Catch Twenty-Wu? The Oral Argument in Fisher v. University of Texas and the Obfuscation of Critical Mass

Sheldon Bernard Lyke*

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Introduction

On October 10, 2012, the Supreme Court of the United States heard oral argument in Fisher v. University of Texas at Austin[1]—the latest challenge to race-conscious affirmative action university admissions programs.[2] Court watchers highlighted that during the hearing, the Justices spent considerable time attempting to understand the meaning of a “critical mass” of minority students enrolled in universities and registered for individual courses.[3] Critical mass emerged from the Justices’ questions in oral argument in a sort of catch-22. On one hand, it faced critiques that it lacked a quantifiable threshold that judges could review. Any attempts, however, to quantify critical mass would place the concept into the unconstitutional realm of impermissible quotas.

The Contraception Mandate

Caroline Mala Corbin*

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Health care in the United States is undergoing a sea change thanks to the Patient Protection and Affordable Care Act.[1] Among the many firsts: employers that offer health insurance must cover certain preventive services for women, including contraception.[2] This requirement—often called the "contraception mandate"—has generated a huge outcry, especially from the U.S. Catholic hierarchy.[3] Although churches, synagogues, mosques, and other religious institutions that predominately serve and employ people of their own faith are exempt, religiously affiliated institutions that serve and employ people of many different faiths—such as schools, hospitals, and social services providers—are not.[4] It is the lack of an exemption for the latter organizations that has generated protests.

"Testing the 'Model Minority Myth'": A Case of Weak Empiricism

By Robert S. Chang[*] and Rose Cuison Villazor[**]

[Editor's Note:  This piece is a reply to Miranda Oshige McGowan and James Lindgren, Testing the "Model Minority Myth", 100 Nw. U. L. Rev. 331 (2006) (link).]

I.  Introduction

As the legal and political wars rage over affirmative action, the role played by Asian Americans is increasingly disputed.  Should Asian Americans be included in affirmative action programs?  Do such programs harm Asian Americans because spaces that should be given to them are instead given to less qualified Blacks and Latinos?  Does Asian American success indicate that affirmative action polices are unnecessary?  At stake in each of these questions is the notion that Asian Americans are the "model minority."

The model minority designation often depicts Asian Americans as achieving success through cultural values and hard work,[1] presenting them as a blueprint for others who want to achieve similar success.  These positive attributes of Asian Americans are used to illustrate their ability to overcome discrimination and to juxtapose them with other racial groups, whose failure to overcome discrimination is then blamed on a lack of these cultural traits and an ethic of hard work.[2]  This juxtaposition may then be used to imply that social policies such as affirmative action, welfare, or reparations might be wrongly directed.

Critical discussion of the model minority designation is now standard fare in Asian American jurisprudence.[3]  A number of scholars have critiqued the veracity of the success stereotype and the validity of indicia such as household income or education as a measure of ongoing discrimination against Asian Americans.[4]  They have also posited that the model minority designation has had a negative impact on those Asian Americans who do not fit the success model.  Additionally, they claim the stereotype has harmed other racial minorities and poor whites who have not achieved similar success.

Professors McGowan and Lindgren make an important contribution by trying to test the causal connection between the model minority stereotype and these posited harms.  They set out to test this empirically through statistical analysis of survey data, concluding that their "results do not confirm the Model Minority Hypothesis."[5]  Instead, they contended that their research demonstrated "slightly more evidence conflicting with the Hypothesis than confirming it."[6]  They concluded that "we must all be careful to present our generalizations, not as essences or necessities, but as conclusions that are true only to the extent that they fit the world and untrue to the extent that they do not fit what they claim to capture."[7]  This cautionary note is directed to "Asian [sic] critical scholars"[8] who critique the model minority designation, suggesting that we are making a claim that does not fit the world.

We turn this cautionary note back on McGowan and Lindgren.  Their conclusion is only as good as their test design, which depends on their assumptions and the validity or accuracy of their underlying data.

On Affirmative Action and "Truly Individualized Consideration"

By Andrew Koppelman & Donald Rebstock

Abstract:

In its most recent affirmative action decisions, the Supreme Court has declared that, in order for an admissions program to permissibly take race into account, it must give each applicant "truly individualized consideration."  Each applicant, it has said, must be "evaluated as an individual."  The rhetorical power of the opinion rests on the contrast between crude, mechanical sorting and an admissions process in which applicants are treated as the unique people they are, and in which each of them gets precisely the result that he deserves.

This rhetorical move is a cheat.  Nobody ever gets exactly what he deserves.  In any case, giving people what they deserve is not the business of an admissions office.  The Michigan Law School process that the Court approved flunks this standard.  So does Northwestern's, which is even more individualized.  So does any other possible admissions program.  Truly individualized consideration is impossible.  The Supreme Court has tried to make a vain dream into a constitutional requirement.

This essay has four parts.  Part I reviews the "individualized consideration" requirement laid down in Gratz and Grutter.  Part II describes what an actual law school admissions process is, at an unusually prosperous, small, and selective law school.  This process has many virtues, but it would be an exaggeration to say that it achieves truly individualized consideration.  Part III contrasts admissions decisions with the one other area in which the Court has demanded individualized decisions:  the administration of the death penalty.  The admissions process is far cruder than anything the Court would accept in the death penalty context.  Part IV argues that when the actual goals and methods of the admissions process are understood, it becomes clear that racial diversity is continuous with, rather than in violation of, those goals and methods.

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Copyright 2006 Northwestern University

Cite As: 101 Nw. U. L. Rev. (forthcoming 2007), 101 Nw. U. L. Rev. Colloquy 49 (2006), http://www.law.northwestern.edu/lawreview/Colloquy/2006/6/.

Persistent URL: http://www.law.northwestern.edu/lawreview/colloquy/2006/6/

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