affirmative action – Page 3

MSU Conference: Neocolonial Inscription and Performance of American Indian Identity in American Higher Education: Oct. 16-17

October 15, 2008October 17, 2008Matthew L.M. Fletcher1 Comment

The conference will attempt to address and review issues of American Indian identity in higher education. Through this process, we hope to create and expand inter-community, inter-institutional and public dialogue on American Indians in higher education. The two day conference will examine key issues such as tribal sovereignty, faculty hiring, current university practices allowing self-identification, and explore who should represent American Indians in American Indian higher education programs and departments.

As a result of this conference, we hope to make MSU a better community, a more honest community, a place where diversity engenders not only inclusion in name, but where diversity includes, reflects and respects diverse ways of knowing and thinking, as well as diverse means for reception, delivery and acceptance of cultural competencies and production.

Keynote Speakers:

Dr. Cornel Pewewardy

The Honorable Steve Russell

Website

2008 Term Preview: The Long Conference — September 29, 2008

September 4, 2008September 4, 2008Matthew L.M. Fletcher4 Comments

On September 29, 2008, the Supreme Court will convene for what is known as the long conference. Here is where the Court meets privately to make decisions on the summer backlog of cert petitions. There are EIGHT Indian law-related cert petitions scheduled for review in the long conference. There is a very good chance that one or more of these petitions will be granted.

1. Hawaii v. Office of Indian Affairs (07-1372)

This petition has a fairly good chance to be granted.

The first factor weighing in favor of a grant is that a state government is bringing the petition. The second factor weighing in favor are the three amicus briefs supporting the petition, often an attention getter for the clerks. Moreover, one of the amicus briefs is signed by 30 states and a U.S. territory, yet another point in favor of a grant. The wild card factor is that a similar petition reached the Court in the 2006 Term, but that one was settled out of court and dismissed (Doe v. Kamehameha Schools). Moreover, there is a case similar to Doe that has just been filed, and the Court might want to wait for that one (not sure why).

2. Ho-Chunk Nation v. Wisconsin (07-1402)

I don’t think this one has much chance to be granted.

It’s a sort of an interlocutory appeal, meaning the lower court hasn’t even reached the merits yet. And it’s being brought by an Indian tribe, which doesn’t appear to impress the Justices much. Finally, the petition cites me for the proposition that this is an important case, always a serious mistake. 8)

3. Kemp v. Osage Nation (07-1484)

This has a fairly good chance of being granted, too, but maybe not as good as the Hawaii case.

Kemp is actually the Oklahoma Tax Commission, always a Supreme Court favorite (remember the 1990s, Citizen Potawatomi, Sac and Fox, and Chickasaw Nation?). So, it’s a state government bringing the petition, weighing in favor of a grant. Moreover, the subject matter of the case is state sovereign immunity and the Ex parte Young exception. Again, a factor favoring a grant. But there doesn’t seem to be a split in authority. And the state’s argument that the Tenth Circuit’s decision conflicts with Idaho v. Coeur d’Alene seems to be a stretch, because this case is about taxation, and that one was about actual title to land.

4. Kickapoo v. Texas (07-1109)

This one has a slight chance for a grant.

I’d have said all along (and I did, I think) that this case has no chance for a grant. And then the US filed an unusual brief arguing for a denial, but making a powerful case for why the CA5 got this one wrong on every level. If the US brought the petition (it didn’t), then maybe there would be a grant on that argument alone. Baffling. Texas initially refused to file a cert opposition (probably because they read my blog entry 🙂 ), but then the Court called for a response.

Still, there’s no split. And other cases involving the same exact question are in the pipeline in Florida and Alabama. The Court will probably let this one percolate below.

5. Klamath Tribes v. PacificCorp (07-1492)

This one has no chance.

First, it’s being brought by an Indian tribe, not a favored petitioner. Second, Klamath is bringing a federal common law cause of action. The Court doesn’t favor those, either. And third, there’s no split in authority. Poor fish. 😦

6. Matheson v. Gregoire (08-23)

Again, no chance.

