Lee Bollinger’s “The Essential Constitutionality of Affirmative Action” and The Impending Supreme Court Harvard decision

[johnkarls]

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The U.S. Supreme Court’s decision in Students For Fair Admission vs. Harvard will be announced by 6/30/2023.

Accordingly, I propose Lee Bollinger’s (with Geoffrey Stone) “A Legacy of Discrimination: The Essential Constitutionality of Affirmative Action” (Oxford U. Press 2/1/2023 – 192 pages but probably much fewer sans notes & index - $24.36 + shipping or $14.49 Kindle from Amazon.com).

We discussed the Supreme Court case briefly in connection with our 11/11/2022 meeting on Niall Ferguson’s “The Square and the Tower: Networks and Power, from Freemasons to Facebook” because, inter alia, oral argument in the Supreme Court in Students For Fair Admission vs. Harvard had just taken place on 11/1/2022 – please see, e.g., “Affirmative Action: Last Monday’s Supreme Court Oral Arguments in Students For Fair Admission vs. Harvard” at viewtopic.php?f=714&t=2270&p=3073&hilit ... 1f09#p3073.

In looking for a good book on the topic, Lee Bollinger’s stood out because, inter alia –

(1) he is currently serving as the President of Columbia University since 2002 – WHILE SIMULTANEOUSLY SERVING AS A COLUMBIA U. LAW SCHOOL PROFESSOR, and

(2) he served as the President of the U. of Michigan 1996-2002 – WHILE SIMULTANEOUSLY SERVING AS A U/MICH LAW SCHOOL PROFESSOR, and

(3) he is a well-known Constitutional Scholar, particularly vis-à-vis the First Amendment, though he had personal involvement in two previous Supreme Court decisions involving affirmative action –

Gratz vs. Bollinger (539 U.S. 244 (6/23/2003)) which involved the U/Mich undergraduate affirmative action policy, and

Grutter vs. Bollinger (539 U.S. 306 (6/23/2003) which involved the U/Mich Law School affirmative action policy.

BTW, I will have to confess that I have always been aware of Lee Bollinger for 27 years as a U/Mich-undergrad alumnus, and because of his Presidency of Columbia U 2002-present which depended on his being simultaneously appointed a Columbia Law Prof since Lance Liebman, a regular co-participant in our weekly Harvard Law School Class of 1967 Zoom chat, left the Harvard Law faculty in 1991 to become Dean of the Columbia Law School faculty.


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Book Description per Amazon.com

A timely defense of affirmative action policies that offers a more nuanced understanding of how centuries of invidious racism, discrimination, and segregation in the United States led to and justifies such policies from both a moral and constitutional perspective.

Since 1961, the issue of "affirmative action" has been a hotly contested legal and political issue. Intended to address our nation's often horrifying discrimination against Black Americans and other minorities, affirmative action has led over the past sixty years to far greater minority representation across a vast range of industries, government positions, and academic institutions. Nonetheless, affirmative action policies in the United States continue to fall under assault.

In A Legacy of Discrimination, Lee C. Bollinger and Geoffrey R. Stone, two of America's leading constitutional scholars, trace the policy's history and the legal challenges it has faced over the decades. They argue that in order to fully comprehend affirmative action's original intent and impact, we must re-acquaint ourselves with the era in which it arose, beginning with the most important Supreme Court decision of the 20th century, 1954's Brown v. Board of Education of Topeka, Kansas. Assessing this history, Bollinger and Stone introduce subsequent, and evolving, affirmative-action case law that had the intent and effect of constraining social, educational, and economic progress for Black people and other minority groups. They demonstrate how and why affirmative action policies stand on firm legal ground and must remain protected. Further, they explain why Americans must view affirmative action as a long-term moral commitment to secure justice, especially for Black Americans, after three and a half centuries of grave injustice that violates the most essential aspirations of our nation.

A timely and robust overview of the history of our nation's historical and continuing racial discrimination and of the advent of affirmative action as a critical means to address this history, this book will serve as a powerful defense of a policy that has accomplished more than most people realize in making America a fairer and more inclusive country.


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Author Bios per Amazon

Lee C. Bollinger became Columbia University's 19th president in 2002 and is the longest serving Ivy League president. He is Columbia's first Seth Low Professor of the University, a member of the Law School faculty, and one of the nation's foremost First Amendment scholars. Bollinger's books include: Uninhibited, Robust, and Wide Open: A Free Press for a New Century; Eternally Vigilant: Free Speech in the Modern Era; Images of a Free Press; and The Tolerant Society: Freedom of Speech and Extremist Speech in America. And, his books co-edited with Geoffrey R. Stone include The Free Speech Century and National Security, Leaks and Freedom of the Press. Bollinger serves as a member of the Pulitzer Prize Board. As president of the University of Michigan, Bollinger led the school's landmark civil rights litigation in Grutter v. Bollinger, a Supreme Court decision that for the first time upheld the constitutional right of colleges and universities to engage in affirmative action to advance diversity in higher education. Bollinger is a fellow of both the American Academy of Arts and Sciences and the American Philosophical Society, and the recipient of ten honorary degrees and numerous awards, including the National Humanitarian Award from the National Conference for Community and Justice and the National Equal Justice Award from the NAACP Legal Defense and Educational Fund.

