Thoughts on Evan Kaufmann, Terrence Cody and Memory

This past Sunday, the New York Times' Sports section featured a story about Evan Kaufmann, an American-born hockey player who plays for the German national team.  This is a gripping story and a must-read.  For me, it connects to an issue that I've been thinking about for quite some time about the uneasy relationship between Black high school athletes and major college sports.  The question is one of historical memory: How do we choose to remember, and why do we sometimes choose to forget?  More importantly, do we have a  responsibility as individuals to honor these memories, whatever they may be, and to live our lives accordingly?

For here's the thing: Evan Kaufmann is an American Jew, playing in Germany and for the German national team because, according to the Times, this is "his best pro opportunity to play hockey."  Should Kaufmann have the right to do that?

This is not the easiest of questions.

What Will Kennedy Do in the Texas Affirmative Action Case?

The Supreme Court has agreed to hear an affirmative action case that challenges the affirmative action program administered by the University of Texas.  Many commentators think that this case signals the end of affirmative action.  Afterall, why would the Court take this case if not to overturn its 2003 decision in Grutter v. Bollinger? For those despairing about this case, I want to make the case for some cautious optimism.  I also want to present a more nuanced analysis than the analysis that I'm seeing on some of the blogs and in the media.

First, it takes four Justices on the Court to grant cert, but it will take five Justices to overturn the judgment of the court below, a panel of the 5th Circuit Court of Appeals, which upheld the constitutionality of the Texas affirmative action program.  (By the way, the author of the 5th Circuit opinion is the conservative judge Patrick Higginbotham, who wrote a very strong and careful opinion upholding the Texas plan.) I don't know which Justices voted to take the case, but there are easily four Justices who would vote to strike down the program and maybe even reverse the Court's decision in Grutter.  Chief Justice Roberts, Justices Scalia, Thomas and Alito are all good bets to both strike down the program and find that the constitution does not allow raceconscious decisionmaking by state actors.  So this leaves Justice Kennedy.

Second, Justice Kennedy's views on race is more nuanced than the commentators are giving him credit for.  Unlike his fellow compatriots on the right, especially Justices Scalia and Thomas, and maybe even the Chief, Justice Kennedy does believe that the government can take race into account as long as the government does so in a manner that is consistent with the Constitution.  Even in his dissent in Grutter, Justice Kennedy cited Justice Powell's Bakke opinion approvingly for the "principle that a university admissions program may take account of race as one, nonpredominant factor in a system designed to consider each applicant as an individual." He closed his opinion in Grutter and by "reiterat[ing] [his] approval to giving appropriate consideration to race in this one context." More pointedly, in the Parents Involved case, Justice Kennedy stated explicitly, "Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue."  This means that as a matter of principle, Justice Kennedy agrees with the diversity rationale.  This is why commentators who fail to distinguish between Justice Kennedy and the other conservative Justices are making a mistake.

Third, unlike the other Justices on the right, Justice Kennedy has consistently expressed solicitude for the circumstances in which folks of color find themselves. In Grutter, he cited approvingly, "the Court's important holding allowing racial minorities to have their special circumstances considered in order to improve their educational opportunities."  Justice Kennedy expanded upon this theme in his concurrence in Parents Involved.  In that case, he made the argument that even though we aspire to live in a colorblind world, the reality is that race continues to matter.  Along with Justice O'Connor's opinion in Grutter, Justice Kennedy's concurrence in Parents Involved is the most sophisticated attempt by a conservative Justice to to reconcile conservative ideology with a view of the constitution that takes into account the equality concerns of Americans of color.

Fourth, and this is where the rubber meets the road, Justice Kennedy has a narrow view of the types of governmental programs that can use race consistent with the Constitution. In he disapproved of the University of Michigan Law School's affirmative action program in Grutter because the thought that race played too big of a role in the admissions process.  He thought the Michigan Law School's program was the equivalent of a quota.  He disapproved of the programs in the Parents Involved case because neither Seattle nor Louisville, according to Justice Kennedy, fully explained the manner in which they took race into account  He did not think they used race as one consideration among many other considerations.  He wrote that "Race may be one component of . . . diversity, but other demographic factors, plus special talents and needs, should also be considered."  What he objected to is "Assigning to each student a personal designation according to a crude system of individual racial classification."    He encouraged government actors to use "race-neutral means first  and "if necessary" they can use "a more nuanced, individual evaluation of school needs and students characteristics that might include race as a component."

