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AMERICAN HERITAGE SCHOLARSHIP SERIES

AMERICAN HERITAGE SCHOLARSHIP SERIES. Topic: “Affirmative Action Admissions Programs in publicly funded institutions of higher education (colleges/universities)” Speaker: William Broderick-Villa Attorney with Curtis Legal Group September 25, 2013. William Broderick-Villa Curtis Legal Group

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AMERICAN HERITAGE SCHOLARSHIP SERIES

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  1. AMERICAN HERITAGE SCHOLARSHIP SERIES Topic: “Affirmative Action Admissions Programs in publicly funded institutions of higher education (colleges/universities)” Speaker: William Broderick-Villa Attorney with Curtis Legal Group September 25, 2013

  2. William Broderick-Villa Curtis Legal Group 209-521-1800 1300 K Street Modesto, CA 95354 WBroderick-Villa@CurtisLegalGroup.com Curtis Legal Group attorney William Broderick-Villa received his Juris Doctor from Georgetown University Law Center in Washington DC, where he served as the President of the Student Bar Association. During law school, Mr. Broderick-Villa interned for the Court of Appeals of Maryland (Maryland’s equivalent of California’s Supreme Court) for Judge Sally Adkins. Mr. Broderick-Villa received his Bachelor’s degree from the University of Southern California (USC). Prior to law school Mr. Broderick-Villa was a high school teacher at Waterford High School where he taught primarily Math but also History and Academic Decathlon and served as the Academic Decathlon coach. Mr. Broderick-Villa is involved in education and serves or has served on several education boards including the Ag In Motion Board and the American Heritage Scholarship Committee. Prior to law school William was also involved in local politics. He served first on the Waterford City Council and then as the Mayor of Waterford.

  3. Opening(Right Hand/Left Hand warm up) • Plan to attend college? • Any Giants baseball fans? • Any A’s baseball fans? • Any right handed people? • Any Cricket fans? • Opposed to discrimination?

  4. Outline • I. The Fourteenth Amendment in 14 minutes • II. Higher Education • III. Diversity as a Virtue • IV. Group Identity • V. Apples, Oranges, and Common Metrics • VI. Affirmative Action Cases, Summary of Arguments • VII. Materials/Questions/Thanks

  5. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Fourteenth Amendment to the Constitution, Section 1.

  6. Citizenship Clause Privileges or Immunities Clause Due Process Clause Equal Protection Clause "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.“ Fourteenth Amendment to the Constitution, Section 1.

  7. Citizenship Clause Privileges or Immunities Clause Due Process Clause Equal Protection Clause "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.“ Fourteenth Amendment to the Constitution, Section 1. Tonight’s Topic

  8. Equal Protection Clause Sounds good. How equal is equal? “There is no such thing as a law that treats everyone the same. Every law discriminates.” --Viet Dinh Speeding laws… Attorney licensing act… Probate Code… Cigarette Tax… Minor laws (carding, voting, contracts, etc)… MICRA… Medical Injury Compensation Reform Act (1975)

  9. dis·crim·i·nate \dis-kri-mə-nāt\ dis·crim·i·nat·eddis·crim·i·nat·ing "Discriminate." Merriam-Webster.com. Merriam-Webster, n.d. Web. 10 Sept. 2013. <http://www.merriam-webster.com/dictionary/discriminate>. Definition of transitive verb 1 a: to mark or perceive the distinguishing or peculiar features of b: distinguish, differentiate <discriminate hundreds of colors> 2 a: to distinguish by discerning or exposing differences; especially : to distinguish from another like object intransitive verb 1 a: to make a distinction <discriminate among historical sources> b: to use good judgment 2 a: to make a difference in treatment or favor on a basis other than individual merit <discriminate in favor of your friends> <discriminate against a certain nationality>

  10. Equal Protection Clause Sounds good. How equal is equal? “All animals are equal, but some animals are more equal than others.”  --George Orwell, Animal Farm

  11. Three (unequal) levels of “equal protection.” Applies to Laws: … affecting fundamental right (enumerated right); … burdening discrete and insular minority; religious; national; racial; alienage. Often called “suspect classification” Applies to Laws: … relating to sex/gender; legitimacy Default rule: Applies to all other groups. • Strict Scrutiny • Intermediate Scrutiny (“Heightened Scrutiny”) • Rational Basis

