Racial Justice and Affirmative Action:
The Year in Review

By Susan Kiyomi Serrano, William Kidder and Shaffy Moeel

The past year and a half, following the U.S. Supreme Court’s landmark decision in Grutter v. Bollinger, has been remarkable for the Equal Justice Society in the racial justice and affirmative action arena.  EJS has played defining roles at the state and national levels, on everything from key federal cases, to statewide policy initiatives, to federal circuit judge appointments.  In addition to providing leadership in a statewide public education campaign to expose the threats posed by California’s Proposition 54, we also participated as amici curiae in key cases, including Grutter v. Bollinger, in which the U.S. Supreme Court affirmed the utility of race-conscious admissions in higher education. 

In June 2003, EJS applauded the U.S. Supreme Court’s strong reaffirmation that institutions of higher education may take race into consideration as one factor among many in admitting students.  We were extremely pleased that the Court acknowledged that the “strict scrutiny standard,” the high legal standard used to review the programs, must take “relevant differences" into account, as we argued in our amici curiae brief.  In our brief on behalf of the Coalition for Economic Equity, the Santa Clara University School of Law Center for Social Justice and Public Service, the Charles Houston Bar Association, the California Association of Black Lawyers, and the Justice Collective, we argued for a “flexible” strict scrutiny standard and contended that classifications designed to promote inclusion by removing historical barriers are deserving of greater judicial respect, especially in the Court’s assessment of whether the program is “narrowly tailored” to its purpose.

Post-Grutter/Gratz Strategy

EJS spearheaded a nationwide grassroots effort to preserve and promote affirmative action at law schools and universities in the aftermath of the Supreme Court’s Grutter and Gratz decisions.  EJS mobilized professors, alumni, and students to: monitor the status of affirmative action procedures at their schools; clearly articulate to school administrators affirmative action approaches allowed under the Court’s decisions; and to work with other faculty members and students to provide the political energy to ensure that administrators remain committed to strong affirmative action plans. Under the auspices of EJS, law professor and EJS Board member Charles Ogletree, along with several other prominent law professors, authored a letter urging law professors and students to become part of the EJS network to defend affirmative action on their campuses. Over 105 volunteered and have received email updates and calls to action.

STORIES IN THIS ISSUE

Contents

Welcome to the launch of our first EJS e-newsletter!

Racial Justice and Affirmative Action: The Year in Review

SF Reception for EJS Board Chair, Professor Charles Ogletree

Notes on the Right

Preserving Diversity in Higher Education: A Manual on Admissions Policies and Procedures After the University of Michigan Decisions

EJS Law Review Summary:
Dismantling the Intent Doctrine: Five Key Law Review Articles

The Justice Journal - EJS Calendar of Events

EJS Staff News

Making Change - Become a Part of the Equal Justice Society

EJS created www.preserveaffirmativeaction.org to provide professors, students, alumni and concerned individuals with tools to ensure that school administrators remain committed to affirmative action and resources to create effective and legal affirmative action programs.  The website features talking points; a concrete timeline for organizing to preserve affirmative action; password protected organizing materials; a media kit; key quotes from the opinions; a Harvard Civil Rights Project memorandum interpreting the Court’s opinions; and an admissions compliance manual created by three law firms, Bingham McCutchen, Morrison & Foerster, and Heller Ehrman.  

Preserving Diversity in Higher Education Compliance Manual

The Manual describes the legal and constitutional framework appropriate for reviewing and advocating for race-conscious admissions policies in the aftermath of the Michigan decisions.  It also provides practical guidelines to assist educational institutions in crafting workable, effective, and constitutionally sound race-conscious admissions plans.  Finally, the Manual examines remedial justifications for race-conscious admissions policies, and provides legal analyses of race-conscious financial aid programs, scholarships, recruitment and outreach, and faculty hiring. 

