47 (2006).
92. While many law schools adopted such policies entirely as a voluntary internal matter, such policies are also required by the bylaws of the AALS. See ASS'N OF AM. LAW SCH., 2006 HANDBOOK § 6-3(b), at 34 (2006), available at http://www.aals.org/about_handbook_ requirements.php#6 ("A member school shall pursue a policy of providing its students and graduates with equal opportunity to obtain employment, without discrimination or segregation on the ground of race, color, religion, national origin, sex, age, disability, or sexual orientation. A member school shall communicate to each employer to whom it furnishes assistance and facilities for interviewing and other placement functions the school's firm expectation that the employer will observe the principle of equal opportunity.").
93. 10 U.S.C. § 983(b)(1) (Supp. 2004).
94. Id. The amendment now provides, in pertinent part, that no funds connected with the Departments of Defense, Education, Health and Human Services, Homeland Security, Labor, or Transportation, or several specified federal agencies may be provided by contract or by grant to an institution of higher education (including any subelement of such institution) if the Secretary of Defense determines that that institution (or any subelement of that institution) has a policy or practice (regardless of when implemented) that either prohibits, or in effect prevents. . . the Secretary of a military department or Secretary of Homeland Security from gaining access to campuses, or access to students (who are 17 years of age or older) on campuses, for purposes of military recruiting in a manner that is at least equal in quality and scope to the access to campuses and to students that is provided to any other employer. Id. § 983(b).
95. U.S. CONST, art. I, § 8, cls. 1, 12-13.
96. FAIR, 547 U.S. at 58 (quoting Rostker v. Goldberg, 453 U.S. 57, 70 (1981)).
97. Id. at 67.
98. Id. at 64.
99. Compare Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, Inc., 515 U.S. 557 (1995) (holding that the parade's organizers were expressing a viewpoint by refusing to allow a gay, lesbian, and bisexual group to march), with Katie Zezima, An Any thing-Goes Parade Wins the Day in Maine, N.Y. TIMES, July 5, 2007, at A10 (describing a Fourth of July parade in which "anyone can show up and participate" as "a cross among a charming, Rockwellian parade, a roast and a political protest").
100. See Hurley, 515 U.S. 557.
101. Consider, for example, the decision of the Georgetown University Law Center, which provides summer funding for students who work for public interest organizations-and which had funded all 179 students who had applied the previous summer-not to fund an internship for a student to work at Planned Parenthood because it was an "abortion rights organization." See Sam Harbourt, Low Center Divided Over Denial of Funds for Abortion Rights, HOYA, April 13, 2007, available at http://www.thehoya.com/news/041307/newsl. cfm (quoting the dean's characterization of Planned Parenthood). Clearly, the school is expressing a message regarding which employment opportunities deserve institutional support. That being said, none of the schools involved in the FAIR litigation suggested that it was trying to dissuade its students from pursuing jobs as military lawyers. But the Court's opinion went significantly beyond holding that law schools' military recruiting bans were not expressive because the bans were not intended to channel students away from the Judge Advocate General's (JAG) Corps. It seems eminently reasonable to view schools' nondiscrimination policies as intended generally to communicate to students that the school thinks a nondiscriminatory employer is more worthy of their talents.
102. 530 U.S. 640 (2000).
103. 515 U.S. 557 (1995).
104. Dale, 530 U.S. at 650.
105. See id. at 651.
106. 515 U.S. at 569.
107. 517 U.S. 620 (1995).
108. Id. at 652-53 (Scalia, J., dissenting) (quoting BYLAWS OF ASSOCIATION OF AMERICAN LAW SCHOOLS, INC. § 6-4(b); EXECUTIVE COMMITTEE REGULATIONS OF THE ASSOCIATION OF AMERICAN LAW SCHOOLS § 6.19, in 1995 HANDBOOK, ASSOCIATION OF AMERICAN LAW SCHOOLS).
109. Rumsfeld v. FAIR, 547 U.S. 47, 64 (2006).
110. Romer, 517 U.S. at 652 (Scalia, J., dissenting).
111. FAIR, 547 U.S. at 65 (citations omitted).