  12. Three (unequal) levels of “equal protection.” Requires compelling governmental interest; Law must be narrowly tailored (i.e. least restrictive means) to achieve that interest; Law presumed invalid; burden on government Requires important governmental interest; Law must be substantially related to that interest; Law presumed invalid; b.o.p. on government Requires only legitimate governmental interest; Law must be rationally related to that interest Law presumed valid; b.o.p. on challenger • Strict Scrutiny • Intermediate Scrutiny (“Heightened Scrutiny”) • Rational Basis

  13. How did this tripartite system of Equal Protection evolve? ?

  14. 1789Constitution 1791 Bill of Rights 1833 Barron v. Baltimore, 32 U.S. 243 (1833) 1857 Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861 Civil War Begins (ends in 1865) 1863 Emancipation Proclamation 1865 Lincoln Assassinated; 13th Amendment Ratified 1868 14th Amendment 1873 Slaughter-House Cases, 83 U.S. 36 (1873) 1896 Plessy v. Ferguson, 163 U.S. 537 (1896) 1905 Lochner v. New York, 198 U.S. 45 1938 US v. Carolene Products Co., 304 U.S. 144 (1938) 1954 Brown v. Board of Education, 347 U.S. 483 (1954)

  15. 1789Constitution 1791 Bill of Rights 1833 Barron v. Baltimore, 32 U.S. 243 (1833) 1857 Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861 Civil War Begins (ends in 1865) 1863 Emancipation Proclamation 1865 Lincoln Assassinated; 13th Amendment Ratified 1868 14th Amendment 1873 Slaughter-House Cases, 83 U.S. 36 (1873) 1896 Plessy v. Ferguson, 163 U.S. 537 (1896) 1905 Lochner v. New York, 198 U.S. 45 1938 US v. Carolene Products Co., 304 U.S. 144 (1938) 1954 Brown v. Board of Education, 347 U.S. 483 (1954)

  16. 1789Constitution 1791 Bill of Rights 1833 Barron v. Baltimore, 32 U.S. 243 (1833) 1857 Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861 Civil War Begins (ends in 1865) 1863 Emancipation Proclamation 1865 Lincoln Assassinated; 13th Amendment Ratified 1868 14th Amendment 1873 Slaughter-House Cases, 83 U.S. 36 (1873) 1896 Plessy v. Ferguson, 163 U.S. 537 (1896) 1905 Lochner v. New York, 198 U.S. 45 1938 US v. Carolene Products Co., 304 U.S. 144 (1938) 1954 Brown v. Board of Education, 347 U.S. 483 (1954) Chief Justice John Marshall held that the first ten “amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them.” Barron v. Baltimore, 32 U.S. 243, 250.

  17. 1789Constitution 1791 Bill of Rights 1833 Barron v. Baltimore, 32 U.S. 243 (1833) 1857 Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861 Civil War Begins (ends in 1865) 1863 Emancipation Proclamation 1865 Lincoln Assassinated; 13th Amendment Ratified 1868 14th Amendment 1873 Slaughter-House Cases, 83 U.S. 36 (1873) 1896 Plessy v. Ferguson, 163 U.S. 537 (1896) 1905 Lochner v. New York, 198 U.S. 45 1938 US v. Carolene Products Co., 304 U.S. 144 (1938) 1954 Brown v. Board of Education, 347 U.S. 483 (1954)

  18. 1789Constitution 1791 Bill of Rights 1833 Barron v. Baltimore, 32 U.S. 243 (1833) 1857 Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861 Civil War Begins (ends in 1865) 1863 Emancipation Proclamation 1865 Lincoln Assassinated; 13th Amendment Ratified 1868 14th Amendment 1873 Slaughter-House Cases, 83 U.S. 36 (1873) 1896 Plessy v. Ferguson, 163 U.S. 537 (1896) 1905 Lochner v. New York, 198 U.S. 45 1938 US v. Carolene Products Co., 304 U.S. 144 (1938) 1954 Brown v. Board of Education, 347 U.S. 483 (1954)

