By Lisa Pruitt

Cruz Reynoso, former California Supreme Court Justice and my colleague at UC Davis School of Law for two decades, died a few days ago at the age of 90.  Many are offering remembrances of Reynoso -- who the faculty and staff at the law school knew as just "Cruz"-- and it's interesting for me as a ruralist to see the number of references to "rural" in his life's story.  

Of course, Reynoso famously led California Rural Legal Assistance (CRLA), the "first statewide, federally funded legal aid program in the country."  That was during the heyday of Cesar Chavez and Dolores Huerta's organizing in the 1960s.  CRLA provides free legal services to farmworkers.  In California, "rural" is largely conflated with agriculture in the popular imaginary (though there are far less densely populated and more remote California locales than its agricultural valleys), and the organization's website articulates its mission as helping “rural communities because those communities were not receiving legal help.” 

The tumultuous history of that organization under Reynoso's leadership is recounted in a Los Angeles Times story: 

Then-California Gov. Ronald Reagan repeatedly vetoed federal funds for the California Rural Legal Assistance while Reynoso headed the office and even signed off on an investigation that accused the nonprofit of trying to foment murders and prison riots (the investigation went nowhere).

Among other achievements during his leadership, Reynoso "oversaw eventually successful efforts to ban the short-handled hoe, which required farmworkers to stoop and led to debilitating back problems, and DDT, the deadly agricultural chemical."  

The Sacramento Bee reports on one of CRLA's big litigation victories under Reynoso's leadership, Diana v. California State Board of Education:  

It centered on Latino children who were incorrectly assessed by their school and labeled mentally challenged. The pupils were funneled into special education classes when, in reality, they were simply new English learners. CRLA lawyers filed a class-action lawsuit on behalf of students in the Monterey County town of Soledad.

“CRLA won a consent decree that allowed non-Anglo children to choose the language in which they would respond on IQ tests,” wrote the Salinas Californian in 2016. “It banned verbal sections of the test. It also required state psychologists to develop an IQ test appropriate for Mexican Americans and other non-English-speaking students.”

This column by Gustavo Arellano in the Los Angeles Times recounts Reynoso's childhood -- including early activism -- in Orange County, which then included significant rural stretches: 

[Reynoso's] family lived in a rural part of La Habra, where the Ku Klux Klan had held the majority of City Council seats just a decade earlier and Mexicans were forced to live on the wrong side of the tracks. Reynoso’s parents and neighbors had to travel a mile to the post office for their mail because the local postmaster claimed it was too inconvenient to deliver letters to their neighborhood.

Reynoso didn’t question this at first — “I just accepted that as part of the scheme of things,” he’d tell an oral historian decades later, in 2002.

But one day, a white family moved near the Reynosos and immediately began to receive mail. The teenage Cruz asked the postmaster why they were able to receive mail, but his Mexican family couldn’t. If you have a problem with this, the postmaster replied, write to her boss in Washington D.C.

And write a letter to the U.S. Postmaster General is exactly what Reynoso did.  According to a story released by UC Davis on the occasion of Reynoso's death: 

He wrote out a petition, gathered signatures, and successfully lobbied the U.S. Postmaster General in Washington, D.C., for rural mail delivery.

The obituary in the Los Angeles Times notes that Reynoso continued to live a rural life, even while working in Sacramento and Davis.  He "had a 30-acre spread in the agricultural Sacramento County town of Herald," population 1,184.The L.A. Times also reports that, as children, Reynoso and his 10 siblings worked summers in the fields with their parents. 

But the rural fact that leapt out at me most prominently was this line from the UC Davis story about what Reynoso did after finishing law school at UC Berkeley:

Justice Reynoso and his wife, Jeannene, moved to El Centro, in California’s Imperial Valley, where he started his own practice.

Today, Imperial County and El Centro, its county seat, are legal deserts--and they probably were back then, too.  Just imagine a UC Berkeley Law or UC Davis Law grad going to El Centro and hanging out a shingle in 2021?  It's nearly unthinkable, though a few probably go there each year to work for legal aid organizations like CRLA.  If it were more common to follow such a career path -- and for legal educators to prommote and honor those paths -- the Golden State would not be facing a rural lawyer shortage, with impoverished communities of vulnerable workers like the Imperial Valley suffering most as a consequence of that deficit.    

A Sacramento Bee column about Reynoso by Marcos Breton on the occasion of Reynoso's death features several remarkable photos.  These include one of Reynoso at the Herald property in 2000 with his then-young grandchildren; Reynoso was wearing overalls, a signifier of his rural authenticity.  The photo was taken by a Bee reporter the year he was awarded the Presidential Medal of Freedom and previously published as part of the paper's reporting on that honor.  

Speaking of that authenticity, I always appreciated Cruz's frequent use of the word "folk" to refer to groups of people, or the populace generally. Indeed, I see the Spanish translation is "la gente," meaning "people, town, dweller."  For me, his use of "folk" provided implicit permission to use that word and its plural, both terms I'd grown up with but later excised from my professional vocabulary becuse I had thought them too colloquial.  

Cruz was as approachable to students as he was to faculty and staff.  We often saw him walking to the Silo (an eatery on campus) with a group of students for lunch.  And in my first year at UC Davis, 1999-2000, when Cruz was visiting from UCLA's law school, he gamely agreed to participate in a student-sponsored moot court event called "Battle of the Giants," which featured two professors playing the role of advocates in a mock appellate argument.  It took a while for the student organizers of the event to get someone to agree to be the opposing "giant" (eventually, I reluctantly agreed), but Cruz had not hesitated to take on this time-consuming task, one little valued by the law school administration.

Cruz was very gentle in how he engaged and educated people, which I believe often rendered him particularly persuasive. Many years ago, I heard him say to a group of students, in his typical, soft-spoken way, "No human being is illegal." This was at a time whne the phrases "illegal alien" and "illegal immigrant" were still widely used. Expressed in his calm, avuncular, matter-of-fact way, I'm sure he won over many, got them to think about the significance of language. It's quite a contrast with the ways in which so many in our educational institutions today "call out" or "cancel" each other in shrill and judgmental fashion, a tactic that often serves primarily to aggravate divisions.   

Given Cruz's commitment to students and education, it's not surprising that his family has asked that, in lieu of flowers, donations be made to the UC Davis student scholarship fund "for legal access" that honors him and his wife. 

[Cross-posted from The Atlantic]

By Aaron Tang

This is an essay about two words no one wants to see in the same story: guns and schools. But this isn’t about school shootings. This is instead about two starkly different social-activist groups: gun-rights proponents and educational-equity advocates. It’s about their steadfast pursuit of wildly divergent civil rights. It’s about a surprising similarity in their legal strategies. And more than anything, it’s a story about law and ideology, and the difficulty of deciding the former without the influence of the latter.  

Both groups have long courted the Supreme Court’s intervention. Spearheaded by new leadership at the NRA in the late 1970s, gun-rights activists engaged for decades in an effort to persuade the Supreme Court to recognize an individual Second Amendment right to bear arms for self-defense at home. The Court ultimately enshrined that right 12 years ago in D.C. v. Heller, displacing a long-standing consensus to the contrary. In the years after Heller, however, conservatives such as Justice Clarence Thomas frequently complained that the Court had ignored this fledgling right by refusing to expand its reach beyond the facts of Heller itself, effectively resigning the right to “second-class” status.

