SALT

Volume 2003, Issue 3 Society of American Law Teachers August 2003 In This Issue Co-Presidents' Column Commentary on Lawrence v. Texas, Paula C. Johnson, Syracuse University College of Law, and Michael Rooke-Ley, Seattle University School of Law (visiting 2003-04) pages2-6 Greetings, once again, from your bi-coastal co- Commentary on Grutter v. presidents-Michael in Eugene, Oregon, and Bollinger,pages 7-15 Paula in Syracuse, New York. As we write to you during these first days of August, we find Supreme Court Roundup, ourselves reflecting on SALT's accomplishments pages15-16 with considerable pride. Yet, as we look ahead, we feel as if we can ill-afford a moment's rest. All of us are gratified-and enonnously Nancy and Paula's Cycling Tour, relieved-by the Supreme Court's decision in Grutter v. Bollinger. There is, of course, no pagesll-23 issue more central to the work of SALT than affinnative action in law school admissions. In 1976, SALT filed an amicus brief in Bakke, and, a generation later in 2003, an amicus brief Committee News, pages 24-29 in Grutter. In addition, so many of you, as SALT members, spoke out in various ways through the media, building momentum as oral arguments drew near. Our half-page ad in The Book Review: Socialjustice Washington Post was widely-read and well-received, and SALT's press conference and partici- Textbook, page 29 pation in the Washington, D.C., rally on April 1st demonstrated, once again, SALT's commit- ment to activism beyond the ivory tower. (See commentary on the Grutterdecision starting Political Activist Rally, page 30 onpage7.) We were also deeply heartened by the Court's decision in Lawrence v. Texas. The teaching of-and living with-Bowers v. Hardwick, year after year sincel 986, has been a personally painful experience for us all, and Justice Kennedy's eloquence lifted a huge burden and provided an occasion for some celebration. As you are well aware, SALT signed on to an SALT EQUALIZER amicus brief in Lawrence, and SALT members, individually and as part of our committee, The SALT Equalizer is a publication of the Society of have been long-standing leaders in the struggles for equality and justice facing gay and American Law Teachers and is pulilished quarterly. lesbian communities. (See commentary on the Lawrence opinion starting on page 2.) EricS.Janus Co-Editor These victories will be short-lived unless we remain vigilant. We know all too well, for Raleigh Hannah Levine Co-Editor instance, that the Bush Administration and its conservative supporters are seeking to avenge Paula C.Johnson Co-President Michael Rooke-Ley Co-President these "losses" through nominees to the federal bench, including, perhaps, the Supreme Court Nonn Stein Treasurer itself. Thus, the work of our Judicial Nominations committee, chaired by Bob Dinerstein Joyce Saltalamachia Historian Mary McGlynn Layout (American University), is of dire importance. We urge you to join the committee or to offer your expertise on an ad hoc basis. (See news of the committee's work starting on page 25.) To contact the SALT Equalizer, write the editors at Further, having been provided a veritable blueprint by Justice Scalia in Grutter, anti- William Mitchell College of Law, 875 Summit Ave., St. Paul, MN 55105-3076; call 651-290-6345 or 651-290- affinnative action activists are planning the next assaults on diversity and fairness in higher 7503; or e-mail [email protected] or education. Through our monitoring efforts, we must ensure that the Court's recognition of [email protected]. Visit the SALT web site at www.saltlaw.org. the importance of diversity and equal opportunity in higher education are achieved by our institutions. Presidents' Column continued on page 2 www.saltlaw.org

Presidents' Column: Court's opposite position in Bowers Te just seventeen years ago. ... continuedfrom f page 1 Commentary on Lawrence v. exas Even in areas that are not doctri- Similarly, the backlash against the nally related, Lawrence is likely to Lawrence opinion and against gains serve as an agent of further change. toward greater societal inclusion by the Putting Lawrence v. Leading advocacy organizations like LGBT community must be countered by Lambda Legal Defense and Education coalition efforts that recognize the Texas to Work Fund and the American Civil Liberties importance of equality and fairness for all Marc R. Poirier, Seton Hall University Union's Lesbian and GayRights Project persons, irrespective of sexuality. School of Law have already promulgated post-Lawrence SALT's work continues on many other agendas, seeking to capitalize on its Lawrence v. Texas is a wonderful and-to fronts, as well. First Monday, October 6th, momentum. Lawrence is also triggering a me-unexpected victory. It overturns the is not far off, and we ask you to plan vigorous reaction from the religious right. Texas same-sex only sodomy law, not on a It sees Lawrence as a threat to traditional narrow Equal Protection ground as some marriage and familystructure , and had predicted, but in a broad holding "[W]efind ourselves another indication of the decline of finding a constitutional privacy right to morality in our society. Calls have gone reflecting on SALT's consensual sexual activity in intimate out for a federal constitutional amend- accomplishments with relations in private locations. Byoverrul- ment to "protect" opposite sex marriage, ing Bowers v. Hardwick in the way it and for a renewed effort to overturn Roe v. considerable pride. does, Lawrence removes a tremendous Yet, as we look ahead, Wade. The libertarian right, which stigma from gays and lesbians throughout opposed the Texas sodomylaw on the we feel as ifwe can the country. Even though sodomylaws general principle of limited government, ill-afford a moment's were rarely enforced, they were often now claims Lawrence as its own victory, a invoked to brand gays and lesbians as rest." different position from that of the potential criminals in contexts running religious right, but one also out of from adoption to discrimination in alignment with progressive causes. employment. The amicus brief in public interest/social justice-oriented The Lawrence decision on privacy is Lawrence that SALT signed addressed just events on your campus. Feel free to contact doctrinally limited in subtle but impor- this issue of cultural shift as a basis for our First Monday committee chair, Tayyab tant ways. The privacy right protected overturning Bowers.Lawrence affects the Mahmud (visiting at Seattle University) , seems to involve sexual activity in a whole country, not just the thirteen states context of binary intimacy, primarily in for assistance. Also, we are moving ahead that still had sodomy laws, as a cultural with our diversity survey, as an alternative the home. We could also identify these as marker of an ongoing change, an to the poisonous rankings in U.S. News & "decisional," "relational," and "zonal" increasing acceptance of homosexuality as World Report; with our proposals for privacy interests, following the amicus a normal variant of human sexual and alternatives to conventional bar exams; brief filed on behalf of international affectional activity. with our critique of the lawschool human rights groups, with Mary Robinson Many legal, political and social admission process; and with our efforts to as the lead plaintiff. One might question victories over the past few years have challenge the Solomon Amendment. whether Lawrence is altogether clear brought us to this point. The larger The opportunity for us to work with about a constitutional right to casual sex instrument of change here is visibility. the SALT membership remains enormously (not intimate) or sex involving more than Decades of standing up to vicious stereo- rewarding. As an all-volunteer organiza- two people (not binary, perhaps not types and insisting on fair treatment-at tion, our continuing effectiveness depends intimate), although it seems likely that first by a fewcourageous individuals, often on your willingness to join a committee, Lawrence will be read to prohibit at great personal sacrifice- has shifted offer fund-raising suggestions, or contrib- criminalizing adult consensual sexual cultural norms. ASup reme Court opinion ute financially. Remember: SALT is the activity that occurs within the walls of the acknowledging this change is extraordi- progressive voice in legal education. Your home. narily important, especially given the active support ensures that we will be heard. Poirier continued on page 4

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It Ain't Just About Sex

Elvia Arriola, Northern Illinois University College of Law Commentary on Lawrence v. Texas

Right after the Supreme Court decided on June 26, 2003, that my consensual sexual acts as a lesbian aren't the goverriment's business, I asked two friends what they thought of the amazing landmark decision in Lawrence v. Texas. One said, "I don't trust it. ... Someone Understanding Law's will just come back with some way of getting at us through different means." Another said it Exclusionary Power was "wonderful .. . . It'll have a positive impact in other areas of gay people's lives." For those of us who have followed the direction of the law since the devastating blow in Bowers Joan W. Howarth, Boyd School of Law, v. Hardwick, which rejected the notion of a fundamental right to homosexual sodomy, University of Nevada, Las Vegas Lawrence comes full circle to the obviously right result. But maybe that result is one that My difficulty taking in Lawrence taught the nation wasn't ready for in 1986, when Bowers was decided. I wonder, though, what me something about the exclusionary makes us more ready now? Is it just the end product of a long campaign that had so many power of law. Even as I read the breaking mixed results following Bowers-from the military's "Don't Ask, Don't Tell" policy, to the newswire story that Lawrence had recognition of marriage rights by Hawaii, to a backlash with the federal Defense of Marriage overruled Bowers, I had no capacity to Act (DOMA), to a civil union law in Vermont but several mini-state DOMAs, to the ongoing believe it. Afew minutes later, even as I struggle by universities to hang on to their federal funds when they try to keep the homopho- read Justice Kennedy's repudiation of bic military from interviewing their students? Is it a promise or something to deflect our Bowers and cried tears of relief, some very attention away from more serious threats to our civil liberties (e.g., the PATRIOT Act) raised primitive instinct toward self-protection by the fallout of 9-11? had my brain racing to consider every At a time when the separation of church and state is being continually challenged, this possible scenario in which this could be an decision affirms the right to say that the government can't tell me what to believe about elaborate hoax. This profound and what's moral or not in sex; it can't tell me whom to love or whom to marry; it must stay out irrational wariness surprised and unsettled of my bedroom unless what I'm doing isn't consensual and may injure someone who is a me. I had taught Bowers countless times, minor or who can't consent. Along with the affirmative action decision in Grutter v. assigned papers on "How Bowers changed Bollinger, these decisions tell me the work of the progressive is long, arduous, unpredictable. my life," assigned Michael Hardwick's oral It gives me a little faith in the system just when I'm tired of grinding my teeth from the history, shown a Michael Hardwick video latest anti-terrorist measures being announced by the Department ofJustice. But I need to in class, and considered myself relentless in tell my friends that the distrust of one and the optimism of the other are both realistic. refusing to minimize the bigotry and pain Arriola continued on page 6 of Bowers. But I did not understand how much Bowers had gotten to me, and how A Bottom Line Victory How Far We've Come central it has been to my very personal understanding of law's exclusionary power, Pat Cain, University of Iowa College of Law Art Leonard, New York Law School until I found myself unable to trust that it Kennedy's decision in Lawrence explicitly I am particularly struck by the ironic was really gone. Now I think about overruled Bowers v. Hardwick. I view that justice of this historic opinion being Mccleskey v. Kemp, which accommo- as a major victory. While Kennedy was not written by Justice Anthony M. Kennedy, Jr., dated systemic racism in the imposition of clear about the exact content of the who was appointed to the seat vacated by the death penalty. McCleskey and Bowers "liberty" interest at stake in the case (e.g., Lewis F. Powell, Jr., who cast the deciding were both landmark 5-4 decisions in which he does not call it a right to privacy), he vote against us in Bowers v. Hardwick 17 Justice Powell provided the swing vote and was perlectly clear that criminal laws years ago. That everybody involved with the then reportedly expressed doubts after banning intimate sexual relationships case expected a victory-the only things in leaving the bench. I wonder what it will between consenting adults in private are doubt being which theory the Court would take to overruleMcCleskey, and I under- unconstitutional. That is the bottom line. use and how big the majority would be- stand more deeply how powerful the This opinion is the final proof that those shows how far the lesbian and gay rights repudiation of Mccleskey could be. GLB rights activists who supported movement has come in the intervening Kennedy's nomination so many years ago years. On to bigger things!!! had the right instincts.

SALT Equalizer Page 3 August 2003 www.saltlaw.org

police power authority to prohibit evolution of social norms? Lawrence also activities deemed to be harmful to the uses human rights decisions from Europe Commentary on Lawrence v. Texas community or to individuals. The to make its argument about cultural shift, distinction between harm and mere an interesting development that is moral opprobrium is not always anathema to conservative members of the Poirier: certain, though, and is sure to be the Court. Similarly, Justice Ginsburg's continuedfrom page 2 subject of future cases and law review concurrence in Grutter leads off with a articles. reference to international norms for Lawrence does not answer clearly Doctrinally, it is interesting that affirmative action. The parallel in whether there is a right to sexual activity Justice Kennedy's majority opinion in arguments is interesting, especially as in places not quite so private, e.g., in a car, Lawrence rejects a view of Due Process reference to international practices or at a music festival, in the woods, on the liberty rights as rooted in long tradition. precedents is also anathema to some beach, in a sex club (not physically as conservative members of the Court. private as a home, not intimate, perhaps The Lawrence decision does not not binary). The idea of semi-private address discrimination law directly, sexual activity has not achieved the same ''Lawrence [is] a although as discussed above it does good cultural acceptance as the intimate sex in cultural marker ofan work by showing that homosexuality has the home protected by Lawrence, and ongoing change, an become more mainstream as a part of probably makes most Americans uncom- American culture in the last fifty years. On fortable. It is of concern nevertheless increasing acceptance discrimination issues, we may see a because most arrests of gay men for sexual ofhomosexuality as a somewhat ironic flip-flop on the status- activity are brought under public inde- normal variant of conduct argument. After Bowers and cency and lewd conduct statutes, and these human sexual and before Lawrence, GLB advocates in various arrests are likely to continue after contexts argued that even though same sex Lawrence. Among the other issues affectional activity. sexual activity could be criminalized per unaddressed by Lawrence are the rights of [But] SALT and its Bowers, just because an individual self- transgendered/transsexual folk (no sexual members need to keep identified as gay should not permit anyone activity, no intimacy, not limited to to assume thats/he was actually engaging home). their eyes on the in or likely to engage in sexual activity. A Justice Scalia's dissent, like the political fallout ... " distinction was thus drawn between status conservative positions it reflects, claims and conduct. After Lawrence,we may see a that if a state is not allowed to make laws strategy that seeks to link homosexual based on its own moral determinations, Instead he places emphasis on the status explicitly to sexual conduct. The then laws against bigamy, same-sex traditions of the last fifty years. Bowers argument would be that discriminating marriage, adult incest, prostitution, was wrong when decided, he writes, because against GLB individuals is indirectly masturbation, adultery, fornication, it should have noted an emerging burdening a protected constitutional right bestiality, and obscenity will also fall. recognition that liberty includes protection to private sexual activity. Thus, GLB people Elsewhere he adds child pornography to the for adults in deciding how to conduct their may seek to be presumed to engage in list. Much of this is hot air. While activities in their private lives concerning sexual activity. Presumed conduct would masturbation and fornication among sex. The Grutter v. Bollinger majority protect openly gay status. consenting adults in private are now also recognizes that affirmative action in The issue of gay men and lesbians in probably constitutionally protected, the some forms, while appropriate now, may the military may or may not be affected by other categories may or may not be reached not be appropriate in twenty-five more the Lawrence decision. As of this year, the by Lawrence, for reasons varying from lack years. (See Grutter commentary on pages tenth year of the "Don't Ask, Don't Tell" of intimacy (prostitution is commercial, 7-15.) Are we looking at a Court that is policy, more than 9000 GLBT therefore arguably not intimate) to willing to be explicit about viewing servicemembers have been processed out of governmental definition of a conferred fundamental constitutional issues the military, according to Servicemembers status (bigamy laws protect marriage) to through the lens of pragmatism and Legal Defense Network, an advocacy group