  19. 1789Constitution 1791 Bill of Rights 1833 Barron v. Baltimore, 32 U.S. 243 (1833) 1857 Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861 Civil War Begins (ends in 1865) 1863 Emancipation Proclamation 1865 Lincoln Assassinated; 13th Amendment Ratified 1868 14th Amendment 1873 Slaughter-House Cases, 83 U.S. 36 (1873) 1896 Plessy v. Ferguson, 163 U.S. 537 (1896) 1905 Lochner v. New York, 198 U.S. 45 1938 US v. Carolene Products Co., 304 U.S. 144 (1938) 1954 Brown v. Board of Education, 347 U.S. 483 (1954)

  20. 1789Constitution 1791 Bill of Rights 1833 Barron v. Baltimore, 32 U.S. 243 (1833) 1857 Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861 Civil War Begins (ends in 1865) 1863 Emancipation Proclamation 1865 Lincoln Assassinated; 13th Amendment Ratified 1868 14th Amendment 1873 Slaughter-House Cases, 83 U.S. 36 (1873) 1896 Plessy v. Ferguson, 163 U.S. 537 (1896) 1905 Lochner v. New York, 198 U.S. 45 1938 US v. Carolene Products Co., 304 U.S. 144 (1938) 1954 Brown v. Board of Education, 347 U.S. 483 (1954)

  21. 1789Constitution 1791 Bill of Rights 1833 Barron v. Baltimore, 32 U.S. 243 (1833) 1857 Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861 Civil War Begins (ends in 1865) 1863 Emancipation Proclamation 1865 Lincoln Assassinated; 13th Amendment Ratified 1868 14th Amendment 1873 Slaughter-House Cases, 83 U.S. 36 (1873) 1896 Plessy v. Ferguson, 163 U.S. 537 (1896) 1905 Lochner v. New York, 198 U.S. 45 1938 US v. Carolene Products Co., 304 U.S. 144 (1938) 1954 Brown v. Board of Education, 347 U.S. 483 (1954) • Citizenship Clause • Privileges or Immunities Clause • Due Process Clause • Equal Protection Clause

  22. 1789Constitution 1791 Bill of Rights 1833 Barron v. Baltimore, 32 U.S. 243 (1833) 1857 Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861 Civil War Begins (ends in 1865) 1863 Emancipation Proclamation 1865 Lincoln Assassinated; 13th Amendment Ratified 1868 14th Amendment 1873 Slaughter-House Cases, 83 U.S. 36 (1873) 1896 Plessy v. Ferguson, 163 U.S. 537 (1896) 1905 Lochner v. New York, 198 U.S. 45 1938 US v. Carolene Products Co., 304 U.S. 144 (1938) 1954 Brown v. Board of Education, 347 U.S. 483 (1954) Justice Samuel Miller Justice Stephen Field

  23. California Trivia (not on test) David Broderick (no relation) U.S. Senator from California Free Soil Democrat Death in 1859 at the hands of California Chief Justice tipped the state towards joining the Civil War on behalf of the Union Died in San Francisco Justice Stephen Field First Californian on U.S. Supreme Court Formerly the 5th Chief Justice of California Supreme Court Appointed by Lincoln His body guard shot and killed California’s 4th Chief Justice, David S. Terry, in Lathrop, in 1889 In re Neagle Chief Justice David S. Terry The 4th Chief Justice of California Supreme Court Buried in Stockton Pro-slavery Democrat Shot and killed his former friend / turned political rival, U.S. Senator David Broderick

  24. 1789Constitution 1791 Bill of Rights 1833 Barron v. Baltimore, 32 U.S. 243 (1833) 1857 Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861 Civil War Begins (ends in 1865) 1863 Emancipation Proclamation 1865 Lincoln Assassinated; 13th Amendment Ratified 1868 14th Amendment 1873 Slaughter-House Cases, 83 U.S. 36 (1873) 1896 Plessy v. Ferguson, 163 U.S. 537 (1896) 1905 Lochner v. New York, 198 U.S. 45 1938 US v. Carolene Products Co., 304 U.S. 144 (1938) 1954 Brown v. Board of Education, 347 U.S. 483 (1954)