Second-class no more. In New York State Rifle & Pistol Association v. New York, a major case argued in December, the Court appears poised to expand the Second Amendment to protect gun possession outside the home as well. Just how far is an open question, though gun-rights groups have focused for now on enshrining a right to transport guns to shooting ranges and second homes.

For educational-equity advocates, the Court’s involvement has not been as helpful. The Court declared in 1973 that the Constitution guarantees no right to an education. That ruling paved the way for today’s radically unequal public-school spending patterns—patterns that reinforce and exacerbate existing socioeconomic and racial inequalities.

Like the gun activists, educational-equality proponents have not given up their vision of a constitutional solution. Equity advocates’ present litigation strategy is exemplified by a case known as Gary B v. Whitmer, which is currently pending in the United States Court of Appeals for the Sixth Circuit. The complaint in the case is painful to read: Many classes in Detroit public schools are taught by unqualified substitutes, and many classrooms use textbooks that are decades old, or lack them altogether. School buildings are in complete disrepair; the temperature had risen to 110 degrees in one building because of the lack of air conditioning, and students have to wear jackets and hats inside a number of schools during the winter months because of the lack of heat.

These schools, the plaintiffs argue, have deprived Detroit schoolchildren of their basic right to literacy, in violation of the equal-protection and due-process clauses of the Fourteenth Amendment. A district judge rejected the plaintiffs’ theory in 2018, but a panel of judges on the Sixth Circuit Court of Appeals seemed more receptive during oral argument in October. And regardless of the outcome of the case in the Sixth Circuit, the Supreme Court will likely have the final say, perhaps as early as in 2021.

At first glance, the gun-rights movement and the pursuit of educational equity seem to have little in common. But they in fact share an approach: Both promote arguments that rely on what are called “implied” or “unenumerated” constitutional rights.

Start with the gun activists’ position in New York State Rifle & Pistol Association. One of their primary objectives is to vindicate a constitutional right to transport their firearms to any shooting range of their choosing. (New York City forbade certain gun owners with premises licenses from bringing their guns to shooting ranges outside city limits—at least, that is, before the city and state both amended the law to permit such travel. The gun-owning plaintiffs wanted to shoot at ranges in New Jersey.)

The argument for a constitutional right to train at any shooting range is far from obvious. The Second Amendment speaks of a right to “keep” and “bear” arms, but says nothing about a right to train or practice. And indeed, cities and states at the founding often restricted gun owners to practicing only at prescribed locations.

So what do the gun activists argue? It’s worth reproducing this argument from their brief verbatim, with emphasis added to a single word: “The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use … after all, the core right to keep and bear arms for self-defense wouldn’t mean much without the training and practice that make it effective.” The Second Amendment may say nothing about the right to practice at a shooting range of one’s choosing, in other words, but that right ought to be recognized implicitly because it is important for an express constitutional right to have full meaning.

Now consider the argument advanced by advocates of a constitutional right to basic literacy. Like gun activists and their right to firearms training, educational-equity advocates recognize that the Constitution says nothing explicit about education. But surely a guarantee of basic literacy skills must be implicit in the document in order for its express rights to have meaning. As the Gary B. complaint puts it, “without access to basic literacy skills, citizens cannot engage in knowledgeable and informed voting,” cannot exercise “their right to engage in political speech” under the First Amendment, and cannot enjoy their “constitutionally protected access to the judicial system … including the retention of an attorney and the receipt of notice sufficient to satisfy due process.”

The identical logical structure that underpins these otherwise distinctive arguments presents a puzzle for the Supreme Court. How can it in good faith accept a theory of implied constitutional rights for gun owners only to reject the same argument for schoolchildren? Yet the consensus among close followers is that this is the most likely outcome: Gun-rights activists believe the Court is primed to deliver them a victory in New York State Rifle & Pistol Association, while educational-equity advocates recognize that the Court’s conservative majority is unlikely to rule in their favor.

Should it come to pass, a pro-gun, anti-schoolchildren result would reveal some bleak lessons about the Supreme Court and the influence of political ideology on its justices. When logic cannot support the Court’s divergent decisions, the public is left with the impression that the Court is just engaged in politics by another name—that the “Supreme Court is not a court and its justices are not judges.” This has happened before: The Rehnquist Court famously took a cramped view of Congress’s power to regulate violence against women and (ironically enough) gun possession in school zones under the commerce clause. But when faced with a similar attack against Congress’s power to criminalize homegrown-marijuana production and use, the Court did a sudden about-face, broadly defending congressional authority.  

Perhaps, then, a neutral theory of implied rights—one founded on first principles instead of politics—ought to shape constitutional law. Under such a theory, starting with shared values seems fitting. To that end, consider Chief Justice John Marshall’s famous declaration two centuries ago that “we must never forget that it is a Constitution we are expounding.” A constitution’s very “nature,” Chief Justice Marshall explained, “requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”  

Put another way, implied rights are a necessary consequence of the shared effort to live in a democracy bound by a timeless and embracing constitutional document. The Constitution is short for a reason: It lets people work out their problems over time, as they develop. Thus, many of America’s proudest judicial moments champion implied rights: the right to vote in state elections, the right to appeal a criminal conviction, and even the right to procreate. Like the right to vote, in particular, the right to education is “preservative of other basic civil and political rights,” and should be recognized for the same reason. And if one agrees with Heller’s individual, self-defense interpretation of the Second Amendment right—an assumption that, to be sure, is subject to powerful counterarguments—then an individual right to train with firearms would be entitled to the same logical underpinning.

This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.

[Cross-posted from Harvard Law Review Blog]

By Aaron Tang

The Supreme Court has just heard oral argument in Espinoza v. Montana Department of Revenue, a high-profile case involving a Montana private school voucher program that a number of families used to enroll their children in religious schools.  The Montana Supreme Court struck down the program, ruling that it violates a Montana constitutional provision that forbids any public funding to be used in aid of a religious school. 

Now the Supreme Court is set to decide if Montana’s application of its no-aid-to-religious-schools provision was itself unconstitutional.  The question is profoundly important because at last count thirty-eight states have similar prohibitions in their constitutions.

For proponents of religious education, oral argument could hardly have gone better.  The only Justice who asked probing questions of both sides was Chief Justice Roberts, but even he tipped his hand in analogizing Montana’s action to an outright instance of racial discrimination.  Suppose a state were to “buil[d] parks and pools,” the Chief began, but then decide that “if a higher percentage of African Americans come and use the pools, then we’re going to shut down the whole program. . . . That wouldn’t be good under your view, would it?  [Yet] how is that different than religion, which is also protected under [the Constitution]?”      

Given the likely outcome in the case, what are progressives to do?  It depends on what we really think is at stake in this case.  There are three possibilities.

One worry is that by striking down state no-aid provisions, the Court will threaten the wall between church and state by forcing states to subsidize religious education.  But this isn’t quite right: nothing in the Supreme Court’s looming decision will force states to enact private school vouchers at all.  As even counsel for the families challenging the Montana Supreme Court decision conceded, a state would be perfectly free to fund only its public schools, thus offering notaxpayer dollars to any private school, religious or secular.

