Vanderbilt’s Professor Brian T. Fitzpatrick and UF Law Visiting Professor Darren Hutchinson discuss the past, present and future of affirmative action at UF Law on Feb. 20. The discussion was hosted by the Federalist Society and the Black Law Students Association. (Photo by Haley Stracher)

By Matt Walker
Senior writer

During an event co-sponsored by the UF Black Law Students Association and the UF Federalist Society last Wednesday, it quickly became evident that there are many considerations to be made in the debate over the merits and effectiveness of affirmative action in the university admissions process.

“Fisher v. University of Texas: The Past, Present, and Future of Affirmative Action in Higher Education,” featured Brian T. Fitzpatrick of Vanderbilt Law School and Darren Hutchinson, of American University and current visiting professor at UF Law discussing the pros and cons of affirmative action. UF Law Professor John Stinneford moderated the panel.

Currently before the Supreme Court, the case of Fisher v. University of Texas deals with a white plaintiff who was denied admission to the University of Texas based on a number of considerations, including race. The court will be determining if the Equal Protection Clause of the 14th Amendment allows for the consideration of race in the University of Texas’ decision. Less than 10 years ago, the court ruled that race could be a consideration in Grutter v. Bollinger.

The discussion began by looking back at the history of affirmative action and how it may or may not have benefitted those who have been impacted by it.

“To the extent affirmative action has helped to open doors to colleges and universities, given what we know about education and how it transforms income over time, transforms self, transforms employability over time, it definitely has been something that’s been beneficial,” Hutchinson said.

Fitzpatrick was less sure of the positive effects of affirmative action, saying the jury is still out.

“There have now been some very rigorous, very professional, empirical studies on the consequences of affirmative action in education that cast great doubt on whether racial preferences actually benefit the very people they are intended to benefit,” he said.

Fitzpatrick said the studies suggest there would be more African-America lawyers today if affirmative action did not exist, because the practice winds up allowing some students into programs above their credentials, which results in higher dropout rates and lower bar passage rates.

The panelists also discussed their thoughts on how the Supreme Court will rule on Fisher case.

Fitzpatrick said he thinks the court will strike down the University of Texas affirmative action program for pragmatic reasons, saying the university has not proven that it needs that level of diversity to accomplish particular educational benefits.

Hutchinson said he thinks the question might come down to looking at what the state of Texas needs to do to deliver quality education to all of its students. He said although he hates predicting the outcomes of cases, he doesn’t “think they’ll say affirmative action is unconstitutional.”

The speakers touched on other issues related to affirmative action as well, including the question of where Asians fit in with affirmative action, and how Texas is now a state where the majority of the population are racial minorities.

Fitzpatrick joined Vanderbilt’s law faculty in 2007 as an associate professor after serving as the John M. Olin Fellow at New York University School of Law. He received the Hall-Hartman Outstanding Professor Award which recognizes excellence in classroom teaching for his Civil Procedure course for the 2008-09 academic year.

Hutchinson has written extensively on issues related to Constitutional Law, Critical Race Theory, Law and Sexuality, and social identity theory. His numerous publications have appeared in many journals including: the Cornell Law Review, the UCLA Law Review, the Michigan Journal of Race and Law, the University of Pennsylvania Journal of Constitutional Law, and the Journal of Law and Inequality among others. Hutchinson also authors Dissenting Justice, which is a blog related to law and politics.

Retired Supreme Court Justice John Paul Stevens speaks with UF Law professors Kenneth Nunn, John Stinneford and Danaya Wright during the Marshall M. Criser Distinguished Lecture Series held in the Marcia Whitney Schott Courtyard on Tuesday. (Photo by Elise Giordano)

At 92, retired Supreme Court Justice John Paul Stevens has a lifetime of experience and legal wisdom to impart, which he readily did Tuesday at UF Law. Stevens was welcomed for the second time in five years as the Marshall M. Criser Distinguished Lecturer. Stevens spoke at the inaugural Criser Lecture at UF Law in 2008.

The conversation was facilitated by UF Law Professors Kenneth Nunn, John Stinneford and Danaya Wright. Stevens addressed a wide variety of topics, including proportionality in sentencing, interpreting history, changing technology, and experiences and court opinions from his years as a justice.

“Justice Stevens not only appears to have encyclopedic memory of his decisions during his term on the court, but he remembers his reasons for reaching the conclusions he did and also the countervailing arguments that might have led him to decide differently,” Stinneford said. “As someone who can’t remember what I had for breakfast this morning, I found this very impressive.”

One of the cases Stevens addressed in particular was Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. – a case Stevens said he believed to be a routine case in 1984 when he wrote the majority opinion. In the years since, it has become one of the most cited cases in administrative law.

“You don’t – at the time you’re working on a case – always appreciate what its long-run impact will be,” Stevens said.

Stinneford said “this is a nice reminder that we should take even the mundane events of our lives seriously, as they may turn out to have a bigger impact on our lives than we realize at the time.”

Stevens also addressed his legacy as a Supreme Court justice when Nunn suggested that his opinions throughout the years seemed to grow more liberal.

“To tell you the truth, I think I’m a good deal more conservative than people often assume because I feel very strongly that judges should not be deciding certain issues,” he said. “I’m sure I must have changed to a certain extent but I don’t think I’ve changed a tenth as much as the court in general has changed.”

He said each Supreme Court appointment beginning with his own was more conservative than his or her predecessor.

Wright said of spending time with Stevens before and after the lecture that he was delightful, modest and interesting.

“He told stories of his days before the court and he remembered almost all the cases we talked about quite well,” she said. “I did manage to dredge up a case he had only signed onto the majority opinion on, and he didn’t remember it very well.”

Stevens also imparted some advice for current law students, including the benefits of attaining a clerkship.

“I think it’s really excellent experience, and that’s at all levels, not necessarily appellate court but trial courts too,” he said. “You learn a great deal about how litigation actually works by being in the inside of the process for a year or so.”

In closing, Stevens emphasized the importance of studying hard, and ultimately having a good reputation as a practicing lawyer.

“It’s very simple and you’ve heard it over and over again: One, study hard and take your work seriously,” he said, “and remember that the most important asset that you’re going to have when you get out in practice is to have everybody in the profession know that your word is good, because that is a critical part of the profession – the integrity of the lawyer – and that’s something you must always keep in mind.”

The Marshall M. Criser Distinguished Lecture Series was created in early 2007 by Lewis Schott (B.A. 1943, LL.B. 1946) of Palm Beach, Fla., as a tribute to his fellow UF Law alumnus, former UF President Marshall Criser (JD 51). The goal of the speaker series is to host prestigious national and international speakers every year on topics of particular interest to law students. Past speakers have included Justice Clarence Thomas and former ABA President Stephen N. Zack (JD 71).

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