SALT Equalizer Page 4 August 2003 www.saltlaw.org that does work in this area. Acase has articulated inlawrence. already been filed relying on Lawrence to The classic question is "What is to challenge the expulsion of a career be done?" SALT joined one of the Commentary on Lawrence v. Texas servicemember on the basis of his homo- amicus briefs in Lawrence, and SALT's sexuality. But there is a traditional judicial activity on judicial nominations has deference to military decisions, and included opposition to candidates with resources of law schools against their will. national security may well serve as a trump Litigation that challenges the Solomon argument at this particular moment in Amendment seems likely, and will bring history. Again, visibility and cultural "We need to consider the First Amendment issues to the fore, acceptance in other contexts will probably making the issue seem far less tangential. eventually erode military opposition to how SALT can best And a reversal of the military's "Don't ask, openly GLBT people in the military, but it facilitate the often don't tell" policy would make the whole may take another generation, until the local activism for issue moot. career military personnel who were change that makes More broadly, SALT and its members teenagers in the 1980s become command- need to keep their eyes on the political ing officers. possible larger Justice O'Connor wrote a concurring victories such as Poirier continued on page 6 opinion in Lawrence based on Equal Lawrence." Protection doctrine. In her view, a state could prohibit sodomy if it wished, but A Letter from Sylvia Law there was no evident reason for Texas to terrible records on GLBT issues. Generally prohibit sodomy between same sex couples speaking, though, SALT has typically Following is the text of a letter sent by and yet allow it between opposite sex focused its organizational energies on New York University School ofLaw couples. O'Connor's opinion holds that legal education and legal institutions. Professor Sylvia A. Law to United States mere moral disapproval, like animus, is Much SALT work in the area of GLBT issues Supreme Court Associate justice Anthony insufficient to satisfy rational basis review. has addressed the enforcement of law Kennedy on July 1, 2003. She thus applies the "rational basis with school nondiscrimination policies in bite" approach of Romer v. Evans. It is recruiting, specifically concerning on Dear Justice Kennedy: worth noting that the day after Lawrence campus recruiting by the military. That is Thank you for your magnificent came down, the Court granted certiorari to say that SALT has focused on law school decision and opinion in Lawrence v. and then vacated and remanded the implementation of the AALS nondiscrimi- Texas. decision in Limon v. Kansas, a case in nation policy and the challenges posed by Your contribution to the complex task which state law treated consensual sex the Solomon Amendment. Analysis of of defining the liberty protected by the between same sex teenagers much more Lawrence and attention to the follow-up constitution is as sage and eloquent as any harshly than between consenting opposite programs being developed in light of Supreme Court opinion since Justice sex teenagers. The state court opinion in Lawrence should be part of any law Harlan's dissent in Poe v. Ullman. Limon cited Bowers, but the constitu- school's GLBT presence, and could fit Your elucidation of history and its role tional challenge was an Equal Protection within the amelioration obligation. in constitutional decision making is challenge. It is easy to read too much into a Within the specific confines of the law informed and wise. GVR order, but perhaps this is a signal that school, GLBT advocacy sometimes finds Most important, your opinion reflects the lower courts must take seriously the itself in some conflict with other civil profound empathy and respect for human Equal Protection argument not addressed rights work, and SALT would do well to dignity. by the majority in Lawrence. Equal explore how to address coalition work here. You will no doubt receive many critical Protection arguments are likely to be Although Solomon Amendment work letters. I hope not as many or as nasty as crucial for status issues like marriage/ is important, it sometimes has the feel of those directed to Justice Blackmun in domestic partnership/civil union, which the tangential, a symbolic battle in which response to Roe. But many of us are deeply are not linked directly to the privacy right the military seeks to commandeer the grateful to you. Sincerely, Sylvia A. Law

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Poirier:

Commentary on Lawrence v. Texas continued from page 5

fallout from Lawrence. The religious right Arriola: will push for an ultraconservative Supreme Court appointment and a constitutional continued from page 3 amendment around opposite sex marriage. When the one who said "wonderful" prefaced her commentary with her understanding of the Progressive law professors will need to work outrageous facts that led to the appeal-the police barged into the home of two men engaged in coalition with reproductive rights in sex whose neighbor had made a false 911 call-I briefly educated her on the reality that groups as well as GLBT advocacy groups to such incidents occur frequently in the homes and neighborhoods of those who are vulnerable counter these conservative demands. And of to police abuse because of their class and race, a reality she doesn't have too think of often as course, much work remains to be done on a white lesbian. I'd have to agree with my distrusting friend that Lawrence is wonderful but the GLBT front: marriage (or perhaps it's only an important step forward and it equivalents); adoption and custody; doesn't take care of potential backlashes nor antidiscrimination work, including the "Is Lawrence a does it guarantee against other people abusing military issue, which I see as especially the right of privacy in the name of anti- important because it undermines the promise or something terrorism or other conduct that isn't queer sex. gender stereotyping of the military; to deflect our IfLawrence is the Brown case for sexual transsexual/transgender issues; issues in attention away from minorities then there is much to applaud, but schools, including curriculum, the more serious threats hard work must follow for the sexual minority presence of Gay/Straight clubs, and anti- community to feel it has won the campaign bullying policies. I would also include an to our civil for its citizenship rights. expanded scope of privacy protection for lib'b er ties.....?" We can hope thatl.awrencewill have a some more stigmatized types of sexual domino effect, but how and for whom? I think activity. Much of this work is at the local of how Lawrence is a coup for queer sex, but or state level. Much of it is not even legal what does it really do for my friend who, as I write, is recovering from transsexual reconstruc- but is about addressing local practices and tive surgery? She suffers mistreatment not necessarily because of her choice in love but just policies in private institutions like for being "too queer" as a transgender. Lawrence covers the issue of sex behind closed doors, corporations, universities and churches. but does it really handle the issue of identity-based discrimination, i.e., the impact of sheer Visibility is, as ever, at the center of the prejudice? One would hope that is what Kennedy meant in stating that the penalty under the process of change here. Both the ACLU and Texas law was minute, but the stigma is harsh. It's the impact of being labeled a deviant by Lambda Legal offer websites addressing one's society or being treated as a second class citizen just for being different from any ways in which individuals can get involved dominant majority. O'Connor covered this issue to some extent in focusing on Texas' not to effect change at the local level. SALT's having a problem with sodomy per se but only with gay sodomy which, she felt, made the hosting of a Solomon Amendment website statute illegal on equal protection grounds. certainly fits within this approach to Yet my mixed reactions aside, this is a satisfying result to those of us who have labored as facilitating local political action and scholars, lawyers and expert witnesses for years to challenge the unfair stereotypes that have change. SALT's members are a busy lot, led us to lose jobs, homes, child custody, and essential medical treatment. Kennedy's sometimes even-

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Rejoice and Refuel: Reflections on Grutter Emily M.S. Houh, University of Cincinnati College of Law Commentary on Grutter v. Bollinger

When I first got word of the Supreme Court's ruling in Grutter v. Bollinger on that June day, I literally jumped out of my chair in my office, squealed with delight, and began Jam Tomorrow and Jam running and jumping down the hallways of our faculty floor, yelling, "They ruled in favor of 1 Michigan! The policy's been upheld! WOO-HOO!" Looking back on it now, perhaps this Yesterday: wasn't the most appropriate way to respond, given that I had been in residence at my new Reflections on Grutter, school for only a couple of weeks. I probably should have just calmly e-mailed our faculty Gratz, and the Future of listserv about Michigan's victory, as several of my more seasoned colleagues had. But then, it Affirmative Action2 felt really good to be exuberant! When years of individual and collective anxiety, anger, hard work, and coalition building pay off in such a concrete way, why not leap for joy? Never mind SALT Co-President Paula C. Johnson, that I hadn't yet read the opinion; at that moment, I was ecstatic for one reason alone: We Syracuse University College of Law had won! When the Supreme Court issued the I say "we" not only as a member of a progressive community that supports affirmative intensely anticipated decisions in the action and, more broadly, the dismantling of white supremacy and sexual subordination; I University of Michigan cases, Grutter v. say "we" also because I am a graduate of the University of Michigan Law School ('96) . I Bollinger and Gratz v. Bollinger, many graduated a couple years before Ms. Grutter, et al., filed the lawsuit, and had participated in of us who were wary of the Court's position the Law School's Minority Affairs Program ("MAP") as a first-year student. Within our on affirmative action found much to cohort, 1 rumors had always circulated about irate majority students who claimed that we had applaud in the Court's opinions. For the "exclusive" access to imagined "special perks," as well as of disgruntled majority applicants first time since Regents of Univ. of Calif whose places we had "stolen." As we studiedBakke2 in our constitutional law classes, we v. Bakke, in 1978, the U.S. Supreme Court wondered collectively if and when the ugly rumors of impending lawsuits challenging the reaffirmed the constitutionality of race- constitutionality of the MAP program and the admissions policy would ever materialize. Only conscious admissions in higher educa- a few years later, of course, the rumors of the admissions lawsuit proved true, and the Grutter tional programs. In its ruling, the Court in and Gratz complaints were filed in the U.S. District Court for the Eastern District of Michi- Grutter (5-4) left no doubt that it adopted gan, where I was clerking at the time. My stake in the outcome of the Michigan cases, Justice Powell's pivotal opinion in Bakke, however, grew not only out of a general commitment to social equality and a temporal and in which diversity in higher education was physical proximity to the litigation, but also out of my experiences as a law student at found to constitute a compelling state Michigan. interest. As Justice O'Connor wrote, During those three years the administration at Michigan saw a great deal of organizing "[T]oday we endorse Justice Powell's view by progressive students: We were African-American, Latino/a, Asian Pacific-American, that student body diversity is a compelling American Indian, lesbian, gay, and bisexual, straight, and white. We joined and participated state interest that can justify the use of with a vengeance in public interest and reading groups, organized conferences and panels, race in university admissions." started a journal, and organized to demand curricular changes and diversity in faculty hiring. Moreover, the Court issued an un- We fought about strategies, programs, and the ultimate goals of our organizing. We pulled equivocal pronouncement on the impor- all-nighters doing work that did not involve preparing for class, but taught us to be good tance of racial and ethnic diversity in strategists and activists. We missed classes in order to meet what we believed were more higher education and to the society at important deadlines. We did the hard work that is always involved in good coalition activism, large. In this regard,Justice O'Connor and were rewarded with some positive and permanent changes to the institution, incredible stated in Grutter, "In order to cultivate a and lasting friendships, and a heartfelt sense of collective empowerment and purpose. I am set of leaders with legitimacy in the eyes of certain that my classmates from Michigan are still driven in their practice, teaching, and the citizenry, it is necessary that the path to writing by the same principles and passions that drove us in law school. Without one leadership be visibly open to talented and another-that is, if the student body had not been as diverse as it had been at the time-I'm qualified individuals of every race and not sure where we'd all be or what we'd be doing now. Would we be (even more) jaded and ethnicity." Such strong recognition of the embittered (than we are) about our law school experiences? Would we be burned out by our governmental interest in racial and ethnic practice, whether public interest or big firm? Would we have stopped feeling a sense of diversity is a salutary development in the Reflections continued on page 8 jam 1bmorrow continued on page 11