The core constitutional principle in the case, in other words, isn’t the fear that states will use public dollars to establish religion over secularism (or one religion over another).  The principle is instead one of equal treatment: if a state decides to offer public funding to secular private schools, must it treat religious private schools equally?  That is a less objectionable demand—indeed, there is broad support for the general notion that people should not be subjected to disfavored treatment on the basis of their religion.  Federal anti-discrimination law, for instance, already forbids employers to fire employees because of their religion.  It’s not a far leap to think a similar rule should apply to institutions, too.  Things would be vastly different, to be sure, if public dollars were used to force unwilling students to attend a religious school.  But worries about government coercion or endorsement are mitigated when, as here, voucher-using families choose to do so on their own free will.

A second possibility is that this case is not actually about religion, but rather about school vouchers.  On this view, the progressive nightmare in Espinoza is that it will lend further support for the private school choice movement.  As Democratic presidential hopeful Senator Elizabeth Warren puts it, Democrats should oppose vouchers because they “diver[t] public dollars from traditional public schools.”

But is that necessarily a bad thing for Montana school children?  It turns out the research evidence is far from conclusive on either side.  Four recent studies have found significant negative effects from voucher use on participating students, but eight earlier studies found modest positive effects.  Complicating matters further, a leading survey of research recently concluded that “virtually all of th[e] studies” of voucher effects on public schools “find that public-school achievement increases” after a voucher program is introduced, though some of that effect may owe to the power of school accountability generally.  Vouchers, in short, may actually spark improvement in our public schools.  And at a minimum, vouchers offer a modicum of educational choice to low-income parents—choices that their more affluent counterparts already enjoy.

Given this uncertain evidence, it strikes me that the battle over school vouchers is not a worthwhile hill for progressives to die on.  In fact, progressives generally support the use of taxpayer dollars at private schools when the public schools fail students with disabilities; perhaps the same should be true for low-income students, too. 

There is, however, one more issue at stake in this case that progressives ought to take to the mat: nearly one-third of the private religious schools that participated in Montana’s voucher program expressly discriminate against LGBT staff and/or employees.  A prior study estimated roughly fourteen percent of religious schools nationwide have similar policies.  Here’s an example from the one participating Montana school’s handbook:

“Heritage Christian School reserves the right to . . . reject students, either new or current, at its sole discretion on the basis of . . . lesbian, gay, bisexual and/or transgender conduct.” 

It is one thing for a religious school to demand that it not be subjected to discrimination in the receipt of generally applicable benefits like a private school voucher program.  It’s quite another for a religious school to demand non-discriminatory treatment even as it engages in its own discrimination against its students.  The latter is, to say the least, not ok.

So what are progressives to do?  One idea is for progressive lawmakers to offer their support for private school voucher programs that are available to low-income students to attend secular and religious schools alike, conditioned on the requirement that receiving schools may not discriminate on basis of LGBT status, race, or other protected characteristics.  Under that neutral, generally applicable (and therefore constitutionally permissible) rule, all private schools—religious and secular—would be eligible to receive the voucher so long as they follow basic anti-discrimination norms.

Such an approach might create a broad, bipartisan consensus around shared values: religious schools shouldn’t be punished just because of their affiliation; private school choice should be available to low-income students so long as the evidence continues to suggest it may be beneficial; and crucially, no private school—whether religious or not—should be allowed to discriminate against its students.  The latter point in particular enjoys widespread support in our society: a recent survey found sixty-nine percent of Americans favor laws protecting LGBT persons from discrimination.

Not only would such a compromise preserve basic equal-treatment values that progressives care deeply about, it would also force conservatives to admit what they really value, too.  Many conservatives, I believe, will be more than happy with eliminating the differential treatment of religious institutions and promoting school choice for disadvantaged students.  These principled conservatives should gladly support a voucher policy with anti-discrimination provisions. 

And for any conservatives who want Espinoza to stand for the proposition that they can use taxpayer dollars to discriminate against members of the LGBT community?  They would be forced to say those untenable words aloud.

I've been keeping an eye on elite bashing of working class and rural whites for years now, and I published my first article about it as long ago as 2011.  But the election of 2016 brought the disdainful badmouthing by the chattering classes to a fever pitch, and I've occasionally blogged about the phenomenon, including here and here.  

One "series" I see on Twitter begins:  "And in today's episode of:  I Bet I Know Who You Voted For..." That is the common  preface to re-Tweets of headlines that could previously have appeared in the "Darwin Awards" or perhaps the petty crime pages of a local paper.  I'm pasting one below.  It re-Tweets a Fox News Tweet that reads "Substitute allegedly brought boxed wine to school, vomited in class."

Another re-Tweets this Fox News Tweet:  "Woman charged with choking teen for blocking view at Disney fireworks show."

On a related note, here's an item from Instagram just a few days ago, from the account called guerrillafeminism that reads "happy international women's day except the 53% of white women who voted for trump."

Pat Bagley, the cartoonist for the Salt Lake City Tribune (whose work I greatly admire, by the way--both cartoonist and paper), has referred to Trump's "idiot followers."  I could provide many more illustrations of this phenomenon.  

With that background, you can imagine my surprise--but also delight--when I saw this Tweet from Neera Tanden, President of the Center for American Progress, which bills itself as an

independent nonpartisan policy institute that is dedicated to improving the lives of all Americans, through bold, progressive ideas, as well as strong leadership and concerted action. Our aim is not just to change the conversation, but to change the country.

Despite the "nonpartisan" billing, I see Center for American Progress as clearly left leaning (a good thing in my book!).  Tanden's Tweet reads:

The teachers of West Virginia are heroes.  They deserve good pay and a real raise.  I stand with them. 

Now, I don't recall any past Tweets by Tanden blasting Trump supporters, though I do recall some highly critical of Trump.  That's fine by me.  It's a line I've drawn myself--at least in the last year or so (I was a bit less discriminating--a bit more knee jerk--as I reeled in the wake of election of 2016, and I sent off some angry, pejorative Tweets about Trump supporters as a monolithic group).  I now readily take aim at Trump but try to be more thoughtful and circumspect re: Trump supporters.  I'm looking to understand them, trying to listen empathically. (I've got a whole law review article forthcoming about female Trump supporters, delivered as the key note address at the Toledo Law Review symposium in October, 2017,  The Women Feminism Forgot:  Rural and Working Class White Women in the Era of Trump.  I hope to have the text posted soon on my ssrn.com page).

But the bottom line is that some things I saw on Twitter about the West Virginia teachers--many sympathetic comments of the sort Tanden shared--had me wondering if the lefties doing this Tweeting realized that many of the folks they were lauding and advocating for had no doubt voted for Trump.  That is, these newfound labor heroes with their wild-cat strike were one and the same with (many) reviled Trump voters.  Some 68% of West Virginians voted for Trump!  Could I possibly be seeing praise for these women--praise from the left?   These are the same women that many lefties on Twitter have said "get what they deserve" if they lose their healthcare (thanks to Trump's effort to dismantle Obamacare) or face further economic decline (thanks, for example, to the long-term consequences of Trump's tax reform law).