  25. Citizenship Clause Privileges or Immunities Clause Due Process Clause Equal Protection Clause "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.“ Fourteenth Amendment to the Constitution, Section 1. Slaughtered by Slaughterhouse Five Replaced by “Separate but Equal” farce in Plessy v. Ferguson

  26. 1789Constitution 1791 Bill of Rights 1833 Barron v. Baltimore, 32 U.S. 243 (1833) 1857 Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861 Civil War Begins (ends in 1865) 1863 Emancipation Proclamation 1865 Lincoln Assassinated; 13th Amendment Ratified 1868 14th Amendment 1873 Slaughter-House Cases, 83 U.S. 36 (1873) 1896 Plessy v. Ferguson, 163 U.S. 537 (1896) 1905 Lochner v. New York, 198 U.S. 45 1938 US v. Carolene Products Co., 304 U.S. 144 (1938) 1954 Brown v. Board of Education, 347 U.S. 483 (1954)

  27. 1789Constitution 1791 Bill of Rights 1833 Barron v. Baltimore, 32 U.S. 243 (1833) 1857 Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861 Civil War Begins (ends in 1865) 1863 Emancipation Proclamation 1865 Lincoln Assassinated; 13th Amendment Ratified 1868 14th Amendment 1873 Slaughter-House Cases, 83 U.S. 36 (1873) 1896 Plessy v. Ferguson, 163 U.S. 537 (1896) 1905 Lochner v. New York, 198 U.S. 45 1938 US v. Carolene Products Co., 304 U.S. 144 (1938) 1954 Brown v. Board of Education, 347 U.S. 483 (1954)

  28. 1938 US v. Carolene Products Co., 304 U.S. 144 (1938) U.S. Supreme Court upholds the constitutionality of The Filled Milk Act, 42 Stat. 1486, which Congress passed in 1923 to regulate certain dairy products. Decision signals end of Lochner era scrutiny as applied to economic regulations. FOOTNOTE 4: Carolene Products is most famous for FN 4, which sets forth a framework for varying levels of Equal Protection analysis and scrutiny (i.e. strict scutiny for laws affecting discrete and insular minorities, or infringing on fundamental rights) that has been adopted by the Court and is still used today. The most famous footnote in Supreme Court history, FN 4 has been the subject of numerous scholarly journals and cited in many court decisions since 1938 (you can even Google “Footnote 4”).

  29. 1789Constitution 1791 Bill of Rights 1833 Barron v. Baltimore, 32 U.S. 243 (1833) 1857 Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861 Civil War Begins (ends in 1865) 1863 Emancipation Proclamation 1865 Lincoln Assassinated; 13th Amendment Ratified 1868 14th Amendment 1873 Slaughter-House Cases, 83 U.S. 36 (1873) 1896 Plessy v. Ferguson, 163 U.S. 537 (1896) 1905 Lochner v. New York, 198 U.S. 45 1938 US v. Carolene Products Co., 304 U.S. 144 (1938) 1954 Brown v. Board of Education, 347 U.S. 483 (1954)

  30. California Trivia (not on test) Succeeded as Chief Justice of the United States by Warren Earl Burger, 15th U.S. Chief Justice (no relation) Chief Justice of the United States Earl Warren First Californian to become Chief Justice of the United States (14th U.S. Chief Justice) Formerly the 30th Governor of California Wrote Brown v. Board of Education, 9-0 opinion

  31. 1789Constitution 1791 Bill of Rights 1833 Barron v. Baltimore, 32 U.S. 243 (1833) 1857 Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861 Civil War Begins (ends in 1865) 1863 Emancipation Proclamation 1865 Lincoln Assassinated; 13th Amendment Ratified 1868 14th Amendment 1873 Slaughter-House Cases, 83 U.S. 36 (1873) 1896 Plessy v. Ferguson, 163 U.S. 537 (1896) 1905 Lochner v. New York, 198 U.S. 45 1938 US v. Carolene Products Co., 304 U.S. 144 (1938) 1954 Brown v. Board of Education, 347 U.S. 483 (1954)