The Manual was released with national notice during our Third Annual Conference at the University of Michigan School of Law in April 2004, the very institution which gave rise to the U.S. Supreme Court’s decision last summer.  Preserving Diversity was also sent to the Dean or President, Admissions Officer, and selected General Counsels at:  every accredited law school (186 schools), every accredited medical school (141 schools), selected nursing schools, the top 50 universities, and the top 50 small colleges.   

University of California Admissions

In addition to publishing the Manual, EJS has blended empirical research on higher education with policy and legal analysis in other areas of higher education admissions.  We worked closely with many at the University of California in the past year and will continue to do so to protect diversity and to thwart ongoing attempts to undermine it.  In October, we collaborated with several professors from the University of California as well as a broad coalition of education and civil rights legal organizations in publishing a public policy report, Facts and Fantasies about UC Berkeley Admissions: A Critical Evaluation of Regent John Moores’ Report, refuting assertions from the Chair of the UC Regents that students with low SAT scores had “no business” being at the University of California.  The report was well-received in the Los Angeles Times and other press outlets.  We have written several op-ed pieces on fairness in UC admissions, including in the Chronicle of Higher Education and the Sacramento Bee, and we continue to work with key UC officials and legislators on a variety of approaches to advocate the racial, ethnic, and social class integration of UC.

Texas & Higher Education:  Blend It, Don’t End It Report

Colorblind Racism at Stanford University, October 2003

Concurrent with these program achievements, EJS continues to play a critical convening and facilitative role in bringing together key legal scholars, academics, policy makers and media to conferences throughout the nation.  In October 2003, on the eve of the gubernatorial recall ballot, we convened a standing-room only conference at Stanford University, in conjunction with Stanford University’s Center for Comparative Studies in Race & Ethnicity, and the University of Southern California’s Annenberg Institute for Justice & Journalism.  A year in the making, the conference, Colorblind Racism? The Politics of Controlling Racial and Ethnic Data, convened over 400 policy-makers, legal scholars, academics, advocates and journalists from across the country to discuss, among many topics, the empirical value and importance of racial and ethnic data—at the time under siege with Proposition 54 on the October 7 ballot.  Timing of the conference could not have been more critical. 

Defeat of Proposition 54 in California

EJS played a pivotal role in the broad coalition that decisively defeated Ward Connerly’s Proposition 54 on October 7, 2003. The dangerous, divisive measure would have banned the collection of racial and ethnic data by any state agency, thus making it virtually impossible to continue major public health campaigns, track and document race discrimination or to bring civil rights suits to court.  The measure was overwhelmingly defeated 64 percent to 36 percent, with No on 54 garnering almost 5 million votes.  EJS Executive Director Eva Paterson was a leading spokesperson for the No on 54 Campaign. More than two years prior to the election, Paterson was part of the core group that launched the Coalition for an Informed California, the official opposition campaign organization. The coalition was an extraordinarily broad and diverse network of supporters including health professionals, classroom teachers, law enforcement, trade unionists, civil rights activists, lawyers, academics and students.

EJS Third National Conference: Protecting Equally at the University of Michigan Law School, April 2004

The EJS Third Annual National Conference, Protecting Equally: Dismantling the Intent Doctrine & Healing Racial Wounds, took place at the University of Michigan School of Law, April 1 to 3, 2004.  The conference was well attended by legal scholars, academics, advocates, students and journalists who participated in two days of cross-exchange on efforts to reclaim progressive jurisprudence with emphasis on the challenges posed by the “Intent Doctrine” and racial bias.

The conference was a direct product of EJS’ commitment to convene networks of progressive academics, legal scholars, social scientists, advocates, practicing attorneys, students and key allies in the media.  Conference participants discussed ongoing cases and areas of law where the reframing of intent doctrine is needed; learned about the latest empirical and theoretical studies in cognitive psychology and organizational sociology on how discrimination occurs; discussed existing legal scholarship addressing the intent doctrine; and explored how society views and talks about race and racial healing.