Affirmative Action

A few days ago, Elie Mystal wrote about recent allegations of racist student conduct at the UCLA School of Law. I invite readers unfamiliar with the background to catch up by reading Elie’s post and, if you’ve the stomach for it, some of the many comments on his post. (It’s okay. I’ll wait.)

UCLA Dean Rachel Moran called for a police investigation. She alerted the student body. She agreed to meet with student leaders. From all I can see, the law school administration has so far handled the events appropriately. The official response balances the risk of dismissing the allegations or their importance with the risk of over-reacting and potentially polarizing the campus further.

I disagree with much of Elie’s criticism of the law school as a whole, as I disagreed with him about the Team Sanders situation at UCLA last fall.

Still, I didn’t originally want to write about UCLA this week. I drafted a post on another topic, in fact. But something about the UCLA situation, Elie’s post, and, perhaps most of all, the responses from many readers gnawed away at me. It hurt my heart. And when the desiccated husk that passes for my world-weary heart hurts, there’s usually something to it . . . .

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It started with “Team Sander.” In November, we told you that some students at UCLA Law School started wearing T-shirts in support of UCLA law professor Richard Sander, whose scholarship is racially divisive. Some people argued that the shirts were not racially motivated, and even some of my colleagues argued that they needed to “know more” about the intentions behind the shirts before they started calling people racist.

Well… now we know more, and “racist” seems like the only appropriate way to describe at least some students at UCLA Law. Now the question becomes: does the law school administration give a crap?

Read on for the disturbing allegations….

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* This is the place where we pretend to be shocked that Chris Christie abused his power. [New York Times]

* Remember the Super Bowl Shuffle? Now there’s a lawsuit over it. Proving even terrible art can give rise to litigation. [Business Wire]

* Miami criminal defense attorney Michael Grieco thought he was representing Justin Bieber and let all the media outlets know it. Well, he’s not. [South Florida Lawyers]

* Listen up, law review editors! This is how you avoid making authors angry. [Nancy Rapoport's Blog]

* John Yoo for Dean of Boalt Hall? OK, maybe not, but here are the finalists for the position. [Nuts & Boalts]

* California is eyeing a referendum to allow affirmative action considerations to be employed in college admissions for the first time in almost 20 years. Surely the same people who passed Prop 8 will be enlightened enough to do something proactive about systemic discrimination. [Chronicle of Higher Education]

* The art of negotiation and terrible cigars. [Katz Justice]

* And I joined Mike Sacks and Jessica Mederson on Legalese It! today. So check out our rousing discussion of the State of the Union v. Supreme Court, Foxy Knoxy’s extradition fears, and California’s decision to keep disgraced journalist Stephen Glass out of the legal profession. Video below… [HuffPost Live]

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Law is not an especially racially diverse profession. More than 93 percent of partners are white, and less than two percent are black, according to 2013 statistics from NALP. A little over four percent of associates are black. A single African American lawyer argued before the U.S. Supreme Court in the entire OT 2012. By contrast, African Americans account for approximately 13 percent of the U.S. population.

Perhaps you think these statistics reflect persistent, pervasive race bias, even hatred. Perhaps you worry, as I do, that many good potential lawyers are excluded from the profession by a combination of obstacles that disproportionately affect the black community. Or perhaps you think many African Americans are just too damned smart to board the sinking ship that you think is the American legal world’s “New Normal.”

For purposes of present discussion, let’s say that, ceteris paribus, increasing the number of black lawyers would be good. How should law school admissions policies promote this goal?

Last Friday, Elie wrote about a Daily Caller article revealing plans at the University of Arkansas at Little Rock’s Bowen School of Law. The plans involved faculty discussion of a new admissions program designed to recruit more black law students. Elie decried the article, lauded the proposed program, and suggested that it was not unconstitutional. Dan Greenberg, quoted in both the DC article and Elie’s, responded.

I agree with Elie that the DC article was lousy — poorly researched, misleadingly written, and blatantly inflammatory. I agree with Dan Greenberg, however, that UALR’s proposal almost certainly would not withstand the strict scrutiny analysis required of race-based admissions programs.

What is so wrong with admissions policies like this one? Even if we agree that encouraging and including more black law school applicants is a good thing, there are fairer, constitutionally permissible ways to achieve that goal without relying on ham-fisted race-based criteria. Ironically, we need look no further than the text of the LEAP proposal itself to see an example….

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Regardless of what you think about affirmative action, can we at least agree that it is a complicated issue? Can we at least agree that the vagaries of constitutionally permissible racial conscious admissions programs are subtle? Is it too much to ask that when reporters try to get the public to freak out about affirmative action proposals, they at least read the proposals first?

The Daily Caller got a hold of an affirmative action story yesterday, and they totally blew it. They’ve got a juicy headline: “Will public law school push affirmative action in secret?” And they’ve got a really crazy hook: “[The law school] would allow [disadvantaged minorities] to study a different curriculum and take different tests than other students pursuing the same studies.”

Well damn, if a law school was pushing a secret plan to allow minorities to take different tests than everybody else at the law school, that would be outrageous! And unconstitutional! And generally horrible.

Good thing that’s not at all what any law school is contemplating…

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Got a pedigree problem?

