Season 2, Episode 49 (Show 101): Ban the Box?

November 30, 2022

We resume our discussion of the two recent affirmative action cases, with more clips from the oral arguments and more of our analysis.

It’s Part 2 of our discussion of the Supreme Court’s affirmative action cases, with Harvard and the University of North Carolina defending their procedures  We play clips from the oral arguments, with every justice chiming in along with the advocates, and our analysis follows.  This time we address themes that recurred during the arguments – how does one determine an endpoint for racial preferences in admissions?  How can we measure or pinpoint the educational value of diversity?  What is the appropriate level of diversity – is it necessarily identical to the proportional representation in the population?  And importantly, what might take the place of the “checkbox” that currently appears on most college applications, designating one’s race?  Professor Amar’s 1996 article, co-authored with Neal Katyal, somewhat prophetically touched on these and other themes, and it is referenced frequently in these discussions. 

Show Notes:

Bakke's Fate (1996)

Professor Amar and then-judicial-clerk Neal Katyal published this important article on affirmative action as it hung by a thread before the Court in 1996. It appeared in the UCLA Law Review, 1745 (1996).  Now, after the Court declared that in 25 years, affirmative action would likely be gone, it sits before the Court again.

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Regents Of The University Of California v. Bakke (1978)

The Bakke case, setting diversity rather than reparation as the basis for affirmative action.  University of California Regents v. Bakke, 438 U.S. 265 (1978).

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Grutter v. Bollinger Et Al. (2003)

The Grutter case.  The case most frequently cited as the relevant precedent in the current cases. Grutter v. Bollinger et al., 539 U.S. 306 (2003).

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