(Btw, I was at an Appalachian Justice symposium at West Virginia University College of Law in Morgantown from Thursday Feb. 22 'til Saturday Feb. 24th, and I got to see the teachers picketing--and hear the honking in support--first-hand, which was pretty cool.  One of my favorite signs, this published in the Washington Post, is here) 

Michelle Goldberg, a relatively new columnist at the New York Times who is writing a lot about gender issues, offered up this column under the headline, "The Teachers Revolt in West Virginia."  She called the strike "thrilling," noting that strikes by teachers are unlawful in West Virginia, which became a right-to-work state a few years ago, and where unions do not have collective bargaining rights. Yet, Goldberg writes,

teachers and some other school employees in all of the state’s 55 counties are refusing to return to work until lawmakers give them a 5 percent raise, and commit to addressing their rapidly rising health insurance premiums.

Goldberg further explains that the "obvious impetus" for action is West Virginia's awful pay of teachers, which ranks 48th in the nation (read more analysis here).  She also discusses the critical role that health care/health insurance plays in the labor dispute:

 In the past, solid health care benefits helped make up for low wages, but because West Virginia hasn’t been putting enough money into the state agency that insures public employees, premiums and co-payments have been increasing significantly.  

Ah, there's that health care problem again, by which I mean you should read this and this, among other sources cited and discussed in that forthcoming Toledo Law Review article. 

Having pored over many, many mainstream media reports of white working class Trump supporters in places like Appalachia (you guessed it, all discussed in that Toledo Law Review article!), I was struck that the women Goldberg identified and interviewed did not appear to be Trump supporters.  Quite to the contrary, these women are held out as having responded to Trump's election by becoming part of what is popularly known as "the resistance." I was delighted to learn about and hear from these women, but was Goldberg unable to find any Trump supporters among the striking teachers?  I would very much have liked to have heard their attitudes about the strike, also in relation to their support for Trump.  Did they reconcile the two?

Here are excerpts/quotes about the two women Goldberg did feature, Jenny Craig, a special education teacher from Triadelphia (population 811, northern panhandle) and Amanda Howard Garvin, an elementary art teacher in Morgantown (third largest city in the state, home of WVU):

Craig described the anti-Trump Women’s March, as well as the explosion of local political organizing that followed it, as a “catalyst” for at least some striking teachers.

Goldberg quotes Craig:  

You have women now taking leadership roles in unionizing, in standing up, in leading initiatives for fairness and equality and justice for everyone.

Goldberg also quotes Garvin:

As a profession, we’re largely made up of women. ... There are a bunch of men sitting in an office right now telling us that we don’t deserve anything better. 

No. We’re equal here.

By Chris Elmendorf & Darien Shanske

[Cross-posted from Education Law Prof Blog]

Education is special in the eyes of the law. State constitutions rarely require the government to spend money on anything, let alone to spend it well. Yet virtually every state constitution provides for a system of free public schools, and many courts have treated state governments as having a legally enforceable duty of care with respect to education.

But what exactly does this duty of care entail? One might expect this question to be reasonably well settled, as public-interest lawyers have been litigating education rights cases since the early 1970s. It is not. Two competing visions of the duty of care are playing out today in cases across the country. One holds that the state’s primary responsibility is to provide an ample fiscal “pie” for local school districts. Funding arrangements must ensure that all districts can afford to pay for decent facilities and programs. This vision motivates many of the claims that were filed in response to school-funding cutbacks during the Great Recession. The other vision holds that the state’s primary duty is to allocate efficiently whatever funds it appropriates for education. Informed by conservative critiques of public-sector bloat and interest-group politics, this vision calls on courts to redirect wasteful spending and unfetter local school administrators, but without touching the “political” question of how much to spend. The better-allocation vision undergirds a recent and exhaustively detailed trial court ruling in Connecticut, as well as challenges to teacher-tenure and seniority rules now pending in Minnesota, New York, and New Jersey.

Conservative opponents of bigger-pie litigation have long argued that the empirical evidence of the effect of school spending on student outcomes is too shaky to warrant judicial intervention. Liberal critics of the new teacher-tenure lawsuits have started making precisely analogous arguments in better-allocation cases, with no apparent sense of irony. But no one has asked whether states themselves might bear constitutional responsibility for the lack of reliable information about likely effects of plaintiff-sought reforms.

In a forthcoming law review article, we pose and answer this question, developing a new, information-centric vision for education rights litigation. Under our account, the states’ primary responsibility today is to structure their educational systems so that researchers and policymakers can figure out which interventions or reforms would actually improve the constitutional performance of the school system. Courts uniformly agree that the constitutional function of public schools is to prepare children for a lifetime of productive participation in economic, political, and civic life. But researchers know very little about the effects of educational reforms on adult outcomes—and the states bear much of the blame for this.   

As our article explains, states exercise enormous control over the production of knowledge about education, especially about long-run effects. This control is wielded through the architecture of administrative data systems; through the rules for assigning students, programs, and funding to schools; through the manner in which educational reforms are implemented; and through the terms on which the state provides access to administrative data.

States already possess constitutionally urgent information about the outcomes that schoolchildren realize as adults. This information is scattered across tax, voting, health, welfare, and criminal justice agencies. But, for the most part, state record-keeping systems have not been designed to enable linkage of educational and other records—and record-linkage is necessary to understand the long-run impact of educational reforms. Some states have actually banned the use of critical administrative datasets for research purposes. Likewise, in rolling out educational reforms, states rarely consider whether the rollout will enable credible tests of the reform’s effects. (Typically this requires well-defined “treatment” and “control” groups, which are similar to one another on average.)

Judicial recognition of a state duty of care with respect to the production of knowledge about education wouldn’t turn children into lab rats. States would still have to protect student records from privacy-compromising disclosures, and state officials, not researchers, would continue to set priorities.

But states would no longer be free to ignore how their own decisions affect what can be learned about the long-run effects of the state’s educational policies and programs. At a minimum, states would have to issue and periodically update a plan that identifies barriers to learning about how the state’s educational objectives can be achieved, and that explains what the state intends to do about it. Arbitrary barriers, such as flat prohibitions on the linkage of educational and other administrative records, would be vulnerable to constitutional attack. And in “bigger pie” and “better allocation” litigation, courts would consider not only whether the plaintiffs’ evidence is strong enough to order statewide reforms, but also whether the difficulty of learning about the effects of spending levels or allocative constraints without the cooperation of the state warrants a test of the plaintiff-sought remedy, which would be implemented temporarily in a randomly selected subset of schools or school districts. 

Our informational gloss on the state’s duty of care with respect to education offers a way forward in the many states whose courts have, on separation-of-powers grounds, declined wade into the Stygian swamp of funding and allocative disputes. Courts can address barriers to the production of knowledge about education without touching large-scale questions about how much to spend on education and how to spend it. Whatever else the states may owe to disadvantaged children, at least the states must make it possible to learn whether their efforts to better educate those children are doing any good.

By Chris Elmendorf & Darien Shanske

[Cross-posted from Education Week]

The state should know lots about those students: their standardized-test scores, whether they voted, their criminal records, their income, etc. The state replies that it does not have this information collected in a manner that is accessible. And, to add insult to injury, the state explains that it would not release the information anyway because of privacy concerns.

You decide to proceed with pre-K in your district regardless, but, so that future researchers can learn something, you ask the state if you can assign pupils to the pre-K class through a random lottery given that there will not be enough spots for everyone. The state refuses. A local education researcher asks if you can work together to at least keep track of key administrative data for the children within and without the program. To do that, you need help from the state, but again the state refuses.