First, the case is being brought by an individual Indian who is challenging the fact that his tribe entered into a tax agreement with the state. He could challenge the agreement in tribal court (maybe he is), but instead he’s going to federal court. Second, there’s no split at all.

7. South Fork Band v. United States (08-100, 08-231)

No chance.

This is a case trying to reopen parts of the odious United States v. Dann decision from 20 years ago. The Court doesn’t like that, either.

8. United States v. Navajo Nation (07-1410)

Very, very good chance for a grant.

First, the petition is brought by the United States, which is the premier party in the Court’s eyes. I suspect far more than half of the US’s petitions are granted, and I’m sure all but a very few are seriously considered by the Court in conference. Second, this is the continuation of a case the Court thought to be important in 2002, U.S. v. Navajo Nation I. That case (and this one, too) involves a judgment against the United States that could reach one billion dollars, if interest attaches (a mere $600 million if it doesn’t). Third, though the Court technically left open several questions after Navajo Nation I, it strongly stamped down the first theory brought by the Navajo Nation. One suspects the Court doesn’t like seeing a case reaching an outcome it rejected once come back again under a second theory. We could either have an outcome like U.S. v. Mitchell (tribe loses first time, comes back second time and wins with new theory), or N.Y. v. Milhelm Attea (Court repeatedly instructs lower court to find against tribe, only to be forced to do the dirty work itself).

Either way you have a grant.

“American Indian Education” Profiled by ICT

September 3, 2008Matthew L.M. Fletcher

From ICT:

TEMPE, Ariz. – Matthew L.M. Fletcher is an associate professor at Michigan State University College of Law and he is the director of the Indigenous Law and Policy Center. He recently published, ”American Indian Education: Counternarrative in Racism, Struggle, and the Law” through Routledge. He graduated from University of Michigan Law School.

Indian Country Today: Why did you choose to pursue a career in law?

Matthew L.M. Fletcher: I just want to be able to contribute something to the community and I also was thinking in different ways, even before I started college, what I could do. I had talks with people who are from my community and elders from Michigan who talked a lot about how in the ’70s and ’80s, the big treaty fishing cases were going on and people were really happy with the outcomes with those cases but they were sad to see all the litigation conducted and organized and control by people that were not from the community.

ICT: Do you feel like you have helped your tribe?

Fletcher: I feel like I’ve contributed something and I continue to contribute something. My whole life will be a process of contributing. I think it has been real good.

ICT: What is the future of Indian law?

Fletcher: It’s interesting. The ’70s and ’80s were about litigating treaty rights. The key for Indian lawyers is not so much about going to court but it’s about developing governmental structures within the tribe which is what lawyers do. It’s actually a folly to go to federal courts now. All you have to do is ask anyone who does any kind of litigation in federal court if you’re representing a tribe or tribal interest you can’t expect to win. It’s going to be that way for a long time. The thing that you see is institution building within Indian country. There are some incredible things going on that are not getting a lot of attention. There is a lot of creativity with people bringing back indigenous culture and tradition.

ICT: How would you define sovereignty?

Fletcher: My view of sovereignty is that it is the right to make your own mistakes and to decide things for yourselves. That is really what it is about. Tribes have the wherewithal, the ability and the legal authority to pursue different avenues of governance. They are going to do something where everyone shakes their heads, and then they are going to do other things where people are going to just say, ”Wow.” There is an incredible amount of diversity and creativity going on right now.

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Neocolonial Inscription and Performance of American Identity in American Indian Higher Education — Conference Announcement

August 21, 2008August 21, 2008Matthew L.M. Fletcher

The conference website is here and registration starts soon!

Here is the law panel, hosted by the MSU Indigenous Law and Policy Center:

Law: Who’s Legal and Why Should or Shouldn’t That Matter?

Panelists: Andrew Adams III, General Counsel, St. Croix Chippewa Indians of Wisconsin; Trent Cable, Makah Nation; Colette Routel, Atty Jacobson, Buffalo, Magnuson, Anderson & Hogen in St. Paul, Minnesota.

