His argument, as i interpret it, is the court cannot avoid making normative judgments about whether practices demean or humility humiliate or reduce people of a status of inferior caste, in violation of the sovereigns duty to govern impartially. In fact, cases have not delineated three or even one or two defined standards. Rather they recite that continuing of continuum of judgment responses. What is the best argument for 2 . That was the best answer before craig given by the Supreme Court. What were the two spheres of standards . Familiar strict scrutiny or fundamental right or deferential scrutiny when there was no such classification in play. We should remember it was a forced decision in dandridge and rodriguez, articulating 2 tiers that prompted Justice Marshall against rigid to tier analysis. What is the best argument for three . That is the best answer, given by the Supreme Court in crank. Where is the third standard intermediate standard for genderbased classifications. I will go through that particular formulations. In Mississippi University for women versus hogan, the court reaffirmed this. I also used the formulation exceedingly persuasive justification. The best argument for 4 . That is the best argument in cleburne. I articulated now we will move to the right side of the diagram. 4 is the best answer is of labor in, but that is not the official given by the Supreme Court. What is the unofficial standard . Rational basis scrutiny exemplified by williamson. What is what does it consist of . A searching inquiry into sit between ends and means. That is simply deferring williamson file to governmental objectives as questionably legitimate. Best are not legitimate. We see this approach similarly in cases like others in validating allies against children with disabilities. Or to protect gays and lesbians against discrimination. Of course in windsor, a playing careful consideration to the defense of marriage act and in validating it. The courts opinion in Cleburne CountyJustice Stevens to concur an elaborate his argument that there is only one equal protection clause. What is the best argument for five . 1995, it is not the answer given by the Supreme Court officially. The court held straight scrutiny applied to racial classifications and affirmative action programs. The official fifth standard strict scrutiny for racebased classifications have been said in to be strict in theory and frail in fact. Justice oconnors opinion, officially applied strict scrutiny. But she was at pains to dispel the notion that strict in theory and fail in fact. Shes a strict scrutiny is not strict in theory but frail in fact. She says the unhappy of persistence of the lingering effects of Racial Discrimination against minority groups is an is no reality and government is not disqualified from your buns to it. In response to it. She rested since ratchets it downwards. She indicated that her words were vindicated. She reiterated that strict scrutiny is not strict in theory and frail in fact. She added, although all of her mental subject to scrutiny not all are invalidated by it. Justice oconnors opinion improved upon chief justice rehnquist, and kennedy, scalia, and thomas to protest that the court abandoned strict scrutiny. When it comes to affirmative action, they won its scrutiny to be automatically fatal in fact arguably, the court was squeezing at squeezing out. Fisher, the most recent affirmative action decision, is at pains to make clear that even if strict scrutiny is not fatal in fact, it is not to be feeble in fact. They tried to toughen it up a bit. What is the best argument for six . United states versus virginia. The court held that the exclusion of women violated the equal protection clause. What is the unofficial sixth standard . The same intermediate scrutiny standard to genderbased classification that the court established in crank and affirmed in hogan. Justice ginsburg picks up on the phrase exceedingly persuasive justification from Justice Oconnors opinion in open. Hogan. It may sound slightly stricter than intermediate scrutiny. This prompted Justice Scalia in dissent that they were playing strict scrutiny. In usd virginia, scalia suspects under the guise of a playing intermediate scrutiny. In a similar vein, they understand it is not the failure of the equal rights amendment. So what is the best argument for all of the above . There is an argument for each of the above. What is the best argument for none of the above . That amounts to the same as all of the above. What does this pedagogic exercise teaches about equal protection clause and the future of antidiscrimination law . Here are some searches. That equal protection jurisprudence is a mess. That Justice Stevens was right after all there is only one equal protection clause with a continuum of judgmental response like represented on the table instead of three clearly defined standards. Perhaps the lesson is that Justice Marshall was right after all, there is this estimate standards instead of two or three rigid tiers. I conclude by stating that both this exercise, i believe indicates that both Justice Stevens and marshall were right after all. There is only one equal protection clause with a continuum of judgmental responses or spectrum of standards. And that the court cannot avoid making normative judgments about what practices demean or humiliate or reduce people to the status of an inferior race are cast, whether through developing tiers of scrutiny and framing to apply them automatically to decide cases or through claiming to be discovering and enforcing meaning of the equal protection clause. Thank you. [applause] ok. I think my topic is probably the most out of their there. In terms of not carrying as much of existing laws. Affirmative action is in trouble. It is its legitimacy is threatened. There are deep divisions in the court that in your divisions among the citizenry you are increasingly skeptical about race conscious actions. The conventional view is that there are two ways of looking at antidiscrimination law, formal versus