That scenario is neither fanciful nor uncommon. Despite some improvements, many states do not maintain the data in a usable manner that education researchers need, much less do they use program rollouts as a regular opportunity to conduct controlled experiments. On the one hand, this failure makes sense. Organizing and managing administrative data is not costless, especially if privacy concerns are properly taken into account. Furthermore, as a matter of practical politics, not much of a constituency exists for the collection of good data that will yield conclusions many years in the future-a time frame that for most politicians or administrators makes no sense.

At the same time, the failure to generate high-quality data is untenable. Education is by far the biggest expenditure made by state and local governments. The cost of collecting good data and making the information available is not even a rounding error compared with state and local education budgets. It would be one thing if educational researchers were doing well enough with the data they have, but the expert consensus is that they are not. And this is not because there is a lack of researchers or analytic methods. (Indeed, something of a revolution is going on in the social sciences when it comes to the use of administrative data. For example, a much-celebrated recent study by Raj Chetty and colleagues demonstrated that social mobility in the United States depends greatly on where a child grows up, based on careful analysis of years of tax-return data.)

If education research is not to be left behind, states need to devote resources to collecting the data and making those data available to researchers. There are models for doing so. In some Nordic countries, each citizen is given an administrative-record number that is used throughout the government. When a researcher requests data, the government provides the data, but using a different set of numbers to protect privacy. That arrangement has enabled education research that would be difficult or impossible to carry out elsewhere, such as studying the effect of publicly provided day care on labor-market outcomes decades later&-just the question our hypothetical superintendent was hoping to answer.

"If education research is not to be left behind, states need to devote resources to collecting the data and making those data available to researchers."

The policy prescription is clear: States should aim to collect and disseminate first-rate educational data. A good place to start on this project is with the checklist provided by the nonprofit Data Quality Campaign, which emphasizes the record-keeping arrangements needed to track students over time and across administrative databases.

States should also organize themselves so that opportunities for controlled experiments are not squandered. In many cases, states already roll out programmatic changes in pieces; it would not cost much more to do so in a manner that enables credible inferences about the reform's effects.

What if a state refuses to take reasonable steps to assess the effectiveness of its biggest outlay? Can the states be forced into self-reflection? We think the answer is yes.

Virtually every state constitution provides for a system of free public schools. Most states have been sued under those provisions, with the plaintiffs claiming that states are not distributing funds equitably or just not spending an adequate amount. Plaintiffs have a mixed record in such suits, though it should be noted that many states changed their educational system because of the threat of such a lawsuit.

As a result, there are many states where the constitutional provision concerning education has been litigated and in which the courts have held that the state has a legally enforceable "duty of care" with respect to education. We argue in a forthcoming law review article that if this duty of care means anything, it must at least mean that states take reasonable efforts to enable the assessment of how their public education systems are performing. That is, leaving aside whether states must spend more money or spend more fairly, they must at least have some reasonable system in place to assess their compliance with the constitutional command to provide a decent public education.

Especially in states with courts that have proven willing to impose dramatic solutions, such as spending and other mandates, we think that even the threat of litigation should motivate state officials to provide education researchers the data they need. To be clear, our vision of states' duty of care with respect to education wouldn't turn children into lab rats. States would still have to protect student records from privacy-compromising disclosures, and state officials-not researchers-would continue to set priorities. But whatever else the states may owe to disadvantaged children in particular, at least the states must make it possible to learn whether their efforts to better educate those children are doing any good.

Maria Blanco of the UC Immigrant Legal Services Center (housed at UC Davis School of Law) is speaking at the 8^th Annual University of California International Migration Conference at UC Berkeley on May 13.

The topic is "Being Undocumented at UC in the Trump Era."

Find more information and registration details at haasinstitute.berkeley.edu/undocu2017.

Earlier this week, I testified before the California Assembly Higher Education Committee on April 18 in support of Assembly Bill 856, which seeks to diversity faculty and athletic coaches at California universities. These were my remarks.

***

Thank you, Chair and Members.

My name is Rose Cuison Villazor and I am a Professor of Law at UC Davis.

I have been a law professor for eleven years and I have been teaching at UC Davis for five years. 

As the only Filipino American law professor in a public university and, indeed, the entire state of California, I come before you today in support of AB 856, which would increase faculty diversity at California public Universities and Colleges.

I have seen first hand the need to increase diversity amongst faculty at California schools.

According to the Association of American Colleges and Universities, "Faculty, along with staff, serve as an institution's front-line representatives, and in the academic realm, faculty are also the embodiment of authority on campus. Having a diverse faculty ensures that students see people of color in roles of authority and as role models or mentors. Faculty of color are also more likely than other faculty to include content related to diversity in their curricula and to utilize active learning and student-centered teaching techniques."

A diverse faculty helps close achievement gaps, improves campus climate, and creates new curriculum and research.

Having a faculty reflect the student population benefits students' growth and has a positive impact on their learning experience. 

Currently, in states where affirmative action has been banned, including California, universities have introduced new admissions and financial aid strategies based on socioeconomic status.

Similar initiatives can be applied to the hiring process at California schools.

I thank the author for bringing this measure forward and respectfully ask for your AYE vote.

Cross-posted from Justia's Verdict.

As the fall semester approaches and college freshmen prepare to start school, there is renewed criticism of the University of California's decision, implemented over the last few years at all or nearly all of the system's campuses, to increase the number and percentage of out-of-state and international college students. The harshest criticism comes from those California students (and their parents) who are finding it increasingly hard to be admitted to UC campuses, especially the most competitive ones like UC Berkeley. Many of these students and parents worry that the University system, motivated by a desire to obtain out-of-state tuition monies, is admitting lesser qualified people from outside California in such a way as to displace more highly qualified California applicants who otherwise might be admitted. Critics feel this is a betrayal of the University's basic purpose, which is to serve the needs of the State. After all, it was California citizens and taxpayers who created the UC and built it up into the best public higher education system in the world. In the space below, I try to debunk some of the myths and misstatements concerning this controversy, and to shed light on the crux of the problem.

The Factual Realities and Myths Underlying the Criticism

Let us begin with the basic factual claims critics often make. Some of these assertions are verifiably true. It is certainly the case that the UC seems intent on yielding more out-of-state and international undergraduate students at its campuses than it did years ago. For example, the system (according to reports in the Los Angeles Times and the San Francisco Chronicle) admitted around 3,000 more out-of-state freshmen in 2014 than in 2013, and in 2013 the number was higher than in 2012 by about another 1,000. Moreover, even as the number of admittees from outside the State is increasing, the number of admitted applicants who come from within California is holding steady or, at many campuses, dropping; only three campuses admitted more California residents in spring of 2014 than in 2013 (although some other campuses, like Berkeley, might have admitted additional in-state students off the wait list over the past few months.) And the percentage (as distinguished from the absolute number) of out-of-state and international students is also on the rise; the share of non-Californian undergraduates within the system nearly tripled from the 2007-2008 year (4.6%) to the 2013-2014 year (11.4%). Finally, it seems true that the additional revenue that students from outside California generate explains part of recent trends. Base tuition for in-state students is around $13,000/year, whereas out-of-state and international students are charged more than $35,000, and UC officials have themselves said that the additional revenue is helping the system.