John Petoskey, Grand Traverse Band of Ottawa and Chippewa Indians, and Kate Fort, MSU Indigenous Law and Policy Center, will be sitting on panels as well.

The rest of the panels are listed here.

Malcolm Gladwell on affirmative action for law school admissions and lawyer performance (among other things)

May 27, 2008trentcrable1 Comment

Malcolm Gladwell gave the opening talk at the New Yorker Conference held earlier this month. His talk was primarily about the “mismatch problem” in hiring. It’s very interesting. It can be watched (no charge!) on the New Yorker’s website.

He talks about the the “combines” before the pro-sports drafts and how they are awful predictors of success; teacher hiring and how the added requirements for teachers in No Child Left Behind actually make it more difficult for schools to hire better teachers; and lawyer-hiring, which he supports by citing a study reportedly conducted by the University of Michigan Law School that compared the post-graduation performance of students admitted under affirmative action to the performance of those admitted under the non-affirmative-action standards.

The whole talk is really interesting, but it is about 30 minutes long. If you want to skip ahead to the part on lawyer-hiring and the performance of students admitted under affirmative action (those areas most relevant to what this blog is typically concerned with), you can jump to it about 3/4 of the way through. [But if you have any interest in pro sports, particularly hockey, football, or basketball, I think the first part of the talk really shouldn’t be missed.]

About the University of Michigan Law School study: He says that it shows that there is, generally, no difference between the post-grad success of those admitted under affirmative action (the “lower standard”) and those admitted under the “higher standard.” [Aside: He also characterizes UMLS’s former affirmative action program as creating a “two-tiered” admission system, where affirmative action admits faced a “dramatically lower standard.” From what I recall about the Law School’s position in Grutter, that is not how they would want their process characterized.]

I was once told, by someone who would know, that (at least at Michigan) LSAT scores are great predictors of law school GPAs. If both that statement and Gladwell’s summary of the study are accurate, that would seem to suggest that law school performance doesn’t predict post-grad performance. Which I think would be true in some cases, but not generally, particularly considering the opportunity advantage of the top performers.

“American Indian Education” Published TODAY

May 27, 2008Matthew L.M. Fletcher2 Comments

My book, “American Indian Education: Counternarratives in Racism, Struggle, and the Law,” is being published today by Routledge (if the website is to be believed). You can download the introduction and table of contents on SSRN (here).

Save the Date — MSU American Indian Identity Conference — October 16-17, 2008

May 21, 2008May 21, 2008Matthew L.M. Fletcher1 Comment

NEOCOLONIAL INSCRIPTION AND PERFORMANCE
OF AMERICAN INDIAN IDENTITY
IN AMERICAN HIGHER EDUCATION

SAVE THE DATE

OCTOBER 16 & 17 2008

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DCT Dismissal of Coalition to Defend Affirmative Action Claim

March 21, 2008Matthew L.M. Fletcher

Here’s the opinion.

Erwin Chemerinsky on Michigan’s Prop 2

March 10, 2008Matthew L.M. Fletcher

Erwin Chemerinsky’s talk about direct democracy and Prop 2 (with the Orwellian name “Civil Rights Initiative”) has been published in our own Michigan State Law Review. The talk is called “Challenging Direct Democracy.”

Here’s the introduction:

The Civil Rights Initiative in Michigan was adopted the day before this symposium on direct democracy was held at Michigan State University College of Law.

Let there be no doubt of its effects: it’s going to be a devastating event for individuals of color throughout Michigan. I can back this up by the experience of California, after a similar initiative, also championed by Ward Connerly, was passed there in 1996. Statistics are available about the effect on admissions at the University of California Law Schools in the five years immediately after the passage of what was called their Proposition 209. The percentage of minority students at state law schools, like UCLA and Boalt, is a fraction of what it was at comparable private schools like Stanford and U.S.C. The same effects have been seen in government contracting and employment.

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