substantive equality. The tide has turned politically and culturally, and that the formal Equality Forces are winning. I think that although this explanation has some force, it is only partial. The truth is that in the real world and in our own social science and legal understandings , things have changed in ways that matter to how we practice and defend affirmative action. Im going to try to do this quickly. Historically there have in three different rationales for affirmative action. Each of which correspond to a larger theory of antidiscrimination law. Each of them developed historically in relation to the other. So that the perceived shortcomings of one give birth to a new understanding. What i will argue today is that from the perceived limits of the prior approach, the diversity model, a new kind of understanding and rationale or affirmative action is emerging. To preview the argument, earlier rationales treat race and sexbased difference as a characteristic of individuals or groups. That is relatively static and exogenous to or persons are Higher Education institutions. The new approach sees difference is something that is partly illusory, partly real, that is constantly created and recreated contextually through institutional processes that actually divide people into different groups and mark some of them as different and out of place to their detriment. There is a lot of social science research, but this new framework and i wont have time to go through it all, but i will just telegraph it later. Let me see how quickly i can do this. What should be familiar is the first, i call in partiality. Most people would refer to it as color by list colorblindness. I will draw a couple of features that have been overlooked in the literature. Obviously, this is the part that is there in the literature, unless the concept of impartiality is understood very broadly, to include reading selection processes of hitting forms of bias inside of favoritism that have severe racial and gender affect affirmative action programs will inevitably be viewed as violating impartiality. By definition they take race or sex into account in a way that slides in the face of a narrow construction of what impartiality means. For this reason, even though liberals historically have conceded that to practice race conscious hiring is a technical violation of title vii. Here i would cite justice brennans opinion. What is the point that i want to make that has not been made . Today, we have basically only to persons of impartiality that are on the horizon of their in law land. One is the scalia version that any use of race is by definition tantamount to the old jim crow and indefensible. The second is a compromise approach by Justice Oconnor and carried forward by the moderate wing that grudgingly approved carefully crafted programs that take race or sex into account but only where there is evidence suggesting the existence of present systemic discrimination. I have an analysis in the paper about how the constitutional standard of proof of title vii violations actually means state and local governments who practice affirmative action are required to show systemic treatment. That is a pretty narrow construction of the factual basis. Why has the court moved in this direction to be so narrow . Here is the key point. Contrary to what we think of when we hear of term like impartiality, this approach is starkly and today, assumes historically and today, assumes there are static differences between racial and ethnic groups, and between males and females that are exogenous. Nothing to do with how workplaces operate and how Higher Educational institutions operate. They are just out there, attributable to nature, or early upbringing. Things that are deeply embedded within individuals that there they are almost impervious to change. There is lots of evidence that the court links impartiality to this assumption of exogenous difference. Justice scalias dissent and johnson versus santa clara county, where the Court Upholds the validity of affirmative action for women that takes sex into account in a very weak way where there were zero women insert in physically or county. Today you might think scalia is in dissent, big deal. But fastforward years later and you get a majority of the court accepting the same reasoning, writing off the virtual absence of African Americans and other minorities among Construction Contractors in richmond. This is a quote. Not necessarily reflecting discrimination, but may have reflected past societal discrimination in education and economic opportunities, as well as blackandwhite career and entrepreneurial choice here it. Blacks may be disparate disproportionately attracted to industries other than construction. This is a good example of exogenous difference. Blacks are born or raised with a set of different preferences. The key point here is that the increasing judicial turned toward narrow understanding of impartiality is grounded in judicial acceptance of a very controversial set of assumptions about the nature and source of difference. Those two things have gone handinhand. Lawyers knew from the beginning that this was going to be a problem. The earliest cases raised these defenses. Early on, lawyers and judges and activists crafted a second theory, which i call the perpetuation of past discrimination theories. This is most familiar, the mainstream interpretation of disparate impact. The basic idea is that an institution cannot use practices that serve to Carry Forward in time and space. Discrimination by another closely linked institution. It is a complex theory of causation that the way institutions work can reproduce discrimination over time. Steelworkers versus weber is a really good illustration of this. The court upheld a quota of their use of numerical goals that admitted black trainees into a Training Program ahead of whites and articulated standard much lower than the proof standard which allows employers to take into account that that historic discrimination in Skilled Trades has left black scenario