But many of the key factual assertions made by critics are simply false. UC spokespersons have vehemently and repeatedly said that out-of-state admittees are more, not less, qualified (as judged by SAT scores, high school GPAs and other numerical metrics) than in-state admittees. That doesn't mean that every non-Californian who was admitted had higher grades and test scores than every in-state applicant who was denied (because admissions decisions take account of other, non-numerical, qualitative factors like artistic or musical talent, etc.), but it does mean that, in the aggregate, the numerical credential bar is higher for applicants outside the State.

On top of that, non-Californians bring one credential that in-staters generally can't: geographical diversity. Great universities pride themselves on drawing students from (and having name recognition and alumni contacts throughout) the entire nation and world. Such diversity adds to the mix of distinct outlooks on campus, and increases the range of opportunities for folks when they graduate. As UC spokesperson Diane Klein is quoted as saying: "Undergraduate and graduate students from throughout the United States and the world bring fresh perspectives and, in an increasingly interconnected world, help California students better prepare to operate in the global economy." So (even granting that UC exists largely to serve the State) having more non-Californians may offer benefits to the Californians who are there. (The high quality and geographic diversity that out-of-staters bring may partially explain why many states that aren't as large and diverse as California, like Michigan and Virginia, have for decades enrolled high percentages of out-of-state students in their flagship public universities.)

The Key Question of Whether More Non-Californians Means Fewer Californians

But perhaps the biggest mistake that critics make is to assume that having more out-of-state and international students means that fewer in-state applicants can be admitted. Precisely the opposite is often the case. The question isn't whether the number of in-state admittees has been stagnant over time (that may very well be the case because of decreased funding by the State legislature); the question is whether the number of in-state admittees would be smaller still if non-Californians weren't being admitted. Why might admitting non-Californians allow more Californians to be admitted? Because every non-Californian is charged an extra $23,000 in tuition beyond what in-staters are charged. And that money may more than pay for the out-of-stater, creating a surplus that can be used to subsidize an in-stater.

The UC has fixed costs (physical plant, tenured faculty, etc.) that it must pay no matter what, and variable costs (relating to non-tenured faculty and staff, utility expenses, healthcare and security obligations, insurance, etc.) that increase as the number of enrolled students rises. Because of fixed costs, the expense the University incurs, on the margin, in educating additional students may be somewhat smaller than its average cost-per-student. Of course, there may be an upper limit on how many students can fit within a campus. But there are also points on the spectrum where more students could be accommodated without major long-term infrastructural investment, provided we could find money to pay for the marginal (variable) costs of adding them.

For example, suppose that, at some point on the cost curve, the marginal cost of educating an additional student is about $24,000. Enrolling an additional in-state student alone at that point would not be feasible; she would cost UC another $24,000 but she would pay only $13,000 in tuition, yielding a deficit of around $11,000. But if an out-of-state student were enrolled, he would pay $35,000, which is enough to pay for his own marginal cost ($24,000) as well as the deficit created by the additional in-state student. So, in this simplified example, adding an extra out-of-stater increases the aggregate number (and perhaps also the percentage) of non-California enrollees, but does so in such a way as to allow for the enrollment of an additional in-state student who otherwise could not be admitted. Again, the relevant question (even for the critics) shouldn't be how many in-staters and out-of-staters are being enrolled. Instead, it should be how many in-staters could be enrolled if we cut back on out-of-staters. And the answer is likely going to be: fewer than we have now.

Should In-Staters Be Given the Option of Paying Higher Tuition?

So it is clear that admitting persons who are are willing and able to pay a higher tuition can permit the University to accommodate additional persons who pay the lower tuition rate. All of this brings up the question: Why not offer admission to some of the in-state applicants who are currently being denied if these applicants are willing to pay the higher tuition rate? After all, if the problem is simply a lack of revenue (owing largely to reduced allocations from the legislature), why shouldn't we give in-staters (whose parents and ancestors paid for the University) the first option to pay additional tuition, rather than offering those higher-priced slots to non-Californians?

Imagine, for example, that we said to the 500 in-state applicants who were denied admission to UC Berkeley but whose application files were the closest to making the cut (the first "500 out," to use a March Madness Bracketology term): "You can come to Berkeley, but only if you are willing to pay a tuition rate higher than that being charged to other in-state admittees, who are slightly more worthy of admission than you are." How would that go over? I have a few (preliminary) thoughts.

First, some might object to this approach because, as noted earlier, admitting in-staters who are willing to pay more instead of out-of-staters deprives the University of the ultra-high-quality students and geographical diversity that non-California enrollees are currently providing. But put these factors to one side. Imagine that out-of-state enrollees had the same grades and test scores as the "first 500 out" group I described above. And assume that, because California is almost a nation state unto itself, we already had sufficient geographic diversity without importing out-of-staters.

Even then, I suspect many folks would reject the approach I describe simply because it seems wrong to "sell" UC seats to Californians who have the money to pay for them. Among those "first 500 out," only those families who can afford the higher tuition would be able to accept the offer, such that ability to pay would formally and openly become a criterion of admission. And that is in conflict with the notion that access to a slot in the UC is supposed to be based on your talent, your hard work and your performance, not on your parents' bank account. (Charging out-of-staters higher tuition doesn't quite raise this conflict, because their higher tuition is justified not by their lesser qualifications but rather by their lack of investment in the system-a perfectly reasonable factor to use in setting tuition-and thus need not be thought of as "selling" seats to lesser qualified folks the way charging more to some in-state enrollees than to other in-staters, based on the strength of their admissions files, would.)

Notice that there are some public areas, such as toll roads and (now) security lines at airports, where we have allowed people to gain special access if they are willing and able to pay for it. But we may tolerate such commodification in these settings because we don't think of allocating resources in these arenas as involving a meritocratic assessment the way we conceive of college admissions. We also don't think of roads and airports as gateways to economic mobility the way higher education has been billed. As a result, letting people buy their way out of car traffic and long boarding lines doesn't require that we confront-and grapple with the inaccuracy of-deeply held and desirable societal values such as the notion that college ought to be equally available to anyone who has the talent and work ethic to pursue it.

A generation ago, Guido Calabresi (who was a professor and then Dean of Yale Law School and who now is a federal appellate Judge) and Phillip Bobbit (a law professor at The University of Texas School of Law) wrote a book called "Tragic Choices," in which they discussed how difficult it is for society to move from a bureaucratic or professionalized allocation of scarce resources (the way university admissions typically operate) to a market-based approach, when doing so starkly exposes the frailty or falsity of important societal ideals (like equal educational access). We all know that at some important level family wealth makes access to college easier (and lack of wealth makes college for many quite difficult), but explicitly selling off UC slots to wealthy in-staters would require us to confront unpleasant truths in a way that we may not simply be able to handle.

Private universities can (and sometimes do) take a student's ability to pay into account at the admissions stage, and many such universities do admit less qualified yet wealthy applicants. But these institutions get to make their decisions outside the public view. Importantly, because of transparency requirements concerning public college admissions and tuition-setting processes (which reflect another deeply held societal norm-that public institution operations should be visible), there is no easy way to sell UC seats without everybody seeing exactly what is being done. That may be why (as far as I am aware) no high-level policy-makers in California have seriously floated the approach I discuss here.