  32. 1789Constitution 1791 Bill of Rights 1833 Barron v. Baltimore, 32 U.S. 243 (1833) 1857 Dred Scott v. Sandford, 60 U.S. 393 (1857) 1861 Civil War Begins (ends in 1865) 1863 Emancipation Proclamation 1865 Lincoln Assassinated; 13th Amendment Ratified 1868 14th Amendment 1873 Slaughter-House Cases, 83 U.S. 36 (1873) 1896 Plessy v. Ferguson, 163 U.S. 537 (1896) 1905 Lochner v. New York, 198 U.S. 45 1938 US v. Carolene Products Co., 304 U.S. 144 (1938) 1954 Brown v. Board of Education, 347 U.S. 483 (1954)

  33. Question: Why are the following framed in the negative? 15th Amendment:The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. 19th Amendment: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex…. 24th Amendment: The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be deniedor abridged by the United States or any State by reason of failure to pay any poll tax or other tax. 26th Amendment:The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be deniedor abridged by the United States or by any State on account of age.

  34. 14 minutes?

  35. II. Higher Education • Education Important to founding of Nation, even prior to Constitution (written 1787, ratified 1789) • Continental Congress: Land Ordinance of 1785 • One square mile of every 36 set aside for education (Section 16) • 2.78% education set-aside Each section 640 acres, or 1 mile square

  36. Alexis de Tocqueville By 1830s, de Tocqueville wrote a friend in Paris that “[t]he effort made in this country to spread instruction is truly prodigious. The universal and sincere faith that they profess here in the efficaciousness of education seems to me one of the most remarkable features of America…”

  37. Source: The College Payoff.  Georgetown University Center on Education and the Workforce (CEW), Carnervale/Cheah/Rose, 2011 http://cew.georgetown.edu/collegepayoff/

  38. Beware!!! • The “My uncle / my cousin” fallacy Rich Uncle Dropout Poor Cousin Booksmarts Ergo, statistics lie and college is a waste of time Q.E.D.

  39. $3,648,000 $2,268,000 $3,252,000 $2,671,000 $1,727,000 $1,547,000 $1,304,000 $973,000 Source: The College Payoff.  Georgetown University Center on Education and the Workforce (CEW), Carnervale/Cheah/Rose, 2011 http://cew.georgetown.edu/collegepayoff/

  40. My uncle My cousin Source: The College Payoff.  Georgetown University Center on Education and the Workforce (CEW), Carnervale/Cheah/Rose, 2011 http://cew.georgetown.edu/collegepayoff/

  41. Source: The College Payoff.  Georgetown University Center on Education and the Workforce (CEW), Carnervale/Cheah/Rose, 2011 http://cew.georgetown.edu/collegepayoff/

  42. Things to consider… • College spaces are limited • Those with college degrees on average earn more than those without • Publicly funded institutions of higher education are strapped for cash, and must decide whom to admit and whom to reject • How should society allocate such a valuable resource? • If certain groups are underrepresented, should society intervene?

  43. Dr. Abbott Lawrence Lowell, President of Harvard 1909-1933 • History of explicit racism • Dr. Lowell tried to limit Jewish enrollment • Tried to prohibit African American students from living in Freshman dorms (otherwise mandatory at Harvard) • Successfully implemented modern testing and applications system still in use today (See Justice Thomas’ critique in Supreme Court decisions and suggested documents on Curtis Legal Group website) See article: The Chosen:  The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton.  Article by Jerome Karabel.  Excerpt from Higher Education and the Law, 588-91, Foundation Press, Areen, 2009 Curtis Legal Group website

  44. Today colleges celebrate diversity…

  45. …and being outdoors.

  46. III. Diversity as a Virtue Trustees have a fiduciary duty to diversify. • California Probate Code § 16048. In making and implementing investment decisions, the trustee has a duty to diversify the investments of the trust unless, under the circumstances, it is prudent not to do so.

  47. Crops lacking diversification are susceptible to disease. Irish Potato Famine 1845-1852 exacerbated by overreliance on one variety of potato, the Irish Lumper varietal

  48. Ancient Romans valued uniformity and pragmatism. So why are brick arches embedded within flat walls? Value of diversity in Roman architecture?

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