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law students, undergraduate students found its way into the majority and Commentary on Grutter v. Bollinger from colleges around the country concurring opinions. intending to apply to the Law School, Indeed, as is probably true for many of and high school students from various us, when I first picked up Justice Reflections: public schools in the city of Detroit. O'Connor's majority opinion in Grutter, I Having grown up in the Detroit suburbs, I had braced myself for disappointing ... continuedfrom page 7 can attest to the chronic residential and equivocality, but found myself pleasantly educational segregation and inequality surprised. Although there is certainly room gratitude for and pride in the work of those that continue to plague not only the for critique of the opinion and, more who came before and after us? Would we metropolitan Detroit area. At trial, the broadly, the way in which the "liberal have been sapped of the energy and long- student intervenors presented thorough and defense of affirmative action" 5 dominated term commitment required to engage in compelling evidence and testimony about Michigan's arguments and those of many social justice activism? Aloss in Grutter the realities and impact of this segregation of its supporters, I was struck by sentences would have meant not only a major and inequality, thus bringing to light in the opinion such as: "Context matters setback in the struggle toward what was really at stake in a material when reviewing race-based governmental sociopolitical equality and justice; it action under the Equal Protection would have meant personal defeat, in the Clause ... . Not every decision influenced deepest sense. Perhaps that is why I "We should. .. continue by race is equally objectionable and strict couldn't refrain from running the to feel and express scrutiny is designed to provide a framework hallways on that June day. exuberance over the for carefully examining the importance * * * and sincerity of the reasons advanced by Yet, looking back on those law school victory won in Grutter, the governmental decisionmaker for the experiences, I can't help but wonder but as we do so, we use of race in that particular context. "6 whether we could have done better. After must be sure to re- Could it be that this really was an all, although we had some success, fuel for the many O'Connor opinion? Had she at last gained Michigan's very large faculty still includes some sense and reason in matters relating very few tenured or tenure-track faculty of battles to come and to affirmative action? As I read on, it color, and every year student groups plan for a time when appeared that she had, at least in part. working together at Michigan solicit we can finally go on In distinguishing this case from her alumni support as they diligently continue other (disastrous) affirmative action to fight for faculty and curricular diversity. the offensive." opinions, for example, O'Connor had As a Michigan alum, it is deeply satisfying taken to heart the "important purpose of to know that in part because of the Grutter sense for so many: the struggle for racial public education and the expansive decision, student activism will continue to and educational equality and the impor- freedoms of speech and thought associated flourish at the University of Michigan Law tance of integration in that struggle. with the university environment," the School, even where this most certainly will Proudly, SALT, in an amicus brief filed in public university's "special niche in our translate into students continuing to give support of Michigan, 3 also made compel- constitutional tradition," and the real hell to the administration and faculty for ling arguments to the Supreme Court significance of a public university's First their own homogeneity. The best example about the effects of residential and Amendment right to "educational of student activism at Michigan, of course, educational segregation and inequality in autonomy. "7 It was a relief to know that can be found simply by looking to the metropolitan Detroit; Justice Ginsburg the Court seemed to understand what Grutter litigation itself. Fortunately for noted these effects in her concurring academic freedom is actually about: a all of us, the student intervenors in opinion.4 And while the student interve- university's freedom to make its own Grutter had the courage to stake their nors were neither credited nor mentioned decisions concerning its goals, programs, (and our) claims in the litigation, which by the Supreme Court for the extraordinary and "the selection of its student body."8 the Sixth Circuit Court of Appeals evidence they placed in the record- Emphasizing this special educational permitted, following the district court's evidence that, in part, made the Court's context.Justice O'Connor, joined by initial denial of their motion to intervene. ruling possible given its composition-the Justices Stevens, Souter, Ginsburg, and The student intervenors included Michigan spirit of their arguments seems to have Breyer, resolved the controversial issue left

SALT Equalizer Page 8 August 2003 www.saltlaw.org open in Bakke of whether diversity is a one Nation, indivisible, is to be realized. compelling state interest in the context of Commentary on Grutter v. Bollinger public higher education by holding Moreover, universities, and in resoundingly that it is.9 Subsequently, the particular, law schools, represent the Court upheld the Law School's admissions training ground for a large number of policy-which is based on the assemblage our Nation's leaders .... In order to mass admissions policy can be seen as of a diverse student body that includes a cultivate a set of leaders with anti-essentialism theory in practice. "critical mass" of students of color-as legitimacy in the eyes of the citizenry, Although this was something that Ms. being narrowly tailored to serve this it is necessary that the path to Grutter's lawyers and the district court compelling state interest, and rejected Ms. leadership be visibly opened to never quite got a handle on, O'Connor Grutter's argument that the Law School's talented and qualified individuals of understood the fundamentals of anti- use of the "critical mass" concept every race and ethnicity. All members essentialism (though not to a radical constituted a functional quota.10 In so of our heterogeneous society must extent), even if she did not use the doing, O'Connor considered the "real" and have confidence in the openness and language of critical race feminists: "substantial" educational benefits flowing integrity of the educational institu- The Law School does not premise its from a diverse student body. She noted in tions that provide this training. 11 need for critical mass on "any belief particular that: While this language is astonishing in that minority students always (or even T] he Law School's admissions policy some ways, it is not in others. The Court, consistently) express some characteris- promotes "cross-racial understand- for example, failed to acknowledge the tic minority viewpoint on any issue." ing," helps to break down racial "not theoretical but real" disparities To the contrary, diminishing the force stereotypes, and "enables [students] to between whites and people of color in of such stereotypes is both a crucial better understand persons of different their/our "effective participation ... in part of the Law School's mission, and races." ... civic life," which disparities are reflected one that it cannot accomplish with [N] umerous studies show that most significantly in the socioeconomic only token numbers of minority student body diversity promotes and political disempowerment and students. Just as growing up in a learning outcomes, and "better disenfranchisement of communities of particular region or having particular prepares students for an increasingly color in the United States. Moreover, professional experiences is likely to diverse workforce and society, and O'Connor's reference to the United States' affect an individual's views, so too is better prepares them as professionals." economic success in the global market- one's own, unique experience of being These benefits are not theoretical place and that success's dependence on a racial minority in a society, like our but real, as major American busi- diversity (arguments that were made in the own, in which race unfortunately still nesses have made clear that the skills amicus brief filed in support of the Law matters .... needed in today's increasingly global School by General Motors and other large, [T] he Law School engages in a marketplace can only be developed likeminded corporations 12) stirs some highly individualized, holistic review through exposure to widely diverse feelings of unease. 13 While the economic of each applicant's file, giving serious people, culture, ideas, and viewpoints. and business justifications for diversity consideration to all the ways an might be compelling to many, justifica- applicant might contribute to a This court has long recognized that tions more firmly and explicitly rooted in diverse educational environment. The "education ... is the very foundation principles embodied by notions of Law School affords this individualized of good citizenship." For this reason, substantive equality and anti-subordina- consideration to applicants of all the diffusion of knowledge and tion struggle would have been even more races. 14 opportunity through public institu- so. Michigan's reliance on the critical tions of higher education must be And what are we to make of the Court's mass concept was well placed not only accessible to all individuals regardless ruling that the Law School's policy of because it won O'Connor's swing vote, but of race or ethnicity.... Effective admitting and enrolling a "critical mass" also because it compelled the Court to participation by members of all racial of students of color is a narrowly tailored concede that in our society today, race still and ethnic groups in the civic life of means by which to achieve the compelling our Nation is essential if the dream of state interest of diversity? On the one hand, Michigan's implementation of the critical Reflections continued on page 10

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twenty-five, particularly given how our teaching, writing, practice, and Commentary on Grutter v. Bollinger slowly we have progressed in the activism-between war, occupation, and twenty-five years since Bakke. our domestic civil rights struggles. All of * * * this gloom and doom and the accompany- Ironically, even though Michigan- ing call for perseverance is not to say that Reflections: with the support of scores of other law we should not continue to feel and express continued from page 9 schools, colleges, and universities 17-fought exuberance over the victory won in Grutter, and won (for now) the good fight to but as we do so, we must be sure to re-fuel matters. preserve affirmative action in the context for the many battles to come and plan for On the other hand, the "critical mass" of admissions, it appears that neither the a time when we can finally go on the concept did not compel the Court (for it Law School nor most of its peer institu- offensive. was not designed for this purpose) to tions have been quite as committed to that reconsider in any meaningful way its neo- Endnotes: fight in the context off aculty hiring ... 1. This cohort included several conservative dream of the "colorblind but that is a topic for another time and classmates who went on to become law society." 15 Just as troubling are the forum. Other affirmative action battles professors, such as Guy Uriel-Charles of the presumptions underlying the critical mass continue to loom large before us. In the University of Minnesota, Jeannine Bell of concept that minority students are wake of Grutter, for example, University of Indiana University-Bloomington, and Luis valuable first and foremost for the California Regent Ward Connerly has Fuentes-Rowher, also of IV-Bloomington. educational benefits they will confer on "joked" (and thus, we should take him 2• Regents of Univ. of Cal. v. Bakke, their majority classmates, and that they quite seriously) that he will bring his anti- 438 U.S. 265 (1978). have an obligation to confer those benefits affirmative action ballot initiative to 3. The SALT amicus brief can be in the first place. While it is true that all Michigan and other states, and our accessed on the SALT website at http:// of us benefit from the breaking down of opponents have already committed saltlaw.org/gruttersaltbrief.pdf, or on the stereotypes, students of color are far more themselves to bringing new challenges to University of Michigan website at http:// susceptible to being typed in specific and affirmative action policies that do comply www.umich.edu/-urel/admissions/legal/ particularly negative ways by their peers, with Grutter. On an even more potentially gru _amicus-ussc/um/SALT-gru.pdf. teachers, and potential employers than are devastating front, Connerly is also behind 4. Grutter v. Bollinger,_ U.S._, majority students; consequently, they must Proposition 54 in California, which 123 S. Ct. 2325, 2348 (2003) (Ginsburg,]., do more to "diminish the force of such proposes a state constitutional amend- concurring) (citing to statistics relating to stereotypes" than their majority counter- ment, officially titled the Classification by educational segregation and stating: parts. Analogously, and for a long time Race, Ethnicity, Color, or National Origin "[S]chools in predominantly minority now, feminists of color engaged in largely initiative (also known as, in the clever communities lag far behind others white feminist movements have expressed rhetoric of its proponents, the Racial measured by the educational resources their/our frustration over having to Privacy Initiative), which would bar state available to them. However strong the educate white feminists about race, as well and local agencies from collecting, public's desire for improved education as over the expectation that they/we will do compiling, or using information about systems may be, it remains the current so. Is this analogous burden in the law race and ethnicity. 18 We can well imagine reality that many minority students school context a fair one to place on the nightmarish consequences of such an encounter markedly inadequate and students of color, whether or not they are initiative passing in California, 19 where so unequal educational opportunities." part of a critical mass? And how will the many conservative movements seem to (citations omitted)). critical mass theory of admissions affect find their legs before going national. And 5. Charles R. Lawrence III, Two Views the future of affirmative action in the then, of course, there is global war and of the River: A Critique of the Liberal educational context? Will we ever be able occupation, which I cannot even begin to Defense ofAffirmative Action, 101 CowM. to get beyond the critical mass, assuming discuss in this commentary, for fear of L. REV. 928 (2001). that we want to? The Court says that we trivializing and oversimplifying the 6. Grutter, 123 S. Ct. at 2338 (citations have twenty-five years to figure that out. devastating and far-reaching effects of omitted) . Although, according to Supreme Court what may tum into a new era of American 7. jurisprudence, affirmative action programs Id at 2339. imperialism. Here, I simply echo Mari 8. Id are to be temporary remedies, 16 it is not Matsuda's call to make the linkages-in 9. "Today, we hold that the Law School clear why O'Connor chose the number

SALT Equalizer Page 10 August 2003 www.saltlaw.org has a compelling state interest in attain- Jam Tomorrow: ing a diverse student body." Id continuedfrom page 7 Commentary on Grutter v. Bollinger 10• Id at 2343. 11 . Id at 2339-41. ongoing struggle for inclusion throughout 12· Alink to the amicus brief filed by GM, et al., in support of the Law School American society, including in institutions of disparate and discriminatory treatment can be accessed athttp://www.umich.edu/ of higher learning. in education and throughout American -ureVadmissions/legal/gru_amicus-ussc/ Nevertheless, there are questions and society in a systematic way.Justice areas of concern raised by the Court's um/GM-both.pdf. O'Connor's recognition of these underlying opinion which may impact the future of 13· Thanks to Neil Gotandafor his issues is bnef. Finding that a "critical insightful observations concerning this affirmative action and the goal to end mass" of students of color is not tanta- point, which were posted during a lively racism in American society. These areas are mount to a quota system, she notes in discussion of the Grutter case that took discussed below. Grutter: place on the AALS Minority Lawprofs [D] iminishing the force of such Listserv shortly after the Court had issued 1. First, as an overarching matter, the stereotypes is both a crucial part of the its decision. Court limited the debate on affirmative Law School's mission, and one that it action to the diversity rationale. This is 14• Grutter, 123 S. Ct. at 2341, 2343. cannot accomplish with only token understandable, of course, as this was the 15• Id at 2350-65 (Thomas,]., numbers of minority students. Just as dissenting); see, e.g., City of Richmond v. sole basis upon which the University of growing up in a particular region or Croson, 488 U.S. 469, 520-28 (1989) Michigan justified its admissions having particular professional (Scalia,]., concurring). programs. The University based its defense experiences is likely to affect an 16. Fullilove v. Klutznick, 448 U.S. 448, on the prerogative of colleges and universi- individual's views, so too is one's own, 510 (1979) (Powell, J., concurring); United ties to determine the manner in which the unique experience of being a racial States v. Paradise, 480 U.S. 149, 171 (1987). educational mission was accomplished. minority in a society, like our own, in The exercise of this prerogative included 17. For a complete listing of and links which race unfortunately still to amicus briefs filed in support of the admissions decisions designed to achieve a matters. Law School in the Grutter case, including highly qualified and diverse student body She also observes that racial inequality several briefs filed on behalf of no fewer population for the individual and mayaccount for disparate educational and than 60 colleges, universities, and law collective educational enterprise.Justice societal experiences between students of schools, see http://www.umich.edu/-ureV O'Connor accepted this rationale without color and white students, noting that admissions/legal/gru_amicus-ussc/ reservation, and found no contradiction "[B]y virtue of our Nation's struggle with um.html. between the University's goal of academic racial inequality, [minority students] are . 1s· Fo r more irnormat1oninfo . on Proposi- excellence and racial and ethnic diversity. both likely to have experiences of particu- tion 54, see the Coalition for an Informed She stated," [T]he Law School's race- lar importance to the Law School's California website (http:// conscious admissions program adequately mission, and less likely to be admitted in www.informedcalifornia.org/facts.shtml) ensures that all factors that maycontrib- meaningful numbers on criteria that and the Californians for Justice Education ute to student body diversity are meaning- ignore those experiences." However, as the fully considered alongside race in admis- Fundwebsite (http://www.caljustice.org/ amicus brief filed by the Society of issues_elections.shtml). sions decisions. With respect to the use of American LLaw Teachers (and briefs filed by race itself, all underrepresented minority 19· For example, according to the mtervenors on behalf of students of color) Californians for Justice Education Fund students admitted by the Law School have argued, such racial justice concerns ' passage of CRECNO will "[[e] ndanger the been deemed qualified." warranted.fuller direct attention by the health and safety of all communities; Yet, by giving scant attention to the Court. As SALT demonstrated in our brief [h] amper . .. efforts to fight the spreadof social inequities that generate the need for deliberate governmental policies in the ' disease; [u] ndermine school reform and affirmative action programs in the first State of Michigan led to residential educational equity; [and] [a]llow racial instance, the Court virtually absolves segregation, discrimination in primary, profiling to continue." http:// governmental and other societal institu- secondary and higher education, and www.caljustice.org/issues_elections.shtml. tions of the responsibility to eradicate racial and economic injustice at the heart fam 1bmorrow continued on page 12