Fifth, this two-tiered approach, first use race-neutral means and then use a more limited race conscious approach that makes a narrow use of race, is precisely the Texas program.  Texas first employed its Ten Percent Plan, pursuant to which 10% of high school graduates are automatically admitted to the University of Texas.  The University then conducted a study and determined that the Ten Percent Plan did not yield sufficient diversity.  According to the 5th Circuit's opinion, "After more than a year of study . . .,  [the University of Texas] adopted a policy to include race as one of many factors considered in admissions."  That policy authorized the University to take race into account with respect to the pool of applicants that were not admitted to UT under the Ten Percent Plan (it is that policy that the plaintiffs challenge in the case.)  The 5th Circuit also found that UT does not engage in a racial quota, does not keep an ongoing tally of admits by race, does not try to mirror the state's racial demographics, and applicants of every race, including white students, can make the case that their race will contribute to the diversity of the school.

It is not inconceivable that Justice Kennedy would vote to affirm the Texas plan.  I would be surprised if Justice Kennedy reversed course and concluded that racial diversity is not a compelling state interest.  I would not be surprised if he decided that the Texas plan however idd not pass constitutional muster.  This would be consistent with what he did with the Michigan case and the Seattle and Louisville cases.  But I also think that the Texas plan coms closest to a narrowly-tailored program that Justice Kennedy described in his prior opinions. Consequently, this plan is tailor made for Justice Kennedy and he might just do the right thing in this case.

Affirmative Action is Back on Center Stage . . . and I Feel . . . Fine?

The Supreme Court granted review today in Fisher v. University of Texas at Austin. The question at the heart of the case is disarmingly simple, even innocent enough: whether the admittedly race-conscious undergraduate admissions program at the University of Texas at Austin meets the exacting demands of the Equal Protection Clause.

A sensible thing to do at this point, I imagine, is to read the lower court opinions, maybe even carefully.  With a clear sense of what the University of Texas-Austin has done, one could then re-read Grutter and try to chart the Supreme Court's expected path.  According to Judge Higginbotham on the 5th Circuit, the University of Texas--Austin is on safe constitutional ground per Grutter.  But is it?

I'd rather think about this case differently.  First and foremost, could the Court possibly overturn its 9-year-old holding in Grutter? Even in the face of the Rule of 4, which requires only 4 votes in order for the Court to accept a case, what other motivation could the justices have to grant review here? The next step is also quite clear: if admonitions from Justices Scalia and Kennedy are accurate indicators, the Court will soon face the constitutionality of Title VII and the Voting Rights Act.  This gets us to the end game: could Fisher be the beginning of the end of the Second Reconstruction?

The Strange yet Unremarkable Case of Jeremy Lin

Stop me if you've heard this story before: A terrific high-school athlete is overlooked during the recruiting process because he does not fit the stereotype of what college athletes are supposed to look like.  He ends up at a terrific college, yet not an athletic powerhouse.  He has a terrific college career, but pro scouts ignore him the same way college coaches ignored him before. He catches on with a pro team, and then another, and then another.  He is not sticking with any one team for long.  And then, almost out of necessity, he gets a chance.  One chance.  One time.  One game.  And he blows it out of the water.  

The story is almost out of central casting, tailor-made for Angelo Pizzo.  For those not paying attention to the world of sports in the last week or so, this also happens to be the story, in a nutshell, of Jeremy Lin, Taiwanese American point guard for the New York Knicks.  How in the world do we explain the fact that a multi-million dollar system designed to scout talent missed as badly as it missed with Jeremy Lin? Here's the cold reality:

"It's the Asian thing," says former NBA player Rex Walters, who's Japanese-American and wound up with [Jesse] Evans' job at [the University of San Francisco]. "People who don't think stereotypes exist are crazy. If he's white, he's either a good shooter or heady. If he's Asian, he's good at math. We're not taking him."