literally less skills. They did not have the trade skills. So it was ok for the Aluminum Company to address the deficit. That all sounds good right . The criticism that emerges is that it stigmatizes minorities by focusing on the deficits. The cumulative disadvantage is that develop over time. Instead, we should be focusing on the criteria by which marriage is determined. This gives birth to the most familiar of all concepts of affirmative action. Diversity. I wont have a lot to say about it. I think it is a shining example of diversity reasoning. The basic idea is to make sure institutions rotting traditional norms to incorporate brought in traditional norms to incorporate and accommodate experiences of different groups. Note that this model like his conservative cousin, assumes exogenous difference. Men and women are different. Lax and whites are different. We need all of them because we need the viewpoint they represent. Having everybody and is going to enhance the institution. It also is picked up by feminists in the 1980s to make arguments for promoting womens inclusion, that were based on fairly exogenous assumptions about where the commitment to care on behalf of women comes from. It has nothing to do with the workplace. So therefore employers should accommodate it here it all of these models fostered progress initially. Certainly diversity days. But there has developed a serious deep critique of diversity that is a precursor giving birth to the new understanding of affirmative action. Quickly, the critique is that first of all, the acceptance of exogenous differences between groups promote stereotypes. And it obscures differences within the group and also obscures similarities between groups. If we say, women as a group are asked x, by definition that statement is fraught with the risk of discrimination. Stereotypes. We are promoting stereotyping and segregation, arguably. The other criticism is that, in describing these groups in terms of average tendencies, and attributing differences to places outside the institution that is being examined, we are letting institutions being examined off the hook. It is easy to say, well the university did not discriminate. They are not responsible for the fact that some may come to the table with qualifications that look less than others. In fact, the perspective from the new point of view is that it we were to dig deeper, we might find all sorts of ways in which in the hallways and classrooms, the way professors relate to students, groups really was each other universities do create deep racial divisions and sexbased divisions among the student body and that has feedback loops throughout society. In a nutshell, that is the critique. What is the new thing about . The new things these affirmative action as a tool for identifying and interrupting the institutional processes that foster group based difference that harm certain people. There is a lot of bodies in social science that would support this idea. Probably the most familiar to most of you would be research on stereotype. Which shows the way in which people were actually equally qualified can be put in an environment in which the context will see something within them that actually makes them from less well than they would in another context. This is been replicated in scores of studies. It applies not just to members of traditionally disadvantaged groups like women on difficult math tests were example. If you tell them nothing, they wont do as well as the men. If you remove the stereotype threat by saying, most of the time women dont do as well as men, but that is not true of this test, this course will equalize. The same with white men playing basketball against black men. Etc. What would it mean to try to disrupt these processes of different creations . I would have to refer to a lot of the social science literature. Let me give you a few examples. First of all, the rationale for affirmative action changes it is now no longer a racial preference given to somebody. Either to create a racial spoils system has conservatives think or compensate for past discriminations nor is it a way of broadening institutions that everybodys unique point is representative. Now the purpose of affirmative action is to allow enough people in to challenge and sensor and rake down the stereotypes break down the stereotypes about their group. That is a very different understanding. I can say much more about other cases that would support this, but i wont right now. How would this make a difference . A couple of examples. Critical mass. A very amorphous concept. Contexts, nobody really knows what it means. The research that was would support such an understanding of affirmative action would give us an answer to that. The answer to how many people have to be admitted, would be enough people to break down the stereotypes. And inviting people into groups that would occur in institutions. Or some group, there will never be enough and that is a big problem. But at least we would start from the Vantage Point of social science that would give us a definite answer. Secondly, we can reframe cases that are very problematic. Like the Public Employment cases where a Police Department hired a certain number of minority officers. There are really problematic rationales to support that. Here the rationale he change away from the notion that somehow just having officers of a certain race will provide a role model and promote more respect and tweak that officer in the larger community, instead it would be that if you have a month enough officers of a particular race, they will change the white officers and begin to see minority officers differently. As a result, they may relate to members of the community differently. The focus is not the Community Versus minority officers, it is on changing the minds of the whites. One thing i will not have a chance to talk about, is the research on social categorization, which is about the processes through which we please people into groups to begin with. You look at a case like and hopkins and hop