Constitution Daily

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Podcast: Clegg, Chemerinsky debate the latest affirmative action case

October 18, 2013 by NCC Staff


Roger Clegg from the Center for Equal Opportunity and Erwin Chemerinsky from the University of California – Irvine, two leading experts on affirmative action, discuss the merits of a high-profile Supreme Court case heard this week, in a special podcast.

Chemerinsky and Clegg

Chemerinsky and Clegg joined National Constitution Center president and CEO Jeffrey Rosen on Friday morning to discuss the case of Schuette v. Coalition to Defend Affirmative Action.

Click here for direct link

The Schuette case was in front of the Court just months after the Justices decided another big affirmative action case, Fisher v. the University of Texas at Austin.

In late June, the Supreme Court sent the Fisher case back to a lower court with instructions for that court to reconsider race as a factor in its admissions process.

In the Fisher case, an anticlimactic decision by Justice Anthony Kennedy left more questions in the air about the Court’s views on affirmative action.

On October 8, the Justices heard the Schuette case. This case poses a question about the ability of voters in the state of Michigan to ban affirmative action at public universities.

The state’s opponents believe such an action violates the Constitution under the 14th Amendment’s Equal Protection Clause.

And again, a key figure in the Schuette arguments was Justice Kennedy. He made repeated efforts, throughout the arguments, to ask all three of the lawyers in court about how the Michigan situation was different from two important prior cases—one from Akron, Ohio (Hunter v. Erickson), the other from Seattle (Washington v. Seattle School District).

Among the topics discussed in the debate are the key differences between the Michigan and Texas cases, and the research and implications of the “mismatch theory.”

The discussion about the Michigan and Texas cases  starts at the 1:56 mark, while Clegg and Chemerinsky debate the Akron and Seattle cases at the 5:00 mark.

The mismatch theory was formulated by Richard Sander and Stuart Taylor Jr., and it postulates that students admitted to colleges who have lower academic qualifications than the rest of the student body often struggle in class, and aren't benefited by affirmative action policies.

Clegg supports the mismatch theory, while Chemerinsky has serious issues with the research. (The debate on the mismatch theory starts at the 12:24 mark.)

Another debate topic is the constitutionality of states being allowed to approve their own affirmative action laws (at 18:50) and how both experts think the Court will decide the case (21:40).

You can listen to the full 23-minute audio using the player above or below, or by clicking on the following link:

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