* The Supreme Court isn’t sure how to address restitution in this child pornography case, but the justices agreed that they didn’t like the “50 percent fudge factor” offered by a government attorney. [New York Times]

* No, stupid, you can’t strike a juror just because he’s gay. By expanding juror protections to sexual orientation, the Ninth Circuit recently added a new notch on the gay rights bedpost. Progress! [Los Angeles Times]

* The Privacy and Civil Liberties Oversight Board says the NSA’s domestic surveillance program is illegal and should be stopped. Sorry, Edward Snowden beat you to the punch on that one. [New York Times]

* While Blank Rome was busy denying a possible merger with Nixon Peabody, it picked up 21 attorneys from two small firms in California to open a San Francisco office. Sneaky. [Philadelphia Business Journal]

* Dennis T. O’Riordan, the ex-Paul Hastings partner who faked his credentials, was disbarred — not in New York, where he claimed he was admitted, but across the pond in the United Kingdom. [Am Law Daily]

* The ABA Journal wants to know if your law firm considers law school pedigree during its hiring process. Please consider the law schools your firm shuts out from OCI, and respond accordingly. [ABA Journal]

* Word on the street is UALR School of Law is trying to push an affirmative action program that’s “likely unconstitutional.” It might also be insulting to prospective minority students, so there’s that. [Daily Caller]

* A federal judge just struck down Utah’s ban on same-sex marriage. [Salt Lake Tribune]

* After striking down Canada’s anti-prostitution laws, our neighbors to the North went ahead and approved a law school that functionally bans gays. What’s going on up there? Play keep away with the Stanley Cup for 20 years and they just lose their damn minds. [TaxProf Blog]

* Chief Judge Alex Kozinski objects, but nobody wants to hear it. [Josh Blackman's Blog]

* Professor Richard Sander won the right to examine law school race, attendance and grade information, in a bid to prove his central theory that affirmative action somehow hurts black folks. I guess the California Supreme Court is on Team Sander. [San Jose Mercury News]

* Amy Schulman, the powerful general counsel at Pfizer, is out — and now there’s some interesting speculation as to why. [Law and More]

* So now everyone’s writing legal opinions over Fantasy Football trades. [BigLaw Rebel]

* Jim Harbaugh gets all his legal acumen from Judge Judy. Next thing you know he’ll be objecting to “What’s your deal?” for lack of foundation. [ESPN]

* Speaking of Jennifer Lawrence, she can probably help with your International Law final. [The Onion]

* There’s a rundown of the top patent law stories of 2013 on the web next month. And there’s CLE to be had! [Patently-O]

Because if you are, you might be a douche. The ATL gang didn’t all agree on how to respond to the story of students at UCLA Law donning Team Sander shirts and decided to record their real-time reactions to the story.

Was it intentionally racist? Unintentionally racist? Is unintentional racism even worse than intentional racism because of how it tries to excuse itself? Is UCLA Law racist for employing this guy?

Or are these guys just dumb jocks?

Earlier: Racists’ T-Shirts On Campus? Only If You Bother To Think About It

My colleagues think that there are going to be some law students who didn’t know that the t-shirts they were wearing were offensive to some of their African-American classmates, and when they find out they’ve caused offense they’re going to be all sorry. I think that people knew exactly what they were doing with their offensive shirts and, at best, you’ll hear some after-the-fact rationalization from students who claim to be just stupid enough to “not even see race.” And of course they’ll be some who don’t even think these t-shirts are offensive at all, because why would evidence that minorities were offended matter to people who don’t care about black people? So this is going to be a really fun post.

You see, it’s a subtle thing. A few students wore t-shirts emblazoned with the image of one of their professors. And it’s not like the professor is David Duke. Hell, he’s employed by a respected law school, so at least some people think the professor isn’t intolerably racist. Just not black people….

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* Belgium has captured a real-life pirate king! But pirate kings just aren’t what they used to be. Something tells me Blackbeard wouldn’t have gone down because somebody said, “Hey, come back to England so we can make a movie about you.” [The Volokh Conspiracy]

* After a roller coaster malfunction killed a passenger, Six Flags responds by pointing the finger at someone else. They didn’t design or build the ride… they just bought it, promoted it, operated it, and profited off it, but they did not design or build it. [Houston Chronicle]

* At oral argument, Justice Scalia ripped a lawyer for thinking the Fourteenth Amendment was designed to protect minority rights against a white majority. As Scalia notes, “that was the argument in the early years…. But I thought we rejected that.” Leave it to Justice Scalia to point out that no one makes decisions based on the publicly known original intent of the drafters of constitutional provisions from 150 years ago. That would just be silly. Now, if we’re talking 200 years ago… [Josh Blackman's Blog]

* A Texas judge is reprimanded for trying to pull strings for a friend. Unfortunately, it seems like he’s also really bad at pulling strings. [Legal Juice]

* Mitchell Silberberg & Knupp has started a fashion industry law blog. Ooh Law Law. Oh, I see what you did there. [Ooh Law Law]

* Judge Posner, who authored the decision that framed the entire voter ID debate by casting doubt that the laws could be used to disenfranchise voters, tells HuffPo Live’s Mike Sacks that he was completely wrong. Judge Posner explains that events have confirmed that voter ID laws are really all about disenfranchising poor and minority voters. Ever the empiricist that Posner guy. Full video after the jump… [New York Times]

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