Notice also that selling off some UC seats to wealthy in-staters might allow significant numbers of additional poor or middle class Californians to attend (so long as the sales price exceeds the marginal cost of educating the wealthy student.) Indeed, one could imagine a scenario in which UC seats would be auctioned so that a few mega-wealthy but less qualified applicants would end up subsidizing large numbers of lower or middle class enrollees. So if our focus were merely on increasing the absolute number of highly qualified lower or middle class Californians who could be accommodated within UC, a regime in which the University sold or auctioned off seats might have some upside. But that regime would do major damage to important societal ideals.

Finally, notice that these tradeoffs between the accomplishment of pragmatic goals and the preservation of (sometimes unrealistic but nonetheless attractive) societal values are not always static. During the Civil War, for example, draftees were able to buy their way out of military service by hiring people to take their places. Today, we would (rightly) find such a practice abhorrent; we would not permit it because it would expose too starkly the (persistent) reality that it is the poor who are ultimately forced (by economic distress) to bear the brunt of fighting our wars. In suggesting that things change over time, I am not predicting that UC seats will be formally commercialized anytime soon. But I will point out that many folks, myself included, did not fully foresee all the changes in public higher education funding (especially as to professional schools) that have taken place over the last two decades. And I could imagine ways of possibly moving toward the approach I describe above without seeming to sell seats so explicitly-for example, charging all in-state admittees a higher tuition but giving all but the last 500 admitted a "merit" scholarship so that the net price for almost everyone remains unchanged. Indeed, many public law schools-whose state subsidies were cut earlier and more deeply than those at the corresponding public undergraduate institutions-have moved to this kind of model. Some public colleges may end up following suit to address their revenue problems, even though many of us would favor restoration of legislative funding even more. So never say never.

Cross-posted from Justia's Verdict.

When the Supreme Court in Schuette v. Coalition to Defend Affirmative Action upheld the Michigan state constitutional ban on race-based affirmative action (known as Proposal 2) a few weeks ago by a 6-2 vote, the overall message that emerged from the decision seemed sensible enough: While the federal Constitution permits states, under certain circumstances, to make limited use of race in allocating government benefits, nothing in the Constitution requires states to do so, and a decision by the people of a state to prohibit all race-based affirmative action preferences is permissible.

The Seattle Line of Cases on Which the Challengers to Proposal 2 Relied, Unsuccessfully

The problem with this straightforward message is that an earlier line of Supreme Court cases, running from the late 1960s until the early 1980s, held that while race-conscious programs may not be required, neither can they be terminated in certain problematic ways. The key decision in this line of authority is the intuitively attractive yet controversial and somewhat confounding 1982 ruling in Washington v. Seattle School District No. 1. In order to cure widespread de facto racial segregation in Seattle-area schools, Seattle School District No. 1 adopted a voluntary integration plan that extensively used race-based pupil reassignment and busing to eliminate one-race schools. The Seattle program prompted the people of Washington to enact Initiative 350, a statewide measure that barred local school districts throughout Washington from reassigning or busing for the purpose of racial integration, but continued to permit local districts to reassign or bus for all other educationally valid reasons.

By a 5-4 vote, the Court struck down the plebiscite. The Court declined to rest its holding on a finding of invidious racist intent on the part of the electorate. Instead, the Court invalidated Initiative 350 because the measure singled out racial busing-a program of particular importance to racial minorities-and moved this issue from the control of local decision-making bodies to central management at the statewide level, where minorities were less likely to enjoy democratic success. This selective and unfavorable treatment of public programs that were distinctively beneficial to minorities, the Court said, denied such minorities the equal protection right to "full participation in the political life of the community."

In the Seattle line of cases, the Supreme Court laid out a two-pronged test: First, a challenger must show that the law in question is "racial" or "race-based" in "character," in that it singles out for special treatment issues that are particularly associated with minority interests. Second, the challenger must show that the law imposes an unfair political process burden with regard to these "minority issues" by entrenching their unfavorable resolution. (Mere repeal by the very body that had adopted a policy benefitting minorities would not be problematic.)

The challengers to Proposal 2 in Michigan relied directly on this reasoning. First, they argued, Proposal 2 was racial in character in that it dealt specially with an issue-race-based affirmative action-that is of distinctive interest and benefit to racial minorities. Second, Proposal 2 dealt with this racial issue by entrenching a policy that was unfavorable to minorities at a level of government-the state constitution-where minorities are less likely to succeed than they are at lower levels, such as local government or university administration. The argument was that although Michigan may be free to repeal affirmative action programs, it cannot repeal such programs at a level higher than the one at which they were initially adopted, just as the State of Washington could not repeal racial busing at the statewide level, rather than the local level.

How the Justices Dealt With Seattle

In turning away this challenge, Justices Scalia and Thomas acknowledged that the Seattle case controlled, but concluded that it should be overruled. Justices Ginsburg and Sotomayor (who dissented in the Court's outcome) likewise thought Seattle governed, but they would preserve and apply Seattle, and would have struck down Proposal 2. (Justice Breyer distinguished Seattle on rather technical grounds, and Justice Kagan did not participate.)

In an important opinion that many view as the pivotal one in the case, Justice Kennedy, joined by two other Justices, concluded that the Seattle case may have been correctly decided, but that it did not govern the Proposal 2 matter. According to Justice Kennedy, Initiative 350 in Seattle was bad because it prevented the Seattle School District from dealing with a racial segregation problem to which the government itself had contributed. As Justice Kennedy put the point: "The Seattle Court, accepting the validity of the school board's busing remedy as a predicate to its analysis of the constitutional question, found that the State's disapproval of the [local] school board's busing remedy was an aggravation of the very racial injury in which the State itself was complicit."

Justice Kennedy disavowed any broader reading of the Seattle ruling, and in particular declined to accept the two-part analytic framework that the Court purported to apply in that case. As Justice Kennedy wrote:

The Seattle Court . . . establish[ed] a new and far-reaching rationale. Seattle stated that where a government policy "inures primarily to the benefit of the minority" and "minorities . . . consider" the policy to be "'in their interest,'" then any state action that "place[s] effective decisionmaking authority over" that policy "at a different level of government" must be reviewed under strict scrutiny. In essence, according to the broad reading of Seattle, any state action with a "racial focus" that makes it "more difficult for certain racial minorities than for other groups" to "achieve legislation that is in their interest" is subject to strict scrutiny. . . . And that reading must be rejected.

As Justice Scalia pointedly observed, Justice Kennedy's recharacterization of Seattle has serious problems:

[Justice Kennedy's opinion] reinterprets [Seattle] beyond recognition. . . . As for Seattle, what was really going on, according to [Justice Kennedy], was that Initiative 350 had the consequence (if not the purpose) of preserving the harms effected by prior de jure segregation. . . . [T]his describes what our opinion in Seattle might have been, but assuredly not what it was. The opinion assumes throughout that Seattle's schools suffered at most from de facto segregation, . . . that is, segregation not the "product . . . of state action but of private choices," having no "constitutional implications."

(As an aside, I find it somewhat ironic that Justice Scalia criticizes Justice Kennedy's manipulation of precedent here. Although I agree with him that Justice Kennedy does not adequately engage, but rather hollows out, Seattle, the writing that Justice Kennedy's opinion reminds me of most is Justice Scalia's own opinion in Employment Division of Oregon v. Smith, the 1990 religious freedom case in which Justice Scalia guts but does not forthrightly overrule old free exercise cases.)

