In late 2001 the trustees of the Louisiana State University consider whether to discontinue or revamp the school’s affirmative action policy. Excerpts of a memo to the trustees, detailing the history of the school’s admission policies with regard to race, is attached as Exhibit A to this exam. The trustees eventually decide on a new policy, attached as Exhibit B. The minutes of the Board of Trustees meeting at which the change was adopted is attached as Exhibit C.
1. In the spring of 2002, Alan Ackerman, a white student rejected for admission to the university for the Fall 2002 entering class sues, alleging that the new admissions policy violates the equal protection clause.
The new policy causes a great deal of consternation on campus. In the fall of 2002 Black Students United at LSU (BSU-LSU) begins a series of rallies, every Monday at 10AM, commemorating the day and time the trustees adopted the new policy. The first few of these rallies are non-violent, if noisy. However, starting in October the rallies take on an angry tone, after a group of counter-demonstrators begin attending the periphery of the rallies. The counter-demonstrators are also non-violent, but their presence adds tension to the rallies.
At the October 22 rally, Bob Bride, a professor in the Political Science department, gives a fiery speech, talking about the history of civil rights protests, and having as its theme the idea that minorities in the United States have gained what rights they have only as a result of forcing the white majority to confront the nation’s history of discrimination. Towards the end of his speech, with the crowd getting emotional, he says the following:
“Blacks have never won any rights without shoving the Constitution in whites’ faces. Compromise has been tried. It doesn’t work. Politeness has been tried. It doesn’t work. Patience has been tried. Our patience has been tried. Our patience is OVER!”
At that point the crowd begins chanting, “No more patience. Shove it!” One of the members of the crowd, a student at the law school, takes his constitutional law casebook out of his backpack and throws it at one of the counter-protesters, yelling “Here’s the Constitution! Shove it!” The counter-protester suffers a broken nose. The incident touches off a melee in which individuals on both sides are injured, several seriously.
2. Bride is arrested for inciting a riot. He claims the First Amendment as a defense.
After the riot the University president comes under extreme pressure to calm the situation. He issues the following directive:
Directive 2002-56: In order to minimize race-based misunderstandings and to promote tolerance and a spirit of inclusiveness, all student organizations shall adopt and enforce racial non-discrimination policies with regard to membership and attendance.
3. BSU-LSU, whose by-laws state that membership is restricted to African-Americans, sues to have Directive 2002-56 declared unconstitutional. Excerpts from the by-laws are reprinted at Exhibit D.
Analyze these constitutional claims. Which, if any, are likely to succeed? Why or why not?
August 28, 2001
From: Office of Research, Board of Trustees
To: The Trustees
Re: A History of LSU’s Admissions Policies With Regard to Race
. . . It is a sad but undeniable fact that LSU’s admissions policies have historically been influenced by race. From the school’s founding in 1848 until 1964, African-Americans were officially barred from attending LSU. In 1964 the prohibition was dropped, but the first African-Americans did not matriculate until 1966. Vestiges of official discrimination continued until 1972, when the last official arm of the university, the marching band, dropped its refusal to admit African-Americans.
. . . In 1973 the University began official outreach efforts to the African-American population, which culminated in the adoption of the current affirmative action policy, in 1977.
Press Release, dated September 5, 2001
Today the Louisiana State University announces a new undergraduate admissions policy. Previously the school had used a 1-100 scoring system for undergraduate admissions based on SAT scores and high school grades, with Louisiana residence, African-American heritage and one or more relatives as LSU alumni each providing an automatic 10 point increase in an applicant’s score. The new admissions policy, effective for applications for admission for the Fall 2002 entering class, is as follows:
“LSU seeks to admit an accomplished and talented entering class, representing the diversity of experiences both of Louisiana residents and Americans generally. Applicants will be scored on a 1-100 scale. Of the possible 100 points, 75 are based on SAT scores and high school grades – that is, a perfect SAT score and 4.0 GPA will lead an applicant to be scored at 75. The remaining 25 possible points will be scored based on the non-quantifiable criteria that, in the view of the admissions officer, will both ensure that the entering class contains students with special experiences and talents, and seek to compensate students who have had to surmount unusually large hurdles in the course of their education. Special experiences and talents include foreign travel or living experience, special artistic or athletic potential, military or significant public service, and unusual life experiences. Hurdles include, among other things, economic, cultural or social hardship and physical or emotional handicap.”
Excerpts of the Minutes of the Board of Trustees Meeting, September 1, 2001
Chairman Anderson: The next item on the agenda is the new admissions policy.
Trustee Baker: This policy is gibberish. What’s going on here?
Trustee Carter: You know good and well what it is. Race-based affirmative action is on its way out. The Supreme Court is clearly hostile to it. We’ve got to do something.
Trustee Davis: Well, what does “something” mean? Just reinserting a race preference under the smokescreen of “cultural or social hardship?”
Anderson: Not necessarily. That preference includes all kinds of things. Cajuns would probably get a preference, if they grew up in a Cajun community. So would poor people. God knows there are lots of poor whites in this state.
Davis: Well, yeah, but everyone knows that proportionally speaking, blacks are much poorer than whites in this state. A preference for “economic hardship” cases would catch a much higher proportion of all black applicants than of all white applicants, even if, on a raw numbers basis, there would be more poor white applicants than poor black ones.
Carter: We all know that. But we have to do something. We have a legacy of discrimination in this state. Even LSU itself. You all got the memo from the research office. And everyone knows how crummy the elementary and secondary schools are in black neighborhoods in this state.
Anderson: Yeah, and look, we’ve been thinking about revamping our admissions policy for years now, to be more nuanced about who we should give preferences to. You can’t look at the hardship criterion in isolation; there are lots of ways to get a preference here. And remember, the new policy never ever says that “race gets you extra points.” It might not. If you were a middle class black kid with no special experiences, you wouldn’t get the preference.
Baker: I am so not convinced. We stopped discriminating almost 40 years ago. We have nothing to do with the situation in the elementary and secondary schools. And one more thing: Why isn’t this admissions policy going to the University President first, for his formal input? Isn’t that the way we usually do things?
Carter: It is, you’re right. But we don’t have time. We need to decide this now, so we can change the application packets and train the admissions staff. There’s nothing nefarious about what we’re doing.
Anderson: Maybe it’s time we voted.
Whereupon, a vote was taken and the new policy enacted by a 3-1 vote.
Excerpts from the By-laws of BSU-LSU . . .
III. Membership: BSU-LSU seeks to ensure that African-American students at LSU can socialize and discuss issues of importance to the African-American community in an atmosphere that is comfortable and free of race-based pressure. BSU-LSU believes that a distinct African-American perspective on issues exists, and that development of that perspective requires discussions within the community. To that end, even though BSU�LSU intends to work with other progressive organizations on and off campus, and even though some social gatherings will be open to all members of the University community, membership in and attendance at BSU-LSU meetings is restricted to African-Americans. Any African-American student at LSU is eligible to be a member or attend any meeting.
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