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The general absence of the which considers race and ethnicity in a ,, discrimination claims in the Court's nuanced manner, was constitutionally Commentary on Grutter v. Boldnger opinion helps to further embed factors acceptable. As such, race-consciousness is such as geographical and residential permissible as long as it is conducted in a location, status as offspring of alumni, holistic, nuanced manner, in which the Jam Tomorrow: racially segregated and under-resourced qualifications and attributes of each continuedfrom page 11 secondary schools, availability (or lack applicant is compared against those of thereof) of advanced placement courses, other individual applicants. However, by a employment discrimination. In addition, and over-reliance on standardized testing, 6-3 margin, with Justice O'Connor joining the University's reliance on the LSAT, with as non-neutral racially disparate determi- Chief Justice Rehnquist's majority its cultural, gender, and economic biases, nants of admission to institutions of opinion, the Court found that the had a disparate impact on minority higher learning. Inevitably, these issues University of Michigan undergraduate students seeking admission to the state will be raised in future considerations of program's 150 point system, in which 20 university. For these reasons, SALT urged affirmative action, so long as dispropor- points were assigned to minority appli- the Court to incorporate these salient tionate poverty levels within Native cants, was not narrowly tailored and arguments regarding racial disparity and American, Latina/o, African-American, and thereby violated the Equal Protection injustice into its decision. several Asian-American communities Clause. In this regard, the Court found that In large measure, such concerns were persist. For instance, the Children's Defense the undergraduate policy placed too much ignored, with the notable exception of Fund (CDF) recently reported that "the emphasis on race in an inflexible, Justice Ginsburg's concurring opinion. number of extremely poor black children is determinative way. Where Justice O'Connor is indirect, Justice now at its highest level in the 23 years for Upon closer consideration, however, it Ginsburg is straightforward: which such data exist." CDF also noted is difficult to find a convincing basis for It is well documented that conscious that extreme poverty has deepened since the Court's distinction between the and unconscious race bias, even rank the implementation of welfare to work program upheld in the law school, and discrimination based on race, remain requirements enacted in 1996 and that that struck down in the undergraduate alive in our land, impeding realiza- "fewer and fewer otherwise extremely poor program. Hence the distinction between a tion of our highest values and children of all races receive cash public policy that is constitutionally acceptable ideals .. .. As to public education, data assistance. Agrowing number have no and that which is not seems to be the for the years 2000-2001 show that assistance, despite their extreme poverty." difference between the oblique and the 71.6% of African-American children Obviously, high poverty rates within obvious consideration of race in university and 76.3% of Hispanic children communities of color will have a deleteri- admissions. As Justices Souter and attended a school in which minorities ous impact on learning opportunities at Ginsburg noted in separate dissents in made up a majority of the student all educational levels. While the Court Gratz, the undergraduate program body.. .. And schools in predomi- declined to formally address racial contained an objective scale that adhered nantly minority communities lag far discrimination claims in Grutter and to the racial "plus factor" system that behind others measured by the Gratz, these disparities remain at the heart Justice Powell approved in Bakke. By educational resources available to of why affirmative action is necessary, and assigning a range of point values to several them. However strong the public's why diverse racial and ethnic perspectives hard and soft admissions criteria, indi- desire for improved education systems are key to understanding, shaping and vidual assessments of candidates was may be, it remains the current reality implementing American law and policy. conducted and admission was not that many minority students guaranteed on the basis of race. Thus, it is encounter markedly inadequate and 2. Another area of concern lies in the ironic that the Court rejected the point unequal educational opportunities. primary basis for the split opinions in system in Gratz, as the University sought Despite these inequalities, some Grutter and Gratz, namely the constitu- an objective and flexible approach to the minority students are able to meet the tionality of the specific admissions policies admissions decision. high threshold requirements set for in the law school and the undergraduate What is particularly troubling about admission to the country's finest program. By a 5-4 margin, the Court the Court's distinction, however, is the undergraduate and graduate educa- determined that the admissions policy by preference for vague consideration of race tional institutions. the University of Michigan Law School, in admissions, when the Court has

SALT Equalizer Page 12 August 2003 www.saltlaw.org acknowledged the significance of race in in the Chicago Tribune, Justice O'Connor clarified that her mention of American life and educational opportu- Commentary on Grutter v. Bollinger nity. The Court's disapproval of the the twenty-five year period was an undergraduate program's clear approach to expression of hope, not a firm deadline. considering race and other relevant However, opponents of affirmative action attributes in the admissions decision will have seized upon this time-frame as a racial identity as an African-American and make it more difficult to deal with race constitutional line in the sand. his discomfort with having benefitted and racial disparity forthrightly. In Justice O'Connor's expressed desire for from affirmative action as the starting contrast, in upholding the law school's an end to affirmative action within a point for his dissenting opinion. policy, the Court perpetuates the minimi- generation is consistent with her philoso- For purposes of arguing against race- zation and obscure consideration of race phy of color-blind constitutional analysis based affirmative action,Justice Thomas and ethnicity in areas where it matters and her wish for a nation in which racial quotes Frederick Douglass, speaking to most. This lack of transparency in dealing and ethnic distinctions no longer exist. As abolitionists on January 1, 1865: with racial issues seems to reflect the her previous opinions on affirmative [I] n regard to the colored people, American public's continual denial of the action and voting rights indicate, she views there is always more that is benevo- salience of such matters. Thus, while continued recognition of race and lent, I perceive than just, manifested public opinion polls by Pew, Cornell ethnicity in law as not per se impermis- towards us. What I ask for the negro is University and others reveal that a sible, but as divisive forces in American not benevolence, not pity, not substantial majority of the American society. The erasure of racial, ethnic, and sympathy, but simply justice. The public supports affirmative action in cultural uniqueness is a peculiar aspira- American people have always been theory, many (primarilywhites) oppose tion, in my view, and one that ultimately anxious to know what they shall do specific programs that would ensure its would deprive the nation of the strength, with us .... I have but one answer effectiveness. acumen, creativity, and resourcefulness of from the beginning. Do nothing with For this reason, the Court's opinion in people from diverse backgrounds who are us! If the apples will not remain on Grutter, while a victory for the recognition Americans. Thus, I believe that Justice the tree of their own strength, if they of racial and ethnic diversity in higher O'Connor's insistence on a color-blind are worm-eaten at the core, if they are education, may have the counterproductive society is not constitutionally required, nor early ripe and disposed to fall, let effect of upholding the principle of socially desirable. them fall! ... And if the negro cannot affirmative action while allowing only stand on his own legs, let him fall minimal consideration of race and 4. While advocating a color-blind also. All I ask is, give him a chance to ethnicity in university admissions. This society,Justice O'Connor nevertheless stand on his own legs! Let him alone! unfortunate result would serve to further retains a degree of realism upon recogniz- [Y] our interference is doing him inculcate the underlying racial discrimi- ing the significance of race and ethnicity positive injury. nation that makes affirmative action in American society and by extension in This quote, while representative of necessary, especially for the lack of constitutional analysis. However, her Frederick Douglass's views, is quickly attention to matters of race. conservative brethren on the Court would revealed as disingenuous as used by Justice reject any attention to race by government Thomas upon recognizing that Douglass's 3. In light of the Court's reluctance to as wholly impermissible and violative of hopes for African-Americans in U.S. society expressly acknowledge the persistence of the Fourteenth Amendment. In this regard, did not materialize. When Frederick racism and inequity in American social Justice Thomas's dissent in Grutter Douglass called upon the U.S. government institutions, perhaps the most troubling warrants particular discussion.Justices to "leave the negro alone," he spoke two aspect of the Court's decision in Grutter is O'Connor and Thomas share the belief in years after the Emancipation Proclama- Justice O'Connor's ostensible establish- a color-blind America, albeit from tion of]anuary 1, 1863: His was an appeal ment of an endpoint for affirmative action different vantage points. Justice O'Connor for fairness, enfranchisement, and full in twenty-five years. She stated in the believes attention to race to be detrimental citizenship for African-Americans. But the opinion, "We ex pect that 25y ears from to the nation, whereas Justice Thomas Nation did not "leave the negro alone." now the use of racial preferences will no believes attention to be detrimental to the Hence, events before and after the incep- longer be necessary to further the interest putative beneficiary of beneficial racial approved today." In a subsequent interview programs. Justice Thomas invokes his Jam Tomorrow continued on page I 4

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every tum of the road. If he comes 5. In the short and long run, commu- Commentary on Grutter v. Bollinger in rags and wretchedness, he answers nities of color also prefer an end to the the public demand for a negro, and need for affinnative action. They recog- provokes no anger, though he may nize, however, that affinnative action will provoke derision, but if he presumes no longer be necessary once the entrenched Jam Tomorrow: to be a gentleman and a scholar, he is structural inequalities in educational continuedfrom page 13 then entirely out of his place. He opportunity for children of color cease to excites resentment and calls forth exist. Appreciating these preconditions, ti on of the nation, including slavery, stem and bitter opposition. If he offers fonner Republican Congressman Jack segregation, Jim Crow, Black Codes, himself to a builder as a mechanic, to Kemp recently called "shortsighted" his terrorist marauders, disenfranchisement, a client as a lawyer, to a patient as a fellow conservatives' efforts to continue to land dispossession, and discrimination in physician, to a university as a oppose affinnative action after the Court's education and employment, relegated professor, or to a department as a decision. According to Kemp, "While I African-Americans to slavery and near- clerk, no matter what may be his agree that ultimately a color-blind society slavery conditions after the Civil War. So ability or his attainments, there is a should be our goal, we certainly are not steeped was the nation in racist ideology of presumption, based upon his color or there yet. Blacks were removed from the Anglo-American superiority andAfrican- his previous condition, of incompe- mainstream economy, denied access to American inferiority that Black soldiers tency, and if he succeeds at all, he had education, job opportunities and access to were not pennitted to serve in the Union to do so against this most discourag- capital and ownership. Thus, African- forces in the struggle for their own ing presumption. Americans have long been denied their full emancipation, and as confederate forces It is a real calamity, in this country, measure of justice under the law, and pressed Blacks into service as military slave for any man, guilty or not guilty, to while great progress has been made, we laborers. When Lincoln finally relented, be accused of crime, but it is an have a long way to go." due in large measure to Dou glass's incomparably greater calamity for Next year, the nation will commemo- entreaties, Black soldiers served gallantly, any colored man to be so accused. rate the landmark Supreme Court decision under worse conditions and with less pay Justice is often painted with bandaged in Brown v. Board ofEducation (1954). than their white counterparts. eyes. She is described in forensic In Brown, a unanimous Supreme Court Thus, while Douglass tirelessly eloquence, as utterly blind to wealth declared racial segregation in primary and advocated for racial equality, his speech on or poverty, high or low, white or black; secondary public schools to be inherently April 16, 1883, twenty years after the but a mask of iron, however thick, unequal, and thereby unconstitutional. We Emancipation Proclamation, expressed his could never blind American justice, need only acknowledge our national disappointment at the lack of rights when a black man happens to be on shortcomings in realizing the promise of accorded to Black citizens, and bears trial. Here, even more than elsewhere, Brown fifty years later as we contemplate excerpting at length: he will find all presumptions of law the implications of]ustice O'Connor's Let any man now claim for the and evidence against him. It is not so suggested time limitation for affinnative negro, or, worse still, let the negro now much the business of his enemies to action in twenty-five years. Indeed, the claim for himself, any right, prove him guilty, as it is the business Harvard Civil Rights Project has revealed privilege, or immunity which has of himself to prove his innocence. that racial segregation in K-12 schools is hitherto been denied by law or Despite his recognition that the nation greater than it was thirty years ago. HCRP custom, and he will at once open a had not "left the negro alone," Douglass attributes this retrogressive phenomenon to fountain of bitterness, and call forth remained confident in the ability of white flight, increases in enrollment by overwhelming wrath. Americans and the U.S. government to be Black, Latino, and Asian students, racially It is his sad lot to live in a land fair. Yet at the Republican convention of segregated housing patterns and other where all presumptions are arrayed 1876, he asked, "Do you mean to make fonns of housing discrimination, and the against him, unless we accept the good to us the promises of your constitu- tennination of court-ordered desegregation presumption of inferiority and tion?" The fulfillment of the promises of decrees. worthlessness. If his course is down- fairness and full citizenship bespeaks the Surely, all agree with Justice O'Connor ward, he meets very little resistance, continuing need for affinnative action. that "[a]ccess to legal education (and thus but if upward, his way is disputed at the legal profession) must be inclusive of