Lin looks like a math major, not a basketball player.  Simple as that.

But make no mistake, this is not a new story. We have seen it a million times.

This is the story of Toby Gerhardt or Brock Forsey, white running backs in a world where running backs happen to be black; or the story of many black quarterbacks in a world where quarterbacks happen to be white.  The argument applies to basketball players and concert pianists, to college professors and football coaches, to welfare recipients and college students.  Stereotypes abound, and they affect our decision-making in ways that we often fail -- or refuse -- to recognize.

Think about what this means for debates over hiring and college admissions.  Close your eyes a moment and think about what a college student is supposed to look like, or better yet, a college professor.   As you do that, try to imagine what happens when a faculty gets together to choose a new colleague, or worse yet, when a faculty gets together to vote on a tenure case.  Even those who have never been privy to one of those meetings have a pretty good idea of what goes on. 

Ask Rex Walters.

Hello I am Spongebob...

...and this is opposite day. When I woke up this morning, I did not expect to see that Rick Santorum had won the caucuses/primaries in Missouri, Minnesota and Colorado yesterday. Even more amazing (at least to me) is that Mitt Romney came in third in Minnesota, a state that he won in 2008 and competed for this year. For Santorum, yesterday’s wins mean that he has changed the narrative about Romney’s frontrunner status, but the Republican primaries also raise interesting questions about the underlying legal regime that serve as a backdrop to these contests.

For example, Romney is extremely well-funded, both as a candidate and through a pro-Romney SuperPAC. He outspent Gingrich 5-1 in Florida, and won the state by 14 percentage points. Many blame this huge influx of money into the Republican primary and the rise of SuperPACs on Citizens United, and there is some truth to that. As we all know, money matters and the more money one can raise, even from corporate donors through unaffiliated, pro-you SuperPACs, the better your chances of winning the election. But Romney lost all three contests yesterday, despite his resources and despite the fact that he had hoped to win Minnesota and had spent money there. He lost to a candidate who is a pauper by comparison. Santorum had limited resources, but he spent time in each state, shaking hands and talking to voters.

So yes, it is certainly true that money in elections matters; that having organization and boots on the ground matter….but I still like to think that yesterday’s contests show that if the voters don’t like you, you won’t win. Although I feel for Romney given that this is his second bite at the apple, I do find it somewhat reassuring that the voters still have some say in this process.

Or it could just be that voter turnout was down yesterday and that increased Santorum’s chances of winning. Either way, I would rather believe in the system. Yay democracy!

A Word on the Supreme Court and the Old "Strict Constructionism" Canard

As the U.S. Supreme Court readies itself to decide major cases about Obama's health care law, Arizona's notorious immigration law, and the constitutionality of the Voting Rights Act, a recent editorial in the New York Times focuses needed attention on the connection between the Supreme Court and mainstream politics.  According to the Times:

Each case grows out of a struggle between left and right where politics have pushed the law: between a quest for universal coverage and the defense of big health care providers; between an emphasis on openness and hostility toward immigrants; and between a promise of access to the voting booth made nearly 50 years ago and the unyielding opposition to keeping that promise.

This is not a new story, not by any means, but its lessons are worth remembering: just as the law thrusts itself into politics, it is also true that "politics shape the court." 

This is an important reminder, especially in an election year, when conservative candidates will undoubtedly intensify their promises to nominate "strict constructionists."  The hypocrisy is palpable; judicial activism knows no one party or ideology.  But one thing is true: conservatives have skillfully managed to set the terms of the debate.  This means that a decision striking down the VRA, for example, would be seen in conservative quarters as a triumph of our new federalism, not as an activist response to the work of Congress; yet a decision upholding the health care law would similarly be seen as a constitutional failure to uphold federalist principles.  This is clearly nonsense.  

I am not sure what it will take to alter the terms of the debate.  But we should not stop trying.