The Post-Seattle Cases That Eclipsed Seattle's Essence

So if Justice Kennedy's (re)reading of Seattle is less than convincing, is there a way to justify his bottom line? For me, the best defense of the outcome in Schuette comes not from creative interpretations of Seattle, but from judicial and societal developments that have emerged after Seattle was decided. As Professor Evan Caminker and I have suggested in academic writings, the argument (whether one finds it convincing or not) would be that elimination of affirmative action programs today does not as clearly disadvantage racial minorities as did the Seattle initiative. Modern affirmative action programs are double-edged-Proposal 2 backers would argue-because such programs inflict stigmatic harm on minorities and impose tangible disadvantages on certain minority groups, even as the programs attempt to confer tangible benefits on some minority groups. This argument challenges, as overly simplistic, the notion that the programs terminated by the Proposal 2 "inure[ ] primarily to the benefit of the minority."

This argument would build on more recent Supreme Court cases that assuredly support such an ambivalent characterization of affirmative action programs. Over the past two-plus decades, City of Richmond v. J.A. Croson Co. and its progeny have justified strict scrutiny for purportedly "benign" race-conscious programs in part through renewed emphasis on certain costs that affirmative action programs threaten to impose on minorities (whether uniquely or along with others). According to the Court, such programs threaten to, among other things, embrace and "foster harmful and divisive stereotypes," which might "balkanize us into competing racial factions."

And this is precisely the basis on which Justice Kennedy declines to apply the Seattle framework. He reminds:

In cautioning against "impermissible racial stereotypes," this Court has rejected the assumption that "members of the same racial group-regardless of their age, education, economic status, or the community in which they live-think alike, share the same political interests, and will prefer the same candidates at the polls." . . . It cannot be entertained as a serious proposition that all individuals of the same race think alike. Yet that proposition would be a necessary beginning point were the Seattle formulation to control. . . .

Let me be clear: the suggestion that contemporary affirmative action programs do not primarily benefit racial minorities cannot easily be squared with the holding of Seattle (which is why I think Justice Scalia was correct that either Seattle or Proposal 2 had to be rejected). Initiative 350 eradicated voluntary racial busing-a race-conscious affirmative action program that, in its day, was extremely controversial, as both the majority and dissent in the Seattle case recognized. Racial busing imposed both practical and emotional costs on African American schoolchildren, and it generated interracial divisiveness and even hostility. So modern affirmative action is not easily distinguished from the programs involved in Seattle.

But, again, Seattle's judicial attitude in this respect has been eclipsed by more recent cases expressing much more skepticism about race-based affirmative action. The Seattle analysis may simply not survive the more recent cases, and if this is true the Court should have said Seattle is no longer good law, rather than manipulate the 1982 ruling in inventive but unpersuasive ways.

An Unlikely Contributor to Seattle's Demise: Grutter v. Bollinger

No one should be surprised that cases from the last 25 years like Croson (along with Adarand Constructors v. Pena, Parents Involved in Community Schools v. Seattle School District No. 1, among others)-all of which have made it considerably harder for states to engage in affirmative action-are in considerable tension with, and have effectively undermined, Seattle. What is surprising is that the single biggest judicial victory for affirmative action-the 2003 Grutter v. Bollinger case in which a 5-4 Court upheld the University of Michigan Law School's race-based affirmative action program-also might have (unwittingly) undermined Seattle. Indeed, Seattle's demise may have been baked into the very cake of Grutter's analysis.

To see this, we need shift focus from the alleged costs of affirmative action to its benefits. Justice O'Connor's reasoning upholding the Michigan Law School's affirmative action policy in Grutter-and the larger diversity justification trend of which Grutter is an example-emphasizes the advantages affirmative action creates for non-minorities, and in so doing erodes the idea that affirmative action is especially beneficial for underrepresented groups. As a pair of law professors observed years before Grutter, diversity is an appealing justification that may "enable an educational affirmative action program to pass constitutional muster because democratic and dialogic educational benefits accrue to all students" (emphasis added). And hear the words of Justice O'Connor in Grutter, defending the Michigan Law School plan without regard to whether it helps minorities in particular:

The[] benefits [of diversity] are 'important and laudable, because 'classroom discussion is livelier, more spirited, and simply more enlightening and interesting' when the students have 'the greatest possible variety of backgrounds.' . . . The Law School's claim of a compelling interest is further bolstered by its amici, who point to the educational benefits that flow from student body diversity. . . . In addition to the expert studies and reports entered into evidence at trial, numerous studies show that student body diversity promotes learning outcomes, and "better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals." . . . These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. . . . What is more, high-ranking retired officers and civilian leaders of the United States military assert that, "[b]ased on [their] decades of experience," a "highly qualified, racially diverse officer corps . . . is essential to the military's ability to fulfill its principle mission to provide national security." . . . [And] [i]n order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.

It is perfectly understandable that a "win-win" rationale for race-based affirmative action (that emphasizes how such programs benefit everyone) would be attractive, in both legislative and judicial arenas. But if affirmative action is styled in these terms only, then the Court could naturally think that the intended beneficiaries of affirmative action-the entire polity-should be empowered to decide whether they think the benefits outweigh the costs. Proposal 2 and measures like it are no longer as easily viewed as majorities cutting off programs that help minorities, since the elimination of affirmative action (on this view) hurts majorities as well.

Lest I be misunderstood, I should be clear that I do embrace the diversity rationale. But I wish it hadn't come about as a substitute for-as opposed to a supplement to-a remedial rationale that highlights the distinctive importance of access for certain minority racial groups. In the Croson ruling from a quarter century ago (involving a preference awarded to minority contractors in Richmond), the Court sent the message that the goal of remedying past discrimination was not one on which government should be able to act easily without detailed findings as to exactly what discrimination occurred, when, and by whom. No one denied that there had been overwhelming, pervasive, and persistent societal discrimination against African Americans in Richmond for generations. Yet the main opinion in Croson said, in dismissing the relevance of this history: "It is sheer speculation how many minority firms there would be [today] absent past societal discrimination." This is true, but to deny government officials the ability to redress past discrimination altogether, simply because the enormity of that task creates uncertainty about whether any proposed remedy is perfectly calibrated to the wrong, creates a perverse situation. The greater the past injustices, the more powerless the government is today to deal with their effects, which are undeniably real and lingering, but inevitably somewhat fuzzy in their particulars.

It is for this reason that the goal of remedying past discrimination has largely been abandoned as a legal justification for affirmative action programs, at least in the higher education setting, the area where debate remains most lively. Instead, diversity of the student body as a pedagogical asset is (understandably) the primary interest that universities assert (as they did in Grutter) to defend race-based programs. Again, I do not disagree with the idea that diversity can be a compelling interest. But I do think that most defenders of affirmative action, were they completely honest, would say that the remedial justification, especially in the case of African Americans, is the most natural, obvious, and compelling reason to maintain race-based programs. And this instinct explains why defenders of affirmative action generally believe that such programs are distinctively helpful to minorities, the very premise of the Seattle ruling that Justice Kennedy thinks cannot be acknowledged by government.