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talented and qualified individuals of every Supreme Court Roundup race and ethnicity, so that all members of our heterogeneous society may participate Alicia Alvarez, DePaul University College of Law in the educational institutions that The Supreme Court decided a number of significant cases this term in addition to Grutter provide the training and education and.Lawrence. (See pages 2-14 for reaction to those decisions.) necessary to succeed in America." However, In Demore v. Kim, the Court ruled that mandatory detention of a legal permanent if higher education is to remain accessible resident during deportation proceedings is a constitutionally valid aspect of the process, even to all so that the benefits of equality and where there has been no finding that the alien is unlikely to appear for deportation proceed- diversity are achieved, affirmative action ings. Section 1226(c) of the Immigration and Nationality Act, which requires detention cannot be terminated by arbitrary date- pending a removal proceeding for aliens convicted of certain crimes, does not violate due setting. Justice Ginsburg best expressed this process, the Court determined. On a positive note, the Court found that Section 1226(e) does reality in her clear-eyed concurrence in not deprive the federal courts of jurisdiction to grant habeas relief. The Court distinguished Grutter, stating: "[F] rom today's vantage Zadvydas, which it decided in 2001. point, one may hope, but not firmly In a troubling voting rights decision, Georgia v. Ashcroft, the Court ruled on Georgia's forecast, that over the next generation's State Senate districting plan. The majority (Justices O'Connor, Rehnquist, Scalia, Kennedy span, progress toward nondiscrimination and Thomas) reversed and remanded the District Court's finding that the plan violated and genuinely equal opportunity will Section 5 of the Voting Rights Act and was therefore not entitled to preclearance. The Court make it safe to sunset affirmative action." found that the District Court did not consider all relevant factors when it examined whether About an earlier era, historian Eric the plan resulted in the retrogression of black voters' effective exercise of the electoral Foner has written, "From the enforcement franchise. The diminution of a minority group's effective exercise of the electoral franchise of the rights of citizens to the stubborn violates Section 5 only if the state cannot show that the gains in the plan as a whole offset problems of economic and racial justice, the loss in particular districts, the Court said. The courts must consider "all relevant circum- the issues central to Reconstruction are as stances" including the minority voters' ability to elect their candidate of choice (an impor- old as the American republic, and as tant but not a dispositive or exclusive factor), the extent of the minority group's opportunity contemporary as the inequities that still to participate in the political process (including "influence" districts), and the feasibility of afflict our society." Apropos the current creating a nonretrogressive plan. The Court found that Section 5 gives states flexibility, allowing them to risk having fewer minority representatives in order to achieve greater overall discussion, unless and until the nation representation of a minority group by increasing the number of representatives sympathetic demonstrates the will and commits the to the interests of minority groups. The District Court focused too narrowly on three districts, necessary resources to end racial inequity the Court decided, and improperly rejected evidence that the legislators representing the and injustice, affirmative action will majority-minority districts supported the plan and that the state decided that the best way to remain necessary. In the absence of such maximize black voting strength was to unpack the high concentration of minority voters in commitment, yesterday will look very the majority-minority districts. much like today, and today will look very The Court ruled in Brown v. Legal Foundation of Washington that interest on much like tomorrow - jam yesterday, lawyers' trust accounts (IOLTA) programs do not involve a regulatory taking. Alaw requiring jam tomorrow. The Supreme Court's that the interest on those funds be transferred to a different owner for a legitimate public use decision in Grutter, in which it recognizes could be aper se taking requiring the payment of "just compensation." However, because just the signal value of diversity in educational compensation is measured by the owner's pecuniary loss, which was zero in this case, the and national institutions, provides the Court held that there was no violation of the just compensation clause. American public a powerful incentive to The Court remanded Inyo County v. Paiute-Shoshone Indians of the Bishop Commu- make the promises of democracy a reality nity of the Bishop Colony, a case dealing with tribal sovereignty and state jurisdiction. The for all citizens. Bishop Paiute Tribe in California filed an action seeking declaratory and injunctive relief to Endnotes: establish that state law was preempted to the extent that it puiported to authorize seizure of 1. Lewis Carroll, Through the Looking tribal records. The Tribe sought relief under Section 1983, alleging that the District Attorney's Glass. office had violated the Fourth and Fourteenth Amendments when it obtained and executed a 2• This commentary originally search warrant for some of the Tribe's Gaming Coiporation's employment records. The Court appeared in the Jurist, an online legal found that the Tribe cannot sue under Section 1983 since it is not a "person" or "citizen." It journal. In the version of the essay printed remanded for consideration of the jurisdictional question of whether any prescription of here, footnotes and citations have been federal common law enables the Tribe to maintain an action for injunctive and declaratory relief establishing its sovereign right to be free from state criminal processes. omitted. Supreme Court continued on page 16

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Supreme Court: ineffective assistance of counsel claim. trial on guilt or innocence." However it said Writing for the majority in Wiggins v. the relevant inquiry here was whether' life ' continued/rampage 15 Smith, Justice O'Connor found that trial sentence in the first trial was an "acquittal" counsel had rendered ineffective assistance that was based on findings that the In United States v. American Library by failing to investigate and present defendant was legally entitled to a life Association, the Court upheld the Children's mitigating evidence of the defendant's sentence because the government had failed Internet Protection Act, which forbids public dysfunctional background, including severe to prove one or more aggravating circum- libraries from receiving federal assistance for physical and sexual abuse he had suffered at stances beyond reasonable doubt. The Court Internet access unless they install software to a re the hands of his mother and in foster care. said that the life sentence was not an block obscene or pornographic images and The decision not to expand the investigation "acquittal" because the jury in the first trial prevent minors from accessing material beyond the presenting investigation report deadlocked without making any findings hannful to them. The Court found the Act and the City Department of Social Services with respect to the alleged aggravating does not violate the patrons' First Amend- records fell short of prevailing professional circumstances, and because the judge had no ment rights, and is a valid exercise of standards, which included the preparation discretion to do anything but enter a life Congress' spending power. TheActdoesnot of a social history report. The Court found a sentence after the jury deadlocked. impose an unconstitutional condition on reasonable probability that a jury con- In Overton v. Bazzetta, an opinion libraries, the Court determined, and Internet fronted with evidence of the defendant's with no dissents, the Court found that access in public libraries is not a public alcoholic absentee mother, physical Michigan's restrictions on prison visits did forum. Further, the Court found, any torment, sexual molestation, repeated rapes not violate the First, Eighth or Fourteenth concerns about constitutional difficulties while in foster care, homelessness, and Amendments. The state's Department of posed by the erroneous blocking of innocu- diminished mental capacity would have Corrections allows inmates to receive visits ous sites were dispelled by the ease with returned a different verdict, especially since only from qualified clergy, attorneys on which library patrons can request that he had no prior convictions. business, and persons placed on an approved filtering software be disabled. Justice Scalia, joined by Rehnquist, list, which may include an unlimited Scheidler v. NOW was a class action O'Connor, Kennedy, and Thomas, found in number of immediate family members and lawsuit alleging that the defendants, Sattazahn v. Pennsylvania no double- ten others. Aminor child may visit only ifs/ individuals and organizations that oppose jeopardy bar to the state seeking the death he is the child, stepchild, grandchild or legal abortion, had violated RICO by for engaging in a nationwide conspiracy to shut penalty on retrial when the defendant had sibling of the inmate, and is accompanied been sentenced to life imprisonment in the by a family member of the child or inmate, down abortion clinics through a pattern of first trial. Under Pennsylvania law, the or by the child's legal guardian. No former racketeering activities that included verdict in the penalty phase of capital prisoner may visit unless s/he is an immedi- extortion in violation of the Hobbs Act. The proceedings must be death if the jury ate family member of the inmate and the jury found in favor of the plaintiffs and unanimously finds at least one aggravating awarded damages; the District Court entered warden approves. Prisoners who commit two circumstance and no mitigating circum- substance abuse violations may receive only a nationwide injunction. The Supreme stance, or one or more aggravating clergy and attorneys, but may apply for Court reversed, finding that the defendants circumstances outweighing any mitigating reinstatement of privileges after two years. had not committed extortion within the circumstances, but it must be life imprison- meaning of the Hobbs Act because they did The Court held that these regulations satisfy ment in all other instances. The court may not "obtain" property from the plaintiffs. the four factors used to decide whether a discharge a jury if it determines that the While the defendants' activities deprived the prison regulation affecting a constitutional jury will not unanimously agree on the plaintiffs of their ability to exercise their right that survives incarceration withstands sentence, but the court must then enter a constitutional challenge: First, it found, the property right to legal abortions, said the life sentence. The defendant was sentenced regulations bear a rational relationship to Court, that deprivation did not constitute to life after the judge discharged the jurors extortion within the meaning of the Hobbs legitimate penological interest. Second, the Act since extortion requires both deprivation when they reported that they were dead- inmates have alternative means of exercising locked 9-3 for life imprisonment. On their asserted right of association (letters and and acquisitionof property. The defendants appeal, the court reversed the murder did not receive something of value that they telephone). Third, accommodating the right conviction and remanded for a new trial. At could exercise, transfer or sell. would have a considerable impact on the the second trial, the jury imposed a death Among the many cases in the criminal guards, other inmates, prison resources and sentence. The Court found that the double law area, the Court ruled in a favor of a the safety of other prisoners. Finally, all jeopardy clause applies to capital sentencing capital murder defendant who brought an alternatives have a more than de minimus proceedings that "have the hallmarks of the cost.

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Nancy and Paula's Excellent Adventure: The First Running of the Princess Cycling Tour

SALT Co-President Paula C. Johnson, Syracuse University College of Law, and Nancy K. Ota, Albany Law School

I've got a mule, her name is Sal, Fifteen years on the Erie Canal. She's a good ol' worker and a good ol' pal, Fifteen years on the Erie Canal. We've hauled some barges in our day, Filled with lumber, coal, and hay, And ev 'ry inch of the way we know From Albany to Buffalo - The Erie Canal Song

On Sunday, July 13, the Princess Tour- Paula Johnson, Nancy Ota, Laura Shore, and Delores Walters-breezed under the green and white balloon arch signaling the completion of the summer 2003 bike ride along the Erie Canal Towpath. We had completed the week-long 400-mile tour from Buffalo to Albany, NY, tested our physical endurance, enjoyed hours of laughter, and helped raise money to support SALT's justice work. Not bad for eight days! Come along, and we'll tell you the story of our adventure.

How we got started With Albany and Syracuse located just a couple of hours from each other on the New York State Thruway, we (Nancy and Paula) frequently talked about getting together just for fun. We also talked about our interest in cycling, and how we should explore our local parts of the Erie Canal Towpath bike trail when we visited each other. We hadn't been very successful at getting together apart from law school or conference functions, though, until this summer. Thus, last spring, we became very excited when we saw the announcement for the Fifth Annual Bike Ride Across New York, a 400-mile, eight-day bicycle tour from Buffalo to Albany, New York, along the historic Erie Canal. Eureka! We jumped at the chance and got our partners Laura and Delores involved, too. We all signed onto the ride as soon as they began taking names. Never leaving our social justice instincts far behind, we also thought there must be some way that our physical prowess also could benefit SALT. As SALT's newest and most ambitious public interest effort, we decided to lend our bodies to raise money for the Norman Dorsen Fund. We thought that enthusiastic (and sympathetic!) SALT members would pledge contributions to support us on the ride and to help the Dorsen Fund. We were correct on both counts, as many SALT members gave us warm send-offs and many others pledged amounts for the Dorsen Fund as we set out to complete the 400 mile trek.

Cycling continued on page 18

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Cycling: The tour was very well organized. It from Cincinnati). After getting to Buffalo, was sponsored by the New York Parks and the most important decision we had to continued from page 17 Conservation Association (NYPCA), the make was where to sleep-or more New York State Canal Corporation, and accurately, where not to sleep. Most cyclists SALT Co-President Michael Rooke-Ley, several corporate contributors. It included set up camp at prearranged sites at local Dorsen Fund chairperson Sylvia Law, and breakfasts, dinners, daily refreshment stops colleges, high schools, and municipal Sylvia's assistant Leslie Jenkins took care of stocked with fruit, snacks and beverages, parks on the trip. Very early, we decided the pledge drive. The four of us simply had baggage transport, sag wagon, daily maps against camping, however. Instead we to take care of trip logistics and getting our and cue sheets, marked routes, lectures and opted for local B&Bs, hotels, motels, and bodies ready for the ride. Easy. Well, stops at historic sites, welcomes by officials dormitories that were listed as housing maybe not so easy. Our schedules were and civic volunteers in small towns and alternatives. This meant arranging taxis hectic, and winter seemed to hang on villages, masseuses for body repair, and at the end of the day and in the morning forever and spring was cooler than usual, mechanics for bike repair. back to the breakfast site. This wasn't as so it was difficult to take training rides In light of this organization, there difficult as it seemed it might be, and we consistently. But we were determined and were only a few other logistics to address, were very grateful for mattresses, some stayed in contact with each other by phone primarily transportation to Buffalo and really good meals, some time away from or e-mail to see how we were doing with housing accommodations during the ride. the larger group, and a wonderful time training. When the weather finally turned Delores and Paula met Nancy and Laura in together. We especially appreciated the warm enough, we were off the stationary Albany. We all drove to Buffalo in a rented hotels and dorms on the nights it rained bikes and riding outside several times a van that we carefully dismantled to hard. With our daily drop-offs and pick- week. Close to the tour date we cycled 50 accommodate our bikes and luggage ups, ourmonikerwas born: We were miles in a day, which was the average daily (Delores had shipped her bike to Buffalo dubbed "the princess tour." mileage during the trip. We were on our way!