Geoffrey R. Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago. Mr. Stone earned his J.D. from The University of Chicago Law School in 1971, where he served as Editor-in-Chief of The University of Chicago Law Review. After serving as a law clerk to Justice William J. Brennan, Jr. of the Supreme Court of the United States, Mr. Stone joined the faculty of The University of Chicago Law School in 1973. Mr. Stone has served as Dean of The University of Chicago Law School (1987-1994) and Provost of The University of Chicago (1994-2002). Mr. Stone is the author or co-author of many books on constitutional law. Among them are Democracy and Equality: The Enduring Constitutional Vision of the Warren Court (2020), The Free Speech Century (2018) co-authored with Columbia University President Lee Bollinger; Sex and the Constitution (2017); Top Secret: When Government Keeps Us In the Dark (2007); and Perilous Times: Free Speech in Wartime (2004), which received eight national book awards. Mr. Stone is the co-editor of one of the nation's leading constitutional law casebooks, chief editor of a twenty-volume series, Inalienable Rights, which is published by the Oxford University Press, and an editor of the Supreme Court Review.


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Reviews per Amazon.com

"In this brilliant history and reassessment of our still unfinished journey of race, two of America's most perceptive students of that history and its legal dimensions, President Lee Bollinger of Columbia University and Professor Geoffrey Stone, formerly Dean of the Chicago Law School, put the long-simmering affirmative action debate in its urgent current context and reframe that debate in terms more faithful to what is truly at stake. Anyone concerned about our nation's fate must read what these two chroniclers of our past and prognosticators of our future have to say."
-- Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus, Harvard Law School

"This brilliant and timely book by two of America's greatest educators powerfully resurfaces the original, moral rationale for Affirmative Action: racial justice. It's a startlingly fresh and clarifying book that more than any writing I have seen, roots the discussion of Affirmative Action in basic truths about American history and society. It will change the landscape of these debates, and, as the Supreme Court, with a conservative majority, visits this issue yet again, this is the book to read."
-- Claude Steele, Lucie Sterns Professor Emeritus of Psychology, Stanford University

"A vital text for our national discourse on race and higher education, A Legacy of Discrimination will grant those unfamiliar with affirmative action's history a rigorously clear accounting of its past and current outcomes and instill all readers with a greater understanding of its potential to remedy systemic racial injustice."
-- Elizabeth Alexander, President, Mellon Foundation

"An important book, one that goes to fundamentals. Bollinger and Stone urge that all of us―including the Supreme Court―should see affirmative action as a legitimate response to a legacy of discrimination. Timely, bold, and terrific."
-- Cass Sunstein, Robert Walmsley University Professor, Harvard University

"It is not surprising that Bollinger and Stone―two widely-respected legal scholars with deep expertise in higher education―have written a clear and insightful book that lays out a strong case for affirmative action as a much-needed remedy to achieve racial justice. This book is for legal scholars, policy practitioners, higher education leaders, and anyone with an interest in the history and consequences of the legacy of racial discrimination in the United States."
-- Christina H. Paxson, President, Brown University

[johnkarls]

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-------- Original Message --------
Subject: Supreme Court Decision
Date: 2023-06-29 11:48 EDT
From: "Harvard University Leadership" <university_leadership@harvard.edu>
To: <john@johnkarls.com>


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Dear Members of the Harvard Community,

Today, the Supreme Court delivered its decision in Students for Fair Admissions v. President and Fellows of Harvard College. The Court held that Harvard College’s admissions system does not comply with the principles of the equal protection clause embodied in Title VI of the Civil Rights Act. The Court also ruled that colleges and universities may consider in admissions decisions “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” We will certainly comply with the Court’s decision.

We write today to reaffirm the fundamental principle that deep and transformative teaching, learning, and research depend upon a community comprising people of many backgrounds, perspectives, and lived experiences. That principle is as true and important today as it was yesterday. So too are the abiding values that have enabled us—and every great educational institution—to pursue the high calling of educating creative thinkers and bold leaders, of deepening human knowledge, and of promoting progress, justice, and human flourishing.

We affirm that:

• Because the teaching, learning, research, and creativity that bring progress and change require debate and disagreement, diversity and difference are essential to academic excellence.

• To prepare leaders for a complex world, Harvard must admit and educate a student body whose members reflect, and have lived, multiple facets of human experience. No part of what makes us who we are could ever be irrelevant.

• Harvard must always be a place of opportunity, a place whose doors remain open to those to whom they had long been closed, a place where many will have the chance to live dreams their parents or grandparents could not have dreamed.

For almost a decade, Harvard has vigorously defended an admissions system that, as two federal courts ruled, fully complied with longstanding precedent. In the weeks and months ahead, drawing on the talent and expertise of our Harvard community, we will determine how to preserve, consistent with the Court’s new precedent, our essential values.

The heart of our extraordinary institution is its people. Harvard will continue to be a vibrant community whose members come from all walks of life, all over the world. To our students, faculty, staff, researchers, and alumni—past, present, and future—who call Harvard your home, please know that you are, and always will be, Harvard. Your remarkable contributions to our community and the world drive Harvard’s distinction. Nothing today has changed that.

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