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A little history goes a long way the canal was enlarged four times between In modem times, prospects were further 1836 and 1862. Towns grew along the dimmed by the steady decline of the Groundbreaking for the Erie Canal canal route, and many Western and industrial base of Western and Central New took place onJuly 4, 1817. It began as the Central New York locations remain linked York, leaving many low- and moderately- political project of Governor DeWitt to their canal beginnings and maintain skilled workers without viable employment Clinton-"Clinton's Folly." Almost no originals or replicas of the buildings, opportunities. However, many of the canal professional engineers were involved in the stores, and other facilities that supported towns are building on their history as the project. Built at a cost of $7 million, the canal traffic. path to a resurgent future. In 1983, New Canal was completed in 1825. It was Although financially successful, the Yorkers voted to restore the canal system for called the "Eighth Wonder of the World," canal was very costly in terms of human recreational use, irrigation, wildlife for as one commentator described, "They lives. Thousands of Irish immigrants were habitat, hydroelectric power, pleasure boats have built the longest canal, in the least employed to dig the canal by hand, and and small commercial vessels. time, with the least experience, for the many succumbed to malaria and related Much of the awesome geographical least money, and to the greatest public diseases. Further, as a 1990 National beauty of New York remains the same, benefit." Geographic article recounts, "Forgotten except that which was altered to construct The Erie Canal opened the American people include immigrant laborers who the canal. Links to the past and present are West to commerce and travel, bringing worked on the canal, lived under inhu- ever-evident. Along the Mohawk River, for financial prosperity and social change mane Gonditions, and died without instance, Hiawatha united competing across New York and the United States. The rousing much concern. Thousands of tribes into the Iroquois Confederacy in inland waterway facilitated trade from the homeless people, escaped slaves, and other 1600. The Iroquois Confederacy became a Mississippi to the Atlantic Ocean. The outcasts roamed the canal looking for model for U.S. democracy, and Indians in original canal featured 18 aqueducts, 83 work." New York continue to assert their cultural locks, and a rise of 568 feet from the In the 1950s, the canal lost business to heritage and influence throughout the Hudson River to Lake Erie. From an autos, trucks, pipelines, railroads, and the state. Major abolitionist activity took overland trip that previously took four to St. Lawrence Seaway. With its future place along the Erie Canal. Enslaved six weeks, the canal cut travel down to five uncertain, the canal began to deteriorate. to seven days. Due to its financial success, Cycling continued on page 20

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Cycling: man who celebrated the second anniversary rides, while others, like us, were cycling after his heart attack by riding the tour, enthusiasts but neophytes at long tours. continuedfrom page 19 were just happy to be alive. All of us were Gender balance seemed pretty equal, but happy to be there. Individually and there wasn't much racial or ethnic African-Americans risked all for freedom, together we pedaled, pushed, groaned and diversity-our group provided most of that. and citizens in Syracuse and other canal grunted our way across New York on our The gay and lesbian community was well cities defied the Fugitive Slave Act and bicycles. represented, and there were many family refused to return enslaved African- While we shared housing and meals configurations. There were LGBT and Americans to the South. Also, the women's most nights, we never felt cramped or straight couples, mothers and sons, fathers rights movement burgeoned in Seneca imposed upon. This was good because we and daughters, straight and LGBT parents Falls, eventually spreading across the state quickly realized the differences in our with infants and toddlers, and grandpar- and the nation. Thus, the bike tour along circadian rhythms. Delores andNancy ents with grandchildren. the Erie Canal was an opportunity to slow were early risers; Laura and Paula were On this trip, the most prominent down and appreciate New York's historical, dedicated sleepers. Nancy and Laura were diversity was reflected in the vehicle of cultural, and physical landscape. usually on their bikes earlier than Paula choice. Here, there was an eclectic and Delores. We typically saw each other assortment of bicycle types to match the That depends on what your defini- at breakfast, along the trail, at rest stops, assorted riders. There were racing bikes, tion of "flat" is and at the end of the day's ride. So there touring bikes, mountain bikes, and The tour was billed as a "ride," not a was a good mix of being together and also hybrids. There were folding bikes! There "race." Clearly, though, everyone had hanging out with others on the tour. were tandems and recumbents, and different goals and expectations for There were over 400 riders on the tour. tandem recumbents. There were bikes with embarking on the trip. For some it was It was a wide-ranging group of folks of all children in tow or child seats in front. starting, for others it was finishing. Speed ages, sizes, physical abilities, geographical Some rode with loaded panniers, while was the goal for some riders, while others backgrounds, and cycling experience. others carried only water bottles and sought consistent pacing. Some, like the Many were veterans of long-distance bike snacks.

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Local people were fascinated by our made the next day either torrid or brisk. rode through head winds, heavy rain, and gang of riders. When we rode on city We also had our share of mishaps on the long winding roads. It also was a 70-mile streets, people stopped and watched the bikes. Delores and Nancy each had two day, the end of which required riding up a seemingly endless trail of cyclists. In local flats. One rider set a tour record of four perpendicular road to reach dinner at the restaurants, people asked about the tour flats in one day on the same tire; we tried campground. With just two days left, and us, and talked at length about to stay away from him! The extreme heat Friday's travails generated the first serious themselves, their towns, and what we could bothered Delores; Laura had an allergic talk of quitting by some of the riders. A expect during that portion of the trip. Our reaction to insect repellent; Paula few folks opted for the sag wagon, but most interactions with local folks were almost experienced hand numbness and a sore of us cycled on, wind, rain, hills and all. entirely positive, although there were nasty knee; and Nancy deserved a medal for Magnificent vistas compensated for brushes with aggressive drivers. One night persevering despite having tom a ligament any difficulties along the route. Zooming a friendly cab driver suggested a in her hand during a training ride before downhill had the incomparable feeling of sightseeing tip and offered to take us to the the trip and taking a hard spill on wet flight and freedom. No matter what the town's bar strip. But our raucous laughter railroad tracks during the trip. Undeterred, place or pace, it was better to be on a bike. in the taxi-without alcohol-convinced we rode through these discomforts. Traveling by bicycle awakened all of our him that we didn't need to visit the bars We groused a bit about the terrain. senses, and we took stock after the trip. and he recommended taking us directly to The tour booklet had stated, "There are a Here is our list of some of the best and our hotel. Talking about the events of the few rolling hills and two long, gradual worst: day and watching the weather channel climbs in the Mohawk Valley." In fact, Laura became our favorite entertainment! there were numerous steep hills, including Best smell- Strawberry fields in Amish We generally rode for six to eight hours several successive long climbs in the country a day, in all conceivable weather and road Mohawk Valley. In this regard, Friday was Worst smell-The EconoLodge in conditions. Heavy rains the night before the most challenging day of the tour, as we Cycling continued on page 22

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Cycling: during the tour Wednesday, July 9:Waterloo/Seneca Nancy Falls to Syracuse (50 miles) continued from page 21 Worst overall-Hills on Rt. SS out of Thursday, July 10: Syracuse to Rome Canajoharie ("like a combination of bug Little Falls (Mohawk Valley) (SO miles) spray, mildew, sour milk, and stinky feet") Laura Friday,July 11: Rome to Canajoharie Nancy Best overall-Finishing ahead of the (70miles) Best sound-Crowd's applause under paint guy marking directions on the road, Saturday,July 12: Canajoharie to balloons at the end of the ride in Albany and not thinking about work Schenectady (50 miles) Worst sound-Helmet (on head) Delores Sunday,July 13: Schenectady to Albany hitting pavement after a fall Best overall-Barbeque after Friday (30miles) Delores ride The final day of the ride was a Worst taste-Gatorade Paula beautiful summer day. We also enjoyed Best taste-Gatorade Best Overall-Time on the bike and some of the easiest terrain; it was mostly Paula spending time with the "princesses" downhill or level and smooth. We cruised Best sight-Lush green farmland in through the finish line with energy to Amish country I can't believe I rode the whole spare. We felt tremendous joy and Worst sight-Assorted animal roadkill thing! accomplishment at completing the trek. Nancy We were further gratified to know that our Worst touch-Skin scraping pavement From July 6 to 13, we traveled the trip benefitted SALT's work. Our final Delores following schedule: mileage exceeded 400 miles, and thanks to Best touch-The whirlpool Sunday,July 6: Buffalo to Medina (50 SALT members, we raised nearly $5,000 for Laura miles) the Dorsen Fund. We thank everyone who Best touch-Peddling and downshift- Monday, July 7: Medina to Pittsford encouraged us on the ride, and everyone ing (60miles) who contributed to the Dorsen Fund. Paula Tuesday, July 8: Pittsford to Waterloo Look out for cyclists; we may come to a Best touch-Any mattress any night (60miles) town near you!

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approaches, including Canada's post- SALT Salary Survey: Where Committee News graduate skills training, Arizona's "Americorps" proposal and Kris Glen's Have All the Numbers public service alternative. The session Gone?

will also explore the formulation of Howard A. Glickstein, Touro Law Center Bar Exam Committee performance-based evaluations. SALT is particularly interested in hearing from SALT has been publishing a Salary Survey Plans October Conference clinicians and others who have successfully for over a quarter of a century. The Survey Eileen Kaufman, Touro Law Center developed and utilized portfolios of was undertaken as a means of providing competencies and performance-based information to those contemplating The Bar Exam Committee is planning a evaluations and who have ideas about entering law teaching; those already in mini-conference for October 11, 2003, at incorporating these approaches in teaching; and law school and university the University of Minnesota Law School, to licensing proposals (please contact Eileen administrators. There is usually great coincide with SALT's next Board of Kaufman at [email protected]) .The demand for copies of each year's Survey, Governors' meeting. SALT held its first bar afternoon session will focus on re(orm including requests from the press. The exam conference in San Francisco in 1999, efforts in several jurisdictions in which Survey serves an extremely useful purpose. entitled "Re-examining the Bar Examina- alternatives to the bar exam are currently I am disappointed that the number of tion," which focused on a critique of the being discussed. schools cooperating in the Survey has current bar examination. The October 11, In related news, Georgia State Univer- declined in recent years. 2003, conference, "Reconceiving the Bar sity is planning a symposium entitled For many years, the Section of Legal Examination: Exploring Alternative "Rethinking the Licensing of New Education, as part of its annual question- Licensing Mechanisms," moves from a Attorneys -An Exploration of Alternatives naire, requested salary data. Unlike most critique of the bar exam to a more activist to the Bar Exam." The Symposium will be of the other data collected, the salary data agenda that focuses on alternatives to the held on January 29, 2004, and will result was "confidential." Only law school deans bar exam and strategies for adopting more in a special issue of the Georgia State who consented to abide by the confidenti- effective licensing approaches. University Law Review devoted to articles ality restrictions received copies of the The morning session will feature exploring in detail the practical questions completed survey. Law schools that did not speakers describing alternative licensing raised by proposals for alternative methods provide their salary data did not receive for licensing lawyers. information about the other law schools. One of the issues at stake when the Justice Filler Fund Committee Seeks Nominations Department sued the American Bar Association, alleging that the accreditation Chris lijima, William S. Richardson School of Law, University of Hawai'i process violated the antitrust laws, was the There have been a number of informal discussions recently about how best to fund and collection and dissemination of salary implement the Filler Fund, named as a memorial to Stuart (a beloved law teacher and SALT data. As part of the consent decree ending treasurer) and Ellen Filler. The $2,200 in funds to pay for a student to work during the the litigation, the ABA agreed to discon- summer with a social justice organization have come predominantly from the SALT treasury tinue the collection of salary data. The ($2,000) and have been supplemented by the Fund. Last year, a decision was made to not Justice Department made clear that award a summer stipend, in part to allow the Fund to build and in even greater part to nothing would prevent a private organiza- reorganize and redefine how to continue with it. In these last months of increasing financial tion from collecting salary data. pressure for SALT, there has been some initial talk of trying to find ways in which the Fund Since the ABA stopped collecting salary could become more self-sufficient. data, there has been a steady decline in the In the meantime, there is an expectation that we will again award another grant this year response to our Survey. Some law schools and we are soliciting from our members names of worthy organizations to which we could claim that, as long as they compiled the send a summer grant to hire a law student. data for the ABA, they did not mind Nominations should be sent to Chris Iijima ([email protected]) and come with a furnishing it to us. (It is difficult to description of the group and its relationship to SALT's commitment to social justice, its need, believe that some law schools no longer and its ability to supervise. The group should be law-related but the grant is not restricted to maintain faculty salary data.) Some law direct legal service work. schools might have felt some pressure to

SALT Equalizer Page 24 August2003 www.saltlaw.org release salary data to the ABA. Most feel Schools that have not responded less urgency to respond to a request from to the SALT salary survey: Committee News SALT. Alabama George Mason We have tried to confront the non- American University George response problem in a number of ways. Arizona Washington First, we have asked SALT members to put Barry Georgetown Notre Dame Thomas Jefferson pressure on their deans to respond to the Baylor Harvard Pace Tulane Salary Survey (a list of non-responding Boston College Hofstra Pennsylvania UC Berkeley schools appears at the end of this column). Boston University Howard Pepperdine UC Davis Second, we have asked SALT members at Brigham Young Illinois Quinnipiac UCIA non-responding schools to see if they could Brooklyn Indiana (Bloomington) Richmond Utah obtain data and furnish it to us. (At one Cal Western JAG Roger Williams Vanderbilt non-responding school, the dean was Case Western Reserve Kansas St. John's Villanova outraged when a faculty member provided Catholic-DC Kentucky Saint Louis Virginia us with salary data that the dean had Chicago Lewis & Clark St. Mary's Wake Forest declined to disclose. I assume that the Chicago-Kent Loyola (Chicago) San Diego Washington and Lee dean's face turned red when I informed Cincinnati Loyola (Los Angeles) San Francisco Washington (St. Louis) him that the faculty member obtained the Columbia Maine Santa Clara Western State salary data from the provost of the Cornell McGeorge South Carolina Whittier university and had not stolen it from the Cumberland (Samford) Miami Southern California Widener dean's desk drawer.) DePaul Minnesota Southern Methodist William & Mary We especially reminded faculty Detroit-Mercy New England Southwestern Willamette members at public institutions, where Duke New York Law Stanford Wisconsin salary data generally is made public, that Fordham NYU SUNY Buffalo Yale with a little bit of research they probably Franklin Pierce North Carolina Central Stetson could find the information for us. Finally, Northwestern Temple we have tried to do some internet research on our own, with limited success. Once again, I urge all SALT members Judicial Nominations: The Hits Just Keep On Coming to do what they can to encourage their Bob Dinerstein, American University, Washington College of Law schools to furnish us with salary data or to take some time to see if they can uncover The good news-bad news story of the Bush Administration's judicial nominations goes on, the salary data on their own. The and SALT continues to play both a public and behind-the-scenes role in bringing to the reluctance of law schools to disclose salary attention of key actors the extremist views of so many of these nominees. data is just another example of the special First, the good news, such as it is. As of this writing (late July), Senate Democrats privileges to which law schools and their continue to filibuster successfully against two of the Administration's problematic nomi- faculties feel entitled. There are few job nees: Miguel Estrada, a nominee for the U.S. Court of Appeals for the District of Columbia, classifications for which salary data is kept and Justice Priscilla Owen, a nominee for the U.S. Court of Appeals for the Fifth Circuit. The confidential. We know the salaries of Senate has rejected cloture on Estrada five times (most recently on May 6, 2003) and on government officials, of judges, of many Owen once (on May 1, 2003). As you know from previous reports in the Equalizer, SALT, both lawyers in major law firms, of athletes, of organizationally and through individual members, has actively opposed both nominees. movie stars, and of scores of other profes- Another bit of good news is what did not happen this summer-the retirement of any sionals and non-professionals. I may be current Supreme Court Justice. While it is not completely out of the question for aJustice to missing something, but if the Mets know retire after the end of the term, the speculation that one or possibly two Justices would what the Yankees are paying their players, announce their retirements by June 30 turned out to be inaccurate. In light of the nature of why shouldn't Columbia know what stars its nominees to the district and circuit courts, there is little reason to think that the Bush at NYU get paid, and vice versa? I guess law Administration would have appointed someone within the mainstream to the vacant slot(s). schools and law faculties are just different. Because of the relationship between Supreme Court nominations and presidential electoral Judicial continued on page 26

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first winner was David Cavers) and who can be reached as follows: twice has gone to an institution Committee News (CUNY Law School and University of Margalynne Armstrong, Wisconsin Law School) rather than to Associate Professor an individual. Santa Clara University School of Law The second award is the SALT Human 500 El Camino Real SALT Awards Dinner Date Rights Award. This award, which is not Santa Clara, CA 95053 Set; Award Nominees necessarily given every year, recognizes the (408) 554-4778 (o) Sought extraordinary work of an individual or (408) 554-4426 (fax) organization in advancing the principles [email protected] Bob Dinerstein, American University, Washington College of Law of equality and equal access to legal education, the legal profession and legal Robert Dinerstein This year's SALT Annual Awards Dinner will services. This award was created in 1997 Professor and Associate Dean take place in conjunction with the AALS after the death of Shanara Gilbert, who for Academic Affairs annual meeting in Atlanta on Monday died in South Africa (in the same bus American University, evening, January 5 (reception starts at 7:00 accident as Haywood Bums) while forging Washington College of Law p.m.; dinner starts at 7:30p.m.). connections between clinical legal 4801 Massachusetts Avenue, N.W. Because of the way the calendar falls education and human rights advocacy in Washington, D.C. 20016 this year, the AALS schedule is somewhat that country. Last year, the award went to (202) 274-4141 (o) different from that of recent years. Instead anti-death penalty advocates Stephen (202) 274-4015 (fax) of going from Thursday to Sunday, the Bright, Director of the Southern Center for [email protected] conference goes from Saturday to Tuesday. Human Rights, and Bryan Stevenson, After polling the Board, the Committee Executive Director of the Equal Justice While not a formal part of the concluded that having the dinner on Initiative of Alabama. Previous recipients nomination process, a letter or e-mail in Monday evening, the traditional point in of the award have been Dr. Jesse Stone.Jr., support of the nominee would assist the the conference if not the traditional day of Congressman Barney Frank and Ibrahim Committee in making its recommenda- the week, presented the fewest conflicts for Gass am a. tions to the Board. Thanks for your help. attendance at the dinner. Our informal In recent years, an important part of survey of law schools revealed that most the dinner (and the fund-raising necessary Judicial: schools will not be starting classes on that to defray its costs while keeping the cost to Monday, so conflict with external sched- attendees down) has been the program and continued from page 25 ules should be minimized. As of this the advertisements that law schools, politics, even if there is a vacancy on the individual or groups of law faculty, and writing, we have not yet identified a Court one year from now it is not at all location for the dinner, but we have a lead others have taken out in support of SALT or clear that the Administration would be on a place to hold the event. the award winners. We would like to make able to fill the slot prior to the election. So, a special effort this year to increase the The Committee is responsible for at least for now, the Court may not be any recommending to the Board of Directors number of advertisements, and we worse for the foreseeable future. It is a recipients for two important awards. The encourage you and your law schools to measure of our current political predica- participate. And remember, you and your SALT Teaching Award is an annual award ment that retention of a Court as conserva- given for special contributions to the law school can show your support for our tive as this one (Grutter, Lawrence, and awardees even they are not from your teaching mission of the legal academy. if Hibbs notwithstanding) is seen as a Last year's winners were long-time SALT own institution. You will be receiving positive development. stalwarts Chuck Lawrence and Mari more information on the listserv regarding Afinal bit of good news is that, thus how to purchase an advertisement, the Matsuda of Georgetown University Law far, Republican efforts to change the rules cost, and other logistics. Center. Prior recent winners have included on filibustering nominations and other Sylvia Law, Marjorie Schultz, Tony Nominations-which should be nomination procedures have been received by Friday, September 26, 2003-for Amsterdam, Jim Jones, Haywood Burns, unsuccessful. Again, the irony of people in BarbaraAldave and Trina Grillo. The Award either or both awards should be submitted favor of civil rights being thankful for the has been given every year since 1976 (the to either of the Committee's Co-Chairs,

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filibuster is quite striking. The SALT-Board approved a letter of to the bad news. One Bush opposition to Pryor's nomination, nominee to the federal bench is worse than which was delivered to the Senate Committee News the next, and despite the efforts of Judiciary Committee before its consider- numerous organizations and individuals, ation of the Pryor nomination. (See the a number of very conservative activists, letteron page 28.) In addition, wee- only Democrats to vote for him), 7 votes with strong anti-progressive records, have mailed SALT members from law schools in short of the 60 needed for cloture. I believe been confirmed for judgeships. Since our Pennsylvania to ask them to contact this means that Spector voted for the last report, the Senate has confirmed such Senator Arlen Spector (R-PA), amemberof nomination-so much for his voting for troubling nominees as Deborah Cook and the Judiciary Committee reported to be "on Pryor in committee but not being Jeffrey Sutton (both for the Sixth Circuit) the fence" regarding the nomination, to committed to voting for him on the floor. and John Roberts (for the D.C. Circuit). express their opposition to Pryor's nomina- The Senate also has failed to invoke The Senate Judiciary Committee has voted cloture for a seventh time for the Estrada to send to the Senate floor Judge Carolyn nomination (5 votes short) and for the Kuhl (for the Ninth Circuit) and Alabama third time for the Owen nomination. The Attorney General William Pryor (for the "[D j] espite the efforts Republicans plan to bring up Carolyn Eleventh Circuit; see below). The President ofnumerous Kuhl (9th Circuit) for a floor vote also has continued to nominate (or organizations and tomorrow. Then, mercifully, they are on indicated his intention to do so) a number individuals, a number recess until Labor Day."] of extremely conservative individuals to Thanks to our friends at the Alliance important judgeships, including Deputy ofvery conseroative for Justice's Independent Judiciary Project Secretary of Health and Human Services activists, with strong (and the very helpful e-mails from Kendra- Claude Allen (Fourth Circuit), and, for the anti-progressive Sue Derby, Director of Field Operations for D.C. Circuit, Justice Janice Rogers Brown of the Alliance), the SALT Judicial Nomina- the California Supreme Court (where, records, have been tions Committee is able to monitor these among other things, she wrote the opinion confirmedfor nominations closely. It is particularly upholding a broad interpretation of judgeships. " important that SALT weigh in against California's anti-affirmative action nominations where the nominee has taken Proposition 209) and Brett Kavanaugh (a a stance inimical to legal, social and key assistant to Independent Counsel ti on. Anumber of SALT members sent such political issues close to SALT's heart (and Kenneth Starr, and Assistant White House messages of opposition to Senator Spector. about which SALT members have special counsel, with a major role in advocating While he voted to report out the nomina- expertise). We easily could justify opposing the Bush judicial nominations). tion, Spector indicated that he had not yet virtually every one of the Bush On July 23, the Senate Judiciary decided how he would vote if the nomina- Administration's nominees, but limited Committee, on a straight party-line 10-9 tion comes to a vote on the Senate floor. time (and a desire to focus on the most vote, voted to send William Pryor's There are strong indications that the problematic nominees) counsels against nomination to the Senate floor. Pryor may Democrats will filibuster the Pryor such a scatter-shot approach. The Commit- be the most extreme Bush judicial nomination if it is brought up for a vote, tee welcomes your input on judicial nominee thus far. Despite allegations from unless they conclude that there are enough nominees and any assistance, including a staff member that the Republican Republican defectors to yield victory on a drafting of positions in opposition to some Attorneys General Association, which Pryor straight up-and-down vote. or all of a nominee's views, that you are in helped to form, arranged for sitting state [Editor's note: After this article was a position to provide. In addition, as attorneys-general to solicit corporate submitted for publication, the author sent Senators tend to be more responsive to their executives in their states for campaign the following e-mail to the SALT Board on constituents (even law professors!) than contributions (a fact that Pryor denied at July 31, 2003: "The Senate failed to other individuals or groups, we urge you to his confirmation hearing), theJudiciary override a filibuster today on the nomina- respond to our requests to contact your Committee saw fit to report out the tion of William Pryor. The vote was 53-47 Senators when a particular nominee or nomination. for Pryor (Democrats Nelson from pending vote warrants it. Nebraska and Miller from Georgia were the

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propagate his extreme positions. He In cases where the Court has adopted filed a brief in the recent Supreme the result Attorney General Pryor's amicus Committee News Court case of Lawrence v. Texas, 2003 curiae briefs have sought, his positions U.S. Lexis 5013 June 23, 2003), which suggest his hostility to key pieces of federal struck down Texas's sodomy statute. In legislation. For example, he filed the only Following is the text of a letter sent the brief, he argued that reversal of the amicus curiae brief on behalf of a state on behalf of the SALT Board by Co- lower-court decision (which the Supreme against the constitutionality of the Presidents Michael Rooke-Ley and Court in fact did) would entail protection Violence Against Women Act in United Paula Johnson to the Senate judiciary for "prostitution, adultery, necrophilia, States v. Morrison, 529 U.S. 598 (2000). Committee on July 16, 2003. bestiality, possession of child pornography He also filed a brief in opposition to the and even incest and pedophilia.. .. " He constitutionality of the Age Discrimina- Dear Senators Hatch and Leahy: filed the lone state amicus curiae brief to tion in Employment Act, Kimel v. On behalf of the Society of American argue for a weakening of the Clean Water Florida Board ofRegents, 528 U.S. 62 Law Teachers ("SALT"), the largest Act in Solid Waste Agency ofNorthern (2000). organization of law professors in the Cook County v. United States Corps of Attorney General Pryor has called Roe United States, representing over 800 law Engineers, 531 U.S. 159 (2001). He filed a v. Wade "the worst abomination of professors from over 150 law schools, we brief unsuccessfully opposing recognition constitutional law in our history." He has write to express our strong opposition to of the Family and Medical Leave Act as a supported the judicial display of the Ten the nomination of William H. Pryor, Jr., to valid exercise of congressional power under Commandments in the courtroom and the a seat on the United States Court of Appeals Section 5 of the Fourteenth Amendment in invocation of Christian prayers before the for the Eleventh Circuit. the recent case of Nevada Dep 't of impaneling of juries. He has defended In our judgment, Attorney General Human Resources v. Hibbs, 123 S. Ct. Alabama's practice of tying inmates to Pryor is an extreme advocate of a "turn- 1972 (2003). He also filed a brief inAtkins hitching posts for long periods of time, a back-the clock" form of federalism that v. Virginia, 536 U.S. 304 (2002), against practice the Supreme Court called threatens to undermine the basic constitu- recognition of mental retardation as a "degrading and dangerous" and tional rights of, among others, children, disqualifying condition for application of "obvious[ly] cruel." Hopev. Pelzer, 122 S. women, people with disabilities, gays and the death penalty under the Eighth Ct. 2508 (2002). He has praised the lesbians, and senior citizens. Through the Amendment. Once again, the Supreme extremist decision of Westside Mothers v. positions he has taken in various cases, Court ruled against the position he Haveman, 133 F.Supp. 2d 549 (E.D. Mich. both in representing the State of Alabama advocated. 2001), rev 'din relevant part, 289 F. 33d as a party and as an amicus curiae, he Mr. Pryor has sought to participate in 852 (6th Cir.), cert. denied, 154 L. Ed. 2d has shown insensitivity to such basic various challenges to the constitutionality 516 (2002), a case where the district court constitutional rights as the right to of Title II of the Americans with Disabili- would have held that congressional privacy, the separation of church and state, ties Act ("ADA"), which proscribes legislation passed pursuant to the the Commerce Clause, and the Eighth discrimination on the basis of disability in Spending Power is not the "supreme law of Amendment. He also has expressed state and local programs. He has filed the land" for purposes of the Supremacy hostility to such important congressional amicus curiae briefs in two cases Clause. He argued unsuccessfully for enactments as the Clean Water Act, the challenging the constitutionality of Title vacating a consent decree (entered into by Americans with Disabilities Act, the Age II, Yeskey v. Pennsylvania, 524 U.S. 206 his predecessor) in a case concerning the Discrimination in Employment Act, Title (1998) (where the Court rejected his view), care and custody of foster children in VI of the Civil Rights Act of 1964, and the and Medical Bd of California Hasan, Alabama despite the fact that the state had Violence Against Women Act. When linked No. 02-479, cert. dismissed, 173 S. Ct. not complied with the decree. R. C v. to his well-documented intemperateness, 1779 (2003). The issue of Title II's Nachman, 969 F.Supp. 682 (M.D. Ala. his positions belie his claim that, if continuing validity remains very alive as 1997). Apparently unconcerned about confirmed, he will simply follow the the Supreme Court has granted certiorari whether his position would harm vulner- applicable law, ignoring the values he in another Title II case to be heard next able children in the state's care, he noted, obviously holds dear. term, Tennesseev. Lane, No. 02-1667, "My job is to make sure that the state of Attorney General Pryor has made active cert. granted, 2003 U.S. Lexis4818 (June Alabama isn't run by federal courts .... My use of the amicus curiae brief to 23, 2003). job isn't to come here and help children."

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Attorney General Pryor's litigation ment has virtually no role to play in positions have had consequences far enforcement of well-established Committee News beyond his desire to protect Alabama's principles of non-discrimination on the interests as he sees them. In Board of basis of disability. Trustees of the University ofAlabama v. The Attorney General's zealotry is not Garrett, 531 U.S.356 (2001), he success- limited to trenching upon the rights of time of Reconstruction. His views should fully argued that Title I of the ADA was not people with disabilities. He was responsible be particularly troubling for members of a constitutional exercise of Congress's for litigating Alexander v. Sandoval, 532 Congress who have played keyroles in power under Section 5 of the Fourteenth U.S. 275 (2001), which limited the relief sponsoring the various pieces of legislation Amendment, and thus could not override available to plaintiffs suing under Title VI he has opposed with such vehemence. Mr. the state's Eleventh Amendment immu- of the Civil Rights Act of 1964. Sandoval's Pryor is entitled to his views, and the nity from damage actions brought by conclusion that the Title VI regulations people of Alabama, if they choose to do so, individuals. This decision has significantly cannot address disparate impact is a major are entitled to re-elect him to public office. hamstrung the reach and effectiveness of blow to civil rights enforcement. But the Senate Judiciary Committee the ADA. On remand for consideration of As law professors, we would be the last should exercise its advise and consent whether plaintiffs could pursue a claim people to criticize lawyers for zealous power to keep those views from being under Section 504 of the Rehabilitation advocacy of their clients' causes, even if we foisted on litigants in the United States Act, the Attorney General argued that the disagreed with those clients' positions. But Court of Appeals for the Eleventh Circuit state had not knowingly waived its Attorney General Pryor's views go well and on the broader bodypolitic . We urge Eleventh Amendment immunity in beyond those necessary to represent his the Committee in the strongest possible accepting federal funds, and hence could client zealously. He has sought out, and terms to reject this nomination. not be sued under this statute either, a staked out, a position as the prime Sincerely, position that the district court accepted. defender of an extraordinarily limited view Michael Rooke-Ley (The case is once again on appeal.) The of federal power that would have the effect Paula C. Johnson inescapable conclusion is that Attorney of undoing legal developments that date General Pryor believes the federal govern- not only from the New Deal but from the Co-Presidents Society of American Law Teachers

Finally... ATextbook on Clara), entitled "Cases and Materials on authors could be daunting, confusing and Social]ustice: Professionals, Communi- frustrating were it not for the careful and Social Justice ties, and Law." thoughtful commentaries ("Notes and SALT Co-President Michael Rooke-Ley, As the authors observe, "[[m] embers of Questions"), which so effectively tie the Seattle University School of Law (visiting the legal academy-in classrooms and materials together. 2003-04) clinics-have sought to teach about social Here is a casebook that is already being used enthusiastically for large first-year Given the years-dare I say decades-of talk justice in law schools because students courses on law, values and social justice; and more talk among SALT members at want to know how they can work with the for small, upper-division electives on our conferences and workshops about the people who most need them." With this public interest lawyering; or simply as an need for "social justice" materials, about comprehensive and wide-ranging 1100- invaluable resource for the rest of us who course development, about curricular page volume, we have been given just the may wish to cherry-pick pieces and reform, about providing something we tool we need to teach and inspire a new chapters for all that we do. can really work with ... well, it's time for generation of lawyers to work with AskStephanie ([email protected]), some celebration and recognition. marginalized, subordinated and Mamie ([email protected]), or Within the conventional, brown, hard underrepresented clients and causes. John ([email protected]) to send covers of Thomson West, you will find the Nearly 150 contributors-including you their 14-page Table of Contents. It's extraordinary work of SALT Board member many of you- have brought varied quite a tour de force. You'll be impressed. Mamie Mahoney (Miami),John Calmore experiences and perspectives from practice, (North Carolina), and former SALT Co- the academy and the bench. Reading so President Stephanie Wildman (Santa many excerpts from so many different

SALT Equalizer Page29 August 2003 www.saltlaw.org

Rooke-Ley Rallies Political lifetime appointments, so the time to and blatant disinterest in nurturing a Activists fight these battles is now.... We need community of nations, it has fostered a judges who believe in the principles of level of resentment and hatred for America The following excerpts are from a speech justice and equality, who respect choice, unparalleled in our lifetime. In the words that SALT Co-President Michael Rooke- and who reflect the diversity of of our home-made protest signs, this "mad Ley gave to a gathering of 400 political America .... cowboy disease could kill us all." activists in Eugene, Oregon on July 20, On the international front, the People all over the world have suffered 2003. progressive community recognizes that the at the hands of this Administration. Let us Bush Administration is simply "out of count the ways: The folks who have come together tonight control." Time after time, this Administra- •rejection of the Kyoto Accords; are dedicated activists, who have worked for •absence from the Durban Conference so many years to bring out the best in on Human Rights; America. These are patriots who know the "Time after time, [the •rejection of the Biological and difference between community-building Bush j administration Chemical Weapons Convention; and empire-building. has displayed an •unilateral termination of the ABM These days, in our state capitol as well Treatywith Russia; as our nation's capitol, our social priorities arrogance, an •active opposition to the creation of have been turned upside down. While adolescent pugnacity, the International Criminal Court; precious lives are lost and billions are spent that is not just •promulgation of a "pre-emption" for a war we don't want, Oregonians in doctrine, justifying military intervention need have become increasingly desperate in embarrassing, but whenever we wish and setting a horrifying the face of drastic social service cutbacks; truly damaging on a precedent for rogue nations of the world; our system of justice has been forced to global scale. With its •the Anglo-American invasion of Iraq, close one door after another; and our kids' Wild West rhetoric and sold on the basis of exaggerations and school year-already the shortest in the fabrications and without U.N. authoriza- nation-is shortened even further. Over- blatant disinterest in tion; and now worked teachers face classes that are much nurturing a •the awarding of massive re-building too large; programs are being cut right and community of contracts to the likes of Bechtel and left; my own kids don't have textbooks to Halliburton. take home anymore .... nations, it has This is an outrage-a scandal of Here in Oregon and across America, we fostered a level of enormous proportions .... And, yes, we need jobs. We don't need NAFTA or the resentment and need a new direction ... . WfO-we need industry here and trade hatredfor America Finally, let's remind ourselves that this treaties abroad which respect workers' is a community which has gone on record rights, human rights and the environ- unparalleled in our in opposition to the PATRIOT Act, thanks ment. ... lifetime. In the words to the work of so many of you seated here We need a new direction. We need ofour home-made tonight. Our work must continue, candidates for public office who are spreading the word to communities across willing to speak out on these issues. protest signs, this the nation about the insanity of sacrific- While we are deeply gratified by two 'mad cowboy disease ing our civil liberties in the name of recent Supreme Court decisions regarding could kill us all. "' security. affirmative action and regarding the right There is, I'm afraid, no rest for the of privacy for the gay and lesbian commu- weary. The political times have never been nities, we know that the Bush Administra- ti on has displayed an arrogance, an worse, the stakes have never been higher. tion and its conservative base are gearing adolescent pugnacity, that is not just We must meet the challenge and reclaim up to avenge those losses through their embarrassing, but truly damaging on a the very best of America. nominees to the federal bench. These are global scale. With its Wild West rhetoric

SALT Equalizer Page 30 August 2003 www.saltlaw.org r------1 Norman Dorsen Fellowship PLEDGE FORM Yes! I want to support the Nonnan Dorsen Fellowship. Over the next five years I promise to make the tax deductible contributions at the following level: --Distinguished Contributor ($1,500 total, or $300 a year) --Honored Contributor ($1,000 total, or $200 a year) --Sustaining Contributor ($500 total or $100 a year) --Contribution (other) $____ per year Or: --One-Time Contribution $ ---- Name------School------Address------Phone------E-Mail------Make your check payable to: SALT, designated to the Dorsen Fund on the notation line, and mail to: Sylvia A. Law, NYU Law School, 40 Washington Sq. So., New York, N.Y. 10012. The contribution is tax deductible. Nonnan Dorsen Fellowship Committee: David Chambers, Howard Glickstein, Phoebe Haddon, Sylvia A. Law, Charles R. Lawrence, Avi Soifer, and Wendy Webster Williams. L------~ r------1 Society of American Law Teachers Membership Application (or renewal)

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SALT Equalizer Page 31 August 2003 www.saltlaw.org Society of American Law Teachers Co-Presidents Past Vice Presidents Margaret Chon (Seattle) Paula C. Johnson (Syracuse) Anthony G. Amsterdam (NYU) Nancy Cook (Cornell) Michael Rooke-Ley (Seattle, visiting) Derrick A. Bell, Jr. (NYU) Frank Rudy Cooper (Villanova) Gary Bellow (Harvard) Roberto Corrada (Denver) Co-Presidents-Elect Ralph S. Brown,Jr. (Yale) Robert Dinerstein (American) Beto Juarez (St. Mary's) Thomas Emerson (Yale) Jane Dolkart (Southern Methodist) Holly Maguigan (NYU) Nancy Ehrenreich (Denver) Treasurer Past Presidents Neil Gotanda (Western State) Norm Stein (Alabama) Norman Dorsen (NYU) Tanya Hernandez (Rutgers-Newark) Howard Lesnick (Pennsylvania) Co-Editors Emily Houh (Northern Kentucky) David L. Chambers (Michigan) Eric S. Janus (William Mitchell) Joan Howarth (UNLV) George]. Alexander (Santa Clara) Raleigh Hannah Levine (William Mitchell) Chris Iijima (Hawaii) Wendy W. Williams (Georgetown) Jose Juarez Jr. (St. Mary's) Rhonda R. Rivera (Ohio State) Webmaster Eileen Kaufman (Touro) Richard Chused (Georgetown) Emma Coleman Jordan (Georgetown) Holly Maguigan (NYU) Charles R. Lawrence III (Georgetown) Historian Tayyab Mahmud (Cleveland-Marshall) Howard A. Glickstein (Touro) Joyce Saltalamachia (New York) Martha Mahoney (Miami) Sylvia A. Law (NYU) Beverly Moran (Wisconsin) Patricia A. Cain (Iowa) Board of Governors Nancy Ota (Albany) Jean C. Love (Iowa) Alicia Alvarez (DePaul) Marc Poirier (Seton Hall) Linda S. Greene (Wisconsin) Frances Ansley (Tennessee) Deborah Waire Post (Touro) Phoebe A. Haddon (Temple) Margalynne Armstrong (Santa Clara) Florence Roisman (Indiana-Indianapolis) Stephanie M. Wildman (Santa Clara) Elvia Arriola (Northern Illinois) Robert Seibel (CUNY) Carol Chomsky (Minnesota) Devon Carbado (UCLA) Aviam Soifer (Boston College) Margaret E. Montoya (New Mexico) Gabriel Chin (Cincinnati) Kellye Testy (Seattle)

WILLIAM MITCHELL COLLEGE OF LAW Non Profit Org. 875 Summit Avenue U.S. Postage Saint Paul, MN 55105-3076 PAID www.wmitchell.edu St. Paul, MN Permit No. 1300 SALT Equalizer Professor Eric S. Janus, Co-Editor Professor Raleigh Hannah Levine, Co-Editor

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